How a Segregationist Paved the Way for a Big Gay Rights Win in the Supreme Court

The Supreme Court on Monday handed down a momentous decision on gay rights, ruling that employers can’t discriminate against their employees on the basis of their sexual orientation.

Those celebrating the decision can thank a segregationist.

The Supreme Court decided the case on a 6-to-3 majority, with conservative Justices John G. Roberts Jr. and Neil M. Gorsuch, the latter who wrote the opinion, joining the court’s four liberal justices. Essentially, the decision says that Title VII of the Civil Rights Act of 1964, which outlaws discrimination based on “race, color, religion, sex, or national origin,” necessarily includes a prohibition on discrimination based on sexual orientation.

“An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex,” Gorsuch wrote. “Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

What’s notable here is that the Civil Rights Act didn’t initially include the prohibition on sex discrimination. It wasn’t added to the bill until the final day of debate by a segregationist congressman, Howard Smith (D-Va.).

On the eighth day of debate in the House, Smith rose to argue in favor of including sex in the bill. According to a 2017 book by Gillian Thomas, Smith read a letter from a female constituent asking him to “protect our spinster friends” who were suffering from a shortage of eligible bachelors. Smith said: “I read that letter just to illustrate that women have some real grievances and some real rights to be protected. I am serious about this thing.”

At the time and since, the effort drew laughs from his colleagues, many of whom viewed it as an attempted “poison pill” — i.e. an amendment that lawmakers would adopt because it was difficult to vote against, but that would nonetheless help kill the entire package, which segregationists such as Smith opposed. President Lyndon B. Johnson and other proponents of the bill opposed the amendment on those grounds.