• Jereme Hines

Maintaining Impartiality in a Very Partial Era: Bostick v. Clayton County


The Supreme Court is the highest court in the land, and has made rulings that have changed the United States. Sometimes, it’s for the better, such as the defining Marbury v. Madison decision, or Brown v. Board of Education. Other times, not so much, as seen in Plessy v. Ferguson.


However, the Supreme Court can surprise you. Last week, it ruled on a particularly important case that will redefine the nature of LGBTQ+ lives permanently. In Bostick v. Clayton County, the Supreme Court was finally asked, ‘Is it legal to allow employers to discriminate by sexual orientation’? Not only did the Supreme Court rule this unconstitutional, but both Chief Justice John Roberts and traditionally conservative Justice Neil Gorsuch sided with the majority opinion, a genuine surprise for many who pay attention to politics, and a huge win for the gay community in our country.


Yet, it isn’t surprising for many who pay attention to constitutional law. Constitutional law isn’t like traditional forms of law in the United States. In criminal law cases, one seeks to find out guilt beyond a reasonable doubt. In civil cases, one seeks to ensure a just ruling based on the preponderance of evidence, and thereby award a settlement to a complainant if necessary. But in constitutional law, the Supreme Court rules on one thing, and one thing only- whether laws in the United States are constitutional. This creates a strict standard for the cases that the Court oversees every single year- Usually only about 100 of the approximately 7,000 cases that are referred to the Supreme Court are presided over by the Court.


And it means that those who judge these cases have to be the best of the best in the field of Constitutional law. Though recent controversy over the addition of Justice Gorsuch and Kavanaugh by President Trump have made many question the integrity of the Supreme Court, it is clear that there is a large difference in our country in making laws and presiding over law, one where party affiliation doesn’t matter so much as how one interprets the Constitution.

Take Justice Gorsuch, for example. Gorsuch and I are certainly on different sides of the debate on how to elucidate the Constitution. While I believe in a loose interpretation- that is, working with the understanding that the Constitution is the ‘living document’ that it has been purported to be and looking past the Constitution to make decisions based on the changing nature of our modern world- Gorsuch believes in utilizing an Originalist interpretation, or making a ruling based on the original meaning of a law when it was written, or seeking to apply the original meaning of the Constitution.


It makes it all the more fascinating when you consider that Justice Gorsuch wrote the majority opinion for Bostock v. Clayton County, and the Court’s reasoning for ruling in favor of the plaintiff. According to the opinion, the Court sought to answer whether or not Gerald Bostock, an employee of Clayton County’s juvenile court system, was discriminated against and ultimately fired for expressing interest in a gay softball league. He sued the County over Title VII of the Civil Rights Act, stating that it was his sexual orientation that led to gender discrimination, to which the Court agreed. How can the Court state that gender rather than sexual orientation led to discrimination in this case? The majority recognized that "[...] homosexuality and transgender status are inextricably bound up with sex."


In essence, it’s not that Clayton County fired Bostic for being gay. Rather, the Court reasoned, it fired him for being a gay man. It meant that, for all intents and purposes, if the employer was dealing with a woman’s attraction to men rather than a man’s attraction to the same sex, the firing most likely wouldn’t have happened in the first place. Gorsuch furthered this reasoning with two linchpins in his originalist argument. First, he cited the ‘original’ meaning of Title VII of the Civil Rights Act in regards to sex within the Merriam-Webster Dictionary of the era, and precedent of the usage of the Civil Rights Act in previous Court rulings in reference to the law.


What does all of this mean, anyway? It means that for such a divided two-party system that exists in our government, the Supreme Court is proving itself to not be a battlefield of ideology, but a battlefield for what the Constitution really means. If justices like Gorsuch and Roberts can set aside their differences from Ginsburg and Sotomayor and make a ruling ensuring one of those most important qualities of America- the right of full equality for all- it might mean that not all is lost.


Jereme Hines is an Opinion Contributor for The National Times.