In an otherwise brutal day for public sector unions, Monday’s argument in the Supreme Court included a surprising admission by one of the nation’s leading Republican lawyers. It won’t help the unions under attack in this case, but it may point to a better future ahead for victims of anti-gay discrimination.
Michael Carvin is one of the most visible faces of legal conservatism. His resume includes two separate trips to the Supreme Court to try to gut Obamacare. He helped lead the legal team in Ledbetter v. Goodyear Tire that convinced the Supreme Court to deny this famous equal pay for equal work claim. And he even argued on behalf of George W. Bush during the legal battle over the aborted Florida recount that eventually handed Bush the presidency. On Monday, Carvin also argued Friedrichs v. California Teachers Association, a case seeking to defund public sector unions, before the Supreme Court.
Most of the argument consisted of Republican appointees embracing Carvin’s arguments while the Court’s four Democrats struggled in vain to convince their more conservative colleagues of its flaws. There was, however, one unexpected moment that could offer a ray of hope to victims of anti-gay discrimination in the workplace. In an exchange with Justice Elena Kagan, Carvin gave two examples of how federal anti-discrimination law applying to private employers differs from the Constitution’s safeguards for public employers:
Private employers under the Constitution can discriminate on the basis of political affiliation. They can even discriminate on the basis of sexual orientation. But nobody thinks that public employers can do that.
The irony of this statement is that there is almost certainly one justice — as possibly as many as four — who absolutely believe that the government can fire people for being gay. These are, of course, the same four justices who saw no problem with the government telling gay people they aren’t allowed to marry. Though some conservatives have tried to draw subtle distinctions between marriage discrimination and workplace discrimination, under longstanding precedents the level of constitutional scrutiny applied to anti-gay discrimination should be the same in any context.
Nevertheless, it is significant that one of the legal profession’s most prominent and aggressive conservatives would make such a statement. At the very least, it suggests that the notion that someone could be fired for being gay is anathema even in the circles that Mr. Carvin travels within.
A similar moment arose in Hollingsworth v. Perry, the challenge to California’s anti-gay Proposition 8. After Justice Sonia Sotomayor asked Charles Cooper, another giant of the conservative bar who was there to defend marriage discrimination, whether “outside of the marriage context” there was “any other rational decision-making that the Government could make” to deny a person a job or benefits because they are gay, Cooper responded “your Honor, I cannot.”