Last summer, the end of the Supreme Court’s term brought a variety of mixed emotions for advocates of LGBT rights. Disappointment with the Masterpiece Cakeshop decision, but pleased that a solid majority affirmed the concept of LGBT equal access to the marketplace. Despair over Justice Kennedy’s retirement. Doubts about a Supreme Court trending more conservative and dreading the possibility of the Court backtracking on recent decisions expanding LGBT rights. What would the 2018-2019 term bring? 

The 2018-2019 Term: Passing Showers, but no Storm Yet  

As I noted in a recent Law360 article, “the court charted a rather restrained course on LGBT issues” during the 2018-2019 term.[1]

Of note, the Court essentially passed on two cases by:

• denying certiorariin Doe v. Boyertown Area School District, leaving intact a favorable decision from the U.S. Court of Appeals for the Third Circuit that rejected cisgender students’ challenge to the district’s trans-inclusive bathroom and locker room policy; and

• GVR’ing (granting, vacating, and remanding) a follow-up wedding-cake / bakery case, Klein v. Oregon Bureau of Labor, sending the case back for further consideration by the state court of appeals in light of the Masterpiece decision. 

Inasmuch as Klein did not involve the same allegations of religious bias in the application of the law as Masterpiece, the GVR may signal the Court’s disinterest in revisiting this issue. 

The Court decided to take up the issue of whether federal Title VII workplace protections apply to LGBT employees, consolidating three cases (Bostock, Altitude Express, and R.G. & G.R. Harris Funeral Homes), but that storm system will hit early next term, with ripple effects for employment practices nationwide.

The Court did, however, leave the transgender community out in the cold this January with a procedural vote affecting the “trans military ban” litigation. By a 5-4 vote on the Government’s stay application, the Court lifted the nationwide injunction imposed by the District Court on the ban. That means that the ban may take effect while the legal challenges to the ban work through the appellate process. If applied in accordance with the policy’s terms, this will inflict substantial harm during the interim—namely, the disqualification of existing and potential transgender service members. But while the Court’s stay decision may signal that a majority of the Court is skeptical of these constitutional arguments, it does not demonstrate hostility toward LGBT rights. If anything, it reflects the Court’s consistent aversion to nationwide injunctions in cases involving Presidential authority. (See also Travel Ban cases, Border Wall Funding litigation.) 

In many ways, the past Supreme Court term seemed like a series of passing storms. Some missed, some stalled, and some dissipated before landing. At no point did Bill Murray predict light snow for Altoona, only to be stuck in a Punxsutawney blizzard for a seemingly never-ending Groundhog’s Day. But next term may yet bring inclement weather.

The 2019-2020 Term Forecast 

As noted, the Court has already scheduled three employment-discrimination cases to resolve the question of whether Title VII’s prohibition on sex discrimination in the workplace—adverse actions taken “because of . . . sex,” per the statute[2]—protects against discrimination on the basis of sexual orientation or gender identity. 

Though the statutory provision does not expressly mention these categories as separate protected classes, the plaintiffs in these cases assert that “sex” inherently encompasses sexual orientation and gender identity. Indeed, an employer cannot discriminate against an LGBT individual without first making certain assumptions about their sex. For example, discrimination against someone attracted to the same sex rests on basic presumptions about who men or women should form personal relationships with because of their sex. So too with gender identity––the discrimination is baked right into the assumption of how men and women should present themselves in public because of their sex. 

The Supreme Court has already concluded that Title VII precludes discrimination on the basis of gender stereotypes.[3]These cases will be argued October 8. 

The First Amendment / public accommodations disputes will also surely return. Both Klein (wedding cake) and Arlene’s Flowers Inc. v. Washington (wedding flowers) were GVR’d for reconsideration in light of Masterpiece. Neither, however, involved the unique allegations of religious bias that supported the Court’s Free Exercise decision in Masterpiece. Either could  return next term presenting the same arguments. Indeed, the Washington Supreme Court already reaffirmed its decision this June, concluding that Masterpiece did not affect its First Amendment analysis. Other cases involving such services as wedding invitations and wedding videos are also working their way through the appellate process. Of note, some have arisen in the pre-enforcement context, meaning that businesses have filed suit seeking declaratory relief before they need to turn away customers. That may inject a unique procedural wrinkle into this type of litigation.

As I explained in my blog series on Masterpiece, much will depend on the nature of the merchant’s services or goods offered to the public, whether they require direct participation in an event by the merchant, and any customization or unique messaging requested by the customer. Certain goods and services may, indeed, be so inherently expressive or association-dependent as to warrant First Amendment protection, because the general public will reasonably attribute the service provider’s presence or message as endorsing the event. (For instance, performative services rendered at events, messaging services like airplane banners.) 

But the concern with cases like these is that the Court will dramatically expand First Amendment free-speech protection to various forms of conduct (specifically, products) made generally available to the public in the marketplace. 

If a bakery can refuse to sell a cake to same-sex couples on conscientious-objection grounds, could a restaurant refuse to serve the same couple? Can a mortuary refuse basic burial services to the couple?[4] Would other forms of discrimination—race, gender, religion—have the same constitutional protection? Such an expansion of First Amendment protections to various forms of conduct—in effect, a “license to discriminate” limited only by the subjective whims of the merchant—would critically undermine the public accommodations laws that have long protected minority groups’ access to goods and services in the marketplace. And what would prevent that principle from applying in the employment context? Could an employer claim a free-speech or associational right to terminate LGBT employees? 

That is why the stakes for these First Amendment cases are so high. Whereas Congress or individual states presumably can fix any disagreement with the Supreme Court’s decision in the Title VII cases by passing new laws, a First Amendment ruling enabling merchants or employers to discriminate against minorities would require a constitutional amendment to remedy.

LGBT advocates and allies have made great strides in persuading states, cities, and businesses to adopt workplace and public-accommodations non-discrimination laws. And still, plenty of work remains. For instance, we continue to push for passage of the Ohio Fairness Act in the Buckeye State. As we move forward, we must help the courts to distinguish between constitutionally protected speech and freedom of conscience—to which we have no objection—and the sale of generally available goods and services in the marketplace.

Learning from the Legacy of Justice Stevens

We would also be wise to glean lessons from the past. Perhaps the gloomiest of storms occurred last month, when retired Justice John Paul Stevens died at the age of 99. I never had the privilege of meeting the Justice who served a near-record 35 years on the Supreme Court. And yet, a simple blog post cannot convey how much of a hero and inspiration Justice Stevens has been to me as a law student, law clerk, attorney, and an American. Brilliant yet humble, open-minded, courteous to a fault, and fiercely independent. So independent, in fact, that this Republican appointee (Ford) would become, in the minds of many, the leader of the Court’s liberal wing—not that he put much stock in such labels. His most notable public feature: a collection of bow ties that would make Gordon Gee proud.  

Among his myriad contributions to our legal system, civil discourse, and basic fairness, Justice Stevens planted the seeds for today’s constitutional protections for LGBT citizens. Many will remember Justice Kennedy’s essential votes and soaring majority opinions in such cases as: 

• Obergefell (2015) (recognizing constitutional protection for marriage equality);
• Windsor (2013) (striking down discriminatory provisions of the federal Defense of Marriage Act); 
• Lawrence  (2003) (deeming anti-sodomy laws unconstitutional); and 
• Romer (1996) (striking down Colorado’s prohibition on legal protections for gays and lesbians as violating equal protection).

And justifiably so. Yet, Justice Stevens’s below-the-radar efforts deserve credit. 

His thoughtful and succinct dissent in Bowers v. Hardwick (1986)—the 5-4 decision upholding Georgia’s criminal anti-sodomy statute—was ahead of its time. Writing for two other Justices, Justice Stevens observed:

Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of “liberty” protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried, as well as married, persons.

Bowers v. Hardwick (1986)

Same-sex couples, he recognized, had the same interest in exercising this liberty.

From the standpoint of the individual, the homosexual and the heterosexual have the same interest in deciding how he will live his own life, and, more narrowly, how he will conduct himself in his personal and voluntary associations with his companions. State intrusion into the private conduct of either is equally burdensome.

Accordingly, the state needed to justify the discriminatory application of its anti-sodomy law with “something more substantial than a habitual dislike for, or ignorance about, [a] disfavored group,” but Georgia failed to identify a “neutral and legitimate interest.”

Bowers v. Hardwick (1986)

No headline-grabbing rhetorical flourishes, no food-related insults tossed at his colleagues. That was not how Justice Stevens preferred to operate.  

Seventeen years later, his dissent became the rationale for the Lawrence decision overruling Bowers:

Justice Stevens’ analysis, in our view, should have been controlling in Bowersand should control here. 

Bowerswas not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwickshould be and now is overruled. 

Lawrence v. Texas, 539 U.S. 558, 578 (2003)

Yet, Justice Stevens eschewed taking the victory lap. Rather, exercising the prerogative of being the most senior Justice in the majority, Justice Stevens assigned the opinion to fellow Republican-appointee, Justice Anthony Kennedy, who had already demonstrated a proclivity for writing controversial civil liberty opinions.[5] Justice Stevens had previously assigned the Romerdecision to Justice Kennedy.

As the brewing storms of the 2019-2020 Supreme Court term approach, Justice Stevens’s legacy gives me three rays of hope:

• a reminder that LGBT rights need not be a Republicans vs. Democrats issue, but simply a matter of equal treatment under the law;

• renewed appreciation for the virtues of reason, modesty, and decency—that we can disagree without being disagreeable; and

• reassurance that the setbacks of today can become the seeds of tomorrow’s progress.  

Rain or shine, I will have my bow tie on.

---

[1]Chad Eggspuehler, High Court Opts for Incremental Approach to LGBT Issues, Law360(July 1, 2019).

[2]42 U.S.C. § 2000e-2(a)(1).

[3]See Price Waterhouse v. Hopkins, 490 U.S. 228, 235 (1989) (plurality) (permitting Title VII claims by employee allegedly denied promotions because she did not act or dress femininely).

[4]See MasterpieceAmicus Brief, SAGE, here, which cites examples of such discrimination.

[5]Planned Parenthood v. Casey(1992) (joint opinion, abortion) and Lee v. Weisman(1992) (school prayer) are two examples.