Supreme Court

Antonin Scalia's Surprising Role in the Latest Supreme Court Fight Over Legal Protections for Gays

Understanding what’s at stake in Bostock v. Clayton County, Georgia


The late Justice Antonin Scalia was nobody's idea of a gay rights activist. When the Supreme Court struck down a state ban on "homosexual conduct" in Lawrence v. Texas (2003), Scalia faulted the majority for embracing "the so-called homosexual agenda." When the Supreme Court recognized a constitutional right to same-sex marriage in Obergefell v. Hodges (2015), Scalia denounced the ruling as a "threat to American democracy."

Scalia's views on legal protections for gays will be front and center once again next month when the Supreme Court hears a far-reaching case that asks whether anti-gay workplace discrimination is illegal under current federal law. Except this time around, Scalia's jurisprudence will be favorably cited and employed by the openly gay petitioner and his lawyers.

The case is Bostock v. Clayton County, Georgia. Gerald Lynn Bostock was employed by Clayton County as a child welfare services coordinator. He claims that he was fired solely on account of his sexual orientation. He argues that such actions by his employer violate federal law.

According to Title VII of the Civil Rights Act of 1964, it is unlawful for an employer to discriminate against a job applicant or employee "because of such individual's race, color, religion, sex, or national origin." The question before the Supreme Court in Bostock v. Clayton County is whether employment discrimination because of sexual orientation qualifies as employment discrimination "because of…sex."

In their principal brief to the Supreme Court, Bostock and his lawyers rely in part on Justice Scalia's unanimous 1998 ruling in Oncale v. Sundowner Offshore Services, Inc. At issue was whether same-sex workplace harassment violated Title VII's prohibition on discrimination "because…of sex." Scalia held that it did.

"Male on male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII," Scalia acknowledged. "But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed." The protections of Title VII, Scalia concluded, "must extend to sexual harassment of any kind that meets the statutory requirements."

Scalia, a self-described textualist, often argued that the plain meaning of a statute should trump the ostensible intentions, purposes, or expectations of the statute's authors and supporters. That was one of the reasons why Scalia famously rejected the use of legislative history in such statutory cases.

Bostock and his lawyers are now hoping that Scalia-style textualism will help them achieve victory and secure broader legal protections for gay workers nationwide. "In holding that same-sex sexual harassment is actionable under Title VII, the Court in Oncale confirmed that the statute prohibits forms of sex discrimination that Congress may not have envisioned in 1964, and instead goes beyond what was contemplated to cover 'reasonably comparable evils,'" they told the Court. "Sexual orientation discrimination is clearly such a 'reasonably comparable evil,' and is therefore also prohibited."

Oral arguments in Bostock v. Clayton County, Georgia will be held on October 8.