USA Today - 09.10.2019

6A z WEDNESDAY, OCTOBER 9, 2019 z USA TODAY NEWS

they are and not because of religious
reasons, not because they are perform-
ing their jobs poorly,” Associate Justice
Sonia Sotomayor said, calling it “invidi-
ous behavior.”
The three cases are among the most
significant on the high court’s 2019
docket, and the justices’ rulings are like-
ly to come in the heat of the 2020 presi-
dential campaign.
The challenges pick up where the
same-sex marriage battle left off in
2015, when the court ruled 5-4 that
states cannot bar gay men or lesbians
from getting married.
What’s different is the court itself:
The author of four major opinions ex-
panding gay rights, Anthony Kennedy,
retired last year and was succeeded by
the more conservative Kavanaugh. If his
vote was counted on by those taking the
employers’ side, he gave no hints. He
was mostly silent during Tuesday’s two
hours of oral arguments.
Gorsuchsaid sex was at least “in
play,” an acknowledgment that the gay
and transgender workers claiming sex
discrimination have a reasonable argu-
ment. What he did not say: that the
courts should fix it.
Instead, Gorsuch said the “massive
social upheaval that would be entailed
in such a decision” in the fired workers’
favor points more toward Congress. “It’s
a question of judicial modesty,” he said.
The three plaintiffs are Gerald Bos-
tock, 55, a former child welfare services
coordinator from Georgia; Donald Zar-
da, a former New York skydiving in-
structor who died at 44 in 2014 but is
represented by his sister and former
partner; and Aimee Stephens, 58, a for-
mer funeral home worker from Michi-
gan who is transgender.
Throughout the debate inside a
packed courtroom, the court’s conser-
vative and liberal justices tangled over
the text of the 1964 statute, the proper
male-female and gay-straight compari-
sons to make and the role of the courts
in righting societal wrongs.
The conversation veered from com-
parisons made by liberal justices be-
tween same-sex relationships and in-
terfaith marriages to concerns voiced by
conservative justices that a win for
LGBT rights would endanger men’s and

women’s restrooms, dress codes and fit-

ness tests.

Rather than claiming a constitutional

right to equal treatment, the challengers

must convince at least five justices that

the word “sex” in the Civil Rights Act of

1964 incorporates sexual orientation

and gender identity. “All you need to do

is show that sex played a role here,” said

Pamela Karlan, the lawyer representing

Bostock and Zarda.

That clearly was a stretch for some

conservative justices.

“You’re trying to change the meaning

of what Congress understood sex to

mean in 1964,” Associate Justice Samuel

Alito said. While Associate Justice Clar-

ence Thomas stayed characteristically

silent, Alito seemed most aligned with

the employers and the Trump admini-

stration.

Solicitor General Noel Francisco ar-

gued both cases alongside lawyers for

the Georgia county, the New York sky-

diving company and the Michigan fu-

neral home. Sex, he said, “means

whether you’re male or female, not

whether you’re gay or straight.”

Outside court, hundreds of LGBTQ

demonstrators rallied, undeterred by a

security threat that forced police to cor-

don off the street early Tuesday when

two suspicious packages were noticed.

Katherine Fuchs, 38, said she came to

the demonstration because she was

“outraged that in 2019, someone could

be fired for their sexual orientation or

gender identity.”

The impact of a victory for Bostock,

Zarda and Stephens would be greatest

in 28 states that have little or no work-

place protection for the LGBT commu-

nity. Even in states such as New York,

which does, incorporating sexual ori-

entation in the federal law barring dis-

crimination based on race, color, reli-

gion, sex or national origin would add

an important layer of protection.

About 4.5% of the U.S. population,

or roughly 11 million people, identify as

LGBTQ, of which 88% are employed.

Federal appeals courts have been

split on the question since 2017, when

the U.S. Court of Appeals for the 7th

Circuit became the first to rule that gay

men and lesbians should be covered by

the decades-old federal civil rights

law. The 2nd Circuit ruled for Zarda

last year, but the 11th Circuit, based in

Atlanta, ruled against Bostock. The

6th Circuit, based in Cincinnati, ruled

for Stephens last year.

Congress has debated the issue for

decades but “repeatedly declined to

pass bills adding sexual orientation to

the list of protected traits” under the

law, the Justice Department noted. The

Democrat-controlled House passed the

Equity Act this year, but the GOP-con-

trolled Senate has not considered it.

If the court rules that LGBTQ work-

ers are protected under the civil rights

law, it could help them win other rights

in areas such as housing, education,

health care and credit.

Contributing: Susan Miller

Court

Continued from Page 1A

Protesters on both sides gather outside the Supreme Court as justices heard

arguments in a landmark employment discrimination case. JACK GRUBER/USA TODAY

Border apprehensions drop as

migrant crackdown goes on

The number of migrants encoun-

tered at the southern U.S. border de-

clined in September for the fourth

straight month, Trump administration

officials said Tuesday.

Border officials came across about

52,000 migrants at the border last

month – down about 65% from the

peak in May of about 144,000, Acting

Customs and Border Protection Com-

missioner Mark Morgan said.

9-year-old to face 5 murder

charges in deadly Illinois fire

A prosecutor says a central Illinois

9-year-old will be charged with five

counts of first-degree murder in con-

nection with a mobile home fire that

killed five people.

Woodford County State’s Attorney

Greg Minger tells the (Peoria) Journal

Star the juvenile also will be charged

with two counts of arson and one

count of aggravated arson.

The April 6 fire nearGoodfield killed

a 1-year-old, two 2-year-olds, a man,

34, and a woman, 69.

Afghan officials say raid killed

top Al-Qaida commander

A top Al-Qaida commander was

killed in a raid by Afghan forces last

month, Afghan intelligence officials

said Tuesday, in an operation that also

killed tens of civilians.

Afghanistan’s National Directorate

for Security said Tuesday that the raid

on Sept. 23 killed Asim Omar along

with six other Al-Qaida members in

the southern Helmand province.

Omar was the head of Al-Qaida op-

erations in South Asia.

Brazilian president says oil spills

appear to be criminal

Brazilian President Jair Bolsonaro

says the oil spills that have been con-

taminating the northeastern coast

since the beginning of September ap-

pear to involve crimes. He said Tues-

day that “it seems that something was

dumped criminally.”

From staff and wire reports

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