The Supreme Court showdown over LGBTQ discrimination, explained

October 2, 2019 9:55 AM

On the surface, the stakes in this case seem enormous. In reality, they’re even larger. The Supreme Court will hear three cases next Tuesday that ask whether it is legal to fire workers because of their sexual orientation or gender identity. That alone is enough to make them three of the most important employment discrimination cases in many years. But there are additional layers to these cases, layers that could imperil all workers regardless of whether or not they are LGBTQ. The defendants’ arguments would reopen long-settled legal arguments, potentially upending much of federal anti-discrimination law in the process.
posted by Homo neanderthalensis (21 comments total)

As the article notes, only 22 states prohibit employment discrimination based on sexual orientation and only 21 prohibit discrimination based on gender identity, so you can get some kind of gay married on Sunday and get fired for being queer or trans on Monday. As Katherine Franke said (link to NYT article), lawyers working to expand gay rights might have focused too narrowly on the right to marry. “The gay rights movement became the marriage rights movement,” she said, “and we lost sight of the larger dynamics and structures of homophobia.” Personally, I'd remove "might have" from that sentence, and note that gender bias takes legal shape as both homophobia and transphobia.

This is where organizations such as the Human Rights Campaign have completely failed and betrayed queer and trans people. I'm pretty nervous about the outcome of this SCOTUS docket.
posted by wicked_sassy at 10:23 AM on October 2, 2019 [24 favorites]

I'm glad I'm finally seeing some mainstream criticism over the right to marry strategy that subsumed all other queer rights issues for over a decade. It was a criticism that was the sole province of fringe left-wingers for a long time.

If this decision goes the way I think it's going to go, I really hope that other queer rights organizations that aren't branding exercises for liberal straight people can move to the forefront of the fight.
posted by Automocar at 10:29 AM on October 2, 2019 [7 favorites]

@automocar: Guess I'm one of those fringe left-wingers then, and have been for over a decade.
posted by wicked_sassy at 10:59 AM on October 2, 2019

Homo neanderthalensis, thanks for making these posts about upcoming SCOTUS actions.

It's so depressing that so much in the lives of so many hinges on two newly selected conservative white men (joining three other conservative, straight male voices), rolling back the rights of a diverse group of people.

I know that physical appearance and sexual orientation aren't direct parallels a diversity of life experiences and viewpoints, but in this case, it feels a lot like straight, white men reinstating old rules of the cishet patriarchy.
posted by filthy light thief at 11:16 AM on October 2, 2019 [7 favorites]

As the article notes, only 22 states prohibit employment discrimination based on sexual orientation and only 21 prohibit discrimination based on gender identity, so you can get some kind of gay married on Sunday and get fired for being queer or trans on Monday.

Only 7 states prohibit the use of gay/trans panic defenses in court.
posted by Etrigan at 12:08 PM on October 2, 2019 [8 favorites]

Etrigan, that's a good site, and they track a range of policies and laws, mapped together in this equality map, which aggregates everything for a composite score, then allows you to click on individual states to see in much more detail on how they rate.
posted by filthy light thief at 12:24 PM on October 2, 2019 [6 favorites]

I've seen tweets like "Why isn't this getting more attention" and I wonder if it has to do with how I feel which is "This is too terribly frightening to think about". Is there a limit? Or do people genuinely not care?
posted by bleep at 1:24 PM on October 2, 2019

Or do people genuinely not care?

I think things are just so genuinely, actively fucked-up in this country right now that many, many people have just tuned-out for the sake of their own sanity. Most people simply don't know about this (or, the abortion case SCOTUS is hearing, for instance)
posted by Thorzdad at 1:31 PM on October 2, 2019 [11 favorites]

I tend to agree with Thorzdad on that. My friend is the plaintiff in one of these cases, and I still don't feel like it's really hitting me --- everything is just So Wild Right Now.

Anybody else rallying at the SC on Tuesday come say hi :)
posted by slenderloris at 4:48 PM on October 2, 2019 [4 favorites]

Additionally, I thought TFA was a great summary, and I would also recommend this episode of Call Your Girlfriend for an in-depth perspective from an ACLU lawyer.
posted by slenderloris at 5:06 PM on October 2, 2019 [2 favorites]

I'd disagree that the gay rights movement became the gay marriage movement. Gay marriage had always been seen as a bit of a pie in the sky, something which might, maybe, someday be possible to be allowed after a FUCKTON OF OTHER WORK had been accomplished moving the needle incrementally. That was pretty much known since even before I came out and joined in working for gay rights back in the early 90s.

Suddenly, this weird constellation of events and movements came together which led to gay marriage becoming something to work toward, which I heard a lot of people sort of grumbling about. "Too soon, too quickly." But a battle won is a battle won, and so here we are today. Without the proper groundwork, without the social groundswell that has, if not actually changed social attitudes than at least offering up national legal protection. And without any actual legal law passed by Congress saying we can even be married nationwide!

It's been bizarre and frustrating to watch. And even more bizarre and frustrating to see how many people think the struggle is done and over all because of the Obergefell decision. Because it isn't.

I plug this show all the time, but I'll put it here, too. Gay USA. I've watched it weekly for over 25 years. It's on YouTube now, it's also available as an audio podcast. It's weekly. It's relentless. It has never stopped being relentless.

They hate us, and they haven't stopped, and they want to destroy us. Be informed about what the fight is, regardless of how you learn about it.
posted by hippybear at 7:40 PM on October 2, 2019 [11 favorites]

This is so frustrating. I have seen things change in my lifetime so much, from people hiding their true selves from everyone, to people hiding from just those family members and friends, to people being out at home but hiding from coworkers to people kind of adopting a dont ask, don't tell policy to and now to the young people I work with not giving a single fuck who knows who they love. Its been great. To see the laws go backwards is arrrggghhhhh.

They hate us, and they haven't stopped, and they want to destroy us

If its any comfort I really dont know that the silent majority will stand for it anymore. They may hate you but they also hate a lot of other people and I think the kids have it figured out.
posted by fshgrl at 8:27 PM on October 2, 2019

It's not the silent majority that I fear. It's the hateful, loud, active minority who are packing courts via Trump's Pence-influenced recommendations and the results of court cases that will take a generation or more to undo unless a strong legislature decides to override them which I find hard to envision.
posted by hippybear at 8:36 PM on October 2, 2019 [8 favorites]

If its any comfort I really dont know that the silent majority will stand for it anymore.

The key attribute of the silent majority is not the "majority" part. Relying on them to some day, eventually, collectively rise up and say, "No, surely this..." is a bad idea.
posted by Etrigan at 5:54 AM on October 3, 2019 [7 favorites]

Marriage rights are not a focus, they are not some small or insignificant matter, they were not a present gifted to comfortable, rich, white gays. Those rights and every legal guarantee associated with them are collectively a wedge that highlights our community's visibility in society and our right to equal protection under the law, as enshrined in the 14th Amendment of the Constitution.
posted by They sucked his brains out! at 10:08 AM on October 3, 2019 [2 favorites]

Simply seeing LGBTQ people whose lives might find application in the Obergefell ruling as a class of people who to which the 14th amendment might apply is a very very recent idea and could easily be removed by court ruling. We have no laws protecting these people. We only have a court opinion which includes them under this one umbrella, and the passing of a law or a reversing court decision could undo that instantly.

Until Congress passes a law, our status remains in jeopardy. Same with Roe v Wade. Same with so many other things. And if you think there aren't forces working to create the environment under which court decisions will bubble up to a SCOTUS favorable to changing how things are now, you aren't paying attention.
posted by hippybear at 9:16 PM on October 4, 2019 [4 favorites]

So, how long after argument do the supremes render a decision? Do they release all the rulings at the end of the term, or as they decide? I can’t remember.
posted by SecretAgentSockpuppet at 4:02 PM on October 10, 2019

End of term, in the spring.
posted by lazuli at 9:58 PM on October 10, 2019

There's such a lack of understanding of the differences between sex, gender, orientation, nearly every conservative judge is misunderstanding or misrepresenting basic facts. this is a strange argument to listen to...Can we ask that judges take a remedial biology course?
posted by eustatic at 8:55 PM on October 11, 2019

“The gay rights movement became the marriage rights movement,” she said, “and we lost sight of the larger dynamics and structures of homophobia.”

Some of us didn't lose sight of the rest, but the other goals were set aside because people were dying alone and afraid and nothing short of "let them get married" was going to allow them to visit their partners in hospitals.

A lot of us were aware this was going to set back some of the other goals, as people decided, "well, there's marriage now; we don't need anything else."

(On the one hand, the current court cases are terrifying. On the other, it's better that they're taking them up than not, because otherwise the lower court "discrimination is okay" rulings would stand.)
posted by ErisLordFreedom at 2:48 PM on October 12, 2019

The Supreme Court Case Testing the Limits of Gorsuch’s Textualism -- If the justice rules against LGBTQ protections, he’ll be admitting that, deep down, he knows his judicial philosophy is deeply flawed. (Richard Primus for Politico, October 15, 2019)

Gorsuch may find himself pulled in different directions by two of his strong jurisprudential commitments. On one hand, he generally thinks that courts should not be engines of social change, including by expanding the reach of antidiscrimination laws. Those sorts of changes, he believes, should come from legislatures. But on the other hand, Gorsuch is a proud and articulate textualist. In his oft-repeated view, a court applying a law passed by a legislature should be governed by what the words of the statute actually say, regardless of whether the court thinks the words of the statute embody good public policy. Nor should courts let the meaning of statutory text be overcome by considerations about the general purposes of the law or what members of the legislature said or thought during the lawmaking process. What matters is the text of the statute. And the text that Congress adopted, read literally, covers LGBTQ scenarios.

Fascinating, and frightening.
posted by filthy light thief at 7:56 AM on October 16, 2019