Op-Ed: The Supreme Court victory for LGBTQ rights is also a triumph for the rule of law

Erwin Chemerinsky
The Supreme Court's ruling on Monday was a triumph for the rule of law.  (J. Scott Applewhite / Associated Press)

The Supreme Court’s ruling on Monday that federal law prohibits employment discrimination based on sexual orientation and gender identity is not only a victory for civil rights, but also for the rule of law. For years, some conservative justices on the court have put conservative ideology ahead of established principles of judicial decision-making. But the decision to protect gay, lesbian and transgender individuals from discrimination was the opposite: The six justices in the majority clearly followed the law.

Title VII of the 1964 Civil Rights Act prohibits employment discrimination based on race, sex or religion. The issue before the court was whether the prohibition of discrimination on the basis of sex also forbids discrimination on the grounds of sexual orientation or gender identity. There were three cases before the court. Two involved men who were fired from their jobs when their employers learned that they were gay. The third involved a transgender woman, Aimee Stevens, who was fired from her position at a funeral home because of her gender identity.

The Supreme Court, in a 6-3 decision, held that these firings were “because of sex.” Justice Neil Gorsuch wrote the opinion for the majority, joined by Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. Justice Gorsuch had professed, even before going on the court, that judges should focus on the plain language of a statute, and that is exactly what he did in his opinion for the court.

A simple example illustrates why Gorsuch and the court were correct. Imagine an employee named Chris who never has met the employer. Chris and the employer had communicated by text and email, but never met in person or talked by phone. Chris often has referred to a husband in discussing evening or weekend plans. When Chris and the employer meet, the employer is surprised that Chris is male. The employer fires Chris, saying that he does not want to employ gay people. If Chris were female, Chris would still have the job. That, by definition, is employment discrimination because of sex.

Likewise, Justice Gorsuch said that Aimee Stevens would have continued to have the position as a funeral director at Harris Funeral Homes if Stevens were male, but lost the job for being female. That, too, is employment discrimination because of sex.

Conservative justices, starting with Justice Antonin Scalia, have urged following the plain language of statutes and not the legislative history behind them. These justices have long said that the statute that was adopted has to speak for itself, and that the court shouldn’t be trying to infer legislative intent. I often have criticized conservative justices for abandoning this approach when it serves their ideological agenda, as in the many cases where the court has required compulsory arbitration of consumer and employee disputes, notwithstanding federal law to the contrary.

But to their great credit, Justice Gorsuch and Chief Justice Roberts joined the liberal justices in following the plain language of Title VII. Justice Alito in a dissent joined by Justice Clarence Thomas, and Justice Brett Kavanaugh in a separate dissent, focused on how Congress in 1964 did not intend to prohibit employment discrimination based on sexual orientation and gender identity. That is unquestionably right, since those issues weren’t as much on the public mind in 1964. But for those justices who profess to interpret statutes based on their plain meaning — and Justices Alito, Thomas and Kavanaugh often do — that should be irrelevant.

The decision is hugely important in protecting gay, lesbian and transgender individuals from discrimination in workplaces across the country. But its significance is broader than that. It should be understood to say that all federal laws that prohibit discrimination on the basis of sex also outlaw discrimination based on sexual orientation or gender identity.

I would like to think that the court’s denial of review this morning of a challenge to California’s “sanctuary law” also reflects conservative justices following precedent rather than ideology, but that is less clear since the justices don’t have to explain their reasoning when they opt not to review a case. In the case, the United States challenged a California law prohibiting state officials from informing federal immigration officials when undocumented immigrants are to be released from state custody, and it puts some restrictions on transfers of immigrants in state custody to federal immigration authorities. The U.S. Court of Appeals for the 9th Circuit unanimously upheld that California statute, following long-standing precedent that the federal government cannot compel states to enforce federal mandates.

Here, too, the law is clear and the Supreme Court denying review, over the objections of Justices Thomas and Alito, is a good sign. However, a denial of review by the Supreme Court is not a decision on the merits. It means that the 9th Circuit’s decision stands and the California law remains in effect. However, the United States Court of Appeals for the 2nd Circuit came to the opposite conclusion and the Supreme Court could grant review in that case and still strike down laws like the one in California.

Still, today we should celebrate a huge advance, both for civil rights and for the triumph for the rule of law.

Erwin Chemerinsky is dean of the UC Berkeley School of Law and a contributing writer to Opinion.