Employment discrimination, the Supreme Court, and the limits of liberalism

On Monday, April 22, the Supreme Court agreed to review three cases next year that address whether Title VII, the nation’s most important statute barring employment discrimination, protects LGBT employees. The plaintiffs are gay men Donald Zarda and Gerald Bostock, who claim that they lost their jobs for being gay, and Aimee Stephens, who was fired by a funeral home director after she told her employer that she identified as a woman rather than a man.

Yes, Virginia, Employers Can Discriminate

Many Americans, even some members of the LGBT community, are surprised to learn that this question hasn’t already been settled in favor of protecting against discrimination. The guidelines set forth by the Equal Employment Opportunity Commission, the federal agency that handles claims of employment discrimination, have included sexual orientation as a prohibited form of discrimination for years. An update during the Obama years incorporated “gender identity, including transgender status.” More than half of the states have some form of protection in place against discrimination based on sexual orientation and 21 states and the District of Columbia protect transgender individuals as well.

The EEOC’s guidelines give some cause for hope. A longstanding principle of judicial deference to administrative agencies’ interpretations of the laws they enforce could lead the Court to put the final seal of approval on Title VII’s protections for LGBT employees. Administrative law mavens, however, would note that this principle, known as Chevron deference for the case that established it, may be in danger from Republican appointees. This raises the possibility that the Court’s right wing may unite to kill two largely liberal birds with one stone: expansive protection against discrimination, and further entrenchment of administrative rules established under enforcement-minded agencies.

Is Chief Justice Roberts a Swinger?

With the Court’s tilt to the right in the wake of the elevation of Neil Gorsuch and Brett Kavanaugh, many eyes have turned to Chief Justice Roberts. He now holds the ideological center position on the Court, a role that Justice Anthony Kennedy occupied for years. His institutional position as Chief Justice is also significant and could explain situations in which he seems to be acting more in the interest of the Court as an institution than on behalf of his own conservative views. (The best example here is his deciding vote to uphold key elements of the Affordable Care Act.) As Chief, he may not only cast a key vote for a closely split Court, but will also control who gets to write the majority opinion in the cases. This power shapes not only the outcome in these cases, but also carves out a trajectory for the future. Further, it signals to activists what kinds of cases the Court might be interested in taking on.

Given Justice Kennedy’s fairly consistent support for lesbian and gay rights, Justice Roberts is a critically important player in these cases. What’s at stake, though, is even greater than the fate of anti-discrimination initiatives that protect the LGBT community. The Supreme Court, in accepting these three cases, may move toward a legal regime that protects some formal rights but allows ample scope for discrimination, particularly discrimination supported or excused by religious beliefs.

A Key Case To Watch

It’s no accident that among the three cases chosen, the Court granted review to R.G. and G.R. Harris Funeral Homes v. Stephens. This Sixth Circuit ruling determined that Title VII’s prohibition on sex discrimination includes discrimination on the basis of gender identity. The funeral home appealed the ruling, objecting that the Sixth Circuit had improperly interpreted Title VII’s mandate. Key to the appeal is the particular positioning of the funeral home and its president, Thomas Rost, a “devout Christian” who understands his work as akin to a religious ministry. The funeral home’s website announces that its ‘highest priority is to honor God in all that we do.’ Employees are bound to a sex-specific dress code requiring suits for male employees and dresses or skirts for female employees.

Both Rost and Stephens agree that Stephens was terminated when Stephens, hired in 2007 as a man, approached Rost in 2013 to inform him that Stephens intended to transition and planned to present as a woman and comply with the women’s dress code at work. Rost feared that Stephens’ attire and appearance would disrupt his business and did not want female clients and staff to have to share restroom facilities with Stephens. He also based Stephens’ firing, however, on his religious beliefs. He argued that allowing Stephens to present as a woman would “violate . . . God’s commands.” He claimed further that forcing him to allow Stephens to present as a woman would put pressure on him ‘to sell [the] business and give up [his] life’s calling of ministering to grieving people as a funeral home director.’

While the primary question in the case is whether Title VII covers discrimination on the basis of gender identity, the religious aspect raises an additional set of questions. These questions go to the heart of what a liberal society can expect of its members – and whether liberalism is suited to protect the full citizenship and safety of some members whose very existence offends others.

The Unfinished Business of Obergefell and Masterpiece Cakeshop

The Supreme Court’s ruling in Obergefell v. Hodges in 2015 affirmed a right to marry for same-sex couples and sparked jubilation for a victory won after decades of struggle. When Kentucky clerk Kim Davis nonetheless attempted to deny a marriage license to a gay couple because of her religious beliefs, she was jailed for five days and lost her re-election bid in 2018. But while this episode presented a triumphal narrative for supporters of LGBT equality, resistance was brewing in other corners.

Jack Phillips, an “expert baker” and “devout Christian,” refused to make one of his signature masterpieces for the wedding of gay couple Charlie Craig and Dave Mullins. Relying on Colorado’s law barring discrimination in public accommodations, which included sexual orientation, the couple sued Masterpiece Cakeshop. In a narrowly crafted ruling, one of Justice Kennedy’s last opinions for the Court, seven Justices found in favor of baker Phillips, largely because the Colorado civil rights division that had found against him had expressed animus toward Christian religious belief. However, Justices Alito, Gorsuch, and Thomas indicated that they would have preferred more robust protection for individuals to wield their sincere religious beliefs to shield them from required economic engagement with queers.

It’s not hard to imagine this viewpoint gaining steam among other members of the current Court. Nor is it difficult to envision Chief Justice Roberts embracing what he sees as a reasonable compromise to solve the culture wars. He could vote and write to allow Title VII to encompass discrimination based on sexual orientation and gender identity, but also to provide that the constitutional mandate to respect the free exercise of religion trumps statutory (and administrative) anti-discrimination principles.

Liberalism, Pluralism, and Religion

Many Americans, consciously or not, believe that the United States is fundamentally a small-l liberal nation. I don’t mean that we overwhelmingly vote for Democrats or spend all our time debating whether Elizabeth Warren or Pete Buttigieg presents the clearest representation or our ideals. Rather, I mean the belief that the US as a nation embraces the fundamental principles of liberalism as the legitimate boundaries for political discourse.

Liberalism’s boundaries have sparked debates for centuries, but most would agree that some version of John Stuart Mill’s classic explanation captures the ideology fairly well. Mill posits that individual liberty, particularly the freedom to direct and manage one’s own project of life fulfillment, ought to be protected as much as possible to the extent that these projects are not causing harm to others. This vision of liberalism also imagines a marketplace of ideas in which rational discourse will lead to enlightenment and truth, albeit with a variety of possible legitimate expressions of the good life – including those based in religion.

A wide range of American liberals going back to the Revolutionary Era have endorsed freedom of religion as a key component. Indeed, the constitution enshrines two classical liberal bulwarks to protect expressions and practices of faith: the freedom to exercise religion and a bar on state endorsement of any particular religion.

The Problem

However, as scholars Angelia Wilson and Cynthia Burack and others have shown, it’s no longer that simple. Some varieties of religious belief has become deeply entangled with both animus toward the LGBT community and politics. They and other analysts noted the culture wars’ turn to sexuality and politics before the era of Trump, and have increasingly sounded the alarm about the political weaponization of homophobia. And as Steven Teles and Jefferson Decker have argued, conservative legal organizations are claiming and using religious arguments about sexuality to leverage liberal rights frameworks to carve out social and political space in new ways.

Under this pressure, classical liberal toleration and acceptance for a variety of visions of the good life have morphed.  They now translate into increasing demands that laws enforcing equality acknowledge – and even valorize – visions of the good life that deny not only the equality, but the full humanity, of some members of society. Mary Ann Case has shown that this development is not limited to LGBT issues. In her analysis, arguments for a live-and-let-live stance serve as a wolf in sheep’s clothing to smuggle in a dangerous and fairly unified ideological agenda.

Taking the Long View

The congressional leaders who drafted and passed the 1960s vintages of anti-discrimination laws understood this dynamic. They also recognized, however, that the arguments they faced for continuing to allow discrimination were fundamentally illiberal. They realized that a free marketplace of ideas where the truth of equality would ultimately win was not possible in the context of an asymmetric power struggle. And they refused to allow abstract commitments to toleration, respect, and different visions of the good life to obscure the concrete desire of segregationists to maintain status hierarchies.

These pending cases highlight a problem in the United States right now. Those advocating for balancing and accommodating both sides presume a liberal political hegemony that I don’t believe still exists (if it ever did). The right’s embrace of an aggressive form of religious freedom is a cudgel being used now to breach the liberal facade. The struggle won’t go away, but at least we can see it for what it is, and oppose the rollback of rights under the false banners of civility, compromise, and liberal toleration.

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