The U.S. Supreme Court handed down two major rulings last week: one protecting LGBTQ employees from workplace discrimination, and another preserving DACA, a program that protects more than 600,000 so-called "DREAMers" from deportation. We look at what the rulings mean for the country and how these rulings are personally affecting some Vermonters.
Our guests are:
- Lisa Holmes, an associate professor at UVM specializing in American judicial politics
- Leslie Holman, a Burlington immigration attorney
- Juan Conde, a DACA recipient and med student at UVM's Larner College of Medicine
- Mike Pieciak, Commissioner of Financial Regulation responsible for consumer protections, including equitable access to health care for LGBTQ Vermonters
- Brenda Churchill, a liaison with the LGBTQIA Alliance of Vermont, which advocates for six Vermont nonprofits working statewide on issues related to lesbian, gay, bisexual, transgender, queer, intersex and asexual identity
Broadcast live on Tuesday, June 23, 2020 at noon; rebroadcast at 7 p.m.
Look out for more conversations from this episode of Vermont Edition in the coming days.
The following has been edited and condensed for clarity.
Jane Lindholm: Can you describe what was at stake in the LGBTQ rights case?
Lisa Holmes: So what the Supreme Court handed down last week was a consolidation of a few different cases with a couple of different issues surrounding how the Supreme Court was going to interpret the phrase “discrimination based on characteristics, including sex” in Title VII of the Civil Rights Act of 1964, a piece of legislation passed by Congress on anti-discrimination in the workplace.
The four liberals, Chief Justice John Roberts, and Trump-appointee Justice Neil Gorsuch writing for the majority, argued that what the people who wrote that law intended or even what the purpose of that law is, is not the thing to be considering here. It's just what does the word "sex" mean and what does the phrase "discrimination based on sex" mean, and whether that ban on discrimination in the workplace also protects people based on sexual orientation and gender identity. The dissenters, on the other hand, did argue that things like what Congress intended by including that language is, is what should be driving the interpretation today.
So why do the justices think sexual orientation or gender identity is included in sex, and why would it be discrimination if you were fired because of that?
Gorsuch leans in heavily on cases for precedent here. One thing he says is that discriminating against people based on sexual orientation or gender identity inherently and automatically takes their sex into consideration. And other things might play a role, too, that you might be discriminating against somebody because they're a man who dates or marries another man. But the fact that the discrimination might also be based on something aside from sex, doesn't change the fact that he is also being illegally discriminated against based on his sex.
So if you fire a man who's married to a man, and you wouldn't also fire a woman who's married to a man, it's directly related to that person's sex.
Right. And so that's how Gorsuch and the majority focused on this, not getting into the business of, "well, of course, the people who wrote this law in 1964 weren't thinking about gender identity back then," because, of course, they weren't.
And what about the dissenting opinion?
Well, the dissenting opinions by Alito and Kavanaugh covered similar ground, but in different ways. The Alito opinion reads, for lack of a better way to put it, a little bit angrier than the Kavanaugh opinion. They focus more on arguments that there is no way the people who included the word sex in Title VII were thinking about things like protecting members of the LGBTQ community.
In other words, this is something that Congress should take a role in, not the Court?
Yes, that is exactly right. And I think Kavanaugh's dissent in particular really focuses on that and concludes with saying this is the job for the nation's Legislatures. They mention also that Congress has had ample opportunity to clarify discrimination based on sex. And Congress has not done that, has not amended the statute.
There are likely to be further cases challenging this, specifically by religious organizations creating more distinctions about who does this apply to and when, right?
That's exactly right. Gorsuch said in his majority opinion very carefully that this case really focuses on things like hiring and firing. He says they're not weighing in on things like bathroom usage or gender dress codes in the workplace or things like that. And as you noted, there's this whole other line of cases that the Supreme Court has been doing in recent years in things like the Hobby Lobby case, focusing on the religious liberties of the owners of small private companies.
Are you surprised by this ruling?
You know, a little bit, but not as surprised as some. I was listening to an interview just last week from one of the attorneys involved in in the case and they said that they basically pitched their brief to Gorsuch because they thought he might be particularly amenable because of his more textualist "I don't want to consider things like what the intent of the people who wrote this law was" attitude.
So what about this ruling on the Deferred Action for Childhood Arrivals program, which didn't codify the program in any new way, but basically said that President Trump and the Department of Homeland Security's decision to end the program was arbitrary and capricious?
This case is a little trickier to sum up succinctly, because it's really mired in the intricacies of administrative law. I think these administrative law decisions sometimes get framed as mere technicalities. But my argument is that they're not, because administrative agencies on a regular basis make decisions that affect people's lives like this, like enacting the DACA program and then trying to rescind the DACA program.
So this is an important aspect of just government accountability. The government has a lot of power over us, and if they use that power in ways that are slipshod or too arbitrary or too unpredictable, too capricious, then they're violating our procedural rights in terms of not giving us enough notice and enough input in the direction that our government goes in. At the federal level, administrative officials are not directly accountable to the people. We don't elect them. This is a way to force them to inform us and take our views into consideration.
But in both of these rulings there could be an argument made that these cases are coming before the Supreme Court because Congress has not done its job, has not made laws around these issues in such a way that clarifies things so it doesn't need to go through the court system.
Yeah, I think that's a really important point, too. And I think we touched on that when we talked about the Title VII case in terms of the two different sides, whether they thought it was an important point or not that Congress had not amended Title VII to clarify whether they intended to protect members of the LGBT+ community.
But I think that point holds here, too. You might remember that the reporting that came out of the Obama administration was that early on he had to make a choice: Do you go all in on comprehensive immigration reform or do you go all in on comprehensive health care reform? And he chose the latter. I'm not trying to argue here that comprehensive immigration reform through Congress would be easy to achieve. It would not. But I think absent Congress pulling off something like that, it actually gives administrative agencies and the president even more power to engage in administrative policymaking through things like DACA or rescinding DACA, which is why it's important to make sure they handle these procedural hurdles properly.
What else are you looking for in this term? There still are some rulings that that are expected, including one on abortion rights, correct?
Yes, that's absolutely correct. There's a big abortion decision. There are multiple cases that touch on religion still to come. And there's a case that deals with the leadership structure of the Consumer Financial Protection Bureau. And, of course, there are the consolidated cases dealing with efforts to try to get financial institutions to release some of President Trump's financial records. There's still a lot to come in the next couple of weeks on the Supreme Court.