The retirement of Supreme Court Justice Anthony Kennedy loomed large over arguments at the court Tuesday in a set of cases testing whether employers are free to fire gay and transgender employees. Kennedy, a Reagan appointee, was the author of every major gay-rights decision for more than two decades. His absence, and the presence of two new Trump appointees, could very well determine how these cases are decided, who wins, and who loses.
Justice Brett Kavanaugh, who replaced Kennedy, asked only one question during two hours of argument Tuesday. Instead it was Justice Neil Gorsuch, the other Trump appointee, who was the focal point.
Gorsuch, an adamant advocate for reading the text of a statute literally, admitted to a bit of a conundrum. Addressing ACLU lawyer David Cole, he said, "Assume for the moment ... I'm with you on the textual evidence," but "it's close ... very close." The words of Title VII of the 1964 Civil Rights Act bar employment discrimination "because of sex," or "based on sex."
Gorsuch seemed to be agreeing that language would appear to cover gay and transgender employees. But, he then asked whether a justice should "take into consideration the massive social upheaval that would" ensue from such a decision. Wouldn't it be better to let Congress do it?
Cole replied that federal courts have been finding it illegal to discriminate against transgender employees for 20 years, and "there's been no upheaval." Dress codes and sex-segregated restrooms "have not fallen," he observed, adding there has been no tumult.
The day began on a discordant note. The festive atmosphere outside the court suddenly changed as demonstrators and TV crews alike were hustled away from the Supreme Court building and away from the street after police discovered two suspicious packages. The packages eventually proved benign. Not so the argument.
Watching the back-and-forth unfold were the plaintiffs in the cases.
Gerald Bostock won awards for his work as the child-welfare coordinator for Clayton County, Ga. Then he joined a gay recreational softball league.
"Within months I was fired for being gay, " he said. "I lost my livelihood ... I lost my medical insurance, and I was recovering from prostate cancer when this occurred. It was devastating."
Aimee Stephens, after working for six years as a male funeral director in Michigan, was fired two weeks after she told her boss she was transgender and would be coming to work as a woman.
Bostock and Stephens challenged their dismissals in court under the 1964 civil rights act — the law barring employment discrimination "because of sex."
As they looked on, Justice Gorsuch would play both sides of the issue, in contrast with the court's other conservatives who generally seemed to support the employers' position that the 1964 law does not protect gay and transgender employees.
Justice Samuel Alito, for instance, noted that Congress in 1964 didn't have gay and transgender employees in mind at all. If the court were to interpret the statute now to prohibit discrimination against gay and trans workers, he said, the court would be "acting exactly like a legislature."
Lawyer Pamela Karlan shot back that there were many kinds of discrimination Congress didn't specifically envision in 1964 that the court has consistently found to be covered by the broad words of the statute.
Justice Ruth Bader Ginsburg chimed in that sexual harassment was not even a legal concept in 1964, and yet the court decades ago found it to be prohibited conduct under the 1964 law.
The court's other liberal justices seemed to agree. Suppose a Catholic and a Jew get married, posited Justice Stephen Breyer. "Employer fires the Catholic. Why? He's not against Catholics. He's against intermarriage." That argument, Breyer suggested, is much like the argument that firing an employee because he's gay is different than discrimination because of sex.
Justice Elena Kagan pointed to what she said was the "simple test" the court has used in these cases for decades. Would the same thing have happened to you if you were a different sex?
Justice Sonia Sotomayor asked: "At what point does a court continue to permit invidious discrimination?" After all, she said, "We can't deny that homosexuals are being fired merely for being who they are, ... not because they are performing their jobs poorly."
Solicitor General Noel Francisco, representing the Trump administration, replied that "sex means whether you're male or female, not whether you're gay or straight."
But Justice Gorsuch suggested that if the employer who fired Bostock was given truth serum, the reason he would likely give for the firing was "because this person was a man who liked other men?"
It was one of the moments Gorsuch seemed to side with the gay employees. But there were many more when he seemed to go the other way.
A decision is expected by the end of June.