Does the 1964 Civil Rights Act ban discrimination based on sexual orientation?

Tomorrow, the Supreme Court will hear oral argument in a case where the issue is whether the ban on discrimination because of sex contained in Title VII of the Civil Rights Act of 1964 encompasses discrimination on the basis of sexual orientation. George Will considers the matter in his latest column (the title of which, in the online edition, misstates his argument, I think).

Will concludes that discriminating against someone because he (or she) is gay (or lesbian) is not discrimination because of sex. Thus Congress did not ban such discrimination in 1964 (and since then, it has expressly declined to do so). If such discrimination is to be banned nationally (many states already prohibit discrimination in employment based on sexual orientation or preference), it is up to Congress, not the courts, to do so.

Will is correct. Sex is not the same thing as sexual orientation. It wasn’t in 1964 when Congress passed Title VII and it is isn’t today.

Homosexuality has to do with sex, but so do rape, child molestation, and indecent exposure. And rapists, child molesters, and flashers choose their victims based on the victims’ sex.

Suppose we were to accept the argument by pun that banning discrimination because of sex entails banning discrimination because of a sexual preference for members of the same sex and/or having sex with said members. We should then conclude that the same ban prohibits discrimination based on a preference for having sex with children of a particular sex and for all manners of having or displaying sex, including the use of force.

Unlike the case of the practices and preferences mentioned above, denying employment opportunities to individuals because they are gay or lesbian is wrong. As noted, many states already prohibit it.

However, as Will says, it is up to Congress to decide whether to prohibit such discrimination at the national level. So far, Congress has not done so.

Will the Supreme Court? The four Obama/Clinton Justices can be counted on automatically to vote for a national prohibition. When has any one of these jurists balked at a progressive social issue agenda item with as much momentum as this one?

So the case will come down to whether all five of the other Justices will resist that momentum and the urge to avoid criticism of the Court. Stay tuned.

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