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.