On Monday, the Supreme Court issued a landmark ruling on LGBTQ rights. In Bostock v. Clayton County, the court determined by a 6-3 vote that civil rights protections on the basis of sex extend to one’s sexual orientation or gender identity. In other words: Yes, it’s illegal to fire someone for being gay or transgender. Surprisingly, Justice Neil Gorsuch, a conservative jurist nominated to the high court by Donald Trump, wrote the Court’s majority opinion, while Chief Justice John Roberts, a George W. Bush appointee, wrote a concurring opinion.
That sent an unexpected signal to the nation. Two conservative justices, deliberately nominated because of their conservative jurisprudence, are now at the forefront of progressive interpretation of the Civil Rights Act’s Title VII, which prohibits employment discrimination on the basis of race, religion, sex, and national origin.
Simply put, the decision dealt a shock to the Republican legal project. For decades, GOP administrations have sought to load the courts with conservatives who can subvert every liberal accomplishment by judicial decree. It hasn’t always worked out. Most famously, Roberts joined the four Democratic-appointed justices (twice) to save the Affordable Care Act.
But, it turns out, Bush and Trump are not the only two Republican politicians whose efforts have backfired.
Monday’s ruling would never have happened if not for some inadvertent help from another conservative: Congressman Howard W. Smith, a Virginia Democrat who left office more than half a century ago. (He lost his campaign for re-election in 1966 and then died in 1976.)
Smith, who was first elected to the House in 1930, originally supported Franklin Roosevelt’s New Deal programs, but he soon became a leader of the conservative coalition. For instance, he led the failed opposition to the National Labor Relations Board, an independent federal agency that enforces labor laws and regulations. He then became the chairman of the powerful House Rules Committee in 1955, giving him significant influence over which bills came to a vote on the House floor.
Smith used this elevated status to try keep civil rights legislation out of the House chamber. He was, after all, was a fierce segregationist. In fact, he was a signatory of the Southern Manifesto, condemning the desegregation of Southern schools, and an apologist for slavery. Naturally, he opposed the Civil Rights Act of 1957, and when the Civil Rights Act of 1964 came to the House, he vehemently tried to block it. While he was successful in delaying its passage, he ultimately could not thwart it altogether.
But when it became clear that his racial arguments were not working, Smith tried a last-ditch effort to sway more members of Congress. He suggested adding another protected class to the law: sex. Meaning, people should be shielded from discrimination on the basis of their gender. Essentially, Smith believed that sexism was more predominant on Capitol Hill than racism. Outlawing employment discrimination against women, therefore, would either act as a poison pill or get the bill laughed off the floor. Instead, most of the members just thought it made sense. The provision was quickly adopted—and the bill passed.
Fifty-six years later, Smith’s attempt to uphold bigotry actually paved the way for codifying protections for gay and transgender workers into American law. That’s certainly not the outcome he would have wanted, but it is one the rest of us can now relish.
