ARI SHAPIRO, HOST:
Outside the Supreme Court this morning, the atmosphere veered from festive to fraught ahead of arguments in a major LGBTQ case. Hundreds of demonstrators with rainbow flags as well as dozens of TV crews found themselves suddenly herded away by police when two suspicious packages were discovered early in the morning. Both proved to be benign. The argument before the justices, however, got intense, as NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG, BYLINE: The showdown involves a set of cases testing whether employers are free to fire workers because they're gay or transgender.
Gerald Bostock won awards for his work as the child welfare coordinator for Clayton County, Ga. Then he joined a gay recreational softball league.
GERALD BOSTOCK: Within months, I was fired for being gay. I lost my livelihood. I lost my medical insurance. And I was recovering from prostate cancer when this occurred. It was devastating.
TOTENBERG: Aimee Stephens, after working for six years as a male funeral director in Michigan, was fired two weeks after she told her boss she was transgender and would be coming to work as a woman. Bostock and Stephens challenged their dismissals in court under the 1964 Civil Rights Act, which bars employment discrimination, quote, "based on sex."
In the Supreme Court today, the retirement of Justice Anthony Kennedy loomed large. Kennedy, a Reagan appointee, was the author of every major gay rights decision for nearly two decades. His absence and the presence of two new Trump appointees could very well determine how these cases are decided - who wins and who loses.
Justice Brett Kavanaugh, who replaced Kennedy, asked just one question, though. It was, instead, Justice Neil Gorsuch, the other Trump appointee, who was the focal point. Gorsuch, who's been an adamant advocate for reading the text of a statute literally, admitted today to a bit of a conundrum. Addressing ACLU lawyer David Cole, Gorsuch said, assume for a moment that I agree with you on the textual evidence. But it's close; it's very close. Shouldn't a justice take into consideration the massive social upheaval that would ensue from such a decision? Wouldn't it be better to let Congress do it?
Lawyer Cole replied that the federal courts have been finding discrimination against transgender employees for 20 years and there's been no upheaval. Dress codes and sex-segregated bathrooms have not fallen, he said. There's been no tumult. Gorsuch such would play both sides of the issue as the argument unfolded, while the court's other conservatives generally seem to support the employer's position - that the 1964 law does not protect gay and transgender employees.
Justice Alito, for instance, noted that Congress in 1964 didn't have gay and transgender employees in mind at all. If the court were to interpret the statute now to prohibit discrimination against gay and trans workers, he said, the court would be, quote, "acting exactly like a legislature." Lawyer Pamela Karlan shot back that there were many kinds of discrimination Congress didn't specifically envision in 1964 that the courts have consistently found to be covered by the broad words of the statute. Justice Ginsburg chimed in that sexual harassment was not even a legal concept in 1964, and yet the Court, decades ago, found it to be prohibited conduct under the 1964 law.
The gay employees got more help from the court's other liberal justices. Justice Breyer - suppose a Catholic and a Jew get married. The employer fires the Catholic. Why? He's not against Catholics, but he is against intermarriage. That argument, Breyer suggested, is much like the argument that firing a gay employee is not because of sex. Justice Kagan pointed to what she said was the simple test that the court has used in these cases for decades. Would the same thing have happened to you if you were a different sex or religion or race? - all categories of protected people under the statute. Justice Sotomayor - at what point does a court continue to permit invidious discrimination? We can't deny that homosexuals are being fired merely for being who they are, not because they're performing their jobs poorly. Noel Francisco, representing the Trump administration, replied that sex means whether you are male or female, not whether you are gay or straight.
But Justice Gorsuch suggested that if the employer who fired Bostock was given truth serum, the reason he would likely give for firing Bostock was because he was a man who liked men. It was one of the moments Gorsuch seemed to side with gay employees. But there were many more when he seemed to go the other way. A decision is not expected until spring or early summer.
Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.