The United States Supreme Court has agreed to hear three cases that address the rights of lesbian, gay, bisexual, and transgender (LGBT) persons.
Every Catholic justice should recuse themselves. Five of the justices, Alito, Kavanaugh, Roberts, Sotomayor, and Thomas are Catholic. Gorsuch does not currently attend a Catholic Church, but grew up Catholic. Breyer, Ginsburg, and Kagan are Jewish.
Catholics have a built in conflict of interest with respect to any question of LGBT civil rights. It is the official policy of the Catholic Church to discriminate in public accommodations on the basis of sexual orientation and on the basis of gender identity. The 1964 Civil Rights Act prohibits discrimination in public accommodations and employment on the basis of sex, as well as race, ethnicity, and religion.
Starting in 1974, members of Congress have proposed to add “sexual orientation” to the list of protected categories in the Civil Rights Act, but that has not happened. LGBT activists have since shifted to writing and introducing a separate bill to prohibit discrimination on the basis of sexual orientation and gender identity. No such bill has yet passed.
But it has always been at least a colorable (or worthy of consideration), to use a word lawyers like, argument that the existing statute should prohibit discrimination on the basis of sexual orientation.
The problem comes with deciding what “sex” means. It clearly means that employers and public accommodations may not prefer men to women, or vice versa. In 1989, in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) the Supreme Court held that discrimination on the basis of gender stereotypes violated the prohibition against discrimination on the basis of “sex.” The expectation that women must appear and behave in a suitably “feminine” manner constituted discrimination.
In employment discrimination, the line between gender presentation and sexual orientation is not clear. No employer is likely to peek through an employee’s window to find out whom the employee has sex with. Suspicions of lesbian/gay identity will begin with atypical gender presentation — women who are too masculine and men who are too feminine. Actual cases claiming sexual orientation discrimination often involve evidence of harassment of the plaintiff in highly gendered terms.
In cases such as these that involve questions of how to interpret statutes, judges who are hostile to the plaintiffs, the persons claiming discrimination, can always find some way to dismiss the case. The Supreme Court is hearing the sexual orientation cases because two different circuit courts have come to different conclusions. This is an easy way to get the Supreme Court to take cases on an issue, since federal law should be uniform throughout the country.
Given the presumptive hostility of Catholics to LGBT civil rights claims, there is good reason to doubt that Catholic justices can decide these cases dispassionately.
They will not, but the Catholic justices should recuse themselves.