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Editorial: Supreme Court should adhere to ‘Equal justice under the law’

  • LGBTQ+ supporters gather in front of the U.S. Supreme Court, Tuesday, in Washington. AP

Published: 10/10/2019 5:12:04 PM
Modified: 10/10/2019 5:11:54 PM

Four days before one of the most important sessions of the U.S. Supreme Court began on Monday, “Notorious RBG” was in her element at Amherst College.

Ruth Bader Ginsburg, the 86-year-old Supreme Court justice, joked about the nickname some of her younger fans call her — comparing her to the famous rapper “The Notorious B.I.G.,” — and shared a wide range of thoughts about her life’s journey and her 26 years as one of nine justices on the nation’s highest court.

At one point, she said that “rampant discrimination” on the basis of race and gender remains in today’s society — most commonly as “unconscious bias” — but that the “changes I’ve seen in my long life make me optimistic for the future.”

We hope her optimistic lens is in focus, as it often is, because the Supreme Court’s latest docket is full of controversial cases that may seem like no-brainers to the majority of us who live in the Valley — should the rights of LGBTQ+ workers be protected, for example — but that are anything but in other parts of the country.

Conservative members are in the majority on this court, which means cases it is set to hear this term about gay rights, abortion, guns, the separation of church and state, immigration and presidential power will lead to heated debate.

That debate began Tuesday, when justices began hearing a case that tests whether employers can fire workers for being gay or transgender. The court must decide whether Title VII of the 1964 Civil Rights Act protects these individuals.

It’s maddening that the highest court in the nation has to decide if an LGBTQ+ identifying person has rights in the workplace. And it’s baffling that there’s even a debate about whether an employer has a right to fire an effective employee who happens to be gay or transgender. These protections may be have decided long ago in Massachusetts and 20 other states that have passed laws, but they clearly aren’t nationwide.

Instead, lawyers for employers in two cases argued this week that the Civil Rights Act does not protect gay and transgender employees because Congress didn’t have these employees in mind when its members passed that landmark legislation 55 years ago. Justice Samuel Alito, for example, said that if the court were to interpret the statute now to prohibit discrimination against gay and trans workers, it would be “acting like a legislature.”

That’s nonsense, and is simply an attempt to excuse bigotry and discrimination. LGBTQ+ individuals should be protected by the law, even if it wasn’t written with them in mind.

There have been many kinds of discrimination Congress didn’t specifically envision in 1964 that the courts have found to be covered by the law, as Ginsburg pointed out in court Tuesday. She used sexual harassment as an example, noting that it wasn’t even a legal concept in 1964, yet the court found it to be prohibited conduct under the 1964 law.

The Supreme Court should uphold the rights of LGBTQ+ individuals when it rules on the case next spring, and then Congress should work to pass specific laws that protect LGBTQ+ individuals in the workplace. This type of federal protection is important, given that 52 percent of LGBTQ Americans live in states that don’t have employment nondiscrimination laws, according to the Movement Advancement Project, a nonprofit that studies local, state and federal LGBTQ policies across the country.

For inspiration, Congress could look to states that have already passed such protections — or to many companies that also individually protect LGBTQ+ employees.

We hope justices will live up to the phrase chiseled onto the front of the Supreme Court building in Washington, D.C. — “Equal justice under law.”

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