Deciding with the majority on almost 92% of cases, it's hard to place Justice Stephen G. Breyer on any side of the political spectrum. His judicial philosophy revolves largely around his anti-originalist approach to interpreting the Constitution. Instead of taking the Constitution at its word, Breyer prefers to consider the broad, underlying principles that inspired it, arguing that its authors used broad language purposefully so the Constitution could be adaptable over time.
During the oral arguments section of Aimee Stephens's case, Breyer shared his views on the underlying intentions of Civil Rights Act of 1964 and Title XII's anti-discrimination clause. "These statutes were all part of a civil rights movement that was designed to give, include in our society, people who had been truly discriminated against for the worst reasons. And at that time, this civil rights statute, when it was passed, would have put in the category gay people, transgender people, a people who were suffering terrible discrimination," Breyer said. "And now, doesn't that fact, which is an overwhelming fact to me about the nature of the country under law, argue that that's a change. That's a change that both explains why they didn't put it in initially and explains why we should, other things being equal, interpret it to include gay people and transgender people now?"
Similar to Kagan, Breyer seems to be interpreting the original intention of Title XII in the context of its inclusion within the Civil Rights Act. While LGBTQ+ identities were not explicitly stated within Title XII protection, Breyer argues that they are implicitly included as part of marginalized communities the Civil Rights Act was intended to protect.
