According to The Hill, “Gorsuch wrote in the 6-3 decision that the prohibition against discrimination on the basis of ‘sex’ in Title VII of the 1964 Civil Rights Act also applies to gay and transgender employees.” Well, well, well. I was wrong and I’m shocked, like many other more scholarly legal pundits. This ruling is, indeed, not only a surprise in the verdict itself but also in the split (6-3). I have not yet read the opinion; I’ve read only the highlights quoted in news articles. Needless to say, this is, by all accounts, a sweeping legal decision the LGBTQ community has been waiting for to protect against discrimination in the workplace (from the other half of states). It is a huge victory, more so than the marriage equality decision. It must be a relief for LGBTQ individuals to finally wake up and feel closer to getting out of second class citizenship status. Just to be clear. Gay and transgender people are still not 100% protected. LGBTQ people may not be fired from their job and they may be able to get married, but they may still be denied service or housing or unable to order a wedding cake! Whether this legal decision is used as a credible legal argument to expand protections against discrimination of the LGBTQ community in other areas of society remains to be seen.
Yet! (There is always a but.) Do understand that this decision is one based on a reading of federal statute, not the Constitution. While marriage equality was determined to be a Constitutionally guaranteed right, this decision regarding Title VII does not equate to a reading of the Constitution that guarantees equality of the LGBTQ community more generally. It is a not-so-subtle distinction, but an important one nonetheless. I read several news articles on this SCOTUS ruling looking for a ceratin caveat, and only The Hill pointed out that which I was seeking: “And while Gorsuch sided with LGBT advocates on Monday, he left the door open for employers to make faith-based challenges to the court’s ruling on Title VII protections.” And so here is the new battle line. Whereas LGBTQ haters used to claim they had the law on their side when discriminating, now they will argue a religious exemption. And may I remind the reader that a religious exemption is particularly troublesome because SCOTUS has already determined that it is unwilling and incapable of second-guessing one’s religious beliefs: “Whether a religious belief is true or false is irrelevant to a judicial determination, as long as the belief is sincerely held.” That is to say, one can claim the First Amendment right of religious freedom to discriminate against an LGBTQ individual without any sort of religious dogma to support such a stance. One need not have to say my Evil Evangelical beliefs prevent me from treating all people equally. One need only say my “religion” dictates that gay people are lesser and should be discriminated against. So, get ready for managers and companies making ridiculous claims of “but my religion.” Everyone will hide behind their “religion.” Of course, slavery used to be justified with religion and the Bible until the Thirteenth Amendment. It all comes back to the Constitution — that messy, flawed document, in particular, the religious clause of the First Amendment and the Second Amendment in its entirety.
