Separation of Powers at the Supreme Court – What the Justices’ Questions Revealed.

Yesterday we highlighted the point that the three sex discrimination cases being heard at the Supreme Court were not about “LGBT rights,” but about the Constitution’s “separation of powers” and the ultimate question of who gets to legislate and who does not in our system of government.

Some of the questioning at yesterday’s oral argument revealed that at least some of the justices understood what is really at stake in these cases.

Justice Alito went to the heart of this issue in his first question to the attorney representing the two homosexual-identified employees who were fired from their jobs in the Bostock and Zarda cases.

“May I ask you to respond to what some people will say about this Court if we rule in your favor?” the justice asked. “And what they will say is that whether Title VII should prohibit discrimination on the basis of sexual orientation is a big policy issue, and it is a different policy issue from the one that Congress thought it was addressing in 1964. And Congress has been asked repeatedly in the years since 1964 to address this question. The Equality Act is before Congress right now. Congress has declined or failed to act on these requests. And if the Court takes this up and interprets this 1964 statute to prohibit discrimination based on sexual orientation, we will be acting exactly like a legislature. We might as well just take the Equality Act and issue that as our opinion and say, as Judge Posner said, that the courts need to intervene on questions like this when the legislative branch simply will not do so. What would we — how would we respond to that question?” (Emphasis added.)

The lawyer replied to Justice Alito that the court had several times in the past done just that – acted like a legislature in redefining terms of a statute.

But isn’t that the problem? And shouldn’t this court stop legislating from the bench?

Justice Stephen Breyer, from the court’s more liberal wing, followed up after the lawyer’s response to Alito didn’t satisfy him:

“It’s a serious legal argument, and the argument is that at the time Congress wouldn’t have dreamt of this. And, therefore, the words, though they apply, they meant to exclude the gays and transgender. Now, what I need to hear is a clear answer to that question.”

It wasn’t clear from the transcript whether Breyer was satisfied with the answer he received.

Chief Justice John Roberts pointed out that when state legislatures have added sexual orientation and gender identity to nondiscrimination statutes, they have generally included religious exemptions of some kind. He was implying that if Congress were to consider adding those categories, they would have the authority to include religious exemptions, and to balance the arguments pro and con through legislation. Courts do not have that authority.

The Solicitor General of the United States, Noel Francisco used part of his argument time to agree with and emphasize the point the Chief Justice made. “This type of issue is better left to Congress than the courts,” he said. In a colloquy with Justice Stephen Breyer in the Harris Funeral Homes portion of oral arguments, Francisco again noted that if the court were to rule in favor of the three males in these cases, and bypass Congress’ ability to protect religious freedom, it would be handing “a complete victory to one side of the fight and nothing to the other side.”

“All right. I’ve got that point,” Breyer replied. “I think that is an argument in your favor.”

Justice Gorsuch brought up the issue of legislating from the bench during the Harris Funeral Homes argument, as he questioned the attorney for the male employee who wanted to dress as a woman and use the women’s restroom at work. 

“At the end of the day,” Justice Gorsuch asked,  “should [a judge] take into consideration the massive social upheaval that would be entailed in such a decision, and the possibility that Congress didn’t think about it, and that it is more effective—more appropriate—a legislative rather than a judicial function? That’s it. It’s a question of judicial modesty.”

After the attorney spoke for a while, Gorsuch broke in and asked the question again, clearly not impressed by the answer he was getting. “Do you want to address [the] arguments or not,” he asked. The attorney sputtered, “I – I thought I was.”

To be sure, much of the two hours of oral argument involved questions other than ones about the separation of powers issue. It was clear that the four justices who typically are considered more liberal—Breyer, Ginsburg, Kagan and Sotomayor—sounded as if they were convinced that a straight reading of the text of Title VII, including the word “sex,” yields a decision in favor of the employees.

But it looks like the majority of the justices were not convinced, and were more concerned about usurping the role of Congress in making decisions concerning adding homosexuality and gender identity to the law. The social fallout, as several justices noted, would be immense if the court exercised the legislative function in the manner demanded by the three employees.

Congress may, one day, include homosexuality and gender identity in Title VII. Or not. Either way, the Constitution will be served if the Supreme Court leaves that decision up to the legislative branch.