WEBVTT - Justices Appear Divided in Gay Rights Cases 0:00:03.520 --> 0:00:07.040 Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every 0:00:07.120 --> 0:00:09.680 day we bring you insight and analysis into the most 0:00:09.720 --> 0:00:12.200 important legal news of the day. You can find more 0:00:12.240 --> 0:00:16.160 episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud 0:00:16.280 --> 0:00:20.400 and on Bloomberg dot com slash podcasts. The US Supreme 0:00:20.440 --> 0:00:25.079 Court appeared divided on Tuesday over whether federal antidiscrimination law 0:00:25.200 --> 0:00:29.640 protects gay and transgender employees, as the gentice has heard 0:00:29.720 --> 0:00:32.760 arguments in a clash that will define the workplace rights 0:00:32.800 --> 0:00:36.560 of millions of people. Joining me as constitutional law experts, 0:00:36.600 --> 0:00:40.199 Stephen Vladdock, a professor at the University of Texas Law School, 0:00:40.680 --> 0:00:44.360 Steve these were three separate cases, but with one legal 0:00:44.440 --> 0:00:48.520 issue under Title seven. All three cases revolve around Title 0:00:48.600 --> 0:00:50.680 seven of the Civil Rights Act of nineteen sixty four, 0:00:51.120 --> 0:00:53.680 really one of the most important pieces of legislation commerce 0:00:53.720 --> 0:00:56.080 has ever enacted, that is, I think most similiar to 0:00:56.200 --> 0:01:00.280 us as the central employment discrimination law in the country. 0:01:00.440 --> 0:01:04.680 Entitle seven basically prohibits most employers, basically every business with 0:01:04.760 --> 0:01:07.240 more than you know, a small number of employees, from 0:01:07.240 --> 0:01:11.480 discriminating against their employees on the basis of, among other things, sex. 0:01:11.959 --> 0:01:14.360 We've understood for as long as Title seven has been 0:01:14.400 --> 0:01:17.199 on the books that sex means you can't fire someone 0:01:17.319 --> 0:01:19.680 because they're a woman, or even because they're a man. 0:01:19.959 --> 0:01:22.679 The question in all three of these cases is does 0:01:22.720 --> 0:01:25.720 that also mean you can't fire someone because they are 0:01:26.040 --> 0:01:28.959 of a particular sexual orientation? Does that mean you can't 0:01:28.959 --> 0:01:33.760 fire someone because they identify as a particular transgender status, 0:01:33.800 --> 0:01:35.959 that they have a gender identity that might differ from 0:01:36.200 --> 0:01:39.040 what you perceive their biological sex to be. And so 0:01:39.080 --> 0:01:42.400 basically it's all about the meaning of sex. I understood 0:01:42.560 --> 0:01:47.200 that the plaintiffs part of their argument was appealing to 0:01:47.240 --> 0:01:50.040 the text of the statute in order to get some 0:01:50.120 --> 0:01:53.680 of the textualists on the court on their side. Definitely right. 0:01:53.720 --> 0:01:55.360 So I think one of the things that's really interesting 0:01:55.360 --> 0:01:57.840 about this case is that in a world in which 0:01:57.880 --> 0:02:01.520 we were all just pure formal sextualists, the law would 0:02:01.560 --> 0:02:04.600 actually seem to be pretty favorably on the side of 0:02:04.640 --> 0:02:06.960 the employees of the challengers here, of those who are 0:02:07.040 --> 0:02:10.000 arguing the Title seven should extend a discrimination on the 0:02:10.040 --> 0:02:13.640 basis of sexual orientation or transgender status. I think the 0:02:13.680 --> 0:02:16.160 problem that arose and that we saw from the oral 0:02:16.280 --> 0:02:20.040 argument on Tuesday morning, is that the justices, I think 0:02:20.080 --> 0:02:23.640 are not necessarily quite the fervent committed textualists that they 0:02:23.680 --> 0:02:26.120 always put themselves out to be. Let's explain it a 0:02:26.120 --> 0:02:31.400 little bit, because so Justice Scalia was known as a textualist. 0:02:31.520 --> 0:02:33.959 He was the sort of almost a leader, the father 0:02:34.080 --> 0:02:37.560 of the movement, and Justice cour Sauch is supposed to 0:02:37.600 --> 0:02:40.600 be one of those who follow Scalia. Yeah, I mean, 0:02:40.600 --> 0:02:43.440 I think the idea behind textualism and the animated principle 0:02:44.080 --> 0:02:46.000 is that when the words of a statute are clear, 0:02:46.160 --> 0:02:50.679 there's just nothing appropriate in looking behind those words. Basically 0:02:50.680 --> 0:02:53.680 that the words should be the first place the courts look, 0:02:53.919 --> 0:02:55.519 and if the words are clear, to be the last 0:02:55.560 --> 0:02:57.440 place they look. And you know, I think what the 0:02:57.440 --> 0:03:00.280 plaintifts are arguing in these cases is that if you 0:03:00.320 --> 0:03:03.200 look at it through that lens, it's pretty obvious that 0:03:03.280 --> 0:03:07.160 discriminated on the basis of sex um means discriminated on 0:03:07.200 --> 0:03:10.280 the basis of anything have him to do with your 0:03:10.400 --> 0:03:15.560 sexual identity, with your biological sex, your sexual orientation, your 0:03:16.320 --> 0:03:19.840 transgender status, and so the that's why they think that 0:03:19.919 --> 0:03:22.600 this case could and should be decided slewly on the 0:03:22.600 --> 0:03:25.680 basis of text at least based on the question, and 0:03:25.720 --> 0:03:28.280 I think or arguments on Tuesday. You know, some of 0:03:28.320 --> 0:03:31.280 the more conservative justices seem to have real concerns about that. 0:03:31.680 --> 0:03:33.600 And I thinks the larger point their june is that, 0:03:33.919 --> 0:03:36.080 you know, for all the talk about textualism, I think 0:03:36.200 --> 0:03:39.440 justices tend to be um, for lack of a better word, 0:03:39.520 --> 0:03:43.040 not entirely consistent about when they are faithful to that 0:03:43.120 --> 0:03:46.480 principle above everything else. And one other considerations you know, 0:03:46.560 --> 0:03:50.560 may and do factor into play. Justice COURSEU asked whether 0:03:50.560 --> 0:03:54.320 the Court shouldn't leave matters to Congress, saying the Court's 0:03:54.360 --> 0:03:58.400 decision could lead to massive social upheaval, So he's really 0:03:58.440 --> 0:04:02.320 looking way beyond the text. Yeah, I mean, I think, 0:04:02.360 --> 0:04:04.520 you know, the notion that the Court should leave the 0:04:04.520 --> 0:04:08.320 decision of Congress, I think ignores the very possible answer 0:04:08.480 --> 0:04:11.520 that Congress has already resolved this issue. Um. You know, 0:04:11.560 --> 0:04:15.000 there's no question that when it comes to statutory interpretation, UM, 0:04:15.120 --> 0:04:17.840 the Court's job is to act basically as the faithful 0:04:17.960 --> 0:04:21.560 agent of the legislature. And the question here is whether Congress, 0:04:21.600 --> 0:04:23.960 when it wrote that language into the statute, you know, 0:04:24.160 --> 0:04:26.680 would have had a hard time believing that as our 0:04:26.800 --> 0:04:32.360 understandings of sex based discrimination evolved that those understandings would 0:04:32.360 --> 0:04:36.200 also be reflected um in what Title seven prohibits. You know, 0:04:36.320 --> 0:04:38.760 I think the notion that we should pump this back 0:04:38.800 --> 0:04:42.240 to Congress um may be attractive to the justices as 0:04:42.240 --> 0:04:44.960 a dodge, but I think it's inconsistent with the notion 0:04:45.040 --> 0:04:48.359 that we can you know, resolve these cases many times 0:04:48.600 --> 0:04:51.479 by just looking at what the words say. Now, what 0:04:51.600 --> 0:04:54.800 has the trend been in the courts of late in 0:04:54.839 --> 0:04:58.599 the lower courts as far as the interpretation of the 0:04:58.640 --> 0:05:02.520 word six in the so yeah, I mean, part of 0:05:02.520 --> 0:05:04.320 how these cases got to the Supreme Court is the 0:05:04.360 --> 0:05:07.239 lower courts have actually divided, at least in the context 0:05:07.320 --> 0:05:11.080 of sexual orientation UM. There actually hasn't been nearly as 0:05:11.160 --> 0:05:14.520 much percolation on the question of transgender status. I mean, 0:05:14.560 --> 0:05:17.400 I think, you know, courts are relatively new to the 0:05:17.440 --> 0:05:20.839 problem of how to map onto you know, gender identity 0:05:21.279 --> 0:05:25.920 UM and non binary gender status UM sort of relatively 0:05:26.000 --> 0:05:29.400 classical constructions of of sex UM. But you know, the 0:05:29.440 --> 0:05:32.800 lower courts I think have been more um skeptical. I 0:05:32.839 --> 0:05:35.840 think of of extended Title seven to the transgenderal context. 0:05:36.240 --> 0:05:38.240 I think part of what's interesting about the Supreme Court 0:05:38.279 --> 0:05:40.919 here is there was no question that the Supreme Court 0:05:41.200 --> 0:05:43.640 really was going to have to step in, at least 0:05:43.680 --> 0:05:47.320 on the sexual orientation cases, because the lower courts had divided. 0:05:47.640 --> 0:05:50.640 The Court really reached out to take up the transgender 0:05:50.640 --> 0:05:53.320 status case. Um. There really had not been the full 0:05:53.400 --> 0:05:55.800 kind of development in the lower courts that we usually 0:05:55.839 --> 0:05:58.120 see before the Supreme Court weighs in. And you know, 0:05:58.160 --> 0:06:00.679 I think some speculation there is that maybe the Court 0:06:00.960 --> 0:06:03.640 thought it could split the difference um and hold the 0:06:03.640 --> 0:06:05.839 Title seven extends to one of those class of cases 0:06:05.880 --> 0:06:08.200 but not the other. You know, I did not see 0:06:08.240 --> 0:06:12.240 a lot in the argument transcript from Tuesday suggesting that 0:06:12.240 --> 0:06:14.320 the Justices are looking at the cases that way. They 0:06:14.360 --> 0:06:16.480 may end up there, but at least, you know, based 0:06:16.480 --> 0:06:18.239 on the arguments, they seem to be, you know, viewing 0:06:18.279 --> 0:06:21.160 all three of these cases as rising and falling on 0:06:21.200 --> 0:06:24.520 the same arguments. Is this case a test of whether 0:06:24.720 --> 0:06:28.719 Justice Kennedy's legacy in terms of gay rights will survive 0:06:28.920 --> 0:06:33.040 a more conservative court. I think this case certainly is 0:06:33.640 --> 0:06:36.920 a very important referendum on how the Supreme Court looks 0:06:36.960 --> 0:06:39.640 after Justice Kennedy. You know, I think folks um. Probably 0:06:39.640 --> 0:06:42.920 will remember that one of Justice Kennedy's real I think 0:06:43.080 --> 0:06:46.919 visible contributions UM was writing for a majority, the majority 0:06:46.960 --> 0:06:49.200 of the Court and just about all of the Court's 0:06:49.320 --> 0:06:51.400 major decisions in the area of gay rights. I mean, 0:06:51.440 --> 0:06:55.960 from Roman versus Evans to Lawrence versus Texas, to Windsor 0:06:56.000 --> 0:06:58.400 which struck down Doma to a burgher Fell in gay marriage. 0:06:58.400 --> 0:07:01.800 Those are all opinions by Justice Kennedy. These cases are 0:07:01.800 --> 0:07:05.240 a little different June, because these are statutory cases, UM, 0:07:05.480 --> 0:07:07.480 But you know, the implications I think are at least 0:07:07.520 --> 0:07:09.880 as profound um. And so yeah, I mean, I do 0:07:10.000 --> 0:07:14.480 think that if the Court ends up not um treating 0:07:14.600 --> 0:07:19.400 sexual orientation UM and or transgender status as sex based 0:07:19.400 --> 0:07:22.160 discrimination for persons the title seven, I think that really 0:07:22.160 --> 0:07:24.040 will be a sign of you know, a sign of 0:07:24.080 --> 0:07:26.880 the times of a post Kennedy court. On the flip side, 0:07:26.920 --> 0:07:28.920 I mean, if the Court ends up agreeing with the 0:07:28.960 --> 0:07:31.280 planeffs here, UM, I think that I'll be as signed of, 0:07:31.400 --> 0:07:33.480 perhaps of how much of the Court itself has moved, 0:07:33.760 --> 0:07:37.480 maybe because of Justice Kennedy's contributions. Can you tell it 0:07:37.560 --> 0:07:41.960 all or venture a guess from reading the transcript as 0:07:42.000 --> 0:07:45.400 to which way they'll come down. You know. I sometimes 0:07:45.400 --> 0:07:47.760 you really can go through a Supreme Court transcript and 0:07:47.760 --> 0:07:50.160 have a pretty good feel for how the courts can rule. 0:07:50.200 --> 0:07:51.880 I don't really see it here. I mean, I think 0:07:52.160 --> 0:07:55.040 it's pretty clear that it's going to be sharply divided. UM. 0:07:55.080 --> 0:07:57.040 I think it's a pretty safe bet that, you know, 0:07:57.080 --> 0:07:59.360 the four progressive justices are likely going to side with 0:07:59.400 --> 0:08:03.320 the planets at least in the sexual orientation case. UM. 0:08:03.360 --> 0:08:05.160 You know, maybe they'll try to split the difference with 0:08:05.160 --> 0:08:08.240 some of their conservative colleagues. I think it's almost certain that, 0:08:08.320 --> 0:08:11.320 you know, at least three of the conservatives um will 0:08:11.360 --> 0:08:14.320 side with the employers in both cases. And I think, 0:08:14.360 --> 0:08:16.880 you know, the real question becomes, what about you know, 0:08:16.920 --> 0:08:20.760 the the justices who really are increasingly in the median um, 0:08:20.800 --> 0:08:23.200 if not in the middle, And that's you know, Justice Gorstch, 0:08:23.600 --> 0:08:26.560 Chief Justice Roberts, maybe Justice Kavanaugh, and I just you know, 0:08:26.640 --> 0:08:29.000 I don't know that we can have any confidence from 0:08:29.040 --> 0:08:31.600 the transcript how really any of those three are going 0:08:31.640 --> 0:08:35.640 to vote in these cases. Finally, the Trump administration was 0:08:35.840 --> 0:08:38.120 fighting on both sides of the issue in this case. 0:08:38.320 --> 0:08:40.520 The e o C on one side, and the Justice 0:08:40.520 --> 0:08:43.040 Department on the other So yeah, I mean the you know, 0:08:43.040 --> 0:08:45.520 this happens sometimes where you have you know, government units 0:08:45.520 --> 0:08:48.360 that have independently degating authority that have their own position, 0:08:48.400 --> 0:08:50.760 And the e o C historically has actually been a 0:08:50.920 --> 0:08:54.320 leader in this space, whereas the Justice Department, I think, 0:08:54.400 --> 0:08:57.920 was you know, quite aggressively pushing on behalf of the 0:08:58.040 --> 0:09:00.760 employers in these cases. You know, I think that's not 0:09:01.240 --> 0:09:03.520 unheard of, although it's always a little awkward when you 0:09:03.559 --> 0:09:05.960 see it. Um you know, where you see the sort 0:09:05.960 --> 0:09:09.240 of the agency tapped with actually enforced them our employment 0:09:09.320 --> 0:09:11.960 laws coming out one way, and the Justice Department is saying, 0:09:12.000 --> 0:09:14.319 you know, no, you shouldn't. I don't know that that's 0:09:14.320 --> 0:09:16.480 going to tip the scales, you know in these cases. 0:09:16.520 --> 0:09:19.959 I think the justices don't need the help. Um that really, 0:09:19.960 --> 0:09:21.240 I think what this is going to come down to 0:09:22.200 --> 0:09:26.400 is as between really what should be a relatively straightforward 0:09:26.440 --> 0:09:31.120 case under you know, modern textualism, and the concerns that 0:09:31.160 --> 0:09:33.240 you know, Justice course has alluded to it. The argument 0:09:33.640 --> 0:09:36.360 which way the justices are gonna go? Um, anyone who 0:09:36.360 --> 0:09:39.080 knows for sure? I think because is either you know, 0:09:39.640 --> 0:09:42.760 one of those justices or is selling something. Thanks Steve 0:09:42.960 --> 0:09:46.160 that's Stephen Vladdock, Professor at the University of Czexis School 0:09:46.200 --> 0:09:50.199 of Law. Thanks for listening to the Bloomberg Law Podcast. 0:09:50.559 --> 0:09:54.640 You can subscribe and listen to the show on Apple Podcasts, SoundCloud, 0:09:54.720 --> 0:09:58.600 and on bloomberg dot com slash podcast. I'm June Brosso. 0:09:59.080 --> 0:10:02.120 This is Bloo bird ter.