There is some deep satisfaction — at least we think so — in the fact that the Supreme Court's major gay rights ruling on Monday was written by one of the court's most conservative justices — Neil Gorsuch — Donald Trump's first high court appointee.
The ruling means gay and transgender workers are protected by federal law forbidding discrimination on the basis of sex.
Gorsuch and Chief Justice John G. Roberts Jr. joined the court's liberals in the 6-to-3 ruling, saying Title VII of the Civil Rights Act of 1964, which prohibits discrimination "because of sex," includes LGBTQ employees.
"Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear," Gorsuch wrote. "An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids."
Gorsuch and Roberts were joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.
The dissenters were Clarence Thomas, Samuel A. Alito Jr. and Brett M. Kavanaugh.
Alito and Thomas argued that more than 50 years ago when the Civil Rights Act was written to protect employees against discrimination based on race, color, national origin, religion or sex, the concepts of sexual orientation and gender identity were "essentially unknown at the time." And Kavanaugh, Trump's second Supreme Court justice appointee, wrote, "Our role is not to make or amend the law. As written Title VII does not prohibit employment discrimination because of sexual orientation."
Gorsuch disagreed, writing that "the limits of the drafters' imagination supply no reason to ignore the law's demands."
He also wrote: "It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer's mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague."
There's also some satisfaction in the fact that an unlikely hero — a 1960s segregationist — paved the way for this gay rights win by trying more than 50 years ago to put a poison pill in the civil rights bill by adding the word "sex" to the legislation.
When Howard Smith, D-Virginia, introduced the idea of including the word sex in the bill "to protect our spinster friends" who were suffering from a shortage of eligible bachelors, he drew chuckles from his colleagues. Of course, his real intent was to introduce an amendment that lawmakers would find difficult to vote against but that ultimately might help kill the entire package.
Historians have written that then-president Lyndon B. Johnson and other proponents of the bill opposed Smith's amendment on those very grounds.
But one of the few women in the House at that time, then-Rep. Martha Griffiths, D-Michigan, stood to agree with Smith, arguing that without the amendment adding "sex," the law would provide black women with more rights than white women. Griffiths added, twisting the knife: "A vote against this amendment today by a white man is a vote against his wife, or his widow, or his daughter, or his sister."
Suffice it to say that the imagination of the bill's drafters also apparently saw little place for women's equal rights and protection — or frankly anyone's other than white guys, preferably straight and preferably Christian.
Yet the amendment — and the entire Civil Rights package — eventually passed, and over the next half century led to significant advances for people of color, for women and for LGBTQ Americans.
Perhaps even more importantly, Americans' attitudes have largely changed. Looking only at the LGBTQ question, a new survey from researchers at Harvard, Stanford and the University of Texas found that 83% of Americans say it should be illegal for employees to be fired based on sexual orientation. Even 74% of Republicans said that.
Likewise, 79% of Americans said it should be illegal for employees to be fired for being transgender, and 69% of Republicans agreed.
All from a poison pill spelled s-e-x.
What delicious irony.