Kenneth B. Mehlman, Chairman, Republican
via Mother Jones
Ken Mehlman has submitted an amicus brief (“below the fold”) to the United States Supreme Court for a group of prominent Republicans who assert that Title VII of the Civil Rights Act of 1964 applies to sexual orientation and gender identity. Interestingly, most of these people served in the George W. Bush administration.
The Supreme Court has consolidated three cases for oral argument on October 8, 2019. They are (forgive the cut and paste; summaries folllow):
GERALD LYNN BOSTOCK,
CLAYTON COUNTY, GEORGIA,
ALTITUDE EXPRESS, INC., AND RAY MAYNARD,
MELISSA ZARDA AND WILLIAM MOORE, JR.,
CO-INDEPENDENT EXECUTORS OF THE ESTATE OF
R.G. & G.R. HARRIS FUNERAL HOMES, INC.,
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AND
Gerald Lynn Bostock was employed by Clayton County, Georgia as a child welfare executive. After 10 years of exemplary service, Bostock was terminated in 2013, shortly after it became known that he is gay. In 2017 a federal district court judge dismissed Bostock’s (pro se) complaint that Title VII includes sexual orientation protections. The 11th Circuit Court of Appeals upheld the lower court and subsequently declined to hear the case before the full circuit. In December, 2017 the U.S. Supreme Court initially declined to hear the case.
Donald Zarda was employed as a skydiving instructor by Altitude Express (Long Island, NY). After disclosing that he was gay to a customer he was terminated. Zarda subsequently died in a skydiving accident. Zarda filed a complaint with the EEOC circa 2014. He subsequently filed a complaint in federal court alleging Title VII discrimination. The case was dismissed by summary judgment in 2015. A panel for the Second Circuit Court of Appeals upheld the lower court ruling. The Second Circuit then agreed to hear the case en banc. Overruling the appeals panel and the lower court, the full court held that Title VII’s prohibition on discrimination because of sex necessarily includes discrimination because of sexual orientation.
Aimee Stephens, a transgender woman, informed her employer, RG and GR Harris Funeral Homes in Michigan, of her intention (then as Anthony Stephens) to transition. She was discharged circa 2016. After filing a complaint with the EEOC, in 2017 a federal district court ruled in favor of the undertakers. In 2018, the Sixth Circuit Court of Appeals overruled the district court holding that Stephens’ status as a transgender woman provided protection against sex discrimination according to Title VII.
The Mehlman brief deals with two competing conservative principles: Legislative intent and a plain text reading of the law. The brief contends that a plain text reading supersedes original intent.
Another amicus brief was submitted today by a large group of law professors. They argue (ellipses per original):
Title VII protects individuals from sex discrimination,
including discrimination based on sex stereotypes.
Congress declared it unlawful for an employer to fire, not hire, or otherwise discriminate against “any
individual … because of such individual’s … sex,” 42
U.S.C. § 2000e-2(a)(1), including where “sex” was only
“a motivating factor,” id. § 2000e-2(m). By its plain
language, Title VII bars an employer from firing any
individual based at least in part on stereotypes about
“such individual’s … sex,” i.e., beliefs about how men
or women can, will, or should act.
I have already purchased batshit futures on the commodity exchange. Every Christian pressure group and the U.S. Conference of Catholic Bishops are going to weigh in with an amicus brief. Were we to prevail, the Equality Act becomes unnecessary. It might be my wet dream but it is Mad Mat Staver’s worst nightmare. I have no idea, whatsoever, how this will turn out. I offer no predictions. We will find out about a year from now.