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Fired for being gay? LGBTQ rights return to Supreme Court.

Sometimes, to make female clients feel more comfortable while they were strapped together on a tandem jump, skydiving instructor Donald Zarda would tell them he is gay. After his employer, Altitude Express, learned of this, he was fired.

Gerald Bostock, a former child welfare services coordinator for Georgia鈥檚 Clayton County, says he was fired for a similar reason. Aimee Stephens, meanwhile, says she was fired from her job at a Detroit funeral home because she had just come out as transgender.

The U.S. Supreme Court heard oral arguments Tuesday on whether federal law prohibits employment discrimination against LGBTQ people. The law, Title VII of the Civil Rights Act of 1964, prohibits employers from discharging individuals 鈥渂ecause of such individual鈥檚 ... sex.鈥澛燱hether Title VII鈥檚 protections include sexual orientation or gender identity has divided appeals courts, and so the high court is stepping in.

The trio of cases could have significant consequences not only for the civil rights of LGBTQ Americans, but also the Supreme Court鈥檚 institutional legitimacy, some argue. All eyes will be on the court鈥檚 five conservative justices in their first full term together. Today鈥檚 questions in particular represent not just an interesting test of the textualist and originalist judicial philosophies many say they adhere to, but a signal of how the court will depart from the relatively liberal gay rights jurisprudence crafted by the recently retired Justice Anthony Kennedy.

鈥淭he real-world impacts of the case are hugely important,鈥� says Steven Schwinn, a professor at the University of Illinois, Chicago, John Marshall Law School. 鈥淪tepping back from the real world impacts, it鈥檚 a case that potentially signals the direction the court may go with regard to [LGBTQ] rights in the future.鈥�

Philosophy test

Textualism and originalism, broadly speaking, call for statutes to be interpreted as written and for the Constitution to be interpreted as the Framers originally intended. When Justice Antonin Scalia joined the court in 1986, originalism was a relatively fringe philosophy only he and a few other judges adhered to, but it has since become one of the dominant methods of judicial interpretation.

Three committed textualists now sit on the high court: Justices Neil Gorsuch, Brett Kavanaugh, and Clarence Thomas. The Title VII cases offer a unique test of that philosophy, experts say.

A focus on the plain text of the statute 鈥� the core of textualism as a method of judicial interpretation 鈥� makes it hard to conclude that gay and transgender employees aren鈥檛 protected by Title VII, some argue. If a woman is fired because she is sexually attracted to other women, for example, then she is being treated differently from a woman who is sexually attracted to men, in violation of the law.

Opponents counter that when Congress passed the Civil Rights Act, its original intent was to prohibit employers from treating members of one sex worse than similarly situated members of the other sex. Congress has also never updated the law to explicitly protect employees fired due to their sexual orientation, they point out.

鈥淭he ordinary meaning of 鈥榮ex鈥� is biologically male or female; it does not include sexual orientation,鈥� wrote the U.S. Department of Justice (DOJ) in a brief supporting the employers. And 鈥渇or more than 40 years, Congress has repeatedly declined to pass bills adding sexual orientation to the list of protected traits in Title VII.鈥�

The employees counter that this argument ignores some of the Supreme Court鈥檚 own past rulings 鈥� in particular its rulings on racial discrimination. The court struck down laws banning interracial cohabitation and interracial marriage on the grounds that discrimination on the basis of a person鈥檚 association with another person of a different race is unconstitutional.

Since then, the court has also ruled that sex-based stereotypes (in some cases) and same-sex sexual harassment are both actionable under Title VII. In the latter ruling, Justice Scalia wrote that while Congress may not have intended as much in 1964, the law should be interpreted to cover 鈥渞easonably comparable evils.鈥�

鈥淭hat鈥檚 the bind I see these textualists in,鈥� says Kimberly West-Faulcon, a professor at Loyola Law School in Los Angeles. 鈥淲ill they stick to the rules of textualism as previously articulated to them? Or will they deviate?鈥�

During oral arguments, Justice Ruth Bader Ginsburg asked Pamela Karlan, representing Mr. Bostock, how she would respond to the argument that sexual orientation discrimination could not have been in Congress鈥檚 mind when it originally passed Title VII. 鈥淚 think you read the words of the statute. And this court has recognized again and again forms of sex discrimination that were not in Congress鈥檚 contemplation in 1964,鈥� Ms. Karlan replied.

鈥淢ost courts didn鈥檛 find sexual harassment to be actionable until this court did,鈥� she added. In another case 鈥渢his court recognized that discrimination against a woman who cursed like a sailor, walked like a man, and didn鈥檛 wear makeup was reachable under Title VII.鈥欌��

This could be where the significance of the decision extends beyond the interests of LGBTQ employees across the country, some experts say.

鈥淭he Supreme Court鈥檚 legitimacy rests upon a perception that its members are applying existing law in a neutral manner,鈥� wrote William Eskridge, a professor at Yale Law School . 鈥淭he credibility of textualism as a neutral methodology depends on the court鈥檚 deciding cases like Bostock鈥檚 without regard to partisan biases.鈥�

But more than one justice argued that to apply the law in the manner the plaintiffs鈥� are arguing would be to usurp Congress鈥� role.

Justice Samuel Alito said that if Title VII is broadened to prohibit discrimination on the basis of sexual orientation, people will say it鈥檚 鈥渁 big policy issue鈥� and 鈥渁 different policy issue from the one that Congress thought it was addressing in 1964.鈥�

鈥淐ongress has been asked repeatedly in the years since 1964 to address this question,鈥� he added. 鈥淐ongress 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.鈥�

During arguments in Ms. Stephens鈥� case, Justice Neil Gorsuch seemed the most ambivalent of his conservative colleagues. 鈥淚鈥檓 with you on the textual evidence. It鈥檚 close, OK?鈥� he told David Cole, legal director for the American Civil Liberties Union, who represented Ms. Stephens. But 鈥渁t the end of the day, should [a justice] take into consideration the massive social upheaval that would be entailed in such a decision?鈥�

鈥淓qual dignity for individuals鈥�

Arguments against interpreting Title VII so that it protects LGBTQ employees are not limited to textualism and originalism. A number of faith-based organizations have filed briefs warning that interpreting Title VII to protect LGBTQ employees would jeopardize employers who may only want to hire people whose beliefs and conduct are consistent with their faith.

鈥淚 think both sides have a pretty good case,鈥� says Ilya Somin, a professor at George Mason University鈥檚 Antonin Scalia Law School. 鈥淚t wouldn鈥檛 be outrageous if the court ruled against the [employees] here, because there are plausible arguments for it, but I agree that it鈥檚 not very obvious that [sexual orientation] wouldn鈥檛 be covered.鈥�

For this reason, the absence of Justice Kennedy may not be felt too keenly. But if the current court does decide that LGBTQ employees are protected by Title VII, Professor Somin says, it would likely focus on textualism grounds.

However the cases are decided, the approach Justice Kennedy took with gay rights cases 鈥� a focus on the right to individual dignity for every American 鈥� is unlikely to be seen, in a majority opinion at least, for some time.

鈥淩ising from the most basic human needs, marriage is essential to our most profound hopes and aspirations,鈥� wrote Justice Kennedy in the landmark 2015 opinion legalizing same-sex marriage. 鈥淭heir hope is not to be condemned to live in loneliness, excluded from one of civilization鈥檚 oldest institutions.鈥�

It is that view of gay rights by the Supreme Court that could now be lost, at least among the conservative justices.

Justice Kennedy 鈥渆ncompassed both equal protection principles and due process principles, but I also think he was speaking at a higher level ... talking about equal dignity for individuals,鈥� says Professor Schwinn.

鈥淚 don鈥檛 think Justice Kavanaugh is going to share that view, and I don鈥檛 think other conservatives share that view,鈥� he adds. 鈥淚 don鈥檛 think that kind of analysis, that kind of language, is going to be in the court鈥檚 jurisprudence on this.鈥�

Indeed, while Justice Kennedy often supported protecting and expanding gay rights, he did so in a narrow fashion 鈥� often permitting exceptions and carve-outs on religious grounds, for example. As such, 鈥渋t would be easy for those who are now on the court to distinguish [his] cases without really having to overturn them,鈥� says Professor West-Faulcon.

In other words, the rights Justice Kennedy helped secure for LGBTQ Americans are unlikely to disappear, she adds, but they 鈥渃ould be in danger of becoming idiosyncratic opinions that only apply in one particular context at one particular time.鈥�

Editor鈥檚 note: This story was updated at 3 p.m. to include reporting from Tuesday鈥檚 oral arguments at the Supreme Court.