Vice News reports:
Trump’s Justice Department appeared in federal court Tuesday to argue that employers should be able to fire people because they are gay. In a rare occasion, all 13 judges of the 2nd Circuit Court of Appeals heard oral arguments in Zarda v. Altitude Express Tuesday.
The case originated in 2010 when skydiving instructor Donald Zarda sued his former employer, Altitude Express, alleging he had been fired because of his sexual orientation. The judges are expected to decide if the Title VII provision of the 1964 Civil Rights Act that protects against discrimination based on gender should also apply to discrimination based on sexual orientation.
“Employers under Title VII are permitted to consider employees’ out-of-work sexual conduct,” argued Hashim Mooppan, the Department of Justice attorney. “There is a common sense, intuitive difference between sex and sexual orientation.”
Tuesday’s oral arguments were an even rarer occasion because another government agency, the Equal Employment Opportunity Commission, was in court to argue against the DOJ, saying gay employees are protected by Title VII. The Justice Department inserted itself into the case in July by filing a brief supporting the employer.
More from Dominic Holden at Buzzfeed:
The discord — and the awkwardness on display — stems from the Trump administration taking a turn away from the Obama administration’s LGBT-friendly trajectory. That has put lawyers under US Attorney General Jeff Sessions at direct odds with more autonomous corners of the federal bureaucracy. The judges on Tuesday, in a hearing of the full 2nd Circuit, wanted to know if the two agencies had even consulted each other before filing opposing briefs.
“I don’t think it’s appropriate for me to speak to internal deliberations and processes,” Hashim Mooppan, a deputy assistant attorney general in the Justice Department’s Civil Division, told the judges. “The EEOC had the authority to file the brief they filed,” he continued. “And the DOJ has authority to file the brief it filed.”
Mooppan spoke on behalf of the United States government as a whole, arguing Title VII of the Civil Rights Act of 1964, which bans discrimination on the basis of sex, does not cover sexual orientation.
Slate has published a fascinating play-by-play of how things went down yesterday.