WHAT

WOULD
THREE LGBTQ CASES PUT THE SUPREME COURT’S

SCALIA
CONSERVATIVE PRINCIPLES ON TRIAL

DO?

0 4 . 1 0 . 2 0 1 9
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OCTOBER 04, 2019 _ VOL.173 _ NO.10

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22 32
CHANGE OF SCENE
As we humans made our homes on this
planet and mined its natural resources,
we’ve left indelible tracks that are
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What Would Man-Made
Scalia Do? Marks
COVER CREDIT Why the Supreme Court’s These landscape aerials paint
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 NEW YORK CITY

Game Plan
Elizabeth Warren holds the biggest rally of her
2020 presidential run under the Washington
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O C t ObE r 04, 2019
C LO C K W I S E F RO M R I G H T: J E F F J M I TC H E L L /G E T T Y; KO E N VA N W E E L /A F P/G E T T Y; J O H N W E SS E LS /A F P/G E T T Y
 BENI, DEMOCRATIC REPUBLIC OF CONGO
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After becoming a sole parent of
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 NEWS, O

WATCHDOG WITH A BONE

On Capitol Hill, Senator Mark
Warner is pushing for legislation
to curb big tech’s power.

10 NEWSWEEK.COM
 “This is the biggest thing you
don’t know anything about.” » P.16

BIG TECH

“The Wild,
Wild West for
These Social
Media Platforms
is Coming
to an End”
Senator Mark Warner says the anything-goes era for Silicon Valley
will soon be over. How is that going to happen?
:$ 5 1 ( 5  %<  & + , 3  6 2 0 2 ' ( 9 , / / $ ʔ* ( 7 7 <  72 3  5 , * + 7  - 2 + 1  .8 & = $ / $ ʔ* ( 7 7 <

since the 2016 election, senator mark He is clearly onto something. The end of 2019 is
Warner has been Silicon Valley’s most ac- shaping up to be a watershed period for the issue
tive and vocal watchdog on Capitol Hill. Warner, of how much the U.S. should regulate Silicon Val-
a Virginia Democrat, vice chairman of the Senate ley. Seven states, led by New York Attorney General
Committee on Intelligence and a former telecom- Letitia James, have already announced an antitrust
munications venture capitalist, published a white pa- investigation of Facebook; most of the states’ at-
per last year proposing a variety of legislative curbs torneys general are probing Google over anti-com-
on the tech industry. Those suggestions included put- petitive behavior. Additionally, the House Judicia-
ting the onus on Facebook, Twitter and other social ry Committee just demanded Amazon, Google and
media platforms to identify bots and foreign election Facebook hand over the personal emails of those
interference. Warner also has bipartisan co-sponsors companies’ executives, hunting for evidence of
for a variety of legislation aimed at anti-competitive schemes.
curbing tech, including the so-called Warner, in a recent wide-rang-
Honest Ads Act, which would require BY
ing interview with Newsweek, ex-
Facebook, Google and other platforms plains why the era of unregulated
to be transparent about who is paying NINA BURLEIGH Big Tech may be coming to an end.
for political ads. @ninaburleigh Here are some edited excerpts:

Photo illust rat ion b y G L U E K I T NEWSWEEK.COM 11

Periscope
Newsweek: You said the 2016
election revealed “The dark
underbelly of an entire system.”
Is there any chance of protective
legislation being passed before
the election season? Isn’t it
an emergency?
WARNER : Our system is not secure
in 2020. I would argue there are a
variety of solutions that would get
80 votes on the floor of the Senate if
we were allowed to vote. These are all
bipartisan bills. First, to make sure if
a foreign government intervenes, the
appropriate response is not to say
thank you, but to tell the FBI. Second,
to make sure that every polling station
in America has backup paper ballots.
Third, that the Honest Ads Act, which
makes sure that there are the same
reporting requirements for political
ads on Facebook and Google as there
are in Newsweek and on television.
Fourth, some rules of the road in
terms of how social media platforms
operate. The Wild, Wild West for these
social media platforms is coming to
an end.
Senator Mitch McConnell is the
gatekeeper; he is not allowing
these things to come to the floor
where there would be bipartisan
support. Why?
He’s had a consistent position against
campaign-finance and election-relat-
ed legislation. One of the things that’s
incumbent on me and Democrats and
others is to keep elevating election se-
curity and protection of our democra-
cy as a top issue.
What is your biggest fear about
2020 and big data? Won’t there
be exponentially more data points
for each American—that are on
sale for political strategists—
than Cambridge Analytica ever
imagined having access to?
12 NEWSWEEK.COM
BIG TECH
Yes. Exponentially more. We know
that Russia will be back because it
worked in 2016. If you add all they
spent on Brexit, France and the U.S.
election together, it’s less than the
cost of one new F-35. We’re seeing 21st
century conflict by cyber means, and
mis- and disinformation means, as a
cheap and effective tool. My biggest
fear: Russians will continue to obtain
information that they will then wea-
ponize with a much more massive
use of manipulation. That would be
through both deepfake technology
and the creation of both [fake] indi-
viduals and bots at an unprecedent-
ed level masquerading as Americans.
They’ll try to drive our debate in a way
that will clearly change what kind of
news we read and could change the
outcome of the election.
There is a lot of tension between
the U.S. intelligence community
and Facebook, Google and Apple
about sharing more data with
respect to the election. The
government is saying, “You need
to give us more to protect,” and the
position on the other side is, “We’re
already doing enough to protect
the election.” Are Washington and
Silicon Valley at war?
I don’t believe they’re at war, and I do
believe the social media companies
are getting better. But we don’t have
“Make sure if a
foreign government
intervenes, the
appropriate
response is not to
say thank you,
but to tell the FBI.”
the luxury of taking two or three more
years to figure this out. We need, in a
sense, a fusion center where we have
intel and the prominent platforms—
Facebook, Google, Twitter—jointly
sharing information.
What do you think of the House
Judiciary Committee calling for big
tech executives’ emails?
I think big tech is making a huge er-
ror by not further engaging with the
national government. We have been
ceding the regulatory lead to Europe
on privacy, and to the UK and Aus-
tralia on content. And what the tech
community is going to find out is that
when we do get the federal regulation,
these previous efforts are going to be
the floor and not the ceiling. I think
they’ll rue the day that they didn’t
work with us on an earlier basis.
Writer Andrew Marantz has a new
book coming out called Antisocial:
C LO CK W I SE F RO M TO P: Z ACH G I BSO N /B LO O MBE RG /GE T T Y; S3 ST UD I O/GE T T Y; T H E AS AH I SH I M BUN /G ET T Y
Online Extremists, Techno-
Utopians, and the Hijacking of the
American Conversation in which he
blames “disruptors’ naivete” and
their “reckless techno-utopianism”
for creating gatekeeper-
free platforms that enabled
proliferation and amplification of
the Nazi, alt-right fringe world. Do
you agree with the assessment that
he’s making there?
I’m not going to comment directly on
the alt-right, but I would say I think
these companies have been naive. I
think they have talked about the com-
munities they’ve created, and there
have been upsides in all of this innova-
tion. But they were, I think, too willing
to ignore this dark underbelly of com-
munities of hate that were created, the
ability to have their platforms manip-
ulated, the ability to have foreign gov-
ernments and their agents use it to try
to disrupt not just our democracy.
O C T OBE r 04, 2019

Let’s talk about the recent $5
billion Federal Trade Commision
settlement with Facebook over
breaking a 2011 promise about
privacy. The deal won’t do much to
change Facebook’s business; they
will still be able to self-regulate,
collect user data and target ads.
How is that a win for the public?
While technically the largest settle-
ment ever, it was peanuts in terms
of the scope of Facebook’s revenue.
If they’re allowed to build that into
the cost of doing business without
any further penalty, we’re going
to be even worse off.
KING OF THE HILL
Warner introduced
the Honest Ads Act in
2017 (top); Facebook
CEO Mark Zuckerberg
testified on Capitol Hill
last year (bottom).
Seven attorneys general are going
after Facebook, almost every state
is going after Google. Is a big tech
breakup inevitable?
I still think there are other tools I’d
like to use. For example, data portabili-
ty. If you get tired of Facebook, can you
move easily to a new site, bring your
data and still be interoperable? More
transparency. Being able to know
what kind of data is being collected
and how much it’s worth. Better pri-
vacy protections. Making sure that we
have the right to know whether we’re
being contacted by a human being
versus a bot.
One of the reasons why I’m not yet
at full breakup is that I don’t want to
see these global enterprises simply
replaced by the Alibabas, the Chinese
tech companies who would come with
even worse behavioral tendencies.
Recently the White House hosted
members of the tweeting right who
complain about being censored
by social media. When Trump
was inaugurated, you had Milo
Yiannopoulos, Alex Jones and
Roger Stone all starring in huge
roles on social media and now they
are out. So, do you think there’s
any validity to that complaint? And
should 4Chan and 8Chan be shut
down, because of what’s going on
there with respect to violent white
nationalists?
I’ve seen no objective evidence that
any of the platform companies are
censoring or silencing voices on the
right. What I have seen is the nature
of their businesses: If you lean right,
they reinforce your message promot-
ing the more and more outrageous
stories, and if you lean left you get
more and more outrageous stories
on the left. I mean, these companies
are about making money, and I think
they are about trying to reinforce your
preconceived notions, which is a bit
the opposite of what you want in an
informed democracy. But I have not
seen evidence of validity of the accu-
sation that the right has been, is be-
ing, silenced. As a matter of fact, if you
look at some of the activity in Europe,
it feels in many ways that the right still
dominates most of social media, much
more than the left.
And in terms of 4Chan, I don’t
think you can come up with an ad
hoc solution to 4Chan and some of
the other sites, as vile as they may be.
I think you do need to have a de-
bate about Section 230 and the ex-
NEWSWEEK.COM 13
Periscope

emptions that were granted all of

these platforms.

Can you explain Section 230?

Section 230 was called the Commu-
nications Decency Act in the late
’90s, and at that moment in time,
there was a decision made that so-
cial media companies, and their con-
nections, were going to be viewed as
kind of just dumb pipes, not unlike
a telco. The platform companies
would have no obligation for the
content that went over their net-
works. In the late ’90s, that might
have made sense. But in 2019, when
65 percent of Americans get some—
or all—of their news from Facebook
and Google, there is clearly some cu-
ration going on. There are two ways
to get at this in terms of some of the
hate mongering and other racist
outrageous behavior. One is to try
to think of these platforms as media
companies. The other would be to
move toward identity validation. I
think a healthy debate ought to take
place because, again, the one thing
we do know is we see not only hate
speech, but then as we see govern-
ments like Myanmar use encrypted
Facebook posts to encourage mass
violence against the Rohingya. The
idea that the status quo is okay just
doesn’t pass the smell test.
What do you think? Are they
media companies?
I don’t believe they have total immu-
nity against the content that appears
on their sites. But, you know, I’m
nervous about how you would set
it up. Facebook promised they were
hiring 10,000 people to help screen
content to make sure that it fits into
their standards of duty or standards
of operation. But do you then open
up the possibility that they might
favor either content on the right
STUMBLING BLOCK Senate
Majority Leader Mitch McConnell has
declared himself the “grim reaper” for
repeatedly blocking legislation.
or content on the left? There’s also
concern about some big government
regulator. One idea that’s not fully
fleshed out but has some potential:
go at it the way the film industry has
done around content—an indus-
try-driven regulatory rating system.
A new report published by the
think tank Data & Society aims
to create a taxonomy of trolling
tactics, and they followed some
viral false memes started by trolls
that were retweeted by President
Trump. They call that the Mount
Everest of trolling, to get the
president to retweet a false meme.
Do you think that the president
should be tweeting at all?
Well, I think it’s hard to ignore the
President of the United States mak-
ing statements, whether they’re oral,
written or tweeted. I think we would
have more thoughtful policies if the
president tweeted less. I’m not sure
I’m willing, though, to say [he should
not]... because should the president
be restricted? Should members of
Congress be restricted on tweeting?
But if the president is being manip-
ulated by trolls or particularly trolls
that may be driven by foreign adver-
saries, at what level does his person-
al freedom of speech interfere with
his equally important responsibili-
ties as commander-in-chief?
Why don’t Americans care as much
about privacy as Europeans? And
are we going to get to a point where
people will have to pay for
their privacy?
Some of it has to do with age. My kids
are in their 20s and have grown up
with this remarkable sharing. Most
younger people have not seen the
negative consequences of what can
come out with that post or photo
along the way. I hope we don’t ever
get to the point where you have to pay
for your privacy, but if you knew how
much your data was worth, and then
you were offering to, in a sense, sell

14 NEWSWEEK.COM O C T OBE r 04, 2019

 BIG TECH

“I think they’ll rue So what can the government do?

With our government dollars, we
Last question, are we at a tipping
point now with Silicon Valley and
the day that they ought to be buying only devices that U.S. regulations? In recent weeks,

didn’t work with us have [at least] minimum security

on an earlier basis.”
part of that revenue stream to some-
body to protect your data better, is
that you paying? Or is that simply a
smarter monetization or something
that’s already taking place?
Recently, the NSA released
another warning about how we are
not prepared for warfare on the
“internet of things”…
I have had legislation, bipartisan leg-
islation, for three years that has said
at least when the U.S. government is
spending taxpayer dollars to buy in-
ternet of things–connective devices,
there ought to be minimum security
standards. For example, there ought
to not be embedded passcodes. You
ought to make sure that the device is
patchable. I mean, basic items. It is cra-
zy that we’re going from about roughly
5 to 8 billion devices now to 30 billion
connected devices over the next four
or five years. Your refrigerator sends
the message to Alexa when your diet
Coke runs out. At a recent electronics
F RO M L EF T: A L D R AG O/G E T T Y; B I L L CL A R K /CQ RO L L C A L L /GE T T Y
standards. We finally passed legis-
lation out of the committees at the
House and the Senate. It needs to get
across the finish line on the floor.
There is nothing partisan about
this, even the folks in the Trump ad-
ministration, the DOD fully under-
stand. We’ve been fighting some of
the low-end vendors who don’t want
to spend the extra money, and we’re
talking about pennies on the dollar,
to put in some basic security. So we
could wake up a year or two from
now and have some important gov-
ernment function interrupted be-
cause we didn’t put a basic security
in our internet of things–connected
devices. We will look crazy for not
doing it.
there have been huge lawsuits and
announcements of investigations
left and right. You wrote the white
paper last year. What’s going on
now that caused this to move?
I think it’s an accumulation of trans-
gressions, a failure of the companies. I
think the companies will regret the day
that they didn’t engage earlier. There’s
interest from everyday Americans on
this topic, I’ve seen it increase expo-
nentially over the last nine months.
Some of it around democracy protec-
tion, some of it around kids concerned
about polling, some of it around the
fact that they, the people, realize the
level of hate and vile that spread on
these platforms. The public is ahead
of the policymakers on this. They get
that the status quo can’t last.

show, they had hair dryers that were

internet of things–connected devices.
Why do you need a hair dryer connect-
ed to the internet? I don’t know. But
the challenge is, every time you con-
nect another device to the network,
you create another vulnerability point.
We spent all this money trying to pro-
tect the nuclear plant from cyberat-
tacks. What happens when the bad
guys [don’t] attack through the front
door, but go through the microwave in
the staff kitchen because it’s connected BRAGGING RIGHTS Roger Stone (left) and conspiracy theorist Alex Jones,
to the internet? who was kicked off Facebook, Twitter and Instagram over the past year.

NEWSWEEK.COM 15
Periscope
P E R S O NAL F INA NCE
WhenLexisNexis
Makes aMistake,
You PayForIt
Errors in the data collected about consumers by
this giant but little-known company could cause your
insurance premiums to soar—or worse
Thomas TolberT d oesn’T
own a motorcycle. But when he
switched insurance companies earlier
this year, his premium almost doubled
based on an incident he supposedly
had on one, he says.
Tolbert says he traced the bad
information to his Comprehen-
sive Loss Underwriting Exchange
(C.L.U.E.) auto report, a collection of
data that auto insurers use to approve
clients and set premiums. C.L.U.E.
reports are generated and sold by
LexisNexis Risk Solutions.
Consumers are often urged to regu-
larly check for errors in credit reports
from the big three bureaus—Equifax,
Experian and TransUnion. But you
may want to add LexisNexis to the list.
The company aggregates and sells
consumer data—about 150 different
reports on people like you. While many
data companies have a niche, such as
credit or insurance, LexisNexis reports
cover numerous aspects of consumers’
financial lives, helping other com-
panies figure out whether to renew
your insurance, approve your loan
or offer you a job, among others. And,
like credit reports from the big three,
your LexisNexis file can contain mis-
takes, such as outdated information
or data about someone else, which can
adversely affect your finances.
16 NEWSWEEK.COM
While Tolbert’s report included the
two vehicles he and his son drive, it
also listed an alleged motorcycle inci-
dent probably involving a different
Thomas Tolbert. (The other Tolbert
could not be located for comment.)
According to the report, the two Tol-
berts both live in Florida and at one
time used the same insurer. They have
different middle initials and different
home addresses. LexisNexis had seem-
ingly confused their data in what’s
commonly known by
industry experts as a are “taking money out of my pocket,”
“mixed file.” BY he says.
Tolbert was able
to correct his C.L.U.E. ALICE HOLBROOK A BIG PROBLEM LIKELY TO GET WORSE
@NerdWallet
report, but he says it Errors in consumer reports are a
came too late for the big problem, says Alan Butler, senior
insurer to lower his premium—so counsel for the Electronic Privacy
he tried to switch companies again. Information Center. “The burden
A new insurer initially quoted him ultimately should not be falling
about $370 per month for his cars, but on consumers.”
soon revised the quote to about $620 People can have their reputations
because, Tolbert says, he was mixed up hurt by companies they’ve never
with the same individual again. heard of, and often don’t know until
Tolbert says this situation has the damage is done, according to
forced him to reduce his coverage Michael Rapp, a Kansas City-based
and go without for a period of time. consumer attorney who says his firm
And the time he spends disputing the has litigated dozens of cases against
mixed file—which can feel like a game LexisNexis and companies like it over
of whack-a-mole—is time he can’t more than a decade.
devote to his work in real estate. “This is the biggest thing you don’t
GETTY
The lost time and high premium know anything about,” he says.
O C t OBE r 04, 2019

In a written statement, LexisNexis
spokesperson Jennifer Grigas Rich-
man emphasizes that the company’s
data procedures meet or exceed indus-
try and regulatory requirements. “We
cannot underscore enough our com-
mitment to accuracy,” she says.
But consumer lawyers and privacy
advocates worry the problem with
mixed files and other data errors is
likely to get worse. A Government
Accountability Office report in 2013
noted “a vast increase” in the number
and types of companies that collect
and sell consumer data—often called
data brokers—and suggested Con-
gress consider stronger regulation of
the industry, which includes Lexis-
Nexis. More than five years later, the
regulatory landscape hasn’t changed
much, but the industry has continued
Photog raphs b y t A r A M O O r E
to grow and evolve.
These days, Rapp says, it’s almost
impossible to avoid being tracked by
data brokers—not just LexisNexis. “If
you have a pulse, you have a report,”
he says.
Data brokers “operate in a legal
vacuum” when it comes to many
kinds of consumer data, says Lydia
de la Torre, a data protection law pro-
fessor at Santa Clara University who
has worked with companies includ-
“I am just really sick
of companies like this
acting like it’s just an,
‘Oh well, oops.’”
ing eBay and PayPal on privacy issues.
Although lawmakers have recently
proposed a series of federal regula-
tions to protect consumers from the
industry, de la Torre isn’t optimistic
any will pass in the near term.
WHAT THEY KNOW ABOUT YOU
LexisNexis Risk Solutions compiles
much of its information through
public records, such as documents
from courthouses and government
agencies. Buying a home, getting mar-
ried or registering a business can all
show up in public documents and
your LexisNexis file.
Even if you never do any of those
things, going about your life can still
create a record that LexisNexis can
collect. Going to college, holding a
professional license, having a cell
phone, registering to vote and using
your email to register for a website
are just some of the things that can
also populate your file. According to
the company’s website, it holds 83
billion public records on 282 mil-
lion unique identities—an average
of about 290 records per identity.
It also compiles data from private
sources, according to Richman. For
some reports, these sources include
insurance companies, industry
experts say.
“I’m really surprised if they don’t
know what people had for breakfast,”
says Kristi Kelly, a consumer law
attorney in Fairfax, Virginia, who
has argued several mixed-file cases
against LexisNexis.
Data brokers like LexisNexis are
essentially shopping malls for infor-
mation, according to Ed DeForest,
vice president and senior credit
officer at Moody’s Investors Service.
Companies that offer mortgages,
insurance or other products can
turn to LexisNexis to help determine
a consumer’s risk profile.
NEWSWEEK.COM 17
Periscope
While this ease of sharing informa-
tion can streamline the approval pro-
cess, it can also exacerbate the impact
of erroneous information. Once a mis-
take is made, it can efficiently spread
from LexisNexis to its clients, includ-
ing other companies that collect and
sell consumer data. And this happens
largely hidden from the public’s view.
HOW MISTAKES HAPPEN
For almost two decades, Donald Jaynes
says, he received phone calls and mail
for a man named Donald Whitehead.
(Whitehead could not be reached for
comment.) Companies were trying
to reach him, wanting payment of
bills. Jaynes says he first learned he
was being confused with someone
else when a credit check was done
on him while leasing a car in 1997.
He disputed the connection with all
three credit bureaus, and Experian
responded with a letter saying it had
corrected its records. Jaynes doesn’t
remember receiving letters from the
other bureaus.
But Jaynes says that’s when the
calls and mail started, leading him to
spend hundreds of hours following
up with the creditors that contacted
him and trying to determine the
source of their information. Jaynes
says he traced the issue to LexisNexis
and filed a dispute with the company.
He says the calls and mail for White-
head stopped after that, in 2016—but
only temporarily. After believing he
had finally fixed the problem, Jaynes
says he received another call for
Whitehead in August of this year.
Jaynes, who lives in Indiana and
worked as a CPA, says he often wor-
ried the confusion from his mixed
file would prevent him from finding
work or financing, despite his own
good credit. He later learned, from a
collections agent, that his Social Secu-
rity number differs from Whitehead’s
18 NEWSWEEK.COM
PERSONAL FINANCE
by a single digit.
While Jaynes and Tolbert have
been mixed up with strangers, other
consumers have found their data
muddled with information from
family members.
Freelance writer and digital prod-
uct owner Farah Fard says she was
unable to access her bank account
online on multiple occasions because
the security questions didn’t pertain to
her, but rather to her twin sister. Fard
says she learned LexisNexis was her
bank’s information source.
“I am just really sick of companies
like this acting like it’s just an, ‘Oh
well, oops,’ when it has real time con-
sequences for those of us cleaning up
these glaring mistakes,” she says.
In a written statement, LexisNe-
xis’ Richman declined to comment
on Fard’s case or any other, citing pri-
vacy concerns.
Mixed files can occur when the
information provided to LexisNexis
is wrong—such as if an auto insurer
confuses two drivers when sharing its
information. But mix-ups can happen
even if the information provided to
LexisNexis is right.
For example, the insurer that cov-
ered both Thomas Tolberts provided
a document that showed its records
hadn’t confused the two.
So if the insurer’s information was
correct, what led to the mix-up?
“LexisNexis holds
83 billion public
records on 282 million
unique identities—an
average of about 290
records per identity.”
When LexisNexis doesn’t have—
or doesn’t use—enough information
about an individual when running
a search, that can result in multi-
ple people’s data ending up on one
person’s report, according to attor-
ney John Soumilas. The Philadel-
phia-based consumer lawyer has
represented plaintiffs on multiple
lawsuits against the company.
For example, Soumilas’ firm won
a lawsuit in 2014 representing David
Smith, a Michigan man who was ini-
tially denied a job after his background
check turned up a criminal record
belonging to a different David Smith.
According to the judge’s ruling, Lexis-
Nexis hadn’t required the employer to
provide a middle name.
Lawyers for LexisNexis contested
the verdict, arguing that it had no
prior notice that its procedures pre-
sented a problem, nor did it know
of a reasonable alternative matching
procedure that it failed to use, accord-
ing to a court filing. The jury awarded
Smith $375,000, but he eventually
received about $75,000 in damages,
because the trial court found the orig-
inal damages award was excessive. An
appeals decision agreed and found
that LexisNexis had not willfully vio-
lated its obligations.
“There’s no good reason not to use
a Social Security number when it’s
available, or a date of birth, or a middle
name,” Soumilas maintains.
In her experience, LexisNexis
includes information even if names
don’t match, according to Kelly, the
consumer attorney in Virginia.
Kelly says she recently reached
a settlement for a client whose car
insurance premiums skyrocketed
after LexisNexis placed accidents and
claims belonging to four other people
on her client’s report. The other peo-
ple’s names were spelled differently
from her client’s, and the birthdates
O C t OBE r 04, 2019

and Social Security numbers didn’t
match, either, Kelly says.
Common names can increase the
risk for a mixed file at LexisNexis
and other similar companies. So can
non-Anglicized names, which might
not fit neatly into companies’ match-
ing algorithms, according to Kelly.
James Francis, a colleague of John
Soumilas who says he has obtained set-
tlements with LexisNexis and compa-
nies like it for 20 years, complains that
LexisNexis seems to view its obliga-
tions to accuracy as “minimal, at best.”
LexisNexis spokesperson Richman
wouldn’t comment on specific poli-
cies and declined to address Francis’
comment, but says that the company
undergoes regular audits to ensure
legal compliance.
CORRECTING THE ERRORS
No matter how an error begins, Lex-
isNexis’ wide reach means consumers
need to correct any misinformation
the company spreads. But, as some
consumers have learned, it’s much
easier to find an error than to fix one.
LexisNexis has a dispute process for
people who have found inaccurate or
incomplete information on their
file. The client of Kelly’s who faced
sky-high car insurance rates got her
record corrected within a few weeks
after filing her dispute.
“We encourage consumers to notify
us of potential inaccuracies in their
data so that we can further ensure
the accuracy of our information,”
Richman says.
But for some, the process is less
straightforward. The first step is to
request a copy of your personal report.
Fard, the writer, says it took three
attempts over eight months to receive
hers, after getting conflicting answers
from customer service about whether
it was possible to dispute the report.
Jaynes says he had similar difficulties.
When Fard did finally receive her
report, she says it contained her per-
sonal information along with data on
her sister and her sister’s boyfriend. She
notes that the report had her sister’s
name on it, but it came to Fard’s address.
She says that for her, “It just seems
like LexisNexis records are a mutation
of information that just snowballs.”
Fard says she requested changes to
her file last March, but as of August,
she has yet to receive a response
from LexisNexis.
For consumers who have a job
offer or an insurance policy on the
line, LexisNexis’ dispute process—
even if it goes smoothly—may not be
fast enough. Kelly’s client alleged she
had to pay more than $1,500 for six
months of car insurance—more than
four times the market rate, according
to the initial complaint. Soumilas’ cli-
ent Smith, whose background check
got mixed up with a criminal’s, was
temporarily unemployed and was
unable to pay his bills, according to
evidence submitted at the trial.
In cases like Tolbert’s, a fixed report
might not stay fixed, either. It can be
difficult to truly solve an error “with-
out real humans talking to real people
and pulling up real records,” accord-
ing to Rapp, the attorney.
And the fact that data brokers often
share information makes corrections
all the more complicated. You might
find that the data broker that distrib-
uted an inaccurate report about you
doesn’t know where the information
came from, says Butler of the Elec-
tronic Privacy Information Center.
A PROBLEM OF UNKNOWN SCALE
LexisNexis won’t say how many mixed
files there are. During Smith’s lawsuit,
the company contended that during
NEWSWEEK.COM 19
Periscope
a recent five-year period, it had gen-
erated 24 million consumer reports,
and that its reports had an overall dis-
pute rate of only 0.2 percent—which
would be about 48,000 disputes about
multiple issues, including mixed files,
during that time. In a 2016 decision on
the case, the 6th U.S. Circuit Court of
Appeals called this rate “remarkably
low.” Richman would not provide
additional detail but called the inclu-
sion of inaccurate data in its reports
“rare.” These numbers are unlikely to
reflect the extent of the problem, says
Francis, whose firm litigated the issue.
“That only would address the number
of people who disputed, not the num-
ber of errors that are actually created.
And not everybody disputes.”
A 2004 report by the Federal
Trade Commission found that credit
reports by Experian, Equifax and
TransUnion contain Social Security
numbers that are off by a digit or two
about 1 percent to 2 percent of the
time. A 2012 follow-up report found
that, for credit reports with disputed
collection information, data that
didn’t belong to the consumer was
alleged in 84 percent of cases. About
40 percent of those consumers were
unable to find a resolution after a dis-
pute, the FTC reported. Accusations
of incorrect information make up
more than half of the credit or con-
sumer reporting complaints the Con-
sumer Financial Protection Bureau
receives, according to a 2018 report.
And mixed files are a common prob-
lem Kelly sees in her cases with data
brokers. She says a lot of her clients end
up suing “the same consumer report-
ing agencies, including LexisNexis,
over and over for the same violations
because they don’t correct them.”
OPERATING IN THE “WILD WEST”
Complicating matters is the lack of
federal regulation of consumer data.
20 NEWSWEEK.COM
PERSONAL FINANCE
The Fair Credit Reporting Act (FCRA),
which entitles you to free annual
reports and prompt resolution of dis-
putes, among other things, applies to
some LexisNexis reports, but not all.
There is no comprehensive federal
regulation covering the data broker
industry—just a few state laws and
some federal statutes regulating par-
ticular types of consumer data, many
dating from the 1990s and earlier.
Lawmakers have proposed fed-
eral regulations in the past year that
would affect data brokers, including
laws that would expand protections,
allow more thorough consumer opt-
outs and levy stricter penalties on
executives of companies found to be
violating the rules. But Santa Clara
University’s de la Torre, who is also
of counsel at Squire Patton Boggs,
doesn’t think any will be passed in
the next couple of years because of
other government priorities.
For now, many companies are oper-
ating “in the Wild West, and they just
“This is the biggest
thing you don’t know
anything about.”
do whatever they want,” says Francis,
the consumer lawyer.
Even on reports governed by the
FCRA, Francis says companies’ prac-
tices for data retrieval can fall short
of the FCRA standard, which requires
credit reporting agencies maintain
“maximum possible accuracy” in their
data. LexisNexis’ Richman counters
the company is in strict compliance
with the FCRA: “We strive to achieve
the highest precision rate possible.”
In the 6th Circuit Court’s 2016 deci-
sion on the Smith case, the panel noted,
“A reasonable jury could conclude that
Lexis negligently violated the FCRA by
not requiring Smith’s middle name.”
The appeals court affirmed the Mich-
igan district court decision, which
called the deficiencies in LexisNexis’
matching procedures “glaring.” But
the 6th Circuit declined to uphold
a portion of the damages the lower
court awarded Smith, in part because
the panel held there was evidence
LexisNexis’ procedures met or
exceeded industry standards.
“I’m sure that the big companies
spend a lot of money on compliance,”
EPIC’s Butler says. “That doesn’t really
provide much comfort if there’s still
significant errors going on.” And the
errors we know about, Butler adds, are
just “the tip of the iceberg.”
As for Tolbert, rather than attempt
the traditional dispute process with
LexisNexis again, he says he served
it with an intent to file suit earlier
this summer. “I just want this mat-
ter resolved, and I want it to stay
resolved,” Tolbert says. “[They] need
to learn [they] can’t just do this to
people and walk away.”
→ Alice Holbrook is a writer for Nerd-
Wallet, a personal finance website
and app providing content, tools and
advice for consumers, where this story
first appeared.
O C t OBE r 04, 2019
 NEWSMAKERS

Talking Points
“I DID NOT GET HERE
“The mother of OVERNIGHT. THERE HAS
BEEN A LOT OF HARD
parliaments [is] WORK AND SWEAT THAT
being shut down by WENT INTO IT, A LOT OF
DOWNS, A LOT OF UPS.”
the father of lies.” Ŝ862SHQ:LQQHU

“I don’t want
—QC AIDAN O’NEILL %LDQFD$QGUHHVFX
CRITICIZES BORIS JOHNSON

you to listen to
me. I want you
to listen to the
“ T H E O N LY T H I N G
ST O P P I N G US F ROM scientists and
ENDING THIS EPIDEMIC IS I want you to Bianca Andreescu

unite behind
YO U & YO U R C OWA R D I C E .
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—2020 candidate beto o’rourke on

gun violence
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And then I want “Sending in the

tanks remains
you to take irrational, though
real action.” not impossible.”
—hong kong pro -demo cracy
ŜǰǢǢǫ ǠǩǦǪǞǰǢ ǞǠǰǦDzǦǯǰ ac tivist joshua wong
ǤǮǢ ǰǞ ǰǥDZǫǟǢǮǤ

Beto O'Rourke

“IT’S LIKEE WE JUST NEED

“I think it’s really k
key in
n this daay
and age that we remem mber that
hat TO B E RES
S CUED AND PUT
it’s not just about thhe peeople that ON ANOT HER ISLAND
you know that you’’re su upporting. TO START OVER AGAIN.
It’s about the peoople that
t you COMPLETE D DEVASTATION.”
don’t know, that you maym never
—Cindy Rus sell,
s a Bahamas
know, you may never
n r meet.” resident wwhose home was
—duchess of sussex megh
m han markle destroyed by Hurricane Dorian

NEWSWEEK.COM 21
Greta Thunberg
22 NEWSWEEK.COM O C T OBE R 04, 2019
WHAT
WOULD

A
D O?
WHY THE
SUPREME COURT’S
C O N S E R VAT I V E
PRINCIPLES ARE
ON TRIAL IN A TRIO
OF EXPLOSIVE

LGBTQ CASES

by Roger Parloff
I L L U S T R AT I O N B Y A L E X F I N E

NEWSWEEK.COM 23
 hree explosive cases are about to test
whether conservative Supreme Court justices
are seen to rule according to their professed
legal principles—or their politics.
On October 8, just day two of the new term,
the Court will hear arguments questioning if
the federal law that prohibits workplace discrimination “because
of…sex”—Title VII of the Civil Rights Act of 1964—applies to dis-
crimination on the basis of sexual orientation and gender identity.
Millions of Americans’ rights are at stake. About 4.5 percent
of the adult U.S. population identify as gay or lesbian—about
11.3 million people—according to a recent Gallup poll. Another
1.6 million are transgender, estimates a friend-of-the-court brief
submitted by 82 scholars who study that population. Though 22
states have enacted their own laws barring discrimination on the
basis of sexual orientation and/or gender identity, 28 have not,
meaning that about 44 percent of the LGBTQ population relies
solely on Title VII for workplace protection.
Interest in the case extends far beyond the LGBTQ community
itself. More than 1,000 outside organizations and individuals have
weighed in via more than 70 friend-of-the-court briefs. Among
those supporting LGBTQ employees are more than 200 major cor-
porations (including Apple, General Motors, IBM and State Farm),
all the major unions, the American Psychological Association, the “ C O N G R E S S H A S R E P E AT E D LY
American Psychiatric Association and the American Medical As-
sociation. The defendant employers, in turn, count among their D E C L I N E D T O PA S S
supporters the Conference of Catholic Bishops, the National As-
sociation of Evangelicals and privacy groups whose members fear A D D I N G S E X U A L O R I E N TAT I O N
having to use the same bathrooms as members of the opposite
biological sex. The Trump administration’s Justice Department OF PROTECTED TRAITS IN
and the Equal Employment Opportunity Commission are also
backing the employers in these cases, and U.S. Solicitor General
Noel Francisco’s office will take part in the oral arguments.
The Court’s own credibility is also on the line.
At a time of profound skepticism about the Court’s claims of
nonpartisanship, its approach to these cases will be scrutinized for excerpt published in The New York Times, corroborating accusations
signs of political bias. The Republican Senate’s blanket refusal to per- of collegiate sexual misconduct by now-Justice Brett Kavanaugh
mit Democratic President Barack Obama to appoint any successor (which he categorically denied at the time), has revived the partisan
after the death of conservative Justice Antonin Scalia in February rancor surrounding last year’s confirmation hearings and led some
2016 thrust the Court’s partisan underpinnings into a harsh, unde- Democratic presidential candidates to call for his impeachment.
niable light. The damage was exacerbated when, as the 2016 presi-
dential election approached, several prominent Republican senators A Moment of Truth for Textualists
pledged to try to deny Democrat Hillary Clinton any Supreme Court since Kavanaugh was sworn in last october, replacing
appointments if she won. Just last month, four Democratic U.S. sen- swing-vote Justice Anthony Kennedy—a more moderate conser-
ators, led by Rhode Island’s Sheldon Whitehouse, filed an extremely vative and strong champion of LGBTQ rights—Republican-ap-
unusual friend-of-the-court brief in a gun-control case baldly assert- pointed conservatives have commanded a solid five-person ma-
ing that “the Supreme Court is not well,” that “the people know it,” jority on the nine-justice Court. Looking just at the presumed
and hinting that the Court may need to be “restructured to reduce ideological proclivities of the justices, the LGBTQ employees in
the influence of politics.” As if that weren’t enough, a recent book these cases might be assumed to face an uphill battle.

24 NEWSWEEK.COM O C T OBE R 04, 2019


SERVING JUSTICE
Clockwise from top:
Current members of the
Supreme Court; protester
campaigns against the
repeal of transgender
bathroom rights; Associate
Justice Antonin Scalia.
“It’s either put up or shut up.” Eskridge co-authored a friend-of-
BILLS
TO THE LIST
TITLE VII”
) 5 2 0  72 3   & + , 3  6 2 0 2 ' ( 9 , / / $ ʔ* ( 7 7 <  0 $ 5 .
0 $ . ( / $ ʔ* ( 7 7 <  & + $ 5 / ( 6  2 0 0 $ 1 1 ( <ʔ* ( 7 7 <
JUSTICE
But cases aren’t supposed to be decided by ideology. In cases
like these, justices say they ground their decisions on the text of
the statute in question and the precedents interpreting it. For at
least 20 years, conservative jurists, led by the late Justice Antonin
Scalia, have championed a doctrine of statutory interpretation
called “textualism,” which purports to provide an objective de-
cision-making methodology that transcends ideology. It hinges
on the plain meaning of a statute’s words, rather than on the
subjective intent or expectations of the legislators who enacted it.
Those rules now dictate an outcome in favor of the LGBTQ em-
ployees, they and their allies insist. “This is a moment of truth for
textualists,” Yale Law School professor William Eskridge Jr. said.
the-court brief supporting the employees. “Either give Title VII’s
text and structure the effect its breadth demands, or admit that
textualism does not free statutory interpretation from ideology.”
Four former U.S. solicitor generals sounded the same theme in
their own brief, co-authored by constitutional scholar Laurence
Tribe of Harvard Law School. “These cases are simpler
than they seem,” Tribe wrote. “Here, all that is necessary
to decide the questions presented is a direct application
of textualist principles to the plain language of Title VII.”
Tribe wrote on behalf of Walter Dellinger III (acting SG
under Bill Clinton), Seth Waxman (SG under Clinton),
Theodore Olson (SG under George W. Bush) and Neal
Katyal (acting SG under Barack Obama).
The employers and their allies respond that the 1964 law
was obviously never intended to address these forms of al-
leged discrimination, that Congress has repeatedly rebuffed
invitations to amend the law to do so and that the employ-
ees are, therefore, effectively inviting the Court to rewrite
that law by illegitimate judicial fiat. “Federal courts should
not usurp Congress’s authority by judicially amending the
word ‘sex’ in federal nondiscrimination law to include
‘transgender status,’” writes John J. Bursch, vice president of
appellate advocacy for the conservative nonprofit Alliance
Defending Freedom, which represents R.G. and G.R. Harris Funeral
Homes, the employer accused of discriminating on the basis of gender
identity in one of the three cases to be argued. (ADF describes itself
as advocating “for the right of people to freely live out their faith.”)
“For more than 40 years,” assert Justice Department lawyers in
their brief supporting the employers accused of discriminating
against two gay employees, “Congress has repeatedly declined to
pass bills adding sexual orientation to the list of protected traits
in Title VII.” (“What Congress hasn’t done shouldn’t affect inter-
pretation of the statute,” responds American Civil Liberties Union
staff attorney Gabriel Arkles. “It should be interpreted for what
it says.” The ACLU is co-counsel for two of the three plaintiffs in
these cases, Donald Zarda and Aimee Stephens.)
NEWSWEEK.COM 25
 JUSTICE

The Softball Player, the Skydiver, and the Funeral Director with the support of her wife, decided to transition to a female
courts do not decide legal issues in the abstract; identity in anticipation of eventual reassignment surgery. When
they address questions presented to them in specific lawsuits. So she returned to work, she wrote, she would be using the name Ai-
before diving into the evolution of the law and the parties’ partic- mee and dressing in a skirt suit, in accordance with Harris Homes’
ular arguments, it is crucial to examine the facts of the particular dress code for women. Rost fired her two weeks later, before her
cases before the Court. scheduled return, explaining that it was “wrong for a biological
There are two involving sexual orientation (those of Zarda and male to deny his sex by dressing as a woman or for a biological
Gerald Bostock), which have been consolidated and will be ar- female to deny her sex by dressing as a man,” Stephens alleges. Rost
gued together first, and one involving gender identity (that of Ste- also said that customers “don’t need some type of a distraction”
phens), which will be argued separately immediately afterwards. and that her “continued employment would negate that.”
In 2003, Gerald Lynn Bostock took a job as a child welfare ser- Initially, during the Obama admin-
vices coordinator in the Clayton County juvenile court system in CHANGING FACES istration, the EEOC took Stephens’
Jonesboro, Georgia, near Atlanta. For ten years he compiled an out- Clockwise from right: case and sued Harris Homes on her
Skydiving instructor
standing record, his attorneys claim. In January 2013, however, he Donald Zarda; John Lewis, behalf. But after Donald Trump took
started playing softball in a gay association known as the Hotlan- left, and his husband office, the EEOC reversed its position,
ta League. This drew criticism, he claims, from people influential Stuart Gaffney, who and it now supports Harris Homes. In
challenged California’s
with his employer, Clayton County. Three months later the county laws in 2008, celebrate May 2018, the U.S. Court of Appeals
audited Bostock’s unit and, that June, he was fired for “conduct after the U.S. Supreme for the Sixth Circuit, in Detroit, ruled
unbecoming of a county employee.” The county now claims that Court ruled in favor of that Stephens’ case could go to trial be-
same-sex marriage; Brett
Bostock had mismanaged funds. Bostock, now 55, denies the ac- Kavanaugh sworn in by cause, in its view, Title VII does bar dis-
cusation, and denounces both the audit and its findings as phony Justice Anthony Kennedy. crimination based on gender identity.
excuses manufactured to hide the real reason for his termination:
bias against his homosexuality. Bostock is appealing a ruling of the
U.S. Court of Appeals for the Eleventh Circuit, in Atlanta, which
affirmed the pretrial dismissal of his suit on the grounds that Title
VII did not bar discrimination on the basis of sexual orientation.
Meanwhile, in 2010, Donald Zarda was a skydiving instructor
for Altitude Express in Calverton, New York, on Long Island. He
often led “tandem” jumps, where he was strapped closely to the
customer. That June he was fired for, he was told, having shared
“inappropriate information” with a customer “regarding his per-
sonal life.” Zarda maintained that he told a woman client he was
gay in order to dispel the awkwardness of the tight physical con-
tact. Altitude asserts that, after the jump, the woman complained
of being “inappropriately touched” by Zarda, and that only then
did Zarda mention his sexual orientation. Zarda sued that Septem-
ber. In February 2018, the Second Circuit Court of Appeals in New
York ruled that his case could go forward to trial because Title VII
prohibits discrimination based on sexual orientation. (In October
2014, Zarda, then 44, died in Switzerland while engaged in the ex-
treme sport known as BASE-jumping—diving from a cliff wearing a
wingsuit. His executors, however, have continued to press his suit.)
Finally, there is Aimee Stephens. Then known as Anthony, she
was hired as a funeral director in Garden City, Michigan, near De-
troit, in October 2007. The employer, R.G. and G.R. Harris Funeral
Homes, was owned by Tom Rost, a “devout Christian,” according
to the employer’s attorneys. In late July 2013, while on vacation,
Stephens wrote Rost explaining that she had “a gender identity
disorder that [she] had struggled with [her] entire life,” and had,

26 NEWSWEEK.COM
 “ T H E FA C T
T H AT

A S TAT U T E
CAN BE
APPLIED IN
S I T U AT I O N S
NOT
E X P R E S S LY
A N T I C I PAT E D
BY CONGRESS
DOES NOT
D E M O N S T R AT E

A M B I G U I T Y.
I T D E M O N S T R AT E S
BREADTH.”
CLOCKWISE FROM RIGHT: JORGE RIVAS; JOSH EDELSON/BLOOMBERG/

The Evolving History of the Law

there is no dispute that most of the legislators who mark Price Waterhouse v. Hopkins case, the Court decided that Title
GETTY; ABIN BOTSFORD/THE WASHINGTON POST/GETTY

wrote and voted for Title VII never envisioned targeting discrim-
ination on the basis of sexual orientation or gender identity. In
1964, most states still criminalized homosexual conduct and the
term “gender identity” was largely unknown. In the 1970s a con-
sensus arose among the federal circuit courts that Title VII (or
other, similarly worded federal antidiscrimination statutes) did
not reach sexual orientation cases. Courts also rebuffed the tiny
number of gender identity cases that arose.
By the early 2000s, however, the legal landscape had changed.
Judges began to reassess earlier assumptions in light of, primarily,
two intervening U.S. Supreme Court rulings. In 1989, in the land-
VII barred discrimination based on sexual stereotyping. There, in de-
nying a promotion to Ida Hopkins, partners at the accounting firm
had described her as too “macho” and “aggressive,” and had suggest-
ed she should learn to “walk more femininely, talk more femininely,
dress more femininely, wear make-up, have her hair styled, and wear
jewelry.” Courts began to consider whether sexual orientation and
gender identity cases were simply extreme cases of sexual stereotyp-
ing: inappropriately assuming that all men should date women, for
instance, or that all people assigned female sexual characteristics at
birth should identify as women for the rest of their lives.
The other key, intervening Supreme Court precedent was a

O C T OBE R 04, 2019 NEWSWEEK.COM 27

unanimous ruling in 1998 authored by Justice Scalia. It was as against homosexuals, overruling an earlier precedent. It found that

much a victory for textualism as for Title VII plaintiffs. In that
case, Oncale v. Sundowner Offshore Services, Inc., a male roust-
about on an oil rig complained of severe sexual harassment from
other males on the rig, including supervisors. The Court ruled
that Title VII barred same-sex sexual harassment, even though
such practices were probably not envisioned by anyone in Con-
gress who voted for the law in 1964. “It is ultimately the provi-
sions of our laws rather than the principal concerns of our leg-
islators by which we are governed,” Scalia wrote. Later that year,
in another unanimous ruling involving a different statute, Scalia
re-enforced his textualist approach: “The fact that a statute can be
applied in situations not expressly anticipated by Congress does
not demonstrate ambiguity. It demonstrates breadth.”
In light of these precedents, judges began to see Title VII as
reaching more broadly than previously assumed. In the early
2000s, three federal appeals courts allowed transgender plaintiffs
to sue based on sexual stereotyping, without deciding whether dis-
crimination based on gender identity itself was forbidden. In 2012,
LIGHTROCKET/GET TY; DENVER POST/GET TY; FRANCIS MILLER/THE LIFE PICTURE COLLECTION/GETTY; BET TMANN/GET TY
CLOCKWISE FROM TOP LEFT: CHARLES WILLIAM KELLY; CHIP SOMODEVILLA/GET TY; ERIK MCGREGOR/PACIFIC PRESS/
bias against the lesbian employee in that case—stemming from
the stereotype that women should date only men—”represents
the ultimate case of failure to conform to the female stereotype.”
“But for” and “Stereotyping”
the lgbtQ employees in the three cases now before the
Court make two main “textualist” arguments. One is the stereo-
typing argument just described—that discrimination against
people attracted to the same sex amounts to the “ultimate”
form of sexual stereotyping. The other is known as the “but for”
1964
The Path The Civil Rights Act
was passed. Title VII of
to the the law makes it

Supreme
illegal for employers
in an administrative case, the EEOC ruled that Title VII did, in to discriminate against
fact, protect transgender plaintiffs. In late 2014, Attorney General
Eric Holder instructed Justice Department staff to enforce that Court’s an employee “because
of such individual’s
interpretation as well. In July 2015, the EEOC decided that Title
VII also banned discrimination on the basis of sexual orientation,
LGBTQ race, color, religion, sex,
or national origin.”
reversing its earlier position. Then, in April 2017, the U.S. Court Title VII
of Appeals for the Seventh Circuit, in Chicago, became the first
federal appeals court to rule that Title VII barred discrimination
Trilogy
28 NEWSWEEK.COM
 JUSTICE

MARCH OF TIME
Clockwise from top:
President Barack Obama
and Judge Merrick Garland
in 2016; three years later
45,000 people took part
in a pride march starting
at the Stonewall National
Monument in New York
City; transgender funeral
director Aimee Stephens.

argument. The Supreme Court has repeatedly ruled in the past
that an employer discriminates “because of…sex”—the literal text
of Title VII—when it treats an employee “in a manner which,
but for that person’s sex, would be different.” Lawyers for the
LGBTQ employees say they obviously meet that test. As lawyers
for fired Clayton County employee Bostock put it: “When an
employer fires a female employee because she is a lesbian—i.e.,
because she is a woman who is sexually attracted to other wom-
en—the employer has treated that female employee differently
than it would treat a male employee who was sexually attracted
to women.” Thus, but for her sex, she wouldn’t have been fired.
Similarly, attorneys for Aimee Stephens, the transgender funeral
director, contend: “Harris Homes would not have fired her for living
openly as a woman if she had been assigned a female sex at birth.”
Thus, but for her biological sex, she wouldn’t have been fired.
The employers respond that both arguments are wrongheaded.
The arguments lose sight, they claim, of what was the obvious
central goal of Title VII: that an employer not favor one sex over
the other. So long as an employer discriminates against all ho-
mosexuals, for instance—i.e., both gay men and lesbians—the
employer is not favoring either sex over the other. Similarly,
so long as employers discriminate against all transgender

1967 1971 1972 1978

Loving v. Virginia. Phillips v. Martin Title VII was expanded Title VII was amended
The Supreme Court struck Marietta Corp. The to ban discrimination by to clarify that
down state laws forbid- Supreme Court held that public employers. The discrimination “because
ding interracial marriage the company’s policy original law had covered of…sex” includes
for violating the Equal against hiring women only private employers. discrimination “on the
Protection Clause of the with preschool-age chil- basis of pregnancy,
)RXUWHHQWK$PHQGPHQW/*%74DGYRFDWHVDUJXHWKDW dren, when it had no such child-birth, or related
the case established the illegality of “associational rule for men, violated Ti- medical conditions.”
discrimination”—discrimination based not necessar- tle VII. The case has sub- (The amendment
ily on one’s own race, but on the race of the person sequently been cited as overruled a 1976
one associates with. Discrimination against gays an early instance of Title Supreme Court ruling
and lesbians is analogous, it is argued, in that it is VII being applied to pro- that had interpreted the
based on the sex of the person one is attracted to. hibit “sex-stereotyping.” phrase more narrowly.)

O C T OBE R 04, 2019 NEWSWEEK.COM 29

 JUSTICE

employees—those transitioning to men and those transitioning

to women—they are not favoring either sex.
Under this view, the LGBTQ plaintiffs are guilty of using a
“faulty comparator analysis,” to use the technical term used by the
employers’ attorneys. “[Gay skydiver Zarda] is wrong to compare “THIS IS A
himself to a heterosexual woman,” write attorneys for Zarda’s for-
mer employer. “Zarda (a man attracted to the same sex) must be
MOMENT
compared to a lesbian woman (a woman attracted to the same OF TRUTH FOR
sex). Because employers that base decisions on employees’ sexual
attraction would treat both Zarda and the lesbian comparator the TEXTUALISTS.
same way, the comparator analysis reveals no sex discrimination.”
Similarly, they argue, “the alleged stereotype in this case—the be- IT’S EITHER
lief that people should be attracted to the opposite sex—is not a PUT UP
sex-specific stereotype and does not treat employees of one sex
worse than the other sex.” O R S H U T U P. ”
The Stakes
it is hard to looK at these cases without contemplating
what might have been. Had President Obama been permitted
to fill the Supreme Court seat vacated by the death of Scalia in

C OU N TE RCLO C K W I SE F RO M TOP: M AD DI E M CG ARV EY/FO R T HE WASH I NGTON POST/GE T T Y; CH I P S O M OD E VI L L A /GET T Y; CYN TH IA

J O H NS O N/T H E L I F E I MAG ES CO L L E CT I O N /G E T T Y; T. J. KI R K PAT R I CK /G E T T Y; CH I P S OM OD EV I L L A/GE T T Y; J I M WATS ON /A FP/GE T T Y
2016 with D.C. Court of Appeals Judge Merrick Garland, the U.S.
might be a different place. The liberal-leaning faction of the
Court would now own five seats, and the employees’ chances of
prevailing in these cases would be strong. But Senate Majority
Leader Mitch McConnell famously refused to let Obama have
any Supreme Court appointment during the last 11 months of his
final term. (Obama won his second term with 51 percent of the
popular vote.) “Let’s let the American people decide,” McConnell
said at the time, alluding to the upcoming election.
The people then voted for Hillary Clinton by a margin of 2.8
million votes—48 percent to Donald Trump’s 46 percent. But
Trump won the electoral college and became president. Trump
replaced Scalia with Justice Neil Gorsuch in April 2017.

1986 1989 1991 1998

Meritor Savings Bank Price Waterhouse v. Hopkins. In the Court’s landmark, Civil Right Act of 1991. Oncale v. Sundowner
v. Vinson. The Supreme “sex stereotyping” case, justices ruled that Ann Hopkins Title VII amended to Offshore Services, Inc.
Court recognized for had been discriminated against when the firm’s part- specify that sex discrim- In a unanimous ruling
the first time sexual ners denied her a promotion because she was “overly ination is established authored by Justice
harassment and the aggressive,” “macho,” and should learn to “walk more if it is “a motivating Antonin Scalia, the
creation of a “hostile femininely, talk more femininely, dress more femininely, factor” for an employ- Court ruled that Title VII
working environment” wear make-up, have her hair styled, and wear jewelry.” ment decision, even if bars same-sex sexual
as a Title VII violation. Advocates for the rights of LGBTQ employees argue that other, legitimate factors harassment, even though
discrimination against gays and lesbians—because they also played a role. such practices may not
are attracted to people have been envisioned
of their own sex—is by the Congress that
the ultimate form of enacted the Civil
sexual stereotyping. Rights Act in 1964.

30 NEWSWEEK.COM O C T OBE R 04, 2019


COURTSIDE SEATS
Then-Supreme Court
nominee Judge Neil
Gorsuch (far left) on
Capitol Hill in 2017; Jim
Obergefell (left) was
married to his husband
John Arthur, shortly before
Arthur died of ALS, and
2EHUJHIHOO ɿOHG VXLW VR
he could be listed as
the surviving spouse.
Even then, the employees in these cases might still have
been favored to prevail. At that point, Justice Kennedy
was still on the bench, and he had authored many of the
trail-blazing decisions expanding LGBTQ rights, including
Obergefell v. Hodges in June 2015, concluding that same-sex
couples had a federal constitutional right to marry. (Ken-
nedy had been appointed by President Ronald Reagan, who
had won 58.8 percent of the popular vote.) But Kennedy re-
signed in June 2018 and Trump nominated staunch conser-
vative Kavanaugh, approved by the Senate in October 2018.
With Kennedy out and Kavanaugh in, some observers see the
LGBTQ employees’ prospects in these cases as bleak. Where will
they find a fifth vote? Zarda’s co-counsel, Gregory Antollino of
New York, professes to “feel confident” that the employees’ textu-
alist arguments will carry the day with at least one member of the
conservative faction. “We believe we can get Kavanaugh, Gorsuch,
or [Chief Justice John Roberts, Jr.]” he claims.
But if Antollino is wrong, the chief justice will have a hard time
softening the blow to the Court’s perceived legitimacy. In the past,
he has striven mightily to moderate the Court’s rightward shift,
in an apparent effort to preserve the institution’s aura of being
above the political fray. He has crafted miraculous compromis-
es where few had imagined any was possible—most famously
when he agreed with conservatives that the Affordable Care Act
violated the Constitution’s Commerce Clause, yet joined liberals
to uphold it under the Taxation Clause.
It’s often said that, among the three branches of government, the
Supreme Court is unique in that its legitimacy depends on its abili-
ty to hold itself above the political fray. Its members are not elected;
as a body, the Court has no power to enforce its own rulings, so it is
entirely dependent on the goodwill of the other branches to carry
out its proclamations. (“It has no influence over either the sword
or the purse,” as Alexander Hamilton famously put it in Federalist
No. 78.) Its legitimacy, therefore, hinges on its ability to persuade us,
through force of reason, that its decisions flow from neutral princi-
ples and precedents. Justice Scalia spent much of his judicial career
trying to craft and enshrine conservative rules of interpretation
that he believed would enable judges to do just that.
In this case, the justices may need to decide whether they want to
be conservatives in the jurisprudential sense, or in the political one.
ƠRoger Parloff is a regular contributor to newsweek and yahoo
finance. He has also been published in the new york times,
propublica, new york magazine, and newyorker.com. For 13
years he was a staff writer at fortune Magazine.

2014 2015 2017 2017

In December, Attorney
General Eric Holder in-
VWUXFWHG-XVWLFH'HSDUW-
ment staff that, in light of
evolving Supreme Court
rulings, Title VII should
be understood to ban
discrimination on the
basis of gender identity.
,Q-XO\WKHEqual Em-
ployment Opportunity
Commission, reversed
LWVSULRUSRVLWLRQɿQGLQJ
that discrimination on
the basis of sexual orien-
tation violates Title VII.
In April, in Hively v.
Ivy Tech Community
College of Indiana,
the US Court of Appeals
in Chicago, reversed
itself and became the
ɿUVWIHGHUDODSSHDOV
court to rule that Title
VII bans discrimination
on the basis of
sexual orientation.
In October, Attorney
General Jeff Sessions
rescinded the Holder
memo of 2014, instruct-
ing staff that Title VII
does not encompass
discrimination on the
basis of gender identity.
 EDWARD BURTYNSKY

PETER CARBONARA
Photos by

Words by

“We as a spec
for the first t
such a FORC
planet that we ha
it from one geo
epoch to

32 NEWSWEEK M
 PRICE OF OIL
Petroleum is often stolen
from pipelines crossing the
Niger Delta, where such theft
is called “bunkering.” The
resulting spills and leaks
can poision the surrounding
forests and waterways.
 nthrop ocene: the human ep och is a
documentary film by Jennifer Baichwal,
Nicholas de Pencier and Edward Burtynsky that
paints a beautiful and terrifying picture of what human beings are
doing to the Earth.
Since the early 1980s Burtynsky, a Canadian photographer, has
been documenting what he calls “intentional landscapes,” the big
and lasting marks that human activities like mining and farm-
ing are making on the planet. The film is the third collaboration
between Burtynsky and documentary filmmakers Baichwal and de
Pencier—the first was Manufactured Landscapes (2006) followed
by Watermark (2013)—and is a companion to a coffee-table book
of large photographs and a touring museum exhibit. The documen-
tary opened in the United States on September 25.
The title comes from a word used by some geologists to describe
the period of natural history we are all living in right now. It was
popularized by Paul Crutzen, a Dutch Nobel Prize–winning
34 NEWSWEEK.COM
atmospheric chemist who has studied climate change. change During the
1980s, Burtynsky says, Crutzen realized “We as a species have for
the first time been such a force on the planet that we have moved
it from one geological epoch to another. We have now created a
footprint that has left its signature in the future strata of the planet
so geologists a million years from now if they dig something up
they’ll say, ‘This is from the anthropocene, when humans on the
planet were the dominant species.’”
The filmmakers traveled all over the world to make dramatic
aerial images of an enormous landfill in Nairobi, Kenya; forests
damaged by oil spills in Nigeria; Italy’s Carrara marble quarries; a
gigantic open pit coal mine in Germany; a concrete seawall under
construction in China and several other sites. The vistas are crisp
and full of brilliant colors, but most also carry a mood of foreboding.
Baichwal, however, says she and her partners had no intention of
preaching. Many films about the environment, she says, hit viewers
with “a sense of urgency that leaves everybody incredibly depressed
O C T OBE R 04, 2019
 except for the last five minutes where people talk about, ‘Here’s
what we can do to change things.’ And I just think that method
of discourse or inquiry has left people behind.” De Pencier calls
Anthropocene’s style “non-didactic” and says the film’s lush visuals
are intended to seduce the viewer “but hopefully seduced to have an
increased consciousness of an issue or a place or a topic that maybe
isn’t front of mind or that maybe you haven’t experienced before.”
Burtynsky says the purpose of the film is to create simple aware-
ness: “It’s too easy to say this is wrong or this is right,” he says, “This
WALL CARVINGS FATE OF THE FOREST
The underground Logs arriving at a
is what it is. We need to all understand we’re having this impact. We
Uralkali potash mine sawmill in the Makoko are managers of this whole planet.”
in Berezniki, Russia. section of Lagos, Nigeria. He adds, the word anthropocene itself is neutral. “It isn’t neces-
Potash is used for Trees are harvested in sarily saying this is the end of the world. It could be a good anthro-
fertilizer and in a number the country’s interior, pocene if we can figure it out.”
of industrial processes. which is being rapidly
The spiral patterns deforested, and then
are made by the large floated down river to → Photos © Edward Burtynsky, courtesy Flowers Gallery, London/
machines that dig it out. mills and markets. Nicholas Metivier Gallery, Toronto

NEWSWEEK.COM 35
 ENVIRONMENT

GREEN ACRES REMAKING A MOUNTAIN

Below: Roads through Opposite: The
a palm oil plantation Carbonera marble
on the island of Borneo, quarry in Carrara,
Malaysia. Large-scale Italy. This region of
palm oil farming has Tuscany has been
been blamed for heavily mined for its
deforestation and the famous high-quality
destruction of habitats marble going back
of endangered species. to Roman times.

“The filmmakers
 WHITE WALLS
Right: The Cava di
Canalgrande section
of Carrara’s marble
quarry. Michelangelo’s
David was carved
from a single block
excavated at Carrara.
Today, Italy produces
about 18 percent of the
world’s marble output.

NEWSWEEK.COM 37
VI R O N M E NT

n’t
ssarily
this is
d of the
d. It could
opocene
an

GEOLOGIC TIME
Layers of sedimentary
rock at Itzurun Beach,
Spain, that once lay
RQWKHRFHDQʀRRU
Containing a mineral
record created over
60 million years, it
is the one natural
VWUXFWXUHLQWKHɿOP

NEWSWEEK.COM 39
CITY ON STILTS
Left: The Makoko section
of Lagos, Nigeria. As the
coastal city’s population
has exploded, poor
residents have built
packed slum settlements
which extend out
into Lagos Lagoon.
 ENVI RO NMENT

ARTIFICIAL HILLS WATERBORNE

Opposite: Some of the Below: Phosphor
dirt and rock excavated tailings in water at
in the digging of the Lakeland, Florida.
Chuquicamata copper Tailings are the dissolved

“So geologists a million mine in Calama, Chile.

In use for over a
toxic leftovers from
phosphate mining and

years from now if they century, it is among

the largest open pit
mines in the world.
processing. Phosphates
are a key component in
agricultural fertilizer.

dig something up they’ll

say ‘This is from the
Horizons SCIENCE, TECHNOLOGY + HEALTH

B Y T H E NU MBERS Countries with the highest gun

ownership, per 100 residents 

Guns TEN TIMES

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34
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0.5
likelier black of suicide
put the spotlight back on Americans are attempts by
guns and their impact on life to die by gun
homicide than firearm that
in the U.S.—the only country white Amer- end in death.
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death
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IN 815,477
GA 979,006
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The number of guns owned by Americans, far more than any other country
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42 NEWSWEEK.COM O C T OBE R 04, 2019

 The average age at which gun owner
r , a d present,
an
say they got their first firearm. For men (the vast majority
of owners), the average is age 19. For women, 27.9

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NEWSWEEK.COM 43
Culture HIGH, LOW + EVERYTHING IN BETWEEN

44 NEWSWEEK.COM O C t ObE r 04, 2019

 A POLITICAL CRIME THRILLER
Cillian Murphy on facing death as mob boss Tommy Shelby in Peaky Blinderss. » P.48

UNCHARTED

Beautiful
Houses of Worship
Across the Globe
Throughout time, followers have pushed the boundaries of architecture in
celebration of deities. As we saw with the fire of Notre Dame, these buildings
of beauty often transcend religion and become emotional symbols of
culture and history to local communities, and even the world. From the
temples of 15th century Japan to mid-20th century chapels in Arizona,
celebrating the spiritual on earth has yielded some truly breathtaking
results. With the start of the Jewish high holidays this week, it seems an
especially appropriate time to take stock of their inspiration. —Laura Powers
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HEAVENLY INSPIRATION
The starry sky depicted on the
dome of Szeged Synagogue
in Hungary (opposite page)
and the Chapel of the Holy
Cross (this page), nestled in the
buttes of Sedona, both take
their inspiration from nature
in their service to the divine.

NEWSWEEK.COM 45
Culture

01 Chapel of the Holy Cross

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1956 chapel was commissioned
by a local rancher and sculptor
inspired by the Empire State
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built in Hungary, it was relocated
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02 Las Lajas Sanctuary

Ipiales, Colombia
Built on the edge of a gorge,
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church by crossing a bridge
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position was selected because 1
of the belief that it was the
site of a miracle in which a
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04 Szeged Synagogue
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Built in the early 1900s, this synagogue is the
fourth largest in the world and second largest in 3
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2 appropriate $4 million to the project in 2014.

03 Larabanga Mosque
Larabanga, Ghana
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building, but only Muslims are allowed inside.

46 O C T OBE R 04, 2019

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Located northeast of St. Petersburg, this church
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4 Mediterranean Sea.

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08 Sri Ranganathaswamy Temple

Tiruchirappalli, India
Dedicated to Ranganatha, a form of
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compound is one of the largest
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the pigment accomplished using $OVR NQRZQDVWKH*ROGHQ
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this Zen Buddhist temple
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Culture Illustration by B R I T T S P E N C E R

P A R T ING SHOT

Cillian Murphy
“he’s unafraid of death,” says peaky blinders star cillian murphy about What is it like to play a character
Tommy Shelby, the tormented, enigmatic leader of the fictional Shelby like Tommy Shelby?
crime family. The BAFTA-winning crime saga, which first debuted in 2013, is It’s very satisfying yet quite exhausting.
loosely based off the real Peaky Blinders, a gang who may have sewed razor blades He’s a relentless, beautifully written
in the peaks of their caps in Birmingham, England, during the early 1900s. Mur- character with all these complexities
phy has appeared in Hollywood blockbusters like Inception, 28 Days Later and the and contradictions. I wouldn’t play any
Dark Knight series, but it’s playing mob boss Shelby that Murphy considers a real character if I thought it was a walk in
“gift.” Murphy reveals that Season 5 will be more politically charged, showing the the park. I don’t necessarily identify
rise of fascism in England during the reign of Sir Oswald Mosely (Sam Claflin), with any facet of his personality—but
the leader of the violent, anti-Semitic British Union of Fascists. Without sharing that represents the challenge. To have
his own views on politics, Murphy lauds show creator Steven Knight’s masterful SOD\HGKLPIRUɿYHVHDVRQVLVDUHDOJLIW
way of addressing today’s climate. “Steven Knight is very smartly commenting
on what is happening in the world politically, but doing it through the prism of Season 5 is going to be more
history, which is a much smarter, a much more elegant way of dealing with it.” politically charged, right?
The series deals a lot with the rise of
fascism in Britain and with Oswald
Mosely. His speeches are readily
“I don’t think available online. You can look them up,

he expects but he uses phrases like “Make Britain

Great Again” and “false news.” It’s kind
[to live]. Every of like a playbook for populism.
day for him is
just like a Tommy struggles with PTSD after
WWI. What’s his mental state like?
bonus.” He’s very fragile. This season there’s
no conventional kind of threat. He is
dealing with an ideology. The other
biggest threat is himself. A lot of things
come home to roost; stuff that you’ve
been sweeping under the carpet and
not dealing with begins to surface. In
7RPP\ŠVFDVHDOORIWKDWLVPDJQLɿHG
1 million times.

What keeps Tommy going?

He witnessed such horror, it made
him realize that you gotta take the
world by the collar and just kind of
shake it up. I don’t think he expects
[to live]. Every day for him is just like a
bonus. —Maria Vultaggio

48 O C T OBE R 04, 2019

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