Missouri Attorney General Erich Schmitt Files Brief with Supreme Court Against Protections for LGBTQ+ Employees

Patrick Kissel, Reporter

Missouri attorney general Erich Schmitt, with 13 other state attorneys general and Kentucky governor Matt Bevin, filed an amicus curiae brief with the Supreme Court in Express Altitude, Inc. v. Zarda  and R.G. & G.R. Funeral Homes, Inc. v. Equal Employment Opportunity Commission (EEOC) arguing that gay, lesbian and transgender citizens are not protected from discrimination in employment practices.

The brief was filed in conjunction with the attorneys general of Alabama, Alaska, Arkansas, Idaho, Kentucky, Louisiana, Nebraska, Ohio, Oklahoma, Tennessee, Texas, South Carolina, South Dakota and West Virginia. It asserts that the protection from employment discrimination “on the basis of … sex” in Title VII of the Civil Rights Act of 1964 does not prohibit discrimination on the basis of sexual orientation or gender identity.

“I disagree with his [Schmitt’s] assessment. [Title VII] has been interpreted long enough to mean more than just what the plain text says that his interpretation does not seem correct,” G.S.A. sponsor Matthew Smith said.

The brief also argued that if the court ruled that the term “sex” in the statute includes sexual orientation and gender identity, such a ruling would usurp the legislative authority of Congress and remove the states’ authority to legislate on these topics.

“The Constitution assigns policymaking authority to Congress for good reason: Congress is the branch of government best suited to make sensitive policy choices

Pride flags hung in front of history teacher and GSA sponsor Matt Smith’s room.

that require consideration of competing interests. When a federal court rewrites a federal statute… it deprives the States of the opportunity to weigh in on that question through the political process,” the brief reads.

The Supreme Court agreed to take the case earlier this year after the Second U.S. Circuit Court of Appeals and the Sixth U.S. Circuit Court of Appeals ruled that it was against Title VII to fire a person for being gay, lesbian or transgender.  These rulings broke with previous consensus among the courts that Title VII did not provide such protections. The Supreme Court will hear oral arguments on these cases on October 8.

“Being someone you’re not is something God does not like. We need to stop making it seem like it’s okay,” freshman Kierstin Lewis said.

The Department of Justice (DOJ) has also submitted two amicus curiae briefs arguing that Title VII’s prohibition against discrimination when hiring on the basis of sex does prevent discrimination on the basis of sexual orientation or gender identity.

“It is [the employer’s] right to choose who they want to work for them,” sophomore Gavin Schaefer said.

The DOJ briefs in Express Altitude, Inc. v. Zarda, R.G. & G.R. Funeral Homes, Inc. v. EEOC and the brief filed by Schmitt all emphasize that the signers are not asserting that Title VII should not prohibit discrimination on the basis of sexual orientation and gender identity, but that the law in its present form does not extend that protection.

“The question presented in these cases is not whether federal law should prohibit discrimination based on sexual orientation or gender identity. That is a question on which there is a wide divergence of opinion, and one on which this brief takes no position,” the brief filed by Schmitt reads.

Just how the court will rule is uncertain. justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Keagan all joined former justice Anthony Kennedy’s majority opinion in Obergefell v. Hodges, which legalized same sex marriages nationwide. Chief justice John Roberts Jr., and justices Samuel Alito, and Clarence Thomas, along with former justice Antonin Scalia dissented.

“If their gender identity is more important than their ability to do their job then yes they should be able to be fired. That can be said the same for many things not just gender identity, but if they are not creating a distraction and are doing their job and are only fired for them being gay, then no, they should not be able to [be fired],” sophomore Evan Brown said.

Justices Brett Kavanaugh and Neil Gorsuch were appointed by president Donald Trump and are likely to rule against a loose interpretation of Title VII. Gorsuch filled Scalia’s seat after his death in 2016, and Kavanaugh filled Kennedy’s seat after his retirement in 2018. Kennedy was the deciding vote in Obergefell, and so the occupation of his seat by Kavanaugh makes it more likely that rulings of the circuit courts will be overturned.

“Depending if [the employee] did something wrong or if they are even good for the company [they should be able to be fired or not hired.] Some strict Christian based companies should have that right, because there are different kinds of religion and some are stricter than others, but [the employees] also have their rights as well, so [it] depends for me,” senior Emily Cobb said.

The District of Columia and 22 states have laws preventing discrimination on the basis of sexual orientation or gender identity, according to the BBC. The U.S. House of Representatives has also passed H.R. 5, titled the Equality Act, which would amend Title VII to include sexual orientation and gender identity. Only eight republicans voted for the legislation. 16 did not vote. The bill has been stalled in the Senate since May. The representative for the Wentzville area, rep. Blaine Luetkemeyer, voted against the Equality Act.

“Every person has an equal opportunity to work at any given place. Gender and sexual orientation should not make or break someone’s job opportunities,” senior Chloe Creasy said.

Such laws have been proposed for the past 21 years in Missouri, but have been rejected or have not been given a hearing, according to the Kansas City Star. The bill proposed in the 2019 regular session, H.B. 208, had its first hearing in front of the House General Laws Committee occurred with less than two weeks remaining before the General Assembly adjourned, and did not receive a vote in committee.

“Imagine being straight and being told you can’t work at a school because you’re straight. You’ve dedicated your whole life and money into colleges and trying to pursue what you have been wanting to do for as long as you can remember. Isn’t that just messed up? It’s not fair nor is it right to be denied work or [to be] fired for being true to yourself,” freshman Kylie Franklin said.