Justice Anthony M. Kennedy, the greatest judicial champion of gay rights in the nation’s history, will turn 81 on Sunday. Rumors that he would retire in June turned out to be wrong, but he will not be on the Supreme Court forever.
Gay rights groups hope to score one more victory before he leaves the court. The goal this time is nationwide protection against employment discrimination.
Justice Kennedy wrote the majority opinions in all four of the court’s landmark gay rights rulings, culminating in the 2015 decisionestablishing a constitutional right to same-sex marriage. But there is more work to be done, said Suzanne B. Goldberg, a law professor at Columbia.
“Marriage equality did not bring an end to sexual-orientation discrimination in this country,” she said.
The same-sex marriage decision left gay men and lesbians in a strange position, said David S. Cohen, a law professor at Drexel University.
“You can get married, put a picture on your desk from the wedding and then be fired because the boss sees the picture,” he said.
“Marriage was certainly an important step, but it doesn’t change the fact that there is no federal law protecting against sexual-orientation discrimination in employment or housing or education or public accommodations,” Professor Cohen said. “Only about 20 states offer protection under their own state laws.”
This month, the gay rights group Lambda Legal announced that it would ask the Supreme Court to hear a case that could prohibit employers from discriminating against gay and lesbian workers. The group argues that Title VII of the Civil Rights Act of 1964, which prohibits workplace discrimination based on sex, also bans discrimination based on sexual orientation.
Most federal appeals courts have rejected the theory. But in April, by an 8-to-3 vote, the United States Court of Appeals for the Seventh Circuit, in Chicago, said Title VII covered gay people. “It would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation,’” Chief Judge Diane Wood wrote for the majority.
She relied on the language and logic of Title VII, and on Supreme Court precedents.
In 1989, for instance, the Supreme Court said discrimination against workers because they did not conform to gender stereotypes was a form of sex discrimination. Being a lesbian, Judge Wood wrote, “represents the ultimate case of failure to conform to the female stereotype (at least as understood in a place such as modern America, which views heterosexuality as the norm and other forms of sexuality as exceptional).”
By Adam Liptak, July 17, 2017
New York Times
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