Title VII of the Civil Rights Act of 1964 prohibits certain kinds of employment discrimination, including discrimination “because of … sex.” In Altitude Express, Inc. v. Zarda, the U.S. Supreme Court took up the question of whether Title VII’s bar on discrimination because of … sex protects people from being fired for being gay, lesbian, or bisexual. The Stanford Supreme Court Litigation Clinic represented Donald Zarda, a skydiving instructor who was fired after telling a customer that he was gay. Clinic co-director, Pam Karlan, Kenneth and Harle Montgomery Professor of Public Interest Law, argued the case before the U.S. Supreme Court on October 8.
We officially joined the Zarda team in April, but our journey began back in the fall of 2018, when all three of us participated in a moot of the case in our Statutory Interpretation class—Tyler as an advocate for Mr. Zarda, Connie as Justice Alito, and Ben as a clerk to Justice Breyer.
Having already thought hard about the issues in this deeply consequential case, we were thrilled to be assigned to Zarda. Conversations in clinic reinforced that we weren’t starting from scratch—the Second Circuit had written a detailed en banc opinion, and the EEOC and numerous scholars and commentators had weighed in as well. Thus, our challenge was not to reinvent the wheel but to figure out how best to frame the existing arguments and what more to add.
We came up with three mutually reinforcing arguments about why people fired for their sexual orientation were discriminated against because of … sex. First, to fire an employee for being gay is per se sex discrimination. If a man is fired for being attracted to men where a woman attracted to men would not be, that is discrimination on the basis of sex, pure and simple. In other words, if two employees, Joseph and Joanne, both show up to work on Monday and tell their boss that they married Bill the day before and the employer congratulates Joanne but fires Joseph, that employer has clearly discriminated against Joseph because of his sex.
Second, Title VII has always been understood to prohibit employers from firing employees based on expectations about how people of the particular employee’s sex should act. The landmark case, Price Waterhouse v. Hopkins, cemented that principle 30 years ago. The expectation that men should date women and only women is no less of a sex-based expectation than any other that the Supreme Court has considered.
And, finally, based on associational discrimination theories, it is accepted that Title VII forbids an employer from firing someone for marrying a person of a different race or religion. Nothing in the statute suggests that the same rule doesn’t apply when an employer fires someone for marrying a person of the same sex.
By early June, we were ready to line-edit a draft of the brief with Professor Karlan. While we didn’t have too many late nights in clinic, the line-editing experience was an exception. We gathered in a conference room mid-morning and spent the whole day meticulously poring through the brief. Around 9 p.m. we broke for dinner and then continued late into the night.
On June 26, the sixth anniversary of the clinic’s win in United States v. Windsor [the landmark same-sex marriage case], we filed our brief.
In August, the employers and the United States filed their briefs, and we started working on our reply. Our opponents essentially made three broad arguments: that the legislators who passed Title VII would not have anticipated that it protects people who are fired for their sexual orientation, that an employer could not be guilty of sex discrimination if it fired both gay men and gay women (what we dubbed the “double discriminator” theory), and that a decision in favor of Zarda would lead to “troubling” results—specifically, that the lawfulness of sex-specific bathrooms and dress codes in workplaces would come into question.
Responding to these theories became a major part of our reply brief. In a nutshell, our reply says that the text of the statute—not legislators’ expectations about its scope—governs, that Title VII’s textual focus on individual employees obviates the double discriminator theory (which the Supreme Court has also rejected in other contexts), and that our case cannot possibly affect the lawfulness of sex-specific bathroom and dress code policies, regardless of how it comes out.
To help sharpen our answers, Professor Karlan did her first moot while we were writing the reply brief. After filing it in September, we turned fully to argument preparation. Professor Karlan did another moot in Stanford’s moot court room, with Stanford professors and some guests serving as justices. Afterward, we gathered with some of our co-counsel from the ACLU and the current clinic students to debrief.
Then, at the beginning of October, the team packed up and moved the preparation to Washington. Once in D.C., we started working more closely with the attorneys from the ACLU. This was also our first opportunity to meet our clients in person, a moving experience.
While Professor Karlan mooted her argument throughout the week, we kept track of the questions and continued to help her think through her answers. This made for occasional late-night research sessions when we realized that her answers could benefit from new information or examples. One night, the team did a survey of mid-century laws that criminalized certain same-sex sex acts across all 50 states!
Just a few days before the argument, we were thrown a curveball when the Supreme Court changed its rules to allow each advocate two minutes of uninterrupted time at the beginning of their argument. Since the Court’s typical practice was to cut off advocates after only a couple of sentences, we had a lot of work to do to re-write and expand Professor Karlan’s introduction.
By the time the morning of the argument rolled around, we were anxious and excited. The next few hours would be our—and the public’s—first chance to observe how the Court would approach the issue. In fact, oral argument is generally the first time that the justices even communicate among themselves about the merits of a case.
We arrived at the courthouse two hours before the arguments. The line of people hoping to watch—many of whom had been camping out for more than a day—wrapped around the side of the building. Crowds of demonstrators had already set up in front of the steps, and many more were trickling in.
We met Professor Karlan in the Court’s cafeteria along with our co-counsel, clients, and some of the ACLU’s guests, including [Orange is the New Black star] Laverne Cox. “We’re witnessing history today,” Cox said to us.
Before we knew it, it was time to make our way to the courtroom. On the way there, we stopped by the lawyers’ lounge and wished Professor Karlan a final good luck.
The courtroom grew quieter as 10 a.m. approached. Finally, a buzzer sounded, the audience rose, and the justices walked to their chairs. After admitting a group of attorneys to the Supreme Court bar, and without skipping a beat, the chief justice called Professor Karlan to the podium.
After so many rounds of moots, there were few questions that we had not anticipated and discussed in some form. Nevertheless, there were some surprises. The first 10 minutes of questioning involved a series of queries about bathrooms and dress codes before Professor Karlan had a chance to focus on the issue—discrimination for being gay. In all, we felt that the arguments went well.
When we left the courtroom, we could see that the crowd outside had grown many times over. After re-grouping with our co-counsel and clients, we walked outside toward the media scrum on the front steps. When the clients came into view, the crowd began chanting, “We love you!”
For the past six months, we had been laser-focused on making the best possible case for our clients. But in that moment, it was easy to see the impact that a favorable ruling could have on the lives and dignity of millions of Americans whose jobs, we believe, should not be threatened by who they are or whom they love. Now, we wait. SL