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A conservative justice turns liberal to Trump conservatism

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Narasimhan Vijayaraghavan
Narasimhan Vijayaraghavan
The author is practicing advocate in the Madras High Court

Associate Justice of Supreme Court of the United States (SCOTUS), Justice Antonin Scalia, died on 13th Feb, 2016. As per the US Constitution, the President of the United States (POTUS) gets to appoint the replacement for the deceased Justice. The nominee has to be approved as Justice by the US Senate, in its Senate Judiciary hearings. The nominee is put to the severest test by members of the Senate Committee and there are instances of candidates being rejected- as say Robert Bork. Or Clarence Thomas passing the Senate hearings in a no holds barred inquisition like proceedings, into his alleged sexual encounters with one Anita Hill. There are Nine on the SCOTUS and they are appointed for life. On the death of Justice Scalia, the then Democratic POTUS Barack Obama nominated Merick Garland as his replacement. He was perceived to be a wonderful candidate with a blemishless record of service as Circuit Judge of Appeals Court in the District of Columbia.

In a divisively partisan position, the Republican majority Senate refused to even give audience to Merick Garland, for a hearing. The Republicans said that with Presidential elections due in Nov,2016, “Barack Obama was a lame duck POTUS” and it was only for the incoming POTUS after the elections for nominate the replacement. There was nothing in the US Constitution to this effect, but it was of no consequence as the Republicans played dirty. Donald J Trump, became POTUS on the Republican ticket. And promptly he nominated Neil Gorsuch to replace the deceased Antonin Scalia for SCOTUS Jusriceship.

Neil Gorsuch was identified as a ‘conservative with Republican values’. Donald J Trump got a chance to replace a retiring Justice Anthony Kennedy also with a controversial candidate in Justice Bret Kavannaugh, and whose Senate hearings in the wake of his alleged sexcapades attracted worldwide attention. Kavannaugh passed the tough test, as the Republican majority was unyielding and uncompromising.

With two nominations during his term as POTUS, a rarity in the over 200 year history of SCOTUS, Trump was seen to have pivoted a Liberal majority Court of 5:4 to 5:4 in favour of Conservatives. Remember the decision of SCOTUS in Obergefell v Hodges on 26th June, 2015, when Obama was POTUS. The SCOTUS by 5:4 majority upheld gay marriage in the US, thanks to untiring efforts of a Republican lawyer in Ted Olson and Democratic lawyer in David Boies, (the two who fought on opposing sides in the Bush v Gore SCOTUS battle in 2000) who joined forces, in a bi partisan manner, for a cause. To redeem a dream, they said and wrote (white House was lit with rainbow colours then, to signal the approval from the POTUS administration). 

So, with the appointments of Justice Neil Gorsuch and Bret Kavannaugh to The Nine on SCOTUS, it was perceived that there would be a pivot in favour of conservatism. It got noted so, also when Donald Trump’s views on Immigration policy got the nod from SCOTUS. So, the expectation in the matter of issue on Title VII of Civil Rights Act of 1964- vis a vis rights of gay and transgender employees was that the now conservative SCOTUS would side with the Trump administration and rule against gay and transgender rights, perceived to be Liberal values. 

Alas not to be, as none other than Justice Neil Gorsuch, a Trump nominee at that, a conservative to boot, has penned the majority opinion. By a 6:3 and not the anticipated 5:4 reverse – the SCOTUS has ruled that it was discriminatory under Title VII to Civil Rights Law of 1964 to deny the benefit of equality in rights to employment to those with a different sexual orientation or transgender characteristics.

It is a huge win for the liberals under a Republican administration and by a majority opinion written by a conservative appointee of Donald J Trump. Justice knows no hues. An appointee to be a Justice of SCOTUS was not like picking a pet dog to perform the tricks you have trained it to. When it comes to intellectual honesty, the appointee on the SCOTUS will surely reveal his true colours, even rainbow ones, as on this historic occasion. Surely, this decision and one awaited on disclosure of Donald J Trump’s personal income tax records, will have a huge impact on the re-election bid of Trump against the democratic nominee in former Vice President (for two terms and 8 years under Barack Obama) Joe Biden. Now, contextually read the verdict in Bostock v Clayton on 15th June,2020, to appreciate the landmark nature of this rainbow appearance. (Maybe Trump will light up the White House in darkness, to express his administration’s response).



Facts of the case

In each of the cases an employer allegedly fired a long-time employee simply for being homosexual or transgender. Clayton County, Georgia, fired Gerald Bostock for participating in a gay recreational softball league. In Altitude Express fired Donald Zarda days after he mentioned being gay. And R. G. & G. R. Harris Funeral Homes fired Aimee Stephens, who presented as a male when she was hired, and later had informed that she planned to “live and work full-time as a woman.”

Each employee sued, alleging sex discrimination under Title VII of the Civil Rights Act of 1964. The Eleventh Circuit held that Title VII does not prohibit employers from firing employees for being gay and so Mr. Bostock’s suit could be dismissed as a matter of law. The Second and Sixth Circuits, however, allowed the claims of Mr.Zarda and Ms. Stephens, respectively, to proceed.

The aggrieved employee Mr. Bostock and Employers Altitude Express and R. G. & G. R. Harris Funeral Homes have come up with the present appeal before SC


The Appeals were heard by nine member bench, and majority of 6:3 held that “Title VII of the Civil Rights Act of 1964, which prohibits discrimination “because of sex,” includes gay and transgender employees.” The ruling will extend protections to millions of workers nationwide as against discrimination based on sex.

Majority View

GORSUCH, J., delivered the opinion of the Court, in which ROBERTS, C. J., and GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined

(i)     Title VII makes it “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.”

(ii)     Title VII’s terms interpreted in accordance with their ordinary public meaning at the time of their enactment resolves these cases

(iii) A statutory violation occurs if an employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee. Because discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex, an employer who intentionally penalizes an employee for being homosexual or transgender also violates Title VII.

(iv).The employers do not dispute that they fired their employees for being homosexual or transgender. Rather, they contend that even intentional discrimination against employees based on their homosexual or transgender status is not a basis for Title VII liability. But the said argument has been rejected holding ignoring the law as it is no excuse.

(v)  The employers contended that homosexuality and transgender status are distinct concepts from sex, and that if Congress wanted to address these matters in Title VII, it would have referenced them specifically. But when Congress chooses not to include any exceptions to a broad rule, this Court applies the broad rule. Finally, the employers suggest that because the policies at issue have the same adverse consequences for men and women, a stricter causation test should apply. That argument unavoidably comes down to a suggestion that sex must be the sole or primary cause of an adverse employment action under Title VII, a suggestion at odds with the statute.
Thus the majority held that an employer who fires an individual merely for being
gay or transgender defies the law and allowed the appeal filed by Boston and dismissed the appeals of employer.

Minority View

ALITO, J., filed a dissenting opinion, in which THOMAS, J., joined. KAVANAUGH, J filed a separate dissenting opinion.

Alito,J in his view expressed the following

(i) The Court’s majority decision may pressure employers to suppress any statements by employees expressing disapproval of same-sex relationships and sex reassignment procedures. Employers are already imposing such restrictions voluntarily, and after today’s decisions employers will fear that allowing employees to express their religious views on these subjects may give rise to Title VII harassment claims.

(ii) Today, many Americans know individuals who are gay, lesbian, or transgender and want them to be treated with the dignity, consideration, and fairness that everyone deserves. But the authority of this Court is limited to saying what the law is.

The Court itself recognizes this:

“The place to make new legislation. Lies in Congress. When it comes to statutory interpretation, our role is limited to applying the law’s demands as faithfully as we can in the cases that come before us.”Kavanaugh. J expressed the following in his dissenting opinion.

(i) It’s the role of Congress and the president, not the court, to alter Title VII.

(ii) “When this Court usurps the role of Congress, as it does today, the public understandably becomes confused about who the policymakers really are in our system of separated powers, and inevitably becomes cynical about the oft-repeated aspiration that judges base their decisions on law rather than on personal preference,”

(iii) The best way for judges to demonstrate that we are deciding cases based on the ordinary meaning of the law is to walk the walk, even in the hard cases when we might prefer a different policy outcome.

Constitutionally, while the majority has ruled that it was ‘discriminatory’ – the minority has suggested that it was not for the SCOTUS to rule on it- but for US Congress to make the changes. The perennial debate on Legislature vs Judiciary turf war continues. We in India are not immune to it and it is not a tussle unfamiliar to us as well. Judiciary gets to have the last word. For, it is final. But the Legislature could always have the say, if they so choose. By amending the law itself. Then again, Judiciary would get to have the last word on that too. Ultimately, what would prevail is the philosophy of the men who matter ie. on the Bench. Leaving it open to those who accuse the Judiciary of morphing into ‘unelected tyranny’. Whatever, an endless and fascinating debate! 

(Narasimhan Vijayaraghavan- Author is practising advocate in the Madras High Court)

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Narasimhan Vijayaraghavan
Narasimhan Vijayaraghavan
The author is practicing advocate in the Madras High Court
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