What Would Scalia Do?

WHY THE SUPREME COURT’S CONSERVATIVE PRINCIPLES ARE ON TRIAL IN A TRIO OF EXPLOSIVE LGBTQ CASES

- Roger Parloff

THREE EXPLOSIVE CASES ARE ABOUT TO TEST whether conservative Supreme Court justices are seen to rule according to their professed legal principles—or their politics.

On October 8, just day two of the new term, the Court will hear arguments questioning if the federal law that prohibits workplace discrimination “because of…sex”—Title VII of the Civil Rights Act of 1964—applies to discrimination on the basis of sexual orientation and gender identity.

Millions of Americans’ rights are at stake. About 4.5 percent of the adult U.S. population identify as gay or lesbian—about 11.3 million people—according to a recent Gallup poll. Another 1.6 million are transgender, estimates a friend-of-the-court brief submitted by 82 scholars who study that population. Though 22 states have enacted their own laws barring discrimination on the basis of sexual orientation and/or gender identity, 28 have not, meaning that about 44 percent of the LGBTQ population relies solely on Title VII for workplace protection.