The Supreme Court’s Decision to Discriminate against Gay and Lesbian Employees is a Big Win for the D.C. Government

A ‘Period Dignity Officer’ Seemed Like a Good Idea. Until a Man Was Named.


For the first time in our history, the Supreme Court has recognized that the First Amendment’s promise of free expression does not always mean that a government may suppress the expression of particular ideas or beliefs, when that expressive activity does not “materially advance” the beliefs in question.

As we learned last June, a state official in the District of Columbia had gone to sleep at night worrying about the First Amendment, imagining himself to be a perma-migrant from the South, a man who would not hear when the federal government tried to enforce it. The federal government, as it had previously said, would not be getting rid of the D.C. law prohibiting discrimination on the basis of sexual orientation; it was a federal act, and the D.C. law an attempt to enforce it.

The Supreme Court agreed, finding in favor of the D.C. government after the fact—not for the First Amendment, which guarantees expression, but for the Fifth Amendment’s guarantee of due process. That was a big win for the D.C. government: The court said that the District’s policy of providing employment and housing benefits to gay and lesbian employees did not “provide[] sufficient basis to presume that it did, in fact, substantially deter discrimination by recipients of [those benefits],” and so D.C. could discriminate against employees who were gay and lesbian based on anti-discrimination laws, even though the officials said they were not intending to discriminate.

“The question, then, is not whether government action against homosexual couples is unconstitutional, but rather whether it is unconstitutional because it does not prevent sexual orientation discrimination” from happening anyway.

The Supreme Court was a big win for the government, even though it may turn out to have been an even bigger win for the government because it was based

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