Jessica Levinson  Gorsuch's LGBTQ Supreme Court vote is a historic liberal win — for now

How does a decidedly conservative Supreme Court make a decidedly liberal ruling?
Supreme Court Justice Neil Gorsuch in his chambers in August 2019.
Supreme Court Justice Neil Gorsuch in his chambers in August 2019.Bill O'Leary / The Washington Post via Getty Images file
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By Jessica Levinson, professor at Loyola Law School

On Monday, the Supreme Court ruled that federal law protects workers from being discriminated against on account of gender identity or sexual orientation. It is no longer true, for instance, that in many states a same-sex couple can get married on Sunday and fired on account of their same-sex status on Monday or that trans Americans can be fired simply for being trans.

This ensures nationwide protections for LGBTQ workers and is a historic win for the LGBTQ community. The decision is an unequivocal victory for those arguing that protecting civil rights in the workplace includes protecting gay and transgender people from workplace discrimination. Liberals are understandably celebrating.

The decision is an unequivocal victory for those arguing that protecting civil rights in the workplace includes protecting gay and transgender people.

But the big question is: How does a decidedly conservative Supreme Court make a decidedly liberal ruling? The short answer is: It doesn't.

Justice Neil Gorsuch, nominated by President Donald Trump, authored the 6-3 opinion for the court. He was joined by Chief Justice John Roberts and the four liberal members of the court.

Gorsuch is no one's liberal, or even moderate, jurist. The same is true for Roberts. So while many right-wing politicians and voters might be feeling disappointed by Monday's ruling — not to mention the other conservative justices — legal conservatives will find solace in the court's approach. This distinction here is between conservative judicial philosophy and conservative political philosophy.

The issue before the court was actually quite narrow. Title VII of the 1964 Civil Rights Act prohibits discrimination against employees on account of race, color, religion, sex or national origin. The plaintiffs argued that the word "sex" in the federal law prohibits discrimination against employees not just because someone is male or female, but also because of their gender identity and sexual orientation.

If one looks at the context surrounding the passage of the 1964 Civil Rights Act, and specifically at lawmakers' intent, there is little doubt what Congress meant. Protections on the basis of sexual orientation and gender identity simply did not exist in the 1960s. Congress did not envision that it was protecting the rights of gay and transgender workers.

But luckily for LGBTQ workers, Gorsuch did not look at congressional intent or the context surrounding the passage of the Civil Rights Act. Instead, he looked only at the word "sex." This is the approach, espoused by many conservatives, called textualism.

"Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear," wrote Gorsuch. "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."

Liberals had to adhere to a view of the case that, at least in part, ignored their typical approach of looking at the full context of the law and what lawmakers intended when it was written. For instance, in a blistering dissent, Justice Samuel Alito asks "why in these cases are congressional intent and the legislative history of Title VII totally ignored?"

While the ruling has broad practical implications, the legal issue was a narrow one of statutory interpretation.

This is a momentous ruling. Justice Anthony Kennedy's retirement left many wondering what would happen to gay and transgender rights. Before Monday, Kennedy was the only justice ever to have authored an opinion supporting gay rights. But again, we should be careful to read too much into Monday's decision. While the ruling has broad practical implications, the legal issue was a narrow one of statutory interpretation.

The ruling is also a win for conservatives who adhere to a textualist approach to reading both legislation and the Constitution. That could be an ominous sign for future cases.

Consider, for instance, the constitutional right to privacy, which protects reproductive choice. The text of the Constitution does not explicitly protect a woman's right to choose. It is something that judges have interpreted the Constitution to mean. Consider, also, the Second Amendment's right to bear arms and that a textualist approach could lead to the striking down of many more gun control measures.

Monday's ruling looks like a liberal win, because it is. But the implications of this textualist approach to legal questions could also have broad implications far beyond this case.