Cases are the courts first on LGBTQ rights since Anthony Kennedys retirement and replacement by Brett Kavanaugh
A seemingly divided supreme court struggled on Tuesday over whether a landmark civil rights law protects LGBTQ people from discrimination in employment.
With the courts four liberal justices likely to side with workers who were fired because of their sexual orientation or transgender status, the question in two highly anticipated cases that filled the courtroom was whether one of the conservatives might join them.
Neil Gorsuch, Donald Trumps first appointee, said there were strong arguments favoring the LGBTQ workers. But he wondered whether the justices should take into account the massive social upheaval that might follow a ruling in their favor.
Two other conservatives, Chief Justice John Roberts and Brett Kavanaugh, did not squarely indicate their views, although Roberts questioned how employers with religious objections to hiring LGBTQ people might be affected by the outcome.
Outside the court, pro-LGBTQ protesters made their views known.
The first of two cases involved a skydiving instructor and a county government worker in Georgia who were fired for being gay. The second case dealt with Aimee Stephens, a fired transgender funeral home director, who was in the courtroom.
The Trump administration and lawyers for the employers hit hard on the changes that might be required in bathrooms, locker rooms, womens shelters and school sports teams if the court were to rule that the Civil Rights Act of 1964 covers LGBTQ people. Lawmakers, not unelected judges, should change the law, they argued.
Samuel Alito, a conservative, seemed to agree, saying Congress in 1964 did not envision covering sexual orientation or gender identity.
Youre trying to change the meaning of sex, Alito said.
Ruth Bader Ginsburg countered that Congress also could not have foreseen sexual harassment as a kind of sex discrimination in 1964, either.Elena Kagan suggested sexual orientation was a clear subset of sex discrimination, saying that a man who loves other men could not be treated differently by an employer than a woman who loves men.
Clarence Thomas, who returned to the bench after staying home sick the day before, said nothing, as is his custom.
The cases are the first on LGBTQ rights since Anthony Kennedys retirement and replacement by Kavanaugh. Kennedy was a voice for gay rights and the author of the landmark ruling in 2015 that made same-sex marriage legal. Kavanaugh generally is regarded as more conservative.
A decision is expected by early summer 2020, amid the presidential election.
A ruling for employees who were fired because of their sexual orientation or gender identity would have a big impact for the estimated 8.1 million LGBTQ workers across the country because most states dont protect them from workplace discrimination. An estimated 11.3 million LGBTQ people live in the US, according to the Williams Institute at the UCLA law school.