Policy Spotlight: A Practical Policy Nudge from the U.S. Supreme Court
We often think about U.S. Supreme Court decisions in terms of how they affect individual rights, or business rights, or both. But this month’s policy spotlight shines on how the Court’s recent decision in Bostock v. Clayton County may affect the fate of certain bills in the Texas Legislature next session.
In a 6-3 opinion, the Supreme Court held that the federal ban on employment discrimination “because of … sex” (under Title VII of the Civil Rights Act of 1964) covers discrimination on the basis of sexual orientation. The logic is pretty clear: if you can’t fire a man for being attracted to women, then you can’t fire a woman for being attracted to women; because the only difference in the latter scenario is that the person in question is a woman instead of a man. That’s discrimination “because of” a person’s sex. “Sex”, says Justice Gorsuch, writing for the majority, “plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
The decision has great importance to individuals, of course. But it also has interesting and perhaps important implications for the Texas Legislature. Every session, a bill is filed to impose a statewide ban on discrimination based on sexual orientation. Every session, it goes nowhere. Although the Bostock decision renders such a bill unnecessary in the employment context, what about other contexts? Might the reasoning in Bostock be applied to state and federal laws that ban sexual discrimination in areas like housing, access to credit, and insurance?
The resulting uncertainty means that if we don’t pass a statewide discrimination ban, a number of lawsuits may be filed. A statewide ban could, perhaps, prevent litigation while also providing consistency in state law.
Those opposed to passage of a statewide discrimination ban have expressed concern that such laws invite litigation. The thing is, in practice they don’t. Many local governments have had nondiscrimination ordinances in place for years, without ensuing litigation.
Second, many feel that nondiscrimination laws may threaten their religious freedom. Here we run into the question: at what point does “religious freedom” – which we rightly cherish and enshrine – become “freedom to discriminate” – which we rightly abhor and condemn? It can be a difficult question. But we’re capable of crafting legislation that accommodates the distinction, if not perfectly, at least well enough to take us in the right direction.
Could this be the session in which the Legislature passes a statewide ban on discrimination based on the trait of sexual orientation? The Bostock decision provides a new practical context for the discussion.