Justice Sonia Sotomayor is coming to give the commencement address at my college, Ramapo College of New Jersey, on Friday, May 14.
I am especially pleased about Justice Sotomayor because of her positions on LGBT issues. Are you listening, LGBT advocates? I know I will be on May 14. And you can too, because the event will be broadcast live. If you want to know more specifics about her appearance at Ramapo, here's the press release. I'm also especially pleased that the graduating class speaker will be Brandon Martin, from my Law and Society program.
Of course, a sitting Supreme Court Justice cannot give her opinion on cases that might come before her, so don't expect to hear anything specific. But one can hope to find clues here and there. Justice Sotomayor has left a trail of breadcrumbs for us to follow, about which I have blogged before. I think it's time to dust off a few of those old posts and think about where our Justice Sotomayor (if I may be so bold) will be taking us on our journey of Supreme Court discovery. There will certainly be a number of marriage equality cases coming up soon, and I would not be surprised to see a trans workplace discrimination case there as well. I've published a law review article on my predictions as to how the Supreme Court would rule. Unfortunately, it was written just before Justice Sotomayor's nomination.
I think Justice Sotomayor's past decisions are particularly prescient, given the Obama Administration's recent decision not to defend The Defense of Marriage Act statute in the courts on the grounds that sexual orientation is a protected class. Justice Sotomayor said the same thing -- fifteen years ago.
What Opinions of Judge Sotomayor Shed Light On The Question of a Trans Employee Plaintiff Under Title VII?
Judge Sotomayor has issued many opinions, but none that address the situation of discrimination against an employee based on transgender status. However, she has written several opinions that discuss gender in the context of discrimination. These could give some hints. I discussed this two years ago, and the full post can be found here.
The courts that have denied protection to transgender employees under Title VII (the federal sex discrimination law) have interpreted that statute very narrowly, only admitting protection to a small range of cases. They have used the theory found in the Supreme Court case of Price-Waterhouse v. Hopkins, in which the Court said that sex stereotyping was a form of sex discrimination. The federal courts favoring trans employees have said that discrimination against a transgender employee on the grounds that they fail to conform to the stereotypes of their birth sex is literally prohibited "sex discrimination." Not all federal courts have agreed with this idea.
What does Judge Sotomayor think of the Price Waterhouse v. Hopkins doctrine? In 1999, she ruled against Handelsbanken, a Swedish bank that refused to promote a female executive to vice-president, despite her stellar performance in earning millions for the bank as a trader. When she got too insistent after years of stonewalling, they fired her. The male execs thought she was an aggressive "tough broad," and wanted no part of her. In court, they argued that she didn't meet the criteria for a vice-president, but Judge Sotomayor used the Price Waterhouse case to good effect, noting that two of the six principal criteria for promotion to vice president were whether someone could be a proper "role model" for the bank and whether the bank would be "comfortable" with the individual representing the bank. She showed that these code words meant one thing for the men, and another thing for the women, a fact of life that all women face every day. She refused to allow the bank to get away with this double standard.
If faced with a transgender plaintiff, and the typical argument by an employer that gender discrimination is wrong when applied to regular people but that the statute means another thing for transgender people, I suspect that Justice Sotomayor would similarly refuse to let an employer get away with a double standard.
Some courts, most notably the Second Circuit, where then-Judge (now Justice) Sotomayor sats, said that discrimination based on gender nonconformity cannot be actionable because it comes too uncomfortably close to sexual orientation discrimination, which is perfectly legal under the federal statute, as in the case of Dawson v. Bumble & Bumble. Judge Sotomayor was not involved in the Bumble case, in which a female hairdresser alleged that she was fired because her gender presentation did not conform to her employer's idea of an appropriate female. Judge Rosemary S. Pooler said the following:
When utilized by an avowedly homosexual plaintiff, however, gender stereotyping claims can easily present problems for an adjudicator. This is for the simple reason that "[s]tereotypical notions about how men and women should behave will often necessarily blur into ideas about heterosexuality and homosexuality." Like other courts, we have therefore recognized that a gender stereotyping claim should not be used to "bootstrap protection for sexual orientation into Title VII."
Would Justice Sotomayor agree with her former Second Circuit colleagues that gender identity conformity is non-actionable because it's too close to homosexuality? To the contrary, I think she would favor protecting those workers.
In 1995, in Holmes v. Artuz, she ruled against a correctional facility that had removed a prisoner from his food service job at the prison because he was gay. The correctional facility said that federal law doesn't protect people from discrimination based on sexual orientation. Judge Sotomayor said this:
Defendants argue that "the decision to reassign plaintiff from his job in food service is rationally related to a legitimate state interest in preserving order in the correction facility messhall (sic)." (Mem. of Law in Support of Defs.' Motion to Dismiss at 8-9.) However, defendants proffer no explanation of what this "rational relationship" might be. [emphasis added]. A person's sexual orientation, standing alone, does not reasonably, rationally or self-evidently implicate mess hall security concerns.
...The constitutional right not to be discriminated against for any reason, including sexual orientation, without a rational basis is an established proposition of law.
This 1995 opinion shows an uncanny legal prescience, anticipating the Supreme Court's opinions in Romer v. Evans (1996) and Lawrence v. Texas (2003), and the Obama Administration's decision on DOMA. Justice Sotomayor could have easily said that the plaintiff loses because sexual orientation isn't protected under Title VII, and she would have been unfortunately right, but she went the extra step. She looked not only at Title VII, but also at the U.S. Constitution, a sign of a constitutionally astute jurist, and much more conscientious than most.
Discussion of Justice Sotomayor re marriage equality at National LGBT Bar plenary on marriage equality
At last year's LGBT Bar Association's Lavender Law Conference there was a plenary on marriage equality. The full post can be found here.
During one answer, Prof. William Eskridge of Yale Law School said that Justice Sotomayor "gets it." I wanted to hear more on this, so I asked why he said that, and how he feels Justices Sotomayor and Kagan will rule on Perry. As I explained in my post on this issue, I think it comes down to them as to which way the Court will go.
Prof. Eskridge noted that he has known Justice Sotomayor for thirty years, and related some anecdotes to illustrate her gay friendliness, talking about Justice Sotomayor's sympathetic assistance to a gay friend and propensity to hire gay law clerks. He said that Justice Sotomayor is likely to be attracted to the standing issue (see here for more on that), and that she takes the issue seriously. She also regards the issue of the Court's legitimacy seriously, and will probably not be interested in issuing a broad opinion that imposes the issue on North Carolina and Alabama. At the same time, she will pay attention carefully to the issues and he felt that she would get it right.
My discussion of Justice Sotomayor's opinion on marriage equality
Last year, I discussed my predictions of how Justice Sotomayor might approach the California federal court decision that Proposition 8, the California referendum that changed the California Constitution to deny marriage equality, is unconstitutional. In that case, District Court Judge Vaughn Walker decided that the amendment was unconstitutional, both because sexual orientation is a protected class, and because the amendment itself is irrational, using a legal test called "rational basis review."The full post can be found here.
Would Justice Sotomayor agree that Prop 8 is unconstitutional?
Judging from the Holmes case discussed above, I'd say I believe that it's possible that she feels that sexual orientation is a protected category in and of itself, as she posited in the 1995 case of Holmes v. Artuz.
I also think that Justice Sotomayor would understand that the Prop 8 proponents need to have more than just any old reason for the law; they must have evidence that their reason actually makes sense and is related to the law itself. I don't believe that she would allow them to just cite a reason, and then have no back up for it, or be unable to refute the evidence to the contrary.
For example, in a 2007 case, she held that a rule prohibiting New York State political appointees or their families from receiving paid court appointments as fiduciaries was constitutional under the "rational basis" test. But she didn't make up her own reasons. She looked to the evidence, and found that it justified the rule.
Indeed, the Rule embodies precisely the recommendation made to Chief Judge Kaye by the Commission on Fiduciary Appointments, which it developed in response to concrete information about the politically motivated appointments actually occurring and about the resulting public perception that the process was compromised...Given that the Rule serves such a critical purpose, and was developed carefully to respond to a comprehensively documented problem, we reject Kraham's argument that the Rule imposes a greater burden than the state's interests justify.
Had this been a Scalia-Thomas-Alito-Roberts opinion, it would have said that there was a reason for the law, that the legislature wanted to avoid the appearance of impropriety, and left it at that. They wouldn't have combed through the evidence to demonstrate the reality of the need for the law.
Based on these cases, my sense is that Justice Sotomayor would be willing to look at the evidence for and against, and to decide whether there is, in fact, a rational basis for Prop 8. It's not a slam dunk with her, but unlike Justices Scalia and Thomas, and, to a lesser extent, Justices Roberts and Alito, her mind is open to looking at both sides, not just the pro-Prop 8 side.
Given the care that Judge Walker put into his opinion, and all of the evidence produced, and his careful analysis. I believe that Justice Sotomayor will have some initial questions that need to be answered well by the advocates for marriage equality, Olsen and Boies, particularly with regard to the factual findings. However, I do believe that she will slide into the Breyer-Ginsburg-Kennedy camp, and uphold Judge Walker's opinion.
Welcome, Justice Sotomayor, to Ramapo College
While Justice Sotomayor cannot, of course, comment on litigation that may come before her as a United States Supreme Court Justice, I think it is clear that, as Professor William Eskridge of Yale Law School said, she "gets it." Her heart is in the right place.
I'm looking forward to graduation ceremonies! Congratulations, Class of 2011!