Recently, the topic of LGBTQ+ rights has gained significant media coverage as the Supreme Court decides whether employers should be able to discriminate in the hiring and firing process based on sexual orientation and gender.
The cases in question are Bostock v. Clayton County; Georgia, Altitude Express v. Zarda; and R.G., and G.R. Harris Funeral Homes v. EEOC. Many believe that the Supreme Court should decide in favor of LGBTQ+ persons due to their implied protected class status in the workplace. However, such rulings would demonstrate the practice of judicial activism — rulings based more on individual judicial opinion and broad legal interpretations — rather than a more adamant, literal approach to the legal question at hand.
In these LGBTQ+ cases, the law in question is Title VII of the Civil Rights Act of 1964, which prohibits discrimination “against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin” and gives those groups a protected class status, barring employers from firing them solely based on those identifiers. The portion of this law that the justices disagree on is whether the word “sex” is broad enough to afford equal protected class status to the LGBTQ+ community as well.
It is in the interest of the Supreme Court’s institutional credibility for the justices to follow a strict, textual interpretation of Title VII. “Sex” has a different legal and scholarly definition than the modern day definition of gender. Hence, in a strict legal and constitutional interpretation of Title VII, the LGBTQ+ community is not eligible for protected class status under the word “sex.”
Therefore, deciding in favor of the LGBTQ+ community would demonstrate judicial activism. Practices of judicial activism set dangerous and unforeseen precedent for future legal cases and can damage the reputation of the Supreme Court.
A notorious example of judicial activism setting a dangerous legal precedent is the Bush v. Gore case of 2000. The Supreme Court broadly interpreted the Constitution and stated that the recount of the presidential election vote in Florida would violate the Equal Protection Clause of the Fourteenth Amendment, effectively granting George W. Bush the presidency. Many legal scholars and politicians alike opposed this ruling, as it set a problematic precedent that the judiciary branch could decide the outcome of a presidential election.
As the Bush v. Gore example shows, the implementation of a judicial activist system exposes our nation to the risk of the judiciary branch gaining more power than the other elected branches of government. This damages not only our democracy but also comes dangerously close to violating the rule of law and separation of powers within our government. Furthermore, in Harris Funeral Homes v. Equal Opportunity Employment Commission, the funeral home was run under the owner’s personal Christian beliefs and morals. The owner religiously disagreed with certain gender identities and fired an employee that identified as a transgender woman. A finding in favor of this transgender woman would jeopardize employers’ practice of religion in the workspace.
Denying this religious owner the ability to hire and fire workers of unprotected classes directly violates the Religious Freedom Restoration Act and the Establishment Clause of the Constitution. These laws protect the right of the owner to freely practice their religious interests and beliefs in the workplace.
Nevertheless, I believe that the LGBTQ+ community are deserving of the protected class status, but it should not be decided through a single judiciary action. Instead, the integration of the LGBTQ+ community into the protected class status should be deferred to a legislative decision made by our elected representatives in Congress and the executive branch.
Judicial activism is detrimental to our rule of law and societal democracy. Hence, in these cases regarding the firing of LGBTQ+ workers, the courts should not rule in favor of those workers. But, as they are citizens of this great nation, they should be afforded the same legal protections and civil liberties as every other American. It would be best for our legal institutions and the LGBTQ+ community in the workforce to ensure their protected status through a diligent legislative process.
