‘Bostock’ Decision called “an incredible victory” – or “an injustice that will have implications in many areas”
Published: June 29th, 2020
Oklahoma City – A majority of the U.S. Supreme Court in mid-June reached for what Allie Shinn, executive director of Freedom Oklahoma characterized as “This is an incredible victory for the movement for LGBTQ+ equality. She said “The highest court in the land has ruled today that LGBTQ+ people can and should be protected from discrimination.”
While many local Progressive leaders applauded the outcome of the case, the president of the U.S. Conference of Catholic Bishops (USCCB), Archbishop José H. Gomez of Los Angeles, said in a statement sent to news organizations nationwide, “I am deeply concerned that the U.S. Supreme Court has effectively redefined the legal meaning of ‘sex’ in our nation’s civil rights law. This is an injustice that will have implications in many areas of life.”
Justice Neil Gorsuch wrote the majority opinion. He was joined by Chief Justice John Roberts. Gorsuch asserted for the majority: “We agree that homosexuality and transgender status are distinct concepts from sex. But, as we’ve seen, discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex.”
The majority opinion in “Bostock v. Clayton County” seemed to anticipate the most explicit criticism, saying that the framers of Title VII’s provisions may not have anticipated the language would be used to include sexual orientation or transgender (sexual identity issues), “but the limits of the drafters’ imagination supply no reason to ignore the law’s demands.”
Roberts and Gorush were joined by Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor.
The most stinging dissent from the majority opinion came from Justice Samuel Alito. Joined by Justice Clarence Thomas, Alito wrote: “There is only one word for what the Court has done today: legislation.” Justice Brett Kavanaugh also dissented, pointing out: “[U]nder the Constitution’s separation of powers, the responsibility to amend Title VII belongs to Congress and the President in the legislative process, not to this Court.”
Michael Redman, interim legal director for ACLU Oklahoma, shared Shinn’s enthusiasm, saying in a statement sent to The City Sentinel, “Besides the consideration of employment status, this decision also applies to the terms and conditions of that employment, including health benefits. Employers and their health insurance providers will have to evaluate their health plans to ensure gender parity for their transgender employees. We applaud and welcome the Supreme Court’s opinion.”
Archbishop Gomez, in his statement, observed, “Every human person is made in the image and likeness of God and, without exception, must be treated with dignity, compassion, and respect. Protecting our neighbors from unjust discrimination does not require redefining human nature.”
Another criticism came from Carrie Severino of the Judicial Crisis Network, a conservative group working to support traditional approaches to judicial construction. She observed, “Justice [Antonin] Scalia would be disappointed that his successor [Gorusch] has bungled textualism so badly today, for the sake of appealing to college campuses and editorial boards. This was not judging, this was legislating—a brute force attack on our constitutional system.”
Oklahoma state Rep. Jason Dunnington, D-Oklahoma City said: “[T]he Supreme Court affirmed a truth we already know: discrimination against the LGBTQ community is wrong, and it should be illegal. All Oklahomans deserve the opportunity to build a better life regardless of who they are or who they love. That’s why I’ve filed legislation with similar protections every year I’ve been in office.”
Alicia Andrews, chair of the Oklahoma state Democratic party, said the “historic” victory “could not have happened without the courageous actions of thousands of activists and the many fighting for equal rights.”
The issue will likely come before the Court again, but with a narrower scope.
Justice Alito pointed to Christian, Muslim and Jewish groups which filed briefs predicting “open conflict with faith based employment practices of numerous churches, synagogues, mosques, and other religious institutions.” Gorsuch, in his opinion, appeared to anticipate future challenges to the new case law may be based on the “ministerial exception” in existing statutory language, but pointed out that issue was not explicitly an issue in any of the issues presented in “Bostock” and its companion case, “Altitude Express, Inc. v. Zarda.”
Days after the Bostock ruling, Democrats in the U.S. Senate moved for a vote on the Equality Act, which could impact the ministerial exception.
Another arena of future conflict could involve matters raised in a Connecticut, where three female athletes have challenged the entry of transgender women into high school competitions.
Oklahoma City area groups supportive of the LGBTQ+ agenda gathered at the Diversity Center in the heart of the city the night of the High Court decision. U.S. Rep. Kendra Horn, D-Oklahoma City, was one of the speakers.