Supreme Chaos
Editor’s Note: Senior Sam Powers spent several days in Washington, D.C. observing the Supreme Court. This is the first in a series of articles based on his experience with the nation’s Judicial Branch.
This week the Supreme Court convened for its first oral arguments of the term, but, on Tuesday, the arguments outside the nation’s Highest Court were the things to watch.
Sam powers interviewing protesters outside of the Supreme Court.
Both cases argued on October 8th dealt with the issue of LGBTQ+ workplace rights; Bostock v. Clayton County dealt with discrimination against a gay man and Harris Funeral Homes, Inc. v. EEOC concerned discrimination against a transgender woman. The legal arguments were centered around Title VII of the Civil Rights Act of 1964, which outlaws workplace sex discrimination. But, the arguments in full were available to only around one hundred members of the public, so, those interested in the issues who did not want to wait in line upwards of 36 hours, found other ways to engage with the Judicial Branch.
At around 10:30 a.m, protesters began convening at the steps of the United States Supreme Court. Two distinct groups formed, but these factions did not represent the “God Hates Fags” vs. “Equality for All” dichotomy that the media has typically portrayed.
Crowded in a small space, each side had their own speakers, signs, and chants. While there was no violence, there was also little civility. One side in particular was aggressive in their tactics to overwhelm the other. Mellisa, a seasoned protester who worked for Marriage Equality USA and now works with Gays Against Guns says their strategy is to, “Envelop and drown out their [the other side’s] message.” By blocking signs, chanting, and singing, they were obstructing their opposition’s efforts.
One side was hoping the Supreme Court would find in favor of the LGBTQ plaintiffs, holding signs declaring, “Don’t Roll Back Our Rights” and t-shirts reading, “Protect LGBTQ Workers Now” most festooned in rainbow garb. These people were gathered because they believed, in the words of protester Denisha, “every human deserves to live free of hate and discrimination.”
The other side was opposed to what they believe is a broad interpretation of Title VII. Their signs read “Protect Fairness for Women” and “#SEXNOTGENDER”. This group’s positions to lay people may have seemed indistinguishable from the other side, after all, their signs appeared equally feminist and seemingly innocuous. At the beginning of the rallies, some protesters were even confused as to which side they should join due to the superficially similar signage.
Christiana Holcomb, legal counsel with Alliance Defending Freedom (the group organizing the #SEXNOTGENDER protest), explains their message: “So...the civil rights law at issue prohibits discrimination on the basis of sex….And, so, what we’re just asking is for the Supreme Court to interpret the word sex as it was originally enacted into law, as it has always meant…. It is not the Supreme Court’s job to redefine the law.”
Ms. Holcomb goes on to describe how the current interpretation of federal law has led to what her organization views as discrimination against women in violation of Title IX: “We’re seeing situations where, in Connecticut for example, where boys...are identifying as girls, they’re competing in women’s sports, and they’re dominating. That’s unfair to girls. We’re seeing situations where, like in Alaska, we’ve got cities that are trying to force women’s shelters to allow biological males to sleep alongside females.”
The other side does not see the law in the same way. The Writ of Certiorori filed on behalf of Gerald Bostock states, “because ‘statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils,’... and because it is impossible to consider a person’s sexual orientation without also considering that person’s sex…there is no longer any doubt that Title VII forbids employers from considering an employee’s sexual orientation when making employment decisions.” They believe that a strict textualist reading of Title VII, without consideration for congressional intent or the law’s “original public meaning” (what the law meant to people at the time it was passed) clearly prohibits sexual orientation discrimination.
The difference between these sides is in the way Title VII is to be interpreted. One side believes in interpreting the law based on what the law meant to the people who passed it. The other side is advocating for a definitional argument that hinges on what the term “sex discrimination” means. Does it mean discrimination against those of a certain biological sex? Does it encompass discrimination due to sex steryotyping? Does this definition include gender as well?
All of these questions are to be decided by the United States Supreme Court in a landmark Supreme Court case that will determine whether or not discrimination against LGBTQ+ individuals is permissible under federal law.
In the meantime, these citizens are taking advantage of their First Amendment rights