Monday, May 06, 2019

Conservatives Have Less to Fear From the Title VII LGBT Cases Than They Might Think: That's Good and Bad

by Michael C. Dorf

In both a Verdict column and an accompanying essay here on DoL last week, I argued that, if they remain true to their supposed textualist principles, conservatives will rule in favor of the plaintiffs in the LGBT Title VII cases next Term. That earned me scorn from both the right and the left.

From the right, Ed Whelan wrote in National Review that I, as a liberal, oughtn't to presume to tell conservatives what they ought to do, which is fair enough, I suppose, but he went on to say that I was wrong to criticize Judge Gerard Lynch's dissent in the Second Circuit case for distinguishing between dynamic implementation of a law and dynamic understandings of a law's purpose. "[T]he correct implementation of a law’s meaning can go beyond the drafters’ specific intentions," Whelan contended, but "claims about a law’s purpose can’t alter or supplement that meaning."

I'm not sure that's right, but as I argued on Twitter (to the extent that one can argue anything on Twitter, as opposed to merely asserting), the plaintiffs in the Title VII LGBT cases do not need to make any sorts of claims that the purpose of Title VII has altered or supplemented its meaning. Rather, as I explained in both the column and the DoL essay, the argument for the plaintiffs is that the meaning of discrimination based on sex always should have extended to cover anti-LGBT discrimination, even though the Congress that adopted Title VII did not intend it to do so.

Meanwhile, from the other side, various critics thought me naive for taking seriously the possibility that conservative justices would follow their jurisprudential commitments at the expense of their ideological ones. I get the criticism. One needn't think that conservatives are especially hypocritical to think that all judges and justices tend to see cases first in terms of their ideological priors and only then in terms of their ostensible jurisprudential commitments.

That said, I think that there are reasons to think that the conservatives' priors aren't--or at least oughtn't to be--very strong here. Unfortunately, those reasons are also a double-edged sword.

Conservative justices need not worry that a finding for the plaintiffs in the Title VII cases will lead to the oppression of religious conservatives -- even if we accept at face value the dubious characterization of conflicts between anti-discrimination law and religiously motivated discrimination against sexual minorities (and others) as involving "discrimination" against religious conservatives.

Why? Because most of the high-profile culture war cases in this area do not involve employment discrimination. Rather, they involve religious claimants objecting to anti-discrimination laws that protect LGBTQ Americans against discrimination in public accommodations. Photographersbakers, and florists assert that the obligation to serve LGBTQ customers or to provide services for same-sex weddings violates their right to free speech or religious freedom.

To be sure, a ruling that Title VII bars LGBT discrimination in employment would likely be followed by rulings that other federal statutes barring sex discrimination -- such as Title IX -- bar LGBT discrimination in other contexts. But here's the thing: Public accommodations are not among those contexts, because the federal public accommodations law does not cover sex discrimination. (Shocking, I know, but that's a topic for a different day.)

Moreover, to the extent that conservative justices worry about forbidding LGBT discrimination in the employment context and other covered contexts, the Religious Freedom Restoration Act (RFRA) provides for the possibility of exemptions. And as the Court has shown in cases like Hobby Lobby v. Burwell, RFRA can be used aggressively to protect religious claimants even when they operate for-profit businesses.

But that is also why a victory for the plaintiffs in the cases now before the Court -- which do not involve any sort of religious freedom defense -- could prove to be pyrrhic. Such a victory would not extend to public accommodations, and even where it would extend, the Court could well conclude that RFRA entitles religious conservatives to exceptions.

Dissenting in Hobby Lobby, Justice Ginsburg charged that the Court's aggressive use of RFRA could undercut laws that protect against discrimination based on race and sex, including sexual orientation. Not to worry, responded Justice Alito for the majority: RFRA allows that other federal statutes -- such as anti-discrimination laws -- can override religious objections where those other federal statutes amount to the least restrictive means of advancing compelling interests. And, he added, "[t]he Government has a compelling interest in providing an equal opportunity to participate in the work-force without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal." Notably, despite the fact that Justice Ginsburg expressly pointed to LGBT discrimination, Justice Alito responded with respect to racial discrimination only, thereby implying that the Court's now-even-more-conservative majority might think there is no compelling interest in addressing LGBT discrimination.


Joe said...

Does Ed Whelan have any more updates on who really sexually assaulted Christine Blasey Ford?

Using a limited win for GLBT rights fits into the argument by Linda Greenhouse that the behind the scenes deliberations and the ultimate crafting of the questions presented during the lead-up to the grants suggested some sort of compromise.

The problem we are in is not an all or nothing affair and those (rightly) upset about the situation need to understand that to best known how to fully address the problem.

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Shag from Brookline said...

I recall that Ed Whalen had sort of apologized for his conspiracy theory on who, other than Brett Kavanaugh, may have sexually assaulted Christine Blasey Ford, at a time when Kavanaugh's mom was the chief prosecutor in Montgomery County where the alleged assault occurred.

Consider this evolving conspiracy theory on the Trump/Barr the Mueller Report. Early on, Trump was critical of the appointment of Robert Mueller as Special Counsel. Trump tried to fire Mueller via WH Counsel Don McGahn, based upon what Trump perceived as a conflict of interest on Mueller's part that involved a dispute Mueller had with one of Trump's golf courses years earlier. McGahn was reported as saying this was silly. But no doubt Trump was looking for Mueller's Achille's Heel. Mueller did not have bone spurs preventing him from honorable service in the Marines during Vietnam. Was Trump so hands on with his golf courses that he recalled this potential conflict of interest, or did Trump as president use federal resources to identify this "silly" conflict of interest"

Trump continued his quest to negate Mueller's efforts. Everybody has some weakness. Perhaps Trump's search lead the fact that both Mueller and Barr were political appointees in the Bush I Administration serving in the DOJ, that Mueller and Barr, and their families were very close over the years. Also, perhaps this search revealed some issues involving Barr's role in the DOJ at that time dealing with the legality of the arrest of Noriega by the US in Panama and Barr's role in the pardoning of Iran/Contra officials after the Reagan Administration. Segue to Bush II Administration when Mueller was appointed to head the FBI. Had Barr been considered for that or some other position in the Bush II Administration? After all, Barr had shown his Republican chops during the Bush I Administration. Perhaps Bush II, with the assistance of counsel Brett Kavanagh, did some vetting that focused on critiques of Barr for some of his actions in the Bush I Administration.

Jumping ahead to the 2016 campaign, it's not clear on Barr's political role in the GOP campaigning and the eventual GOP selection of Trump as the GOP nominee. So perhaps in Trump's mind Mueller's Achilles Heel was his strong friendship with Billy Barr. We know of Barr's 19 page unsolicited memo critical of the Mueller investigation as well as of Barr's critical OpEd in the WaPo. Was that memo really unsolicited, or had there been efforts by Trump and his allies to groom Barr, by pointing out that Mueller had gotten more "rewards" for his public service over the years than had Barr? Was this a narcissistic move by Trump, who may initially wanted to hire Barr as his personal attorney, perhaps with the assistance of GOP congressmen that were all aboard the Trump takeover of the Republican Party? We've all witnessed the recent events since Barr's nomination and appointment as AG, including Barr's recent Senate Committee reference to Mueller's April 27th letter to Barr as "snitty." Perhaps "snitty" would have been apt if Mueller had submitted his letter publicly. In a follow up telephone call, Barr testified, he asked Mueller why he just didn't just call. Did Barr call Mueller before submitting his 19 page unsolicited memo and WaPo OpEd that were critical of Mueller's investigation? Or did Barr accept the role of a Judas to protect Trump?

This conspiracy theory continues to evolve.

Joe said...

"Ed Whalen had sort of apologized"

He is a known long term troll. It's part of the grift. National Review at times can be taken seriously. He should be just taken with contempt.

I don't think Barr's long term sentiments being evident (Eric Segall has banged this drum continuously on Twitter -- like Marty Lederman, he used to be in the Justice Department, so perhaps takes this sort of thing as a personal affront) is a "conspiracy theory" as such. Except that there is a conspiracy involved of some sort.

Shag from Brookline said...

I share Joes's views on EdWhalen, whom I used as a conspiracy theorist protecting Brett Kavanaugh to segue to the evolving conspiracy theory that I wished to set forth though off topic to Mike's post. And I concur that the conspiracy may go beyond theory. Note Sen. Majority Leader Mitch McConnell's declared position earlier today that the Mueller Report is over, giving cover to Trump's caddy Lindsey Graham (Cracker, SCar) and Chair of the Senate Judiciary Committee. There is quite a bit of conscious (and unconscious) parallelism among GOP Congressmen. McConnell wishes to avoid the ire of Trump as he is up for reelection for his Senate seat; and Mitch may also be concerned with the seat held by his spouse in Trump's Cabinet.

Shag from Brookline said...

Hopefully patriotic Americans will "Hear, Hear" Sen Chuck Schumer's response to Sen. Majority Leader Mitch McConnell's rant on closing the Mueller Report. Do Republicans have a short term memory loss on the cons of Trump pre-his election, e.g., Trump University, not to mention the "hush" money payments in an attempt to hide Trump's affairs being exposed to voters. Trump now leads the amoral Republican Party. And a "Herar, Hear" should out for House Speaker Nancy Pelosi's response to McConnell.

Joe said...

Will a love spell help?