One of the most intense employment law debates happening in the courts: does Title VII of the Civil Rights Act apply to sexual orientation? A case for why it should and how advocates can succeed.

UPDATE (June 15, 2020) - The  U.S. Supreme Court just ruled on this issue as they decided 6-3 that Title VII of the Civil Rights Act of 1964 applies to employment discrimination against LGBTQ workers: https://www.scotusblog.com/wp-content/uploads/2020/06/17-1618_hfci.pdf.

UPDATE (March 4, 2021) - The U.S. House of Representatives has passed the Equality Act, which would codify the Supreme Court's June 2020 decision and thus forever enshrine into federal law employment discrimination protections for LGBTQ Americans. President Joe Biden supports the legislation; it remains to be seen if the bill will survive in a U.S. Senate where 60 votes are still required to overcome filibusters that block legislation.

The essay below is a slightly modified, updated version of an essay I submitted for Sexuality and the Law at  Villanova Law in April 2018. All the views expressed here are my own:

When the U.S. Supreme Court legalized same-sex marriage in its landmark 5-4 decision in June 2015, Justice Kennedy wrote that a new era of full recognition of the rights and liberties of LGBT individuals was upon us.[1] However, still today, between 11 to 28 percent of lesbian, gay, and bisexual Americans report that they were passed over for a promotion, or fired outright, for their sexual orientation.[2] Despite progress on marriage in the realm of gay rights, there still exists no explicit protection in federal law for gay, lesbian, and bisexual individuals who allege sexual orientation-based employment discrimination.[3] Although states have adopted their own remedies to address this gap, still, in 29 states, there is a risk of sexual orientation discrimination in employment because of the lack of statutory protection.[4]

Further, even though there has been success at the state legislative level in amassing a sizable number of states that provide this protection, there has been little to no federal legislative progress on this issue.[5] The Employment Non-Discrimination Act (now referred to as the Equality Act) is a perennially introduced piece of legislation that has made scant advances in various sessions of Congress.[6] Even at the apex of the gay rights movement’s success in 2013, the legislation failed to even come up for a vote in the U.S. House of Representatives.[7]

However, a broad federal employment discrimination statute does protect Americans of all stripes through its sweeping, all-encompassing language. The Civil Rights Act of 1964 contains a vital employment-related provision, Title VII. This element of the landmark federal civil rights law prohibits employment discrimination “because of race, color, religion, sex, or national origin.”[8] Specifically, the law states “it shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual…because of such individual’s race, color, religion, sex, or national origin.”[9] Within this statute, the term “sex” is the subject of a vast array of scholarly, constitutional, and political debate regarding the scope of its reach and the interpretation it ought to be afforded.[10] The mere fact that such robust and sharp disagreement exists regarding the application of Title VII is a reflection of the ambiguity of the law. This ambiguity has allowed widespread employment discrimination against LGBT individuals to occur.[11] Such identity-based discrimination, a function of antipathy untied to work ethic, should not be legal; these individuals should not be punished for practicing their constitutionally protected rights.

As such, either the U.S. Congress should pass legislation that specifically extends the reach of Title VII to protect gay employees or the U.S. Supreme Court should definitively hold that Title VII, as written, applies to sexual orientation. This paper will defend the aforementioned thesis by considering, first, congressional action to amend title VII; second, a Supreme Court ruling that broadly interprets Title VII based on the existing language of the statute and other canons of statutory interpretation; and third, failing either of these remedies, this paper will consider state-level legislative solutions. This paper will also consider counterarguments commonly raised against broad protection including, first, religious liberty concerns; second, the notion that Congress could not have intended Title VII to cover LGBT individuals; and third, the claim that broad Title VII protection will open the floodgates to frivolous litigation. This paper will discuss the limitations of these counterarguments as it broadly makes the case for why there are several political avenues that provide opportunities for resolution of this vital equal rights issue.

I.              Title VII should be amended through congressional action.

This section of the paper will address the substantive policy reasons of why Congress should affirmatively extend Title VII to cover LGBT individuals and how that can manifest itself in passage of the Employment Non-Discrimination Act (ENDA). The paper will later address the political prospects of ENDA’s passage. Employment discrimination against LGBT individuals should be eliminated for several reasons. For one, it is irrational as it is not related to employment performance. Second, individuals could be fired for exercising their constitutional expression of the fundamental right to marry. Third, there is clarity necessary for both employers and employees. Fourth, persistent discrimination is deleterious to economic growth and stifles productivity while discouraging some LGBT individuals from joining the workforce. Fifth, an undermining of LGBT rights, through rigid interpretation of Title VII, could pave way for further undermining of civil rights. Finally, the full recognition of social equality is incomplete though without crucial protections in the workplace, a pillar of American life for millions. The freedom to shape one’s own “destiny” and chart the course of their own life includes the ability to work freely without fear of unequal treatment.

Such fear risks paralyzing LGBT individuals as they face an uncertain professional landscape where employers sometimes screen applicants for their sexual orientation.[12] Though employers may claim that a firing, for instance, of an LGBT person has nothing to do with their sexual orientation, it is often unmistakably animus-driven.[13] The economic effect of this discrimination is also unquestionably harmful as LGBT workers may feel discouraged from employment and thus unable to exercise their professional skills. On the other hand, scholarship and extensive research, principally on the part of the Williams Institute of the UCLA School of Law, demonstrate that employers who openly encourage LGBT employees to embrace their identities have lower levels of worker turnover and more worker productivity as opposed to employers who do not adopt such LGBT-friendly policies.[14]

Importantly too, the psychological effect of the inability of LGBT individuals to be open about their sexual orientation at work can be devastating. This harm is magnified by the fact that, in American life particularly, individuals often define themselves by their job as it is a strong part of one’s sense of dignity. For 25 years, Gallup has consistently found that a majority of Americans find that they get a “sense of identity” from their work.[15] Further, there is even a material well-being that arises from a job as, for millions, a job is associated with various benefits that include health insurance, retirement security, and the right to collectively bargain, among other key benefits of employment. As such, safety and security in one’s employment is a principal part of American life. Consequently, given the centrality of work in American culture, the harm of being closeted one’s job is compounded. Already, 35 percent of LGBT employees feel as if they need to hide their identities at work while 30 percent say they feel “distracted,” a clear sign of how discrimination has tangibly harmful effects.[16] Further, it is well-documented in psychological research that being closeted and having to constantly live in fear of the revelation of one’s sexual orientation can mean unhealthier and more depressed lives, which translates to less rigorous work performance[17]. Beyond these vital reasons to end employment discrimination, there is a real risk that in this tumultuous political era, a curtailing of LGBT rights in the employment realm could lead to an erosion of civil rights in other areas. Already, in Masterpiece Cakeshop, a case regarding a baker’s professed desire not to make a cake for a gay couple, the U.S. Supreme Court punted on vital civil rights issues related to LGBT equality.[18] For all of these reasons, Congress must intervene to end employment discrimination against LGBT individuals.

a. The case for Congress amending Title VII through passage of legislation.

At its core, the debate over Title VII is a debate over the law’s statutory interpretation, not a constitutional dispute. In order to avoid wasting the time and resources of a hamstrung federal judiciary, the U.S. Congress could easily resolve this debate by drafting a law to specifically protect sexual orientation. That is exactly the goal of the Employment Non-Discrimination Act (ENDA), today referred to as the Equality Act, legislation which explicitly “prohibits [employers from] …engaging in employment discrimination on the basis of an individual's actual or perceived sexual orientation or gender identity.”[19] In November 2013, ENDA, with the strong support of President Obama, passed the then-Democratic-controlled Senate by a large, bipartisan majority of 64-32, even with the support of some socially conservative Republican Senators like Patrick J. Toomey of Pennsylvania.[20]

However, the legislation was ultimately stopped dead in its tracks in the Republican-controlled House, where then-Speaker John Boehner decried the prospect of “frivolous litigation” that could arise should the bill become law.[21] Boehner’s opposition to the bill ensured its failure in Congress as the Speaker controls what legislation comes to the floor of the House; though Congressman Jared Polis, a Colorado Democrat, circulated a so-called “discharge petition” to force a majority of U.S. House members to sign on to a measure that would compel a floor vote, this effort also failed.[22] ENDA did not advance to the President’s desk despite public opinion polling that consistently indicated that a majority of Americans supported the bill.[23] In fact, most Americans wrongly believed employment discrimination against LGBT individuals was already prohibited by existing law, a myth that Speaker Boehner echoed and perpetuated.[24]

b. Political prospects of passage of ENDA in the current environment

Nevertheless, that the bill recently passed the Senate, earned modest Republican support, and has the support of a majority of U.S. voters, according to a plethora of public opinion polling, all should compel advocates to examine refocusing on the passage of this legislation. President Donald Trump did not take a public position on ENDA during his 2016 campaign nor has he addressed the legislation as president. His administration though is stacked with stalwart opponents of LGBT rights and the administration’s Justice Department amicus briefs argue that Title VII does not apply to sexual orientation. Notably, Trump’s vice president is Mike Pence, who signed into law Indiana’s controversial state-level Religious Freedom Restoration Act in 2015.[25]

 In the employment context specifically, Trump has nominated individuals to the Equal Employment Opportunity Commission (EEOC) who are noncommittal on workplace protections and he rescinded an Obama-era executive order that sought to hold federal contractors accountable for violations of federal civil rights laws.[26] On the other hand, Trump has, at times, publicly flirted with support for gay rights as he famously vowed to protect LGBT individuals as president in his 2016 Republican National Convention nomination acceptance speech.[27] Well before his successful presidential run too, Trump even went so far as to tell The Advocate in 2000 that he supported ENDA-like legislation.[28] However, recently, a Trump administration official indicated that if the modern-day EDNA, the Equality Act, made it to his desk, he would veto the legislation: a move consistent with his recent actions that undermine LGBT equality.

In terms of other vital national political actors whose support for the Equality Act is necessary to pass this legislation, Democratic Speaker of the House Nancy Pelosi is fervently in support of the legislation.[29] In the newly Democratic-controlled House, the legislation recently sailed through the chamber. However, in the GOP-controlled Senate, Mitch McConnell controls legislation that comes to the floor and he voted against ENDA when it passed the Senate in 2013.[30] McConnell has considered conditional support of ENDA yet his vote against the legislation came even after exemptions were tucked into the bill to protect religious organizations – exceptions that were sufficient to earn the support of several of McConnell’s fellow Senate Republicans. Today, McConnell has said he would not bring the Equality Act to a vote on the Senate floor. Given the lack of prioritization of LGBT rights on the part of the Trump White House and the GOP Senate, the prospects of congressional passage appear dim at the moment. Should Democrats take keep control of the House, take back control of the Senate and take back the presidency, there is a stronger chance of passage, given the Democratic Party’s embrace of the legislation and of LGBT rights more broadly.

The importance of political legislative action on this issue at the federal level is paramount. Ultimately, an act of Congress, to modify Title VII, would have the effect of ending the statutory construction debate on this issue. The only action that could undo Congress’ act, after a presidential signature of approval, would be Congress overturning the act in the future. That is because the issue at hand on Title VII is not a constitutional one; the Supreme Court ultimately would rule, should they rule on this issue, on the interpretation of the statute – not on whether it is constitutional as written, a debate settled long ago in the aftermath of the law’s passage in 1964. A congressional act here would be the most durable solution to the problem that LGBT employees face because it would codify these protections into federal statutory law. 
In fact, Congress is a key actor here because they even would have the authority to overturn a Supreme Court decision that rules liberally in favor of a broad Title VII interpretation. Though Congress might be loath to take such action in a political environment in which support for gay rights has rapidly expanded in the last decade, it is a risk for advocates as they prioritize pursuing federal judicial progress for now. On the other hand, if the Court were to rule that Title VII does not apply to sexual orientation, the most surefire and most efficient manner of reversing such a holding would be for Congress to reverse the Court and rewrite the statute so that it does apply to sexual orientation, an outcome far speedier than years-long litigation to begin again the battle to convince the Court that it does apply. Public acceptance on this issue would be strengthened too if political actors came together to pass legislation because ultimately elected representatives in Congress answer more to U.S. voters, and are accountable to them, whereas unelected justices who sit on the Supreme Court are unfamiliar to millions of Americans and far more removed from voters’ lives.

However, the Republican Senate leadership is currently seemingly uninterested in advancing this legislation. Not only have several Republican members of Congress made derogatory comments regarding LGBT Americans but also even less outlandish GOP members of Congress have echoed concerns that are akin to former Speaker Boehner’s warning about excessive litigation. In light of this lack of prioritization of LGBT rights on the part of the GOP Senate, political action at the federal level to amend Title VII seems wholly unlikely at the moment. Therefore, advocates have been focusing their energy, resources, and time to making the case within the federal judiciary. Already, in the last several years, the Second Circuit and the Seventh Circuit, both in en banc decisions in which the full court issued opinions, have ruled in favor of a broad interpretation of Title VII to cover sexual orientation in Zarda v. Altitude Express and Hively v. Ivy Tech Community College of Indiana, respectively.[31] On the other hand, in the Eleventh Circuit, in the case of Evans v. Georgia Regional Hospital, the court there ruled that Title VII does not apply to sexual orientation in a controversial opinion that the Supreme Court recently chose not to review.[32] This 2-1 circuit split has an important implication in that, in the regions in which those circuit opinions are controlling, sexual orientation discrimination is now, of course, considerably more difficult to defend as employers will hit a roadblock if such discrimination is challenged in federal courts. Another result of the circuit split though is that the Supreme Court has now granted a writ of certiorari on this issue and has agreed to rule on whether Title VII covers sexual orientation.

II. The Supreme Court should affirm the broad interpretation of Title VII in Zarda and Hively.

This section of the paper will address why the Supreme Court should affirm a broad interpretation of Title VII. The Court could ground its analysis in the plain meaning of the statute, as Zarda did, in the legislative history of the Civil Rights Act, which includes progressive statements from key drafters of the law, and in the longstanding judicial principle of deference to federal agencies’ interpretations of vague laws.[33]

a.     Plain language

Should the Court dissect the plain language of the law to find for protection, the Zarda court provides strong guidance. The Second Circuit there analyzed that “sexual orientation discrimination is motivated at least in part, by sex, and is thus a subset of sex discrimination.”[34] The Zarda court even relied upon the Black’s Law Dictionary definition of sexual orientation to rule that sexual orientation is inextricably linked to sex as an individual’s sex is inherently relevant to the establishment of that individual’s sexual orientation.[35] The intertwining of these two concepts, notions that are “functions” of one another, permitted the court to find, consequently, that Title VII applies to sexual orientation given that “sex” is a “protected characteristic” under the statute.[36] The Zarda court was clear in its opinion that there is a “sex-dependent nature” to sexual orientation – a kind of clear linkage that is compelling and concise in such a way that it could appeal to the aforementioned conservative justices on the Supreme Court.[37]

The plain meaning argument, rooted in a core canon of statutory interpretation that the Court has long embraced, is similar to one advanced in the Seventh Circuit in Hively.[38] The Hively court was even more straightforward and blunter in its approach as it found, in an opinion that also extended Title VII to sexual orientation, that “it would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation.’”[39] The court’s finding of a “common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex” was integral to its analysis, which included examination of an associational theory of discrimination based on Loving v. Virginia, among other factors.[40] The plain language-based argument though is often made in conjunction with the argument that the larger context of the statute is relevant to an analysis of its protection. Indeed, such a context-based claim would only strengthen the grounds on which LGBT plaintiffs would stand in employment discrimination cases. 
Title VII makes few exceptions in its broad and sweeping prohibition on employment discrimination of all stripes. The only exceptions it does make relate to religious organizations, members of the Communist Party, and seniority-based systems, among other exemptions.[41] An important canon of statutory interpretation is rooted in the idea that if Congress wanted to draw distinctions and make further exceptions, it could have done so but it chose not to do so here. Put simply by the Zarda court, “the statutory prohibition extends to all discrimination ‘because of . . . sex’ and sexual orientation discrimination is an actionable subset of sex discrimination.”[42]

b.     Legislative intent

Another crucial element that courts have relied upon and advocates ought to prioritize is the utilization of the notions of legislative intent and congressional purpose as part of a strong case for Title VII protection. It is true that it is wholly improbable that the Congress of 1964 and President Lyndon B. Johnson anticipated that the Civil Rights Act would ever extend to sexual orientation or that any of the federal circuit cases aforementioned would have advanced. In fact, the driving force behind the law was the activism of Rev. Dr. Martin Luther King, Jr., the advocacy of the National Association for the Advancement of Colored People (NAACP), and the organizing of African-American civil rights activists and protestors of all walks of life to definitively prohibit state-sanctioned, race-based segregation in all public facilities and services. There is even a prevalent suggestion among some scholars that the inclusion of “sex” in Title VII was meant to be a “poison pill” to defeat the legislation and that was the intended effect of the members of Congress who introduced such language.[43]

 At the same time, an extensive 2014 article in The New Yorker, coming on the heels of the 50^th anniversary of the law and a simultaneous cultural renaissance regarding President Johnson’s legacy, disputed such claims as it detailed how feminist legal minds and activists of the era, including advocates at the National Organization for Women (NOW), not only believed the language was crucial for prohibiting sex-based discrimination but also utilized it subsequently as part of an effort to root out sex-based stereotyping in employment practices in the 1960s and 1970s.[44] The Supreme Court would go on to find such stereotyping-based discrimination illegal under Title VII in the landmark Price Waterhouse v. Hopkins decision, a seminal holding that the Hively and Zarda courts relied on to find that anti-LGBT discrimination was linked to antiquated stereotypes regarding men and women’s roles and relationships in society.[45]

This history is relevant to the extent that it reveals that the word “sex,” though not expressly articulated by members of Congress to include sexual orientation, was not necessarily added as a means of defeating the purpose of Title VII. It was not treated as a “poison pill” by advocates at the time, and the Supreme Court itself recognized that such discrimination was intended to be covered not just in a strict, straightforward fashion (i.e. “I am firing you because you are a woman”) but in a way that also could extend to more complex situations that involve stereotyping.[46] As such, the Court has already relied upon context, legislative intent, and a broad reading of the statute to find that Title VII could be applicable to situations beyond a strict scenario that Congress could have imagined – something the Court did not only in Pricewaterhouse but also in sexual harassment-related cases.[47]

The Hively court, in reaching its expansive holding, relied upon a similarly sweeping opinion that the Supreme Court issued in Oncale v. Sundowner Offshore Servs., Inc.[48] In that case, the Court found that “sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII,” but crucially, “statutory prohibitions 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.”[49]

Therefore, given such a recognition of a broad statutory interpretation of Title VII already, if the Supreme Court has already established that this law ought to be read expansively, advocates and LGBT plaintiffs would be wise to cite to these two aforementioned, major Supreme Court cases. It is even possible that Chief Justice Roberts would be sympathetic to such arguments given his professed embrace of the concept of “stare decisis” in his fall 2005 Senate confirmation hearings.[50] Even though Associate Justice Neil Gorsuch recently ruled against LGBT individuals in Pavan, it is possible Gorsuch would be sympathetic as well given that his mentor, the late Justice Scalia, even wrote favorably regarding such liberal interpretations of civil rights laws when he wrote for the majority in Pennsylvania Department of Corrections v. Yeskey that the fact that Congress did not “expressly anticipate” the application of a statute in specific contexts is not a reflection of the limitations of that law but rather a demonstration of its “breadth.”[51]

Even so, plaintiffs and advocates could look to the actual legislative history from 1964 to find evidence in favor of a strong congressional intent for the law to apply in situations that were not foreseen at the time of the debate. For one, the history of the law’s passage makes clear that “Senate liberals were overwhelmingly in favor of making workplace sex discrimination illegal – and so were some conservatives.”[52] The level of support was such that the Johnson White House ultimately supported the inclusion of this language after a concerted effort from some congressional progressives to emphasize its necessity.[53] Further, in his famous speech calling for passage of the bill, Republican Senator Everett Dirksen, who became an unlikely ally of the Johnson administration, declared that “times change” and “America changes” as justification for the Civil Rights Act, a recognition that there could be unforeseen developments that would trigger broad protections.[54]

Dirksen also rather firmly and sweepingly stated that “the time has come for equality of opportunity in sharing in government, in education, and in employment [and] it will not be stayed or denied.”[55] Senator Hubert H. Humphrey, another leading crafter of the legislation before he became LBJ’s Vice President, similarly stated that the “purpose” of the law was meant to protect against all forms of discrimination, rather than to provide any limitations.[56] Similarly, Rep. Emmanuel Celler, another leading architect of the legislation, stated on the floor of the House that the Civil Rights Act “bestows no preferences on any one group” and instead reaffirms that the “living force of our Constitution shall apply to all people,” sweeping language that reaffirms the wide breadth of the law.[57] The inclusion of “sex” was itself the subject of a debate on the House floor at the time which led to a vote specifically on its inclusion as it passed ultimately by 168-133.[58]

c.     Agency deference

Nonetheless, courts such as the Hively court have warned against “malleable” and often “indiscernible” legislative history in reaching an opinion. Hively, 853 F.3d at 343. As such, a potentially stronger footing could be agency deference. Although the Trump administration, through the Department of Justice (DOJ), has filed amici briefs against inclusion of sexual orientation in Title VII, and it has seen at least one victory in the Eleventh Circuit, the actual federal agency charged with carrying out the Civil Rights Act has a different reading of the law. In Title VII, the Equal Employment Opportunity Commission (EEOC) is tasked with the power to implement the statute to the extent that they are entrusted with enforcement of the provisions that prohibit employment discrimination. In fact, the EEOC was actually created by the Civil Rights Act itself.

Ever since 2015, the EEOC has taken the position that Title VII does extend to workplace discrimination against LGBT individuals; every member of the commission who ruled in this way was appointed to the EEOC by then-President Barack Obama.[59] Given the EEOC’s role in enforcing Title VII, the Supreme Court could find that since the Court previously ruled in Chevron that federal agencies should be given “deference” to their interpretation of the law, in cases where it is ambiguous as it is here, unless it is “arbitrary,” in laws where the relevant agency is charged by statute with enforcement, this kind of “Chevron deference” ought to compel a finding in favor of Title VII protection.[60] However, this is an unusual path for the Court to embrace given that it is unlikely that the conservative majority would embrace such a finding. It is also the case that the Zarda court avoided ruling on these grounds, a refusal to intervene in the unusual federal governmental split between the EEOC and the DOJ, and it was likely wise to do so if it wishes for its opinion to be upheld by the Supreme Court and to have longstanding effect.[61] Indeed, as Shalyn L. Caulley wisely noted in the University of Illinois Law Review, “while the EEOC has ruled that Title VII encompasses sexual-orientation and gender identity discrimination, ‘[t]he next president could appoint commission members who feel differently about the meaning of Title VII, and they could reverse th[e] divided opinion.”[62] Given the slate of nominees President Trump has put forward for the EEOC thus far, Caulley’s warning from 2017 seems prescient.

d.     The Supreme Court’s path to Title VII protection.

By far the strongest case, of those laid out here, that could be made for protection would be the plain meaning argument that relies on the actual language of the status, Such an argument could provide the basis for a wide majority ruling in favor of Title VII protections. Even a conservative justice like Chief Justice John Roberts could potentially be sympathetic to such an argument. More of a strict constructionist than his liberal colleagues but less of a rabid right-wing ideologue than fellow conservative justices Clarence Thomas and Samuel Alito, Roberts has shown a willingness very recently to follow through with protection for LGBT citizens, as seen in the Pavan ruling where he ruled in favor of recognition of same-sex couples’ rights with regard to a birth certificates matter.[63] Further, his opinion in King v. Burwell provides guidance regarding his thinking in situations similar to the one at hand.[64] In that case, Justices Roberts and Kennedy, who also would be sympathetic to a plain language-based argument given his approach in King, joined their liberal colleagues in holding that the Patient Protection and Affordable Care Act’s ambiguous definition of “state” ultimately did not preclude federally-run health insurance exchanges from featuring federally funded financial assistance for individuals and families.[65] In consideration of the plain meaning of the statute and the larger context of the law, one meant to expand health insurance for millions, Roberts’ opinion upheld the subsidies.[66] Roberts wrote that the word “state” could have a broad meaning that extends to federally-run entities within a state and Congress’ intent was surely not to “destroy” insurance markets but rather to “strengthen” them.[67] Roberts and Kennedy could take a similar path here and join the Court’s liberals through utilization of the plain meaning of Title VII and the broader context of the law’s aims to find for broad protection.

III. State-based protections for Title VII are a potential option for relief but provide limited recourse.

Lastly, another crucial avenue that plaintiffs and advocates could pursue is action within state legislatures to see to it that change is enacted. So far, this effort has had some success, most notably in states known for more progressive laws on such social and cultural issues. For instance, New York is home to the Sexual Orientation Non-Discrimination Act, a law passed in 2003 and one that explicitly bans sexual orientation discrimination in employment.[68] In California, the Fair Employment and Housing Act applies similarly.[69] Over 20 states have such protections but a majority of U.S. states do not have such laws on the books; thus there is an opportunity for LGBT individuals to advocate for such protections.[70] Given the objectively historic lack of productivity of the Congresses that have been in session since 2011, state legislatures, heralded as laboratories of democracy, are a potentially viable option for efforts to secure stronger employment protection. On the one hand, legislation at the state level could set a model for Congress to act, in the same way that state legislatures passing versions of children’s health insurance programs ultimately provided strong examples for what a federal law could look like – and eventually led to the passage of the State Children’s Health Insurance Program in 1997. On the other hand, as the aforementioned Shalyn Caulley noted, there is a dilemma in that there is an inherent lack of “uniformity” when it comes to state legislatures taking this approach because, ultimately, LGBT individuals would be hamstrung if they wanted or needed to move to a state where there did not exist such protections.[71]

IV. Counterarguments

This section of the paper addresses counterarguments that opponents of Title VII protection for LGBT individuals would raise regarding the inclusion of protection. These include: first, that religious liberty concerns provide them with a shield to utilize against claims of discrimination; second, that Congress could not have intended for Title VII to apply to sexual orientation and so it should not be read that way; and third, that an expansive reading could lead to “frivolous litigation,” to use the language of Speaker Boehner.

a.     Religious liberty

The religious liberty argument is one that is rooted in the Religious Freedom Restoration Act (RFRA) and the Free Exercise Clause of the First Amendment to the U.S. Constitution. This kind of argument was advanced unsuccessfully recently in the Sixth Circuit case of EEOC v. R.G. & G.R. Harris Funeral Homes.[72] The Harris case was far more straightforward in its details than other cases courts have dealt with in the Title VII as the employer here made quite clear that the firing of a transgender woman occurred because she failed to “follow God’s commands.”[73] The employer claimed that RFRA, passed overwhelmingly by Congress and subsequently signed into law by then-President Bill Clinton in 1993, protected his right to fire the employee because of the employer’s religious lack of desire to associate with transgender individuals. Akin to concerns raised in the Masterpiece Cakeshop case, the employer here is relying on language in RFRA that states that an individual’s religious practice cannot be “substantially burdened” by statutory protections and prohibitions.[74]

However, the Sixth Circuit issued an opinion that should provide guidance for the Supreme Court on how to rule on this issue. Indeed, the Harris court found that there is an overriding “compelling interest” in protecting individuals from the kind of employment discrimination “because of sex” that Title VII prohibits.[75] In reaching this finding, the court used an analysis similar to the one Justice Scalia advanced in the Supreme Court’s decision of Employment Division v. Smith in which the Court found that “neutral laws of general applicability” cannot be summarily overruled by religious concerns.[76] This finding ideally ought to extend to the Civil Rights Act.[77]

b.    Legislative intent

That Congress could not have intended Title VII to apply to LGBT individuals is another argument that could be utilized by opponents. In fact, though Senator Humphrey extolled the virtues of a broad-ranging purpose for the Civil Rights Act, as Vice President, he wrote in a letter once in 1965 that the law had nothing to do with “the concerns of homosexuals.”[78] Rep. Celler, a floor manager of the Civil Rights Act, was a skeptic of the “sex” amendment too as he spoke against its inclusion.[79] If chief architects of the law found that Title VII is inapplicable to situations involving gay individuals, or that it should not even be there at all, then surely it should not apply to employment discrimination against LGBT individuals, opponents of protection would argue. Similarly, there would be a case made regarding the inclusion of “sex” as a means of defeating the legislation at the time of its debate. These counterarguments would be likely the most compelling of those opponents of Title VII protection would make. Nevertheless, they would still be countered by the notion that Congress need not explicitly envision a specific or particular application of a law in order for it to be protective in that certain way ultimately.

c.     Litigation

Lastly, Speaker Boehner’s claim regarding “frivolous litigation” is rooted in no serious evidence whatsoever. So far, already, because of the vague nature of Title VII, there has been extensive litigation over its meaning. It is entirely possible that a definitive Supreme Court ruling or an act of Congress finding that Title VII applies to sexual orientation could actually lessen litigation as it would put employers on notice to be careful in avoiding such discrimination. Indeed, that is a primary purpose as to why this issue is so vital for LGBT individuals. So far, for far too long, though they are constitutionally able to practice their right to love and marry the person they love, they are still living in the shadows in the sense that they are unable to fully express themselves given the fear that this lack of protection could create about revealing one’s identity in the workplace. As such, there should be either an act of Congress, ideally, or a Supreme Court ruling finding that Title VII applies to sexual orientation.

---

[1] Obergefell v. Hodges, 576 U.S. ___ (2015).

[2] Sarah McBride, Laura E. Durso, Hannah Hussey, Sharita Gruberg, and Bishop Gene Robinson, “Why Congress and U.S. States Must Pass Comprehensive LGBT Nondiscrimination Protections,” Center for American Progress,

https://www.americanprogress.org/issues/lgbt/reports/2014/12/10/102804/we-the-people/. (December 10, 2014).

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] 42 U.S.C. Section 2000(e).

[9] Id.

[10] Tessa M. Register, The Case for Deferring to the EEOC’s Interpretations in Macy and Foxx to Classify LGBT Discrimination as Sex Discrimination Under Title VII, 102 Iowa L. Rev. 1397 (2017).

[11] Id.; Brad Sears, Christy Mallory, Ilan Meyer, Report Shows Continuing High Levels of Workplace Discrimination, Impacts Productivity and Health, The Williams Institute at UCLA School of Law. (July 26, 2011).

[12] Christy Mallory and Brad Sears, Employment Discrimination Based on Sexual Orientation and Gender Identity in Alabama, The Williams Institute at UCLA School of Law, February 2017.

[13] Zarda v. Altitude Express, 883 F.3d 100, 108-109 (2nd Cir. 2018) (discussing how “the client told her boyfriend about Zarda's alleged behavior and reference to his sexual orientation; the boyfriend in turn told Zarda's boss, who fired shortly Zarda thereafter…[but Zarda] denied inappropriately touching the client and insisted he was fired solely because of his reference to his sexual orientation.”)

[14] M.V. Lee Badgett, Laura E. Durso, Angeliki Kastanis & Christy Mallory, The Business Impact of LGBT-Supportive Workplace Policies, The Williams Institute at UCLA School of Law, May 2013.

[15] Rebecca Riffkin, In U.S., 55% of Workers Get Sense of Identity From Their Job, Gallup. (August 22, 2014).

[16] Zack Ford, “Why the Workplace Needs to Be More Welcoming for LGBT Employees,” ThinkProgress, https://thinkprogress.org/report-why-the-workplace-needs-to-be-more-welcoming-for-lgbt-employees-4e55e6491996/. (May 9, 2014).

[17] Juster RP, Smith NG, Ouellet E, Sindi S, Lupien SJ, “Sexual orientation and disclosure in relation to psychiatric symptoms, diurnal cortisol, and allostatic load.” Psychosom Med. 2013 Feb; 75(2):103-16. doi: 10.1097/PSY.0b013e3182826881. Epub 2013 Jan 29.

[18] Paul Smith, “Indignity: A Supreme Court ruling in favor of Masterpiece Cakeshop would be devastating for gay Americans,” Slate, https://slate.com/human-interest/2018/04/a-supreme-court-ruling-for-masterpiece-cakeshop-would-devastate-gay-americans.html. (April 9, 2018).

[19] Congress.gov, S. 815 - The Employment Non-Discrimination Act of 2013, https://www.congress.gov/bill/113th-congress/senate-bill/815. (April 25, 2013).

[20] Mother Jones, These Senate Republicans Voted to Continue LGBT Employment Discrimination, November 2013, https://www.motherjones.com/politics/2013/11/senate-republicans-lgbt-discrimination-employment-transgender-gay/.

[21] Steve Benen, “Why Boehner Sees ENDA As Unnecessary,” MSNBC, http://www.msnbc.com/rachel-maddow-show/why-boehner-sees-enda-unnecessary. (November 14, 2013).

[22] Office of Congressman Jared Polis, “Polis Introduces Discharge Petition to Force Vote on ENDA,” https://polis.house.gov/news/documentsingle.aspx?DocumentID=393888. (September 17, 2014).

[23] Maggie Haberman, “Poll: Anti-discrimination law support,” Politico, https://www.politico.com/story/2013/09/poll-big-support-for-anti-discrimination-law-097540. (September 30, 2013).

[24] Benen.

[25] Emma Green, “Trump’s Battle Over LGBT Discrimination Is Just Beginning,” The Atlantic (July 28, 2017).

[26] Aine Cain, “Trump's nominees cast doubt on the future of employment protections for LGBT workers.”

 Business Insider, http://www.businessinsider.com/trump-eeoc-nominees-lgbt-workers-2017-9.  (September 20, 2017).

[27] Donald J. Trump, Remarks Accepting the Republican Nomination for the Presidency of the United States, Republican National Convention, July 21, 2016.

[28] Paul Alexander, “Trump towers,” The Advocate, https://www.advocate.com/election/2015/9/28/read-donald-trumps-advocate-interview-where-he-defends-gays-mexicans. (February 13, 2000).

[29] Office of Congresswoman Nancy Pelosi, Pelosi Remarks at Press Conference Introducing the Equality Act of 2015, https://pelosi.house.gov/news/press-releases/pelosi-remarks-at-press-conference-introducing-the-equality-act-of-2015. (July 23, 2015).

[30] Burges Everett, “Senate passes gay rights bill,” Politico, https://www.politico.com/story/2013/11/enda-vote-senate-099538. (November 7, 2013).

[31] Zarda v. Altitude Express, 883 F.3d 100 (2nd Cir. 2018); Hively v. Ivy Tech Community College of Indiana, 853 F.3d 939 (7th Cir. 2017).

[32] Evans v. Georgia Regional Hospital, 850 F.3d 1248 (11th Cir. 2017).

[33]Chevron v. U.S.A., Inc. v. Natural Resources Defense Council, 

Inc., 467 U.S. 837. (1984).

[34] Zarda, 883 F.3d 100 (2nd Cir. 2018).

[35] Id.

[36] Id.

[37] Id.

[38] United States v. Missouri Pac. RPR. Co., 278 U.S. 269, 278 (1929) (where the Court stated “where the language of an enactment is clear and construction according to its terms does not lead to absurd or impractical consequences, the words employed are to be taken as the final expression of the meaning intended”); Hively, 853 F.3d 339 (7th Cir. 2017).

[39] Id.

[40] Id.; Loving v. Virginia, 388 U.S. 1 (1967). 

[41] 42 U.S.C. § 2000e.

[42] Zarda, 883 F.3d at 112.

[43] Robert C. Bird, More Than a Congressional Joke: A Fresh Look at the Legislative History of Sex Discrimination of the 1964 Civil Rights Act, 3 Wm. & Mary J. Women & L. 137 (1997).

[44] Louis Menand, “The Sex Amendment: How women got in on the Civil Rights Act,” The New Yorker (July 21, 2014 issue).

[45] Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

[46] Id.

[47] Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986).

[48] Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998).

[49] Id.

[50] S. HRG. 109–158: CONFIRMATION HEARING ON THE NOMINATION OF JOHN G. ROBERTS, JR. TO BE CHIEF JUSTICE OF THE UNITED STATES HEARING BEFORE THE COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ONE HUNDRED NINTH CONGRESS FIRST SESSION SEPTEMBER 12–15, 2005.

[51] Pennsylvania Dept. of Corrections v. Yeskey, 524 U.S. 206, 211 (1998).

[52] Statutes, Regulations, and Interpretation: Legislation and Administration in the Republic of Statutes, William N. Exkridge, Jr., Abbe R. Gluck, Victoria F. Nourse (2014).

[53] Id.; 110 CONG. REC. 2579-80 (1964).

[54] Everett M. Dirksen THE CIVIL RIGHTS BILL 1 June 10, 1964 (In the Senate).

[55] Eskridge, pages 33-41.

[56] Id.

[57]Id., 41.

[58] 110 CONG. REC. 2584 (1964); Bird, 158 (1997).

[59] Chris Geidner, “Sexual Orientation Discrimination Barred By Existing Law, Federal Commission Rules,” BuzzFeed News,  https://www.buzzfeed.com/chrisgeidner/sexual-orientation-discrimination-is-barred-by-existing-law?utm_term=.jfE2LKRmr#.mxG3rPeGV. (July 16, 2015).

[60] Chevron., 467 U.S. 837.

[61] Zarda, 883 F.3d 100.

[62] Shalyn L. Caulley, The Next Frontier to LGBT Equality: Securing Workplace-Discrimination Protections, 2017 U. Ill. L. Rev. 909 (2017).

[63] Pavan v. Smith, 137 S. Ct. 2075 (June 26, 2017).

[64] King, 576 U.S. ___ (2015).

[65] Id.

[66] Id.

[67] Id.

[68] Attorney General Eric Schneiderman, https://ag.ny.gov/civil-rights/sonda-brochure.

[69] Employees and job applicants are protected from bias, State of California, https://www.dfeh.ca.gov/employment/.

[70] We the People, “Why Congress and U.S. States Must Pass Comprehensive LGBT Nondiscrimination Protections,”

By Sarah McBride, Laura E. Durso, Hannah Hussey, Sharita Gruberg, and Bishop Gene Robinson Posted on December 10, 2014, 12:01 am, https://www.americanprogress.org/issues/lgbt/reports/2014/12/10/102804/we-the-people/.

[71] Shalyn L. Caulley, The Next Frontier to LGBT Equality: Securing Workplace-Discrimination Protections, 2017 U. Ill. L. Rev. 909 (2017).

[72] EEOC v. R.G. & G.R. Harris Funeral Homes, 2018 WL 1177669.

[73] Id.

[74] Id.; Mullins v. Masterpiece Cakeshop, Inc. (Colo. Ct. App. 2015), cert. granted, June 26, 2017.

[75] Harris, 2018 WL 1177669.

[76] Smith, 494 U.S. 872, 879 (1990).

[77] Id.

[78] Jonathan Capehart, “LBJ’s civil rights legacy and its importance to LGBT Americans,” The Washington Post, https://www.washingtonpost.com/blogs/post-partisan/wp/2014/04/10/lbjs-civil-rights-legacy-and-its-importance-to-lgbt-americans/?utm_term=.4e2c362b88e2. (April 10, 2014).

[79] 110 Cong. Rec. 2577 (1964); Bird, 153.

It's amusing how pundits' analysis can change on a dime

I will say in full disclosure before I dive into this post that I relish TV political analysis. I've spent copious amounts of my free time, and even my non-free time I am loathe to admit, pouring through such analyses. I am a political junkie at my core. In some ways though, that experience has given me sufficient perspective to provide my own analysis here.

To hear cable news pundits tell it, you would think American voters are paying attention to every single detail of an election campaign. Not only do these pundits laughably assume that voters have enough time on their hands to absorb every detail but they also assume that those details, news items that often only grab the attention of Beltway elites and political junkies, matter so much to voters' determinations that they'll affect the outcome of an election. 

Consider an example from just months ago, when pundits were losing their mind in a classic #DemsinDisarray episode about the Virginia's governor race tightening. On the eve of the election, as The Washington Post's Dave Weigel loves to point out, the entire Morning Joe panel predicted that longtime Republican political consultant and lobbyist Ed Gillespie would win the gubernatorial election.

MSNBC's Mika Brzezinski incredulously wondered if veteran Democratic political strategist Donna Brazile's tell-all book about the 2016 presidential election could swing the election to Gillespie. Brzezinski was not alone in this observation as countless media outlets analyzed whether Brazile's revelations would sufficiently shake up the race to hand the election, one focused on issues ranging from immigration to Medicaid expansion, to Gillespie. Instead, Democratic nominee and then-Lt. Governor Ralph Northam won by nine points, outpacing Hillary Clinton's 2016 margin in the state (one of the few states where Clinton outperformed Barack Obama's 2012 margin). 

Unsurprisingly, exit polls revealed the news about Brazile and the Democratic National Committee were nowhere in the top five issues voters cited as concerns. Furthermore, among voters who decided in the last week of the election, when the Brazile news and other media warnings about Virginia were paramount, 61 percent of that group backed Northam. Reliably, the morning after the election, MSNBC's Joe Scarborough (after admitting his panel's wrong predictions) led a panel in carefully scrutinizing the results as the pundits poured over the possibilities for why Northam routed Gillespie. 

This entire turn of events is vintage DC political media. They obsess over controversies that do not affect rank and file voters' lives. They believe voters are closely examining every single utterance of every political actor in a campaign and basing decisions off those statements and actions. They also consistently extrapolate great meaning from any one solitary election result or probability to claim there has been a grand realignment or awakening that will forever reshape the political landscape. 

The truth of the matter is that voters are incredibly busy; Americans are among the most hardworking people on the planet. Many of them juggle multiple jobs and other responsibilities or are in jobs that are extremely time-consuming in one way or another. They simply do not have the time or ability to dissect every detail of every election campaign. They vote with the national economy in mind, usually, and if not that, any number of other issues that might affect their communities and families.

The 2017 Virginia governor's race is a perfect example of the difference between media perceptions and reality on the ground. Pundits focused on Brazile while voters on the ground were worried about Medicaid expansion and gun control. During the current 2018 midterm election campaign, as reporters like Weigel and others have discussed, as pundits have endlessly discussed the Trump/Russia scandal, voters in key races are instead more worried about GOP efforts to repeal the Affordable Care Act and the effects of President Trump's Tax Cuts and Jobs Act.

Nevertheless, that probably won't stop pundits from making ludicrous statements during this midterm season...such as when New York Magazine's Frank Rich after the 2006 midterms baselessly theorized that Stephen Colbert's White House Correspondents' dinner routine was the "defining moment" in that campaign. Really? The problem with analyses like that is that how many Americans are actually sitting down and watching a bit like that, how many are so moved by it to vote for a particular candidate, and how many see that as a pivotal moment that overrides or matches concerns integral to their lives.

One of the most amusing aspects of this charade is how, on the turn of a dime, this analysis could change depending on a variety of factors. Such a phenomenon exposes how flawed these analyses are. In many elections, particularly in very close elections like the presidential elections of 1976, 2000, 2004, and 2016, it is difficult to make any sweeping declarations about the larger meaning of the result. Any number of factors could have affected the outcome in such a scenario where a few thousand votes make all the difference. It is hard to diagnose then a close election result as the consequence of a grand, wise strategy, especially when external forces can hold serious sway.

It is also true that in a close election like that, it is absurd to claim that a realignment of some kind has occurred. Yet, amazingly, pundits after 2004 declared that Democrats were doomed, that they needed to appeal to white Southern evangelicals or else they would cease to be a national political force. These pundits ignored that the election was decided by about 100,000 voters in Ohio and that the national popular vote (51%-48% split for Bush over Kerry) was the narrowest margin by which an incumbent president had ever been reelected. Mind you that this came just four years after Al Gore won the popular vote in an even closer election. The 2000 election coverage itself is funny to watch because, at first, as the results appeared strong for Gore, as he racked up projected wins in Florida, Michigan, and Pennsylvania, pundits raced for explanations as to Gore's wise strategy.

Hours later, after Florida flipped to Bush and the state and the presidency were prematurely called for Bush in the wee hours of the morning, those same pundits started giving profound assessments of Bush's successful strategy. Maybe, just maybe, these pundits ignored that it was a close election basically between a standard Democrat and standard Republican that was bound to produce such a result in a polarized country and that so many myriad factors could have made either candidate win. As for the 2004-era pundits, they were of course wildly wrong and too perilous about Democrats who came roaring back to win 2006 and 2008 routs. Consider how these pundits would've been decrying the GOP's political strategy if just 100,000+ voters in Ohio had voted the other way and given the presidency to John Kerry who would have (in that scenario) won in a Trump-style/Rust Belt-fueled/popular vote-losing election.

To hear me say all of this about political punditry might be even more puzzling given that I have a bachelor's degree in political science. But as I've grown and lived through even a few more elections since then, including a particularly major one in which political science itself was widely doubted, I've come to understand more the difficulty with punditry. Voters are an interesting bunch, to put it casually.

Their often complex, complicated lives and concerns, based on their experiences and families and unique set of circumstances, animate and inform their political choices and predispositions. Often, these decisions can be highly predictable based on identifiers like party affiliation, voting history, race, gender, income, education, and any number of other classifications.

But, as I've learned in observing elections, these characteristics do not dictate automatically how voters will behave in the privacy of the polling booth. These identifiers do not turn voters into robots. So many factors beyond their control, national economic forces or local developments or concerns about their children being sent to war, can shake things up in ways no pundit really can fully understand.

Therefore, what to do with political punditry? Is anything pundits say worthy of our attention? Of course, there are instances where their predictions and assessments are accurate, based on real evidence, and reflective of genuine conditions on the ground. When you have consecutive landslide elections that benefit one party, there's something going on in the country: a real realignment.

When you have a huge sweep in power for one party after a decade of dominance on the part of one party, it's worth noting why that happened and there can be truly a series of major events that gravitated voters in that direction. As such, the punditry business ought to be sharper, more evidence-based, and more sophisticated than it is. Will that happen? Probably not. So for now, let's at least enjoy the show.

21 Sort of Non-Legal Things I Learned in Law School (Or Wish I Knew Before I Started!)

Two weeks ago, I took the Pennsylvania bar exam, two months after my graduation from Villanova Law. My momentous summer capped a formative three-year experience that has shaped me in ways I did not fully expect when I enrolled at Villanova. For what it's worth, in honor of the incoming law school class of 2021, I've compiled a brief list of the 21 sort-of non-legal lessons I learned in my law school career, from least to most important. I know many of these may seem like tropes, that they can be banal and standard pointers you could find anywhere, and I may not be a consistent, perfect messenger on all of these fronts (because, gasp,  I have flaws and make mistakes!) However, I think they are worthwhile lessons that anyone entering law school this fall should take to heart:

21. Take advantage of the free food because as a student, your income is limited and because usually the free food is offered at a panel or other kind of event where you might learn something.

20. Take notes by hand if possible because the evidence really does show you learn better that way...but if you have an open-notes exam where you can do control+F to search Microsoft Word outlines you wrote, then it may be worth it to type...so maybe take notes by hand and then type them out, which itself can be a form of review.

19. Keep tabs on what's going on in the news. Often, major news stories end up being the topics of exam hypos and end up presenting interesting issues related to the law that will keep your mind working and fresh.

18. Go to law school-related social events to get to know your classmates and professors (if they are events at school) and to unwind because it will help you understand each other better.

17. Go to non-law school social gatherings, parties, etc. with people outside of law school...as much as possible. It's a key way of staying sane.

16. Attend office hours; professors will often zone in on the key information you need to know and will dissect it for you in easily comprehensible ways.

15. Take courses in subject matters that appear on the bar exam, especially in your 3L year as they will be fresh in your mind.

14. Buy or rent your textbooks on Amazon because you will save lots of money!

13. Don't. be. a. gunner. under. any. circumstances. (case in point: https://www.youtube.com/watch?v=fpVtqbnRatU).

12. Legal writing classes are the most important classes you will take because literally, that's where the money is: 55 percent of the entire bar exam in Pennsylvania is essay-based, much of the work you'll do as an attorney will likely include lots and lots of writing (including in your internships), and it's a skill that takes some time to craft so do not get discouraged easily if it does not come to you easily at first.

11. Civil procedure is, arguably, the second most important class of law school. I often cite civil procedure when family and friends ask me what surprised me the most about law school. I had no idea about the rules of civil procedure, how they operate, and how crucial they are. This class is one worth fully diving in for because it'll equip you with the information and knowledge you need as you approach the real world. You will find too that the concepts you learned here will be useful to you in other courses you take.

10. If you are in a class where there is no cold-calling, find ways to stay engaged with the material throughout the semester. Keeping the information fresh in your mind throughout the semester in a class like this is vital because it is easy to not feel as motivated to continually review in a class where there is no cold-calling because there is less pressure. Therefore, it is crucial to keep reading, keep reviewing, doing other exercises, etc. so that you don't feel like you need to cram right before finals.

9. Enjoy the summers of 1L and 2L as much as you can, while also working hard in your internships, because the summer of bar prep is genuinely grueling.

8. Sign up for a bar prep course as soon as possible and stick to their plan because they know what they are talking about and they can keep you on track and disciplined to get to where you need to be to pass the bar.

7. Pursue positive-minded, fun-loving, relaxed classmates as friends; they can form a great study group for you and more importantly, can become lifelong friends. Somebody who is truly your friend and loyal and dedicated to you, and willing to put up with you, through the stresses of law school is someone worth keeping as a friend.

6. Avoid negative people: it obviously is said a lot but it is absolutely crucial. In law school particularly, you will find some folks who are incredibly arrogant, mean-spirited, and selfish. It is easy, especially in 1L year, to let these individuals' attitudes get to you. I fell victim to this even though I intellectually understood that the negative energy was draining and unnecessary. Try to ignore these individuals as much as you can and remember to prove them wrong through your own hard work and dedication.

5. If you need to and can afford to, prioritize the job search over classes. As someone once told me, "you're in law school to eventually work, not to be in school all the time." It's better to prepare for an interview the night before that interview than to read as closely as you usually would that night.

4. Pursue clinical programs and other extracurricular opportunities, particularly public interest opportunities, offered in law school. The single most valuable experience in law school for me was the asylum clinic at Villanova because it is where I honed key legal skills and talents; I even got to argue in court, compile evidence submissions, interview clients, perform legal research, and do almost all of the things that an attorney usually would do. I learned a lot and nothing prepared me more for the "real world" than this experience.

3. Seek out genuine diversity in your friend group, in your classes, and in all of your pursuits in law school. Truly, this cannot be said enough because the value of this diversity is seen in perspectives offered in class, in ways to think about the law and how it impacts different communities, and in even mundane conversations you might have with friends and classmates. You will learn more and grow as a person, in your understanding and in your empathy, if you prioritize these interactions.

2. Study smart by looking at past law school exams, if they are offered by your professor, and sample answers because they often indicate how a professor expects you to answer a question, what topics they frequently hit, and what issues to highlight; review your notes from lectures because professors often say in class, "this is something you should expect to be on the final," and that material (or something they emphasize repeatedly) should be more heavily studied than something relatively minor in comparison. 

1. Never lose sight of the most important values and priorities of life: your family, your loved ones, and your mental and physical health, and your character. All of these pillars of life are monumentally more important than law school. If you take care of yourself and those around you, you will leave a far greater legacy and a greater impact on the world regardless of what happens in school. I write this now as a happily engaged man; I am marrying the love of my life and I could not be more thrilled about it. She has been there with me through the entirety of law school and helped me overcome stresses, regain my focus when needed, and kept me going as I always knew that she believed in me and would love me no matter what happened. My parents have also been incredibly helpful to me in this time as I know that I would not be where I am today without them. They've provided me with all of the resources and tools I need to succeed and they've given me key inspiration throughout the years to work hard and to put others first. Without them, I would not be the person I am today.

Trump's tax cut for the rich will only worsen inequality that fueled his rise and that's bad for democracy

Credit: Tax Policy Center

When President Trump was running for office in 2016, he told the hosts of NBC's Today that he would raise taxes on the wealthy. He has long claimed that he favors policies that do not financially benefit him. He feigns concern for the "forgotten man." However, his new tax reform law will only worsen the decades-long, deep income inequality that created the conditions for his ascension. After President Obama's 2013 fiscal cliff deal increased the top tax rate to 39.6% from 35% and after his Affordable Care Act instituted higher Medicare and investment income taxes on the wealthy, there was a modest, positive effect on income inequality that was long overdue. The tax code became slightly more progressive and median incomes finally rose in 2015 and 2016 after several years of stagnation. The new law, which cuts the top federal income tax rate from 39.6 percent to 37 percent and doubles the exemption from the estate tax (among other regressive changes), will reverse those minimal, yet important, gains. The net effect of such a measure, even as middle-class tax rates are simultaneously cut, is the worsening of income inequality. 

Already, the wealthiest Americans have amassed the lion's share of the growth in income during the recovery from the Great Recession: they have reaped far more of the benefits of the recovery than the middle and lower classes. As a consequence of these new measures, long sought by right-wing ideologues like House Speaker Paul Ryan, the richest individuals and families will proportionally see higher increases in their wealth than the middle class and the poorest Americans.

President George W. Bush's 2001 $1.3 trillion tax cut, which also largely benefited the rich, and President Ronald Reagan's massive 1981 tax cut were designed similarly. It does not have to be this way. The structure of this cut was something we were warned about in the campaign and yet the focus of that debate unfortunately drifted to Hillary Clinton's poor sloganeering rather than the substance of what she said. An "across-the-board" tax cut, a la the Trump/Bush/Reagan efforts, ultimately has the effect of disproportionately stuffing the coffers of the very wealthy. 

The after-tax income of the extremely wealthy will also increase more, by percentage, than the after-tax income of lower and middle-class Americans because of changes like the aforementioned doubling of the estate tax exemption and shielding *millionaire* couples from the Alternative Minimum Tax. The Republican leadership in Congress likes to continually emphasize that everyone gets a tax cut in their law but the law's societal effects unfortunately negate benefits middle-class and lower-class individuals will receive. 

It is true that the Child Tax Credit is doubled under this law and that is a positive element of tax reform but if the GOP were truly concerned about the "forgotten man," there are a range of proposals they could have adopted that would genuinely not tilt a tax cut to the rich and more substantially increase after-tax income for the lower and middle class. 

These ideas include increasing the Earned Income Tax Credit for childless workers, wholly eliminating payroll taxes (that regressively, disproportionately impact the poor) for people making under $30,000, and dramatically reducing the lowest tax bracket (10%), in which individuals who are in poverty are currently paying federal income tax, all while still paying state and local taxes that hurt them more than anyone else, but cannot take advantage of generous loopholes that effectively bring rich Americans' tax rates down to the *rates* the poor pay. 

A standard GOP response to this dilemma is that the law will result in increased economic growth which will thus benefit everyone. Besides the fact that such tax cuts previously did not ultimately benefit everyone in the way the GOP envisions, there is a gap in this explanation. While it is true that some tax cuts (i.e. those for the "bottom 95%") can be economically stimulative, they are far less stimulative than other measures the GOP could have adopted. Such prudent proposals include direct public works infrastructure spending - a professed priority for Trump who has yet to impress on this issue - and tax-and-transfer policies that boost after-tax income for the poor and middle class.

Further, a wealth of research and vast empirical evidence demonstrate that the most economically stimulative efforts are ones that largely benefit the middle class. Consider that the Obama-era Recovery Act included some of these genuinely, broadly stimulative measures. The stimulus featured billions in infrastructure spending and a "Making Work Pay" tax cut that only benefited the lower and middle classes.

Consider too that the two-year payroll tax holiday, promulgated by the Obama/McConnell tax cut deal of December 2010, also had a disproportionate impact on the lower and middle classes. They are the ones most hamstrung by the regressive FICA tax. A broad-based, flat cut like that cut was even more impactful for the poor for whom the effect of the credit on their finances was greater than on the rich who benefit from the so-called "payroll tax gap." The ultimate outcome of these efforts was genuine economic growth that resulted in some lessened inequality. 

That was also the case when President Clinton raised the top rate on the wealthy in 1993 yet expanded the EITC, which only directly benefits the middle class. Indeed, economic research shows that, as Obama said accurately, "when the middle class does well, everyone else benefits too." As their incomes rise, their ability to contribute to the economy, through their increased purchasing power, rises which thus supports jobs in those stores, markets, etc. in which they shop and travel and consequently, gross domestic product rises. 

Why is all of this important though? Even if some economic growth does result from the tax law, the effect of higher income inequality is truly dangerous for our society. The United States prides itself on being a pluralistic, classless, and vibrant democracy built on the grand notion of upward mobility. Trump's Tax Cuts and Jobs Act only makes that promise less realistic. As Thomas Piketty compellingly wrote in Capital in the Twenty-First Century, the social consequences, for the core identity of a country and for its political system, of deepened inequality can be tragic. "The risk of a drift toward oligarchy is real," Piketty feared; such warnings should have been heeded as it is that precise social ill that helped catapult Trump's rise. 

Racial animosity was a centerpiece of Trump's campaign but the President's lambasting of concentrated wealth, though totally fraudulent on his part, gave his bid the economic veneer it needed to justify its faux populist brand. Disenchanted voters were driven to Trump's closing argument that railed against a "small handful of large corporations" that amassed massive wealth and tremendous political power; he chastised the cadre of "global elites" who were ostensibly determined to defeat him and destroy the working class. That is partly because many of those voters, in places like northeastern Pennsylvania, have borne the brunt of the economic and social effects of increased inequality. They further feel as if their voices and their economic concerns have been stifled in the political process. 

It is true that the levels of political power and of social clout of the poor and middle class pale in comparison to the deference legislators give to the needs of the wealthy. A prime example of this phenomenon is when Congress rushed to mollify the negative impacts of the 2013 sequester for the wealthy before they touched other, more devastating aspects of the sequester. Already, a much-touted Princeton study, one that generated significant media attention at the time of its release, has found that the U.S. is a society in which the "elites" have far more success in their "political preferences...[than] the ordinary citizen." 

Significant inequality tears at the very fabric of our country. High income inequality closes doors for those born into poverty even if they demonstrate incredible productivity and it makes access to basic goods and services more difficult. Further, it destroys a sense of a common, shared experiment and experience as a country such that we are then a less cohesive society. Economists, sociologists, and political analysts have documented a rise in these disturbing social trends over the course of the last four decades. 

These experts have theorized, over the years, that these developments could lead to the rise of a dangerous figure like Donald Trump, who brazenly promises that he "alone can fix" our problems. Predictably though, Trump's lone major legislative achievement (so far) will magnify those problems that plagued the communities that made him president. It is up to a Democratic resistance to present the flip side of this coin of American populism to advance an agenda that genuinely reduces inequality and is focused on benefiting poor and middle-class Americans. If Democrats fail to offer serious, concrete proposals while Trump continues to disappoint working-class voters, a political crisis may unfold as voters' confidence in democracy could entirely collapse. 

I was wrong about President Trump. I thought he'd be even worse.

In 2016, The Globe envisioned a Pres. Trump.

During the 1980 presidential campaign, President Carter was determined to expose Ronald Reagan as a right-wing ideologue who would eviscerate the social safety net, ramp up military engagements abroad, and stoke racial tensions at home. Unfortunately, many of Carter's warnings about President Reagan came to fruition; Reagan became a monumental figure in American politics as his policies spurred decades-long income disparity.

The conservatism Reagan espoused still continues to permeate our political culture. However, Reagan's leadership was, at times, surprisingly pragmatic and conciliatory. As such, his presidency's detrimental societal impact, on the liberal progress of the New Deal and Great Society, was mitigated. His administration ultimately fell short of the tremendous fear that Democratic figures like Carter exhibited in 1980.

Fast-forward over three decades later and another impactful election is held in 2016 between two candidates who also are dramatically different: Hillary Clinton and Donald Trump. During the campaign, liberals like Clinton (and I) warned of the frightening prospect of Trump's hand on the nuclear button, the possibility that he would succeed in undoing many of President Obama's policy achievements, and the likelihood that xenophobia would define his immigration approach. 

Much of what Clinton and her fellow Democrats predicted about a Trump presidency has come true. Similar to the developments that took place after 1980 though, Trump's administration has, so far though, fallen short of the worst fears imagined. It should be noted that, barring Trump's removal from office or his unlikely resignation, there still remains over three years (at least) of the Trump presidency so I am sure the President will test our imagination. 

Another distinction between the Reagan era and the Trump era thus far has also been that, unlike Reagan, Trump has shown virtually no willingness to work with congressional Democrats to advance scaled back versions of his agenda. From his perspective, he does not have to since Republicans control Congress (the Democrats held a large majority in the House throughout the Reagan presidency).

But in a striking similarity to the Reagan administration, the Trump administration, despite all of its repulsiveness, has been restrained by our institutions, political pressure, and other crucial external factors. Consequently, President Trump has been unable to or unwilling to carry out even more nightmarish policy. On election night 2016, as it became clear Trump would be the 45th President, I feared a war with Iran or at least the end of the nuclear agreement, a total ban on residents from Middle Eastern countries that would survive legal challenges because of presidents' broad authority in that realm, the end of the Deferred Action for Childhood Arrivals program, the bombing of North Korea, withdrawal from NATO, new surveillance measures (including a registry) targeting Middle Eastern immigrants, the elimination of the Legal Services Corporation and the Community Development Block Grant (among other domestic agencies), the reauthorization of torture, the addition of new detainees at the Guantanamo Bay detention center, the prosecution of Hillary Clinton, and the repeal of the Affordable Care Act and the Dodd-Frank Wall Street reform law.

Some of these outcomes may unfortunately still come to fruition particularly since, at least with regards to the legislative goals, Speaker Paul Ryan leads a defiantly right-wing House of Representatives and Senate Majority Leader Mitch McConnell leads a Republican caucus that is usually mostly united. But so far, President Trump has not succeeded in these aims nor has he even tried in many cases to carry out these efforts. He has flat out failed in some instances and succumbed to the political tides, and other pressure, in other instances -- and has been dragged kicking and screaming into those relieving decisions that he detested. 

Don't get me wrong: Trump has been horrid -- a disastrous president who has stoked fear among nonwhites and immigrants with his rhetoric and actions, tarnished our reputation in the world, and succeeded in squashing key Obama-era policies that protected our climate, public health and safety, and civil rights. That he has not been even worse should not obscure how dangerously effective has has been especially in quiet ways like reshaping Justice Department policies through his Attorney General, the retrograde Jeff Sessions. Nevertheless, beneath all of that, there is still the aforementioned unfulfilled that frustrates him and his allies. 

The reason the absolute worst has not come about is because of the sustained pressure the public, courts, and the press have placed on Trump and elected Republicans. Our exceptionally proactive and rich civil society has demonstrated, through activist uprising and judicial wisdom and dogged journalism, that Trumpism can be restrained. Consequently, it is up to all of us to defend those time-tested institutions -- free speech, free press, checks and balances -- to protect all of our rights, liberties, and protections. We can't expect President Trump to emulate President Reagan in advancing pragmatism but we can expect him, or at least his GOP allies, to fold under pressure. As Joe Biden would say: "keep the faith."

----------------------------------------

UPDATE: This post has been updated on September 5, 2017 to reflect the fact that President Trump is ending the Deferred Action for Childhood Arrivals (DACA) program. As I said above, this post should not be construed as any kind of defense of Trump as he has over three years to demonstrate how horrendous he can be and, even up to this point, he has already been repulsive.

UPDATE II: This post has been updated on May 8, 2018 to reflect the fact that President Trump is renewing previously suspended sanctions on Iran and withdrawing the U.S. from the Iran deal. It should be noted that DACA, referenced above, has since been saved by federal courts but Trump continues otherwise to enact harmful, draconian immigration policy. Trump is proving again that he is a uniquely awful leader; we have it within us to do what we can to prevent further harm by voting for progressive candidates this fall.

UPDATE III: It is summer 2018 and quite possible this post is increasingly obsolete, especially in light of the horrible week we've had as Justice Kennedy just announced his retirement. I still maintain that I truly was concerned that the outcomes of a President Trump would be even worse than they have been so far. Having said that, the awfulness of the effects of this administration's policies continue as the U.S. Supreme Court has upheld the President's travel ban.

Perhaps this post came too early in Trump's presidency for there to be an accurate statement made about expectations vs. reality. Still, we have blunted even worse damage to our society through our activism and mobilization. We must show that spirit at the polls in November. For our civil rights and civil liberties, it is absolutely imperative.

UPDATE IV: It is spring 2020 and amid the national unrest currently with over 100,000 Americans dead from COVID-19, millions out of work, and racial injustice plaguing our country, Donald Trump's leadership has been abysmal. Trump's lack of an adequate testing plan and his dismissal of early warnings of the novel Coronavirus led to the worsening of the disease. A recent Columbia University study found that had social distancing measures taken place just one week earlier, we could have saved 36,000 lives. A lack of leadership from the White House has made a global pandemic significantly worse.

Meanwhile, Trump has badly mismanaged the economic recovery effort. The Paycheck Protection Program, intended to help small businesses, was more beneficial to larger corporations than initially advertised and the execution of the program was disastrous. Meanwhile, the administration continues to try to restrict access to food stamps and refuses to open a special enrollment period for Affordable Care Act exchange coverage.

With regard to recent protests in light of George Floyd's tragic death at the hands of police officer Derek Chauvin, Trump has threatened protestors and undone vital Obama Justice Department reforms on police brutality. He routinely still engages in racist rhetoric from the bully pulpit of the White House. Things have truly gotten bad. I thought it'd perhaps still be even worse in some ways with more overseas military intervention and deeper domestic cuts (including an undone ACA; instead, the law still stands remarkably). But I certainly did not envision a global health pandemic badly mismanaged all happening at the same time as police violence and ensuing protests leading to the tear gassing of protestors. It is so important that we vote November 3 to remove Trump from office.

UPDATE V:  I am thrilled the President was voted out of office. Unfortunately, he continues to be a destructive leader. That includes inciting a violent mob of domestic terrorists who rampaged through the U.S. Capitol, ransacked offices, and attempted a coup. Did I fear that things would get *even worse* than this? I am not sure honestly. 

As I mentioned in the last update, there are things that have not happened that I feared would have happened were it not for important activism. That includes a new foreign war, the repeal of the ACA -- and an even worse response to a crisis like COVID-19 (like one that did not contemplate any serious economic relief). That some of those fears did not materialize is again of course in no way because of Trump; it is in spite of him. I did not anticipate there would be such significant public and political resistance to Trump. I did not expect such mass mobilization against him over the years but instead we got a powerful resistance movement that has inspired amazing democratic protest. That's why things have not gotten worse. We should never underestimate our power as citizens.

Trump's domestic policies reveal uncomfortable truths about the right

Photo Credit: Getty Images

President Trump is no stranger to hypocrisy, alpha male posturing, and callous indifference to those he perceives as inferior to him. His domestic policy framework, as reflected in his draconian federal budget proposals and in his egregious health care legislation, exemplifies those traits. At the same time, those ultraconservative policies are revealing in an instructive way as they shed light on the parsimonious practices that have long steered the Republican right.

In terms of hypocrisy, the substance of Trump's domestic policy, though unsurprising to close observers of the presidential campaign, flies in the face of his self-professed concern for the working class. These are the individuals and families that would be most dramatically adversely impacted by the American Health Care Act (AHCA) and by Trump's proposed array of cuts to anti-poverty programs. Beyond the horrid policy implications of these measures, the politics provides a strong opportunity for Democrats to expose Trump and his GOP allies for who they really are: the robber barons who genuine working class champion Bruce Springsteen railed against in "Death to My Hometown."

Further, with regards to the ideological underpinnings of these policies, it should be clear by now what the ultimate aim of the Ayn Rand-inspired, Paul Ryan-driven agenda is -- one wholly adopted and embraced by the Trump administration in the form of White House Office and Management and Budget (OMB) Director Mick Mulvaney. Recently, Mulvaney condemned individuals with diabetes as people whose "bad choices" ought not to entitle them to the "care" of society.

Putting aside the breathtaking ignorance of Mulvaney's armchair diagnosis of millions, these remarks are unusually candid as they lay bare an unspoken tenant of right-wing dogma. Mulvaney's assessment reflects the deeper strain in the conservative ideological mindset that Social Darwinism, the notion of survival of the fittest, ought to steer public policymaking.

Indeed, the logical extension of the right-wing campaign to promote ostensibly individualistic ideals in domestic policy is that ideally meager public benefits only belong to highly deserving citizens, if anyone at all, at the exclusion of those who suffer supposedly 'self-inflicted' misfortune. Mulvaney uttered the unvarnished truth of the right's guiding belief system, a philosophy billed with appealing language (i.e. "personal responsibility") but grounded in suspicion towards the disadvantaged.

Ultimately, if nothing else, the shamefulness of these policies is that it does not have to be this way. Several years ago, Chris Hayes made a compelling point on his nightly broadcast that struck me with its simple yet clear message that "poverty is a policy choice." The empirical evidence plainly demonstrates that to be the case. There exists, within the right's school of thought, a determination to blame sky-high income inequality on workers.

Yet productivity has not kept up with wages over the course of the last several decades. It is no mistake that as wages and safety net spending declined since 1980, income inequality skyrocketed. Policymakers like Mick Mulvaney argue that, in light of this dilemma, fiscal restraint is necessary anyway. The United States is the wealthiest, most resourceful country on Earth, with the means to alleviate suffering at home and abroad so fiscal responsibility may be an offered justification for Mulvaney's cohort yet one without merit.

If anything, the expenditures of safety net measures are investments that help families prosper and the economy grow. We have the capability, on many levels, to remedy what ails the working class yet we choose not to do it -- all in the service of rewarding the fittest and punishing the unworthy and in the name of fiscal prudence.