Supreme Court Rules Gay and Transgender Employees Are Protected by Anti-Discrimination Laws
6-3, with Roberts and Gorsuch joining the lefties. Gorsuch wrote the opinion. Justice Gorsuch says, essentially, that when Congress outlawed discrimination “because of” sex in Title VII, Congress must have meant to include gays and transgenders “because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
I leave the discussion of the policy to another time, but purely as a matter of legal interpretation, I think Justice Alito in dissent has the better of the argument:
The Court tries to convince readers that it is merely enforcing the terms of the statute, but that is preposterous. Even as understood today, the concept of discrimination be cause of “sex” is different from discrimination because of “sexual orientation” or “gender identity.” And in any event, our duty is to interpret statutory terms to “mean what they conveyed to reasonable people at the time they were written.” A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 16 (2012) (emphasis added). If every single living American had been surveyed in 1964, it would have been hard to find any who thought that discrimination because of sex meant discrimination because of sexual orientation––not to mention gender identity, a concept that was essentially unknown at the time.
The Court attempts to pass off its decision as the inevitable product of the textualist school of statutory interpretation championed by our late colleague Justice Scalia, but no one should be fooled. The Court’s opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated––the theory that courts should “update” old statutes so that they better reflect the current values of society. See A. Scalia, A Matter of Interpretation. [He is right. I own the book. — P]
If the Court finds it appropriate to adopt this theory, it should own up to what it is doing.
Many will applaud today’s decision because they agree on policy grounds with the Court’s updating of Title VII. But the question in these cases is not whether discrimination because of sexual orientation or gender identity should be outlawed. The question is whether Congress did that in 1964.
It indisputably did not.
I have bolded what I consider the key passage.
Gorsuch’s approach, in my view, is not Scalia’s textualism, but a sort of literalism that ignores the reasonable understanding of the words at the time they were written. That was Scalia’s textualism, and I believe he would have joined Alito’s dissent, and written a scathing one of his own, if he had lived to see this day.
From living Constitution to living statutes. Thanks, Trump! This should have been left to Congress.
nk (1d9030) — 6/15/2020 @ 8:44 amPart of the argument, as I understood it, was the notion that discrimination on the basis of sex occurs if you fire a male who has sex with a male and do not fire a male who has sex with a female. It’s actually an interesting argument.
But the obvious reaction of employers will be: do not hire anyone you believe to be either homosexual or transgender, because you will not be able to discharge them regardless of how rotten their job performance might be or whether their ‘status’ somehow negatively impacts other workers. If your other workers do not wish to associate with someone obviously homosexual or transgender, and productivity or worker morale declines, an employer would have to discipline, transfer or get rid of those other workers.
The Dana in Kentucky (6a5316) — 6/15/2020 @ 9:15 am“This should have been left to Congress”
This is the problem with having a completely dysfunctional legislature….things get pushed toward judicial and executive over reach. And Congress is dysfunctional because the media plays to partisanship….because that’s what entertains “we the people”. Still, one would think that Roberts and Gorsuch would know better….but who wants to face the wrath in media/social media of being on “the wrong side of history”….no matter how simplistic that charge is. “We the people” seem perfectly content with being ruled by nine unelected, unanswerable, “elites” who apparently know better.
AJ_Liberty (ec7f74) — 6/15/2020 @ 9:21 amIn the past I’ve had members of a protected class as subordinates whose performance wasn’t meeting expectations. My HR department used the exact same process and give me the same amount of help and oversight as they did when it happened with someone not a member of a protected class. I needed to explain in writing what the problem was, show documentation that supported me and show (with documentation) I’d made an effort to address their performance. Once that was done we fired them.
Time123 (f5cf77) — 6/15/2020 @ 9:28 amLiberals will cheer until a man who thinks he is a woman gets some sort of advancement or protection due to his gender belief.
Hoi Polloi (dc4124) — 6/15/2020 @ 9:53 amYeah… I’m not sure what’s so outrageous about Gorsuch’s point though.
Title VII was obviously a prohibition to discriminate because of sex. What the court did NOT do, is venture into defining a man vs. women.
So… I think he’s right textually AND on solid originalism grounds too.
Right?
whembly (c30c83) — 6/15/2020 @ 10:01 amIt’s not about the policy itself. It’s the Court making it. This is a statute, and Congress should say whether it now wants “sex” to include all 57 flavors instead of just the two from 1964.
nk (1d9030) — 6/15/2020 @ 10:08 amWhat’s the point in having a Congress when the Supreme Court just unilaterally makes law?
NJRob (1b0086) — 6/15/2020 @ 10:08 am@7
Maybe Gorsuch is being too cute here… but I don’t think he re-wrote any statute.
Gorsuch is saying that if you fire gays for being gay…you’ve made a sex-based distinction so it’s covered by Title VII.
Alito’s dissent seem to argue that for sure Congress wouldn’t have seen it as a sex-based distinction in 1964, so it’s not covered. That seems a stretch to me…politically, things were pretty radical.
The *only* thing Gorsuch’s argument that I’d nitpick, is that he seems to be arguing under the premise that sex = gender. Not sure how that’d be received by the sex ≠ gender crowd….
whembly (c30c83) — 6/15/2020 @ 10:40 am@9
Actually, lemme rephrased that… Gorsuch did specifically state that gender identity/trans/etc… are distinct concepts. But, he seems to argue as if sex ≠ gender when making his ruling.
whembly (c30c83) — 6/15/2020 @ 11:00 amit’s not dysfunctional, it is designed for bad ends, see dodd/frank, sarbanes oxley, anything positive,
narciso (7404b5) — 6/15/2020 @ 11:07 amThis marks the end of women’s sports, particularly amateur women’s sports.
Kevin M (ab1c11) — 6/15/2020 @ 12:01 pmAnd when Congress passes an “like &^^k it means that” law, the Court will say that you cannot take away rights once granted.
Kevin M (ab1c11) — 6/15/2020 @ 12:03 pmSince substantially amending the Constitution is nearly impossible today, the US Supreme Court may be called upon more and more to interpret it for the changing times. I suppose waiting for Congress to act is an option for the very patient among us.
What about original intent? Well, even though I agree with the decision, I would certainly acknowledge that public sentiment was not gay-friendly in 1964.
noel (4d3313) — 6/15/2020 @ 12:05 pmWhen roughly 75% of Americans agree with workplace protections for gay people, how long should they have to wait for equal treatment? Do they need to wait for the next Civil Rights Act…. or until a Constitutional amendment works it’s way through the states in about…. 25 years?
noel (4d3313) — 6/15/2020 @ 12:19 pmSince substantially amending the Constitution is nearly impossible today, the US Supreme Court may be called upon more and more to interpret it for the changing times. I suppose waiting for Congress to act is an option for the very patient among us.
It is hard to impossible BECAUSE the Court will do it for us. The political will never builds to the point it is possible. For example, an amendment that protects an adult woman’s right to abortion on demand in the first trimester would be a slam dunk IF it was the only way to do that. But the Court does it for us.
This is not something to applaud.
Kevin M (ab1c11) — 6/15/2020 @ 2:29 pmWhen roughly 75% of Americans agree with workplace protections for gay people, how long should they have to wait for equal treatment?
Well, when it became popular to extend the vote to 18 year olds, it happened almost overnight. IF, as you assert, Americans agree with workplace protections for gays, why is there no bill moving forward to do that?
OH! Is it because if you do it through the courts nobody has to face the electorate? How is this a good thing?
Kevin M (ab1c11) — 6/15/2020 @ 2:33 pmIANAL (and I didn’t exist in the 60s, so some assumptions are being made).
IMO Gorsuch may be closer to a textualist viewpoint.
As far as I can tell, sex/gender weren’t really delineated in the 60s the way they are by some groups today, so sex would fit either sex or gender. If the idea of Title VII was that an employer must be sex/gender neutral in it’s practices (and it looks to me, pretty explicitly, like that was the intent), the law would have to include gay and trans people because if the employer is sex/gender neutral, they would be required to essential not take sex/gender into consideration at all, and if you fire someone for being gay or trans then you are taking sex/gender into account in order to do so.
I don’t think you’d need to pass ANOTHER law to say you can’t discriminate against gay or trans people, because this one already says that.
Nic (896fdf) — 6/15/2020 @ 2:37 pmMr Liberty wrote:
I’ve seen this argument used for several things, immigration law being the most recent.
But if someone proposes a new law, and Congress declines to adopt it, Congress is saying, inter alia, that they are fine with the law as it is.
There is no obligation for Congress to pass anything, just because some people think they should.
The Dana in Kentucky (6a5316) — 6/15/2020 @ 2:50 pmMr M wrote:
I’d say that it’s because there is substantial objection.
It started with the Equal Rights Amendment. It sailed through, and was rushing toward ratification, before some people started to realize that it was a huge opportunity for legal mischief . . . and enough opposition formed that ratification was just barely stymied.
Workplace protection for homosexuals and transgenders? With this decision, the Supreme Court has opened a Pandora’s Box of legal opportunities for those of nefarious intent.
I might be one of the few commenters here who has been in a blue collar job all of his life. I don’t know if you hear much of this in air conditioned offices, but among ready-mixed concrete drivers — the vast majority of whom are male, and the majority appear to be black in my experience in larger cities — tolerance for male homosexuals is very low. If the subject arises, homosexuals are referred to with disparaging talk and insults. If there has been a driver who was homosexual in any of the places I’ve worked, he kept it very much secret. When a dispatcher I knew became suspected of being homosexual — someone heard something about him, and the word spread like wildfire — the dispatch office was filled with comments and innuendo enough that it would have been easily declared a hostile workplace environment.
The Dana in Kentucky (6a5316) — 6/15/2020 @ 3:02 pmI haven’t studied the decision, but the excerpts I’ve read from Gorsuch, and from Alito and Kavanaugh in dissent, are all persuasive.
Although I’m not sure how well-established it is as a constitutional doctrine, in situations like this I lean toward Cursori spolia (“Tie goes to the runner,” for those of you in Rio Linda).
By which I mean: when forced to choose between incompatible legal arguments which both have merit, err on the side of individual liberty.
Dave (1bb933) — 6/15/2020 @ 3:15 pmseems as though its a moot point with no policing being allowed in this schiff hole country
mg (8cbc69) — 6/15/2020 @ 3:22 pm5.Liberals will cheer until a man who thinks he is a woman gets some sort of advancement or protection due to his gender belief.
Google Paul Grossman – aka Paula Grossman. Knew him/her; was our music teacher back in the day.
Idiot.
DCSCA (797bc0) — 6/15/2020 @ 3:41 pm@8. Look up Paul aka Paula Grossman, Jersey Boy. He/she played on your turf.
DCSCA (797bc0) — 6/15/2020 @ 3:45 pmWay back in the 1980s, I was teaching junior high. There was this one student, named Maurine, who insisted to be called Mo, because she wanted to be a boy.
She even demanded to use the boy’s restroom. Her parents supported her transgenderism, and the principal capitulated.
This meant that whenever “Mo” needed to use the restroom, the teacher had to escort her, clear the boy’s restroom, and stand guard so that no boys were allowed in while she was in the restroom.
What was she doing? Squatting over a urinal, pretending to be a boy?
I thought it was insane then. I think it’s more insane now.
Gawain's Ghost (b25cd1) — 6/15/2020 @ 4:39 pm“If Congress won’t act, we will.”
Signed,
Sonia Sotomayor
Ruth Bader Ginsburg
Stephen G. Breyer
Elena Kagan
John G. Roberts
Neil M. Gorsuch
norcal (a5428a) — 6/15/2020 @ 5:18 pmLike Trump was ever going to appoint a Justice like Scalia. Like Kennedy? Maybe.
nk (1d9030) — 6/15/2020 @ 5:23 pmhttps://www.conservativereview.com/news/horowitz-conservatives-get-massacred-fake-conservative-scotus/
Leftists still run the Supreme Court and ignore the law to “create” law.
Pathetic.
NJRob (4d595c) — 6/15/2020 @ 6:13 pmSupreme Court Orientation Day for Lefties
Here’s the way it’s done, newbie:
Step One: Decide on the right policy.
Step Two: Twist, re-imagine, and “refresh” the law to justify the right policy.
And voila! We get Roe v Wade, gay marriage, and now LGBT falling under the Civil Rights Act of 1964.
Now, lest you think I’m some conservative hardliner, please know that I am pro choice, pro gay marriage, and pro transgender. I just believe that these issues should have been dealt with legislatively, which means doing the hard work of creating a climate of opinion in favor of those policies. Having the conversation, and winning people over through persuasion, is much healthier than having outcomes shoved down people’s throats by the berobed. Judicial fiat leads to resentment, which leads to people like Trump. Can’t get the legislature to act? Then work harder to sway the electorate. Don’t short-circuit the the constitution.
Process matters. Otherwise, we’re living under a judicial oligarchy.
norcal (a5428a) — 6/15/2020 @ 6:45 pmPeople need to understand that even if Goresuch had voted the right way on the Gay Civil Rights case, Roberts would’ve still given them a 5-4 majority. As far as I can tell, Roberts has voted with the Liberal bloc on almost every important case going all the way back to the Campaign finance law. He was also instrumental in striking the citizenship question from the census.
rcocean (fcc23e) — 6/15/2020 @ 7:20 pmWe don’t have a conservative SCOTUS. Before Trump, we had a liberal bloc, then Roberts and Kennedy as swing voters, and 3 conservatives. Trump replaced Scalia with a swing vote, and Kennedy with another swing vote. All the Bulwark Boys and the Dispatch gang were happy about Goresuch. Now we know why. But then this goes back to the failure of the Social Conservatives to review Judges determine who is REALLY a conservative, and then TELLING the POTUS, nominate him or else. Instead, ever since Reagan, they’ve decided to let trust the President and “fall in line”, and given us a pig-in-the-poke for 40 years.
The only time that’s not happened is when Harriet Miers was stopped by Ann Coulter and a few others.
rcocean (fcc23e) — 6/15/2020 @ 7:24 pmThe shocking thing about the Goresuch opinion is that this Transgenders have Civil Rights decision is on the same level as the Gay Marriage decision and Roe v. Wade in terms of justifying judicial activism. Scalia would NEVER have written such an opinon, and we were constantly told by the Federalist Society that Goresuch was the “new scalia”.
One wonders what other pieces of activism, he’ll sign up for.
rcocean (fcc23e) — 6/15/2020 @ 7:28 pmOne can, I suppose, justify the Calf Illegal immigration decision as support for Federalism. This was simply pure naked Judicial activism – for the Left. And Roberts and Goresuch signed on. Ginsberg must be smiling from ear to ear.
rcocean (fcc23e) — 6/15/2020 @ 7:30 pmI guess I’m confused by the people who say it should have been done legislatively. Title VII is part of the Civil rights act of 1964, which is a law passed by both the house and the Senate. It says you can’t discriminate based on sex, race, religion, nat. origin, etc. I would think it would apply to someone who says they have converted to being a Jedi Force worshiper and they are working on being a dual citizen of the US and Genovia, and you might think they are nuts and that Force worship is a made up religion and Genovia is a made up country, but I would still think you couldn’t discriminate against them because of that. Why wouldn’t it apply to a trans person, even if you think they are nuts and transgenderism isn’t a real thing?
Nic (896fdf) — 6/15/2020 @ 8:08 pmNo one cares about the law anymore, least of all the majority of the Supreme Court.
NJRob (4d595c) — 6/15/2020 @ 8:14 pmNic,
The argument is that transgenderism and sexual orientation were not included in the 1964 Act. That is the position of the three dissenting justices.
Rather than engaging in judicial gymnastics to reach the desired outcome, Congress can (and should, in my opinion) pass new legislation broadening the 1964 Act to include LGBT.
norcal (a5428a) — 6/15/2020 @ 8:17 pm“ Is it because if you do it through the courts nobody has to face the electorate? How is this a good thing?”
– Kevin M
Because discrimination can be eliminated even against the preferences of a bigoted electorate.
Leviticus (821684) — 6/15/2020 @ 8:19 pm@35 Take note of the people talking in this post. There are people discussing the law and legal viewpoint, and there are people discussing the perceived political ideology of the judges. They are not the same people.
Nic (896fdf) — 6/15/2020 @ 8:21 pmWhy wouldn’t it apply to a trans person, even if you think they are nuts and transgenderism isn’t a real thing?
Beats me. I have no idea what the difference between a religious belief and a chromosomal karyotype is. Whom should I ask? A priest or a doctor?
All I have say is that from now on, an employer better be careful what he says when the male employee’s date at the Christmas office party is an inflatable doll, or the female employee brings hers in her purse.
nk (1d9030) — 6/15/2020 @ 8:21 pm@36 Thank you for explaining.
It’s my viewpoint that Title VII does cover those issues. If an employer would not fire a woman for having sex with a man or a man for having sex with a woman, but would fire a woman for having sex with a woman or a man having sex with a man, then the central consideration of the decision to fire their employee is what sex they are. The same for transgenderism. If you wouldn’t fire Jordan the guy who stays a guy or Jordan the girl who stays a girl, but would fire Jordan who used to be a guy but is now a girl, then your central consideration in your decision to fire the person is their current sex/gender. So both of these situations would be covered by the law that already exists and there is no need to pass yet another law.
Nic (896fdf) — 6/15/2020 @ 8:27 pm“ When a dispatcher I knew became suspected of being homosexual — someone heard something about him, and the word spread like wildfire — the dispatch office was filled with comments and innuendo enough that it would have been easily declared a hostile workplace environment.”
– The Dana in Kentucky
Heaven forbid that our society craft a disincentive to such conduct.
Leviticus (821684) — 6/15/2020 @ 8:27 pmHeh! “If it doesn’t fit here, let’s see if it fits there.” The language of Title VII, I mean. What did you think I meant?
nk (1d9030) — 6/15/2020 @ 8:34 pm@39 “I have no idea what the difference between a religious belief and a chromosomal karyotype is.”
For some people their religion is just as much literally founded as gender is. I don’t know what the equivalent is for Greek orthodox, but a Charismatic Catholic can believe that a Hindu doing yoga is literally summoning the devil into their presence. However, that person cannot fire someone for being Hindu and doing stretches in the breakroom because of Title VII.
I do not personally care if someone wants to bring their fleshlight or vibe to the xmas party, but I’m not shaking hands.
Nic (896fdf) — 6/15/2020 @ 8:35 pmOh, well, I did say just yesterday that the world is changing and our rules for social interaction must change as well. If those changes includes five out of nine judges making the laws while 535 Congressmen and Senators are fundraising for their reelections ….
nk (1d9030) — 6/15/2020 @ 8:38 pm@40,
Transgenderism may not have been widely known in 1964, but homosexuality was. If Congress had intended the law to cover gay people, it would have specifically mentioned homosexuality.
I concur with Patterico in that Alito has the better of the argument. Especially this:
And in any event, our duty is to interpret statutory terms to “mean what they conveyed to reasonable people at the time they were written.”
Good ends cannot and should not justify judicial overreach.
norcal (a5428a) — 6/15/2020 @ 8:52 pmTransgenderism may not have been widely known in 1964,
It was, but they called it transvestism.
nk (1d9030) — 6/15/2020 @ 9:17 pm@45 Legit viewpoint.
I just don’t think they needed to based on the wording of the law, even if they weren’t thinking about that at the time.
Nic (896fdf) — 6/15/2020 @ 9:19 pm@47
I just don’t think they needed to based on the wording of the law, even if they weren’t thinking about that at the time.
I’m not sure what you mean. Could you clarify?
norcal (a5428a) — 6/15/2020 @ 9:24 pmI wonder how Gorsuch and Roberts will interpret “Congress shall make no law” when a case seeking to overturn New York Times v. Sullivan comes before them. You know, the case which applied the First Amendment in the Bill of Rights to state law defamation actions. They will be applying the same “textualism”, right?
nk (1d9030) — 6/15/2020 @ 9:24 pm@48 Well, I mentioned most of my reasoning above. But it’s basically that one of the things Title VII required was neutrality regarding sex in employer policy and if that was the law then you can’t fire a woman for something you wouldn’t fire a man for and vice versa, so you can’t fire a woman for having sex with a woman because you wouldn’t fire a man for having sex with a woman because that falls under the idea of neutrality regarding sex, which was what the “sex” part of Title VII was about.
Nic (896fdf) — 6/15/2020 @ 9:39 pmnk @49,
Don’t bet your last N-95 mask on it.
norcal (a5428a) — 6/15/2020 @ 9:41 pmGot it, Nic. Thank you.
norcal (a5428a) — 6/15/2020 @ 9:44 pm@52 No problem. IMO it’s good to understand someone else’s viewpoint, even if I don’t agree with theirs and they don’t agree with mine. 😛
Nic (896fdf) — 6/15/2020 @ 9:53 pmThe message here is that Trump is expected to be gone soon. They are blowing with the wind, and the prevailing wind is from Delaware.
Kevin M (ab1c11) — 6/15/2020 @ 10:27 pmWhy wouldn’t it apply to a trans person, even if you think they are nuts and transgenderism isn’t a real thing?
Because that was never the intent. You judge things by their meaning THEN, not their meaning NOW.
Example, if a general has the last name of Welfare, must he be promoted?
Kevin M (ab1c11) — 6/15/2020 @ 10:31 pmI really have no problem with a law mandating non-discrimination on the basis of sexual preference. But one that mandates the spectrum of behavior that is included under “transgenderism” is really a different question. A workplace may desire certain decorum, and may want to cater to particular customers. If “Hooters” has to hire transgender waitresses and this becomes a thing (or a target), there are other rights being trampled, too.
You though cake baking was the edge of the movement. Just watch. “There she is, Miss America…”
Kevin M (ab1c11) — 6/15/2020 @ 10:35 pm@55 The law says you can’t discriminate on the basis of sex. Employers have to have sex neutral policies. It doesn’t delineate “male” or “female” just sex. So IMO transgender people would fall into that category as well.
Nic (896fdf) — 6/15/2020 @ 10:49 pmHooters would have had to hire male waiters under the old law. In fact, Clinton’s EEOC sued them over it. Hooters won. I suppose a hot drag queen that could pass as a woman would make it harder than a moustached guy in shorts and a midriff top.
nk (1d9030) — 6/15/2020 @ 11:51 pmBut was that the intent when the law was written?
I don’t have a problem with the result of this decision but, to me, it is not textualism.
DRJ (15874d) — 6/16/2020 @ 2:50 amHere is another view that claims it is textualism but actually shows it is literalism.
DRJ (15874d) — 6/16/2020 @ 2:54 amI doubt this will be a big political issue. At this point, the workplace aspect of gender rights is a fairness issue more than a religious issue (except for hiring at religious schools).
DRJ (15874d) — 6/16/2020 @ 3:02 amNic (896fdf) — 6/15/2020 @ 8:27 pm
Between these race, color, national origin, sex, and religion, in 1964 and up until a couple of days ago, the first 4 were considered something you are and not something you do. It seems that would apply to people who physically transition but deciding now that it means who a person has sexual intercourse with is changing the definition. I’ve never filled out a form trying to collect my “sex” where it didn’t mean gender.
frosty (f27e97) — 6/16/2020 @ 4:26 amI’ve had blue color jobs, and I’ve worked in factories as a salaried employee.
I remember when being a woman meant you had to put up with sexism and abuse. I saw it. I was told about how certain teams in the plant didn’t used to allow blacks, but now they have to and they’re pissy about it. I think you’ve said you’re a retired plant manager. I’m sure you had to make some of these types of changes in the mills you ran. Companies were able to dial down sexism and racism, I’m sure they’ll be able to dial this down too.
FWIW one plant I was working at had a man transition. He was in his late 50’s and looked like a old white guy who spent his whole life doing factory work, except with long hair and too much badly applied makeup. The plant manager and the union made it known that hassling this guy about becoming a woman would be treated the same as racism or sexism and that corporate would back them up. It worked out OK.
This isn’t the end of the world.
Time123 (441f53) — 6/16/2020 @ 5:47 amTime123 (441f53) — 6/16/2020 @ 5:47 am
That isn’t the point and it’s why I think I leave the discussion of the policy to another time was added above.
I can agree that a person’s sexual choices shouldn’t be an issue in the work place and also think this is both the wrong way to fix that and a poorly reasoned decision. Poorly reasoned decisions are an issue all by themselves and some of them just might qualify as world ending.
frosty (f27e97) — 6/16/2020 @ 6:10 am@64, You’re right, I shouldn’t have responded to Dana from KY about the policy aspect.
Time123 (66d88c) — 6/16/2020 @ 6:23 amAs policy goes…anti-discrimination protection seems like the right position….though we can equivocate about whether society is as far along for transgenderism as it is for homosexuality. That said, the issue isn’t what policy is “best”, it is the process by which the law changes. Why have an Article V when all you have to do is win over 5 of 9? Why have to gain cloture and battle an entrenched Senate minority when there is little political blowback of going to a democratically-shielded Supreme Court? Yes, I understand the word game over “sex” and what interpretation is or isn’t swept up by its use in 1964….but the law should give predictability….and the predictability is ensured by applying “sex” as it was understood to all in 1964. If that yields a result that is “unfair” today, then that motivates states and Congress to act…..and if necessary…act together to change the Constitution. That’s the process: state laws, national laws, or Constitutional amendment. There’s no footnote that changes this for really, really good causes.
Unfortunately this is nothing new as it’s been going on for 80 years…..and now even the idea of seeking a constitutional amendment seems weirdly passe. I think it’s a sad development…and indicates a people that is too lazy to rule itself…..and seems ok with dabbling with demagogues, provided results are close enough. This is a bad decision…not because it is any worse than its ancestors….but because it sadly shows that five “conservative” appointments to the Court…really doesn’t change much….
AJ_Liberty (0f85ca) — 6/16/2020 @ 6:25 amGorsuch, is a great dissapointment, he was scalia’s hand picked replacement, it’s a stretch to apply oncale to this case, but the philosopher kings must philosophize away the foundations of the nations,
narciso (7404b5) — 6/16/2020 @ 6:37 amTime123 (66d88c) — 6/16/2020 @ 6:23 am
It’s hard to separate the policy from the case here. I think most people want workplace protections for LGBTQ. But this ruling does a good job highlighting the problem of reaching an outcome most people agree with via a method that is only going to cause more issues.
This is not how to run a railroad or a country.
In a more general sense, I’ve always thought there was a clear distinction between something done via legislation verses case law. My interpretation of a ruling is that the law always said this and any legal opinions otherwise were in error.
frosty (f27e97) — 6/16/2020 @ 6:51 amRe NorCal @45. Gorsuch calls that the “canon of donut holes”. Nice turn of phrase:
Next, the employers turn to Title VII’s list of protected characteristics—race, color, religion, sex, and national origin. Because homosexuality and transgender status can’t be found on that list and because they are conceptually distinct from sex, the employers reason, they are implicitly excluded from Title VII’s reach. Put another way, if Congress had wanted to address these matters in Title VII, it would have referenced them specifically. Cf. post, at 7–8 (ALITO, J., dissenting); post, at 13–15 (KAVANAUGH, J., dis- senting).
Walt (e2ffc8) — 6/16/2020 @ 7:11 amBut that much does not follow. We agree that homosexuality and transgender status are distinct concepts from sex. But, as we’ve seen, discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second. Nor is there any such thing as a “canon of donut holes,” in which Congress’s failure to speak directly to a specific case that falls within a more general statutory rule creates a tacit exception. Instead, when Congress chooses not to include any exceptions to a broad rule, courts apply the broad rule. And that is exactly how this Court has always approached Title VII. “Sexual harassment” is conceptually distinct from sex discrimination, but it can fall within Title VII’s sweep. Oncale, 523 U. S., at 79–80. Same with “motherhood discrimination.” See Phillips, 400 U. S., at 544. Would the employers have us reverse those cases on the theory that Congress could have spoken to those problems more specifically? Of course not. As enacted, Title VII prohibits all forms of discrimination because of sex, however they may manifest themselves or whatever other labels might attach to them.
Nic wrote:
“Transgenderism” is something which comes with real costs attached to it. If the ‘transition’ hasn’t been fully made, there are costs for the surgery, doubtlessly to be paid by the employer’s insurance, and time away from work for recovery. The ‘transgendered’ require hormone therapy for as long as they live, another cost to the employer’s insurance.
But there’s another, unquantifiable cost. If a transgendered person is in a customer accessible or contact position, and that person is obviously ‘transgendered,’ it can, and almost certainly will, lead to a loss of customers. It doesn’t matter how many laws you pass, customers have the right to discriminate, and some surely would.
The Dana in Kentucky (6a5316) — 6/16/2020 @ 7:39 amSome guy from Illinois wrote:
There you go again, trying to apply common sense to the law. If we applied common sense to the law, we’d never have seen much of the mischief which has been foisted upon us by the courts.
The Dana in Kentucky (6a5316) — 6/16/2020 @ 7:42 amMr 123 wrote:
Actually, I never did: concrete plants tend to have one kind of employee: they are all sarcastic and aggressive, because if you aren’t, you’ll never make it on the job. The race issue, if it was an issue, was handled before I got there: since many mixer drivers are black, there was never an issue of white guys picking on a black driver for being black; he had too many buddies with him.
Sexism is a different thing, because there are very few female mixer drivers, though I have worked with a couple of them. Female drivers have to be able to handle all male construction crews, crews which are not controlled by the concrete company, so they’re tough and know how to handle things.
It was 1989, July, and hotter than the hinges of Hell at the plant. Jane had a wet load, meaning the concrete on her truck was a bit too wet for the job. I told her to pull her truck over to the warehouse shed, and I’d throw five 94 lb bags of cement into the load, to tighten it up just a touch. I put a bag of cement over my shoulder, and climbed up the ladder to her 10 yd³ CMC paving mixer, which was an absolute beast, and the ladder actually leaned a bit backward. I cut the bag and dumped the cement in. When I came down the ladder, there was Jane, with a 94 lb bag over her shoulder, and she went right up, about as easily as I did, and added the cement. I did three bags, and she only two, but that was only because it was an odd number, and I went first! And Jane was no horse; she was quite the babe!
The Dana in Kentucky (6a5316) — 6/16/2020 @ 7:56 amBad understanding of the facts.
Time123 (66d88c) — 6/16/2020 @ 8:14 amhttps://reason.com/2020/06/15/clarence-thomas-upbraids-scotus-for-prolonging-our-decade-long-failure-to-protect-the-second-amendment/
Why is the Court willing to create “rights” yet ignores existing ones?
NJRob (4d595c) — 6/16/2020 @ 8:16 am@71, Good story. (I meant that, i’m not trying to be sarcastic)
Time123 (66d88c) — 6/16/2020 @ 8:16 amMan I’m so tired of all this winning.
Time123 (66d88c) — 6/16/2020 @ 8:17 amMarry a girl like that for the farm, you’d spare yourself a hired hand and a team of mules. — Humboldt Mountains saying
nk (1d9030) — 6/16/2020 @ 8:18 amThat referred to Jane, the cement truck driver, in Comment 71.
nk (1d9030) — 6/16/2020 @ 8:19 ambecause one must ‘grow in office’ and one has to pick the clerks from a rotten barrel, I fear they’ll be arming bears, like in the golden compass,
narciso (7404b5) — 6/16/2020 @ 8:34 amErick Erickson said something interesting about the Gorsuch decision.
Paul Montagu (d27749) — 6/16/2020 @ 9:17 am@69 That’s the case no matter who you’ve put at the front desk. If you put an African-American up there, you might have racists go elsewhere, but you still can’t discriminate against your employee for race.
Nic (896fdf) — 6/16/2020 @ 12:09 pmConservative Christians See ‘Seismic Implications’ in Supreme Court Ruling
…..
Many faith-based organizations, like schools or nonprofits, do not allow L.G.B.T. people to work there, citing religious beliefs that sex should only be between a man and a woman who are married.
“No question it is going to make it harder to defend our religious freedom, as far as an organization being able to hire people of like mind,” said Franklin Graham, who leads Samaritan’s Purse, a large evangelical relief group.
“I find this to be a very sad day,” he said. “I don’t know how this is going to protect us.”
……
For religious conservatives, the ruling was especially pointed because it came from a bench that leans conservative, and because Justice Neil M. Gorsuch, whom they had championed as a hero for other causes like abortion, wrote for the majority. Unlike the 2015 Supreme Court decision that legalized same-sex marriage nationwide during the Obama administration, this ruling came from their allies.
In his opinion, Justice Gorsuch recognized the existence of several religious freedom protections, including the First Amendment, the Religious Freedom Restoration Act of 1993 and a 2012 Supreme Court ruling that recognized a “ministerial exception” in employment discrimination laws.
But he signaled that Monday’s decision could lead to a fight over the validity over those protections. “How these doctrines protecting religious liberty interact with Title VII are questions for future cases too,” he wrote.
RipMurdock (d2a2a8) — 6/16/2020 @ 1:13 pm…..
For me, this all boils down to one’s view of the role of the Supreme Court. Should the law be interpreted based on the intent of the legislators at the time, or should judges be able to tease out new penumbras to achieve a desired outcome? If the former, then this decision is wrong.
I say the proper role of the justices is to defer to the original intent, and let Congress pass laws to address any deficiencies. You know, judicial restraint. Otherwise, there is too much opportunity for mischief, i.e., activist judges pursuing their own agendas, whether left or right.
How refreshing it would be to see people in government exercise restraint, and respect the role and process of the other branches, even if it takes longer to achieve a good end.
norcal (a5428a) — 6/16/2020 @ 5:04 pmArticle III, Section 1:
Judges! Not a word about Justices!
nk (1d9030) — 6/16/2020 @ 5:19 pmAnd, supreme wasn’t even capitalized! 🙂
norcal (a5428a) — 6/16/2020 @ 5:23 pmwhich shall not be diminished during their Continuance in Office
What if there’s inflation?
norcal (a5428a) — 6/16/2020 @ 5:25 pmConservative Christians See ‘Seismic Implications’ in Supreme Court Ruling
Hell, these nutbags see communism behind water fluoridation and carbon dating as code for interracial courtships.
DCSCA (797bc0) — 6/16/2020 @ 5:26 pmcommunism behind water fluoridation
I always wondered why Russians have such good teeth.
norcal (a5428a) — 6/16/2020 @ 5:30 pmcarbon dating as code for interracial courtships.
Snorfle!
nk (1d9030) — 6/16/2020 @ 5:30 pmIs it anything like “[have sex with] a woodpile on the chance there was a snake in it”?
nk (1d9030) — 6/16/2020 @ 5:34 pmWhy Scalia should have loved the Supreme Court’s Title VII decision
The 6-to-3 Supreme Court decision on Monday in Bostock v. Clayton County, which applied Title VII of the Civil Rights Act of 1964 to gay and transgender workers, represents far more than a landmark civil rights precedent. It represents a victory for textualism in the interpretation of statutes. And it effectively inters, perhaps once and for all, a 128-year-old decision that illustrates exactly how laws should not be construed.
The misbegotten 1892 case was Church of the Holy Trinity v. United States…….
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…….[T]he court not only ruled for the church, but also established a general principle of interpretation: “A thing may be within the letter of the statute and yet not within the statute, because not within its spirit nor within the intention of its makers.”
…….
……. Just as Congress broadly prohibited hiring foreigners in 1885, so, too, it broadly prohibited sex discrimination in 1964. And just as it was inconceivable that Congress had meant to bar the hiring of Christian pastors, so, too, it was absurd to think that, 56 years ago, Congress wanted to protect gays, lesbians and transgender people.
But just look at what Congress wrote. Title VII makes it “unlawful” for an employer “to fail or refuse to hire or to discharge … or otherwise to discriminate against any individual … because of such individual’s … sex.” Categorical words. No relevant exceptions — none, in particular, for sexual orientation.
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……. Gorsuch writes, “The employer intentionally singles out an employee to fire based in part on the employee’s sex,” period — and like it or not, by the plain terms of the statute, that’s not allowed.
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For his part, Justice Brett M. Kavanaugh said “it was Congress’s role, not this Court’s, to amend Title VII.” But his separation-of-powers argument actually cuts the other way. Congress has already commanded courts to apply the prohibition on sex discrimination — without exception. In a 1987 dissent, Scalia made a similar point when he railed against the court’s earlier invocation of Holy Trinity to create, for affirmative-action programs, an exception to Title VII’s broad prohibition against racial discrimination.
All of this illustrates one of Scalia’s main assertions about textualism: that “a textualist reading will sometimes produce ‘conservative’ outcomes, sometimes ‘liberal’ ones.” It’s a “slander,” he wrote, to call textualism “a device calculated to produce socially or politically conservative outcomes.”
Rip Murdock (a217ed) — 6/17/2020 @ 7:40 am………