The US Supreme Court Decision in Harris Funeral Homes v EEOC ( https://www.scotusblog.com/case-files/cases/r-g-g-r-harris-funeral-homes-inc-v-equal-opportunity-employment-commission/ ) will be published any time now, on a Monday in June 2020, and it's already June 7.
I've been writing about the case for 21 months, since September 2018. The ACLU had filed a Petition for Writ of Certiorari a few weeks before, in mid-August, and the various players were just coming into focus.
Most clearly, it appeared that Harris might develop into a battleground in the ongoing war between two massive legal machines for control of US Supreme Court civil rights practice: the ACLU, the traditional liberal defender of civil liberties, and the ADF (the Alliance Defending Freedom), the younger, hungrier, and wealthier Religious Right challenger. That is exactly what has happened.
The ADF was ready by 2018 for the two new justices appointed by the new conservative US regime; it had been painstakingly preparing for its ascendance with a series of cases prying open the religious freedom provisions of the First Amendment bit by bit for years, while absorbing the losses of liberal-majority decisions like the same-sex marriage case of Obergefell v. Hodges in 2015 (https://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf ).
Justice Gorsuch had taken his seat on the Court in 2017, but as a minority member. In October 2018 Justice Kavanaugh would join him, giving the conservatives and ADF a decisive advantage in civil rights cases.
The briefs of the respondents, petitioner, and amici were complete on November 6, 2018, and the legal community began the wait to find out if the Court would grant the Petition to bring the Harris case to the Court. We would wait a long time, as weeks turned to months. The case was rescheduled and redistributed 16 times before April 2019, when the Court finally decided to hear the case. After another unusually large submission of amicus and main briefs, oral argument took place on October 8, 2019.
Another six-month wait later, we are at last close to learning whether Aimee Stephens, the transgender employee fired in 2013 from the Harris Funeral home near Detroit by his pious employer, makes legal history. Will transgender status be found to be protected as sex discrimination under the Civil Rights Act of 1964? Stephens will not be around to celebrate or mourn; he passed away in May 2020.
The stakes for both sides have risen higher and higher since the Court took on the Harris case:
1. The new majority on the Court, consisting of Chief Justice Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh, have unified as a formidable force supporting the Religious Right agenda of the Executive Branch.
2. Two other cases have been associated with the Harris case, bringing in another weighty question that will be decided at the same time: Will sexual orientation be found to be protected as a kind of sex discrimination? (see https://www.scotusblog.com/case-files/cases/altitude-express-inc-v-zarda/ and https://www.scotusblog.com/case-files/cases/bostock-v-clayton-county-georgia/ )
3. The Executive Branch's Office of the Solicitor General under conservative appointee Noel Francisco has reversed the government's original position in the Harris case to support the ADF -- predictably, since Francisco has been an associated ADF attorney.
4. The Executive Branch has also gutted existing federal advisory rules for its civil rights agencies extending the sex category to trans and LGB employees. The President's personal lawyer, Jay Sekulow, a stalwart of the Religious Right, has been actively working to bring more cases to the Court.
5. And finally, a new and extraordinary vehemence in the trans lobby, which has resulted in the deplatforming, threatening, and assaulting of its critics, confirms many other indications that liberal enthusiasm for the trans agenda is cooling.
No one but the Court knows, as I write this, what legal arguments the Court will adopt in its forthcoming decision in Harris. But after writing something like 30 articles on the topic of the Harris case, I'd like to offer my prediction:
I think the ADF/Religious Right/employer/conservative faction will win in Harris. A win in whatever guise will have the result that transgender inclusion in federal civil rights statutes in some form or another will have to wait for federal legislative action.
The legal bases of the Harris decision will be traceable to the dissents of Justices Roberts, Scalia, Thomas, and Alito in Obergefell et al v. Hodges in 2015.
I'd like to offer some quotes from those dissents here:
Justice Roberts writing in opposition to the majority in Obergefell v Hodges (which decided that same-sex marriage must be permitted by all states):
"Petitioners make strong arguments rooted in social policy and considerations of fairness...But this Court is not a Legislature...Supporters..have achieved considerable success persuading their fellow citizens--through the democratic process-- to adopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision...as a matter of constitutional law. Stealing this issue from the people will mak[e] a dramatic social change that much more difficult to accept."
"...The right it announces has no basis in the Constitution or this Court's precedent...The majority today...seizes for itself a question the Constitution leaves to the people, at a time when the people are engaged in a vibrant debate on that question."
"Federal courts are blunt instruments when it comes to creating rights...Today's decision, for example, creates serious questions about religious liberty...[M]any good and decent people oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion is--unlike the right imagined by the majority--actually spelled out in the Constitution."
"...the majority explains that 'the necessary consequence' of laws codifying the traditional definition of marriage is to 'demea[n] or stigmatiz[e]' same-sex couples...It is one thing for the majority to conclude that the Constitution protects a right to same-sex marriage; it is something else to portray everyone who does not share the majority's 'better-informed understanding' as bigoted."
Justice Scalia in opposition to the majority:
"The opinion in these cases is the furthest extension in fact...of the Court's claimed power to create 'liberties' that the Constitution and Amendments neglects to mention."
"[The majority] have discovered...a 'fundamental right' overlooked by every person alive at the time of ratification, and almost everyone else in the time since."
Justice Thomas in opposition to the majority:
"...[T]he majority's decision threatens the religious liberty our Nation has long sought to protect...Numerous amici...have cautioned the Court that its decision here will 'have unavoidable and wide-ranging implications for religious liberty'."
"Religious liberty is about more than just the protection for 'religious organizations and persons...as they seek to teach the principles that are so fulfilling and so central to their lives and faiths'...Religious liberty liberty is about freedom of action in matters of religion generally..."
"[T]he majority goes to great lengths to assert that its decision will advance the "dignity" of same-sex couples...The government cannot bestow dignity..."
Justice Alito in opposition to the majority:
"[The] decision will be used to vilify Americans who are unwilling to assent to the new orthodoxy...By imposing its own views on the entire country, the majority facilitates the marginalization of the many Americans who have traditional ideas."
"If a bare majority of Justices can invent a new right and impose that right on the rest of the country, the only real limit on what future majorities will be able to do is their own sense of what those with political power and cultural influence are willing to tolerate."
These same justices are now the majority. Based on these precursor dissents I predict we will see 1) maintaining of the traditional meaning of the word "sex"; 2) refusal to usurp Congress's legislative powers to invent a new right; 3) concern for social implications and upheaval, as well as concern that religious freedom will be impacted; and 4) rejection of the idea that trans people should be included because they suffer social stigma and it's good for their health and dignity.
What about conflicting rights of women? The funeral home employer's a sexist who claimed he couldn't find a single woman in 50 years qualified to be a funeral director. Male funeral directors had their suits provided for free; women assistants had to wear skirts which they had to buy themselves. The employer thinks he can avoid the federal civil rights laws because his religious beliefs trump the laws. His lawyers are anti-feminist and spending millions of dollars to oppose women's reproductive rights and LGB rights worldwide. He doesn't merit feminist support.
But what would happen if the employee won on the merits, and trans status became part of the "sex" category of federal law? A cascade of substantial setbacks for women would ensue.
The best result? The Court defers to the US Congress and doesn't rule on the merits. The Congress changes in composition and engages in a real discussion of the proposed Equality Act bill, eventually incorporating the Feminist Amendments already prepared and proposed by the feminist organization Feminists in Struggle, and then passing the bill. Trans people would become part of a new category of gender-conforming people protected separately from the "sex" category, and the rights of women would be well-protected within that category as they have been since 1964.
But will the Court adopt the best result? The Magic 8-ball says No. It will find against the employee and throw in some new support for the Religious Right.
That's just one radfem's opinion.
I've been writing about the case for 21 months, since September 2018. The ACLU had filed a Petition for Writ of Certiorari a few weeks before, in mid-August, and the various players were just coming into focus.
Most clearly, it appeared that Harris might develop into a battleground in the ongoing war between two massive legal machines for control of US Supreme Court civil rights practice: the ACLU, the traditional liberal defender of civil liberties, and the ADF (the Alliance Defending Freedom), the younger, hungrier, and wealthier Religious Right challenger. That is exactly what has happened.
The ADF was ready by 2018 for the two new justices appointed by the new conservative US regime; it had been painstakingly preparing for its ascendance with a series of cases prying open the religious freedom provisions of the First Amendment bit by bit for years, while absorbing the losses of liberal-majority decisions like the same-sex marriage case of Obergefell v. Hodges in 2015 (https://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf ).
Justice Gorsuch had taken his seat on the Court in 2017, but as a minority member. In October 2018 Justice Kavanaugh would join him, giving the conservatives and ADF a decisive advantage in civil rights cases.
The briefs of the respondents, petitioner, and amici were complete on November 6, 2018, and the legal community began the wait to find out if the Court would grant the Petition to bring the Harris case to the Court. We would wait a long time, as weeks turned to months. The case was rescheduled and redistributed 16 times before April 2019, when the Court finally decided to hear the case. After another unusually large submission of amicus and main briefs, oral argument took place on October 8, 2019.
Another six-month wait later, we are at last close to learning whether Aimee Stephens, the transgender employee fired in 2013 from the Harris Funeral home near Detroit by his pious employer, makes legal history. Will transgender status be found to be protected as sex discrimination under the Civil Rights Act of 1964? Stephens will not be around to celebrate or mourn; he passed away in May 2020.
The stakes for both sides have risen higher and higher since the Court took on the Harris case:
1. The new majority on the Court, consisting of Chief Justice Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh, have unified as a formidable force supporting the Religious Right agenda of the Executive Branch.
2. Two other cases have been associated with the Harris case, bringing in another weighty question that will be decided at the same time: Will sexual orientation be found to be protected as a kind of sex discrimination? (see https://www.scotusblog.com/case-files/cases/altitude-express-inc-v-zarda/ and https://www.scotusblog.com/case-files/cases/bostock-v-clayton-county-georgia/ )
3. The Executive Branch's Office of the Solicitor General under conservative appointee Noel Francisco has reversed the government's original position in the Harris case to support the ADF -- predictably, since Francisco has been an associated ADF attorney.
4. The Executive Branch has also gutted existing federal advisory rules for its civil rights agencies extending the sex category to trans and LGB employees. The President's personal lawyer, Jay Sekulow, a stalwart of the Religious Right, has been actively working to bring more cases to the Court.
5. And finally, a new and extraordinary vehemence in the trans lobby, which has resulted in the deplatforming, threatening, and assaulting of its critics, confirms many other indications that liberal enthusiasm for the trans agenda is cooling.
No one but the Court knows, as I write this, what legal arguments the Court will adopt in its forthcoming decision in Harris. But after writing something like 30 articles on the topic of the Harris case, I'd like to offer my prediction:
I think the ADF/Religious Right/employer/conservative faction will win in Harris. A win in whatever guise will have the result that transgender inclusion in federal civil rights statutes in some form or another will have to wait for federal legislative action.
The legal bases of the Harris decision will be traceable to the dissents of Justices Roberts, Scalia, Thomas, and Alito in Obergefell et al v. Hodges in 2015.
I'd like to offer some quotes from those dissents here:
Justice Roberts writing in opposition to the majority in Obergefell v Hodges (which decided that same-sex marriage must be permitted by all states):
"Petitioners make strong arguments rooted in social policy and considerations of fairness...But this Court is not a Legislature...Supporters..have achieved considerable success persuading their fellow citizens--through the democratic process-- to adopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision...as a matter of constitutional law. Stealing this issue from the people will mak[e] a dramatic social change that much more difficult to accept."
"...The right it announces has no basis in the Constitution or this Court's precedent...The majority today...seizes for itself a question the Constitution leaves to the people, at a time when the people are engaged in a vibrant debate on that question."
"Federal courts are blunt instruments when it comes to creating rights...Today's decision, for example, creates serious questions about religious liberty...[M]any good and decent people oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion is--unlike the right imagined by the majority--actually spelled out in the Constitution."
"...the majority explains that 'the necessary consequence' of laws codifying the traditional definition of marriage is to 'demea[n] or stigmatiz[e]' same-sex couples...It is one thing for the majority to conclude that the Constitution protects a right to same-sex marriage; it is something else to portray everyone who does not share the majority's 'better-informed understanding' as bigoted."
Justice Scalia in opposition to the majority:
"The opinion in these cases is the furthest extension in fact...of the Court's claimed power to create 'liberties' that the Constitution and Amendments neglects to mention."
"[The majority] have discovered...a 'fundamental right' overlooked by every person alive at the time of ratification, and almost everyone else in the time since."
Justice Thomas in opposition to the majority:
"...[T]he majority's decision threatens the religious liberty our Nation has long sought to protect...Numerous amici...have cautioned the Court that its decision here will 'have unavoidable and wide-ranging implications for religious liberty'."
"Religious liberty is about more than just the protection for 'religious organizations and persons...as they seek to teach the principles that are so fulfilling and so central to their lives and faiths'...Religious liberty liberty is about freedom of action in matters of religion generally..."
"[T]he majority goes to great lengths to assert that its decision will advance the "dignity" of same-sex couples...The government cannot bestow dignity..."
Justice Alito in opposition to the majority:
"[The] decision will be used to vilify Americans who are unwilling to assent to the new orthodoxy...By imposing its own views on the entire country, the majority facilitates the marginalization of the many Americans who have traditional ideas."
"If a bare majority of Justices can invent a new right and impose that right on the rest of the country, the only real limit on what future majorities will be able to do is their own sense of what those with political power and cultural influence are willing to tolerate."
These same justices are now the majority. Based on these precursor dissents I predict we will see 1) maintaining of the traditional meaning of the word "sex"; 2) refusal to usurp Congress's legislative powers to invent a new right; 3) concern for social implications and upheaval, as well as concern that religious freedom will be impacted; and 4) rejection of the idea that trans people should be included because they suffer social stigma and it's good for their health and dignity.
What about conflicting rights of women? The funeral home employer's a sexist who claimed he couldn't find a single woman in 50 years qualified to be a funeral director. Male funeral directors had their suits provided for free; women assistants had to wear skirts which they had to buy themselves. The employer thinks he can avoid the federal civil rights laws because his religious beliefs trump the laws. His lawyers are anti-feminist and spending millions of dollars to oppose women's reproductive rights and LGB rights worldwide. He doesn't merit feminist support.
But what would happen if the employee won on the merits, and trans status became part of the "sex" category of federal law? A cascade of substantial setbacks for women would ensue.
The best result? The Court defers to the US Congress and doesn't rule on the merits. The Congress changes in composition and engages in a real discussion of the proposed Equality Act bill, eventually incorporating the Feminist Amendments already prepared and proposed by the feminist organization Feminists in Struggle, and then passing the bill. Trans people would become part of a new category of gender-conforming people protected separately from the "sex" category, and the rights of women would be well-protected within that category as they have been since 1964.
But will the Court adopt the best result? The Magic 8-ball says No. It will find against the employee and throw in some new support for the Religious Right.
That's just one radfem's opinion.
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