Elated, Brilliant or Dangerous: Georgia's Legal Community Reacts to SCOTUS LGBTQ Opinion
What began as a pro se case by a child welfare services coordinator with Clayton County's juvenile court who was fired after he joined a gay recreational softball league became one of three cases on which the U.S. Supreme Court rested its landmark discrimination ruling.
June 15, 2020 at 08:19 PM
10 minute read
A number of Georgia lawyers joined others across the country in heralding Monday's U.S. Supreme Court ruling extending workplace discrimination protections to the LGBTQ community, even as some conservative attorneys suggested it could cost President Donald Trump his evangelical base.
The 6-3 order quickly spurred debate by lawyers and academics, especially because Trump appointee Justice Neil Gorsuch wrote the majority opinion. Some noted the opinion goes a long way toward eliminating what to date has been a patchwork of state and local laws extending protections to the LBGTQ community. Others said Gorsuch's approach, while focusing on the text of the statute, stung longtime textualists like colleague Samuel Alito, whose dissent called the majority ruling "like a pirate ship flying under a textualist flag."
Atlanta resident Gerald Bostock, the only surviving appellant from three cases that Monday's opinion addressed, said the litigation that has changed his life "is such a bigger issue than my own personal experiences."
"I've been looking forward to this moment for quite a while," he said. "I am just thrilled, and I am proud that I have been part of this journey and have been able to contribute to this historic moment today. … I think in this time of uncertainty and civil unrest, I hope people see this as a step in the right direction for our country. There is absolutely no room in this world for discrimination, for racism. I hope this sheds a little bit of light in these dark days."
Here's what Georgia lawyers and others are saying:
Thomas Mew, partner at Buckley Beal who represented Bostock: "In a moment when so many are hurting and reeling from the injustices of inequality, this is a positive step in the right direction for equal rights. But there is still so much work to be done, as recent events underscore. For the last seven years, Gerald's been looking forward to this moment and the chance to finally have his day in court. He is eager to resume his case and continue his fight for LGBTQ equality in Georgia and beyond; and stand up for the equal rights of everyone."
Sean J. Young, legal director, ACLU of Georgia: "Today's Supreme Court decision directly undermines any attempts to eviscerate protections for LGBTQ people in health care. The Supreme Court said today that discrimination against LGBTQ people is discrimination because of sex. The Affordable Care Act prohibits health care discrimination because of sex. The administration cannot rewrite the statute or overrule the Supreme Court. … Today's decision certainly calls into question whether the federal government's decision to discriminate against transgender people is unlawful."
Michael Bishop, AT&T corporate attorney and plaintiff in Inniss v. Aderhold which challenged Georgia's same-sex marriage ban: "I'm absolutely elated and, frankly, somewhat surprised because this was a matter of statutory interpretation that could easily have gone either way, depending on the personalities and points of view of the justices on the court. … It's one thing to tell people they can live their lives in a certain way, free to be who they are, … But if their economic livelihoods can be ripped away on the irrational basis of their sexual identity, they really have very little assurance that their lives and who they are are really protected under the law. Today we have seen the Supreme Court give us that assurance."
Sarah Gerwig-Moore, professor of law and associate dean for academic affairs, Mercer University School of Law: "It doesn't matter how employers or the dissent or others characterize the discrimination; 'Title VII prohibits all forms of discrimination because of sex, however they may manifest themselves or whatever other labels might attach to them.' What a thoughtful, thorough, brilliant, and life-affirming opinion." Twitter.
Stacey Abrams, former Georgia gubernatorial candidate, and chair of Fair Fight Action: "Based in part on a Georgia case, the Supreme Court ruled that Title VII of the 1964 Civil Rights Act covers the #LGBTQ community. Identity matters. Politics matter. Voting matters. A law made real by protest in 1964 protects folks in 2020." Twitter.
Carrie Severino, president of Judicial Crisis Network: "Have no doubts about what happened today: This was the hijacking of textualism. You can't redefine the meaning of words themselves and still be doing textualism. This is an ominous sign for anyone concerned about the future of representative democracy." Twitter.
Deepak Gupta of Gupta Wessler: "Today's opinion will have a hugely positive impact for millions of LGBTQ Americans. But it's also a conservative masterstroke—a move designed to defend a brand of textualism as entirely principled for years to come, even if it never again delivers an outcome this progressive." Twitter.
Steve Vladeck, University of Texas law professor: "I'm far more surprised that Chief Justice Roberts *joined* the majority opinion in the #LGBT Title VII case than that Justice Gorsuch wrote it. After all, this is the same Chief Justice whose dissent from #SCOTUS's Obergefell ruling was the only one he's ever read from the bench." Twitter.
Amanda Farahany, partner at Barrett & Farahany:"This victory for the LGBTQ community shows that once again, the 11th Circuit has been improperly applying Title VII to employment cases, a statute that is intended to have broad remedial measures. Not only has the court ensured equal protection for the LGBTQ community, it has also explained that the 11th Circuit has been applying an inappropriately heightened standard. This case should provide not only protection to the LGBTQ community, but also to many other employees who have been discriminated against because of their race, religion, color, national origin, disability or age."
Timothy R. Holbrook, Emory University law professor: "My initial reaction is surprise both at the outcome and at the vote. I thought the court would reject protections for the LBGT community. … We now have national, non-discrimination protection for LBGTQ persons. It has always been the concern that our protections were patchwork depending on the states and cities. That's no longer the case."
Eric Segall, professor of law at Georgia State University: "I think it is worth noting that this is the first Supreme Court opinion in history to rule for gay rights not written by somebody named Kennedy. … Gorsuch may be more of a swing voter in these kinds of issues than we may have thought and that's a huge deal."
Jeff Graham, executive director of Georgia Equality: "While this is an important step forward in protecting members of the LGBT community against discrimination in employment, there is still much work to be done. … We stand with our colleagues, the NAACP and other organizations in urging the [Georgia] legislature to look at hate crimes legislation. … It is a time of great turmoil in our country. Today's decision is hopefully a bright spot that in the end justice can and will prevail."
Anthony Michael Kreis, incoming constitutional law professor at Georgia State University: "Today's decision is a major victory for LGBTQ employees because it protects them under federal law from workplace bias. But, for these workers, the advocacy must press on because Georgia has no state law prohibiting discrimination in private employment at all. So, those who work in smaller businesses with fewer than 15 employees still aren't afforded the vital nondiscrimination protections that Title VII offers because it doesn't cover these smaller entities. There is no way to understate it. Today is a huge step in the right to direction to give meaningful protections to thousands of LGBTQ Georgians." Twitter.
Rep. Doug Collins, ranking member of the U.S. House Judiciary Committee: "The Supreme Court's duty is to interpret law—not create it. That power belongs to one branch and one branch only: the legislative branch. Today's decision sets a dangerous precedent of taking the power of lawmaking away from our elected officials—who represent the will of the American people—and placing it into the hands of the Supreme Court."
Erick Erickson, former Macon attorney and founder of Red State: "All those evangelicals who sided with Trump in 2016 to protect them from the cultural currents just found their excuse to stay home in 2020 thank[s] to Trump's Supreme Court picks. I see some people dismissing this, but one of the chief reasons for Trump v. Hillary was a Supreme Court seat, and that Trump appointee just made history in a way a lot of Trump voters vehemently oppose."
Scott Titshaw, associate professor at Mercer University School of Law: "This is welcome news from the Supreme Court during a difficult period for our country. It's a watershed moment for fairness and equality at a time when we really need it. Bostock is a very important LGBT rights case. Many US states, including Georgia, have never prohibited employment discrimination on the basis of sexual orientation or gender identity. The Court's interpretation of Title VII will provide the first protection against discrimination that many LGBT workers have ever known."
Sarah Steele of Avraham Law: "I had said it hundreds of times … in the absence of lawmakers that will do what is right, the Supreme Court sorts it out in the end. Good job." Twitter.
Andrew Fleischman of Ross & Pines: "Back when Gorsuch was nominated, I read through his work, and [D.C. Circuit Judge Merrick] Garland's, and came away thinking Democrats had gotten pretty lucky. Not only is Gorsuch a good justice for liberty—he is a significantly better justice than the centrist Democrats were willing to settle for." Twitter.
Joyce White Vance, former U.S. attorney of the Northern District of Alabama: "Lots of amazing lawyering went into today's decision by SCOTUS that bent the moral arc further towards justice. What I love here is all of them giving credit to each other. We're indebted to all of them." Twitter.
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