Ken Mehlman, the former George W. Bush operative and Republican National Committee chair who came out as gay in 2010, is leading LGBT-supportive Republicans in urging conservative justices on the U.S. Supreme Court to rule in favor of LGBT workplace protections under current law.
In a 24-page legal brief first reported by Jeremy Peters of the New York Times, the Republicans take a conservative approach in asserting Title VII of the Civil Rights Act of 1964, which bars sex discrimination in the workforce, also applies to cases anti-LGBT discrimination.
“When Title VII was enacted, Congress and the American public would not have expected it to protect sexual orientation and transgender status because those aspects of identity were not the subjects of significant political debate at the time,” the brief says. “Perhaps so, but it is not relevant. As this Court has repeatedly recognized, in Title VII cases as well as cases in other areas of the law, statutes often apply more broadly than their drafters anticipated, and extrinsic evidence of statutory ‘intent’ is irrelevant when the statute’s words are clear.”
The brief invokes the Supreme Court ruling in the 1998 case of Oncale v. Sundower Offshore Services, which involved a male worker alleging a same-sex sexual harassment on the job. The decision, written by the late conservative U.S. Associate Justice Antonin Scalia, held the prohibition on sex discrimination under Title VII should be considered broadly.
Also invoked in the brief is the 1986 decision in Meritor Savings Bank v. Vinson, which for the first time held sexual harassment is an illegal form of sex discrimination.
“In the cases on review, the ultimate question is both simple and no different from the questions in Meritor, Oncale, or any other case applying the plain language of Title VII in the context of sex discrimination: Would the plaintiffs below have been treated differently by their employers were they of a different sex?” the brief says. “The answer, in each case, is ‘yes.’”
Signers of the brief in addition to Mehlman include Fred Karger, a gay 2012 Republican presidential candidate; Meg Whitman, Republican nominee for California governor in 2008; and gay former Republican congressional candidate Richard Tisei.
It’s not the first time Mehlman has led LGBT-supportive Republicans in calling on conservative justices to rule in favor of LGBT rights. The former RNC chair also led briefs urging the Supreme Court to strike down California’s Proposition 8 and bans on same-sex marriage throughout the country in 2015.
After taking a lead role in the Bush administration, which sought to ban same-sex marriage nationwide with a Federal Marriage Amendment, Mehlman had turn around, coming out as a gay and working to advance same-sex marriage.
Although former members of Congress, including Rep. Ileana Ros-Lehtinen of Florida and former Sen. Alan Simpson of Wyoming signed the brief, a conspicuous absence are any Republicans currently serving in the Congress.
Sen. Susan Collins (R-Maine) didn’t sign the brief, nor did any of the eight House Republicans who voted in favor of the Equality Act in May to ban anti-LGBT discrimination.
Meanwhile, a group of 151 congressional Democrats — 113 House members and 38 senators — have signed a legal brief insisting Title VII “makes clear” it affords LGBT protections.
The lead author of the brief is Roy Englert, a D.C.-based appellate lawyer at the Robbins, Russell, Englert, Orseck, Untereiner and Sauber.
The brief is made public as the Justice Department is expected to issue a filing this week representing the Trump administration’s position on whether Title VII covers LGBT workers. The Trump administration has previously held the view LGBT people aren’t protected under current law.
Englert told the Blade no attempt was made to get Trump’s signature of the Mehlman brief, but didn’t respond to follow-up email on why no current congressional Republicans signed.