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Doron M. Kalir*

11 Wake Forest L. Rev. Online 42

In the short time since its release, Bostock v. Clayton County[1] has well-earned its self-praise as “simple and momentous.”[2]  The opinion, which holds that Title VII of the Civil Rights Act of 1964 applies to homosexuals and transgender persons in the workplace, instructs employers nationwide that discrimination against LGBTQ employees solely “because of [their] sex” is no longer legal.[3]

The Court’s 6:3 opinion is unique in several ways. For one, its author—Justice Neil Gorsuch—was not known for his affinity for LGBTQ rights.[4]  For another, it was joined by Chief Justice Roberts, a first for a conservative who was previously reluctant to expand LGBTQ rights.[5]  Most importantly, while the Court was split as to the result, all three opinions claimed to have relied on the same statutory interpretation theory—textualism.  That claim was not entirely persuasive, however, as the three opinions not only differed markedly but were contradictory at times.  Surely such diversity of conclusions, all allegedly stemming from the same interpretive theory applied to the same statutory language, would lead to some form of intramural textualist controversy.[6] 

And controversy it was.  In his dissenting opinion, Justice Alito (joined by Justice Thomas) castigated the majority opinion as nothing short of “a pirate ship . . . sail[ing] under a textualist flag . . . [but] actually represent[ing] . . . a theory of statutory interpretation that Justice Scalia excoriated—the theory that courts should ‘update’ old statutes so that they better reflect the current values of society.”[7]  Justice Kavanaugh,  in his dissent, claimed that the majority opinion took a “literalist,” rather than a textualist, approach.[8]  In his words, this approach “simply split statutory phrases into their component words, look[ed] up each in a dictionary, and then mechanically put them together again.”[9]  He, too, invoked Justice Scalia’s real interpretive method as the complete opposite of the majority’s opinion, accusing the Court of “miss[ing] the forest for the trees.”[10]

This Article would leave others to resolve the “holy-grail” question of which opinion—if any—best represents Justice Scalia’s “true legacy.”[11]  The aim of this short Article is entirely different: The Bostock majority opinion, it argues, was so convincing not because it was the product of a particular interpretive theory, but because it was a product of formal logic.  The reason both Chief Justice Roberts (who never before agreed to grant meaningful rights to LGBTQ members) and Justice Ruth Bader Ginsburg (whose life mission was to guarantee equality in the workplace to all) have joined the opinion in full was precisely because it was built on the sound foundations of deductive reasoning, rather than the more dubious ones of “textualism.”

 Justice Gorsuch’s opinion, in fact, is written more as an exercise in formal logic than a typical legal opinion.[12]  While paying lip service to textualism, the opinion actually erects a well-reasoned logical structure—complete with sound definitions, logical model, and several hypothetical and actual applications.  Indeed, so solidly built and so well-defended is that structure that neither an institutional conservative nor a liberal icon saw reason to add a single brick to it.  Even more, the attempts by both Justice Alito and Justice Kavanaugh to undermine its foundations (in their dissents) merely emphasize—rather than weaken—its stability.  In short, Justice Gorsuch wrote—in the words of Justice Kagan honoring Justice Scalia—“with the elegance of a mathematical proof.”[13] 

This short Article proceeds as follows: Part I presents the assumptions and definitions that guided Justice Gorsuch in building his Model.  Part II discusses the theorem at the heart of the Model, and its main logical strength.  Part III analyzes eight hypotheticals appearing in the opinion—some in response to questions presented during oral argument—and their relation to the Model.  Part IV applies the Model to three previous Court cases dealing with Title VII discrimination.  Part V applies the Model to the cases at hand.  Finally, Part VI will claim that the logical approach—as opposed to one grounded in politically-identified ideology—is much superior to authoring judicial opinions in general, and especially those expanding statutory and constitutional rights. 

  1. Assumptions & Definitions

Title VII of the Civil Rights Act of 1964 states, in relevant part:

It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.[14]

The question presented in Bostock was whether this language outlaws workplace discrimination against LGBTQ employees “simply for being homosexual or transgender.”[15]

Justice Gorsuch opens his opinion with a positive conclusion: “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex.  Sex plays a necessary and undistinguishable role in the decision, exactly what Title VII forbids.”[16] 

The Justice then reverse engineers the process that led him to that conclusion.  While not saying so specifically, he relies entirely on a formal logic model (“Model”).  Such Model begins, naturally, with formal assumptions and definitions later used in the Model.  Here is a formal presentation of these assumptions:

Let α be “sex”—which is defined for the purposes of this Model as the “biological distinctions between male and female.”[17]

Let ~ α (“not α[18]) refer to a more expansive definition of sex, including “at least some norms concerning gender identity and sexual orientation.”[19]

Let ß be “because of”—which is defined here as a “but-for” test: “[A] but-for test directs us to change one thing at a time and see if the outcome changes.  If it does, we have found a but-for cause.”[20]  For purposes of Title VII, this standard means that “a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment decision.  So long as the plaintiff’s sex was one but-for cause of that decision, that is enough to trigger the law.”[21]  Thus, sex may not be “the only factor, or maybe even the main factor [in the decision to discriminate], but [may still constitute] one but-for cause,” which is enough to satisfy the definition.[22]

Let ~ ß (“not ß”) refer to either “solely” or “primarily because of”—two more restricting standards favored by other acts of Congress but avoided here: “If anything, Congress has moved in the opposite direction . . . [toward] a more forgiving standard.”[23]

Let γ be “discriminate against any individual [employee]”—which is defined here as “treating that individual [employee] worse than others who are similarly situated . . . intentionally.”[24]  It should be noted the label, title, or reason given to such discriminatory practice is not relevant for purposes of this definition; what matters is the finding of a discriminatory practice.[25]

Let ~ γ (“not γ”) refer to discrimination against groups of people, as opposed to individual employees.  Indeed, Justice Gorsuch asserts the Act “tells us three times—including immediately after the words ‘discriminate against’—that our focus should be on individuals.”[26]  And, obviously, “individuals are distinguished from a class, species, or collection.”[27]

II. The Theorem

Based on the previous assumptions, Justice Gorsuch arrives at the following conclusion: “An employer violates Title VII when it intentionally fires an individual employee” (γ), and that decision is “based in part” (ß) “on sex” (α).[28]  In more formal terms, a violation (V) of Title VII occurs whenever a court finds all three components (γ, ß, and α) present, such that:

If γ & ß & αthen V (Major Premise)

Thus, “if the employer intentionally relies in part [(ß)] on an individual employee’s sex [(α)] when deciding to discharge the employee” (γ), then Title VII is violated (V).[29]

So far, the proposition seems unremarkable.  All previous Title VII cases would rest comfortably on these—or similar—assumptions.  It is then that Justice Gorsuch adds the logical lynchpin on which his entire case—and logical edifice—relies: For purposes of the Act, Justice Gorsuch holds discrimination based on sex is equal to (and identical with) discrimination based on sexual orientation or sexual identity.[30]

The reason for that is simple: “[I]t is impossible to discriminate against a person for being a homosexual or transgender[31] without discriminating against that person based on sex.”[32]  Indeed, “homosexuality and transgender status are inextricably bound up with sex.”[33]  Therefore, “discrimination on [homosexuality and transgender] grounds requires an employer to intentionally treat individual employees differently because of sex.”[34]  Thus, even if the employer’s “ultimate goal might be to discriminate [solely] on the basis of sexual orientation,” in order to achieve that goal “the employer must, along the way, intentionally treat an employee worse based in part on that individual’s sex.”[35]  Accordingly, “[w]hen an employer fires an employee for being homosexual or transgender, it necessarily and intentionally discriminates against that individual in part because of sex.  And that is all Title VII has ever demanded to establish liability.”[36]

If we let H refer to homosexual or transgender employees, then the following equivalency emerges:

γ & ß & α = γ & ß & H (Minor Premise)

Therefore: if γ & ß & Hthen V (Q.E.D.)[37]

III.   The Hypotheticals

Throughout his opinion, Justice Gorsuch tests the validity of his Model with a variety of hypotheticals.  One by one, he demonstrates how it can apply to a variety of scenarios.  Below are some of those scenarios, transcribed to formal form. 

Hypo # 1: Assume “an employer fires a woman for refusing his sexual advances.”[38]     Could the employer defend himself by arguing that “he gives preferential       treatment to female employees overall”?[39]

If the “group” definition (~ γ) prevails, then an employer could plausibly so argue.  But since γ is defined as the opposite of (~ γ)—that is, discrimination against an individual is not the same as discrimination against a group—the argument fails: The employer “is liable for treating this woman worse [(γ)] in part because of [(ß)] her sex [(α)].”[40]  Since all three components are present, we have a violation (V).

Hypo # 2: Assume “an employer . . . fires a woman, Hannah, because she        is insufficiently feminine and also fires a man, Bob, for being insufficiently   masculine.”[41]  Could the employer defend himself by arguing that he discriminates          (equally) against both men and women “because of sex?”[42]

If the “group” definition (~ γ) prevails, then an employer could plausibly so argue.  But since γ is defined as discrimination against an individual, this argument fails: “[I]n both cases the employer fires an individual [(γ)] in part because of [(ß) their respective] sex [(α)].  Instead of avoiding Title VII exposure, th[e] employer doubles it.”[43]  Thus, since we have two instances of all three components present, we have two violations (V*2).  Or, in less formal terms, two wrongs do not make a right.

Hypo # 3: Assume “an employer with two employees, both of whom are           attracted to men.  The two individuals are, to the employer’s mind, materially         identical in all respects, except that one is a man and the other a woman.”[44]

If the employer fires the male employee [(γ)] for no reason other than [(ß)] the fact that he is attracted to men [(H)], the employer discriminates against him [(γ) but] for [(ß)] traits or actions it tolerates in his female colleague [(α)].”[45]  Thus, a violation (V) occurs.  

Hypo # 4: Assume “an employer who fires a transgender person who was        identified as a male at birth but who now identifies as a female.”[46]

“If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes [(γ)] a person identified as male at birth [but] for [(ß)] traits or actions that it tolerates in an employee identified as female at birth [(α)].”[47]  Again, since all components are present, we have a violation (V).

Hypo # 5: Assume “an employer who fires a female employee [(γ)] [but] for [(ß)           her] tardiness or incompetence or simply supporting the wrong sports team.”[48]

Clearly, missing from that example is any action related to her sex (α); thus, there is no violation of Title VII: If (γ) & (ß) but no (α), then no (V).

Hypo # 6 (The “Multiple Causes” Scenario): Assume “an employer with a policy          of firing any woman he discovers to be a Yankees fan.”[49]

If the employer would have tolerated the same allegiance in a male employee, then a violation has occurred: “Carrying out that rule [(γ)] because [(ß)] the employee is a woman [(α)] and a fan of the Yankees”[50] still constitutes a violation since all the conditions for the occurrence of (V) have been met, and the addition of the new (random) cause for firing does not change the analysis.  Thus, if we mark “random cause for firing” as R, then if γ & ß & α & R–then (still) V.

The same is true for firing homosexuals or transgender (H) employees:

When an employer fires an employee because she is homosexual or transgender, two causal factors may be in play—both the individual sex and something else (the sex to which the individual is attracted or with which the individual identifies).  But Title VII doesn’t care.  If an employer would not have discharged an employee [(γ)] but for [(ß)] that individual’s sex [(α)], that statute’s causation standard is met, and liability may attach.[51]

Hypo # 7 (The “Equal Treatment” Scenario): Assume an employer is   “equally happy to fire male and female employees who are homosexual or    transgender.”[52]

Since “the law makes each instance of discriminating against an individual employee [(γ)] because of [(ß)] that individual’s sex [(α)] an independent violation of Title VII [(V)],” then Title VII liability will be attached.[53] 

Recall Hypo # 2 (“Hannah and Bob”): “So just as an employer who fires both Hannah and Bob for failing to fulfill traditional sex stereotypes doubles rather than eliminates Title VII liability, an employer who fires both Hannah and Bob for being gay or transgender does the same.”[54]

Hypo # 8 (The “Check the Box” Scenario): Assume “an employer asked homosexual or transgender applicants to tick a box on its application form.  The employer then had someone else redact any information that could be used to discern sex.”[55]  Thus, the employer does not know the applicant’s sex, but does know they are homosexual or transgender, which is the reason for the discrimination against them.  Can the employer argue that since it doesn’t know the applicant’s sex, there is no discrimination “based on sex?”[56]

The answer is “no” and relies on the definitions of both “because of” (ß) and “sex” (α).[57]  The employer still must consider the applicant’s sex before deciding to discriminate against them:

Change the hypothetical ever so slightly and its flaws become apparent. Suppose an employer’s application form offered a single box to check if the applicant is either black or Catholic.  If the employer refuses to hire anyone who checks that box, would we conclude the employer has complied with Title VII, so long as it studiously avoids learning any particular applicant’s race or religion?  Of course not: By intentionally setting out a rule that makes hiring turn on race or religion, the employer violates the law, whatever he might know or not know about individual applicants.[58]

The same holds here . . . .  [T]here is no way an employer can discriminate against those who check the homosexual or transgender box without discriminating [(γ)] in part because of [(ß)] an applicant’s sex [(α)].  By discriminating against homosexuals [(H)], the employer intentionally penalizes men for being attracted to men and women for being attracted to women.  By discriminating against transgender persons, the employer unavoidably discriminates against persons with one sex identified at birth and another today.  Any way you slice it, the employer intentionally refuses to hire applicants in part because of the affected individuals’ sex, even if it never learns any applicant’s sex.[59]

IV.   Applying the Model to Previous Cases

Once Justice Gorsuch established the Model’s application on some hypothetical examples, he turned to apply the Model to actual cases.  Specifically, he applies the Model to the three previous Title VII “because of sex” Court cases.[60]  Below is a short description of each, coupled with a Model application.

In Philips v. Martin Marietta Corp.,[61] “a company allegedly refused to hire women with young children, but did hire men with children the same age.”[62]  The company made two arguments: First, the “discrimination depended not only on the employee’s sex as a female but also on the presence of another criterion—namely, being a parent of young children”; second, the company argued that “as a whole, it tended to favor hiring women over men.”[63]  Both arguments fail under Bostock’s logic.

The first argument fails because, as we have seen in Hypo # 6, the fact that another random cause for firing (R) is added—here, having young children—does not change the result that all three other components—discrimination (γ) because of (ß) sex (α)—are present. Thus, a violation (V) is triggered.

The second argument fails because, as we have seen in Hypo # 1, the “group definition” as target of the discrimination has been rejected (~ γ).  Therefore, the fact that the employer prefers (or targets) women as a class does not alter the triggering of a violation (V), so long as an individual employee has been targeted.

In Los Angeles Department of Water v. Manhart,[64] “an employer required women to make larger pension fund contributions than men.”[65]  The employer, trying to justify the discrimination, relied on “what appeared to be a statistically accurate statement about life expectancy” in claiming that women “are likely to receive more from the pension fund over time.”[66]

The employer’s argument fails under the Model.  As we have seen in Hypo # 1, the fact that the employer favored (in its mind) women as a group (~ γ), does not change the fact that it discriminated against individual female employees (γ) because of (ß) their sex (α), thus triggering a violation (V).

In Oncale v. Sundowner Offshore Services, Inc.,[67] “a male plaintiff alleged that he was singled out by his male co-workers for sexual harassment.”[68]  The employer presented three arguments: First, since the discrimination was conducted by “members of the same sex” then no violation was triggered; second, “men as a group were [never] subject to discrimination”; and third, that something else, “in addition to sex contributed to the discrimination, like the plaintiff’s conduct or personal attributes.”[69]  All three arguments fail Bostock’s logic.

The first argument fails because, as we have seen in the definition of “discrimination against [an individual] employee,”[70] (γ), so long as an individual employee was intentionally treated worse than other employees—which all agreed had happened here—then the identity or sex of those who caused such treatment are irrelevant for the purposes of triggering a violation (V).

The second argument also fails because, as demonstrated in Hypo # 1, the fact that men as a group (~ γ) were not discriminated against does not change the fact that the employer did discriminate against an individual male employee (γ) because of (ß) his sex (α), thus triggering a violation (V).

Finally, the third argument fails because, as we have seen in Hypo # 6, the fact that another random cause for discrimination (R) is added—here, the employee’s attributes—does not change the result that all three required factors, namely discrimination (γ) because of (ß) sex (α), are present, thus triggering a Title VII violation (V).

V.    Applying the Model to the Cases at Hand

When it comes to the cases at hand, Justice Gorsuch first noted that the employers in all three cases “do not dispute that they fired the plaintiffs for being homosexual or transgender.”[71]  Thus, it follows inevitably that all three components of the Model are present: The employers have fired the plaintiffs (γ) because of (ß) their sexual orientation or sexual identity (H), therefore triggering a Title VII violation (V).  (Recall that if γ & ß & H—then V.)  The inquiry, then, seems to have come to a sudden end. 

What, then, was left for employers to argue?

First, the employers tried to attack the minor premise of the theorem (equating “γ & ß & α” with “γ & ß & H”).  But since their arguments were not rooted in logic, but rather in conversational norms, these arguments were quickly dismissed.[72]

Second, the employers tried to suggest that component (ß)—the “because of” causal connection—was not satisfied in these cases because the discriminatory actions were not “intentional.”[73]  Justice Gorsuch’s answer, based on (ß)’s definition, was swift:

[A]s we’ve seen, an employer who discriminates against homosexual or transgender employees necessarily and intentionally applies sex-based rules.  An employer that announces it will not employ anyone who is homosexual, for example, intends to penalize male employees for being attracted to men, and female employees for being attracted to women.[74]

The third argument made by the employers was that unlike “sex,” the terms “homosexuality” or “transgender status” were not included in the text of Title VII: The employers argued that because Congress never included those terms in the Act, they were “implicitly excluded from Title VII’s reach.”[75]  This argument was not only adopted by, but also served as, the main impetus to the two dissenting opinions by Justices Alito[76] and Kavanaugh.[77]  Justice Gorsuch’s response at this point is as predictable as it is sound.  Referring to his Model’s minor premise, he quips: “As we’ve seen, discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.”[78] 

Finally, the employers tried to attack the causal connection component—“because of.”[79]  As Justice Gorsuch summarized the issue: “At bottom, the employers’ argument unavoidably comes down to the suggestion that sex must be the sole or primary cause of an adverse employment action for Title VII liability to follow.  And, as we’ve seen, that suggestion is at odds with everything we know about the statute.”[80]  In other words, the employers tried to use (~ ß) to establish that there was no liability; but the very definition of (ß) rejected that assumption, and therefore a violation (V) occurred.

VI.   Conclusion

Justice Gorsuch’s opinion in Bostock is close to a logical masterpiece. To be sure, this was not always the case with Justice Gorsuch’s other opinions.[81]  But there is value—well beyond this specific case—in writing opinions in a similar, formal-logic, fashion.  For one, logic is universal.  It transcends ideological camps and may create interesting coalitions (such as in this case).  Second, a logic-based opinion—as opposed to, say, a “textualist” or “purposive” opinion—serves an important function in directing courts below, as well as future litigants.  The more logic-based opinions, the less confusion and uncertainty below.  Finally, Bostock was a seminal decision, granting rights previously denied to LGBTQ members.  Title VII LGBTQ cases—which are prone to invite criticism from those who oppose such grant—would likely be more widely received if properly rested on the neutral basis of logic, rather than on a theory more closely identified with one ideological camp or another.

* Cleveland-Marshall College of Law, Cleveland-State University.  This Article owes a great debt to a series of conversations with Professor Avidan Cover.  I would also like to thank Michael Borden, Chris Sagers, and Jonathan Witmer-Rich for their careful reading of and wise comments on an earlier version of this Article.  

      [1].   140 S. Ct. 1731 (2020).

      [2].   Id. at 1741.

      [3].   Id. at 1754 (“An employer who fires an individual merely for being gay or transgender defies the law.”). See also 42 U.S.C. § 2000e-2(a)(1).

      [4].   See, e.g., Drew Anderson, What a Justice Neil Gorsuch Would Mean for LGBTQ Americans, GLAAD (Jan. 31, 2017), https://www.glaad.org/blog/what-justice-neil-gorsuch-would-mean-lgbtq-americans (Justice Gorsuch’s profile on GLAAD’s (Gay & Lesbian Alliance Against Defamation) website cataloging several statements and judgments made against LGBTQ interests prior to Bostock).  

      [5].   See, e.g., Obergefell v. Hodges, 576 U.S. 644, 686 (2015) (Roberts, C.J., dissenting); United States v. Windsor, 570 U.S. 744, 775 (2013) (Roberts, C.J., dissenting).

      [6].   Arguably, Bostock is even more unusual in its textualist controversy than District of Columbia v. Heller, 554 U.S. 570 (2008) was in its originalist controversy, as Justice Stevens (who wrote the dissent in Heller) was never an avowed originalist, while all three authors in Bostock are self-proclaimed textualists.  Was that action hould be the longest portion)ases, ying the issue, moving the rule, applying what you have studied, and then – a

      [7].   Bostock, 140 S. Ct. at 1755–56 (Alito, J., dissenting).

      [8].   Id. at 1827–28 (Kavanaugh, J., dissenting).

      [9].   Id. at 1827.

     [10].   Id.

     [11].   For a recent critical examination of the term, see Edward A. Purcell, Jr., Antonin Scalia and American Constitutionalism: The Historical Significance of a Judicial Icon, xvi–xviii (2020).

     [12].   That the Justice is well versed in such form of writing should come as no surprise, as both his Ph.D dissertation advisors at Oxford—John Finnis and Timothy Endicott—are trained philosophers.  See Neil M. Gorsuch, The Right to Receive Assistance in Suicide and Euthanasia, with Particular Reference to the Law of the United States (2004) (Ph.D. thesis, University of Oxford) (on file with Oxford University Research Archives, University of Oxford), https://ora.ox.ac.uk/objects/uuid:688e5b8c-bb06-4d86-abe0-440a7666ffc1.  See also Neil M. Gorsuch, The Future of Assisted Suicide and Euthanasia 229 (2006) (“Appendix B: Statistical Calculations”).

     [13].   Elena Kagan, Foreword to Antonin Scalia, The Essential Scalia, xvi (Jeffrey S. Sutton & Edward Whelan eds., 2020).  To be sure, Justice Scalia himself was a great proponent of using logic in legal argument.  See, e.g., Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges 41–43, 46–48 (2008) (explaining how to “[t]hink syllogistically”).

     [14].   42 U.S.C. § 2000e-2(a)(1) (emphasis added).

     [15].   Bostock, 140 S. Ct. at 1737.

     [16].   Id.

     [17].   Id. at 1739.

  1. The sign “~” (“not”) is used here, as in most propositional connective language, in a “weak” sense—“to  deny the claim made by the negated part.”  John T. Kearns, The Principles of Deductive Logic 142 (1988).  It is not used to claim the opposite of the negated part.

     [19].   Bostock, 140 S. Ct. at 1739.

     [20].   Id.

     [21].   Id.

     [22].   Id. at 1745; see also id. at 1748 (“Imagine that it’s a nice day outside and your house is too warm, so you decide to open the window.  Both the cool temperature outside and the heat inside are but-for causes of your choice to open the window.  That doesn’t change just because you also would have opened the window had it been warm outside and cold inside.  In either case, no one would deny that the window is open ‘because of’ the outside temperature.”).

     [23].   Id. at 1739–40.

     [24].   Id. at 1740.

     [25].   Id. at 1743–44.

     [26].   Id. at 1740.

     [27].   Id. (quoting Webster’s New International Dictionary 1267).

     [28].   Id. at 1741 (emphasis added).

     [29].   Id.

     [30].   See id. (“An individual’s homosexuality or transgender status is not relevant to employment decisions.”).

     [31].   As the Court later noted, in the cases at bar the employers never disputed “that they fired the plaintiffs for being homosexual or transgender.”  Id. at 1744.  In this manner, the cases were distinct from others where “[s]orting out the true reasons for adverse employment decision is often hard business.”  Id.  

     [32].   Id. at 1741.

     [33].   Id. at 1742.

     [34].   Id.

     [35].   Id.

     [36].   Id. at 1744.

     [37].   Or, in other words: “[T]o discriminate [against an employee] on [the grounds of homosexuality or transgender status] requires an employer to intentionally treat individual employees differently [(γ)] because of [(ß)] their sex [(α)].”  Id. at 1742; see also id. at 1743 (“For an employer to discriminate against employees for being homosexual or transgender, the employer must intentionally discriminate against individual men and women [(γ)] in part because of [(ß)] sex [(α)].  That has always been prohibited by Title VII’s plain terms—and that ‘should be the end of the analysis.’” Id. at 1743 (quoting Zarda v. Altitude Express, Inc., 883 F.3d 100, 135 (2d Cir. 2018) (Cabranes, J., concurring), aff’d sub nom., Bostock, 140 S. Ct. 1731)).

     [38].   Id. at 1741.

     [39].   Id.

     [40].   Id.

     [41].   Id.

     [42].   42 U.S.C. § 2000e-2(a)(1).

     [43].   Bostock, 140 S. Ct. at 1741 (second and third emphasis added).  Indeed, in such cases not only do two wrongs do not make a right—they actually multiply the wrong.

     [44].   Id. (emphasis added).

     [45].   Id. (emphasis added).

     [46].   Id.

     [47].   Id.

     [48].   Id. at 1742.

     [49].   Id.

     [50].   Id.  

     [51].   Id.

     [52].   Id.

     [53].   Id.

     [54].   Id. at 1742–43.

     [55].   Id. at 1746.

     [56].   Id.  See also 42 U.S.C § 2000e-2(a)(1).

     [57].   42 U.S.C. § 2000e-2(a)(1).

     [58].   Bostock, 140 S. Ct. at 1746,

     [59].   Id.

     [60].   42 U.S.C. § 2000e-2(a)(1).

     [61].   400 U.S. 542 (1971).

     [62].   Bostock, 140 S. Ct. at 1743.

     [63].   Id.

     [64].   435 U.S. 702 (1978).

     [65].   Bostock, 140 S. Ct. at 1743.

     [66].   Id.

     [67].   523 U.S. 75 (1998).

     [68].   Bostock, 140 S. Ct. at 1743.

     [69].   Id. at 1743–44.

     [70].   42 U.S.C § 2000e-2(a)(1).

     [71].   Bostock, 140 S. Ct. at 1744 (emphasis added).

     [72].   Id. at 1739–40. 

     [73].   Id. at 1740.

     [74].   Id. at 1745 (emphasis added). 

     [75].   Id. at 1746. 

     [76].   Id. at 1754–84 (Alito, J., dissenting).  E.g., id. at 1761 (“The Court proclaims that ‘an individual’s homosexuality or transgender status is not relevant to employment decisions.’  That is the policy view of many people in 2020, and perhaps Congress would have amended Title VII to implement it if this Court had not intervened.”).

     [77].   Id. at 1822–37 (Kavanaugh, J., dissenting). E.g., id. at 1830 (“As demonstrated by all of the statutes covering sexual orientation discrimination, Congress knows how to prohibit sexual orientation discrimination.”).

     [78].   Id. at 1747 (Gorsuch, J., for the Court).

     [79].   Id. at 1747–48.

     [80].   Id. at 1748.

     [81].   See, e.g., Doron M. Kalir, Artis v. District of Columbia—What Did the Court Actually Say?, 94 Notre Dame L. Rev. Online 81 (2018), http://ndlawreview.org/wp-content/uploads/2018/11/3-Kalir.pdf (criticizing Justice Gorsuch’s opinion in another case).

100+ Free Lgbt & Gay Images - Pixabay

Jordan Peterson

It is no secret that federal policymakers usually propose a bill with no expectation that it will pass into law. In some cases, they do this because they want to start a conversation about an important topic.[1] One such topic that has been at the forefront of the American political thought for some time now (and where there has been a dearth of collaborative communication between political ideologies) is how to properly balance Constitutional guarantees of the free exercise of religion with the civil rights of the LGBTQ+ community.[2]

Now that President Biden and Vice-President Harris have been elected and the Democratic party controls both the house and the senate, we can look forward to a great deal more discussion about the proposed Equality Act which adds sex (including sexual orientation and gender identity) to the civil rights act of 1964.[3] This bill seeks to alleviate the discrimination leveled at members of the LGBTQ+ community,[4] but it carries its own poison pill in a clause that subordinates the 1993 Religious Freedom Restoration Act to the Equality Act.[5] This clause would deny religious exemptions from churches or religious non-profit employers.[6] And while it certainly guarantees unfettered civil rights to LGBTQ+ Americans, it raises issues of constitutionality by preventing some religious persons from freely exercising their religion.[7]

President Biden has promised members of the LGBTQ+ community to make the Equality Act a top legislative priority for his first 100 days in office,[8] but the bill may run into trouble in the form of filibusters and a conservative Supreme Court.[9] Remember, legislation is often proposed — in our system of checked and balanced governance — to spark conversation about an important topic. The realistic best-case scenario for LGBTQ+ rights advocates in this situation would be to begin negotiating with conservative legislators to find a constitutionally sound compromise.

One such collaboration has already been proposed as another bill: the Fairness for All Act.[10] This bill accomplishes some of the goals of the Equality Act by adding sexual orientation and gender identity to the Civil Rights Act, but it explicitly exempts religious institutions and non-profits from having to hire, lodge, or otherwise refrain from discriminating against members of the LGBTQ+ community.[11]

The Fairness for All Act was inspired by similar legislation passed by the Utah State Legislature in 2015, which guaranteed equal protection in employment and housing for all persons regardless of their sexual identity.[12] This bill, dubbed “The Utah Compromise,”[13] passed in a historically Republican state and preceded the recent Supreme Court ruling Bostock v. Clayton County, Georgia (which guaranteed equal protection in the workplace to homosexual and transgender individuals[14]) by five years.[15] It came about through the collaboration of religious institutions like the Church of Jesus Christ of Latter-day Saints and civil rights activists like the American Civil Liberties Union.[16]

The Utah Compromise was soundly criticized by Christian conservatives and liberal friends of the LGBTQ+ community who all worried that other states would follow the example of Utah.[17] Why? Because it was a true collaboration — one where neither party gets to have their cake and eat it too. Conservatives griped that it was unnecessary, that it restricted the religious freedom of small businesses, and that the only religious protection it offered was already guaranteed in the First Amendment.[18] On the other side, many LGBTQ+ advocates complained that it reserved the rights of religious institutions and non-profits to discriminate against people within their institutions and programs.[19] However, what Utah legislators and collaborating institutions realized was that “[i]t was much better for everybody to get 90 percent of what they needed, than for somebody to get zero and another side get 100 percent.”[20]

The Fairness for All Act may seem like a step in the wrong direction, but it represents the best possible victory for both sides of the debate. LGBTQ+ people would be guaranteed civil rights in a majority of situations while religious conservatives would not have to sacrifice their religious beliefs or undermine their own messages by employing representatives who do not exemplify their stated morals.

Perhaps the most important victory in this situation would be for leaders and followers on each side of a seemingly insurmountable ideological divide to openly talk with each other about their values, identities, and shared humanity. As President Biden said, “let’s give each other a chance. It’s time to put away the harsh rhetoric, lower the temperature, see each other again. Listen to each other again. And to make progress, we have to stop treating our opponents as our enemies. They are not our enemies. They are Americans.”[21]

[1] See Kelsey Dallas, Five Years Ago, Utah Passed Landmark Legislation on LGBTQ and Religious Rights. Why Didn’t Other States Follow Its Lead?, Deseret News (Mar. 11, 2020, 10:00 PM) https://www.deseret.com/indepth/2020/3/11/21163307/utah-lgbtq-rights-religious-freedom-lgbt-fairness-for-all-mormon-equality-act-congress.

[2] See e.g. Terry Mattingly, Waiting For a Judicial ‘Utah Compromise’ on Battles Between Religious Liberty and Gay Rights?, Times Record News (Jun. 27, 2020, 12:00 AM) https://www.timesrecordnews.com/story/entertainment/2020/06/27/waiting-judicial-utah-compromise-battles-between-religious-liberty-and-gay-rights/3250296001/.

[3] Equality Act, H.R. 5, 166th Cong. § 3(a)(1) (2019).

[4] Id. § 2(b).

[5] Id. § 1109.

[6] Id.

[7] See Alexander Dushku & R. Shawn Gunnarson, Symposium: LGBT Rights and Religious Freedom—Finding a Better Way, SCOTUSblog (Jun. 17, 2020, 9:19 AM), https://www.scotusblog.com/2020/06/symposium-lgbt-rights-and-religious-freedom-finding-a-better-way/.

[8] Daniel Trotta, Biden, in LGBTQ Interview, Vows to Pass Equality Act in First 100 Days, Reuters (Oct. 29, 2020, 1:13 AM) https://www.reuters.com/article/usa-election-biden-lgbtq/biden-in-lgbtq-interview-vows-to-pass-equality-act-in-first-100-days-idUSKBN27E0F9.

[9] See Dushku & Gunnarson, supra note 7.

[10] Fairness for All Act, H.R. 5331, 166th Cong. (2019).

[11] Id. § 2(2)(D).

[12] Dallas, supra note 1.

[13] Stuart Adams, The Utah Compromise, Law & Liberty (Apr. 14, 2015) https://lawliberty.org/the-utah-compromise/.

[14] Bostock v. Clayton County, Georgia, 140 S.Ct. 1731, 1737 (2020).

[15] See Adams, supra note 13.

[16] Nelson Tebbe et al., Utah “Compromise” to Protect LGBT Citizens From Discrimination Is No Model for the Nation, Slate (Mar. 18, 2015, 3:18 PM) https://slate.com/human-interest/2015/03/gay-rights-the-utah-compromise-is-no-model-for-the-nation.html.

[17] See Id.; Zach Ford, The ‘Utah Compromise’ Is A Dangerous LGBT Trojan Horse, ThinkProgress (Jan. 29, 2016, 1:00 PM) https://archive.thinkprogress.org/the-utah-compromise-is-a-dangerous-lgbt-trojan-horse-db790ad3b69e/; Alliance Defending Freedom, The Utah Compromise: Needlessly Surrendering Freedom 3 https://flfamily.org/wp-content/uploads/2016/02/Utah-Compromise-Needlessly-Surrendering-Freedom-ADF.pdf.

[18] Id. at 2–3.

[19] Ford, supra, note 17; Tebbe et al., supra, note 16.

[20] Mark Saal, One Year Later, Utah LGBT Anti-Discrimination Law Continues to Resonate, Standard-Examiner (Jun. 17, 2016) https://www.standard.net/news/one-year-later-utah-lgbt-anti-discrimination-law-continues-to-resonate/article_a69fb281-1757-52c7-97ba-a20e387fca07.html (quoting Sen. Stuart Adams).

[21] Amber Philips, Joe Biden’s Victory Speech, Annotated, The Washington Post (Nov. 7, 2020, 9:56 PM) https://www.washingtonpost.com/politics/2020/11/07/annotated-biden-victory-speech/.

By Zeliang Mike Liu

On June 15, 2020, the Supreme Court issued a landmark 6-3 decision stating that Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits an employer from firing an individual for being homosexual or transgender.[1] The question came to the court through three different cases: Bostock v. Clayton County, in which a child welfare advocate was fired for participating in a gay recreational softball league after ten years working for a Georgia county; Altitude Express v. Zarda, in which a skydiving assistant was fired after he told a female customer that he was gay, and the customer’s boyfriend complained that he inappropriately touched her; and R.G. & G.R. Harris Funeral Homes v. Equal Employment and Opportunity Commission, in which a funeral home employee was fired when she informed the funeral home that she decided to undergo gender reassignment surgery.[2] Writing for the majority, Justice Neil Gorsuch stated that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”[3]

Though the court’s focus in Bostock was the issue of employers discharging employees based on sexual orientation and transgender status, the court arguably provided a broad ruling with impacts to multiple areas of the law. As Justice Samuel Alito stated in his dissent, the Court’s ruling is “virtually certain to have far-reaching consequences” and will inevitably affect other federal laws, such as Title IX of the Education Amendments of 1972 (“Title IX”), the Patient Protection and Affordable Care Act (“ACA”), and the Fair Housing Act (“FHA”).[4] The implication of Bostock is not only protection of LGBTQ+ rights in employment, but an essential tool to address discrimination against LGBTQ+ community members not just in education, healthcare, and housing.

Employment

Workplace discrimination against LGBTQ+ community members is well documented. Between 8–17 percent of LGBTQ+ workers and 13–47 percent of transgender workers have been denied employment opportunities or unfairly discharged because of sexual orientation or transgender status.[5] Nearly 30 percent of LGBTQ+ workers of color reported that they have experienced employment discrimination for sexual orientation.[6]

Title VII prohibits employment discrimination based on an individual’s sex.[7] The statute extends beyond discharging and applies when employers “fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges or employment.”[8]Under Title VII, “compensation” includes not only wages but also benefits such as overtime pay, life insurance, vacation and holiday pay, and bonuses.[9]

The Supreme Court’s decision in Bostock directly affects employment practice with regard to an employee’s sexual orientation or transgender status. In its reasoning, the Court stressed that “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex.”[10]Thus, although the individual cases before the Court focused on the wrongful termination of LGBTQ+ workers, the Court nevertheless determined that under Title VII protects against broader discrimination based on sexual orientation and transgender status.[11]

Although the Court specifically stated that its decision in Bostock does not “address bathrooms, locker rooms, or anything else of the kind” when addressing employers’ concern of whether sex-segregated spaces violate Title VII,[12]the Court’s decision does extend to equal access to existing sex-segregated facilities, meaning that an employer cannot deny an LGBTQ+ worker from access to the existing sex-segregated facilities.[13]

Education

Title IX prohibits discrimination “on the basis of sex” in any education program or activity that receives federal funding.[14]Although the statue does not define the scope of discrimination “on the basis of sex,” courts have often looked at cases that define the scope of sex discrimination under Title VII to interpret the meaning of discrimination “on the basis of sex” under Title IX because of the similarities between Title VII and Title IX’s language.[15]The Fourth, Sixth, and Seventh Circuit Courts of Appeal, have all previously held that Title IX prohibits discrimination based on sexual orientation and gender identity by extending decisions that stated Title VII prohibits discrimination based on sexual orientation and gender identity prior to the Supreme Court’s decision in Bostock.[16]

Therefore, Bostock’s holding that Title VII prohibits discrimination based on sexual orientation and transgender status provides further assistance for courts to extend Title IX’s protections for LGBTQ+ students.

Housing

The FHA prohibits discrimination in the sale, rental, and financing of housing based on race, color, national origin, religion, sex, familial status, and disability.[17]Similar to Title IX, courts often look to Title VII when determining the scope of prohibited sex discrimination under FHA.[18]Thus, courts are also likely to extend Bostock to FHA and offer greater protection on LGBTQ+ rights under the FHA.

The Trump administration issued a proposal in July 2020 to limit the 2016 Equal Access Rule and allow housing programs funded by the U.S. Department of Housing and Urban Development (“HUD”) to deny shelter access based on transgender status.[19]In light of the Bostock decision, Reps. Jennifer Wexton and Maxine Waters submitted a letter to Dr. Ben Carson, Secretary of HUD, to revise the proposal in accordance with Supreme Court’s holding in Bostock.[20]However, Dr. Carson stated in response that “[t]he Supreme Court’s ruling in Bostock has no impact on the Department’s proposed rule.”[21] HUD’s apparent refusal to take Bostock highlights a next step in the path forward for LGBTQ+ rights.

Healthcare

Section 1557 of the ACA prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in certain health programs or activities.[22] The nondiscrimination language in Section 1557 was built on other federal civil rights laws including Title VII, Title IX, the Rehabilitation Act of 1973, and the Age Discrimination Act of 1975.[23] Thus, since the Supreme Court held in Bostock that Title VII forbids discrimination based on sexual orientation and transgender status, such holding likely carries significant weight in application to ACA.

In 2016, the Obama administration promulgated a rule stating that Section 1557 of ACA prohibits discrimination in health activities and activities on the basis of sexual orientation and gender identity.[24] Earlier this year, the Trump administration proposed a rule to exclude ACA’s protection on sexual orientation and gender identity, and four days after the Bostock decision, the Department of Health and Human Services issued its final rule.[25] However, on August 17, 2020, one day before the rule was planned to go into effect, a federal judge issued a preliminary injunction, which barred the rule from going into effect, relying on the Supreme Court’s decision in Bostock.[26]The recognition of the interplay between Title VII and the ACA provided further assurance on Bostock’s positive impact on ACA.

The Supreme Court’s decision in Bostock is a great victory for LGBTQ+ community that’s worth celebrating. Although the fight for LGBTQ+ rights is not over, Bostock nevertheless demonstrates that the LGBTQ+ community has advanced powerful arguments that even the Supreme Court’s most ardent textualist supports. Similar text in other federal statutes provides a path forward for future solidification of LGBTQ+ rights.


[1] See Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1737 (2020).

[2] Id. at 1737–38.

[3] Id. at 1741.

[4] Id. at 1778 (Alito, J., dissenting).

[5] Ctr. Am. Progress et al., A Broken Bargain: Unchecked Discrimination Against LGBT Workers 1 (2014), https://www.lgbtmap.org/file/unchecked-discrimination-against-lgbt-workers.pdf.

[6] Nat’l Pub. Radio Et Al., Discrimination in America: Experiences and Views of LGBTQ Americans 11 (2017), https://cdn1.sph.harvard.edu/wp-content/uploads/sites/94/2017/11/NPR-RWJF-HSPH-Discrimination-LGBTQ-Final-Report.pdf.

[7] 42 U.S.C. § 2000e-2(a).

[8] Id.

[9] U.S. Equal Emp’t Opportunity Comm’n, EEOC-NVTA-0000-12, Facts about Equal Pay and Compensation Discrimination (1997), https://www.eeoc.gov/laws/guidance/facts-about-equal-pay-and-compensation-discrimination.

[10] Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1747 (2020).

[11] See id.

[12] Id. at 1753.

[13] The U.S. Equal Employment Opportunity Commission (“EEOC”) has established that a transgender employee’s right to use woman bathroom is protected by Title VII. Lusardi v. McHugh, E.E.O.C. Doc. No. 0120133395, 2015 WL 1607756, at *7 (Apr. 1, 2015).

[14] 20 U.S.C. § 1681(a).

[15] See, e.g., Whitaker ex rel. Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1047 (7th Cir. 2017); Smith v. Metro. Sch. Dist. Perry Twp., 128 F.3d 1014, 1022–23 (7th Cir. 1997).

[16] See Whitaker, 858 F.3d at 1047–49; Dodds v. U.S. Dep’t of Educ., 845 F.3d 217, 221 (6th Cir. 2016) (noting that Title VII’s prohibition on discrimination based on sexual non-confirming behaviors is applicable in the context of Title IX); Grimm v. Gloucester Cnty. Sch. Bd., 400 F. Supp. 3d 444, 451-52 (E.D. Va. 2019), aff’d, No. 19-1952, 2020 WL 5034430 (4th Cir. Aug. 26, 2020), as amended (Aug. 28, 2020).

[17] 42 U.S.C. § 3604(a).

[18] See, e.g., Smith v. Avanti, 249 F. Supp. 3d 1194, 1200 (D. Colo. 2017) (“The Tenth Circuit looks to Title VII discrimination cases for guidance in addressing discrimination issues under the FHA.”).

[19] Making Admission or Placement Determinations Based on Sex in Facilities Under Community Planning and Development Housing Programs, 85 Fed. Reg. 44,811, 44,811 (proposed July 24, 2020) (to be codified at 24 C.F.R. pt. 5, 576), https://www.govinfo.gov/content/pkg/FR-2020-07-24/pdf/2020-14718.pdf.

[20] See Press Release, U.S. House Comm. Fin. Serv., Walters and Wexton Call on HUD to Reconsider Revisions to Equal Access Rule (July 6, 2020), https://financialservices.house.gov/news/documentsingle.aspx?DocumentID=406742.

[21] Letter from Ben Carson, Sec’y, U.S. Dep’t Hous. & Urban Dev., to Maxine Waters, Rep., 43rd Cong. Dist., and Jennifer Wexton, Rep., 10th Cong. Dist. (July 13, 2020), https://wexton.house.gov/uploadedfiles/hud_response_to_waters-wexton_6.29.20_letter.pdf.

[22] See 42 U.S.C.§ 18116.

[23] Id.

[24] See Maya Rhodan, Obamacare Rule Bans Discrimination Against Transgender Patients, Time (May. 13, 2016), https://time.com/4329609/transgender-discrimination-obamacare-healthcare/; see also 45 C.F.R. § 92.207, https://www.govinfo.gov/content/pkg/CFR-2016-title45-vol1/pdf/CFR-2016-title45-vol1-sec92-207.pdf.

[25] See Dan Diamond, Trump Team Moves to Scrap Protections for LGBTQ Patients, Politico (Apr. 24, 2020), https://www.politico.com/news/2020/04/24/trump-team-moves-to-scrap-protections-for-lgbtq-patients-206398; see also Nondiscrimination in Health and Health Education Programs or Activities, Delegation of Authority, 85 Fed. Reg. 37,160 (June. 19, 2020) (to be codified at 42 C.F.R. pt. 438, 440, 406 and 45 C.F.R. pt. 86, 92, 147, 155, 156).

[26] Walker v. Azar, No. 20CV2834FBSMG, 2020 WL 4749859, at *10 (E.D.N.Y. Aug. 17, 2020).

By Emily Yates

In 2012, North Carolina became the thirtieth state to adopt a constitutional amendment refusing to recognize any marriages or civil unions other than those between one man and one woman.[1]  Article 14, Section 6 of the North Carolina Constitution, popularly referred to as “Amendment One,” states that “[m]arriage between one man and one woman is the only domestic legal union that shall be valid or recognized by this state.”[2]  Only eight years ago, Amendment One passed with 61% of voters in favor of enshrining this restrictive definition of marriage in our state constitution.[3]  When the passage of Amendment One was announced, proponents “celebrated the win with a tiered wedding cake at a party in the North Raleigh Hilton Hotel.”[4]  Tami Fitzgerald, then the chairwoman of Vote for Marriage NC, the group behind Amendment One, attempted to convince the press that “we are not anti-gay, we are pro marriage.”[5]  She elaborated that “the whole point is simply that you don’t rewrite the nature of God’s design for marriage based on the demands of a group of adults.”[6]  However, LGBTQ+ advocates and opponents of Amendment One recognized that “this is just a skirmish, in a battle in the war that we will win.”[7]

Thankfully, Amendment One was rendered moot three years after its passage by the Supreme Court’s landmark ruling in Obergefell v. Hodges.[8]  In Obergefell, the Supreme Court held that same-sex couples have the constitutional right to “have their marriages deemed lawful on the same terms and conditions as marriages between persons of the opposite sex.”[9]  This ruling marked the federal legalization of same-sex marriages and overruled all state laws and constitutional provisions outlawing such marriages. 

Unsurprisingly, not everyone agreed with the holding and impact of Obergefell.  Some felt it “fundamentally misunder[stood] the reality of what marriage is,” and that same-sex marriages would degrade the “sanctity of marriage.”[10]  Others felt that the decision was made on fabricated constitutional grounds, and that it deprived states of the ability to define marriage as between one man and one woman, as many had already chosen to do.[11] 

After Obergefell, it seemed as if the same-sex marriage debate had finally ended.  However, some North Carolinians were not ready to give up the fight.  On Valentine’s Day 2019, five Republican state legislators introduced House Bill 65, the short title of which was the Marriage Amendment Reaffirmation Act.[12]  The long title of House Bill 65 was “An Act to Reaffirm the Vote of the People of North Carolina to Adopt Article XIV, Section 6 of the Constitution of the State of North Carolina, Known as the Marriage Amendment, to State Why the Amendment Should be Upheld, to Declare Null and Void for the State of North Carolina the Obergefell v. Hodges Decision of the United States Supreme Court, and to Call on the United States Supreme Court to Overturn the Obergefell v. Hodges Decision.”[13]

Despite its comedically long title, House Bill 65 contains some divisive and scary rhetoric.  The Representatives who drafted the bill assert that Obergefell must be overturned because it violated the Establishment Clause of the First Amendment by imposing upon the American people “Secular Humanism” and its beliefs.[14]  It defines all marriages other than those between a man and a woman as “parody marriages” that “do not follow the scientifically obvious biology of the human species.”[15]  It continues by iterating that “there are thousands of taxpayers living in the State of North Carolina who sincerely believe that all forms of marriages that do not involve one man and one woman are immoral. . . [and] enable immorality and the erosion of community standards of decency.”[16]  House Bill 65 concludes that North Carolina must consider “null and void and unenforceable” the holding in Obergefell as violative of the First Amendment of the US Constitution.[17]

The impact of such a bill, should it be passed, would be the attempted nullification of all same-sex marriages performed since 2015.  Fortunately, despite the fact that the bill was referred to the Committee on Rules, jokingly referred to by some as where “bills go to die,”[18] House Bill 65 is not dead enough.  Two years before House Bill 65 was proposed, the state legislature was presented with House Bill 780, which also attempted to reinstate Amendment One on the grounds that Obergefell incorrectly interpreted “the decree of God.”[19]  Like House Bill 65, House Bill 780 was sent to the Committee on Rules.[20]  However, of House Bill 780, House Speaker Tim Moore released a public statement that the bill “will not be heard.”[21]  No such assurance has been made about House Bill 65. 

Nearly five years ago, the Supreme Court recognized the right of same-sex couples to marry.  This decision should have finally allowed same-sex couples to rest assured in the security of their unions and the protections of their families against government interference.  Unfortunately for same-sex married couples in North Carolina, this has not been the case.  On a biannual basis, legislation has been proposed attempting to undermine the constitutional right to marriage.  Both pieces of legislation relied upon reinstating Amendment One, which would set North Carolina back nearly ten years in the LGBTQ+ rights movement and upend and unknown number of marriages and families.  The North Carolina legislature must act to formally remove Amendment One from the state constitution and finally give same-sex married couples the stability and privacy to which they are constitutionally entitled.


[1] Campbell Robertson, North Carolina Voters Pass Same-Sex Marriage Ban, N.Y. Times (May 8, 2012), https://www.nytimes.com/2012/05/09/us/north-carolina-voters-pass-same-sex-marriage-ban.html.

[2] N.C. Const. art. XIV, § 6.

[3] Karen McVeigh, North Carolina Passes Amendment 1 Banning Same-Sex Unions, Guardian (May 9, 2012), https://www.theguardian.com/world/2012/may/09/north-carolina-passes-amendment-1.

[4] Id.

[5] Robertson, supra note 1.

[6] Id.

[7] Id.

[8] 135 S.Ct. 2584 (2015).

[9] Id. at 2593.

[10] Nathanael Blake, 3 Years of Experience Have Only Proved That Obergefell Was a Big Mistake, Federalist (June 28, 2018), https://thefederalist.com/2018/06/28/3-years-experience-proved-obergefell-big-mistake/.

[11] Ken Connelly, Why Supreme Court Got It Wrong, CNN (June 27, 2015), https://www.cnn.com/2015/06/26/opinions/connelly-same-sex-marriage-ruling/index.html.

[12] H.B. 65, 2019 Gen. Assemb. Reg. Sess. (N.C. 2019).

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Colin Campbell, Proposed Gay Marriage Ban Is Dead in NC House, Speaker Says, News & Observer (Apr. 12, 2017), https://www.newsobserver.com/news/politics-government/state-politics/article144169109.html.

[19] Becca Heilman, NC Bill Banning Same-Sex Marriage Will Not Advance in the General Assembly, Daily Tar Heel (Apr. 13, 2017), https://www.dailytarheel.com/article/2017/04/nc-bill-banning-same-sex-marriage-will-not-advance.

[20] Id.

[21] Campbell, supra note 18.

By Jon McLamb

The United States Supreme Court is deciding whether to hear a case with significant ramifications on First Amendment religious freedom.  This time, however, a decision will come in direct conflict with local and state anti-discrimination laws that prevent businesses from discriminating on the basis of an person’s sexual orientation.

The case, Arlene’s Flowers, Inc. v. Washington, involves a private florist in Washington who refused to make a flower arrangement for a same-sex couple’s wedding.[1]  The business owner cited her religious beliefs against same-sex marriage as her reason for the refusal.[2]  The florist argued that she was entitled to refuse because providing services to a same-sex marriage ceremony would offend her religious beliefs so, therefore, she was protected under the First Amendment right to religious freedom.[3]  The couple and the state believed that the florist had violated both local and state anti-discrimination laws by denying the couple’s request.[4]  As a result of this conflict, the state filed a lawsuit on the couples’ behalf seeking injunctive and other relief.[5]

The case first reached the United States Supreme Court in June 2018.[6]  In that instance, the Court remanded the case back to the Washington state courts to address the case in light of its decision in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, which was decided that same month.[7]  In Masterpiece Cakeshop, the Court held that a business owner’s religious freedom was violated when the business owner received penalties for refusing to sell a wedding cake to a same-sex couple.[8]  The Court reasoned that the business owner deserved a neutral decisionmaker under the First Amendment that would give full and fair consideration to his religious beliefs against same-sex marriage.[9]

The Washington State Supreme Court subsequently re-decided the case on remand from the United States Supreme Court.[10]  Applying the United States Supreme Court’s decision in Masterpiece Cakeshop, the Washington Supreme Court unanimously ruled against the florist.[11]  The Washington Supreme Court reasoned that there is no exception to the public accommodation statutory requirement for religious beliefs, and the florist was therefore required to accommodate the same-sex couple’s request for a flower arrangement.[12]  The Court found that the Masterpiece Cakeshop framework required a neutral analysis that involved looking into both the religious freedom of the First Amendment and the anti-discrimination statutes currently enacted in the State of Washington.[13]

Following the decision of the Washington Supreme Court, the florist petitioned the United States Supreme Court for a writ of certiorari.[14]  In the petition, the florist argued that her First Amendment right to freedom of religion would be infringed if Washington penalized her following her beliefs and not serving the couple.[15]  In arguing this point, the florist contended that the holding of the Washington Supreme Court is in direct conflict with the decision in Masterpiece Cakeshop because her refusal to serve the couple is protected expressive freedom protected under that case and other United States Supreme Court precedent.[16]

Both the State of Washington and the couple filed responses to the florist’s petition for writ of certiorari. The State of Washington argued that the florist’s contention that she was “participating in the wedding ceremony” if she served the couple a flower arrangement is highly misleading, because simply providing a service to the couple is not the same as participating in the ceremony.[17]  Additionally, Washington argued that its supreme court’s decision does not violate United States Supreme Court precedent, but actually follows the current law by neutrally addressing both the religious freedom of the florist and the right to be free from discrimination of the couple.[18]  Further, Washington contended that there is not a violation of United States Supreme Court precedent just because the Washington Supreme Court disagreed that the florist had a protected right that outweighs the right of the couple in this instance.[19]

The couple’s brief in response to the florist’s petition for writ of certiorari addressed the same arguments as Washington’s brief in opposition.[20]  Like Washington, the couple opined that the Washington Supreme Court’s decision did not conflict with United States Supreme Court case law and did not force the florist to participate in their wedding ceremony.[21]  The one major difference, however, is that the same-sex couple focused on their right to equal access that protected them against discrimination as opposed to the state’s brief, which focused on the florist’s lack of protected right to religious freedom.[22]

Several different interest groups filed amicus briefs in support of the petition for writ of certiorari.  These groups include mostly conservative, religious, and constitutional scholars.  In essence, their arguments addressed the right of the florist to refuse service to a same-sex couple under the First Amendment’s right to freedom of religion.

Because many interest groups have voiced their concerns about the Washington Supreme Court’s decision, the United States Supreme Court is likely to grant certiorari.  The Supreme Court may also grant certiorari to resolve the direct conflict between two protected interests: the right to religious freedom and the right of same-sex couples to be free from discrimination on account of sexual orientation.  The likelihood of granting certiorari is also higher because the Supreme Court heard this case at an earlier date but did not resolve the dispute. 

This case presents an opportunity for the United States Supreme Court to address issues not reached in the Masterpiece Cakeshop decision. Many in the legal profession believe that the Masterpiece Cakeshop decision rendered a narrow holding that protected only the religious rights of the individual business owner in that circumstance. Therefore, the Court may take this opportunity to expand that holding to protect all business owners with similar religious beliefs.  On the flip side, the Court could use this opportunity to distinguish the cases and limit the Masterpiece Cakeshop’s holding, giving a win to members of the LGBT community who continue to fight for their Constitutional rights, even after the landmark decision of Obergefell v. Hodges.[23]  The Court will likely make a decision whether to grant certiorari in the next few weeks, and the disposition of the case will have significant impact on American citizens, one way or another.


[1] See 187 Wash.2d 804 (2017).

[2] See id. at 816–17.

[3] See id. at 818.

[4] See id. at 818–19.

[5] Id.

[6] 138 S.Ct. 2671 (2018).

[7] 138 S.Ct. 1719 (2018).

[8] Id. at 1724.

[9] Id. at 1732.

[10] State v. Arlene’s Flowers, Inc., 193 Wash.2d 469 (2019).

[11] Id. at 507–08.

[12] Id. at 508.

[13] Id.

[14] Petition for Writ of Certiorari, Arlene’s Flowers (2019).

[15] Id. at i.

[16] Id. at 26.

[17] State’s Brief in Opposition, Arlene’s Flowers, at11–14 (2019).

[18] Id. at 25–35.

[19] Id. at 26–27.

[20] See generally Brief of Respondents, Arlene’s Flowers (2019).

[21] Id.

[22] Compare Brief of Respondents, Arlene’s Flowers (2019) (addressing whether florist can deny same-sex couple’s equal access to flower arrangement services) with State’s Brief in Opposition, Arlene’s Flowers (2019) (addressing whether freedom of religion allowed florist to deny public accommodation to same-sex couple).

[23] 135 S.Ct. 2584 (2015).