The Supreme Court hears under 80 cases a year. That means more than 7,000 petitions for review go to the recycling bin. It's been said that every major dispute in American life eventually reaches the Supreme Court. This time around, it's employment discrimination on the basis of sexual orientation and gender identity. I saw this first-hand on October 8, when the justices heard three LGBT cases, including Zarda v. Altitude Express, for which I am co-counsel with Gregory Antollino and the American Civil Liberties Union.
Prior to 1986, the Court had never decided a gay rights case. That year, it held in Bowers v. Hardwick that the state of Georgia could make it unlawful to engage in same-sex sodomy. That ruling was overturned in 2003 in Lawrence v. Texas, when Justice Kennedy said Bowers was wrong in 1987 and it's wrong now. In 1996, the Court ruled that the Constitution prevented Colorado voters from passing a state constitutional amendment that prohibited the state from extending equal rights to gays and lesbians. In 2013, the Court struck down the Defense of Marriage Act in United States v. Windsor, ruling that DOMA violated the due process clause in denying federal recognition of same-sex marriages. In dissent, Justice Scalia decried the scope of this holding, predicting it would ultimately require the states to recognize same-sex marriages. Justice Scalia was right. In 2015, the Court ruled as such in Obergefell v. Hodges, continuing the string of victories for the LGBT community in an otherwise conservative Supreme Court.
The common thread in these victories was Justice Kennedy. A Reagan appointee, Justice Kennedy was always a reliable conservative. But he was a champion of gay rights, often sprinkling his rulings with references to personal dignity. He retired in 2018, replaced by Justice Kavanaugh, another conservative. By that point, it seemed clear that Zarda and two related cases, Bostock v. Clayton County, and Equal Employment Opportunity Commission v. Harris Funeral Homes, were on their way to the Supreme Court, which hears cases in order to iron out conflicting federal court rulings around the country. Zarda was a Second Circuit case that held that Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of sexual orientation. Bostock arose in the Eleventh Circuit, which disagreed with Zarda. Harris Funeral Homes, out of the Sixth Circuit, was in line with Zarda, holding that discrimination on the basis of gender identity is a form of sex discrimination, prohibited under Title VII. Justice Kennedy was the fifth vote in all of the Court's successful gay rights rulings. Along with Justice Gorsuch, Justice Kavanaugh has not publicly addressed these issues. They will now.
Every case that reaches the Supreme Court begins quietly: a lawsuit is filed on behalf of an aggrieved plaintiff. Most cases settle. Some are dismissed following pre-trial discovery. A few go to trial. But unless someone files a test case (with an eye toward the Supreme Court) or the case involves presidential authority, foreign policy or some other issue of national importance, no one thinks it will reach the Court. Title VII discrimination cases are filed every day. How did Zarda and the others get this far?
It started in 2015, when the Equal Employment Opportunity Commission took a fresh look at whether Title VII prohibits sexual orientation discrimination. Prior to that, no court had interpreted Title VII this way. That year, the EEOC issued an extensive administrative ruling that reached three conclusions: first, sexual orientation discrimination is a form of gender stereotyping, which the Supreme Court held in Price Waterhouse v. Hopkins (1989) is a form of gender discrimination. We all know the stereotype: men are attracted to women, and vice-versa. Those who undermine the stereotype may fall victim to workplace bias. Second, you cannot take someone's sexual orientation into account without considering their sex. If John is fired for dating Michael, and he would not have been fired if he were a woman, then John is fired because of his sex. John is fired for doing something that a woman is allowed to do. Third, this form of discrimination punishes someone for their same-sex associations. Courts have held that you cannot fire a white man for association with a black woman, and in 1967 the Supreme Court said states cannot make it illegal for blacks and whites to marry. The EEOC adopted that logic to sexual orientation discrimination cases.
The EEOC ruling was the Baldwin case. Gregory Antollino read a New York Times article about Baldwin in his office one day. At the time, he was litigating the Zarda case, proceeding under Title VII and New York law. The trial court had previously dismissed Zarda's Title VII claim because the Second Circuit had previously held in Simonton v Runyon (2000) that sexual orientation discrimination is not a form of sex discrimination. The Baldwin ruling was a gift. Antollino immediately sent a letter to the trial judge in the Zarda case, asking that he revive the Title VII claim. While Simonton was still good law in this jurisdiction, and EEOC interpretations are not binding on the federal courts, sometimes you have to take chances. The trial court said no. That maneuver preserved this issue for the Second Circuit Court of Appeals.
I joined the Zarda case a few years ago, after the case went to trial in the Eastern District of New York, on Long Island. On the state law claim, the jury found that Zarda was not discriminated against. But the trial court's state-law jury instructions imposed a higher burden of proof for Zarda than federal law requires. That meant the federal claim was ripe for appellate review in the Second Circuit. Under the proper jury charge, Zarda could win the case under Title VII. In declining to revive the Title VII claim, a three-judge panel of the Second Circuit ruled it was bound by Simonton. But the full 13-member Second Circuit heard the case en banc in September 2017, recognizing the gravity of this issue. Following oral argument in which three attorneys argued on each side, the Second Circuit in February 2018 jettisoned Simonton and became the second federal appeals court to hold that sexual orientation discrimination is a form of sex discrimination in violation of Title VII. The Second Circuit's reasoning tracked the EEOC's rationale in Baldwin. Once the Eleventh Circuit issued a contrary ruling in Bostock, the Supreme Court granted review, scheduling oral argument for October 8, 2019, setting aside one hour for each case. Zarda and Bostock were consolidated in the Supreme Court, and the Harris Funeral Home case, involving former employee Aimee Stephens, remains a stand-alone case.
The Supreme Court is a majestic building, constructed in the 1930s, when government buildings stood for something. In person, it's taller than it looks on paper. It's like a white mountain with Greek columns. Inside, the building is marble, marble, marble, with hallways and staircases that seem to stretch for miles, oil portraits and busts of old justices. The sole courtroom is smaller than you'd think. It oozes tradition and old-school design. It's all about decorum at the Supreme Court. No cell phones or newspapers in the courtroom. No television cameras, and no recording equipment. I was directed to remove my reading glasses from my forehead. When they escort you into the courtroom, you sit down and shut up. You wait patiently for the justices to emerge from a red curtain and take their seats in order of seniority, with Chief Justice Roberts in the middle. They do so at 10:00 on the dot.
Since the courtroom is relatively small, not everyone can watch the argument in person. For prominent cases, crowds will gather outside a few days prior to the argument, and hundreds of people will sit and even sleep on the sidewalk, hoping they will make it inside the building. That is what happened in the LGBT cases. (I must say, this process must change. How hard is it for the Court to develop a lottery system where the public can secure a seat in advance through computer technology? There were a lot of disappointed people who waited in vain to see this historic case). For now, this is the case of the year.
If you study or practice constitutional law, or if you read Supreme Court biographies and insider accounts, watching a Supreme Court argument for the first time is surreal. Because of the impact they have on American law, the justices are larger than life, and we know all about them. We watched their confirmation hearings on TV, we know about their personal lives, where they went to law school and how they decide cases. So that's Gorsuch over there, a Trump appointee who benefited from the Senate filibuster of President Obama's choice to replace the late Justice Scalia, Merrick Garland. Next to him is Justice Sotomayor, an Obama appointee who used to sit on the Second Circuit and was one of the toughest questioners I ever faced. To her left is Justice Breyer, a Clinton appointee who once wrote a book about how the Constitution should be interpreted to advance the cause of democracy. Between Justices Breyer and Roberts is Clarence Thomas, appointed by George H.W. Bush. I think back to law school in 1991, when his confirmation hearings became a public trial on whether he sexually harassed Anita Hill. Justice Thomas is among the most conservative justices the Court has ever had. Justice Ginsburg sits to the Chief Justice's left, a 86 year-old folk hero. She has a soft voice but her questions are carefully phrased. Everyone knows her legacy as a sex discrimination pioneer. Moving past Justice Alito, we got . . . Brett Kavanaugh. And it's really him. Everyone is probably thinking what I am thinking when he sits down and looks out at the crowd. As tumultuous as his confirmation hearing was, he'll be looking out at the crowd for the next 25 to 30 years.
The Court knows the LGBT cases are huge, but it proceeded like any other case. The Chief Justice calls the first case and Pamela Karlan steps to the podium. Karlan heads the Supreme Court litigation clinic at Stanford Law School, a veteran Supreme Court advocate chosen by Antollino to present Zarda's case. She is also arguing for Bostock. Karlan is very good, but here's the thing about oral argument in any court: you can prepare all you want, but no one knows what the court will ask. The same holds true with the Supreme Court. Eight of the nine justices are expected to ask questions (Justice Thomas almost never speaks up), hurled at the attorney as non-sequiturs. The justices speak in no particular order as soon as a prior question is answered. Or they hit you with a question before you finish your answer. There are no rules. You may get a supportive question, or you may get a hostile question. You may get complex hypotheticals, and you may get a speech from one of the justices. If the justices think you are avoiding the question, they will ask it again. Someone tries to make a joke. If you're arguing, anything goes, and all eyes are on you. Even expert attorneys can get tripped up at the Supreme Court. But in the end, it's a debate, not a bloodbath. No one talks over each other, and it's all about logic and reason.
The Court has a new rule that says the justices cannot ask any questions during the first two minutes. This allows the lawyer to get a few words in edgewise. Then Justice Ginsburg asked Karlan how she would respond to the employers' argument that Congress could not have contemplated that the Civil Rights Act of 1964 would protect gays and lesbians because "in many states male same-sex relations was a criminal offense" and the American Psychiatric Association back then "labeled homosexuality a mental illness." The question of congressional intent lies at the heart of the employer's argument. Astute readers know that Justice Ginsburg was a civil rights lawyer before ascending to the bench. Why is she asking a hostile question? That's the other thing about oral argument at the Supreme Court. Sometimes the judges ask softball questions to communicate with their fellow justices. RBG knows that Karlan can hit this question out of the park and commence the argument with a strong narrative about how we should look at the actual language of the statute to ensure it also regulates unanticipated circumstances. Legislative intent is secondary under this model of statutory interpretation, the method of choice by modern conservative justices like Neil Gorsuch and Brett Kavanaugh. Smart move by Justice Ginsburg to have Karlan remind the others that their own judicial philosophy requires them to interpret Title VII to include gays and lesbians. After all, when Congress passed the Civil Rights Act of 1964, sexual harassment was so commonplace hat no one even called it sexual harassment, yet the Court in 1986 ruled it violates Title VII. Karlan said as much.
Before long, however, the questions began to focus on bathrooms. While none of the cases before the Court involve bathrooms, the justices wanted to talk about how employers should deal with the transgender bathroom dilemma: say an employee was born with male genitalia but identifies as a woman. Can she use the women's bathroom? The justices suggested that someone may be harmed if they have to use the wrong bathroom for discriminatory reasons. This line of questions dominated Karlan's portion of the argument. There is no easy answer, but it is really a question for a later case. I doubt these cases will turn on this issue; the Court does not decide cases on the basis of hypotheticals.
When the justices were not talking about bathrooms, Title IX sports and religious exemptions (which also bear no relationship to these cases), they dealt with the core issues: (1) does it matter that Congress did not have sexual orientation in mind when it enacted the Civil Right Act; and (2) does this kind of discrimination violate Title VII. I thought they would spend more time on issues (1) and (2) than the side issues. Karlan emphasized that a male has a Title VII case if he's fired for doing something that women are allowed to do, i.e., date men. The employer -- and the U.S. Solicitor General -- said it's only discrimination when the employer fires men but not women for their sexual orientation. Justice Kagan thought that formulation was more complex than the average Title VII analysis. I was glad to hear that Justice Kagan seemed favorable to our case. So did Justices Sotomayor, Breyer and Kagan. That means we need one conservative justice on our side to win. Who'll it be? This is where the tea leaves kick in.
Oral argument may provide fireworks, but it's delayed gratification. There is no decision on argument day. The Court will issue a ruling months from now, though it has a June 2020 deadline. Who is with us? Justice Alito flat out disagreed with Karlan and said a favorable ruling would turn the Court into a legislature, so we lost him. Justice Thomas did not ask questions, but he usually votes with the conservatives. Justice Kavanaugh asked one question that did not elucidate his thinking. The Chief Justice did not ask too many questions, either, and he did not tip his hand. That Kavanaugh and Roberts did not beat up on our side seemed a good sign, as judges usually ask tough questions when they are skeptical of the lawyer's position. But Justice Gorsuch was an active questioner, and he asked the employer's attorney a question that gave us some hope. He suggested that, nothwithstanding any other motives at work, sex is also "in play" when someone is fired for her sexual orientation. "And isn't that enough," he asked. "In what linguistic formulation would one say that sex, biological gender, has nothing to do with what happened in this case?" Comments and questions like this were the talk of the town following argument. Do we have Justice Gorsuch?
My sense is that Justice Gorsuch likes to think out loud. He balanced the above comment with an observation to David Cole, the ACLU lawyer who argued on behalf of Aimee Stephens in support of her transgender discrimination claim. Gorsuch noted that Judge Lynch on the Second Circuit issued a lengthy dissent from the en banc ruling. While Judge Lynch seemed sympathetic to the plaintiff's arguments at a moral level, Justice Gorsuch said, "he suggested that something as drastic a change in this country as bathrooms in every place of employment and dress codes in every place of employment that are otherwise gender neutral would be changed" such that Congress should take this up, not the Court. But are new bathroom rules and dress codes so disruptive of American society that the Court will dodge this issue? Are they even disruptive? Wasn't Brown v. Board of Education (the most celebrated ruling of all time) disruptive? Moments later, Gorsuch asked Cole about the "massive social upheaval that would be entailed in such a decision" and whether the Court should exercise "judicial modesty." Massive social upheaval? I can't imagine the Court will rule against us on this basis. That is not the legal reasoning you see in Supreme Court rulings. The best I can say is that Justice Gorsuch is taking this issue seriously.
As the plaintiffs' lawyers in the audience saw it, the issues are not complicated. Sexual orientation and transgender discrimination are simply variations of gender discrimination. The two-hour argument examined these issues from every angle. We call that "dancing on the head of a pin." In plain English, it's called over-examining the issue. Today's Supreme Court has a 5-4 majority, and it's been that way for as long as I've been a lawyer. But the Court has issued favorable Title VII rulings over the last 25 years, relaxing the standards in retaliation cases, loosening Title VII complaint-pleading standards, and holding that an employer's lies at trial may prove intentional discrimination. Some of these rulings were unanimous. But the Court sometimes burns plaintiffs in this area, and we all know about the rulings in Citizens United (endorsing corporate speech in political campaign donations), Ashcroft v. Iqbal (making it harder for plaintiffs to survive motions to dismiss), Shelby County v. Holder (striking key portions of the Voting Rights Act) and last year's Janus ruling (making it easier for workers to withhold their union dues). The Court can be a wild-card. And it definitely leans right.
Leaving the Court post-argument, we saw a massive protest outside the building. They want the Court to vote in favor of LGBT rights. A lot of people want the Court to rule in our favor, and I would bet that public opinion is in our favor. The Court is not supposed to consider public opinion, but it must know there will be no backlash if they rule in favor of Zarda, Bostock and Stephens. One lawyer at the courthouse thanked Antollino for bringing the case. An old friend private-messaged me the same gratitude (her son is gay). At Penn Station on the way home, I ran into college students who went to the Court and were excited to run into one of the lawyers. Also bear in mind that the justices probably all know gays, lesbians and transgender persons. They wouldn't want them to suffer discrimination. There's a famous story about Justice Powell, who ruled against the plaintiff in the Bowers sodomy case in the 1980s and told his law clerk that he did not think he knew any gay people. Actually, Powell's own clerk was gay. That would never happen now. The justices' personal experiences can help guide their decisionmaking. They know what this case means to people.