Amicus With Dahlia Lithwick | Law, Justice, and the Courts

Episode: The Fight for LGBTQ Protections Under the Civil Rights Act

Date: April 27, 2019
Host: Mark Joseph Stern (guest hosting for Dahlia Lithwick)
Guests:

• Gillian Thomas (ACLU Women's Rights Project senior staff attorney)
• Christian Ferris (NYT editorial writer)
• Richard Rothstein (author, "The Color of Law")

Episode Overview

This episode explores three intertwined topics at the heart of the Supreme Court’s current docket:

1. Whether Title VII of the Civil Rights Act of 1964 prohibits employment discrimination against LGBTQ people.
2. The Trump administration’s attempt to add a citizenship question to the 2020 census, and its legal and political fallout.
3. The roots and legacy of government-driven housing segregation in America, as detailed by Richard Rothstein’s research.

I. LGBTQ Protections and Title VII

Historical Context of Title VII

• Main Point: Title VII was designed as a tool against racial discrimination in employment, but "sex" was added to the bill at the last minute, under circumstances both debated and misunderstood.
• Gillian Thomas: "On February 8, 1964, the last day of floor debate in the House, a virulent segregationist from Virginia, Howard Smith got up and said he wanted to offer an amendment, and it was to add sex to the list of protected characteristics. And the place went wild. Not with enthusiasm, but with hilarity." (03:00)

Early Enforcement and Sex Discrimination

• Key Insight: The EEOC was slow and dismissive in enforcing the sex discrimination provision. Early cases were often brought by female flight attendants facing arbitrary rules.
• Quote: "The EEOC's leadership really thought this was just as much of a joke as the folks on the floor who had initially heard Smith's amendment be offered. They really considered Title VII to be a race bill, first and foremost." (04:27)

The Importance of Price Waterhouse v. Hopkins (1989)

• Main Point: This case established that sex stereotyping is a violation of Title VII—broadening legal understanding of sex discrimination.
• Gillian Thomas: "The Supreme Court found that if your only problem with someone in their performance is that they need a softer shade of lipstick, then maybe it's not so much their performance that's the problem and it's their gender." (09:44)

Extending Sex Stereotyping to LGBTQ Claims

• Key Insight: Civil rights lawyers recognized that anti-gay and anti-trans discrimination is rooted in expectations about how men and women should behave—classic sex stereotyping.
• Quote: "If you're saying that holding women, or men for that matter, to a particular standard of what they're supposed to look like or behave like...it's really not stretching the concept at all to encompass within that, whom they love, whom they're attracted to, and also...how they identify." (10:44)

The Textualist Argument

• Even for “sticklers for text,” it's impossible to separate discrimination against LGBTQ people from discrimination "because of sex."
• Quote: "If I'm a woman and I have a picture of my male fiancé on my desk...and then my officemate is a woman who has a picture of her fiancé who is a woman on her desk, and she gets fired and I don't, it's because of my officemate's sex that she was let go." (12:27)

Supreme Court Outlook and Stakes

• Concern: If the Court rules against LGBTQ protections, it could undermine decades of progress interpreting "sex discrimination" broadly, returning it to a narrow, appearance-based notion.
• Gillian Thomas: "Constricting Title VII's stereotyping model to being something that's just related to appearance is something that I'm very fearful about." (16:20)

II. The 2020 Census and the Citizenship Question

The Legal and Political Battle

• Overview: The Trump administration pushes to add a citizenship question, which the Census Bureau itself says will lead to an undercount of Hispanics and immigrants—impacting Congressional seats, federal funding, and power distribution.
• Mark Joseph Stern: "All available evidence indicates that these groups are less likely to answer a census that includes the citizenship question because they fear the government will use the data to target immigrant communities." (18:20)

Supreme Court Oral Arguments

• Elena Kagan’s Skepticism:

  • Critiques Secretary Wilbur Ross for "shopping for a need" to add the question, describing the justification as "contrived."
  • Kagan: "So you can't read this record without sensing that this need is a contrived one." (20:45)

• Conservative Judicial Philosophy:

  • Christian Ferris: "Administrative law has a certain way of doing things...The fact that three judges so far have found deficiencies in how the Trump administration went about instituting the citizenship question, it's pretty much emblematic of all these other areas where the administration has had problems in the same area of the law." (21:49)

• Chief Justice Roberts' Ambivalence:

  • Roberts inquires whether the data will help enforce the Voting Rights Act, despite a record of skepticism toward VRA enforcement.
  • Christian Ferris: "It's an irony of ironies...you're talking about Secretary Wilbur Ross's decision to shop for this justification, this pretext, as they found it, truly shows you there really isn't a real motive, a real purpose for this thing." (24:10)

• The Broader Impact:

  • Fear of a 5-4 decision splitting along partisan lines, undermining the Court's legitimacy.
  • Ferris: "If this comes down to just the usual partisan alliances, forget about the legitimacy of the court. This is going to harm the census, this is going to harm the count...it has really broad implications for our American political system." (25:53)

• Justice Sotomayor’s Exchange with Solicitor General Francisco:

  • Points out the legitimacy of fears among Hispanic and immigrant communities about responding to the census.
  • Sotomayor: "Are you suggesting that Hispanics are boycotting the census? Are you suggesting they...don't have a legitimate fear?" (29:00)

III. The History and Legacy of Housing Segregation

Interview with Richard Rothstein

The Myth of "De Facto" Segregation

• Revelation: Housing segregation was not the result of individual choices but of explicit federal, state, and local government policy.
• Rothstein: "Racial segregation in every metropolitan area of this country was designed, enforced, created, perpetuated by explicit, racially explicit government policy..." (00:00, 34:10)

Forgotten History

• Quote: "We've forgotten it because it rationalizes our inability and particularly our lack of desire to do anything about it. And so it's a comfortable story that we've adopted that lets us off the hook..." (36:25)

Examples of Government-Driven Segregation

• Public Housing: Initially for working-class families and explicitly segregated, often destroying previously integrated neighborhoods.
  • EG: In Cleveland, integrated neighborhoods were demolished for separate 'white' and 'black' projects. (39:05)
• Federal Housing Administration: Financed vast white-only suburbs with deed restrictions excluding Black buyers (e.g. Levittown, Daly City).
  • "The Federal Housing Administration even required these builders...to put a clause on the deed of every home prohibiting resale or rental to African Americans." (42:50)

Lasting Effects

• Wealth Gap: The exclusion of Black families from homeownership means "African American wealth is only 10% of white wealth. And that enormous disparity is entirely attributable to unconstitutional federal housing policy that was practiced in the mid 20th century and that we've never remedied." (46:44)
• Wider Harms: School segregation, health disparities, job access, and community violence all trace back to these enforced residential patterns.

Overcoming the Myth

• On Utopianism: "I'm not a Utopian...but we could do a lot better than we're doing now."
• On Remedies:
  • Redesign subsidy programs to promote integration.
  • Abolish exclusionary zoning.
  • Use Section 8 vouchers and tax credits to encourage moves to high-opportunity neighborhoods.
  • Rothstein: "Remedies are easy to think of...The prior condition has to be political will." (59:09)

Memorable Exchanges

• On Personal Responsibility:
  • "If we understood that history...we would understand that not only can we do something about residential segregation, we're obligated as American citizens to do something to remedy this most serious of civil rights violations..." (35:28)
• On Historical Alternatives:
  • "If the Federal Housing Administration had extended a loan guarantee to Levitt on condition that he sell homes in a non discriminatory basis...Levittown would have been integrated." (65:17)

Notable Quotes & Moments (with Timestamps)

• "The Supreme Court found that if your only problem with someone in their performance is that they need a softer shade of lipstick, then maybe it's not so much their performance that's the problem and it's their gender."
  — Gillian Thomas on Price Waterhouse v. Hopkins (09:44)

• "Constricting Title VII's stereotyping model to being something that's just related to appearance is something that I'm very fearful about."
  — Gillian Thomas (16:20)

• “So you can't read this record without sensing that this need is a contrived one.”
  — Justice Elena Kagan (20:45)

• "This is going to harm the census...it has really broad implications for our American political system."
  — Christian Ferris (25:53)

• "Racial segregation in every metropolitan area of this country was designed, enforced, created, perpetuated by explicit, racially explicit government policy at all levels of government..."
  — Richard Rothstein (34:10)

Key Timestamps for Segments

• 00:00–02:03: Introduction and Context
• 02:03–17:37: LGBTQ Rights, Title VII, and Supreme Court Preview (Mark Joseph Stern & Gillian Thomas)
• 17:39–30:42: 2020 Census & Citizenship Question (Mark Joseph Stern & Christian Ferris)
• 30:48–69:54: Housing Segregation in America (Dahlia Lithwick & Richard Rothstein)

Episode Tone

Engaged, precise, and deeply invested in the ongoing legal and moral fights for equality. The discussions are candid, historically grounded, and often urgent in tone, especially when talking about present and future implications of legal decisions and the mythologizing of American history.

Summary Takeaway

This episode draws crucial throughlines from the Civil Rights era to contemporary struggles over LGBTQ rights, the integrity of the census, and the enduring reality of race-based residential segregation. It is a clear-eyed exploration of how law, policy, and judicial interpretation shape, uphold, or challenge deep social hierarchies—and what’s at stake in the Supreme Court’s next steps.