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Thu Apr 25, 2019, 03:40 PM

On L.G.B.T. Rights, the Supreme Court Asks the Question.by Linda Greenhouse

'We’ll soon find out whether federal law protects L.G.B.T. employees from being fired for who they are.

It was no snap judgment.

That’s one thing that is clear about the order the Supreme Court issued on Monday adding to its docket three cases on whether current federal law protects L.G.B.T. employees from being fired for their sexual orientation or transgender identity.

The court had the three petitions under active review beginning in early January, and the cases were taken up 11 times at the justices’ weekly private conference. Three or four “relistings” would not be particularly noteworthy these days. A typical reason for such a delay is that a petition has failed to attract the necessary four votes and some justices are writing a dissent to explain why their colleagues should have agreed to take the case. But 11 conferences, ending not with a dissenting opinion but with a grant of review, is highly unusual.

So something else is clear about Monday’s order: If the court didn’t make a snap judgment, neither should we when it comes to understanding what just happened and what might come next. I was surprised to see predictions of doom being offered by progressive court watchers. “The absolute worst case scenario,” Ian Millhiser warned on Think Progress. The cases “could demolish sex discrimination law as we know it,” Mark Joseph Stern wrote on Slate.

I don’t mean to single out two writers whose consistently smart Supreme Court analysis I admire. I understand the progressive concern that the court might conclude that judges lack a legitimate basis for retrospectively writing “sexual orientation” or “transgender” into Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment “because of” an individual’s sex (along with race, religion and national origin). If the court were to conclude that the statute’s meaning is controlled by what those who voted for it 55 years ago thought they were doing, it would eviscerate its own precedents interpreting Title VII generously to cover, for example, sexual harassment, not only of women by men but also between members of the same sex.'>>>


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