It's not unusual for senators to try to nail down how potential justices are going to vote before confirming them. It's also typical for nominees to avoid tipping their hands. So when Brett Kavanaugh was nominated to the Supreme Court, some LGBT activists were upset about his evasiveness when questioned about their issues.
They may get a more direct look at his positions soon. The Supreme Court is being asked to consider two cases in their territory.
The first is directly related to the justices' most recent decision on gay issues: Can a baker refuse to make a wedding cake for a gay couple? In June, the Supreme Court ruled 7–2 in Masterpiece Ltd. vs. Colorado Civil Rights Commission that Colorado erred when it punished bakery owner Jack Phillips for refusing to bake a wedding cake for a same-sex couple. But the way that the majority came to this decision did not settle the question at all.
The court did not rule on whether Colorado's public accommodation laws were unconstitutionally mandating speech by forcing Phillips to make a wedding cake. It did not decide whether the baking of a cake is itself an expressive act protected by the First Amendment. Rather, it ruled that the commission was not acting as a neutral arbiter balancing the rights of the parties involved, since members of the commission made clear indications that they held anti-religious biases that influenced the decision.
So with the central conflict still unsolved, the owners of a bakery in Oregon are asking the Supreme Court to take up the issue again. Aaron and Melissa Klein, owners of Sweet Cakes by Melissa, were fined $135,000 after refusing to bake a wedding cake for a lesbian couple.
The Kleins submitted a petition last week to the top court asking them to take up the matter to determine whether the baking of wedding cake is a form of speech and whether Oregon can mandate they bake it.
I predict the odds are long that the Supreme Court takes it up so soon. After the Masterpiece decision they punted back down a similar case about floral arrangements for gay weddings that originated from Washington state. The message from the court seems to be that these business owners need to show that there's anti-religious animosity guiding the state's rulings and not a neutral application of antidiscrimination law.
But then, I was surprised when the Supreme Court took up the Masterpiece case in the first place, given that every lower court thus far had ruled against every business in these cases and the Supreme Court had rejected previous petitions. So we'll see.
A different type of discrimination case is more likely to reach the Supreme Court, because it revolves around disagreement between parts of the federal government itself about the application of the Civil Rights Act: Does federal law that prohibits discrimination on the basis of sex also inherently prohibit discrimination on the basis of gender identity, and possibly even sexual orientation? Are gay and transgender people already covered by the Civil Rights Act?
It's obvious that when lawmakers passed the Civil Rights Act of 1964, they didn't intend it to cover gay and transgender people (as evidenced by the fact that the government continued to discriminate against them). But a 1989 Supreme Court decision established a precedent that punishing an employee for not exhibiting stereotypical gender-based traits was a form of sex discrimination. In that case, a woman claimed she had been discriminated against for not being feminine enough.
Spinning out of that ruling have been several cases where federal courts scattered around the country have ruled that discriminating against gay or transgender people is fundamentally similar to discriminating against somebody for not exhibiting the appropriate gender-based behavior.
Under President Barack Obama, the Justice Department and U.S. Equal Employment Opportunities Commission (EEOC) encouraged those decisions. The EEOC still supports that interpretation. But under Attorney General Jeff Sessions, the Justice Department has taken the formal position that the Civil Rights Act as currently written does not prohibit discrimination on the basis of sexual orientation or gender identity.
Last week the Justice Department reaffirmed its position in a letter to the Supreme Court about one of three cases the justices are considering taking up. Between the three cases, three separate federal circuits have come to split rulings. Two courts have ruled that the Civil Rights Act does prohibit this expanded interpretation of sex discrimination; one court ruled that it did not.
So not only are federal agencies split on the matter, but the courts themselves are split. The Supreme Court had an opportunity last December to take up one of these cases but declined. I've said before that this conflict is prime for a Supreme Court review in order to resolve the disagreements within the government about what the law means. It seems untenable for an LGBT employee in one state may be protected by the federal Civil Rights Act from discrimination while an employee in another state is not.