By John Lewis and Stuart Gaffney–
Over six decades ago, courageous queer Americans fought for their dignity and livelihood in the face of the so-called “Lavender Scare,” the 1950s federal government witch hunt that cost some 5,000 LGBTIQ federal employees their jobs. In the words of historian David K. Johnson, they began a movement in which gay people “could stand up for themselves and demand equal rights as ‘homosexual American citizens.’”
Last week, the activists’ nearly 70-year-old dream came true when the U.S. Supreme Court outlawed employment discrimination against LGBTIQ people nationwide. By living as authentically, courageously, compassionately, and openly as possible, LGBTIQ people together won this great victory.
We bow to all the brave LGBTIQ people who did not live to see this day, but whose steadfast efforts and commitment made it possible. Today, we are particularly happy for the millions of LGBTIQ people who live in one of the 29 states that lack full statewide protection from employment discrimination. Queer people living in those states must no longer worry that if they get married on a Saturday, they could find a pink slip on their desk Monday morning.
The Supreme Court’s decision is straightforward and clear. Employment discrimination against LGBTIQ people constitutes unlawful sex discrimination in violation of Title VII of the federal Civil Rights Act of 1964. The Court is unambiguous: “An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” The reason is that “[a]n employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex.”
The ruling will likely have significant impact nationwide on LGBTIQ equality in areas such as housing, education, and health care—indeed, any matter upon which federal law prohibits sex discrimination.
The decision could have worldwide impact as high courts in other countries sometimes look to the U.S. Supreme Court for guidance. LGBTIQ activists in other nations can now point to the U.S. as a model and put greater pressure on their own governments to pass anti-discrimination laws.
The Court’s opinion demonstrates personal respect and understanding of LGBTIQ people, particularly transgender plaintiff Aimee Stephens, who tragically passed away just weeks before the decision was announced. Without qualification, the ruling refers to Stephens as a woman and uses her pronouns “she” and “her” and her surname title “Ms.” It describes Stephens’ “despair and loneliness” living contrary to her true gender and how “clinicians diagnosed her with gender dysphoria and recommended that she begin living as a woman.”
Remarkably, conservative Trump nominee Neil Gorsuch authored the decision, and John Roberts joined it. The six-member majority consisted of Clinton, G.W. Bush, Obama, and Trump nominees.
Sadly, Kavanaugh dissented, but he wrote almost a gay pride statement at the end of his dissenting opinion: “Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They … can take pride in today’s result.”
Although it’s fantastic that Gorsuch and Roberts voted in favor of LGBTIQ equality in the recent cases, we have no assurance how they will vote in future cases.
The Title VII cases pertained to interpretation of a federal statute, not to LGBTIQ constitutional rights. Fortunately, Roberts, who vigorously dissented from the 2015 Obergefell marriage equality decision, did not dissent in a 2017 case pertaining to birth certificates that applied Obergefell as precedent. Gorsuch, however, dissented in the 2017 case, taking an ill-considered and unprincipled position. The State of Indiana last week asked the Court to hear another birth certificate case. Further, Gorsuch suggested in his 2018 Masterpiece Cakeshop concurrence that he might support religious exceptions to anti-LGBTIQ discrimination laws.
Kavanaugh’s vote in the Title VII cases also does not mean he will necessarily vote against us in constitutional cases.
Next term, the Supreme Court will decide whether Catholic Social Services can take local taxpayer money to provide foster care placement services when it flagrantly violates local anti-discrimination laws by refusing to place children with loving same-sex couples because of its homophobic religious views. In Kavanaugh’s recent dissent, he expressly endorsed prior Supreme Court precedent, that Roberts, Gorsuch, and Alito also signed onto, proclaiming that LGBTIQ people could not be treated “as inferior in dignity and worth.” Kavanaugh and the rest of the Court will have to ask themselves what dignity LGBTIQ people have if their hard earned tax dollars are allowed to go to an organization that slanders them as unfit foster parents and deprives abused and neglected children of safe and nurturing homes.
This Pride week, we as a community celebrate this month’s enormous nationwide victory for LGBTIQ equality—even as we and our nation continue to confront additional issues of urgent concern. Now is the time for LGBTIQ people and all fair-minded Americans to seize the moment and press boldly for further long-overdue change to bring about dignity and equality for all.
Happy Pride to all!
John Lewis and Stuart Gaffney, together for over three decades, were plaintiffs in the California case for equal marriage rights decided by the California Supreme Court in 2008. Their leadership in the grassroots organization Marriage Equality USA contributed in 2015 to making same-sex marriage legal nationwide.
Published on June 25, 2020
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