On Tuesday, Harry Litman released a scorching column in the Washington Post, castigating President Donald Trump's administration for its role in advocating to strike civil rights protections for LGBTQ workers in a pair of cases before the Supreme Court.
"The argument puts the administration at odds with its own Equal Employment Opportunity Commission, which has concluded that Title VII — which forbids many employment actions taken 'because of' a person's 'sex' — does protect against discrimination based on sexual orientation," wrote Litman. "The solicitor general, which has final authority for representing the administration in the Supreme Court, essentially kicked the EEOC to the curb. Given the high political profile of the case and the issue, the decision likely was made with the input of the White House and with an eye toward its impact on President Trump’s reelection prospects."
As Litman noted, the idea that sex discrimination would not cover sexual orientation was rejected by two federal appeals courts — discriminating against an LGBTQ worker, after all, is treating a man differently than a woman for the same actions, or vice versa. "Indeed, the administration’s position puts it at odds with the practices of its own Justice Department, which recently under Attorney General William P. Barr confirmed the prohibition on denial of equal employment opportunity because of sexual orientation."
"The upshot is that the administration has voluntarily jumped in with both feet in favor of intolerance when it easily could have remained on the sidelines," wrote Litman. "The political gesture fit comfortably with the president’s own history of subtle, and not-so-subtle, support for prejudice and xenophobia."
Litman is not actually sure whether the Republican-appointed Supreme Court justices will want to go along with this culture war.
"Apart from going against the social grain, the Trump administration’s position is at least arguably at odds with the interpretive approach to Title VII adopted by the late Justice Antonin Scalia in a previous unanimous opinion for the court," wrote Litman. Also, "Chief Justice John G. Roberts Jr. surely is aware that adopting the administration’s view of Title VII would widely be taken, fairly or not, to signal a reactionary retrenchment in the wake of the replacement of Justice Anthony M. Kennedy, known as the court’s foremost protector of gay rights, with Justice Brett M. Kavanaugh. For the same reason, Kavanaugh probably would not relish providing the fifth vote for a decision that, in policy if not legal terms, would put him on the wrong side of history."
Whatever the outcome, Litman concluded, the Court's decision in 2020 "will blast into the heart of a presidential campaign focused intensely on culture-war issues and the direction of the Supreme Court itself."
