Opinion: “Judicial Modesty” Is The New Legal Fig Leaf For Denying Civil Rights To LGBTQ Americans

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While we don’t yet know how the Supreme Court will decide the major civil rights question before it regarding whether or not gay and transgender people are protected under federal legislation that outlaws employment discrimination “on the basis of sex,” the nature of the debates and the questions raised from the bench last week when attorneys for both sides presented arguments do not reflect well on this nation’s supposed commitment to civil rights.

At a minimum, it’s fair to say it’s no slam dunk that the Supreme Court will arrive at ruling that endows LGBTQ Americans with the basic civil rights that American ideals, especially those ideals people, particularly African Americans, took to the streets for in the Civil Rights Movement in the 1960s, pose as fundamental liberties for all.

At worst, the court may very well be poised to ratify—and likely further unleash through its endorsement—rampant and hostile discrimination against people simply for how they choose to love and define their sexual and gender identity. While this case centers on employment discrimination, thus entailing grave consequences for LGBTQ people’s abilities to earn a living, a ruling that denied their civil rights would surely have ramifications well beyond the workplace and economy, serious as those elements are. Just as Trump’s virulent and loudly expressed racism has resulted in exponential increases in white nationalist and other racist violence against people of color and Jewish people, it seems to fair to expect that if the highest court in our land endorses discrimination against LGBTQ people, that a similar uptick in violence against them will likely occur.

What was most underlined in the back and forth between the justices and the attorneys is that extension of civil rights to all Americans is still in question.

Let’s underline that: Civil Rights have not been embraced by the United States for all members of society.

And that the Supreme Court is pondering and scratching its collective head about whether civil rights should be extended to all members of society is absolutely troubling.

The justices are actually wondering if it is just to have a group of second-class citizens.

We need to continue to point out this fact. And we should explore and make clear the warped reasoning coming from these supposedly prized intellects and dazzling legal minds, as I’ve done elsewhere.

For the court, the crux of the matter seemed to be whether the word “sex” in the 1964 Civil Rights Act could be construed as incorporating sexual orientation and gender identity—did it just refer to distinctions between “male” and “female,” or does it include distinctions between “gay” and “straight”?

Justice Samuel Alito at one point responded to attorney Pamela Karlan, representing two of the plaintiffs, “You’re trying to change the meaning of what Congress understood sex to mean in 1964.”

This kind of legalistic, originalist interpretive parsing seems little more than a mask, an ideological fig leaf, to disguise virulent and violent prejudice as law. Legal language is usually pretty precise when the authors want it to be, and the crafters of the 1964 act could have said “on the basis of whether one is biologically a male or a female,” and they didn’t.

Both Karlan and Justice Elena Kagan make this point pretty pointedly.

According to reporting in The New York Times, Karlan explained the logic as follows: “When an employer fires a male employee for dating men but does not fire female employees who date men, he violates Title VII.”

Kagan seemed to aver, indicating conduct needed only to be adjudicated according to an “extremely simple test”: “Would the same thing have happened to you if you were of a different sex?”

“And the text of the statute appears to be pretty firmly in Ms. Karlan’s corner,” she continued. “Did you discriminate against somebody, against her client, because of sex? Yes, you did. Because you fired the person because this was a man who loved other men.”

“This is,” she said, “the usual kind of way in which we interpret statutes now. We look to laws. We don’t look to predictions. We don’t look to desires. We don’t look to wishes. We look to laws.”

Even supposed conservative Justice Neil Gorsuch acknowledged this compelling textual basis for granting LGBTQ people civil rights. He worried, however, about the “massive social upheaval that would be entailed in such a decision” in favor of the plaintiffs, suggesting the matter might be more appropriate for Congress to take up, calling it “a question of judicial modesty.”

More of this type of smoke-and-mirrors questioning went on, with justices worrying about which bathrooms people would use, whether or not a transgender women could play on women’s sports team in school, whether an employers’ religious rights might be violated, and whether gendered dress codes could still be enforced in workplaces.

David Cole, attorney for the American Civil Liberties Union, was quite deft in re-directing the court’s focus, reminding that these were not the questions before the court.

But, seriously, are we going to decide whether or not people deserve justice based on whether or not affording them rights might entail social upheaval? Should we not have legislated de-segregation because of the upheaval it caused?

Should we allow people with racist religions to discriminate against people of color?

We seem to have decided that one, but the question of legalizing discrimination is alive and well.

And we can’t figure out how people will go to the bathroom? So let’s deny people civil rights?

Gorsuch wanted to defer a thoroughly legal and textual question to Congress, calling it “judicial modesty.”

Again, that’s another word play constructing an ideological fig leaf to mask inveterate prejudice and hatred.

It’s actually rather grossly immodest.

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Tim Libretti

Tim Libretti is a professor of U.S. literature and culture at a state university in Chicago. A long-time progressive voice, he has published many academic and journalistic articles on culture, class, race, gender, and politics, for which he has received awards from the Working Class Studies Association, the International Labor Communications Association, the National Federation of Press Women, and the Illinois Woman's Press Association.