What would a Justice Neil Gorsuch do?  We need not look far to answer that question.

Today, the Supreme Court decided, for the ninth time since all the briefs were filed, to postpone a decision on whether to take up the case of Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n.  That case has been a flashpoint in Colorado, and could be one nationally, on the “right” of businesses to use religion as the reason for discriminating against members of the LGBT community.  It could legitimate discrimination against women, people of color and members of religious groups.  And a Gorsuch vote could make that happen.

As the Colorado Court of Appeals noted, this case arose from the decision of a bakery in a Denver suburb not to decorate or sell a wedding cake for a same-sex wedding ceremony.  The owners of that bakery justified their decision on religious grounds.  That court decided that the Colorado Anti-Discrimination Act (“CADA”) “is a neutral law of general applicability, and does not offend the Free Exercise Clause of the First Amendment.”  The bakery, that court concluded, ” remains free to continue espousing its religious beliefs, including its opposition to same-sex marriage. However, if it wishes to operate as a public accommodation and conduct business within the State of Colorado, CADA prohibits it from picking and choosing customers based on their sexual orientation.”

This is not a new legal principle.  Fifty-one years ago, a federal district judge rejected the assertion by restaurants in South Carolina that requiring them to serve African-American customers violated their First Amendment right to free exercise of their owner’s religious beliefs.  It rejected the owner’s argument “that he has a constitutional right to refuse to serve members of the Negro race in his business establishments upon the ground that to do so would violate his sacred religious beliefs.” Newman v. Piggie Park Enters., Inc., 256 F. Supp. 941, 945 (D.S.C. 1966), aff’d in relevant part and rev’d in part on other grounds, 377 F.2d 433 (4th Cir. 1967), aff’d and modified on other grounds, 390 U.S. 400 (1968).

Judge Gorsuch, in contrast, has expressed an expansive view of First Amendment religious rights.  He stated, in his concurring opinion in Hobby Lobby Stores, Inc. v. Sibelius, 723 F.3d 1114 (10th Cir. 2013), aff’d, 134 S.Ct. 2751 (2014), that the Affordable Care Act’s requirement that company-provided health insurance coverage contraception “infringes the [company’s owners’] religious liberties by requiring them to lend what their religion teaches to be an impermissible degree of assistance to the commission of what their religion teaches to be a moral wrong.”  He ignored the fact that the statute he was interpreting, the Religious Freedom Restoration Act (“RFRA”), applies only to government conduct that imposes a “substantial burden” on people’s religious expression.  He ignored the fact that Hobby Lobby was being required only to include contraceptive coverage in a plan that it paid for, the interests of the women who were seeking insurance coverage for contraception, and the fact that none of the contraceptive methods to which it objected would  prevent implantation of a fertilized human egg.

In a later case, Little Sisters of the Poor Home for the Aged v. Burwell, 799 F.3d 1315 (10th Cir. Colo. 2015), vacated sub nom. Zubik v. Burwell, 136 S. Ct. 1557 (U.S. 2016), he voted to have the entire court decide whether a system, which allowed a religious employer that objected on religious grounds to paying for contraceptive coverage by submitting a form to the insurer or to the federal government, violated their rights under RFRA.  Again, none of this would have imposed a substantial burden on the objectors’ religious beliefs.  All they would have had to do is to fill out a form.

Two other cases show how far Judge Gorsuch is willing to go.  In Green v. Haskell County Bd. of Comm’rs, 574 F.3d 1235 (10th Cir. 2009), he voted to have the full court consider whether a county government violated the Establishment Clause of the First Amendment by installing on the courthouse lawn a monument with a summary of one version of the Ten Commandments on one side and the Mayflower Compact on the other.  He ignored the fact that the language on that monument was not the Jewish version of the Ten Commandments, and the specifically religious content and context of the Mayflower Compact.  Instead, he viewed the Ten Commandments as a secular document, which incidentally trivializes the obviously religious character of the Commandments.

And he also sought full-court review of a decision that held that government-paid highway memorials, in the form of twelve-foot high crosses, for fallen state troopers had “the impermissible effect of conveying to the reasonable observer the message that the State prefers or otherwise endorses a certain religion.”  Am. Atheists, Inc. v. Duncan, 637 F.3d 1095 (10th Cir. 2010).  That’s right, he believed that the display of crosses, paid for by the state government, did not endorse Christianity.

Judge Gorsuch does not understand or does not care about the rights of members of religious minorities — such as Jews, Muslims, Hindus and Buddhists — and of atheists not to have their government promote the view of a particular religion or set of religions.  He is not willing to consider the concerns of some — such as the female employees of Hobby Lobby — who would not be able to exercise their right to insurance coverage for contraception because of the religious beliefs of their employers or of their employers’ owners.

If he is confirmed, Judge Gorsuch likely would vote to allow employers and other businesses to use religion as the reason for blatant discrimination against others.  Any such precedent would be difficult to confine to discrimination because of sexual orientation.  Companies could refuse to hire women, or members of other religions, or members of other races, on religious grounds.  Or people could use religion as an excuse not to pay taxes, or not to obey noise or zoning ordinances, or to practice plural marriage, or many other things that would be illegal for anyone else.

This is deeply alarming.  It is one more reason why the Senate should not confirm Judge Gorsuch.

In his opening statement last Monday to the Senate Judiciary Committee, Judge Neil Gorsuch disavowed any intent to legislate from the bench.  Yet in one of his decisions, the focus of much attention, that is exactly what he did.

The case, TransAm Trucking, Inc. v. Admin. Review Bd., 2016 U.S. LEXIS 13071 (10th Cir. July 15, 2016), involved Alphonse Maddin, the driver of a tractor-trailer on I-88 in Illinois late at night in January.  This case arose under the Surface Transportation Assistance Act (“STAA”), a law passed by Congress in 1994.  The STAA is intended to protect commercial truck and bus drivers from retaliation because they have raised safety concerns or have refused to operate a vehicle in conditions they believe to be unsafe.

That statute prohibits any person from discharging an employee, among other reasons, because “the employee refuses to operate a vehicle because … the employee has a reasonable apprehension of serious injury to the employee or the public because of the vehicle’s hazardous safety or security condition.”  49 U.S.C.§ 31105(a)(1)(B)(ii).  An employee who claims that an employer has violated the STAA can file an administrative complaint.  That case is heard by an administrative judge (“AJ”).  The losing party can appeal that decision to the Administrative Review Board (“ARB”) of the U.S. Department of Labor.  An appeal from that decision is heard by a court of appeals, in this case, the court on which Judge Gorsuch sits.

This should have been an easy case.  The AJ, the ARB and a majority of the Tenth Circuit concluded that the employer, TransAm, violated the STAA when it fired Mr. Maddin.  He had pulled off I-88 late that night because he was low on gas.  When he tried to start his tractor again, he discovered that the brakes on the trailer had frozen because of the extreme cold.  He called his dispatcher.  He was told to remain with the tractor-trailer until a repair vehicle arrived.  He was told that would take about one hour.

Three hours later, he awoke in the cab of the tractor.  No repair person had arrived.  The heater in the cab of the tractor was not working.  Mr. Maddin could not feel his feet.  His speech was slurred and he was having trouble breathing because of the extreme cold.

He called again to his dispatcher.  He was told to wait until help arrived.

Thirty minutes later, no one had arrived.  Mr. Maddin called his supervisor and described his symptoms.  His supervisor told him either to drag the trailer down the highway, despite its frozen brakes, or to wait with the trailer until a repairperson met him.

Mr. Maddin felt that both of those alternatives would have created an unsafe situation for himself and for others.  Instead, he locked the trailer, unhitched the tractor and drove it away.  When he returned, about 15 minutes later, a repairperson was there.  That person repaired the brakes on the trailer, and Mr. Maddin was able to drive away with it.

One week later, TransAm fired him for violating company policy by abandoning his load while under dispatch.  He filed a complaint, claiming a violation of the STAA.  That led to the Tenth Circuit’s decision, from which Judge Gorsuch dissented.

Judge Gorsuch stated that TransAm had not violated the STAA, because Mr. Maddin, in his view, had not refused to “operate” a “vehicle” because of his good-faith safety concerns about that “vehicle.”  The STAA does not define the term “operate.”  But it does define “commercial motor vehicle” to mean “a self-propelled or towed vehicle used on the highways in commerce principally to transport passengers or cargo” where the vehicle, among other things, weighs at least five tons.  The specific provision at issue in this statute uses the word “vehicle,” not “commercial motor vehicle” or “motor vehicle.”  It is reasonable to assume that Congress meant the word “vehicle” to include, but not to be limited to, a “motor vehicle.”

Judge Gorsuch claimed that TransAm fired Mr. Maddin not because he refused to operate a vehicle due to his safety concerns, but instead because he refused to exercise his statutory “right” to not operate the tractor-trailer until help arrived.  That claim ignores the fact that Mr. Maddin was worried that, if he were to stay with the tractor-trailer, he could freeze to death.  The real issue is whether he refused to operate not just the tractor, but also the trailer, because of those safety concerns; and whether that refusal was protected by the STAA.

In essence, Judge Gorsuch treated the tractor-trailer as if they were two separate vehicles.  Clearly, Mr. Maddin was able to operate the tractor safely.  However, the tractor could not pull the trailer safely.  Mr. Maddin unhitched the locked trailer and drove off in the tractor.  And TransAm fired him for doing that.

TransAm clearly felt that Mr. Maddin had violated its rules by not operating or remaining with the trailer.  It treated the tractor and trailer as being one vehicle, or the trailer as a vehicle that its driver had no right to leave by the side of the road.  In other words, it fired him for refusing to operate the trailer.  That refusal was protected by the STAA because the driver’s and the public’s safety were at risk.

This seems obvious to ordinary human beings.  The fact that it was not obvious to Judge Gorsuch is deeply troubling.  Among other things, it raises serious questions about his claimed refusal to legislate.

His dissent adopted a disdain about the safety of drivers and the public that the STAA was enacted to protect.  The statute was passed to protect drivers and the public from companies’ insistence that their drivers choose between their jobs and being able to operate their vehicles safely.  Although his dissent is couched in terms of legislative intent, Judge Gorsuch adopted an interpretation that would have gutted much of that statute.  His claim that he has not attempted to legislate from the bench betrays either his failure to recognize what he did in this case or an attempt at outright deception about his methods.

The Senate has a legitimate right to be concerned when a federal judge ignores the clear intent of a federal statute.  The senators who are complaining about this dissent are Democrats.  In another situation, it could be Republicans who would complain.  Both would be right.  Federal judges must not legislate, and they must be honest about their methods.  This dissent, together with Judge Gorsuch’s other actions and decisions, demonstrates why the Senate should not confirm him to a lifetime seat on the Supreme Court.

Yesterday the Trump Administration announced that it was withdrawing a “Dear Colleague” letter, prepared by the Department of Justice’s Civil Rights Division and the Department of Education’s Office of Civil Rights (“OCR”) on May 13, 2016.  That letter informed educators that Title IX of the Education Amendments of 1972 requires schools receiving federal funds to provide transgender students access to restrooms that match their gender identity, not their gender at birth.

At least that is what I think the Trump Administration did.  For some reason, information about that decision does not appear on the White House Web site.

It does not appear that the Trump Administration has changed any of the Department of Education’s previous pronouncements about the application of Title IX to transgender students.  That includes the OCR’s 2014 Questions and Answers on Title IX and Sexual Violence, which specifically covers transgender students; or its opinion letter of January 7, 2015, which states that when a “school elects to separate or treat students differently on the basis of sex” with respect to sex-segregated restrooms, locker rooms, shower facilities, housing, athletic teams or single-sex classes, “a school generally must treat transgender students consistent with their gender identity.”

The news reports about yesterday’s announcement states that the Administration wants these issues to be handled by the states.  That statement is bizarre.  We are talking about the interpretation of a federal statute.  Any lawyer knows that only the federal courts can authoritatively interpret federal statutes.  Not state governments or state courts.

The federal courts have long held that discrimination against transgender people can constitute sex discrimination.  Those cases are based on the Supreme Court’s decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), which holds that an employer commits sex discrimination by taking an adverse action against an employee based on a sexual stereotype.  In that case, the stereotype concerned how aggressively women could, or should, behave in the workplace.  But stereotypes can also include the way that an employee who was assigned a particular gender at birth looks or acts.

Gender stereotyping of transgender persons can violate the Gender Motivated Violence Act, Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000); the Equal Credit Opportunity Act, Rosa v. Park West Bank & Trust Co., 214 F.3d 213 (1st Cir. 2000); Title VII of the Civil Rights Act of 1964, Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004); and the Equal Protection Clause of the Fourteenth Amendment, Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011) (sex discrimination).

Two federal appellate courts have issued rulings on transgender rights under Title IX.  One case, G.G. v. Gloucester Cnty. Sch. Bd., 822 F.3d 709 (4th Cir. 2016), granted deference to the OCR’s opinion letter of Jan. 7, 2015, in deciding that the lower court had used the wrong evidentiary standard in assessing a transgender student’s motion for a preliminary injunction.  Another court, in Dodds v. United States Dept. of Educ., 845 F.3d 217 (6th Cir. 2016), affirmed a lower court’s denial of a stay of a preliminary injunction, in which that court ordered a school district to treat an 11-year-old transgender girl as a girl and to use the girls’ bathroom.

The G.G. case will be heard by the Supreme Court.  Oral arguments are scheduled for March 28.  If the court doesn’t deadlock on a 4-4 vote, that case could provide definitive guidance as to how Title IX should be interpreted.

The Trump Administration’s announcement yesterday appears to be a gift to the religious right, which helped get Mr. Trump elected.  To the extent that it was based on the view that Title IX does not protect transgender students, the Administration has failed to explain whether it also feels that violence against such students violates Title IX, or why the legal principles adopted for other statutes do not apply to Title IX.  Nor did the Administration explain why it believes that forcing children to use a bathroom that does not match their gender identity in any way advances any legitimate educational purpose, or explain how it plans to address the staggeringly high suicide rates among transgender teenagers.

Perhaps the Administration has a good reason for this action.  If so, it should explain it.  And it should explain what it will do to protect the safety and well-being of students, not the prejudices of non-students.

It can be difficult to understand the significance of recent developments in the new Trump Administration without knowing about whistleblower law for federal employees.  Let us use this as a teaching moment.

On Jan. 24, 2017, employees in several federal agencies reportedly were told not to issue news releases, tweet, make policy pronouncements, or otherwise communicate with the outside world without the prior approval of those agencies’ management.  There was some backpedaling from the Administration, and it was not clear in any event whether these restrictions were temporary or permanent.

This ban — especially if it is made permanent — could have significant effects at these agencies.  One of the most significant impacts is that this ban could violate the Whistleblower Protection Act.  That is not a new statute.  It was passed in 1989 and was amended in 2012.

Under 5 U.S.C. 2302(b)(8), most federal agencies cannot take a “prohibited personnel action” against almost any employee of or applicant for employment with that agency because that employee or applicant has disclosed information (including to Congress and to the news media) that s/he reasonably believes evidences “any violation of any law, rule, or regulation” or “gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.”

There are exceptions for disclosures that are specifically prohibited by law, as well as disclosures of secrets because of national security or the conduct of foreign affairs.  (Since the NSA is exempted from this statute, Edward Snowden could not rely on this law as a defense to any legal proceedings based on his disclosures.)

As one federal agency has explained, retaliation against a federal employee whistleblower, in violation of the WPA, can lead to an investigation and can be the basis of an appeal from an adverse action against the employee.  In other words, communication bans against federal employees have limits.

It is too early to tell whether federal agencies will retaliate under Trump against employees who disclose waste, fraud or abuse.  Mr. Trump and the people he has appointed should not expect federal employees to blindly follow communication bans.  Those who are pushed can and will push back.

Who is Sally Q. Yates?

She is the daughter of a Georgia appellate judge, a magnum cum laude graduate of the Georgia School of Law, the executive editor of the Georgia Law Review, a lawyer with the corporate law firm of King & Spaulding, a lawyer in the U.S. Department of Justice for more than 27 years, the Deputy Attorney General of the United States, and the Acting Attorney General — until yesterday.

On Jan. 27, Pres. Trump issued his executive order, which temporarily suspends the issuance of visas from seven overwhelmingly Muslim-majority countries and indefinitely suspends the entry of Syrian nationals, among other things.  Protests erupted at more than two dozen airports in the United States.  As of the writing of this post, four different federal district judges and magistrate judges have issued stay orders against enforcement of that executive order.

Lawyers for persons covered by this executive order have claimed, as outlined in one of the cases, that it “exhibits hostility to a specific religious faith, Islam, and gives preference to other religious faiths, principally Christianity.”  The executive order is both under-inclusive — it doesn’t affect visas or entry from Saudi Arabia, for example, the home of almost all of the 9/11 attackers — and over-inclusive — it includes everyone from those countries, without regard to their actual life histories.  And Pres. Trump has said that he wants to give priority to Christian refugees.

Sally Yates, then Acting Attorney General, did what she told Sen. Jeff Sessions at her confirmation hearing — she informed other Justice Department attorneys not to enforce this executive order because she did not believe it is lawful.  Specifically, she said: “At present, I am not convinced that the defense of the executive order is consistent with these responsibilities of the Department of Justice, nor am I convinced that the executive order is lawful.”

Within hours, Pres. Trump fired her.  A statement released by the  White House, in extraordinary language, accused her of having “betrayed the Department of Justice by refusing to enforce a legal order designed to protect the citizens of the United States.”  It also claimed that she was “an Obama Administration appointee who is weak on borders and very weak on illegal immigration.”  Although it claimed that the DOJ’s Office of Legal Counsel had vetted the order, it did not note that that review did not include the anti-Muslim statements made by the President on the same day he signed it.

This decision to fire Ms. Yates is exceptionally troubling for those who maintain that the United States is a nation of laws.  The President can nominate an attorney general, but the attorney general is not his personal attorney.  The Attorney General is responsible to “furnish advice and opinions, formal and informal, on legal matters to the President and the Cabinet and to the heads of the executive departments and agencies of the government, as provided by law.”  That does not necessarily mean advice that the President likes.  If the Attorney General believes that a Presidential order is unconstitutional or otherwise unlawful, she or he must be able to provide that advice without fear of punishment.

It is still an open question whether this Administration intends to obey the law.  Last night’s actions are not a good sign.