Georgetown Panel Assesses Upcoming Supreme Court Term

WASHINGTON (CN) — Gearing up for the long-awaited return of U.S. Supreme Court hearings, a panel at Georgetown Law highlighted two employment discrimination suits involving fired gay men as possible tough sells for Chief Justice John Roberts when the October term kicks off next month.

Kirkland & Ellis attorney Paul Clement made the argument Tuesday while predicting that the Republican-appointed chief justice will favor a strict interpretation of the Civil Rights Act of 1964.

“This almost seems like a King v. Burwell-type issue, which is like, ‘Yeah, you know, maybe when Congress doesn’t have the exact issue in mind, maybe we’ll just go with the text,’” Clement said, referring to a 2015 case involving access to tax credits under former President Barack Obama’s signature health care law.

Another expert on Tuesday’s panel, Georgetown Law professor Paul Smith emphasized that a ruling for the workers in the two discrimination cases would be groundbreaking.

“It would be huge for the LGBT community to have protection in the private sector from employment discrimination, which is pretty much a rampant problem to this day,” Smith said. “And so, that’s the reason why it’s been the No. 1 goal of the legislative community for decades.”

The two cases are Altitude Express Inc. v. Zarda and Bostock v. Clayton County. Taken up by the justices on the same day this past April, the cases both involve allegations by men who say their employers invented a pretext to fire them after their sexual orientation became public.

In the case of Gerald Bostock, who had been a child welfare services coordinator assigned to the Juvenile Court in Clayton, Georgia, it was his membership on the gay softball league “Hotlanta” that allegedly made waves. The other case comes on behalf of skydiving instructor Donald Zarda, who was fired after facing a complaint from the boyfriend of a female customer.

Zarda allegedly told the woman he was gay before strapping them together for a tandem jump, and the woman apparently took it as a coverup for inappropriate touching. The case has been proceeding posthumously after Zarda died five years ago in a BASE-jumping accident.

Attorneys also expect the Supreme Court to draw significant attention in the upcoming term when it tackles a trio of immigration cases involving the Trump administration’s abrupt termination of DACA, an Obama-era program that deferred deportation for qualifying young immigrants who lack documentation.

At the panel discussion Tuesday, Mayer Brown attorney Nicole Saharsky noted that the government has offered multiple defenses for its position that the decision to end DACA was unreviewable, including that the DACA policy itself was illegal and that the government is entitled to policy discretion.

Martin Lederman, a Georgetown Law professor, said how the court receives the government’s seven arguments makes national impact of the case uncertain.

If the court rules on a broader rule, implying that the programs were originally unlawful, Congress will have to act to protect the individuals, he said. 

“What does it mean if DACA is rescinded? It will not mean that these 700,000 migrants leave the United States or are deported,” Lederman said. “What’s really at stake here is their authority of employers to hire them legally and have them in the U.S. employment system above board, paying their taxes, being part of the open economy rather than a black economy.”

Irv Gornstein, a representative of the Supreme Court Institute for Georgetown Law and Roman Martinez, a lawyer with Gibson, Dunn & Crutcher, rounded out the panel.

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