Supreme Court Justice Neil Gorsuch, the jurist many believe holds a stolen seat on the U.S. Supreme Court, appeared to be a potential swing vote Tuesday during oral arguments in three cases that will decide if federal civil rights law bans the firing of LGBTQ people simply because they are LGBTQ.
At one point Gorsuch, 52, appeared to agree that at least in part, firing someone for being LGBTQ is sex discrimination. Sex discrimination is banned by Title VII of the Civil Rights Act of 1964.
But rather than interpreting the law and applying it, Gorsuch and the other conservatives on the Supreme Court on Tuesday offered up reasons why they just couldn’t make what they seemed to know was the right choice. And so they engaged in a massive dereliction of duty.
“We will be acting exactly like a legislature,” said Justice Samuel Alito, if the Court decides that the word “sex” in the Civil Rights Act includes and applies to LGBTQ people, according to the Los Angeles Times. He appears to be a no vote.
Chief Justice John Roberts “asked whether the court should be in the business of ‘updating old statutes’ and said the word ‘sex’ was understood at the time to mean men and women,” so he too appears to be a no vote.
Justice Brett Kavanaugh reportedly said little during Tuesday’s arguments, but he is widely expected to vote against LGBTQ civil rights.
Justice Gorsuch, a “textualist,” meanwhile, offered interesting insightful commentary.
(Textualism is a made-up theory adopted by conservatives, including the late Justice Antonin Scalia, over the past 50 years to stall progress.)
“Let’s do truth serum, OK? Wouldn’t the employer maybe say it’s because this person was a man who liked other men?” he asked when offered an example of a man being fired for dating men, when a woman would not be fired for dating men. “And isn’t that first part sex?”
But, as the Times notes, Gorsuch “also voiced concern about what he called the ‘massive social upheaval’ that might be caused by extending the law to LGBTQ workers.”
The ACLU’s National Legal Director, David Cole, pushed back against Gorsuch’s false and ignorant claim in this stunningly brave rebuke:
Here’s another powerful moment at today’s Supreme Court argument. Justice Gorsuch suggested that recognizing Title VII’s employment protections for LGBTQ people would cause “massive social upheaval.” @DavidColeACLU laid waste to that argument. pic.twitter.com/1mkCUcr2FB
— Heather Lynn Weaver (@HeatherWeaverDC) October 8, 2019
Theoretically, that’s not the job of Supreme Court justices. Aside from the fact that his claim is absolutely wrong – nearly half of Americans already believe (incorrectly) that federal law protects LGBTQ people from being fired for being LGBTQ – interpreting the law and the Constitution, not perceived possible public reaction, is their job.
Gorsuch’s words struck a nerve for my paying attention online and on social media, fueling widespread mockery.
Take a look.
It’s the old “massive social upheaval” exception to textualism. Haha https://t.co/Yr6R6i4yHr
— Rick Hasen (@rickhasen) October 8, 2019
What massive social upheaval? Does he think LGBTQ people are just hanging out at home not working? No, they’re out there doing jobs just like everyone else. Difference is some are forced to be in the closet. https://t.co/0QR4L90yLT
— Meg Hunter (@piccatarata) October 8, 2019
Gorsuch’s fear of “massive social upheaval” from LGBTQ rights is a bad legal argument. Does he think Brown v Board of Education was wrongly decided b/c southern whites threw a fit over it? The whole point of civil rights is that the upheaval doesn’t matter. https://t.co/B21LAkG2NR
— Pema Levy (@pemalevy) October 8, 2019
My gay agenda:
1) wake up
2) walk dogs
6) Go to work
7) Cause massive social upheaval pic.twitter.com/JqAIAmA5Sw
— Kurt Rex Cooper 💚 (@KurtRexCooper) October 8, 2019
glad to know Gorsuch thinks asking for everyone to have basic human decency and respect is “massive social upheaval.” https://t.co/qcgwfQ9sNm
— Haunted October Baseball Sparks 🖤🥂⚾️ (@kyliesparks) October 8, 2019
Wait. Is Gorsuch predicting a “massive social upheaval” if it becomes illegal to fire gay people? For real? https://t.co/2o9hhic3Ts
— Jason Stanford (@JasStanford) October 8, 2019
So equal rights for all & protection under the law = ‘massive social upheaval?’ 😒
— Elizabeth Quinn (@julepandme) October 8, 2019
Massive social upheaval = evangelicals can’t discriminate with impunity anymore. It’s this year’s “economic anxiety”.
— Mike ( #Democrat ) in Houston (@houston_mike) October 8, 2019
@Nebraskadems @Janekleeb @DCDPLGBTQIADems @
Here’s what Gorsuch says will happen if LGBT employees are protected by federal law echoing Iowa’s statewide lgbt employment protections: “massive social upheaval.”@SenSasse called Gorsuch a “rock star” https://t.co/khQqdVVxzH pic.twitter.com/mJZRvuzXs8
— AKSARBENT (@aksarbent) October 8, 2019
Some of us cis straights live in a world where watching our friends, family, and coworkers having their lives and careers upended by a bigoted employer would constitute “massive social upheaval” but what do I know https://t.co/67xEbgwRic
— Rebecca Salley (@rebsals) October 8, 2019
Gorsuch out here talking about the fear of “massive social upheaval” by giving human rights at work? pic.twitter.com/rrCi5geuEI
— The Uncanny Gay Tupac (@wondermann5) October 8, 2019
We are already here and out in society. It’s not “massive social upheaval” to acknowledge that and give us equal protections
— Maggie (@maggie_switzer) October 8, 2019
Massive social upheaval does tend to happen when you deny people of basic human dignity https://t.co/40jI0JuwXX
— Thom Dunngeon Master (@thomdunn) October 8, 2019
LGBTQ ppl going to work unhindered is not “massive social upheaval”
It is fine and normal and happens every day in some states.
— Adair Borges (@AdairLBorges) October 8, 2019
“massive social upheaval” like not being able to fire an employee because they present gender in a way you’re not comfortable with.
Look at Minneapolis. We enacted protections in 1993. We’re fine. https://t.co/DKkpfYrZMY
— Dianna EEEEK Anderson 🏳️🌈 (@diannaeanderson) October 8, 2019
Image by JFK Library via Flickr
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