The Geek In Review Ep. 79 – Text, Context, and SCOTUS’ Textualism in Bostock – Andrew Koppelman and Sara Harris

Marlene Gebauer:  Welcome to the Geek Review. The podcast focused on innovative and creative ideas in the legal industry. I’m Marlene Gebauer

Greg Lambert:  And I’m Greg Lambert. Marlene, we have another exciting episode today where we’re bringing in some experts to discuss a recent to U. S. Supreme Court decision. And we get pretty geeky on some of the reasoning behind the split amongst the normal conservative justices.

Marlene Gebauer:  Actually, we had a pretty good time on this podcast. We had some really good substantive discussion and, you know, there was a little bit of silly there, too, So, you know, it worked out just nicely. We asked Northwestern University law professor Andrew Koppelman and Jackson Walker labor and employment attorney Sara Harris to break down the Bostock v. Clayton County, Georgia decision that extends the 1964 Civil Rights Act, protection toe, lesbian, gay, bisexual and transgender workers.

Greg Lambert:  Yeah, it was a great discussion and the major victory for the LGBTQ+ community. But before we jump into the big discussion, let’s skip back to our information inspirations.

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Greg Lambert: I’ll go first. Marlene, you may have heard that after three months, I have finally decided to wrap up my side project Podcast In Seclusion this week.

Marlene Gebauer:  Great podcast, great podcast. We’re sorry to see you go.

Greg Lambert:  Yeah, well, I have to tell you what I thought would be a 15 or 20 episode podcast ballooned into nearly 70 episodes by the time it was finished. And really, I had so many wonderful discussions with the diverse group of legal professionals over the past three months. But, you know, I felt like it was a good time to end that project and get back to working on, you know, Three Geeks and The Geek in Review podcast. Oh, yeah. My day job too, I guess. I show, Yeah, focus on that as well. So you may find this surprising, but you know, there there’s a ton of legal podcast that more than fill the void of what In Seclusion will leave behind at the end of the month. So I thought I would just suggest a couple. Um, first, Mike Whelan, who was a guest on the In Seclusion pod, has started his own podcast called Lawyer Forward. It’s got a storytelling format where he wraps up a legal historical topic and with a contemporary issue. So the latest ones really interesting? It’s about Clarence Darrow’s last case, which he defended a bunch of racist in Hawaii … It was kind of weird for him. But, you know, and Mike talks about what that means for a lawyer’s reputation to take on these types of controversial cases. 

Marlene Gebauer:  it sounds interesting.

Greg Lambert:  It was, is if you haven’t listened to it yet,

Marlene Gebauer:  I’m gonna go listen to it.

Greg Lambert: So Mike’s got a great voice and ah, and you know better than mine in the storytelling is better than mine, So go check him out. The other one that I wanted to point out is, It’s not a new one, but it’s one that I’ve liked. It’s hosted by a couple of lawyers out of Seattle who talk about running their law firm and how being married to each other makes that both interesting and challenging

Marlene Gebauer:  oh, boy.

Greg Lambert:  Yeah, so the lawyer human show podcast again. It’s not new, but its shares…

Marlene Gebauer: wait, lawyers are human? 

Greg Lambert: Well, it’s a catchy title. 

Marlene Gebauer: Yeah, it sucked me in just now.

Greg Lambert:  Again, it’s not new, but it does have, or, it’s recently been produced by Ben Ambrogi’s new podcast company, Populous Radio. And Ben, of course, is the son of Bob Ambrogi, who I think everyone knows, Colin Lay, and Shreya Lay are the two hosts on the show, and they’re fun to listen to. It’s not a heavy show at all. And they have lots of guests who come in and discuss how to work and live with your business partners. And while it specifically talks about, you know, spouses as business partners, it really I think it has a lot to offer in just general personal relationships as well. So go check it out.

Marlene Gebauer:  Yeah, you know what? You were talking about that and I was thinking the same thing because, ah, you know, personal relationships do have an element of business to them. So I would think this would be good for everybody’s relationship. It particularly in COVID when everybody’s together

Greg Lambert:  relationships are tight right now.

Marlene Gebauer:  Well, my inspiration has to do Is sustainable software. No, that doesn’t mean that it lasts longer between upgrades. Greg to bed uses less energy and therefore less CO2. Okay, So let me give you an example, a Dutch programmer, Danny van Kooten, designs a plugin for websites that help users use Mailchimp, which for anyone who is not aware, is a mail list service.

Greg Lambert:  I bet everyone has gotten a Mailchimp email.

Marlene Gebauer:  I would think so. But just in case. So each time someone visits your site, the site is made slightly larger from that plugin by adding more code. So imagine the two million sites that use this plugin, using that plugin,  and people visiting those sites every day. That’s a lot. Ah, so van Kooten went back and he did a redesign, so he reduced the code creep by about 20 kilobytes a visit. Now, that’s not a ton. But Van Kooten estimates that over all of the websites that use it, he saved roughly the amount of energy required to fly from New York to Amsterdam and back about 85 times.

Greg Lambert:  Wow, that’s a lot. Well, I will tell you this. My first computer, it was a VIC-20 and I think it had 48 k of memory. So, of course, I won’t tell you what year that was.

Marlene Gebauer:  No, I wouldn’t know what year that was. So you don’t have to be a programmer to reduce your energy footprint either. So all those emails, you know, thanks, or got it, that, you know, we all send out if we cut those out, you could save a ton more energy. And I like this article because, you know, you referenced your old computer. It’s like there’s some of us from certain generations and I will include myself in that you don’t really think about the sustainability concerning our computer use. Um, other than maybe saving paper, you know, And this was a really nice wake-up call about how we can do things you know, at an individual level to contribute to reduce our carbon footprint. And that wraps up this week’s information inspirations.

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Greg Lambert:  Well Marlene, I am very excited to have a couple of outstanding guests on this week’s discussion of the Bostock v. Clayton County Georgia case.

Marlene Gebauer:  Andrew Koppelman is the John Paul Stevens Professor of Law at Northwestern University, as well as the author of Gay Rights versus Religious Liberty? The Unnecessary Conflict, which came out earlier this month. Sara Harris is a labor and employment and litigation associate, Jackson Walker, and is a member of the Young Lawyers Editorial Board for the American lawyer. 

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Greg Lambert: Very happy to be joined here today by any compliment. And Sara Harris. So, uh, both of you open to the deacon review.

Andrew Koppelman:  Happy to be here.

Sara Harris: Glad to be here.

Marlene Gebauer: Thanks for both of you for coming on the show. We’re really excited to dive into this case, and I’m guessing that we’re going to get a bit nerdy on some of the details about the decision and the story that seems to be happening in the background amongst some of the conservative judges.

Andrew Koppelman:  I’m a professor.  Nerdy is what I do!

Marlene Gebauer:  We like nerdy. We like nerdy a lot on this podcast. Uh, Sara, can you Tee us up by giving a quick history of title seven of the 1964 Civil Rights Act and the three cases involved in Bostock? 

Sara Harris:  Sure. So the basics Title VII of the Civil Rights Act makes it an unlawful employment practice for an employer to discriminate against any individual because of that individual’s race, color, religion, sex or national origin. Of course, here we’re focusing on the “because of sex.” And when I say unlevel employment practice, that means you a decision made in hiring, firing, pay, promotion. That is “because of” those categories. So this case actually involves three separate cases that came to the court.on related issues. Two of the cases involved gay men, and the third involves a transgender woman. And they all brought lawsuits saying they have been fired in violation of Title VII based on their sex. So the first case, or one of the three,  involved Amy Stephens. Amy worked for a funeral home in the Detroit area. She worked there for several years, presenting as a man. Then, I think, in about 2013 she told her work, um, that she was coming out as transgender, and she’s going on a vacation and when she came back, she would be returning as her true self, Amy Stevens. She was fired just couple weeks after that. I believe the reason that her employer that the funeral gave at the time was that he wanted to dress as a woman. So she brought lawsuits and many years later is reached The Supreme Court. And in that case, the Sixth Circuit actually held that the funeral home did discriminate against Miss Stevens based on her sex and found that that was unlawful termination under Title VII. The next case Gerald Bostick. He was appointed in the case versus Clayton County. He had been a child welfare services coordinator who worked for the county, Clayton County, and he was fired basically after people in the community and at his workplace learned that he had been playing on a softball team for gay people. The reason given, Uh, there’s, um, factual issues, I think we don’t really get into him out, sort of he said, she said. But I think bottom line was that he was told that this was unbecoming conduct for for an employee, it’s of the county. In that case, Donald Zarda worked as a skydiving instructor in New York, and apparently, this is very much his passion, and had been doing it a long time. By all accounts, great employee, and I think that’s true of all three of these plaintiffs, and came out through, I think, a concern or comment raised by a customer of this skydiving company, that he was gay and shortly thereafter he was also fired. In that case, the second Circuit also said that Title VII prohibits firing an employee based on their sexual orientation. The second Circuit aligned with the Sixth Circuit. I think I didn’t mention, but in the Bostock case, the 11th Circuit actually went the opposite way, so we had our circuit split.

Marlene Gebauer:  So how did the Supreme Court split on the decision? And how is this unusual for this particular court?

Andrew Koppelman:  So the Supreme Court held 6 to 3 that discrimination against gay employees or transgender employees is sex discrimination. Title VII says that you can’t discriminate against an employee based on their sex, which means that you can’t treat similarly situated employees differently on the basis of their sex. If an employee fires not all of its employees who date women but only the female employees who date women, it sex discrimination. It’s quite straightforward. Gorsuch said. I’m just quoting from his opinion here. “If the employer intentionally relies in part on an individual employees sex when deciding to discharge the employees put differently. If changing the employees sex would have yielded a different choice by the employer, a statutory violation has occurred.” So Gorsuch was just following the plain language of the statute, which Gorsuch is, as matter off legal method committed to doing

Greg Lambert:  All right. So, as the listeners can probably tell this is the part we’re about to dive into the real nerdy issues. So a lot of us know that who followed the Supreme Court that there are a number of justices who fall into the Scalia camp when it comes to how they should interpret the law. And those justices split 2 to 3 in this case, and that’s not unusual. The conservatives don’t necessarily vote in a block, as much, I think, as the liberal four do at this time. But it is a bit unusual because it seemed like everyone had their own interpretation of what Scalia meant by textualism. And, you know, that was one of his cornerstone ideologies of how the court should read the plain text of the law. So ah, Andy, do you mind just giving us a good definition of textualism?

Andrew Koppelman:  Absolutely. So, since Antonin Scalia wasn’t available to be a guest on today’s podcast, I will just quote from his writings to tell you what his philosophy of textualism is. So there was an earlier case where the question arose, whether same-sex sexual harassment was actionable under Title VII, where somebody was harassed for being insufficiently masculine in the eyes of his fellow co-workers. And Scalia had no trouble saying that that was covered. It might not have been intended by the authors of the statute. But, he wrote, In that case, I’m quoting. “It is ultimately the provision of our laws rather than the principal concerns of our legislators by which we are governed.” I, he wrote in his last book a book called Reading Law that he co-authored with someone named Bryan Garner, a student of legal language. In his last book, ah, he wrote “a law’s words mean what they conveyed to reasonable people at the time they were written.” And if you are going to talk about the purpose of the text, the purpose should be gathered only from the text itself. He wrote that the judges should reject. I’m quoting here again “judicial speculation about both the drafters, extra textually derived purposes and the desirability of the fair reading’s anticipated consequences.” And he said that the reason why this was a good approach was because it made the judge’s political preferences irrelevant. He was quite concerned about judges bringing their own preferences into the reading of the law. And so he argued that if you follow his textual method, that, here again I’m quoting him. “Will curb, even reverse, the tendency of judges to imbue authoritative texts with their own policy preferences.”

Greg Lambert:  So does this mean that legislative intent and legislative histories, which I think Marlene and I in Sara and probably you as well Andy, have have developed over the years to get the intent of the law is that well?

Marlene Gebauer:  poured over the years?

Andrew Koppelman:  But Scalia is Ah, Scalia’s textualist method is something new in statutory interpretation. Generally, a court would look a statute think about the context in which the statute was passed. Think about what the specific wrong was that the Legislature was trying to remedy. And read the law in light of that. So Scalia’s textualism is something new in statutory interpretation. It’s not the way in which judges have traditionally red statutes, and I don’t agree with it. But when we wrote our amicus brief and supreme court, there was an amicus brief in this case that was co-authored by me and William Eskridge, Probably the country’s leading authority on statutory interpretation. He teaches at Yale Law School. And we were self consciously aiming at the votes of Gorsuch and Roberts because we thought that they worked both committed to this textualist approach. We didn’t agree with it, but we understood that those were the judges who we were talking to. And we really wanted to hold their feet to the fire and say, Look, guys, if this is what you really believe, then this is the direction in which you have to go. And we seem to have hit a nerve, particularly with Justice Kavanaugh and dissent. Because Justice Kavanaugh repeatedly cites my co-author Bill Eskridge, and says, This is what Eskridge says. Eskridge is wrong. You don’t look at the literal meaning. You look at the meaning in context. The way that Gorsuch responded to that was to say yes but Justice Kavanaugh, you haven’t told us what you think the ordinary meaning of the law is. You’ve only said the framers would have been surprised. So we want to exclude this. That’s not textualism. That’s sort of what What can we call it? I have no idea, Originalism.  I have no idea what the law means. But, I am sure that the Framers would have been surprised by this result. So even though I can’t tell you what the statute means, we should leave this out,

Greg Lambert:  Sara. And I’m just curious that and we’re talking at a high level here. Supreme Court justices taking this approach. At the trial level, are you seeing judges who are following this type of, You know, I just want the plain language of the law here and how it applies to these facts?

Sara Harris:  Well, I think, uh, where I practice in the Fifth Circuit, it has been less interesting because there’s a lot of precedent for courts to go on, you know, indicating traditionally or historically sexual orientation or hiring/firing somebody on the basis of being transgender has not been protected in the Fifth Circuit. There has been some shift in that, but not quite as interesting. And it’s getting into, you know, what is “because of” means, in that sense, but I guess we’ll see. 

Andrew Koppelman:  I’ll say that one of the problems with textualism as an approach to statutory interpretation is that you can have, you got a lot more freedom to read words the way you want if the words are taken out of context. So I think this was an unusual case because the language was really clear. And so there really was only one way to read the language … unless you went and looked back at the original thought. Uninacted thoughts of drafters. But there was a case a couple of years ago when some lawyers came up with an exceedingly clever way to misread the Obamacare statute that would have completely frustrated its operation and would have produced results that everybody knew would have thwarted the purposes of the statute. And the textualists had a real problem. With that, as it happened. The court split 6 to 3 on that one, too, and the were textualist reading was rejected, and the judges who embraced the were textualist readings, where the three judges who were most hostile to Obamacare just coincidentally and that’s a coincidence. What scares me about textualism, it was a way of constraining judges in this case, but for the most part, it lets judges do whatever they want.

Greg Lambert:  Now we have talked about the plain language and I know and the meaning of the drafters of the law. Now I know one of the things I have read was that, Ah, I think it was Justice Alito, like stapled multiple copies of definitions from dictionaries at the time of the law’s enactment. Was that his way of saying, look, sex means biological sex, not sexual orientation or gender identity.  Is that what he was trying to do?

Andrew Koppelman:  That’s what he was trying to say, but it didn’t have much effect because very early in his opinion, Gorsuch said, I’m happy to stipulate that when I say that I’m only going to fire my male employees who date males, I am discriminating on the basis of biological sex. I am following the dictionaries that Justice Alito is citing. So I think that, you know, Justice Alito set up his armies over here when the battle was happening over there.

Greg Lambert:  Sara, do you think there is a better way to approach it?

Sara Harris:  Oh, gosh, I mean, I’m with Andy, that it’s pretty obvious what the statute says and what it should mean. And even with Gorsuch’s stipulation, we can get there saying this is about biological sex. So may have been a losing battle for him from the start.

Marlene Gebauer:  I mean, it’s interesting when you’re talking about Scalia and then the basis for the ideology just sort of protect from political influence from getting into the decision. And yet here we are with textualism and you know the same thing arguably, could be happening.

Andrew Koppelman:  There is a big problem with the move that both of the dissenting opinions made talking about both Justice Alito and Justice Kavanaugh, both of them wanted to say, “Well, there was a background culture that was deeply entrenched at the time when the law was enacted, they could not possibly have meant to change that background enactment.” The way that Justice Kavanaugh [Gorsuch?] responded to that was by saying, “Well, any statute that is as far-reaching as the Civil Rights Act of 1964 is likely to have surprising results.” Well, I’ll expand on that a little bit. If you are looking at any statute that is aiming at broad social transformation, you’re going to defeat the purposes of that law if you rely on original cultural expectations. Normally laws are read to give full effects to their purpose. Laws that aimed to counteract prejudice by their nature, press against the background culture. And, given the tendency of some groups studied violently, dominate others. There are patterns of exclusion with deep cultural roots in many parts of the world. That’s why anti-discrimination law does not only exist in the United States. Lots of countries have anti-discrimination laws because lots of countries have deep cultural tendencies to discriminate against certain groups. If the background culture limits what anti-discrimination law does, then what was enacted as a broad anti-discrimination principle is going to get pruned down to include only its paradigmatic cases, which are tightly encased by the prejudices of the surrounding culture at the time of its enactment. That speaks to another argumentative move, which is to focus on the paradigmatic meaning of the law. Clearly, what the framers of the Civil Rights Act had in mind and what the dissenters cite and what people think about when you talk about a prohibition of sex discrimination is refusing to hire a woman in a traditionally male job. That’s the paradigm case that you think of. But legal meanings go beyond that. The meanings of words go beyond that. There’s a familiar example. If I talk about a bird, you are going to think about an animal that flies. Everybody, when I say the bird, you have a picture in your head off an animal flying across the room. But you’re not allowed on that basis to conclude that ostriches and penguins are not birds. They are. When you think about sex discrimination, discrimination against gay people is not the first thing that you think about, but it is sex discrimination.

Greg Lambert:  This makes me think back of one of the things that I kind of gathered from Scalia over the years was he was not really about the Constitution being a living document of growing over time.

Andrew Koppelman:  Scalia like to say I am in favor of a Constitution that is DEAD, DEAD, DEAD.

Greg Lambert:  So Okay, good. I was afraid maybe I was going. I had misinterpreted all these years. Um, but it seems almost the way that you know, if you are to read this textualism that the meanings do kind of expand over time. Am I, Am I misreading that?

Marlene Gebauer:  This didn’t seem like dead, dead, dead, You know.

Andrew Koppelman:  Once you’ve got ah, a principle in place, once you’ve got a rule in place, that rule will apply in unforeseen circumstances. That’s true of any rule. Um, well, here is an example. The Court settled a long time ago, with Justice Scalia’s agreement, that the protection of freedom of speech meant the government couldn’t punish actions if they sent a message that the state didn’t like. You can’t punish people for doing something because it sends an unpopular message. And Scalia was fine with that had been settled a long time ago. Then the flag-burning case has come to the Supreme Court. No one who wrote the First Amendment thought about the possibility that someone would burn an American flag as a means of protest. But Scalia had no trouble saying that’s protected by free speech. If free speech means you can’t punish somebody for communicating an idea that the state doesn’t like. And there’s no question that the reason why there were flag desecration laws was because the state was trying to suppress a message of disrespect to the flag. Scalia had no trouble saying, I’m just applying the rule that was already there.

Greg Lambert:  Okay, so it’s not that far fetched of an idea. Then, um, you know, just so that we have ah covered all nine justices. Did the liberal justices have any anything to say in this whole thing? 

Andrew Koppelman:  The liberal judges joined Justice Gorsuch’s opinion and did not write separately. And that was unsurprising.

Greg Lambert:  I’m just picturing Ruth Bader Ginsburg over with a big kettle of popcorn, just watching the show.

Andrew Koppelman:  Justice Ginsburg, of course, is responsible more than anybody else for having the Court aggressively protect against sex discrimination. And Justice Ginsburg has said in the past at oral argument that looked to her like discrimination against gay people was just another form of sex stereotyping. So I will tell you as authors of the amicus brief, we weren’t much worried about the liberals. We thought that they saw the logic of the argument. Well, I think that they also saw something that I still have never gotten a good answer to, which is the way in which the prohibition of anti-gay discrimination furthers the purposes of the statute. If the purpose of the statute is, at its core, to prevent the subordination of women and want to know how does the subordination of women operate? One of the things that maintains the gender binary that punishes people for deviating from the roles traditionally assigned to their sex, is the stigma against homosexuality. I presume that everybody learned this in junior high school, that if you behave in a way that doesn’t stereotypically conform to your sex, anything, if you are a girl who is interested in math or science, you will be labeled as a lesbian. And this is one of the principal ways in which gender conformity is promoted. The relation is about as tight as the relationship between the prohibition of interracial sex and marriage, on the one hand, and racism on the other. And one of the interesting things about this case, something that Justice Alito tried to respond to, is that the arguments that it’s not sex discrimination because both men and women are prohibited from being homosexual, it’s an argument that the Supreme Court in the bad old days, embraced as a reason for upholding prohibitions of interracial marriage. There was a case called Pace v. Alabama in 1883 where the Court upheld a prohibition on interracial marriage. And it said, look, it’s true that blacks aren’t allowed to marry whites, but whites aren’t allowed to marry blacks either. So there’s no race discrimination. And that remained with law for 80 years. Until the Supreme Court struck down laws against interracial sex and marriage and noticed that it’s not possible to punish interracial sex or interracial marriage without noticing what race people are. In fact, if you criminally prosecute people for this, then the race of the defendant is one of the things that the prosecution has to prove to get a conviction. So you’ve got people going to jail because they were black, where they wouldn’t go to jail if they could have proved in court that they were white. It’s obviously race discrimination. I don’t see how this is different,

Sara Harris:  I think I mean, that’s a great point in here. You know, if we are going to go with a textualist approach to figuring out with the standing against individuals, is looking at a class as a whole. It’s not saying, you know, you have to be discriminating against the whole group of women or men in order to violate the statute. It’s because of an individual’s sex and so on. 

Andrew Koppelman:  That’s right. The statute says that you can’t discriminate against an individual. The word individual appears in the language of the statute.

Marlene Gebauer:  So I’ll pose this question to both of you. Is this a one-off situation or do you think this split on textualism will continue to split the conservative judges?

Andrew Koppelman:  This is not the first time that it’s happened, there was that case involving Obamacare that we just talked about where again the judges split on the reading of the text. Ah, so it certainly will happen in the future. Part of the problem is that you take words out of context and you are less constrained. There is more that you can do if you don’t look at the context of words. So I expect that there will be splits like this in the future.

Greg Lambert:  So I know that when decisions like this come down, a lot of people, especially in the LGBTQ plus community, are hoping that now they’ve got a new Justice Kennedy out there. Sara, do they have a new Justice Kennedy?

Sara Harris:  Oh, I would say, Definitely not. Um you know, while this is a major victory. A big difference between what Gorsuch did here, and Kennedy, you know, this decision is not about equality. It’s not a constitutional equal protection case. Um, and so, you know, sort of are lofty goals of fairness and equality don’t come into play here. It really is what does the statute say? You know, it says because those sex you can’t talk about sexual orientation and gender identity without some reference to biological sex. Therefore, everybody is protected by the statute. But this case was not one in which Gorsuch had to consider whether you know, principles of equality or, you know, under the First Amendment, or religious freedom served intersects with protection of sexual identity. So I think I would expect, given his past opinions on issues more in that line that, you know, in future cases, we will not see him become our Kennedy.

Greg Lambert:  Yeah, And what about Robert’s? Ah, it seems like I mean, obviously, people are calling him that I think the first chief justice in 80 years to be the swing vote of the Court when it comes to big social impact, or, you know, uh, decisions that would have a major impact. And I think yesterday we had the Dreamers, the DACA decision that all of a sudden Robert seems to, like, show up in these cases Ah, and find some way whether it’s tax law or some of the administrative law that suddenly appears. Is Roberts, is he really a swing vote or what was What kind of his philosophy do you think?

Andrew Koppelman:  I find it very hard to see an overall pattern to Roberts. There clearly are some places where he gets to a result that he feels he wants to get to. And the legal craftsmanship is very poor. A place where I would say that that is clearest is in the Voting Rights Act case a few years ago where he basically got a Voting Rights Act of 1965 and opened the door to a great deal of voter suppression, which has now been happening in a cascade, particularly in the states of the former Confederacy where the Voting Rights Act was intended to apply. That seems to me to be aggressive judicial activism. I will say, here, well, a couple of things about the Bostock case. One is that his boat wasn’t really needed. So I know he’s not casting the deciding vote here in but DACA case the case of the Dreamers. He did President Trump a huge favor because he stopped Trump from making this issue really salient right before the election. Let’s go back, though, to Gorsuch. It seems to me that Gorsuch does have this in common with Kennedy. Both of them think that gay people are appropriately protected from discrimination under the law. Gorsuch feels that he statutorily constrained where I think the Kennedy it’s clearer in the same-sex marriage case, the Kennedy just I thought it was the right thing. But in his opinion, in the same-sex marriage case, Justice Kennedy was quite careful to say, Look, there are people who oppose same-sex marriage on decent and honorable religious premises, and Gorsuch had a whole page of his opinion saying, Look, there are already in the Civil Rights Act of 1964 really strong protections for religious liberty. So if you want what today seems to be very hard to get through a Legislature, protection of gay people from discrimination with really strong religious accommodations, that’s already there. In Title VII, Title VII says that the not just the religious organizations are allowed to discriminate on the basis of religion. But the statute defines religion to include all aspects of religious observance and practice as well as belief. That’s the language of the statute. That probably means that Catholic schools can continue to exclude people who are in same-sex marriages from being on their faculties. Because they can say, Well, one aspect of religious practice that we expect off our faculty is to follow the church’s teachings about sexual conduct, which means that you can only engage in sexual conduct in heterosexual marriage, and it is pretty clear that Justice Gorsuch would go along with that.

Marlene Gebauer:  So let’s get back to the results of the case and what does this mean for the LGBT community? Is this a total victory, or are there loopholes in this decision?

Andrew Koppelman:  It depends on what you think about these religious accommodations.The fact that religious organizations will still be allowed to discriminate on the basis of sexual behavior, which means that they’ll be able to discriminate against and actively fire people who are in same-sex relations. From one perspective, if you don’t like that, it’s a loophole. If you think that it is okay for religious people to retreat into their cultural enclaves and live by their own rules in there, then it’s not a loophole. It’s just an exception to the coverage of the statute in the same way that you can’t sue the Catholic Church for discriminating against women when it makes people priests.

Sara Harris:  I agree with that entirely, I think, thinking about it from the employment lawyer perspective. How big of a win is this? I’d say it’s a huge win for employees of employers who are not religious organizations. Institutions in that sense scene of the employer is now going to be in most respects unless they assert some sort of religious belief defense going to be bound to allow their workers who work is who they are. You can’t legally require your workers to fracture their identity, conceal their identity while at work. I think that’s a that’s a huge win for employees who do work for religious entities or for an employer who is going to assert that religious freedom to discriminate less of a win.

Greg Lambert:  Yeah, Is this when you say religious entities are these official religious entities that are tied to a specific church or religion? Or can someone say, as the owner of this, with a strong Catholic belief, therefore, I can apply my religious views on this? I mean, it’s kind of kind of what we’ve had in the past,

Sara Harris:  There are avenues for both. Still, in other words, this decision did not touch any of those issues. Um, that the Steven’s case, the funeral home case that actually had been and issue in the lower court. But it was dropped here. And so I think, like Andy said, Gorsuch talks at length about the fact that anybody afraid that this decision is going to impact employers and violate their religious convictions, that how that issue plays out and future remains to be seeking.

Andrew Koppelman:  Look, let me just… The statute, by its terms, applies to religious associations, corporations, educational institutions, and societies. So that I think would be in clearly that are religiously oriented school or our religious organization or club religiously identified, would be exempt from the statute. I don’t think that it would apply to a private corporation. So if a private business, let’s just call it Hobby Lobby for the sake of argument, or Chik-fil-a. Suppose I either of those. So far as I know, neither of those companies, I should say, has ever been accused of discriminating on the basis of sexual orientation and firing gay employees. I’m not aware of that. But if they were, they, I don’t think would be able to argue that they are a religious association or educational institution or a society. So they would need the broader protection of the Religious Freedom Restoration Act, which was also cited by Kavanaugh, which says that any federal law includes a religious accommodation unless denying accommodation would be necessary to a compelling state interest. We don’t know how Kavanaugh would handle that case. Similar cases have risen in state courts, and those courts have uniformly said that prohibiting discrimination is a compelling state interest, so those claims have lost in the lower courts. But I don’t know what a majority of the present Supreme Court would do with that. 

Greg Lambert:  What about government employees and I’m thinking specifically, what about the military? Does this have any effect on the military’s, uh, wouldn’t say ban, but high restrictions against transgender soldiers?

Andrew Koppelman:  I don’t believe Sara’s the employer lawyer, so maybe she can correct me on this. I don’t believe that the Civil Rights Act applies to federal employees.

Sara Harris:  Title seven does not apply to the military, but the federal government does have to abide by non-discrimination laws There just a somewhat different process for

Andrew Koppelman:  Trump’s exclusion of transgender troops has been challenged in court for the absence of a reasoned basis. And I don’t read the DACA opinion, but it’s my impression that the exclusion of transgender troops has even less of a reasoned basis than the rescinding of DACA. What Trump just announced it, and it happened

Sara Harris:  on that point and issue. You know how this might apply with the intersection with the government,  in the fall. I think that the Court is supposed to hear Fulton versus the City of Philadelphia, and that is the case that the First Amendment case but, uh, involves whether religious organizations have the right based on religious belief, to discriminate against same-sex couples. That will be one of watch out for and see if this opinion has any impact on the way that goes.

Greg Lambert:  Andy, you’re writing an amicus on that one?

Andrew Koppelman:  Not yet. There is, ah, a concern that has been raised by people on the right about this decision. They claim that this is the end of separate gender restrooms and locker rooms, because when you exclude somebody from a restroom or locker room on the basis of sex, you are discriminating on the basis of sex. So in response to that, I just want up on note that Justice Gorsuch says in his opinion, that what counts as discrimination is treating a person worse because of sex. I think we should own up to the fact that in the case of sex with locker rooms and with toilets, we really do have a separate but equal regime in the United States, where the presumption is if we tell you to go to this restroom and not that restroom, they are functional equivalents. We are not hurting you. That cannot be said of firing somebody from their job or not giving them a restroom where they can enter safely. That really is treating the worse. And there is the sphere of the conservatives of men marching announced into women’s changing rooms. But actually, I’ve done some research on this, and there actually is only one man in the United States who has been documented as repeatedly marching unannounced into women’s changing rooms. During the Miss America pageant, there was this man who, repeatedly, without any announcement at all marched into the locker room. The changing rooms off young girls, which is really, I hope left and right can agree, a really loathsome things to do to march in on young girls who are at an age where they’re unusually self-conscious about their changing bodies. Is really, a horrible thing to do. The man’s name was Donald Trump. He was one of the sponsors of the Miss America pageant, and as he testified later on, because of his status, he felt that he could do from pretty much whatever he wanted to women. We should keep his example in mind. I am all in favor of using the law to constrain him and the likes of him.

Greg Lambert:  I think that’s the perfect place to end. Andy Koppelman and Sara Harris, thank you very much for taking some time to talk with us about this case,

Marlene Gebauer:  I think this has been a really good discussion.

Sara Harris:  Thank you.

Andrew Koppelman:  Thank you.

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Greg Lambert:  Marlene. It was a great listening to both Andy and Sara discuss this case. That was fun.

Marlene Gebauer:  Yeah. We were so fortunate to have two different perspectives. The academic and the practitioner as well as having someone who co-authored an amicus brief that was actually referenced by the court.

Greg Lambert:  Yeah, that’s pretty cool. Hey, you know, I was just thinking about this. Well, one I’m not sure if we mentioned it in the interview, but even Justice Kavanaugh kind of tipped his hat to the LGBTQ community. Um, congratulating them on a victory and especially how hard the lawyers have fought to extend rights.You know, it’s just I think this is finally the law catching up to their culture, and it’s a good thing, but it as with most things, you gotta protect it. So, congratulations. But it was hard-fought, but you also don’t let your guard down.

Marlene Gebauer: It’s about time. Before we go, we want to remind listeners to take the time to subscribe on Apple Podcasts, Spotify, or wherever you listen to podcasts. Rate and review us as well. If you have comments about today’s show or suggestions for a future show, you can reach us on Twitter at @gebauerm or at @glambert. Or you can call the Geek in Review Hotline at 713-487-7270 or email us at geekinreviewpodcast@gmail.com. And as always the music years from Jerry David DiCicca. Thank you very much, Jerry.

Greg Lambert:  Thanks, Jerry. Bye Marlene.

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