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Alito is gunning for LGBTQ rights next

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Photo by Carolyn Kaster / AP
Photo by Carolyn Kaster / AP

Watch out: Supreme Court Justice Samuel Alito is after us next.

After reading Alito's leaked opinion striking down Roe v. Wade, many people speculated that he'd attack pro-LGBTQ court decisions next. Now he's confirmed that exactly what's he's thinking.

In his first public speech since Politico leaked his draft opinion in case involving Mississippi abortion restrictions, Alito said explicitly that Bostock v. Clayton County was wrongly decided.

Bostock is the landmark Supreme Court ruling that prohibitions against discrimination based on sex in Title VII of federal civil rights laws also protect sexual orientation and gender identity.

If Alito succeeds in convincing his five-vote majority on Roe that Bostock is also bad law, it would once again be legal for employers to fire workers simply based for being LGBTQ.

It's not a slam-dunk for Alito, though, because Bostock enjoyed a 6-to-3 majority, including Neil Gorsuch, who wrote the majority opinion, and Chief Justice John Roberts.

Alito voiced his opposition to LGBTQ rights in the context of a philosophical discussion of the legal doctrine of "textualism," once championed by Justice Antonin Scalia, who died in 2016.

According to Alito, Scalia revolutionized the way the high court looks at federal laws. Scalia was known for emphasizing a strict reading of the text of legislation, rather than trying to determine the intent of Congress when it passed the law.

Ironically, this was the very method Gorsuch used when he wrote the majority opinion in Bostock. When Title VII of the Civil Rights Act of 1964 prohibits discrimination "because of sex," it obviously includes Lesbian, Gay, Bi, and Transgender employees, Gorsuch wrote.

But here's where Alito is not as much of a textualist as he claims. The Bostock decision, relying on the text of the law alone, was "in my view indefensible," Alito said.

It was clear that Congress in 1964 not only allowed but also practiced discrimination, Alito added.

"It is inconceivable that either Congress or voters in 1964 understood discrimination because of sex to mean discrimination because of sexual orientation, much less gender identity," Alito said.

"If Title VII had been understood at that time to mean what Bostock held it to mean, the prohibition on discrimination because of sex would never have been enacted. In fact, it might not have gotten a single vote in Congress."

He said the majority in Bostock cited an opinion written by Scalia to justify its decision, but he thought they had misunderstood it.

"I only wish [Scalia] were here to enlighten us," Alito said. If Scalia said Alito was wrong, "I would take that evaluation in good humor, and learn from the exchange," Alito added.