Thursday, May 9, 2019

My Unconventional Prediction on the SCOTUS LGBT Cases

FlagThe conventional wisdom on Zarda and the other two related cases on which SCOTUS recently granted certiorari is that the new conservative majority on the Court will hold that Title VII does not protect employees on the basis of LGBT status. I predict the Court will hold that Title VII does protect these employees – and that the vote will be 6-3.

Here’s my reasoning: Roberts appears to be very cognizant of the institutional damage the Court is suffering as it becomes increasingly clear that its decisions are politically motivated. He doesn’t want to be the Chief Justice on whose watch the Court loses the prestige it has built over the last nearly 250 years, and as the Sebelius (Obamacare) case demonstrates, he is willing to at least occasionally change his vote to avoid that. Moreover, there is no better case to “prove” the Court is apolitical – and to draw attention away from all the pro-business cases (e.g., arbitration) and perhaps pro-Republican cases the Court is likely to decide in the near future – than a case the outcome of which he knows will be reported on the front page of nearly every newspaper in the country.

I believe Kavanaugh will be the other conservative defector. Voting for Title VII protection of LGBT status might salvage a bit of his reputation after his less-than-stellar (and hyper-political) confirmation proceedings, and would be consistent with the judicial philosophy he claims to espouse favoring judicial empathy (see Wasserman and Horwitz).

Both Roberts and Kavanaugh will cloak themselves in Scalia’s holding in Oncale that the plain language of Title VII protects men from same-sex harassment. They will quote his statement in that case that "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." Their conservative friends will not desert them – it’s hard to question the conservative bona fides of someone who favorably quotes Scalia.

Plus, if both Roberts and Kavanaugh flip, each will give the other cover, and Roberts will avoid the 5-4 decision that would occur if only one or neither of them flipped. I doubt Roberts wants a 5-4 vote on this divisive public issue.

I hope I’m right about this particular outcome, though this should not be taken for optimism about the Court’s future business and political cases.


Arbitration, Employment Discrimination | Permalink


Rick, I think you are right about this.

Though I’m holding out hope that Justice Alito will also be with the majority.

Plus, the gender-stereotyping theory might give a reluctance justice cover to join in the result but not the merits.

If the justices look at the facts dispassionately, they can’t avoid the implicit sex bias in discrimination against people who are not heterosexual only, gender affirmed, and/or gender diverse, something earlier courts avoided by coming up with a variety of rubrics, such as “bootstrapping.”

Sex is front-and-center in the LGBT sex discrimination cases.

The religious defense should fail because the defense is based on the proper role of men and women in society. While a faith should be free to impose its beliefs on its adherents, it should not be able to impose them on nonbelievers in secular society.

As Presbyterian minister Jean Southard observed in Faith Communities and LGBT Justice:

“For LGBT individuals, religious affiliation may be problematic because many were raised in faith communities where they were taught that to deviate from the gender roles accepted by their faith communities is to be unacceptable to God. In these particular communities, living one’s life as a gay or lesbian person is a prime example of deviating from acceptable gender roles for men and women in terms of dating, marriage, sexual activity, and raising children.”

On April 22, 2019, the Third Circuit hit on this as well, in Curto v. A Country Place Condominium Association, where it invalidated a condominium association’s segregated pool policy – instituted because approximately two-thirds of its residents were members of the Orthodox Jewish faith – because the policy discriminated against women in violation of the Fair Housing Act. See

Women were given less favorable swim times. “Of note, a large majority of the hours in the evening were set aside for men, including the period from 6:45 p.m. onward every day of the week (except Saturday) and the entire period from 4:00 p.m. onward on Friday. As for Friday afternoons, [the condo’s representative] testified this was done because women are at home preparing for the Sabbath during that time.

The Third Circuit observed:

“Looking to the express terms of the pool policy, the Association emphasizes that it allows for roughly equal swimming time for both men and women in the aggregate. But this is not enough to save the pool schedule, which discriminates in its allotment of different times to men and women in addition to employing sex as its criterion. Under the most recent version of the schedule, women are able to swim for only 3.5 hours after 5:00 p.m. on weeknights, compared to 16.5 hours for men. The schedule also assigns to men the entire period from 4:00 p.m. onward on Friday afternoons. Women with regular-hour jobs thus have little access to the pool during the work week, and the schedule appears to reflect particular assumptions about the roles of men and women.”

Posted by: Christine Michelle Duffy | May 10, 2019 7:06:28 AM

While I really hope this is right, I'm not sure I see it, at least with respect to the Chief. I held out very similar hopes for Roberts in Obergefell. There, he also could've said that discrimination based on sexual orientation is sex discrimination. He even asked about this at oral argument. There, too, I thought he would worry about the 5-4 decision in a momentous case. My hopes were nonetheless disappointed. I expect the same for Varda.

Posted by: Raff Donelson | May 13, 2019 10:11:28 AM

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