Section 7

Citation: Section 7
Parent Document: Bostock v. Clayton County, 590 U.S. 644 (2020)
Jurisdiction: United States (federal)
Effective Date: 2020-06-15
Original Source: https://www.courtlistener.com/opinion/4760997/bostock-v-clayton-county/ ↗

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That common usage in the States underscores that sex-
ual orientation discrimination is commonly understood as a
legal concept distinct from sex discrimination.
  And it is the common understanding in this Court as well.
Since 1971, the Court has employed rigorous or heightened
constitutional scrutiny of laws that classify on the basis of
sex. See United States v. Virginia, 518 U. S. 515, 531–533
(1996); J. E. B. v. Alabama ex rel. T. B., 511 U. S. 127, 136–
137 (1994); Craig v. Boren, 429 U. S. 190, 197–199 (1976);
Frontiero v. Richardson, 411 U. S. 677, 682–684 (1973) (plu-
rality opinion); Reed v. Reed, 404 U. S. 71, 75–77 (1971).
Over the last several decades, the Court has also decided
many cases involving sexual orientation. But in those
cases, the Court never suggested that sexual orientation
discrimination is just a form of sex discrimination. All of
the Court’s cases from Bowers to Romer to Lawrence to
Windsor to Obergefell would have been far easier to analyze
and decide if sexual orientation discrimination were just a
form of sex discrimination and therefore received the same
heightened scrutiny as sex discrimination under the Equal
Protection Clause. See Bowers v. Hardwick, 478 U. S. 186
(1986); Romer v. Evans, 517 U. S. 620 (1996); Lawrence v.
Texas, 539 U. S. 558 (2003); United States v. Windsor, 570
U. S. 744 (2013); Obergefell v. Hodges, 576 U. S. 644 (2015).
  Did the Court in all of those sexual orientation cases just
miss that obvious answer—and overlook the fact that sex-
ual orientation discrimination is actually a form of sex dis-
crimination? That seems implausible. Nineteen Justices
have participated in those cases. Not a single Justice stated
or even hinted that sexual orientation discrimination was
just a form of sex discrimination and therefore entitled to
the same heightened scrutiny under the Equal Protection
Clause. The opinions in those five cases contain no trace of
such reasoning. That is presumably because everyone on
this Court, too, has long understood that sexual orientation
                  Cite as: 590 U. S. ____ (2020)           21 KAVANAUGH, J., dissenting

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