Courthouse Steps Oral Argument: Title VII Cases

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On October 8, 2019, the U.S. Supreme Court will hear a trio of Title VII cases asking whether discrimination because of “sex” could include differential treatment based on sexual orientation (Zarda and Bostock) or transgender status (Harris Funeral Homes). On October 10, John Bursch, who will be arguing the Harris case, will give his take on the arguments and what the Supreme Court’s definition of “sex” portends for the future of employment law, equal opportunities in athletics, and bodily privacy.

Featuring:

John J. Bursch, Owner, Bursch Law PLLC

 

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Event Transcript

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Religious Liberties Practice Group, was recorded on Thursday, October 10, 2019, during a live Courthouse Steps teleforum conference call held exclusively for Federalist Society members.     

 

Wesley Hodges:  Welcome to The Federalist Society’s teleforum conference call.  This topic is a Courthouse Steps Oral Argument on the Title VII Cases.  My name is Wesley Hodges, and I’m the Associate Director of Practice Groups at The Federalist Society.

 

As always, please note that all expressions of opinion are those of the expert on today’s call.

 

Today, we are very fortunate to have with us Mr. John Bursch, who is owner of Bursch Law and Vice President of Appellate Advocacy at Alliance Defending Freedom. And he argued the Harris case of ADF. After our speaker has his remarks, we will have time for Q&A, so please keep in mind what questions you have for John or for these cases. Thank you very much for sharing this today. John, the floor is yours.

 

John J. Bursch:  Thank you, Wesley. Very happy to be here. As Wesley mentioned, I argued the U.S. Supreme Court Title VII case on Tuesday involving Harris Funeral Homes. But many of the underlying issues are closely connected to the Zarda and Bostock cases that were also argued that day. I intend to batch my remarks into two parts. The first is general overview of the cases and the legal issues presented for those who aren’t aware of them and the second a more detailed discussion of what happened during the oral arguments on Tuesday.

 

Starting with the Zarda and Bostock cases because they were argued first, they both involved the question of whether Title VII’s prohibition on discrimination because of sex includes differential treatment of employers based on their sexual orientation. The Bostock case involved a county government which terminated an employee who alleges that the reason for that termination was that the employer found out he played for a gay softball team and then assumed that he was gay, which is an identity that he claims. He has now sued, claiming that is sex discrimination under Title VII. The employer moved for a motion to dismiss and prevailed because Eleventh Circuit precedent barred claims based on sexual orientation brought under Title VII.

 

Zarda was a little more complicated. It involved a male sky diver who, while on a fall with a female customer, was alleged to have inappropriately touched her, defended himself by saying, “You don’t need to worry about me. I’m gay,” and was subsequently fired. The employer claimed that the termination was a result of the inappropriate touching. The employee said it was because he had said he was gay. The court, initially, went to trial on some claims, including a state law claim of discrimination based on sexual orientation, on which the company prevailed. But the Second Circuit later recognized that there was independent cause of action under Title VII for discrimination in employment based on sexual orientation. And it concluded that that claim would be litigated differently than the state claim that had already been tried to a jury. So the Court accepted both of those cases.

 

Harris Funeral Homes, the case that I argued, involves a similar question: prohibition on discrimination because of sex in the context of gender identity. In our case, Harris Funeral Homes is a fifth generation family business that has been serving grieving families in the Detroit area for more than 100 years. It has codes of conduct and sex specific dress codes to ensure that its clients can focus on processing their grief, rather than on the funeral home and its employees.

 

In 2007, the funeral home hired a male employee to serve as a funeral director, the face of the funeral home. The funeral directors interact with the grieving clients in removing the body, assisting in organizing and putting together the memorial service, and then participating in that service, as well. The employee agreed to abide by all of the employer’s policies and did follow them, including the sex specific dress code, for nearly six years. Then, the employee approached the funeral home owner with a letter that said that the employee was going to be going on a two-week vacation and when the employee came back would be dressing and presenting as a woman when working with funeral home clients.

 

The funeral home director considered that request, obviously was very concerned for the employee and the employee’s wife, also considered the needs and concerns of other female employees, including an 80-year-old woman, who would all be sharing a restroom with the employee at the site where the employee worked, and, plus, the interests of the grieving clients, and ultimately considered that he would not be able to agree to that request. The EEOC sued on the employee’s behalf, again, claiming that this was sex discrimination under Title VII. The funeral home defended on the ground that it was merely applying a sex specific dress code, which the EEOC’s own compliance manual expressly allows, and that doing so based on biological sex was not sex discrimination. And the Court granted the cert petition in that case, as well.

 

So there are two overlapping issues in the three cases. The first is whether you can prove a straight up claim of sex discrimination based on these categories on account of the language prohibiting discrimination because of sex. The second issue is whether you can assert a similar claim based on notions of sex stereotyping. And I’ll briefly describe where that comes from.

 

The U.S. Supreme Court decided a case called Price Waterhouse. Price Waterhouse itself wasn’t an opinion about stereotyping, but it did mention it. And that’s kind of what created the concept. The case itself was to determine the burden of proof in a mixed motive case. And in describing that, they also talked about the stereotypes that were used to keep Ann Hopkins, an accountant at a large accounting firm, from joining the partnership. And specifically, there were stereotypes that were made about Ann in how macho she acted. This put Ann in catch-22 because there were male employees at the accounting firm who were rewarded for being macho, but she was being penalized for it.

 

There was also substantial evidence of sex discrimination in that case whole aside from the sex stereotyping. The partnership was virtually all male. Of the 88 employees who were coming up for consideration for partnership, Ann was only the one woman out of the 88 member class. And there were lots of derogatory comments made about women in the record. So what the Supreme Court said was not that there is an independent cause of action for sex stereotyping, but that sex stereotyping can be used as evidence to prove a claim of sex discrimination.

 

There’s a third issue in the two sexual orientation cases that is not present in the gender identity case. And that is an association claim. And it’s basically premised on the idea that an employer would not be able to fire an employee for being in an interracial marriage because that would be because of race. And the claim in those cases is that, likewise, someone who has a same-sex attraction should not be able to be fired or otherwise treated adversely in employment because they have an attraction to someone of the same sex rather than the opposite sex. And so that kind of sets the stage for the U.S. Supreme Court arguments on Tuesday.

 

So as I mentioned, the Zarda and the Bostock cases started in the morning just after 10:00. Pam Karlan from the Stanford Supreme Court Clinic argued on behalf of both of the employees. And she made the point that, but for the sex of the employees, they would not have been fired. The analogy that she used is that if you had a female employee who was married to someone named Bill -- and Professor Karlan didn’t articulate this, but she was assuming that Bill is a male. So if a female employee was married to Bill, they would not be fired. But if there was a male employee who was married to Bill, they would be fired. Therefore, the only differentiation between those two things was the sex of the employee.

 

Justice Ginsburg started the questioning under the U.S. Supreme Court’s new format where the advocates now have a two minute free-fire zone where they can talk. And she asked about whether this kind of discrimination based on sexual orientation would have been in Congress’ mind at the time that Title VII was enacted in 1964. And Professor Karlan explained correctly, I think, that the claim wouldn’t necessarily have to be in Congress’ mind. What we’re looking at is the plain language of the text. So what matters is whether sex discrimination encompasses discrimination or adverse treatment based on sexual orientation.

 

That’s exactly what the U.S. Supreme Court has held in several Title VII cases, most specifically in holding that harassment claims can be brought under Title VII. It’s unlikely that there were any legislatures or Congress people in 1964 who were thinking of sex harassment when they were banning sex discrimination. But if you think about sex discrimination, as the Supreme Court always has, as treating women worse than men, at least similarly situated men, or vice versa, then sex harassment certainly fits that rubric.

 

So then Chief Justice Roberts jumped in with a question about judicial updating. And this is a concept that was introduced by Judge Posner in a concurrence in the Seventh Circuit opinion in Hively, which was the very first circuit court to recognize that you could bring a claim based on your sexual orientation under Title VII. Judge Posner is then widely criticized by folks on both sides of the legal issues for describing this as judicial updating. For those supporting the employers, the notion is that the courts should never be in the business of judicial updating anything. Only Congress can do that. For those supporting the employees in these cases, the contention is that what the Seventh Circuit did and what later circuits did was not judicial updating at all but rather simply applying the original public meaning of the statute. Professor Karlan referred to Judge Posner as a bit of a loose cannon as a jurist, which drew some pretty startling responses from some of the justices. And of course, she took the position that this was not updating but merely simply applying the plain language of the statue.

 

So then, Chief Justice Roberts pivoted to the main question. If you have a policy that applies equally to male and females without regard to sex, how can that ever be sex discrimination as the Supreme Court decided it? And this reflected the briefing of the employers and of the U.S. government as an amicus in support of the employers -- that the proper comparison in a case like this is not a male employee who is in a male relationship and a female employee with someone who is in a male relationship, but rather a male and a female who both are in a same sex relationship. And that when you compare those two individuals, you can’t say that women are being treated worse than men or men are being treated worse than women. Instead, the differentiator is employees who are experiencing same-sex attractions as opposed to opposite sex attractions. And sexual orientation is a classification that Congress has considered adding to Title VII on approximately 50 occasions, and it has never done so.

 

Professor Karlan’s response to that is that to so conclude would be to stereotype because it assumes that everybody should be attracted to the opposite sex, not their same sex. Now, at this point, Justice Ginsburg jumped in, and she made the point that, unlike race, certain distinctions require treating males and females differently. And Professor Karlan’s response to that is that Congress has provided for that with the BFOQ exception. On the BFOQ portion of Title VII is a bona fide occupational qualification. And as Justice Ginsburg pointed out much later, in the Harris Funeral Homes argument, BFOQs have traditionally been construed very narrowly by courts because, if they’re given an expansive reading, it’s to the disadvantage of women.

 

So typically, they would apply in a case where, because of pure biological and physiological differences, it’s required to have a male in a position rather than a female or vice versa. So for example, if you had a job that required you to be able to lift 200 pounds, and males were the only ones who were qualified to do the 200 pound lifting because female employees or applicants weren’t capable of doing that, the employer could use only males in that position. And that would not be sex discrimination. But that response really didn’t get to the point that Justice Ginsburg was making that even in non-BFOQ context there are distinctions between men and women that might require different treatment and that differential treatment is not necessarily discriminatory treatment.

 

So it was Justice Gorsuch then who then brought that point home by referencing gender-specific school uniforms and bathrooms, issues where men and women are treated separately, and no one considers those to be sex discrimination because there’s no burden on one or the other that is unfair or undue. In other words, women aren’t treated worse than men or vice versa. And so, interestingly, as of -- a very long colloquy then went back in forth on the issue of bathrooms and dress codes.

 

Professor Karlan, while advocating for her clients, really threw under the bus the claims of the employee in the Harris Funeral Homes case. She made clear that, for purposes of her argument, there was nothing wrong with distinguishing between males and females when it came to privacy facilities or even dress codes, as long as one sex was not burdened more than the other. So at this point, Justice Alito jumped into the fray for the first time and talked about what a big, important policy and issue this is and that it’s one that really distinctly belongs in the Legislative Branch, not the Judicial Branch. And he cited specially the Equality Act, which the U.S. House of Representatives has already passed but has stalled in the Senate, as an example where Congress is redefining sex to include sexual orientation and gender identity across the board.

 

This was the point where Professor Karlan made the comment about Judge Posner being a loose cannon. There were also some discussions between Professor Karlan and the Chief Justice involving religious exemptions when extending and how the ministerial exception, co-religionist exception, Title VII’s own religion exemption would apply to these situations. Given the amount of time that the Court and the advocates had, they weren’t able to explore that in detail, so just a quick side note on that as it came out in the briefing. The ministerial exemption, obviously, is a very limited one for only religious entities as employers. And it would not apply to employers in the private context, even those who are religiously motivated in the work that they do. And the co-religionist exemption would work the exact same way.

 

What’s more, RFRA, which might arguably be applied in a situation like this to protect a religiously motivated employer who was not a religious organization -- it’s not clear that that would apply. There’s a circuit split over RFRA’s application in a case where you have a purely private plaintiff and defendant. So in the Zarda and Bostock cases, there is no government entity. And some circuits would say RFRA does not apply. And even in the case of Harris Funeral Homes where the EEOC was the original party -- and I should have explained that the federal government is now on the funeral home’s side.

 

But the ACLU intervened on the employee’s behalf in this Sixth Circuit and continues to press that case forward. But even in that context where everyone would agree that Title VII could apply to the situation, the Sixth Circuit concluded that RFRA did not protect the funeral home’s religious beliefs in this context. And so if the justices are concerned about protecting religious liberty in this context, and Chief Justice Roberts clearly seemed to be concerned about that, none of the protections that might otherwise be available is likely to be of much safety for religiously motivated employers.

 

Before I get to the most interesting part in the very end, I still need to talk about Jesse Harris, who was the attorney who represented the employers. So he stood up, and with his two minutes, he pushed the point that Wisconsin was the very first state to add transgender and sexual orientation protections to state law back in the 1980s. And at the time, it was widely celebrated as a historic and groundbreaking event, as have other state and local laws that have added protection for those classifications. He said it would be unusual indeed to say that all of those things were completely superfluous and unnecessary if in fact Congress had prohibited discrimination based on sexual orientation and transgender status all the way back in 1964 when Title VII was enacted.

 

Justice Sotomayor was the first one to jump in as soon as Mr. Harris’ two minutes ran out, and she immediately raised the hypothetical of a male employee with a sewing hobby. And she asked if the employer thought that the man who sewed was gay and then terminated for that reason -- would that be a mixed motive termination involving both sex and sexual orientation that would be actionable under Title VII? Mr. Harris responded that that was conflating the issues of causation and injury. And he doubled down on the argument that sexual orientation and sex are two different classifications.

 

Justice Ginsburg then brought up the Oncale case. Oncale was a case that the Court decided unanimously in favor of an employee in a Title VII case. It’s been used by both sides in the litigation. For the plaintiff’s, it’s Justice Scalia’s statement in the controlling opinion that, when we’re interpreting the statute, we don’t necessarily limit ourselves to the evil that was in the minds of the legislatures at the time of the enactment. Instead, we simply look at the original public meaning and ask whether the cause of action today falls within the parameters. So in that case, it was a man who was claiming same sex sexual harassment by a supervisor. And Justice Scalia concluded that that individual was protected by Title VII, even though it’s doubtful that anyone in Congress at the time of Title VII’s enactment would have thought that such a claim was covered.

 

What the employers point to in Oncale is that Justice Scalia elaborated on why that would be so. And he said, “Well, if you had a same-sex attracted supervisor,” which was the situation in Oncale, “they would be treating differently, disadvantageously a male employee compared to a woman employee, if they had been in that same situation.” So the ultimate inquiry that Oncale announced, that women have to be treated worse than men and men worse than women, was no different than in any other case. And that’s how that scenario fit in there, just like sexual harassment.

 

So what Justice Ginsburg asked Mr. Harris is whether the decision in Oncale would have come out any differently if there were no women on the platforms. And the simpler response to that is it doesn’t matter whether there are women at the workplace. When you’re comparing an employee to another employee to determine whether there has been disparate treatment based on sex, it’s entirely appropriate to consider a hypothetical comparator, that is someone who may not actually be at the company. But you ask yourself what would the employer have done to them. And here, the appropriate comparator to a male who is in a same-sex relationship is a woman who is in a same-sex relationship. And Mr. Harris’ clients would have treated either one of those employees exactly the same.

 

So after Mr. Harris was done, the Solicitor General, Noel Francisco, came to argue as amicus in support of the employers. And again, there was a long colloquy about using restrooms. And there were some questions by Justice Gorsuch that I think may have caused some in the media to be confused about where he stands on this case because what he was asking was rather a male who identified as a woman who wanted to use the female restroom, locker room or shower at an employee would have any injury as a result of that.

 

And the answer to that would presumably be yes. I think multiple justices and advocates acknowledge that. That sounds favorable to an employee who is trying to advance a claim based on transgender status, but, in fact, Justice Gorsuch’s point appears to be that, if the Court were to rule in favor of the plaintiffs in these cases, that that would wipe away the ability of employers to have sex-specific policies in the showers, restrooms, and locker rooms or, for that matter, in other respects as well, including sex-specific dress codes. That injury shows that it’s impossible to cabin these cases in such a way that the plaintiffs can prevail without affecting all those sex-specific policies, which was a major point that the other side continued to press throughout the argument.

 

So finally, we get to Pam Karlan, Professor Karlan, back on her rebuttal and what I thought was the most interesting portion of the first hour of argument. She and Justice Alito went back and forth about a hypothetical that kind of morphed a little bit where an employer treats someone disparately, disadvantageously because of their sexual orientation without even knowing their sex. And in the most critical exchange of both hours of arguments, Professor Karlan admitted that that employee would lose.

 

So consider the situation where the employer has an application, and it asks for the applicants sex with a male box and a female box to check. And instead, the applicant crosses both of those out and simply says, “I’m gay.” The employer could chose not to hire that person, not having any idea whether they were a man or a woman. So that really proved the Solicitor General’s and Mr. Harris’ point that sex and sexual orientation are two different classifications. They’re independent concepts.

 

So when Professor Karlan then admitted that, in the situation where the employer would take that action not knowing the employees sex and said that they would lose, Justice Alito immediately responded, “Then it seems that your entire argument has fallen apart.” And it certainly had. So I don’t think that portends well for the plaintiff’s claim in that case.

 

When I stood up to argue, then, on behalf of Harris Funeral Homes, our primary point is that Title VII, in requiring that women and men be treated equal, does not require employers to treat men as women. You could certainly pass a law like that. In fact, numerous states and local jurisdictions have done so. But that, as a result, is not required by the plain text in Title VII according to its original public meaning. We took head on this argument that somehow you could terminate someone because of their transgender identity, and that would be because of sex or because of stereotyping someone about their sex.

 

And the example that we used came from a real case. It wasn’t in an employment context. But it was up in Alaska, and city commissioners in Anchorage were insisting on their reinterpretation of the meaning of sex, that a women’s overnight shelter was required to take a man who was identifying as a woman and allow that man to sleep in the same room as the women in the shelter who had been raped, trafficked and abused and to share their restroom and locker room and shower facilities with them. Ultimately, a federal court enjoined them.

 

Well, if you move that into the employment context and assume that, rather than just someone seeking shelter, it was a man identifying as a woman seeking a job as a counselor who would stay with these women, the employer would be in that same position because according to the ACLU, arguing on behalf of Stephens, but for that employee’s sex, but for the fact that they were born a man or, in their terms, assigned a male sex at birth, they would be able to work with the women and sleep with the women at that shelter. No one in 1964 would have thought that was the original public meaning of discrimination because of sex.

 

Same result with the stereotyping, whether in the context of the women’s shelter or even in athletics, it’s a mere stereotype to say that someone who is born a biological male can’t put on a women’s NBA or WNBA basketball uniform and compete against the women. And if that is the result, again, that’s totally contrary to the original public meaning.

 

So we had a number of colloquies about the privacy situation. And I think what became clear is that it’s not possible for the justices to somehow carve out sex-specific privacy facilities and dress codes from any ruling that it might otherwise make in these Title VII cases. That is because to rule in favor of the plaintiff is to accept their proposition that applying sex-based policies to someone who has a transgender identity or status -- because, according to the ACLU, to do so discriminates on the bases of sex -- then you can’t apply those policies to anybody. Because if you’re not applying those policies to anyone except those who identify as their biological sex, that too would be sex discrimination. But I think the justices, in their decision and opinion writing, are going to be focusing in large part on whether such policies can be carved out.

 

Justice Breyer also asked the question whether these cases were analogous to interracial relationships or multiple religion relationships. And that was something that I think is pretty easy to explain is different. In the interracial context, after Loving v. Virginia, everyone understands that there is no non-racist reason for someone to oppose a white employee who happens to be married to someone of a different race. And Justice Breyer suggested that maybe there could be a reason, but he didn’t state vocally what that reason might be. In contrast, there are many reasons why an employer might treat someone different based on their transgender identity that don’t have anything to do with sex.

 

In the first case, you would say that the employer is always racist. But you wouldn’t say in the second instance that an employer is acting in a sexist manner. So the ACLU continued to press that simply but for and stereotyping analyses. But obviously the implications of that are dire for sex-specific dress codes and privacy facilities. In addition, they failed for  the same reason as Professor Karlan admitted in the first set of cases.

 

So now leaving sexual orientation aside, consider an employer who has that same employment application with check boxes for male or female sex. And an applicant crosses those out and instead says that they are transgender or they are non-binary or they are gender queer or one of the other of the more than 70 gender identities that you could put on that piece of paper. And then after that, they write in, “And I will not comply with your sex-specific dress code based on biological sex.” The employer could choose not to hire that person because of that statement without having any idea whether they were male or female. The whole notion of transgender status on the one hand and sex on the other are independent concepts. And they can be acted on separately.

 

Again, we had the dispute about the comparator. The ACLU’s attorney argued that the employee in Harris Funeral Homes case was a simple example of sex discrimination because the male employee wanted to dress like a woman and present as a woman to the funeral home’s clients that employee was fired. But if a woman employee had wanted to dress as a woman and present as a woman to the funeral clients, then they would not be fired. But again, our point was that that was the wrong comparison.

 

There’s two ways that you could think about it. Affirmatively, you could say what we’re dealing with here is an employee who refuses -- a male employee who refuses to follow the sex-specific dress code and a female who follow the sex-specific dress code. So there is no valid comparison there. They’re not similarly situated, and the employer can treat them differently without being sexist.

 

The other way to think about it is to examine the hypothetical in the way the ACLU is trying to draw it. Because let’s say that there was a transgender status classification in Title VII. If you wanted to test to see whether an employer had treated someone differently because of their transgender status, you would take one employee who was transgender and another employee who was not. And yet, that’s the very hypothetical, the very comparator that the ACLU was pushing. So what that demonstrates is that the ACLU’s test was looking for transgender status differentiation and not something based on sex.

 

At the conclusion of the arguments, I’m not sure that it’s entirely clear where the justices stand. We did not hear anything from Justice Thomas. We heard very limited remarks from Justice Kavanaugh, who asked only a single question that didn’t really shed any light on whether he agreed with the plaintiffs or the defendants in this case. Looking at the other justices, I think we can count some heads.

 

Justice Sotomayor, Justice Breyer, and Justice Kagan in their questioning for the most part all seemed to favor the plaintiffs in these cases. Justice Sotomayor and Breyer in particular talked about the invidious discrimination that is occurring in our culture against individuals with same-sex orientation or a gender identity that is different than one that identifies themselves consistent with their biological sex. The three of them did not explain how you can use a statue that was intended to ensure equal treatment between men and women to address those problems. But nonetheless, that seems to be where they were coming out. In their questions,

 

Justice Alito and Chief Justice Roberts seemed to be pretty clearly on the side of the employers, just based on past decisions and their jurisprudential philosophy. I think we can assume that Justice Thomas will be in their camp and most likely Justice Kavanagh as well. So that leaves Justice Gorsuch. And the media has focused on Justice Gorsuch as possibly the pivot point in these cases. My take on where he might be at this moment, though, is a little bit different than the media.

 

Now, he did say that he thinks it’s a close case textually. And that may be true. He also said that it would be tremendous policy upheaval, certainly one inconsistent with the last 50 years of the way the judiciary has interpreted Title VII, to reread the statute to include these new classifications. And he doubled down on the point that Justice Alito and Chief Justice Roberts had made that it’s not the Court’s goal or responsibility to update statutes to account for changes in conditions. But instead, that’s something only left to Congress.

 

But I think in some of the questions where the media has focused on Justice Gorsuch the most, in assuming that he might be willing to rule for the plaintiffs, is in that injury question. And really, when you think through that, as I’ve already explained, it seems more likely to me that that’s a question that supports the employers because, if there is in fact an injury when an employer tells a male employee who identifies as a female and wants to use the female shower that they cannot use the female shower, if that’s an injury, then we’re correct that all the sex-specific policies have to go down with any holding that reads transgender status and sexual orientation into Title VII.

 

So ultimately, any time you look into the crystal ball, I think it’s difficult to predict what the justices will do. I’m probably particularly ill equipped to do that because I’ve got the bias of having represented one of the employers in the cases. But if I had to make a prediction, it seems more likely than not that the Court majority will favor the employers over the employees.

 

Now, the one justice I haven’t mentioned yet is Justice Ginsburg. And the media has not focused on her. But frankly, based on her comments, I think her vote is at least as much in play as Justice Gorsuch’s, if not more so. She certainly asked some probing questions of the lawyers representing the employers in these cases. But she also had a lot of questions for the plaintiffs’ lawyers. She had made the point about how sex, distinct among all the classifications in Title VII, does sometimes require differentiating between men and women because men and women are different. She also raised repeatedly the concern about sex-specific policies going by the wayside. And then in particular, for a justice who spent her entire legal career before she got on the bench trying to promote women’s equality, it’s a disturbing result indeed if sex is redefined in such a way that a professional sports team could not say no to a man who wanted to apply and take one of the limited spots on that team.

 

So it’s not at all clear to me how she’s going to vote yet. That could either be dispositive or it could swing the margin more strongly in favor of the employers in a way that perhaps the media is not anticipating. So that is the end of my summary about the cases and what transpired on Tuesday. At this point, I would be delighted to take any and all questions that you may have.

 

Wesley Hodges:  Fantastic. Well, thank you so much, John. We have a large audience today, and I’m sure we’ll have some questions. But here’s our first audience caller.

 

Caller 1:  A couple of thoughts. One is, if we adopted Pam Karlan’s theory of the case in terms of the association argument, does that make Lawrence v. Texas and Windsor and Obergefell easy equal protection cases? It seems like this theory might have come up in one of those cases. And the other thought is that we keep hearing about sexual orientation as a broad category. But it seems like her theory only applies to two person male/male or female/female relationships and not to bisexuals who, obviously, might be either sex or polyamorous individuals. Is it just that sexual orientation is a shorthand here, or would the argument really be that broad?

 

John J. Bursch:  Yeah. Let’s start with the second question first. I think if you asked Professor Karlan she would say that the rule that she adopts or argues for would be broad and that it would include someone who’s bisexual or polyamorous or pansexual and that is attracted to both sexes. But it’s a little hard to understand how that would work because, if you go back to the old interracial marriage cases, they were always based on an actual relationship, somebody who was married. And the theory that Professor Karlan is advancing in this case is that it’s based on an attraction as opposed to a relationship.

 

So for example, there’s no evidence in the record that the plaintiffs in either the Zarda or the Bostock cases were actually in a same-sex relationship. The allegation is merely that they were terminated because of their same-sex attractions. So that makes that theory particularly difficult to extend not only to the categories of orientation that you mentioned but even to the plaintiffs in these very cases.

 

As far as the application of that associational theory in the context of equal protection, I think that’s a very prescient question. And in fact, in the Obergefell U.S. Supreme Court oral argument, that very issue came up. The plaintiffs in those cases had asked the Court to hold that it was an equal protection violation for states to enshrine in their constitutions the definition of marriage as between one man and one woman. And Chief Justice Roberts even raised one of those equal protection questions during the oral argument. And I don’t remember the names he used, but it was something like if Jim and Sue get married and are treated one way and them Jim marries Bob and they’re treated a different way, why isn’t that an equal protection violation because of sex?

 

And notwithstanding those arguments having been presented in the briefing and at the oral argument, the Supreme Court majority in its opinion declined to go that way and I think for reasons that are very similar to these employment cases. That when you’re making a comparison like that, you’re not comparing individuals who are similarly situated. So I think that a ruling along those lines that adopts the associational theory would, in essence, have to rewrite the equal protection undergirdings of cases like Obergefell and Bowers v. Hardwick and others.

 

It would also, for reasons we haven’t yet discussed, alter the terms of the statute themselves. There are associational-based claims of discrimination in other federal statutes. But there’s no language using associational language -- or associational terms in Title VII itself. So you have to first get over the problem that the Court has never adopted that theory under equal protection, and then you would again have to read into this statute phraseology that simply isn’t there. So I think that makes it tough.

 

Now, some have speculated that the justices might go different directions on these cases. For whatever reason, they may decide that those who are treated differentially because of their sexual orientation are covered and those of transgender status not. Really, the only way that they could do that would be to adopt the associational argument in one of its forms because that claim hasn’t been brought and isn’t relevant to the transgender status. Thank you for both of those questions.

 

Wesley Hodges:  Thank you, caller. While we wait for any questions, John, is there any part of the case that you’d like to dive in in more detail?

 

John J. Bursch:  Well, just one that I’m seeing a lot appearing in the media after the arguments, and that has to do with the supposed box that Justice Gorsuch and the other conservatives are in. The media has tried to paint this box as being the justices on the conservative side of the Court having professed themselves to a textualist approach. And the media says, “Well, if you apply textualism here, the plaintiffs have to win because, but for the plaintiffs’ sex, they would not have been terminated.”

 

And in Justice Gorsuch’s comments when he was talking about the massive policy ramifications of adding these classifications to Title VII and how that would ordinarily be exclusively a legislative prerogative -- that they read that as being some hostility or reluctance to rule in favor of the plaintiffs but yet feeling constrained by his own judicial philosophy. And I think what these commentators and pundits are setting up is that, if the decision ultimately goes in favor of the employers and the Court majority tells Congress “The ball is in your court,” that that would somehow be an inappropriate exercise of the judicial power that ignores the textualist principles. That proves that the justices who have been nominated by Republican presidents are merely political hacks and not actually acting on the judicial philosophies that they profess, that the decision is therefore invalid, and that would be a reason to move forward with the Court packing plan that numerous -- the presidential democratic -- I’m sorry -- the presidential candidates on the Democrat side have advanced.

 

And I think that is a wholly wrong interpretation of the position that Justice Gorsuch and the other justices are in and a crass political move to undermine the legitimacy of the Court, which is something that the left and the media have done increasingly since the Republican nominated justices became the majority with Justice Kavanagh. I think all the textualism arguments, if you’re serious about it, go the other way. All nine justices, as recently as last term, agreed that, when you interpret a federal statute, you do so by looking at the original public meaning of the statute. And there was no one in 1964, more than half a century ago, that would have looked at the phrase “discrimination because of sex” and assumed that that included sexual orientation and transgender identity or would result in the types of results that are being advocated in these particular cases.

 

So for those who are listening, no matter what side of the issue you are with respect to the LGBT rights, everybody should care about courts being in the position of rewriting the law and depriving Americans and businesses of their ability to rely on the law the way that it’s written. We should all have that in common. And I hope that some start pushing back on that media narrative because it’s a dangerous attempt to undermine the legitimacy of the judicial branch.

 

Wesley Hodges:  Fantastic. Well, John, we have two more questions from the audience. Let’s go ahead and go to our next caller.

 

Caller 2:  Thank you for the call. Assuming that the plaintiffs win in one or both of these cases, is it plausible that the Court could write an opinion that provides for some sort of religious exemption under the First Amendment or something? And what would that look like if that’s the way the Court came down?

 

John J. Bursch:  The Court can certainly write whatever it wants. It’s proved that over and over again in the past. So if that’s the result they want to reach, I’m sure they could write it. If you wanted to provide religious protection to the employers, they would certainly have to be through the First Amendment because, as we discussed, there are flaws in here in RFRA, the ministerial exception and the co-religionist exception -- I guess not flaws but limitations that would leave a vast number of religiously motivated employers not covered.

 

Now, if they were to do that, it would probably look something like this. People of religious faith have the ability to exercise their religion not only in their synagogues and their churches and their mosques but to do so on the public square. The also have the First Amendment right to speak freely on these issues and that it would violate those protections to force an employer to hire or retain employees who are acting in ways that are in violation of their religion and to prohibit those employers from speaking as to those issues without being liable under Title VII.

 

I think that would be extraordinary for a couple of reasons. First, the issue has not been presented. As a result, it hasn’t been briefed or argued by anyone. Plus, such a blanket exemption is not the way that they would technically issue a free exercise of free speech holding. They tend to like to do that based on very specific facts before them so that they don’t end up protecting conduct that shouldn’t be protected under the first amendment or otherwise.

 

I think if they were to put out a big leaf of protection to those who are religiously motivated, it’d probably look something like what they did in Obergefell where Justice Kennedy, in his majority opinion, reminds everybody reading the opinion that religious beliefs about marriage have been held for millennia, that they are honorable, that they are decent. What he’s saying implicitly is that objections to same-sex marriage are very different than objections to interracial marriage or other types of relationships.

 

And then that could become a springing ground or a springboard for a future plaintiffs to then bring an action, like we saw with Jack Phillips in the Masterpiece Cakeshop case just a few years after Masterpiece where the Court doubled down on the honorable and decent language and noted that it was unconstitutional religious hostility on the part of Colorado officials to try to punish Mr. Phillips for his Christian beliefs about marriage. I think anything is possible. I think anything is possible, but I would be extraordinarily surprised, as surprised as anybody, if there was some broad free exercise defense for employers in the event of a plaintiff’s win.

 

Wesley Hodges:  Very good. We do have one more question in the queue. Here’s our next caller.

 

Bob Fitzpatrick:  Hi, this is Bob Fitzpatrick in D.C. Let me just say at the start this is the best hour, or however much time it’s been, that I have spent in I don’t know how long. Just a fantastic presentation. Thank you. Thank you. I have two quick questions. I think you kind of picked up on one. That was this whole textualist versus originalist textualist. Did they specifically discuss last term’s Federal Arbitration Act 9-0 decision, which I think it’s New Prime? It was either written by Gorsuch or Kavanagh where the Court said you’ve got to look at what the statute meant back in 1925. So that’s kind of my first question. My second is I’d really be curious to hear how the Court articulates 6-3, with Justice Ginsburg going along with the six. Thank you.

 

John J. Bursch:  Thank you, Bob, first for the very kind words. I appreciate that you’ve been on the call today. Yes, in New Prime, the Court, I think, made pretty clear how we should be approaching statutory interpretation. If I’m remembering this, this is going to be close to what the Court said. It’s a fundamental cannon of statutory construction that words generally should be interpreted as taking their ordinary meaning at the time Congress enacted the statute. That’s a very different standard than what the legislatures thought or intended at the time that the statute was enacted.

 

And there were some funny questions and answers at the argument on Tuesday that seemed to be focusing on what was in the head of the Congress people who enacted Title VII when, really, I think in the written opinion that is highly unlikely to be the standard. I think they’re going to be looking at the dictionaries from the mid-1960s and what the general public would have understood these statutes to mean. That, after all, was the whole point that Justice Scalia was making in Oncale, that sometimes the principle evil that a statute addresses goes beyond what was in the legislator’s mind. So I think we’re living in an original public meaning world, and I expect all nine justices, whether in the majority and the descent, are going to be focused on that.

 

With respect to what a 6-3 opinion might look like, I could certainly see a possibility where the five conservative justices all vote in favor of the employers and Justice Ginsburg joins that. I don’t know that she would join the majority opinion, although that depends on what it says, of course. But I could see her writing a concurrence, a full throated concurrence that speaks to the importance of women and girls being given the equal opportunity to participate in athletics, to be protected in their bodily privacy, to not be deprived of jobs that have been set aside for women in the workforce, and say that the Court, in an opinion interpreting Title VII, cannot simultaneously rule for the plaintiffs and preserve all those rights of women.

 

She may make the case that this is something Congress can do. And in fact, there are numerous examples in the states and local governments that have added protections based on these new classifications in their own laws where they have exempted privacy spaces or made special exemptions for religion, as we were talking about in the context of the First Amendment. So this would seem to be an area that would quintessentially be for Congress because it considers all the various interests and then draws policy lines to make sure that everybody’s protected, not just one particular class of people.

 

I’ll just add an editorial comment at this point about the Equality Act that just passed the House. It doesn’t even remotely begin to do that. It simply jams the redefinition of sex through without taking into account any of these other things to the determent of women and girls and religiously motivated employers. So like you, I will be very interested to see how Justice Ginsburg calls the balls and strikes here. But I don’t think any of us should be assuming that she’s a guaranteed vote for the plaintiffs.

 

Wesley Hodges:  Here is our next caller.

 

Caller 4:  Hi, thank you. Jumping off of your discussion about the definition of sex, I’m wondering what you make of the 20 plus times the other side used the phrase “sex assigned at birth” during the discussion in terms of speaking to, I guess, an argued fluidity of that term. And relatedly, I believe it was in one of the briefs that someone argued “Well, if the Court rules in favor of Stephens here, Congress can always adjust the law to make clear what they meant by sex” and what thoughts you would have about how one would even write such a statute to exclude these varying definitions of sex. Thank you.

 

John J. Bursch:  Thank you. Well, with respect to the first question, it’s an interesting difference in use of lexicon. But ultimately, I don’t think it’ll have much substantive difference. And that’s because, although the ACLU consistently uses “sex assigned at birth” to describe what most people would think of as your biological sex, your sex identified, not assigned at birth, the brief on behalf of Stephens admits that those two concepts are the same for purposes of a Title VII analysis. So when they’re saying to the Court “sex assigned at birth,” they’re agreeing with the employer that that means your biological sex because there really isn’t a meaningful argument that anyone in 1964 would have considered sex to mean anything other than biological sex. All the dictionaries and public usages support that.

 

The way that “sex assigned at birth” is used in the briefing and the argument, for the most part, is just to confuse things. So for example, in public advocacy, someone on the other side might say, “Well, this is sex discrimination because, had Stephens been a woman rather than a man, they would have been allowed to do this. Therefore, that’s sex discrimination.” Or even stronger, Stephens was a woman, and therefore, because Stephens was not treated equally with other women, that’s somehow sex discrimination. Now, the farther you take that linguistic argument down the line, the more confusing it gets because, at some point, you’re comparing a woman to a woman, and you can’t ever have sex discrimination between two women.

 

But I don’t think the Court’s going to have to resolve that. I do urge everyone to read the transcript or listen to the audio with an ear for that point because you can hear how uncomfortable the justices are using those types of terms. There is some confusion when using “assigned at birth,” what that means exactly. But I don’t think that’ll have a dispositive impact on the decision.

 

As for Congress being able to adjust, that’s certainly possible. I would note that, if that was the ultimate holding, it would be kind of backwards of the way that we typically think about these things to the extent that subsequent legislative history is relevant at all. Typically, we look at Congress and see how they’ve reacted to subsequent decisions and amendments and use that to draw some inferences about what the original public meaning was. And here, those indicators all run in the opposite direction.

 

As I mentioned, there have been many proposals to amend Title VII, about 50 to add sexual orientation, more than a dozen to add gender identity. And Congress has rejected all of those. In 1991, there were already several circuit court decisions that had rejected adding those classifications to the statute judicially. And yet, when Congress amended Title VII, they responded to other Court decisions they didn’t like, and they didn’t respond to these at all. So I think it would be odd for the Court to say, “Well, we’ll just do what we want, and then, if Congress wants to fix it, then it can react.” If they were to do that, I think Congress would have a lot of latitude to draw the lines that it would like.

 

We have to keep in mind that this is a question of statutory interpretation, not the Constitution. So unlike the Obergefell case, Congress would be given carte blanche authority to enact the scheme that it wanted. And if Congress wanted to put strong religious liberty protections in, the way the state of Utah did when they expanded their civil rights statutes, they could do that. If they wanted to put in bodily privacy protections and privacy spaces protections as other states have done, they would be free to do that, too. Now, whether we have a climate in Washington, D.C., where such line drawing is possible is anybody’s guess. But certainly, in theory, the door would be wide open for them to do whatever they wanted with respect to the policy.

 

Wesley Hodges:  Very good. Thank you, caller, for your question. We do have another two questions in the queue, but I think we might only have time for one more.

 

John Marchioni (sp):  John Marchioni, Washington, D.C. How concerned are you about Roberts in all of this? I haven’t heard much about him, but with his view of how the Court is looked at and the sensitivity of this issue, do you have any concerns of where he’s going on this?

 

John J. Bursch:  Thanks for that question. Based on the questions that Chief Justice Roberts asked at oral argument, they were extremely one sided in favor of the employers. It did not seem like he had much of an appetite to write or even join an opinion that would suggest that the Judicial Branch could add these new classifications of protection to Title VII. We do know now, based on interviews and papers and things like that, that one, maybe perhaps two, occasions Chief Justice Roberts has changed his mind after oral argument because of a concern of the Court’s standing in the court of public opinion. The first obviously being the Affordable Care Act and it’s validity and whether the individual mandate was constitutional and a last minute decision to uphold it as a valid tax and then more recently, in the case involving the census question.

 

I don’t pretend to have Chief Justice Roberts’ ears on any of those things. I don’t know whether those media characterizations of what he did are true. I do believe that he takes his responsibilities as Chief Justice seriously, and that includes guarding the reputation integrity of the Court. But I think that it would do far more damage to the Court as an institution for the Court to ignore more than 40 years of Supreme Court precedent interpreting Title VII, as well as everybody’s understanding of what the statute meant until very recently, to come out the other way. So I would think that, to the extent he’s being motivated or pressured by any of those concerns, it would militate in favor of a decision for the employers.

 

Wesley Hodges:  John, do you have any closing thoughts for us before we wrap up today?

 

John J. Bursch:  Well, first, I want to thank everyone for tuning in today. These issues are incredibly important but maybe not so much for the reasons that you see in the media because, at bottom, these cases are really not about LGBT rights. LGBT rights are certainly an important and worthy political discussion. But it’s crystal clear from the plain text of Title VII in its original public meaning that they have nothing to do with the law as its currently written and as it was enacted more than half a century ago.

 

What this case is about is the importance of all Americans and businesses to be able to rely on the way that laws are -- to be able to rely on laws the way that they were written and on their original public meaning and on the importance of keeping the judicial function separate from the legislative function. If we are moving into an era where the court system is free to rewrite statutes in accord with their own political preferences as opposed to the original public meaning, that really spells the end of our democracy as we know it. That’s why people should care about this case.

 

Wesley Hodges:  On behalf of The Federalist Society, I’d like to thank you all for the benefits of your time and John for the benefit of your expertise and time today. We welcome all listener feedback by email at info@fedsoc.org. Thank you all for joining us for the call. We are now adjourned.

 

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