It was no snap judgment.
That’s one thing that is clear about the order the Supreme Court issued on Monday adding to its docket three cases on whether current federal law protects L.G.B.T. employees from being fired for their sexual orientation or transgender identity.
The court had the three petitions under active review beginning in early January, and the cases were taken up 11 times at the justices’ weekly private conference. Three or four “relistings” would not be particularly noteworthy these days. A typical reason for such a delay is that a petition has failed to attract the necessary four votes and some justices are writing a dissent to explain why their colleagues should have agreed to take the case. But 11 conferences, ending not with a dissenting opinion but with a grant of review, is highly unusual.
So something else is clear about Monday’s order: If the court didn’t make a snap judgment, neither should we when it comes to understanding what just happened and what might come next. I was surprised to see predictions of doom being offered by progressive court watchers. “The absolute worst case scenario,” Ian Millhiser warned on Think Progress. The cases “could demolish sex discrimination law as we know it,” Mark Joseph Stern wrote on Slate.
I don’t mean to single out two writers whose consistently smart Supreme Court analysis I admire. I understand the progressive concern that the court might conclude that judges lack a legitimate basis for retrospectively writing “sexual orientation” or “transgender” into Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment “because of” an individual’s sex (along with race, religion and national origin). If the court were to conclude that the statute’s meaning is controlled by what those who voted for it 55 years ago thought they were doing, it would eviscerate its own precedents interpreting Title VII generously to cover, for example, sexual harassment, not only of women by men but also between members of the same sex.
But here’s the thing: The court indicated on Monday that it is not going to do that. In granting review of the transgender case, R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission, the justices rejected the questions posed to them by the employer, which lost in the lower court and consequently is the petitioner in this case. The employer, a small chain of funeral homes in Michigan that dismissed a longtime employee who was transitioning from male to female, is represented by Alliance Defending Freedom, a prominent Christian-right litigating organization. These were the questions the group told the justices were presented by the appeal:
“1. Whether the word ‘sex’ in Title VII’s prohibition on discrimination ‘because of sex’ meant ‘gender identity’ and included ‘transgender status’ when Congress enacted Title VII in 1964.
“2. Whether Price Waterhouse v. Hopkins prohibits employers from applying sex-specific policies according to their employee’s sex rather than their gender identity.”
And here is the single question that the justices have chosen to answer instead:
“Whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v. Hopkins.”
The difference between the two approaches to the case is clear. The answer to Alliance Defending Freedom’s first question is obviously “no” — gender identity wasn’t on the screen for Congress or for most of society in 1964. On the basis of that question, the transgender plaintiff, Aimee Stephens, loses.
The group’s second question requires a bit more explanation, but the answer would take the court to the same place. The funeral home had a dress code for its funeral directors that required men to wear business suits and women to wear jackets and skirts. When Anthony Stephens, soon to become Aimee, informed that funeral home’s owner that part of the transition process would involve dressing and appearing as a woman before gender reassignment surgery, the owner replied, “This is not going to work out.” The owner later testified that he fired Anthony Stephens because “he was no longer going to represent himself as a man. He wanted to dress as a woman.”
There is a body of employment law holding that differential dress codes for men and women don’t ordinarily amount to sex discrimination. So if that’s the question for the Supreme Court, Aimee Stephens loses on that score as well.
Both versions of the questions, from the Alliance Defending Freedom and the court, invoke the case of Price Waterhouse v. Hopkins. This 1989 decision expanded the concept of discrimination to hold that an employer who penalizes an employee who doesn’t conform to a stereotypical idea of the proper appearance or behavior for that person’s gender can be found to violate Title VII. The precedent has played an important role in litigation on behalf of gay men and lesbians, and it will play an important one in this case as well. The court’s rephrased question makes it clear that the justices read Price Waterhouse as encompassing a broad view of stereotyping, well beyond the dress code issue. That was the view taken by the United States Court of Appeals for the Sixth Circuit in its ruling on behalf of Ms. Stephens. By discriminating against a transgender employee, the appeals court said, an employer is necessarily “imposing its stereotypical notions of how sexual organs and gender identity ought to align.”
I have no inside information about what went on at the court during the prolonged consideration of this case. But I believe that there was an extended negotiation among the justices, aimed at crafting questions that would open up the case rather than skew it in the employer’s direction.
I’m reminded of something that happened a quarter-century ago when another potential landmark case, Planned Parenthood v. Casey, reached the court. The petition was filed in late 1991 by abortion-rights advocates who believed that the court, following the retirements of its leading liberal justices, was about to overturn Roe v. Wade. The advocates’ calculation was that if this was going to be the outcome, it would be better for it to happen quickly and decisively, in time for the 1992 presidential election to become a referendum on the right to abortion and to awaken what polls showed to be a large silent majority favoring abortion rights. So they asked the court to decide a broad question: Was Roe v. Wade still good law?
The court refused to put itself to that all-or-nothing test. Instead, it rewrote the question to address specifically the constitutionality of the three Pennsylvania abortion restrictions that were at issue. As I later learned from internal court correspondence when I was writing a biography of Justice Harry Blackmun, the author of Roe v. Wade, the instigator of this change was Justice David Souter, who said he wanted to rephrase the question “in such a way as to avoid overruling Roe.” Justice Souter, who was then one of two justices recently appointed by President George H.W. Bush, went on to provide a crucial vote as one of the five justices who preserved the right to abortion.
The times, the cases and the court are different now, of course. But the Casey story shows us that the justices are capable of taking great care not to permit overly zealous advocacy to back them into a corner.
The other two Title VII cases the court granted on Monday are Bostock v. Clayton County, Ga. and Altitude Express v. Zarda. The justices did not reword the questions in either of these cases. The wording in both is straightforward and to the point. The Bostock petition asks “Whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination ‘because of … sex’ within the meaning of Title VII. …” The Altitude Express petition’s question is only slightly different: “Whether the prohibition in Title VII of the Civil Rights Act of 1964 … against employment discrimination ‘because of … sex’ encompasses discrimination based on an individual’s sexual orientation.”
These petitions also spent four months being listed for conference after conference. My guess is that they were simply being carried along while the justices were negotiating about how to proceed with the transgender case. These cases clearly merited review. The employer had won in the Bostock case in the United States Court of Appeals for the 11th Circuit, while the gay employee had won in the Altitude Express case in the United States Court of Appeals for the Second Circuit. This is the type of division over the core meaning of a federal statute that the Supreme Court views as its obligation to resolve. While the court granted review in both cases, it has consolidated them for a single one-hour argument, probably in November and probably on the same day as the transgender case.
And what happens then? I offer my analysis less as a prediction than a caution against jumping to conclusions. But if the court is true both to the direction of its sex-discrimination precedents and to ordinary uses of the English language, all three cases ought to be easy wins for the plaintiffs. No need to rely on me; ask Judge José A. Cabranes of the Second Circuit. He is one of the judiciary’s more prominent conservatives and a judge whose opinions get the attention of conservatives on the Supreme Court. In the Second Circuit sexual orientation case, he concurred with the majority in finding that the plaintiff, Donald Zarda, had a valid Title VII claim.
“This is a straightforward case of statutory construction,” Judge Cabranes wrote. “Title VII of the Civil Rights Act of 1964 prohibits discrimination ‘because of sex.’ Zarda’s sexual orientation is a function of his sex. Discrimination against Zarda because of his sexual orientation therefore is discrimination because of his sex, and is prohibited by Title VII.”
Judge Cabranes concluded: “That should be the end of the analysis.”
The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: email@example.com.
Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram.B:
官方正版平肖猜平码猜【视】【频】【会】【议】【持】【续】【五】【小】【时】。 【结】【束】【后】，【霍】【司】【令】【怀】【着】【沉】【重】【的】【心】【情】【与】【己】【方】【所】【有】【战】【舰】【的】【指】【挥】【官】【召】【开】【视】【频】【会】【议】。 “【派】【遣】【先】【锋】【队】【伍】？”【视】【频】【中】【的】【林】【司】【令】【老】【脸】【煞】【白】，【兴】【许】【遭】【屏】【幕】【光】【反】【射】【的】【缘】【故】。 【霍】【司】【令】【深】【沉】【地】【紧】【抱】【双】【拳】，【道】【出】【商】【议】【好】【的】【计】【划】。“【各】【方】【派】【遣】【一】【艘】【战】【舰】【与】【精】【英】【队】【伍】【加】【入】【先】【锋】【部】【队】，【不】【过】【此】【前】【先】【派】【四】【艘】【驱】【逐】【舰】【接】【近】【中】【心】
「【警】【告】！【警】【告】！【前】【方】【探】【测】【到】【强】【大】【黑】【暗】【波】【动】！」 【一】【所】【名】【为】【破】【军】【的】【学】【校】【内】，【突】【然】【响】【起】【了】【警】【报】【声】。 【警】【报】【声】【传】【遍】【整】【个】【学】【园】【内】。 “【所】【有】【人】【快】【点】【准】【备】【应】【战】，【做】【好】【一】【级】【战】【斗】【准】【备】！” 【紧】【凑】【的】【步】【伐】【在】【准】【备】【室】【内】【不】【断】【地】【响】【起】。 【学】【员】【们】【正】【在】【快】【速】【前】【往】【警】【报】【处】。 【做】【好】【一】【级】【战】【斗】【警】【戒】【准】【备】！ 【此】【时】【校】【门】【外】【传】【来】【了】【一】【阵】【响】
【机】【器】【人】【背】【对】【着】【他】，【应】【该】【不】【会】【有】【问】【题】【吧】。 【不】【管】【了】！ 【管】【家】【义】【无】【反】【顾】【冲】【上】【前】，【垂】【头】，【站】【在】【床】【边】，【低】【声】【问】【道】，“【江】【小】【姐】，【您】【还】【好】【吗】？” 【默】【默】【发】【呆】【放】【空】【大】【脑】【的】【江】【长】【雪】【身】【体】【一】【僵】。 “【管】【家】？” 【她】【了】【用】【一】【种】【惊】【讶】【的】【口】【吻】。 【管】【家】【听】【着】【江】【长】【雪】【沙】【哑】【的】【嗓】【音】，【眼】【底】【闪】【过】【心】【疼】【和】【自】【责】。 “【是】【我】，【江】【小】【姐】，【您】【要】【逃】【吗】
【大】【雷】【光】【禅】【寺】【祖】【庭】【之】【大】【对】【于】【凡】【人】【来】【说】【就】【其】【一】【生】【都】【无】【法】【走】【遍】【全】【境】。【对】【于】【分】【神】【期】【修】【士】【来】【说】【也】【是】【着】【实】【够】【大】【的】。 【当】【易】【天】【站】【在】【大】【雷】【光】【禅】【寺】【的】【山】【门】【之】【下】【展】【开】【神】【念】【扫】【了】【下】【后】【脸】【上】【微】【微】【露】【出】【点】【震】【撼】【之】【色】。【自】【己】【的】【神】【念】【在】【没】【有】【隔】【断】【或】【是】【阻】【碍】【的】【情】【况】【下】【少】【说】【也】【能】【覆】【盖】【四】【五】【千】【里】【方】【圆】【境】【内】。 【可】【即】【便】【是】【这】【样】【也】【无】【法】【探】【究】【出】【大】【雷】【光】【禅】【寺】【具】【体】【占】【地】官方正版平肖猜平码猜【不】【过】【对】【此】，【林】【南】【完】【全】【没】【有】【怜】【香】【惜】【玉】【之】【心】。 “【滚】【吧】！” 【林】【南】【淡】【淡】【说】【道】。 “【你】！” 【那】【女】【性】【真】【仙】【此】【时】【也】【没】【有】【颜】【面】【继】【续】【留】【下】，【只】【能】【愤】【愤】【不】【已】【的】【离】【去】。 【而】【到】【了】【此】【时】，【整】【个】【拍】【卖】【会】【也】【已】【经】【结】【束】，【林】【南】【带】【着】【柳】【如】【卿】【和】【两】【个】【女】【儿】【离】【开】【了】【拍】【卖】【场】。 【到】【了】【外】【面】，【站】【在】【中】【州】【皇】【城】【的】【广】【场】【上】，【林】【南】【释】【放】【神】【念】，【通】【知】【正】【在】【游】
【夜】【幕】【缓】【缓】【降】【临】，【不】【知】【不】【觉】【已】【经】【到】【晚】【上】，【这】【场】【舞】【会】【也】【已】【结】【束】，【两】【人】【牵】【着】【的】【手】，【都】【不】【曾】【放】【开】【过】。 【夏】【玖】【儿】【手】【上】【突】【然】【用】【力】，【将】【白】【枫】【拉】【向】【村】【子】【中】【间】，【那】【间】【木】【质】【的】【小】【屋】，【小】【屋】【四】【周】【竹】【叶】【缠】【绕】，【百】【花】【争】【艳】。 【这】【个】【地】【方】【一】【看】，【就】【是】【闲】【情】【逸】【致】，【雅】【兴】【的】【好】【地】【方】，【只】【见】【夏】【玖】【儿】【轻】【轻】【推】【来】【房】【门】，【将】【白】【枫】【拉】【了】【进】【去】。 【随】【即】，【夏】【玖】【儿】【关】【好】
【十】【多】【匹】【优】【良】【战】【马】【踩】【着】【凌】【乱】【的】【步】【点】，【在】【一】【名】【大】【胡】【子】【的】【带】【领】【下】【向】【东】【疾】【驰】，【见】【到】【品】【水】【源】，【那】【名】【大】【胡】【子】【一】【勒】【马】【缰】。 “【元】【利】，【你】【出】【去】【这】【么】【久】，【还】【没】【喝】【过】【这】【里】【的】【茶】【吧】？【与】【外】【面】【的】【大】【为】【不】【同】，【今】【番】【好】【生】【品】【尝】【一】【下】。” **【利】【刚】【刚】【从】【西】【北】【回】【来】，【一】【身】【风】【尘】，【只】【觉】【得】【噪】【眼】【发】【干】，【他】【见】【大】【王】【亲】【自】【出】【城】【来】【迎】【接】【自】【己】，【心】【中】【感】【激】【便】【没】【提】【喝】【水】
【车】【厢】【内】，【姜】【霁】【看】【到】【她】，【微】【微】【抿】【了】【个】【笑】。 【姜】【零】【染】【看】【着】【他】【的】【笑】，【鼻】【子】【发】【酸】，【低】【唤】【一】【声】“【哥】【哥】”【过】【去】【抱】【住】【了】【姜】【霁】，【脸】【埋】【在】【他】【的】【怀】【里】，【低】【低】【抽】【噎】。 【姜】【霁】【陪】【着】【她】【哭】，【安】【抚】【的】【轻】【拍】【着】【她】【的】【背】：“【都】【会】【好】【的】。” 【回】【到】【府】【里】，【姜】【零】【染】【看】【着】【庭】【院】【里】【的】【箱】【笼】，【若】【按】【照】【计】【划】，【此】【时】【她】【应】【该】【往】【城】【外】【走】。 【他】【这】【一】【回】【来】，【所】【有】【的】【计】【划】【都】