The U.S. Supreme Court has just heard the arguments of three cases that will determine the applications of Title VII of the Civil Rights Act of 1964 to LGBTQ employment rights. But Aaron Belkin, director of the judicial advocacy group, Take Back the Court has written Justices Brett Kavanaugh and Samuel Alito a letter asking them to recuse themselves from the upcoming trials, saying they cannot be impartial.
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The letter cites a photo of the two justices posing with leaders from the National Organization for Marriage (NOM) — an anti-gay group condemned by the Human Rights Campaign for aiming to “drive a wedge between gays and blacks” — and the Catholic Church’s Congregation for the Doctrine of Faith.
NOM’s president, Brian Brown, is also president of the World Congress of Families, which the Southern Poverty Law Center has deemed a hate group.
On Oct. 29, Brown posted the photo on Twitter with the caption “Great day at the US Supreme Court.”
In the letter, Belkin says Alito and Kavanaugh cannot possibly be impartial in the cases, as evidenced by the photograph. NOM recently filed a brief with the Supreme Court urging the justices to rule to protect religious people’s rights to discriminate against LGBTQ people based on their belief that marriage is the union of one man and one woman.
“Posing for photographs with the president of an advocacy organization that has filed briefs in matters pending before the court makes a mockery of Chief Justice Roberts’ assertion that a judge’s role is to impartially call balls and strikes,” the letter says.
Kavanaugh, a Trump appointee, and Alito, a Bush appointee, are known for being particularly conservative. Last year, Kavanaugh was sworn into the Supreme Court after confirmation hearings revealed allegations that he raped Christine Blasey Ford when they were in college. Since Ford’s testimony, more women have come forward alleging sexual misconduct.
The cases in question will likely set important precedents for how anti-discrimination laws apply to LGBTQ people. One of the main contested points is whether the language “because of sex” in Title VII applies to LGBTQ people or only to the biological sex of cisgender people. The two most well-known cases include Zarda v. Altitude Express in which a gay man’s sister is suing his former employer for firing him because he disclosed he was gay and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission in which a transgender woman was fired after coming out to her employer and requesting to wear a women’s uniform.
The Department of Justice filed a brief to the Supreme Court in Aug., mentioning R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, and asking the court to rule against the plaintiff, largely because the original intent of the wording in 1964 was not to protect LGBTQ people, but rather cisgender women.
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Larger implications of these decisions will likely expand to larger controversial cultural issues like professional dress codes and separate bathrooms for men and women.
However, those supporting LGBTQ rights in these cases argue “because of sex” applies to LGBTQ people because they do not adhere to the assigned stereotypes of their biological sex.
In his letter to Kavanaugh and Alito, Belkin said Kavanaugh and Alito have an “ethical duty” to recuse themselves. He references the Code of Conduct for Federal Judges, which says judges “must take care to avoid the appearance of improper influence.” These rules do not apply to the Supreme Court, but Belkin argues Kavanaugh and Alito should maintain them regardless.
“In order to meet this duty, you must recuse yourselves from the three cases currently before the court for which the National Organization for Marriage has filed briefs,” the letter says. “The fact that the Supreme Court does not have formal ethics rules is no excuse for behaving unethically.”
Four justices have been nominated by Democratic presidents and are ideologically liberal, while five were nominated by Republicans and are conservative. However, Neil Gorsuch, usually ideologically conservative, has expressed his belief that the wording of Title VII may reasonably apply to LGBTQ people and may be a swing vote in these cases.
The Supreme Court is set to decide on these cases in 2020.