The Supreme Court has been presented with two sets of cases relating to issues at the core of the LGBT agenda. Bostock v. Clayton County, Georgia and Altitude Express Inc. v. Zarda raise the question of whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination “because of. . .sex,” within the meaning of Title VII of the Civil Rights Act of 1964. Lower courts have divided on this question, and it’s one that clearly ought, definitively, to be settled.
R.G. and G.R. Harris Funeral Homes Inc v. Equal Employment Opportunity Commission, which I discussed here, raises a related question: does the same Title VII prohibition protect people based on their transgender status. That question is, in my view, less momentous, but again, it’s one that should be decided. Gay, lesbian, and transgender individuals should know whether federal law protects them against employment discrimination. Employers and potential employers should also know this.
The Supreme Court seems very reluctant to tell them. Instead of deciding either to hear or not hear the three cases, it has repeatedly “relisted” them. As SCOTUSblog explains, “when a case is ‘relisted,’ that means that it is set for reconsideration at the Justices’ next Conference.” When a case is repeatedly relisted, it means that Court is kicking the can down the road.
That’s what has happened in the three LGBT cases. Zarda and Bostock have been “distributed for conference” five times, including twice already this year. Harris Funeral Home has been distributed four times, including twice this year. Yet, the Court has still not decided whether to hear any of these cases.
A request to have the Supreme Court hear a case — a petition for certiorari — is granted when at least four of the nine Justices vote in favor of the grant. We can assume that the four liberal Justices — Breyer, Ginsburg, Sotomayor, and Kagan — don’t want to hear the LGBT cases because they fear the Court will find against their preferred positions.
We can also assume that some of the conservative Justices want to hear the cases. Otherwise, the petitions would have been denied.
Finally, we can assume that at least two of the conservative Justices have been unwilling, thus far, to vote to hear the cases. Otherwise, the petitions would have been granted.
I see no reason why Justices Thomas, Alito, and Gorsuch would hold out against deciding these cases. None has ever been bashful about deciding controversial matters.
My assumption is that Chief Justice Roberts and Justice Kavanaugh are the two conservative holdouts. The Chief Justice is believed, in general, to want to proceed more cautiously than his conservative brethren.
Kavanaugh doesn’t have much of a track record yet. However, it’s plausible to believe that, after his bruising confirmation fight, he might want to shy away from extremely controversial cases involving divisive social issues. At least it’s more plausible to believe this of Kavanaugh than of Thomas, Alito, or Gorsuch.
Moreover, as I discussed here, Kavanaugh voted against hearing a case in which the issue was whether individual recipients of Medicaid who receive services from Planned Parenthood have a right to challenge under federal law a state’s decision to cut off funding to such providers. He sided with the Chief Justice and the four liberals, and against Thomas, Alito, and Gorsuch. He may, indeed, be gun shy.
What, though, is gained by not deciding whether to decide? If the LGBT cases are too fraught, why not vote against the petition and move on? The answer isn’t clear to me.
One possibility is that if the Court puts a decision off for a while longer and then grants cert, it can avoid deciding the case[s] this Term. In this scenario, the case[s] would be argued next Term and decided in 2020.
What’s the advantage in this? No obvious one. If anything, it might be more desirable to decide these cases this year rather than in an election year.
Perhaps Justice Kavanaugh wants to avoid intense controversy during his first year on the Court. I’m not sure why, though. He has life tenure. And it’s not as if his enemies are going to allow him to fly under the radar after one year. Unless he’s prepared to position himself to the left of Justice Kennedy, they will hate him forever. The left is still fighting its battle against Justice Thomas over Anita Hill’s 1991 allegations.
My fear is that if Justice Kavanaugh gets used to avoiding intense controversy, he will grow comfortable with doing so and it will become a habit. One year might turn into 15.
I’m just speculating, of course. It’s possible that the Court will grant cert in all three LGBT cases this month. It’s possible that there are reasons why it hasn’t yet done so that I haven’t considered.
Of this, though, I’m pretty sure. If there were a liberal majority on the Supreme Court, the Court would already have agreed to hear all three cases, and the LBGT community’s position would be upheld by the end of this Term.