Days after a 6-3 U.S. Supreme Court decision outlawed employment discrimination on the basis of sexual orientation or gender identity, a webinar explored the frustration some Colorado conservatives felt at the consequences, the case’s legal reasoning and the man responsible for it.
“Should we be apologizing for Neil Gorsuch?” asked Jeff Hunt, the head of the conservative Centennial Institute at Colorado Christian University, on Thursday.
“I think the jury is still out,” responded Michael J. Norton, an attorney with Thomas N. Scheffel & Associates, P.C. in Denver. Hunt said his question arose on a conference call with The Federalist Society the day the decision in Bostock v. Clayton County, Georgia and its related cases was handed down.
Donald Trump, during the campaign for president in 2016, released a list of judges approved by the conservative legal group The Federalist Society. Gorsuch, at the time a federal appellate judge in Colorado, was on the list. In his opinion for the majority, Gorsuch wrote that “Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.”
Norton, who is married to Republican former Lieutenant Governor Jane E. Norton, called the ruling “crazy.”
“We should never give in. We should fight for every square inch of freedom,” he said. “We should stand up for our principles. We should stand up for truth. We should stand up for righteousness. We should stand up for the moral values of the Bible. And we should keep on keeping on. God has asked us, I think commanded us, to stand and stand firm.”
In the cases decided on Monday, the court’s majority had to interpret Title VII of the Civil Rights Act of 1964. The law currently mandates that “[i]t shall be an unlawful employment practice for an employment agency to fail or refuse to refer for employment, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin”.
Gorsuch reasoned that if two employees worked at a company and both were attracted to men, firing the male employee for his orientation but not the female employee because of hers amounted to sex discrimination.
“No one in 1964, ‘74, ‘84 or ‘94 would have had any idea that the word sex meant anything other than male and female,” Norton countered. He speculated that Chief Justice John G. Roberts Jr. also joined the majority with Gorsuch and the four liberal justices for strategic reasons.
“When I think Chief Justice Roberts learned of Gorsuch’s position on this matter, that sexual orientation and gender identity were morphed into or wrapped into the word sex,” Norton said, “he had no choice but to join the [majority] so as to make sure that a five-member majority led by the most senior justice, Ruth Bader Ginsburg, would not be assigning the opinion to somebody like Ruth Bader Ginsburg. It would have been far worse of an opinion had Ruth Bader Ginsburg written it than had Gorsuch written it.”
Noting that Roberts also authored the majority opinion on Thursday upholding the program to protect undocumented residents brought to the U.S. as children, Hunt asked, “Is Roberts a lost cause at this point?”
“I think it’s somewhat of a disappointment in many respects,” Norton replied.
Hunt, attempting to explain Gorsuch’s reasoning, said that the text of the law was really what the majority decided it to be: a blanket prohibition on sex-related discrimination. Norton replied that Congress could have changed the law to broaden the term if that was so. The consequence of this interpretation, he added, could be huge for religious institutions.
“The so-called ministerial exception, where churches may hire employees as ministers who practice and abide by the faith tenets of the religious organization, that, too, I think is going to be challenged,” he said. “There is no reason to believe the expansion of Title VII will not expand to public accommodations such as locker rooms, educational institutions, girls sports, housing, room rentals, almost every other aspect of public life imaginable in our society.”
Norton added that the decision would “further marginalize Christians in the public square” and prompt new litigation from people who have “any kind of real or imagined sexual identity issue.”
In Colorado, such protections already exist, and the Civil Rights Division investigates complaints of discrimination in employment, public accommodations and housing. Colorado also includes ancestry, pregnancy and marriage to a coworker as categories protected from discrimination.
Nevertheless, Norton concluded, “This was a bad decision made by somebody that we expected to make good decisions.”