Whether American businesses may lawfully discriminate against their gay and lesbian employees is likely to be one of the first major civil rights questions facing President Donald Trump’s upcoming nominee to the Supreme Court.
Experts say succeeding Justice Anthony Kennedy — who is considered the court's foremost champion of gay rights — with a conservative picked from a list vetted by the Republican-aligned Federalist Society could could favor employers.
“There’s definitely a lot at stake here,” said James Esseks, a civil rights attorney with the American Civil Liberties Union who served served as counsel in Obergefell v. Hodges, the landmark 2015 case affirming the right to same-sex marriage. "Are LGBT people protected from discrimination in a way that most other people in the country are, or are we not?"
In recent months, federal courts have split over whether Title VII of the Civil Rights Act, which says that employers may not discriminate based on “sex,” prohibits discrimination based on sexual orientation. The court will review at least two petitions to review the issue when it meets in the fall to decide which cases it will hear next term.
It passed up the opportunity last term, but a split caused by a number of recent cases could shift the court's calculus. While the 2nd and 7th U.S. Circuit Courts of Appeals have found that Title VII applies to sexual orientation discrimination, the 11th U.S. Circuit ruled that it did not.
While most Americans believe it’s already against the law for companies to discriminate against employees based on their sexual orientation, there’s no federal law that expressly prohibits it. Most U.S. states don’t have laws on the books barring sexual-orientation discrimination, either, according to MAP, an LGBT advocacy think tank. The Supreme Court has ruled that employers may not discriminate employees based on gender stereotypes.
As Trump gears up to announce his pick to succeed Kennedy, civil rights advocates are worried that the next justice could side with the court’s four other Republican-appointed justices and find sexual orientation discrimination lawful.
Kennedy, the author of the opinion in the 2015 Obergefell decision, has been hailed as the strongest defender of gay rights in the Supreme Court’s history. Trump has said his replacement will come from a list approved by the Federalist Society, a group ideologically aligned with the Republican Party.
“Obviously the opening is going to create a seismic shift in this issue,” said Louis L. Chodoff, an attorney at Ballard Spahr who specializes in employment law.
Trump has reportedly narrowed his list of potential nominees to three conservative federal appeals court judges: Brett Kavanaugh, Raymond Kethledge and Amy Coney Barrett.
None of the three has directly ruled on sexual orientation discrimination.
Still, Kavanaugh and Kethledge generally side with with employers over workers in labor disputes. Barrett, who was a professor at the University of Notre Dame until recently, has faced criticism for giving a paid speech funded by the Alliance Defending Freedom, a group that has claimed a “homosexual agenda” will ruin society, according to the Southern Poverty Law Center, and linked homosexuality to pedophilia. She has said she didn't know about the accusations at the time she gave the speech.
Some attorneys pushed back on the idea that Trump's nominee will sign off on sexual-orientation discrimination.
"I do think it's true that conservative-leaning and Republican-appointed judges are more likely to rule for employers in Title VII cases than are progressive-leaning or Democratic appointed judges. But I don't know of any conservative judge who has a general philosophy of deferring to employers," a government attorney who works on civil rights issues told CNBC. "I think the judges on this list would focus on the actual text of Title VII and would avoid grounding their decision on some principle of deference to employers."
The attorney declined to be named because she was not speaking for the government.
Greg Nevins, an attorney at the LGBT legal advocacy group Lambda Legal, said that he is not worried about the prospects for a Supreme Court ruling on the issue.
He said that his group, which has argued successfully in a number of cases related to Title VII's application to gays and lesbians, relied on a conservative reading of the statute in order to press their legal claims.
"If the judges on the shortlist truly are in the mold of Justice Scalia, we will be just fine," he said.