Professor Nan Hunter on Recent Supreme Court Rulings and Her Evolving Thinking on Civil Rights
July 31, 2020
Scott K. Ginsburg Professor of Law Nan Hunter (L’75) has been at the forefront of gender and sexuality law throughout her career. After attending Georgetown Law, her career has included founding the ACLU’s Lesbian and Gay Rights Project, serving as deputy general counsel at the U.S. Department of Health and Human Services, and teaching at several other law schools before returning to Georgetown Law. She co-authored (with William Eskridge) the first casebook to conceptualize sexuality and gender law as embodying a dynamic relationship between state regulation, sexual practices and gender norms.
With some high-profile decisions in her areas of interest coming down at the end of the recently concluded Supreme Court term, we took the opportunity to get her reactions to the latest developments at the Court and talk to her about her ongoing scholarship.
Perhaps the most momentous decision of the term was Bostock, which ruled against workplace discrimination on the basis of sexual orientation or gender identity. Did the outcome surprise you?
I really would not have bet on the outcome in any way. It certainly made new law in terms of its ramifications, sweeping in sexual orientation and gender identity within the scope of sex discrimination. That’s an argument that’s been building for a long time. Public opinion supports this coverage; polls show that the majority of Americans believe that people should not be fired because of sexual orientation or gender identity. Amending Title VII is very difficult, however, regardless of polls. The division between the two parties in Congress is close enough that neither side can change the status quo. So what the Supreme Court did really was shift the burden for changing the status quo.
What about the June Medical case, how significant is this ruling striking down Louisiana restrictions on abortion providers, and where do things go from here?
The June Medical case, the only question there in my mind, was whether the Court was going to be intellectually honest enough to rule on the basis of stare decisis. And it turns out that Chief Justice Roberts was, and therefore it came out the way it did. But I don’t know that that tells us much about the future direction of the court in abortion cases more generally.
I think we’re going to continue to see a chipping away of effective access to abortion. I think that Chief Justice Roberts might, on the same grounds as in June Medical, sustain what was the 1992 version of abortion rights in a case called Casey, which weakened the original right as it was described in Roe v. Wade, but nonetheless retained it.
My hunch would be that Chief Justice Roberts would vote to sustain Casey, but he could do so in a way that would further undermine it. Also, I think there are other members of the court who would vote to overrule Casey. And so that will be the question, I think, in the next set of abortion cases.
In practical terms, access to abortion has become an issue primarily for low-income women. I don’t have any illusions about where the abortion jurisprudence is going, unless something dramatic happens to upset the composition of the court.
As a Court-watcher, what did you learn this term about the justices and their roles?
The surprise [of the Bostock decision] was that they did it based on an extremely literal interpretation of “sex discrimination.” Justice Gorsuch wrote the opinion and garnered not only the four liberal justices but also Chief Justice Roberts. The big irony here is that the living expert on sex discrimination, Justice Ginsburg, wrote nothing in this case and neither did any of the other women.
So my hunch about that is when you’ve got two conservatives on your side, you don’t want to upset the apple cart. We’ve seen that repeatedly in gay rights cases–Justice Kennedy wrote most of the LGBT rights cases, and the liberals almost never wrote a concurrence. I think they didn’t want to upset the result by writing a concurrence that would scare off the necessary fifth vote. That’s a byproduct of the political composition of the Court.
What kinds of issues do you see emerging in upcoming Supreme Court terms related to gender and sexuality law?
The big civil rights issues are going to be the conflict between antidiscrimination principles and religious liberty claims. There’s a case coming up next term that involves whether public funds can be denied to a Catholic adoption agency on the basis of discriminatory practices, and there may be more cases of retail establishments that don’t want to provide wedding services and things like that. It’s quite obvious that this is a court where the religious liberty defense has strong advocates, so we’ll have to see. Depending on what happens in the coming election there may well be a new push in Congress for legislation to address these issues.
Please tell us a little about your current scholarship and teaching around these issues.
I am focused on the overall question of what the arc of civil rights has been and what it hasn’t been. We’re at this moment of disjuncture between more and more people getting protection under civil rights principles–and the Bostock case is a great example of that–yet at the same time we have widespread food insecurity and below living wage incomes. The United States has become a low wage economy, which is pathetic and disgraceful.
Even among those who face discrimination, some people are better off than others. As a woman I have benefited from affirmative action and antidiscrimination law, but the benefits have not been felt to the same extent by women who work in low-income jobs. Now that the LGBT community has achieved the basics of legal protection with regard to marriage and employment, some people will benefit more than others. What are we going to do about the people who are going to benefit less? The women’s movement, the racial justice movement, all these movements have encountered that question.
It goes to the need to rethink civil rights in a way that allows us to open up the concept again. I would say that we need to modernize it by focusing less on the characteristics of identity, once anti-discrimination laws are in place, and more on overall economic security and quality of health and quality of life.
I’ll be teaching a course called Law and Social Change this fall. It’s not about how to litigate or lobby or do other kinds of advocacy; it’s about thinking about the relationship between social movements and law and what the role of lawyers is. Georgetown has tremendous programs to help students interested in public interest law with scholarships and counseling and so on, and I would like to give our students the opportunity to think through some of the tough questions in public interest work.
Thinking back to yourself as a law student at Georgetown, what would you have thought of the Georgetown Law of today, and the state of the world these days?
I came to Georgetown because even then it was a leader in clinical education and for students who were interested in doing public interest and public service work. It doesn’t surprise me at all that it remains a leader.
I think the thing that would surprise me the most is that the law has to a large extent succeeded in eliminating exclusion of marginalized groups. But now what seems much clearer to me is the distinction between exclusion and hierarchy, which is to say the law has been an extremely valuable tool in ending exclusions, but it has not succeeded in mitigating the hierarchies that remain.
I don’t think that when I was in my early 20s I foresaw that the exclusions would fall to the extent that they have, but neither did I realize that the underlying structures of subordination would remain as resilient as they have.
I guess you’re still going to have work to do!
Just a little bit!