Mr. Hancock, in his brief for Clayton County in Mr. Bostock’s case, urged the justices to be wary of what he called a novel interpretation of an old law. “One would expect that, if Congress intended to enact a statute of such magnitude — socially, culturally, politically and policy-wise — as one prohibiting employment discrimination on the basis of sexual orientation,” he wrote, “Congress specifically would have so stated in the text of Title VII.”
The Supreme Court has ruled that it is race discrimination to fire a worker for being a member of an interracial couple. Lawyers for Mr. Zarda said the same principle should apply to same-sex couples.
“Just as firing a white employee for being married to an African-American person constitutes discrimination because of race,” they wrote, “so firing a male employee for being married to another man constitutes sex discrimination.”
Mr. Francisco, in his brief for the administration, wrote that the analogy did not hold.
“An employer who refuses to hire an applicant in an interracial relationship would rightly be branded a racist,” he wrote. “But no ordinary speaker of English would call an employer who refuses to hire an applicant in a same-sex relationship a sexist.”
At bottom, the cases may turn on whether the justices focus on the words of the statute or their sense of what the lawmakers who voted for it in 1964 understood they were doing. In a 1998 decision in a Title VII case, Justice Antonin Scalia wrote that it was the words that matter.
“Statutory prohibitions,” he wrote, “often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”
If nothing else, Professor Franke said, the cases will explore divisive and difficult issues. “Sex,” she said, “is a confounding term in our culture, in our language and certainly in the law.”