I have long insisted that in the age of Trump, irony has died along with it. But then comes Neil Gorsuch to prove me wrong.
In a startling 6-3 decision, with a startling majority opinion written by the ultra-conservative Gorsuch, the Supreme Court has ruled that LGBTQ people are, well, like all other people and must be treated that way. In citing Title VII of the Civil Rights Act of 1964, this ruling prevents gay, transgender, etc., people from being fired solely for being gay, transgender, etc.
It is clearly the most important gay-rights ruling since Obergefell and gay marriage. It is clearly the most important since Anthony Kennedy, the ultimate swing voter who often swung in the direction of gay rights, retired. It may, some experts say, be the most important gay-rights ruling ever.
And that it came from the pen of Colorado’s own Gorsuch — who was appointed by Donald Trump in the first of two hard-fought nominations, this one bringing to an end the filibuster for Supreme Court nominees — is particularly striking, because he was appointed with the understanding that rulings like this wouldn’t happen. And that Gorsuch used (or, some would have it, misused) one of Antonin Scalia’s favorite rules of legal interpretation makes it that much sweeter.
“The whole point of the Federalist Society judicial project, the whole point of electing Trump to implement it, was to deliver Supreme Court victories to social conservatives,” lamented the conservative writer Varad Mehta in just one of many such observations from the right. “If they can’t deliver anything that basic, there’s no point for either. The damage is incalculable.”
I’d have to agree with Mehta on at least one point. The damage of electing Trump has been incalculable.
And yet, for those who believe, as a majority of Coloradans now do and as a majority of Americans now do, Gorusch’s ruling is important in almost too many ways to name — starting, of course, with the overdue recognition of LGBTQ civil rights — but let’s settle for a few.
As we know, Colorado, which sees itself as a socially liberal state, has a tortured history with gay rights, and not just when it comes to wedding cakes. There was, of course, Amendment 2, which passed in 1992 by a 53-47 margin. It would deny the state, as well as any city, town or county, from considering gays a protected class. If you’re old enough, you remember the hate-state boycott and the Supreme Court ruling that overturned it. Kennedy wrote the 6-3 majority opinion.
And then there was Amendment 43, The Colorado Definition of Marriage Initiative in 2006, saying that only a union of one woman and one man could constitute a valid marriage. It passed with 56% of the vote. Several courts ruled against its constitutionality, but it was not fully overturned until the Obergefell decision in favor of gay marriage, the majority opinion written, of course, by Kennedy.
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And then there was the infamous midnight blockade of a civil unions bill in 2012 by then-state House Speaker Frank McNulty despite the fact that the bill had sufficient votes to pass. John Hickenlooper called for a special session to remedy the situation, but McNulty sent the bill to a kill committee, and the dark ages in Colorado continued for a while longer. (It was McNulty, by the way, who spearheaded the recent ethics complaints against Hickenlooper.)
And now Gorsuch, who was appointed to replace Scalia, who, let’s say, was not gay-friendly in most of his rulings, is leading the way for the entire country. Colorado already had a law offering full gay civil rights, but 28 states did not.
We shouldn’t expect Gorsuch to be the new swing vote. Let’s not forget the frozen trucker controversy raised in Gorsuch’s nomination process. But, in this case, Gorcush’s ruling was based on what is called textualism, a way to interpret law championed by Scalia. With textualism — and this is an oversimplification, but read the above-linked article for a more complete explanation — you rely on the law as written, even if the writers didn’t necessarily intend it that way.
Gorsuch’s opinion is based on the fact that Title VII prevents employment discrimination based on “sex.” Gorsuch writes that “an employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
He continues: “We agree that homosexuality and transgender status are distinct concepts from sex. But, as we’ve seen, discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex.”
Yes, those who wrote the law and included sex had no sense that it would someday be used in service of gay rights. In fact, in a case of some 1964 irony, arch-segregationist Rep. Howard Smith added “sex” in the last moments to the bill’s wording in the hope that it would be a sufficiently potent poison pill to kill the bill.
It wasn’t, of course. And here’s what did come of it. Matt Ford, writing in the New Republic, cites a 1988 ruling by the high court in favor of a male offshore oil worker, who sued under Title VII on the basis of sexual harassment from other males. The ruling, authored by Scalia, was unanimous, and read in part: “Statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”
And yet in his dissenting opinion on Gorsuch’s ruling — which by the way was also joined by Chief Justice John Roberts, whom many on the right now consider an apostate — Samuel Alito wrote: “The Court’s opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated — the theory that courts should ‘uphold’ old statutes so that they better reflect the current values of society.”
There are battles yet to come. Congressional Democrats have been vainly trying to pass the Equality Act, which would extend LGBTQ anti-discrimination rules in education, retail establishments and other areas. The Trump administration still says Obamacare’s ban on sex discrimination doesn’t apply to trans people. And there are Trump’s executive orders against trans people in the military.
But this is a huge step forward for America. And the fact that Gorsuch unexpectedly played a key role is the kind of ironic return to our senses that America needs.
Mike Littwin has been a columnist for too many years to count. He has covered Dr. J, four presidential inaugurations, six national conventions and countless brain-numbing speeches in the New Hampshire and Iowa snow.
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