The NPR Politics Podcast - Supreme Court: LGBTQ Employment Discrimination Is Illegal

Episode Date: June 15, 2020

The vote was 6-3 with conservatives Chief Justice John Roberts and Neil Gorsuch joining the court's four liberal justices in the majority. "In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee's sex when deciding to fire that employee," the court held in Monday's decision. "We do not hesitate to recognize today a necessary consequence of that legislative choice: an employer who fires an individual merely for being gay or transgender defies the law."In this episode: congressional correspondent Susan Davis, White House correspondent Franco Ordoñez, and national Justice correspondent Carrie Johnson.Connect:Subscribe to the NPR Politics Podcast here.Email the show at [e-mail] the NPR Politics Podcast Facebook Group.Subscribe to the NPR Politics Newsletter.Find and support your local public radio station.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

G'day! This is Jason on my farm in the beautiful South Island of New Zealand. This podcast was recorded at 2.07 p.m. on Wednesday, June 15th. Now it's time for me to rattle my dags and get these sheep shorn. Enjoy the show! Rattle my what, did he say? I don't, the sheep talk? I don't know. Can I be transported magically to New Zealand right now?

Little known fact about me, I do a regular segment on New Zealand Public Radio, so shout out to all my New Zealand people. Wow. Hey there, it's the NPR Politics Podcast. I'm Susan Davis. I cover Congress. I'm Franco Ordonez. I cover the White House.. I'm Susan Davis. I cover Congress. I'm Franco Ordonez. I cover the White House. And I'm Carrie Johnson. I cover the Justice Department.

And today, the Supreme Court ruled 6-3 that the 1964 Civil Rights Act, which bars discrimination based on race, religion, national origin, and sex, protects gay and transgender workers. 28 states lack comprehensive employment protection for LGBTQ people, and this decision recognizes that they are protected under existing federal law. Carrie, how big of a deal is this ruling? This is a major, major victory described as sweeping by advocates. In fact, Diana Flynn from Lambda Legal, which advocates on behalf of LGBTQ workers, said this means that people can be themselves in the workplace, a place where almost all of us spend almost all of our time except during the coronavirus pandemic. So it's enormous. It means that instead of a patchwork of laws, depending on which state in which you live, you are protected based on your

sexual orientation and gender identity at work. So what was the underlying case at hand? It was actually two sets of cases. One concerned some gay men who said they were fired because they had come out more publicly as being gay. And the second involved a transgender woman who said she was fired after coming out at work at a funeral home. And basically, the court decided all three of these cases together. And the majority opinion was by, of all people, Donald Trump nominee to the Supreme Court, Neil Gorsuch, joined by, of all people, Chief Justice John Roberts, who had actually dissented in the major same-sex marriage case five years ago. Carrie, let me just ask, I mean, how big of a deal is it that Gorsuch wrote the majority opinion here? Well, I think this was a surprise to many civil rights groups,

but Gorsuch wrote this decision based in what he called the text of the key law at issue, the 1964 Civil Rights Act, which prohibited discrimination at work on the basis of things like national origin, race, and sex. He said sex in this case also meant by definition sexual orientation and gender identity. opinion, Justice Gorsuch says, it's impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. That's the heart of the majority opinion. Franco, what is the White House response been to the decision? Well, the president was asked about the decision today, and he said it was a very powerful decision. He said the Supreme Court ruled and we will live by that decision. Carrie, I wonder if this decision, how far it will reverberate in that there's plenty of legal questions still about how you define sex, legal debates in both policymaking in Washington. I mean, is this going to reverberate beyond this decision or is it more narrow?

You know, Gorsuch, in the majority opinion, basically said he was just deciding this issue in the workplace context. But civil rights groups and LGBTQ advocates say there are something like 100 federal statutes on the books that talk about discrimination on the basis of sex. And this decision could help to open up debate in all of those contexts. In fact, in the dissent, in his very strongly worded and kind of angry dissent, Justice Samuel Alito talked about opening up a debate about education, housing, things like bathrooms and locker rooms and higher education. So I think that we're not at all done talking about this. And there are a lot of open questions moving forward that the courts are going to have to answer and maybe even Congress. You know, I've spoken with a couple law professors on this issue, and they do echo that point. Other entities are likely going to point to this. This had to do with employment, but it could be brought up in fields of education. It could be brought up in fields of health care, even the military, though the military has kind of given more of, you know, allowed more of the executive branch to kind of make those decisions.

Pringle, it also seems timing wise, you look on Friday, the Trump administration was just doing new rulemaking under HHS, how they will treat gay and transgender people. I mean, certainly their decision making seems to run against at least the spirit of this decision. Yeah, there were a couple protests over the weekend, one in Brooklyn, where there were thousands of demonstrators that were actually led by black trans women. And, you know, coming at a time when there's Black Lives Matter protests, it was very significant. And, you know, frankly, this is a big blow for the Trump administration, for the White House, considering that they had just announced that it was eliminating Obama-era protections for people who are transgender. You know, a federal attorney I spoke with this morning tells me that, you know, this decision, frankly, couldn't have come at a at a worse time for the White House because it had just done this, issued these policies over the weekend.

And now the Supreme Court is saying, well, White House, President Trump, you're wrong. Well, I also wonder, too, politically, Franco, I mean, just because it's Neil Gorsuch, if you think about how much of the support was behind the president during his campaign and in his time in the White House because of his promise to put conservatives on the court and the idea that evangelicals really rallied behind the president because of that. And Gorsuch maybe, you know, weakened that strength in the president there. I mean, his role in this, I think we just have to note, I mean, so much of the support for the president was built upon his ability to get conservatives on the court that would rule the way conservatives wanted them to. Yeah, and I think that is going to be, you know, a lasting question politically. I think the White House is going to be asked that

question as well. And Gorsuch, you know, though, has, you know, had cases where he has given opinions that did not necessarily fall in line with some of the other conservative viewpoints before he was on the Supreme Court, including immigration. And I think there will be a lot of questions about that. And, you know, another decision that was supposed to come up today but didn't was DACA. So I think there'll be a lot of thoughts on that dreamer opinion. Carrie, what was the minority dissenting view on today's decision? You know, there were a couple of dissents, one by Justice Alito that was very, very powerful and angry. Justice Alito pointing out, as have outside conservative groups, that Neil Gorsuch kind of learned at the feet of the late Justice Antonin Scalia. And Justice Scalia was a champion of reading the text and discerning meaning from it. They think that Gorsuch went way too far here. And Brett Kavanaugh wrote with his own several pages basically saying, the court should not be legislating.

This is an issue for your body, the Congress, not for the courts. And in fact, I think maybe Congress is considering some of these issues moving forward. They have. I mean, Democrats for years have tried to pass and successfully passed through the House last year what's called the Equality Act, which would essentially clear up a lot of these legal questions. It would broadly expand protections based on sex or sexual identity to these other questions you guys raised, education, housing, public spaces. But it passed with some Republican support, but very minimal. And there's always been pretty significant opposition to it in the Senate and the White House. So as in many tricky policy issues,

Congress, there is some support for it, but no real path to get it through or certainly not to get it signed into law. So it sounds like the courts are going to continue to be a major battleground here. All right, let's take a quick break. And when we get back, we'll talk about some of the cases the court decided not to take up. This message comes from NPR sponsor Facebook. In response to COVID-19, people around the world are coming together to help one another. Facebook's community help feature is making that easier. From delivering groceries to neighbors to donating to a local fundraiser or food pantry,

Community Help provides a place where people can offer or request support in their area. Learn more at facebook.com slash COVID support. You may have noticed something at all these protests over police violence. There are a lot more white people there than you'd expect. But how long will that last? This awokening among white American voters, how far are they really willing to go beyond dethroning Trump? Adam Serwer on race and lessons from history. Listen and subscribe to It's Been a Minute from NPR. And we're back. And right now the country is in the middle of a big debate over the question of qualified immunity. Carrie, can you just explain what that is? Sure. So under federal

law, police officers and other officials working for the government can be sued if they violate somebody's civil rights, say through a brutal beating or even a killing. But many years ago, many decades ago, the courts created their own doctrine, not in any law anywhere, that gives authorities a shield against those kinds of lawsuits, basically to allow police officers the freedom to make decisions in the heat of the moment that could have resulted in their death if they didn't defend themselves or otherwise act. Now, the problem is that that shield has been beefed up over the years by the Supreme Court and other courts, so that it's very, very difficult for anybody whose civil rights have been violated by police to actually sue and get money damages. In fact, right now, the standard is that they would need to prove that there's some kind of clearly established court ruling in the

past where the facts mirror exactly what the police officer did in their case as to some other case. And that is almost insurmountable. And this obviously coming up in response to the death of George Floyd. But today, the Supreme Court said they're not going to take up any cases involving qualified immunity. Yeah, and this was a huge disappointment right in the middle of these nationwide, even worldwide protests against police brutality. The argument from civil rights types is, listen, if police can continue to engage in this conduct with virtual impunity because of their contracts, union contracts, and because they don't face any consequences or very few consequences in the courts, there's really no curb on this police behavior. The long and the short of it is

Congress may have to act. Well, we know that Congress is looking at this question. The House Democrats have a bill in which it would address and limit these qualified immunity protections. But Tim Scott, he's a Republican from South Carolina. He's the only black Republican in the Senate. He's working on sort of the Republican response to this. And he said over the weekend on CBS except for the law enforcement unions say that's a poison pill. So we're going to have to find a path that helps us reduce misconduct within the officers. But at the same time, we know that any poison pill in legislation means we get nothing done. Franco, if Tim Scott's not for it and President Trump's not for it, it seems like it's probably a nonstarter in these negotiations. Yeah, absolutely.

I mean, that's why Tim Scott's calling it a poison pill, basically saying not only do they say it's a nonstarter, they're arguing that Democrats know it's a nonstarter and that they're only doing that because they know that it will not happen. And this is something the White House, for example, has made clear. They are going to support the police. Full stop. President Trump, you know, just a few hours ago today tweeted again, law and order. He made it a key part of his campaign in 2016. It seems like this question of qualified immunity could be the reason why, because at the same time, Democrats, especially in the House led by the Congressional Black Caucus, are really committed to this. And police reform without changing qualified immunity laws might not be enough for Democrats to ultimately get around either. Before we go, Carrie, I also, there's another issue that the court could have decided to take up today and decided not to.

They announced that they're not going to take up any Second Amendment cases. Yeah, and this is a big disappointment to people like Clarence Thomas and Brett Kavanaugh on the court who have wanted the high court to weigh in on Second Amendment rights, including the major question of whether you have the right to carry a weapon outside your home under the Second Amendment. That's still an open issue in most parts of the country, because the Supreme Court doesn't seem to want to wade into these issues. There's been invitation after invitation. And it may be that the court is not clear on where it wants to go on this extremely controversial and set of hot button issues. All right, well, we'll leave it there

for today. You can subscribe to a roundup of our best online analysis at npr.org slash politics newsletter. I'm Susan Davis. I cover Congress. I'm Franco Ordonez. I cover the White House. And I'm Carrie Johnson. I cover the Justice Department. And thank you for listening to the NPR Politics Podcast. NPR.