Estrich: Gorsuch rises above ideology in gay rights case

Posted6/19/2020 1:00 AM

Finally, in a landmark decision authored by none other than Justice Neil Gorsuch, President Donald Trump's first Supreme Court appointee, gay, lesbian and transgender people are protected by federal law against employment discrimination.

Conservatives, who supported Gorsuch's nomination, are tearing their hair out while liberals are wondering if he could be the next Hugo Black. Or John Paul Stevens.


Title VII of the Civil Rights Act of 1964 bars employment discrimination on the basis of race, color, religion, national origin and sex. The last-minute inclusion of sex at a time when the "Help Wanted" ads were still divided by sex was not the work of a forward-thinking liberal. It was added as a legislative joke: It was supposed to add votes to the no column, but in the wake of President John F. Kennedy's assassination, President Lyndon Johnson used his mastery to secure its passage.

In every Congress, legislation has been introduced to amend Title VII by adding sexual orientation. I've always called it the Tsongas bill because the late, and great, Sen. Paul Tsongas of Massachusetts was the lead sponsor. It was an act of courage, pure and simple. As of 1979, he had three co-sponsors.

I was the junior person and only girl in the Issues Department of Sen. Ted Kennedy's presidential campaign. I wasn't someone the campaign manager would be seeking out, so when he stopped at my desk one day, all talking in the room stopped. Could I cover an event for the senator that night? Cover meant I would speak for him. It was the first national convention for the National Gay and Lesbian Task Force. Word was that Jimmy Carter was sending one of his sons and Jerry Brown was going. And the Kennedy campaign was sending me? Who was I? He looked around the room; the only person with a title was the brilliant and former Robert Kennedy staffer Peter Edelman, who was the issues director. "You're the deputy issues director," he said softly. "And what do I say?" I asked. "Can I endorse the Tsongas bill?" Not by name.

I had a wonderful time, got a ton of cheers. I never mentioned the words "Tsongas bill." I just recited it. I was there because Sen. Kennedy believed that no one should be discriminated against because of the color of their skin, or the God that they worship, or where their grandparents came from, or (I paused) because of their sex or their sexual orientation.

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The next morning, my picture was in the paper along with the quote that did not endorse the Tsongas bill by name. All the issues guys were mad, understandably so, because why should I have such a big title when they didn't? But that was nothing compared to the way some of the political guys came down on my head. Did I understand why there were only three co-sponsors? Of course.

The only person who thought I did a good job ("a great job") was the senator. Gays and lesbians were among the senator's strongest supporters that year, and for the rest of his life, he was among the staunchest advocates of gay rights. And he co-sponsored the Tsongas bill.

In 2013, the Employment Non-Discrimination Act finally passed in the Senate. And died in the House.

Trump has repeatedly crowed about his young and conservative appointees. Both were supposed to be reliable votes for his conservative agenda.

But a funny thing happens when you put on those robes and start hearing cases. Great responsibility and life tenure give a justice the ability, the duty, to do the right thing.


Hugo Black had a history of association with the Ku Klux Klan before taking the bench and writing eloquently about the Bill of Rights. Justice Stevens, for whom I clerked, was opposed by the National Organization for Women because of a decision about married flight attendants. By the time he retired, the Illinois Republican was the leader of the liberal wing of the court.

It doesn't happen to everyone. But on June 15, Justice Gorsuch reminded us of the possibilities of change. Somewhere, I hope Paul Tsongas is smiling.

© 2020, Creators

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