U.S. Supreme Court endorses gay, transgender worker protections
reuters.com
reuters.com
Titles like these make people think that the Supreme Court is “endorsing” or “rejecting” gay and transgender worker protections. But the difference between the majority and minority here wasn’t about “should we have a law protecting gay and transgender workers from employment discrimination?” It was “do we already have a law protecting gay and transgender workers from employment discrimination.” The majority, in an opinion authored by Justice Gorsuch—a dedicated textualist—said that such discrimination violates the 1964 Civil Rights Act’s prohibition on discrimination “because of sex.” I happen to agree, being in the camp that believes “the law says what it says, not want Congress wanted it to mean.” But it’s important to understand that the upshot of this decision is that “Congress, in 1964, already prohibited employment discrimination against gay and transgender people.” That’s a pretty remarkable outcome!
In one of the appellate decisions leading up to this, Judge Lynch of the Second Circuit dissented, agreeing with the positions that Alito, Kavanaugh, and Thomas would take, that Title VII does not protect gay and transgender workers. He’s an Obama appointee, born in Brooklyn. His take: https://www.nytimes.com/2020/06/15/us/gay-transgender-worker...
> “Speaking solely as a citizen,” he wrote, “I would be delighted to awake one morning and learn that Congress had just passed legislation adding sexual orientation to the list of grounds of employment discrimination prohibited under Title VII of the Civil Rights Act of 1964. I am confident that one day — and I hope that day comes soon — I will have that pleasure.”
> “I would be equally pleased to awake to learn that Congress had secretly passed such legislation more than a half-century ago — until I actually woke up and realized that I must have been still asleep and dreaming,” Judge Lynch wrote. “Because we all know that Congress did no such thing.”
Curious, historically what typically has stronger lasting power — a Supreme Court ruling or a law enacted by Congress? I feel like it would be the Supreme Court because the personnel churns more slowly, but there’s probably data on this.
It's different if the opinion were based on Constitutional grounds. Congress can rewrite laws they've passed as they see fit, potentially rendering Supreme Court rulings based on them moot in the process. They don't have the luxury of rewriting the Constitution though, so Court rulings based on Constitutional law have significantly more lasting power. Once the precedence of that opinion is set, the freedom of Congress to do what they want in that area becomes heavily constrained. They can still pass laws that contradict that opinion, but will likely end up with a fast track in front of the Supreme Court having to convince the Court on why their law shouldn't be stricken down as unconstitutional based on that prior precedence.
[1] Title VII of the Civil Rights Act of 1964
Could you expand on this a bit? I'm genuinely asking. The article sums up the contention pretty well:
> The legal fight focused on the definition of “sex” in Title VII. The plaintiffs, along with civil rights groups and many large companies, had argued that discriminating against gay and transgender workers was inherently based on their sex and consequently was illegal.
At first glance, I think I agree with Judge Lynch. Its great that these protections extend to more people, but I think the argument is tenuous. A gay man and a straight man have the same sex, so discrimination against the gay man is not really based on sex, but on sexual orientation.
And, as I understand it, the difference between sex and gender is very important to transgender people. Biological sex != the gender you identify as, that's why we say trans_gender_ and not trans_sex_ . How does a MTF trans person who has not undergone surgery / hormone treatment / sex change answer if asked what her sex is? Again, genuine question.
I guess this is a "spirit of the law" situation, where "sex" doesn't just mean "sex", but all sex /gender/orientation/ groupings of people.
Personally, I think it would have been ideal to amend the law and explicitly add gay / transgender people as a protected class. This avoids the possibility of another case in a few years overturning this one. But the current congress would never write such a law.
'defen seems to summarize the crux correctly. "Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague."
Still a step forward, though.
In view of that precedent, Title VII can be seen to prohibit sexual orientation and sex discrimination. You can’t fire a man for failing to conform to the male norm of dating women. You likewise can’t fire someone whose sex is male, but whose gender identity is female (i.e. she does not conform to the gender expression expected of biological men).
“By discriminating against homosexuals, the employer intentionally penalizes men for being attracted to men and women for being attracted to women"
Basically, if a particular gay man wasn't a man then he wouldn't have been penalized, so it follows that the discrimination is tied to his sex.
However, if I am reading Gorsuch's argument correctly, firing or not hiring someone for solely sexual orientation would be legal. A company could have a policy that says "we only hire people attracted to women." If someone comes out as as attracted to men, they could be fired. As long as the company consistently applies said policy to men and women, it doesnt appear to run afoul of this ruling.
It really boils down to whether sexual preference is viewed as "being attracted to the other or the same" or "being attracted to men or women." The former uses the sex of a person to discriminate, while the latter does not.
Suppose (per your comment) a company indeed had a policy that says "we only hire people attracted to women". Given the current sexual orientation distribution in the world, such a policy would result in a disparate impact in which the vast majority of people that qualify would be men, and not women. This creates a disparate impact on the basis of sex.
All that being said, I'm pretty sure there is no locality on the planet where half the population is LGBTQ (not sure where you found that Palm Springs claim). As of 2015, the metropolitan area with the highest rate of LGBTQ residents was San Francisco, at 6.2% [1].
[1] https://www.nytimes.com/2015/03/21/upshot/the-metro-areas-wi...
http://web.archive.org/web/20181205015304/https://williamsin...
There already exists state laws that explicitly outlaw discrimination on the basis of sexual preference / gender identity, California being one of them [1].
Per the map, this ruling really only affects a subset of states where the disparate impact of your hypothetical law would be pretty clear cut, regardless of scope.
“Sexual orientation” is just the combination of your sex with the sex to which you are attracted. (And, of course, that's not the issue with transgender discrimination, anyway.) But, both sexual orientation discrimination (because sexual orientation is your sex + the sex of your preferred partner) and transgender discrimination (your sex plus you gender identity) are clearly discrimination based on sex:
A woman who is attracted to women is given adverse employment treatment not given to a woman who is attracted to men.
A man who is attracted to men is given adverse employment treatment not given to a man who is attracted to women.
A biological male who identifies with (or expresses stereotypical traits of) the feminine gender is given adverse employment consequences not given to a biological female who identifies with (or exhibits stereotypical traits of) the feminine gender.
A biological female who identifies with (or expresses stereotypical traits of) the masculine gender is given adverse employment consequences not given to a biological male who identifies with (or exhibits stereotypical traits of) the masculine gender.
In all four cases, the difference on which adverse treatment is conditioned is the target’s sex, QED, each practice is sex discrimination.
Hiding behind a word other than sex which means “the relation between the target’s sex and some other factor” doesn't change that the differentiating factor is sex.
We only really need it to determine whether we're compatible with other people anyways: I like A + you are A + you like B + I am B = compatible. (Where A and B might be different or equal)
Ideally we'd live in a world where even that doesn't matter and everyone just chooses partners based on whether they enjoy that person's company etc. but I feel like that world is much further into the future :)
As one of the dissents pointed out, when the liberal wing of the Supreme Court just happens (time and again) to interpret a statute in a way that advances liberal ideological objectives, and the conservative wing just happens (time and again) to interpret a statute in a way that advances conservative ideological objectives, it is not unreasonable for the general public to assume that the Court is indeed endorsing or rejecting based on ideology, rather than interpreting the law.
Here's an interesting analysis of how and when ideology comes into play:
https://insight.kellogg.northwestern.edu/article/supreme-cou...
That's what makes this decision such a welcome surprise to me. Maybe textualism isn't a lie.
In fact, if you look at all of Roberts' opinions on social issues, outside of maybe abortion stuff, it's a little surprising that Roberts did not join in with Obergefell. Given that he _did_ dissent from Obergefell, it's also a little surprising he didn't dissent in Bostock. His rationale in Obergefell was that regardless of what he would like the law to say, he did not find that it said what the majority wanted it to say. That's essentially what Kavanaugh said in his dissent today. And to the extent that both cases could be characterized as determining that a right has been hidden in plain sight this whole time, I'm not really sure why Roberts went one way with Obergefell and the other way with Bostock.
In a society, those are the only issues that actually matter.
Only if your definition of "society" ignores individuals and says that only society itself matters. Lots of individuals (including me) strongly disagree with that.
Yours appears to since you say only social issues matter. You are ignoring that individuals have issues, and those issues matter too, because society has to respect individual rights, and that includes the individual right to resolve individual issues without micromanagement based on some busybody's beliefs about "social issues".
That hasn't been true since the 1960s when the bulk of our Civil Rights legislation was passed. The prior legal regime already supported individual rights for all people; "Civil Rights" was about putting the health of society ahead of those individual rights. Actual 1st Amendment rights like "Freedom of Association" were severely curtailed by Civil Rights legislation; indeed, that was the entire point.
Now, I probably agree with you about respecting individual rights. I would have liked (as far as I can tell, having not lived through it) the pre-Civil Rights legal regime because I'm a White, straight male. The culture back then was designed to work well for someone like me (and according to all historical evidence, it did).
But that's no longer the culture in the US, and we're coming up on 60 years now since the rules were changed. I'm not sure what you want me to do about it, assuming I even could change things today (or would want to).
(When I think of actual "small c conservatives", someone like G. K. Chesterton is what immediately comes to mind…)
I don't think liberals are actually setting the social fabric on fire to enable individualism over, in the case of your example, socializing children in the community's religion. I think liberals simply want to socialize the children in their own ideology instead of that of their parents. That's one of the things compulsory public schooling is for, in the words of the very people who put that system in place.
That's an interesting way of framing necessary change.
I'm not interested in diminishing the capacity of people to celebrate their beliefs, but yes indeed, we separate church and state because it's in the best interest of society in general. I guess that's very western of me to say, but I'm more than glad to defend it in the context of many past examples of religious institutions abusing public goods in order to discriminate.
Civil Rights legislation does not override the Constitution or the Bill of Rights.
I think you have a very idiosyncratic (and wrong) view of how law in the US works.
And yet today, the Supreme Court literally did the thing you think it should not do. Doesn't that give you at least a moment's pause that maybe the law no longer operates the way you think it does in the US?
If you mean I think the Supreme Court enacted a policy, which I have said (in another subthread) should be done by Congress, not the Court, yes, that's true.
But the Court itself says it is not enacting policy. It claims to simply "say what the law is", based on the power granted to it by the Constitution plus a long history of prior Court decisions, starting with Marbury v. Madison (from which the phrase I just used is taken). I think the Court's claim that it is not enacting policy is wrong, but that's just my personal opinion. The law is that enacting policies is the job of Congress, not the Court, and the Court claims to be following this law and leaving legislation to Congress. Certainly the Court is not claiming that the Civil Rights law of 1964 overrides the Constitution, or gives the Court some sort of power to enact policies that is not granted by the Constitution. Nor is anyone else except you, so far as I can see.
To use a coding analogy, it's as if you're telling me what a piece of code does by reading the comments. I'm reading the actual code, and telling you that the comments next to it are out-of-date—they no longer describe the code. To prove that the code does what I say it does, I'm running it (c.f. today's Supreme Court decision) and showing you the results. Yet you are not convinced.
That the Supreme Court creates policy today that Congress cannot is obvious to everyone on both the left and right. The left is overjoyed at the increase in protections for disadvantaged people, the right dismayed that the left isn't using the "right" process to get those protections. The documentation (Constitution) says the Supreme Court shouldn't be making these policies…but when we run the code, like today, that's what happens. The code doesn't match the comments.
It would be great if the comments matched the code, but that's not reality today—and hasn't been for at least the last 70 years. Many (most?) people are okay with this apparent contradiction, so long as good as being done, but it appears to bother you (and most people on the right).
I 100% agree that in a perfect world, the Constitution should be updated if the courts are going to make these kinds of policies, but I also think that's extremely unlikely since Congress has zero interest in doing so, and Civil Rights legislation is so broad that there's no need anyway: the courts can just say, like they did today, that it's actually Congress who made this policy (even though everyone knows Congress did no such thing). Since apparently muttering the correct words is sufficient to satisfy people on the right, despite all evidence to the contrary, why change things?
Hm, interesting analogy. I see your point, but I think I would put it a bit differently. See below.
> apparently muttering the correct words is sufficient to satisfy people on the right, why change things?
Where did I say I was satisfied? (Assuming for the sake of argument that I am "on the right", which I actually don't think is true, but that's an argument for another time.) I'm not satisfied. I think that achieving a short-term policy goal, even a good one, by means not allowed by the plain language of the Constitution is bad long-term policy. The fact that sophistry is used to make it appear that the means of achieving the short-term policy goal are in fact in accordance with the Constitution does not make the means actually correct.
In other words, in my view, what the Court has done here is not upholding the rule of law. Saying that "well, the law is whatever the Court says it is" does not make it true. If, as you say, everyone knows quite well that the Civil Rights Act of 1964 did not actually outlaw discrimination because of sexual orientation or transgender, then the Court saying that it actually did is not the rule of law. It's just an arbitrary exercise of power. Arbitrary exercises of power do not change the law. They just mean the government is operating outside the law.
To frame this using your coding analogy, we don't have comments getting out of sync with code, we have two different pieces of code getting out of sync with each other. The code the government is running that it labels "law" is not the same as the code that citizens are running that tells them what the law actually is and whether or not the government is actually upholding it. The code the citizens are running might be based on their reading of "comments" like the Constitution, but that just underscores the fact that those "comments" aren't really just comments--they have actual effects in the world, like giving citizens a basis for making their own judgments about what the law is that they are supposed to be following. If the government gets out of sync with that, that's a problem.
I get what you're saying and agree, actually. That said, it's pretty clear to me that whatever code that you're thinking of isn't running anywhere but in the minds of (mostly White) voters. It's almost completely absent from all forms of government except, perhaps, local governments in rural areas. Trump occasionally makes gestures in that direction but takes no action, as far as I can tell.
The people in power everywhere are running the piece of code that produced today's Supreme Court decision, and are overjoyed with the results.
A more interesting question is, why do we have two separate codes that are out of sync? And what should we do about it (if anything)? But that's too big of a topic for the HN comment section.
Thanks for the back and forth, I appreciate it. :)
This might well be true; if it is, it's a sad commentary on our body politic that so many people have lost touch with what the rule of law is supposed to mean. Civilizations where that has happened in the past have not ended well.
> Thanks for the back and forth, I appreciate it. :)
Likewise! :-)
The 1st Amendment does not protect some vague right to "freedom of association". It protects "the right of the people peaceably to assemble, and to petition the Government for a redress of grievances". Which is exactly the right that the protesters of the 1960s whose actions helped to get the Civil Rights laws passed were exercising. To say that those same Civil Rights laws "severely curtailed" those same rights is ridiculous. They did no such thing.
Finally, we agree!
I personally would say the 9th and 10th Amendments are more to the point, since they talk about rights not specifically mentioned.
The notion that the Supreme Court is an ideological legislative body is propaganda meant to subvert the integrity of the court.
Some of the most liberally-hated conservative judges, just voted FOR LGBT rights here, because it's they believe it's what the law implies - not because it's what they believe is ethical.
In fact, none of the dissenting opinions said that LGBT people don't deserve the same protections - they simply believed that it's congress's job to make those changes - and that's a hard point to argue honestly.
Sowing partisanship by demonizing the people you disagree with, whilst also undermining the institutions our government is based on is... a really shitty thing to do.
I think you answer your own objection right there. Conservatives don't conserve anything, it's liberalism with a speed limit. The United States doesn't have any party that is interested in conserving anything cultural or legal, anywhere. Which is great for Democrats (like myself).
(There are many conservative voters in both parties, of course, and they would absolutely disagree with this latest ruling. But that's not the same as those voters having a party—there are literally no "conservative" elites in position of power in the Democrat or Republican parties, or anywhere else for that matter. We're effectively at year zero.)
> not because it's what they believe
No, they believe it. The courts are by far the fastest and best means of enacting liberal reforms today. Voters cannot be relied upon to enact these kinds of changes themselves (quite the opposite, in fact—they consistently vote against them). Civil rights legal principles always trump any other law or principle, which is why it's the sole justification for all of these landmark cultural rulings. The Anglo-Saxon legal tradition is as out-of-date with culture today as a statue of George Washington or Thomas Jefferson.
After the courts, we have to rely primarily on finance (private corporations) to push change; Goldman Sachs and assorted hedge funds are incredibly powerful allies in the long march towards progress.
I find it rather grimly ironic that a political party that calls itself "Democratic" endorses explicitly non democratic means for making reforms, on the grounds that, in your own words, "Voters cannot be relied upon to enact these kinds of changes themselves".
The part where judges make political decisions that are supposed to be made by voters and their elected representatives. The fact that some busybody believes that voters "can't be relied on" to enact particular policies that the busybody favors does not justify getting those policies enacted by judges instead. Judges are not supposed to enact policies. They are supposed to say what the law is, not what someone believes it ought to be.
I think that was true at the country's founding, but is no longer true today. The entire purpose of Civil Rights legislation was to enable the courts to "enact policies", which they have done continuously since. They are literally doing what Congress asked them to do.
If you don't like Civil Rights legislation, fine. But don't blame the courts for using it as the basis to do what Congress has clearly empowered them to do.
Congress cannot change the structure of the government by passing a law. The Constitution makes enacting policies the job of Congress (and the President, for either signing or vetoing bills passed by Congress), not the Supreme Court. If we want the Supreme Court to be able to enact policies, we would need to amend the Constitution.
As I said in another comment upthread, I think you have a highly idiosyncratic (and wrong) view of how law in the US works.
The “busy bodies” are the people who want to deny employment to people just because who they share a bed with.
As a matter of law I would have preferred that political decisions about public schools were made by legislatures, not judges, as they are supposed to be. The idea that the purpose of government is to get our favored policies in place, by hook or by crook, is going to be the death of our republic sooner or later. The government is supposed to uphold the rule of law, and the law of the land in the US, the Constitution, does not give judges the power to make political decisions.
As a matter of policy, I would have preferred that the whole public school system in the US have either not been developed at all, or developed along very different lines. The people who put the US public school system in place were quite explicit that their purpose was to indoctrinate children. I think the government has no business indoctrinating children. But that policy question is way past any hope of repair.
I wonder if you would have had the same preference if you had had to send your kids to separate schools, drink from separate water fountains, give up your seat on a bus for someone who was the right color or be forbidden to marry the person you love because they were a different color?
Would you also be in favor of a national religion if the majority passed such a law?
A republic that legalizes discrimination deserves to die.
Regarding having to send kids to separate schools, I've already given my opinion on the US public school system in general. Given how messed up I think that whole system is, having to send kids to segregated schools instead of integrated ones would rank pretty low on my list of things to complain about. I'd be far more worried about how the school was trying to indoctrinate kids than what the demographics of the student body were.
I can see the obvious equal protection argument for requiring public schools not to be segregated, which of course was basically the argument the Court used when it said "separate is inherently unequal". (Similar arguments could of course be made, and were made, for the other cases you describe.) However, if we are going to talk about equal protection, I would think having equal quality of schools available to all would be the chief requirement to impose on the government if the government is going to provide public schools at all. And even if we grant that having the demographics of the student body be representative of the community is one aspect of school quality, it certainly is not the only one or even the primary one; surely what the students are actually being taught in the classroom should count, and count for more. If all the inner city integrated schools are bad and all the suburban integrated schools are good, that's not equal protection even if the demographics of the student bodies in both cases are the same.
Once we get into considerations like that, it should be obvious that we are talking about political policy decisions that have to be made legislatively, since they involve public funds, and are fraught with difficulty even then. Nobody knows how to ensure good quality schools everywhere, or even what "good quality" really amounts to or how to judge it. Having courts try to dictate policy in this area is not likely to be helpful. And in fact, the Supreme Court in Missouri v. Jenkins explicitly ruled that courts cannot dictate policy in this area; Brown vs. Board of Education only outlaws de jure segregation, not de facto inequalities in school funding and quality that impact different races differently. In other words, the only thing the Court found itself able to enforce was the thing that, judging by how our public schools have fared since Brown was decided, has by far the least impact on the actual quality of education that public school students receive.
This is what happens when courts try to make policy: you get a symbolic victory without the substance. I think most people, if they thought about it, would prefer the substance; but the only way to get that in a democracy is by doing the hard work of changing how citizens are willing to vote.
You really don’t know much about how bad that whole “separate but equal” thing worked out in practice? I bet a years salary that your parents never told you how bad Jim Crow laws were for minorities. Nor did they have to grow up under them.
This is what happens when courts try to make policy: you get a symbolic victory without the substance. I think most people, if they thought about it, would prefer the substance; but the only way to get that in a democracy is by doing the hard work of changing how citizens are willing to vote.
It’s easy to argue theory when you aren’t personally effected. No matter how much money I made, I wouldn’t have been allowed to buy a house in the area that I now live because of racial covenants 50 years ago. I wouldn’t have been able to move into the “good neighborhoods” where I could send my son to the “good schools”.
Sorry, I’m not fond with waiting for the “democratic process” and beg racists (speaking hypothetically if the court hadn’t overturned the laws) to vote to outlaw Jim Crow laws.
I never said "separate but equal" wasn't bad. Remember I said that I think the whole US public school system should either not have existed at all, or should have developed along very different lines.
> I’m not fond with waiting for the “democratic process”
Then you don't want to live in a democracy. Democracy means that you change the law using the democratic process, and that all the people, even the ones whose views you abhor, have a voice in that process.
If people who take your view would admit straight up that they don't want democracy and want to abolish our democratic form of government and replace it with something that better suits them, that would be one thing. But, as I pointed out upthread, the very same people call themselves "Democrats" and say democracy is wonderful and argue that everything they are doing is perfectly consistent with the form of government we are supposed to have according to our Constitution and laws. What they mean is that democracy is wonderful as long as it does what they want, and the Constitution and laws can be set aside whenever necessary in order to achieve their policy objectives. That's not democracy, and it's not the rule of law. It's just arbitrary exercise of power according to personal opinion.
I have a strange feeling you wouldn’t feel the same way if the Democratic process infringed on your liberties.
Do you agree that I shouldn’t have been able to buy a house in a certain neighborhood because the “Democratic process” allowed racial covenants? Or that my son shouldn’t have been able to go to the school that he was zone to and instead wait on people to decide that it was okay with them even though I was paying taxes too?
What kind of society you want to live in is up to you. Just don't pretend that you want to live in the kind of society that our Constitution and laws describe, if you actually don't.
> I have a strange feeling you wouldn’t feel the same way if the Democratic process infringed on your liberties.
According to our Constitution and laws, it can't. The fact that it often does is a sign that our so-called "Democratic process" is actually not respecting our Constitution and laws, but is instead based on arbitrary exercises of power. Adding more arbitrary exercises of power to the mix does not help fix that problem.
> Do you agree that I shouldn’t have been able to buy a house in a certain neighborhood because the “Democratic process” allowed racial covenants?
Do you think such covenants are allowed by the Constitution and the Bill of Rights?
> Or that my son shouldn’t have been able to go to the school that he was zone to and instead wait on people to decide that it was okay with them even though I was paying taxes too?
Do you think that policy is consistent with the Constitution and the Bill of Rights?
If your answer is that you just accept whatever the "activist judges" think as a corrective to what the "democratically elected representatives" think, then you are just as much at the mercy of what the "activist judges" believe as a black person in the Jim Crow South was at the mercy of what the "democratically elected representatives" believed. The "activist judges" did something you agree with this time, but they could just as well do something you disagree with, or that prevents you from doing something you want to do or takes away something you think you have a right to, next time.
I view the legal process like arguing with your spouse. Every win has a cost. Every victory for individual self determination achieved through litigation chips away at the right of collective self determination, and that’s not cost free.
In this case at hand. Do you think someone should end up dying because they can’t get healthcare because of prejudice against the trans community?
It’s a rare moment when people can agree on what’s happening while disagreeing on whether it’s good or bad. This is exactly the criticism conservatives have about the Court.
We have had a “conservative” majority Supreme Court for almost 50 years, and on social issues we have gone at more or less the same pace as Western Europe. (I would like to think that conservatives had a hand in filtering out a bunch of dead ends they liberals otherwise would have led us down.) For example, same-sex marriage:
> In 2001, the Netherlands[b] became the first country to establish same-sex marriage by law.[124] Since then same-sex marriage has also been established by law in Belgium (2003), Spain (2005), Canada (2005), South Africa (2006), Norway (2009), Sweden (2009), Portugal (2010), Iceland (2010), Argentina (2010), Denmark (2012), Brazil (2013), France (2013), Uruguay (2013), New Zealand[c] (2013), Luxembourg (2015), the United States[e] (2015), Ireland (2015), Colombia (2016), Finland (2017), Malta (2017), Germany (2017), Australia (2017), Austria (2019), Taiwan (2019), Ecuador (2019), the United Kingdom[d] (2020), and Costa Rica (2020). In Mexico, same-sex marriage is performed in several states and recognized in all thirty-one states.
Invalidated by the fact that 2 of 9 justices broke ranks in this one particular case? The fact that there are so-called liberal/conservative blocs away from which the justices occasionally break means that yes, there is a common perception that the justices allow their ideological biases to influence their opinions.
> Last year, the House of Representatives passed a bill that would amend Title VII by defining sex discrimination to include both “sexual orientation” and “gender identity,” H. R. 5, 116th Cong., 1st Sess. (2019), but the bill has stalled in the Senate. An alternative bill, H. R. 5331, 116th Cong., 1st Sess. (2019), would add similar prohibitions but contains provisions to protect religious liberty.3 This bill remains before a House Subcommittee.
> Because no such amendment of Title VII has been enacted in accordance with the requirements in the Constitution (passage in both Houses and presentment to the President, Art. I, §7, cl. 2), Title VII’s prohibition of discrimination because of “sex” still means what it has always meant.
Unless I'm missing something, I can't see how this principle can be consistently applied since there are so many laws that have been passed, that may not pass if the current iteration of the Legislative branch were to vote on it, eg. First & Second Amendments (as is), New Deal, etc. It seems like a more roundabout way of saying that the US has strong status quo biases baked into its system, but that's about it. IANAL, so shrug.
EDIT: I'm not sure why this is getting downvoted, I'm making an argument affirming the majority decision and attacking the logic of the dissenting opinion.
A policy opportunist would try to simultaneously appeal a law through the appellate court system while also trying to circumvent that process through the legislature. If the appeal were to eventually pass judicial review before Congress were to finally enact the clarification of the law itself, does that render the judicial opinion inaccurate?
Put another way: if Congress had tried (and failed) to pass a law that clarifies the interpretation of the First Amendment per Citizens United before the Citizens United decision happened, does that make CU any less "correct"?
That argument has its limitations as legislation is often drafted intended to further clarify stuff which already exists (e.g. the Seventh Amendment affirmed a right to trial by jury already mentioned in the original constitution) but it's using the fact some legislators think the Bill is necessary to pass rather than the assumption some object to it to justify his interpretation of the existing law. Ultimately constitutional law is always the status quo, plus things the legislature or sometimes the judiciary are willing and able to follow the procedures to change, and not just in the United States)
A while back I listened to a podcast called 'First Mondays', that was very insightful. It not longer airs.
What resources do you use to follow SCOTUS? other than reading the decisions.
If someone wants to suggest a better (more accurate and neutral) title that fits in 80 chars, we can change it above. We can't use the phrase "gay, transgender employment discrimination", though, because someone will complain that it's an ambiguous noun phrase.
Back in the Lockner era, textualists did nothing but legislate from the bench. Which lead to the switch in time to save nine.
The dissenters basically believe that “race, color, religion, sex, or national origin.” doesn't include "sexual orientation" or "gender identity" so legislation would need to be passed to change that.
Wouldn't it be more effective for the law to say that any discrimination that doesn't affect a person's ability to perform the job is not allowed?
When you start itemizing specific traits it's a never-ending list. For example, the list quoted doesn't include eye color or hair color, or spoken language dialect, or ...
EDIT: Here's a very recent one: https://www.msn.com/en-us/news/us/supreme-court-justice-s-co...
Take constitutional challenge to Obamacare for example. I assume they had to point to someone specific and say "this law violates that person's rights", but they absolutely "considered" and "responded to" the hypothetical in that case.
More effective? No. You'd have endless lawsuits debating what traits do or do not affect a person's ability to perform.
Seems like we could refactor the law to just state this: You can only discriminate on bona fide qualifications.
https://www.law.cornell.edu/wex/bona_fide_occupational_quali...
Are blue eyed people being discriminated against? If the answer is no then your hypothetical is irrelevant and you are optimizing for the wrong case.
These are protected classes to correct a real failing of our social system.
I also happen to hate people with purple hair and decide to ban them from my property and refuse to service to them. Now this is my store and property that I own, these are my goods that I sell. Why should the government be able to legally control what I choose to do with my property and my goods, if I want to pour them into a sewer, or set them on fire should I not be allowed to do that? So why should the government force me to sell them to people I do not want to?
So the reasoning behind carving out every specific protection revolves around the idea that there should be a good reason for the government to control what I do with my private property, as it extends to reducing my liberty to do with my property what I want, and now becomes a matter of balancing various parts of the implicit social contract.
Whether or not this is justified or which side is right is a different discussion but that is why each exception needs to be carved out as I understand it.
Luckily, this is mostly the case today, and for the cases where it's not eventually a law gets passed, so there's theoretically no reason for a broader law assuming that we don't... assuming that the goal is eventual consistency, so to speak.
As a society we have decided that discriminating on some things is abhorrent (race, et al), and other things is not (hair and eye color).
The "not a protected class" counterargument is self-defeating because it suggests that discrimination was A-OK before that protected class was created by law. If illegality does not imply immorality, as is often said on HN, then conversely legality does not imply morality.
Absolutely Ayn Randian stream of thought.
Could you may be think about how you were able to do the said fruit stand business in peace, take a currency as a payment and not worry about bartering, not worry about your business being stolen outright my guy with biggest muscles or how people are able to come to your fruit stand in the first place etc? Unless you are thinking of your business in a vacuum, then go ahead and fantasize.
When you run a store on your private property, you are inviting the general public onto your private property and it ceases to be as private as it was.
You can be indignant as you wish, make all the arguments that you wish, but this is how it has been for hundreds of years.
If opening a store to the public made it not private property, then well meaning rules like “no shirt, no shoes, no service” would have to be handled by local ordinance, which would be overly cumbersome.
If every business in town discriminates against purple-haired people, for example, the owners of the one business to break ranks leave themselves open to harassment up to and including being murdered. Even if no business wants to discriminate, being the first to make the move sets you apart, and open to retaliation from the consumer base. The government mandating hair-color-equality dissolves the problem very neatly.
Here are some better examples:
1. A big and tall clothing store that discriminates against smaller customers.
2. A cafe that discriminates against people who are assholes (to the staff).
3. A retailer that does lots of business on the weekends that discriminates against hiring people who can't work weekends for non-religious reasons (e.g. because they have a sports league they do on Sundays).
4. A restaurant that discriminates against people with vegan/carnivore/keto/raw food/etc. diets by not having acceptable meals they can eat.
5. An airline that discriminates against obese people by making them pay for as many seats as they are actually using.
A lot of "discrimination" is reasonable. Anti-purple-hair prejudice is not.
1 and 4 don't actually ban those people, they simply don't provide any services that those groups of people would want. 3 is choosing not to hire people who don't actually fit the requirements of the job. 5 is paying for usage - obviously a reasonable concept, though specific policies may turn into discrimination. 2 is a reactive policy to something you have complete control over: your own behaviour. They don't care about any characteristic of you, except that you follow the rule of being polite to their staff. If the rule to follow becomes discriminatory then you'd have an argument - but that's not the example you brought up.
Also I'm not as optimistic as you are that some of these defenses would work.
Because your property and your ability to sell goods is directly supported by the people you discriminate against.
How do people, customers and employees alike, get to your property? Roads? Helicopter overseen by the FAA? How do packages get delivered over the roads, semi, USPS, UPS/fedex. Who pays to protect your building from crime and fire, who pays for the energy infrastructure, who pays for the teachers teaching your workforce?
Your store isnt an isolated self sufficient entity, its part of a web of interconnected forces mutually benefiting each other. There is a social contract, that if you want to profit off the infrastructure of the United States, you wont discriminate.
Also, your right to private property is, itself, protected by the government. Without that protection, I could steal from your fruit stand with impunity (as long as I have the bigger gun).
You are 100% free to post a job add saying that those with green eyes need not apply. You'll likely still be sued, and you might even lose, but it won't be due to Title VII.
For anything that doesn't fall under these categories, it's fair game to discriminate. You don't like vegetarians or people who play tennis? You can discriminate. You're might be a f* moron for doing so, but we don't have laws against that.
Out of these you can't change only race and national origin. Sex can be changed, except on chromosome level.
And religion is just as malleable as any ideology. I don't think it's any easier to convert a vegan to a carnivore than e.g. a Christian to Muslim.
(1) People can't have same sex relations
(2) Women can have relations with men but men can't have relations with men.
Practically they are the same, but (2) discriminates on the basis of sex while (1) does not.
If they are the same then how can one way of stating it be discriminatory and the other not discriminatory? It's just word games. If the effect is discriminatory why does it matter how you wrote the law?
That said, clearly these classes should be afforded the same protections; I'm just more comfortable with our legislators making that explicit in the law rather than courts arbitrarily expanding the scope of the law. There is at least one attempt, [1], that is still in progress; hopefully now that the courts have made it moot it will be easier to pass this to codify the result.
[1] https://www.congress.gov/bill/116th-congress/house-bill/5
https://en.wikipedia.org/wiki/List_of_LGBT_actions_in_the_Un...
Only flint-lock muzzle loaders allowed.
Rotary cannons were not invented until the mid 19th century, so long after the American Founding Fathers and the drafting of the first amendments to the Constitution.
I worry that going too close to the line of "what would a house member from rando time period want" becomes a strange place of conjecture.... and frankly relies heavily on a sort of mind reading / our own biases of the past... and legislators who are not bound by reason, existing laws, or any sort of absurd contradictions.
But perhaps that's always the judicial quandary. How closely to follow the letter of the law passed when it may not pass a constitutional test, or even just logic test.
You throw away A LOT of law without textualism.
Please read the decision, it's a very straightforward reading of the law. Transgender discrimination is sex discrimination by definition.
Gorsuch, in the majority, asserts that textually, the words written would and do indeed cover discrimination of gender identity and sexual orientation by extension of sex. Textually meaning regardless of whatever the original intent was, ie it doesn't really matter if they were considering transgender people in that list
> "The employers contend that few in 1964 would have expected Title VII to apply to discrimination against homosexual and transgender persons. But legislative history has no bearing here, where no ambiguity exists about how Title VII’s terms apply to the facts. See Milner v. Department of Navy, 562 U. S. 562, 574.
> "While it is possible that a statutory term that means one thing today or in one context might have meant something else at the time of its adoption or might mean something different in another context, the employers do not seek to use historical sources to illustrate that the meaning of any of Title VII’s language has changed since 1964 or that the statute’s terms ordinarily carried some missed message.
> "Instead, they seem to say when a new application is both unexpected and important, even if it is clearly commanded by existing law, the Court should merely point out the question, refer the subject back to Congress, and decline to enforce the law’s plain terms in the meantime. This Court has long rejected that sort of reasoning. And the employers’ new framing may only add new problems and leave the Court with more than a little law to overturn." (emphasis added)
---
From my understanding, the court is looking at this law as it is interpreted in "plain terms", which is from the point of view of "how would an average Joe or Jill on the street understand x?", in this instance, x being title VII's concept of "discrimination based on SEX".
The way the court sees it, if you fire a GUY for liking GUYS, but don't also fire a GIRL for liking GUYS, that is different treatment based on sex.
They then state that if you respond, "Woah, that may be a valid interpretation of the words, but its never been APPLIED like that before", tough luck. Its the court's job to re-interpret and clarify rules and fully within their ability to do so.
(Edit: I re-read the opinion and found a different summary more appropriate.)
[0]:https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf
Re-interpreting existing law is a HUGE component of our legal process. This goes all the way back to common law roots -- the court does not PREscribe law from above arbitrarily, rather it DEscribes the existing societal contract.
[0] Never mind that it also expects the existing case to be /exactly/ the same situation.
[1] Often just what anyone appealing to originalism wants them to have intended.
It is, but that doesn't necessarily mean it should be.
Decisions like this are ultimately political. The Court has basically decided that discrimination based on sexual orientation or transgender now counts as discrimination based on sex and hence is prohibited by law. But decisions about what real-world actions count as what legally recognized actions are political decisions, and political decisions in a democracy are supposed to be made through the democratic process, i.e., by the people or their elected representatives.
> This goes all the way back to common law roots
Yes, but those common law roots are not based on democratic norms; they come from societies that were not democracies but monarchies. A case could be made that our concept of "common law" has not kept up with the evolution of our society from monarchy to representative democracy.
Of course, an opposing case could also be made that even though our society is nominally a democracy, that doesn't necessarily mean that everything in the law should be democratically decided. Our law does recognize fundamental rights that cannot be changed or removed by the democratic process, and at least part of the process of common law is supposed to be to provide a way for people to have those rights recognized and respected even if there is no explicit statute that does so. Then the question would be whether there is such a right not to be discriminated against based on sexual orientation or transgender.
No, the majority opinion is not doing that. It is not arguing that "sex" includes "sexual orientation". It is arguing that, in order to discriminate based on sexual orientation (or transgender), you have to also discriminate based on sex.
The dissents disagree with that argument. But both sides agree that "sex" does not include "sexual orientation"; they are distinct concepts.
With that said, I still think that this is far from the Judiciary system amending legislation.
It seems like a six of one half dozen of another distinction, but I think it may become a factor when you start considering other sexual orientations. Primarily asexual individuals, but there are a number of other characteristics of humans that are currently classified as sexual attractions and not orientations but which some scientists think should be reclassified based on the biological/neurological basis as we better understand the difference between a preference and an orientation.
The correct term would be the majority, or assenters maybe
FYI - the word is "the majority".
Could you give some further info please. You're talking distinctions that mean nothing to me. How could sexual attraction not be orientation or preference? It just doesn't make sense.
The claim is that you can’t discriminate against LGBT employees without discriminating based on sex. If I tell my boss that, as a man, I have a husband and he fires me over it, he’s firing me because he thinks a man should not be in a relationship another man. He would not fire a woman for doing it, only a man.
The court is saying that that is discrimination based on sex, which is covered by the language of the existing law. To me, that makes sense too. It’s not like the justices are making up reasons for one side or the other. Both sides had a point. That’s why it made it to the Supreme Court. And six justices interpreted it one way, and three the other and now we have the court’s decision.
EDIT: HN won't let me respond to the question below on sources. This comes from a physical copy of the 1911 Encyclopedia Britanica, which has Eavesdropping as an entry and only discusses the water dropping off roofs meaning, strongly suggesting that our modern use of the term had not become common by that point.
They haven't evolved anything. Please read the court's opinion, the logic they use to describe why "sex" from Title VII isn't divisible ("but for" test) from LGBT rights is extremely difficult to refute.
Nothing has "evolved." They're arguing that you cannot descriminate against LGBT people without ALSO descriminating against someone's sex, which is unlawful. Even the dissenters weren't really able to poke holes in that logic, instead ignoring the whole issue of how someone's sex determines if they'd get decriminated against in some circumstances and not others (e.g. employers banning being married to a women is only "banned" for one gender and not the other, making it sexual descrimination).
They give numerous examples and go into great detail about why it is just sexual descrimination with extra steps, exactly like Title VII was expressly designed to outlaw.
What about in a state that allows same sex marriage?
To be even more explicit about this, an employer cannot refuse to higher only married lesbians. A cisgender man married to a woman could bring a suit for sex discrimination.
Discrimination is defined by what's called "disparate treatment," that is, treating individuals differently because of their sex. It doesn't relate to what is legally permissible outside that situation.
Edit: So the company has only employees that are either: not married, or only married to a male. How does this apply?
I think what you're trying to get at in your edit is more in line with Pre-Employment Inquiries and Marital Status. [0]. The EEOC puts it this way:
"It is clearly discriminatory to ask such questions only of women and not men (or vice-versa). Even if asked of both men and women, such questions may be seen as evidence of intent to discriminate against, for example, women with children."
There established precedent for "sex-plus" discrimination [1], whereby the claimants sex "plus" another factor brings it closer to a Title VII claim.
The TL;DR answer to your question is that nobody has brought a case (that I can find) with those particular details, but you can't treat men differently than women and vice-versa, and that includes gay and trans men and women
[0]https://www.eeoc.gov/pre-employment-inquiries-and-marital-st... [1]https://www.businessmanagementdaily.com/52309/title-vii-sex-...
The Civil Rights Act Title VII bans employment descrimination on the basis of sex, you cannot descriminate against an LGBT person without also descriminating on the basis of sex.
All today's ruling did was clarify to the lower courts that sex descrimination with extra steps and obfustication is still sex descrimination. Being LGBT doesn't remove your rights not to be sexual descriminated against under Title VII.
Again, I implore people to read the actual court's opinion.
If someone fires you because you're bisexual, they've still committed sex discrimination: they fired you because you do not fully conform to gender stereotypes (the stereotype being that gender A dates gender B; and you as the employee may date A and B).
Both Alice and Bob do FOO. If you let Alice do FOO, but fire Bob for doing FOO, you have commited sex discrimination, because you would not have fired Bob but for his sex. However, if you were to fire both Alice and Bob for doing FOO, then you are treating both males and females equally, so there is no discrimination based on sex.
In the case where Bob is homosexual, FOO=experiences attraction to men. When Alice does this, she is fine. When Bob does this, he gets fired. Bob was fired for being male.
In the case where Bob is bisexual, FOO=experiences attraction to men and women. Bob still gets fired, but this time Alice does not do FOO, so there is no comparison to base a sex discrimination case on. If Alice were to do FOO, she would be bisexual, and fired under the same policy that Bob was. Either way, there is no case here where a male and female do the same thing but get a different result.
I think this idea of a loophole is too caught up in actions leading to discrimination; and also the specific setups of the tests that the Supreme Court laid out in their ruling.
There need not be a specific counter-example within an organization to compare against when determining if an action was discriminatory or not. And moreover they weren’t really talking about “actions taken that are incongruous with sex stereotypes.” My understanding of the ruling (after reading it) is that if an employer fired you for being gay/bisexual, even just for stating the fact that you are, that would still amount to discrimination based on sex stereotypes.
Then again, I’m sure finer legal minds than mine will find any such loopholes that do exist over the course of the next two years. >_<
https://en.wikipedia.org/wiki/Civil_Rights_Act_of_1964#Judic...
The only other older case was in the late '80s, and it had a similar interpretation as the ruling today: https://en.wikipedia.org/wiki/Price_Waterhouse_v._Hopkins
To be fair, the textual argument isn’t iron clad. How does that logic apply to bisexual people?
I think the result is correct: the Supreme Court has already interpreted “discrimination based on sex” to include “discrimination based on deviation from stereotypical characteristics of that sex.” Under that gloss, it’s a much easier application to gay and transgender discrimination. But it’s far from clear cut.
I looked around to find sources for your etymology of the word. Couldn't find anything.
Wikipedia [1] suggests a more straight-forward etymology:
An eavesdropper was someone who would hang from the eave of a building so as to hear what is said within
> I expected to be downvoted by conservatives, but not this fast.
What makes you think that you were downvoted by conservatives? You probably were downvoted by people who disagreed with you, but I don't see any particular reason to believe that they are conservative. As someone else pointed out downthread, it seems equally likely that you would be downvoted for saying something that could be construed as positive about Trump, or for that matter by someone who felt that you should be downvoted for even mentioning his name. Or maybe you are right. I'd love for downvotes to require some sort of public attribution of reasoning to avoid amplification of misunderstanding.
Thank you, you worded it really well. A lot of us are just trying to live a quiet life with dignity. I work for a large company that considers itself progressive in these matters. Everybody with access to my background (HR, upper management) is constantly letting me know that "they know" about my background, they win awards for how well they treat me, and feel-good stuff like "they're with me". It's hell.
...and yet, they aren't meant to be. The system was designed such that the legislative branch would produce the most fundamental and enduring changes to our system of laws.
Looking to the SCOTUS to make legal/societal reforms is not only counter to the design, it's dangerous as it enables one branch to usurp the power of another.
Moreover because they are appointed for life and appointed by the president, this new paradigm effectively erodes the most deliberative and democratic institution we have - the Legislature.
It's sad to see such judicial advocacy so broadly applauded.
I suspect the reason the courts are so ready to act to change law, rather than arbitrate law, is a consequence of the ineffectiveness of congress. ...which is, in turn, a consequence of the political polarization worsening in America.
I wish we could return to an environment of more constructive in-depth discussions and less a war of emotional hyperbolic soundbites.
[1] https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf
The Alito dissent is fairly straightforward -- Congress has tried to fix the language of the bill several times, but has been unsuccessful, indicating that the legislators have not universally agreed that this is how it should be applied. They claim that fixing this should be Congress's job, not the court's, and the attempts to amend it are clear indicators that Congress recognizes that the law does not current protect those classes.
> Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on any of five specified grounds: “race, color, religion, sex, [and] national origin.” 42 U. S. C. §2000e–2(a). Neither “sexual orientation” nor “gender identity” appears on that list. For the past 45 years, bills have been introduced in Congress to add “sexual orientation” to the list,1 and in recent years, bills have included “gender identity” as well. But to date, none has passed both Houses.
> Last year, the House of Representatives passed a bill that would amend Title VII by defining sex discrimination to include both “sexual orientation” and “gender identity,” H. R. 5, 116th Cong., 1st Sess. (2019), but the bill has stalled in the Senate. An alternative bill, H. R. 5331, 116th Cong., 1st Sess. (2019), would add similar prohibitions but contains provisions to protect religious liberty. This bill remains before a House Subcommittee.
Kavanaugh makes a very similar argument, even citing the same attempts to amend, and I'm not sure why he didn't join.
> The Court has previously stated, and I fully agree, that gay and lesbian Americans “cannot be treated as social outcasts or as inferior in dignity and worth.” ... But we are judges, not Members of Congress ... Our role is not to make or amend the law. As written, Title VII does not prohibit employment discrimination because of sexual orientation.
There is a difference between "the authors of the Civil Rights Act of 1964 did not intend to extend protections to LGBT individuals" and "the authors of the Civil Rights Act intended not to extend those protections". The inaction of subsequent Congresses to clarify the meaning of a law only further increases the necessity of judicial interpretation.
And the concepts in question were known at the time, but generally not considered "acceptable" by sizable portions of the population. Speculating, of course, but if they had added language about sexual orientation at the time it would likely have met considerable resistance. As it was the original text didn't even include "sex"; that was added as an amendment in committee.
As far as I'm aware there were no attempts to correct the bill in the other direction, by excluding gender identity or sexual orientation explicitly from the list; which I think can be reasonably interpreted to mean that the commonly held view is that those were not included.
At least now, any members of congress who disapprove of this action by the courts is left to decide whether they do accept those protections or not, and hopefully one of the bills explicitly adding that text will move forward so that this decision can be made moot by the legistlature.
PBS recently aired a documentary about Clarence Thomas that I really enjoyed [1]. It looks like it's maybe no longer available to watch there, but I would highly recommend it to anyone interested in politics / history.
Everything I'd ever heard about Clarence Thomas was basically just referring to the "caricature" of him presented to the public in the media. This paints a much more nuanced and compelling picture, in my opinion.
[1] https://www.pbs.org/show/created-equal-clarence-thomas-his-o...
I see a key element in Kavanaugh's dissent that is not present in Alito's: the emphasis on how Congress and the Executive Branch (not to mention the Court itself in prior decisions) have consistently, over decades, treated discrimination because of sex and discrimination because of sexual orientation as two separate and legally distinct types of discrimination. I actually find this a better ground for dissent from the majority opinion than Alito's arguments.
>No, it doesn’t. Even in this example, the individual ap-plicant’s sex still weighs as a factor in the employer’s deci-sion. Change the hypothetical ever so slightly and its flawsbecome apparent. Suppose an employer’s application formoffered a single box to check if the applicant is either black or Catholic. If the employer refuses to hire anyone whochecks that box, would we conclude the employer has com-plied with Title VII, so long as it studiously avoids learning any particular applicant’s race or religion? Of course not: By intentionally setting out a rule that makes hiring turn on race or religion, the employer violates the law, whatever he might know or not know about individual applicants.
This is shockingly bad logic. Their counter examples clearly have the employer learning the applicants race/religion. The fact that the employer uses crude definitons i.e. [Black/Not Black] and [Catholic/Not Catholic] doesn't change that. The employer simply redefined racial/religious groups to suit their particular needs.
Kav: "Sex" is not the same as "sexual orientation".
Majority: Close enough.
...but Kav makes some solid points. 50 out of 50 didn't equate the two. ...so in a real sense, the Supreme Court is making law - not really interpreting law.
...and that is a big long term danger to the separation of power.
> "Sex" is not the same as "sexual orientation".
This is the crucial point. Alito and Kavanaugh imagine a world where you can discriminate against sexual orientation while somehow not considering a person's sex. I don't see how that is possible.
If you know that someone is gay, or lesbian - and then discriminate against "sexual orientation," you can't say that sex didn't play a part: sexual orientation is inextricably linked to sex and gender. It's kinda the whole point. And in this case you know that a man, or woman, is attracted to men, or women (or both, really). Sex isn't something to wave away at that point, it's a known fact and the discrimination seems obvious.
But even in the extreme hypothetical of "discriminating against homosexuality while somehow not knowing the sex or gender of the people involved" still commits sex discrimination: it then shifts to the "stereotypes" interpretation, which has been held to be discriminatory under quite a lot of case law at this point. In this world, you've discriminated because you know that a homosexual person has attraction towards someone of the same sex/gender. You don't know what sex, but you know it's about sex. And that's why it falls under sex discrimination.
Sex based bathrooms for example are now discrimination under this logic.
I feel like the media and social media is making people obsess about trivialities and edge cases.
If I remember right the buss company involved later changed the dress code in order to allow for shorts.
Male drivers complying with the female dress code during that year in front of clients generated quite a few news article on the topic.
Why did 3 vote against? Is there an explanation for their reasoning?
So there's a difference in philosophy between 'textualists' who interpret the meaning of the text, and in particular what the word 'sex' implies, versus 'originalists' who look of the intent of the legislators in 1964.
The people who support the idea that “sex discrimination” can be interpreted as including gay discrimination and trans discrimination adhere to “loose constructionism” and think that constitution and laws can change their meaning without being formally updated.
edit: Found it: https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf
Kavanaugh's dissent (p. 145ff.) appears to revolve around it being not the proper province of the Supreme Court to decide the extent of Title VII, which, IANAL but that seems like a weak dodge. The whole point of the Supreme Court is to finally decide among competing interpretations of extant legislation.
Alito's and Thomas's dissent (pp. 38-144) appears to rely on the same strict-constructionist interpretation. Its Appendix A cites a stack of dictionaries. So there's that, I guess. Appendix D is an application for employment in the US armed forces. Presumably the body of the dissent explains what this is meant to prove, although I doubt I would feel myself enlightened for the effort of going back and finding that exegesis.
For example, the "legalization of gay marriage" case from a few years back contained phrases and platitudes about "love not being illegal" but the crux of the decision came down to the majority's opinion that a license issued in one state shouldn't be rejected in another. It didn't specify MARRIAGE license... which immediately made me comment to co-workers that in addition to requiring marriage licenses issued in any state had to be recognized in all 50 states, logically this ruling also stipulated that a concealed carry permit issued in any state would have to be recognized even in states that didn't issue concealed carry permits (Illinois at the time) as well as states in which it's very hard to get them (New York and California). To my knowledge, nobody has tested this by getting arrested in such a jurisdiction with such laws and challenging it citing Obergefell v. Hodges.
I am not a lawyer™ but damn this would be a fascinating challenge. It almost implies state licenses exceed state lines to an almost federal level which seems pretty counterintuitive to me. I'd almost want to see a lawyer who has a state-level license to practice law challenge this in court to be eligible to use their state-level license in a different state.
If true, fascinating. This post represents only theory interest and no opinion of the top level topic other than this one:
Equality, EFF YEAH!
I think it's closer to stating that a license to $ACTIVITY/$STATUS in one state should be recognized by a different state that also licenses that activity or status.
I'm also not a lawyer but I know the law is complicated enough that if you don't have a law degree you can't just "reason" about it until it makes sense, because it rarely does. Having a license to carry a firearm in Indiana allows you to carry that firearm in Indiana. Illinois would probably agree that that license allows you to carry a firearm in Indiana, and still put you in prison for carrying it on the wrong side of the Illinois-Indiana border. Are there specifics to this argument that would apply to firearms and not marriages?
I could see there being a differentiation in some legalese between an activity (carrying a firearm, hunting, operating an emergency vehicle, etc) and a status (being married, being a felon, etc).
I think I one could say that fishing or hunting licenses only apply to certain locations - you are only able to use methods X in location Y. This out of state the license is valid but not useful.
Then the question is whether gun license is more like a marriage licet or a hunting license.
IANAL.
Once you do get married, though, the marriage itself becomes a public record of the state that would be protected under the Full Faith & Credit clause. But as I mentioned in my previous comment, Obergefell v. Hodges had absolutely nothing to do with marriage licensing and states recognizing each other's licenses.
First of all, Obergefell was a ruling that the Due Process clause of the 5th Amendment and Equal Protection clause of the 14th Amendment extended protections to same-sex couples. Nothing to do with licenses.
You're thinking of the Full Faith and Credit clause of the Constitution, which was never ruled on with respect to gay marriage. We got close to it with US v. Windsor, but that ruling struck down the whole of DOMA under due process and equal protection, and did not create any kind of binding precedent with regards to the FF&C clause.
Secondly, the text of the FF&C clause is:
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
Your question is whether a concealed carry permit would be considered a "public Act, Record, or judicial Proceeding" of the issuing state, and I am telling you I don't think you could get a single court to agree with you that it was.
Yeah that seems very strange. That's what the SCOTUS ... a great deal of the time.
Alito and Kavanaugh wrote dissenting opinions. Thomas joined with Alito's opinion.
-- p. 4 in the PDF.
> JUSTICE ALITO, with whom JUSTICE THOMAS joins, dissenting.
-- p. 38 in the PDF.
https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf
page 38 or so: > JUSTICE ALITO, with whom JUSTICE THOMAS joins, dissenting
page 145 or so: > JUSTICE KAVANAUGH, dissenting.
EDIT: apparently some people think justices of the Supreme Court are "above" politics. Laughable, though they do an excellent job of covering with a lot of legalistic-sounding justification.
> Title VII of the 1964 act broadly prohibits employers from discriminating against workers, including in hiring and firing decisions, based on an employee’s sex.
> The Trump administration argued that the 1964 law doesn’t cover LGBT workers.
There's a debate around whether "employee's sex" includes "employee's sexual orientation."
That’s not such a wild stretch, but it is reading more into the law than was written or intended at the time, so peeling 2 textualists off is a bit surprising.
It's a great outcome, but unfortunate that it takes the Supreme Court to get there.
There's a section in the majority opinion about this, actually - I would paraphrase it as "it's not surprising that broad outcomes are drawn from laws written in extraordinarily broad terms."
Ah, but that's not textualism. Textualism is a method of statutory interpretation whereby the plain text of a statute is used to determine the meaning of the legislation. Instead of attempting to determine statutory purpose or legislative intent, textualists adhere to the objective meaning of the legal text. [0]
https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf
The question that I think is still untested is what happens when you consider someone asexual or bisexual, as that isn't as simple a case to handle as just flipping the genders. If you fire a man for loving two people and fire a woman for loving those same two people, it doesn't appear you are discriminating based on sex. But given that such a relationship would also be considered poly-amorous bisexual and not monogamous bisexual, and given that the likelihood of having a business that only fired people for poly-amorous bisexual relationships and not for monogamous homosexual relationships is extremely small, I'm guessing it will be some time before it is tested in courts.
That's basically the argument. Discriminating against a woman who is in a relationship with a woman is discrimination against (certain) women, because if she were a male, in a relationship with that same woman, she would be treated differently.
"Well, that depends."
"What does it depend on?"
"..."
From page 2: "Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands."
Then later, on page 4:
"The employers also stress that homosexuality and transgender status are distinct concepts from sex, and that if Congress wanted to address these matters in Title VII, it would have referenced them specifically. But when Congress chooses not to include any exceptions to a broad rule, this Court applies the broad rule."
The Majority refuses to limit the scope of Title VII simply because the drafters did not consider gay and trans workers when they made the law, and also penalizes those same drafters for not creating exceptions for individuals they lacked the imagination to think of to start with.
Or maybe put another way: sure, they didn’t and couldn’t possibly have listed all exceptions to the law. But they didn’t really try; rather they listed one exception for everything (churches, basically) and didn’t bother with any other exceptions. And in light of that, the court didn’t consider it appropriate to read in exceptions when Congress very clearly wrote an extremely broad law. Essentially Congress gave no signal it wasn’t supposed to be broad.
> “‘Sex,’ ‘sexual orientation,’ and ‘gender identity,’ are different concepts,” Justice Alito wrote, observing that repeated efforts to explicitly add the latter terms to Title VII have died in Congress. During debates over the 1964 Civil Rights Act, no member of Congress “said one word about the possibility that the prohibition of sex discrimination might have that meaning. Instead, all the debate concerned discrimination on the basis of biological sex,” Justice Alito wrote.
I don't see how the justices who supported this decision can possibly claim that the word 'sex', which has a specific definition that was even more rigid in the 60s, can somehow include 'sexual orientation' or 'gender identity' which are entirely different concepts. This does seem like legislation by Supreme Court.
* Person A is male and has a wife.
* Person B is female and has a wife.
I think the dissent does a good job showing the flaws in that argument, but it's better then you're giving it credit for. The flaw is that you could ask on a hiring form:
Are you [ ] homosexual [ ] heterosexual [ ] other.
> Change the hypothetical ever so slightly and its flaws become apparent. Suppose an employer’s application form offered a single box to check if the applicant is either black or Catholic. If the employer refuses to hire anyone who checks that box, would we conclude the employer has complied with Title VII, so long as it studiously avoids learning any particular applicant’s race or religion? Of course not: By intentionally setting out a rule that makes hiring turn on race or religion, the employer violates the law, whatever he might know or not know about individual applicants.
> The same holds here. There is no way for an applicant to decide whether to check the homosexual or transgender box without considering sex. [...] Any way you slice it, the employer intentionally refuses to hire applicants in part because of the affected individuals’ sex, even if it never learns any applicant’s sex.
From the decision:
> Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause of his discharge. Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.
Many businesses have a "front of the house" consisting of people that interact with customers, clients, etc., and a "back of the house" that might be comprised of warehouse workers, etc. Many businesses in the south used to only hire white people in the front of the house, and only men in the back of the house.
After civil rights laws came into effect, many of these businesses argued that their hiring wasn't racist, because they employ lots of black people (in the warehouse). And they're not sexist, because they employ lots of women (in the front of the house). But if you're a black woman, you're still out of luck. Because of this, the courts ruled that these policies are still considered discrimination on the basis of sex/race. Yes, these hiring policies weren't discriminating against ALL women, but just a subset (women who happen to be black). Or looked at differently, a subset of a race (black people who happen to be women). Either way, it's still discrimination against a protected class - both intuitively, and by law.
Similarly, this decision states that firing someone because they're lesbian or gay would be discrimination against a subset of women (women who are attracted to women), or a subset of men (men who are attracted to men).
In cases involving the protections of individuals, you can't start by looking at the aggregate of all the people working at the company, and analyze the company hiring policy, attribute-by-attribute (e.g. sex, race, etc)., in isolation. It'll still lead to discrimination, because each individual has many attributes, and the combination of those attributes can be the source of the discrimination.
Instead, you have to start with the individual affected person who brought the case forward, look at all of their attributes, and if changing any one (protected) attribute (in this case, sex) would lead to a different hiring/firing decision, then it's considered discriminatory.
First, I'm not convinced this rule is actually in accord with the plain language of the statute. Kavanaugh's dissent argues that, for decades, all three branches of the Federal government--Congress, the Executive, and the Supreme Court itself--have taken "discrimination because of sex" and "discrimination because of sexual orientation" to be two separate and legally distinct categories of discrimination. The majority opinion simply ignores all that prior evidence about how the Federal government has interpreted the plain language of the statute.
Second, it's not clear to me that the hypothetical the majority is using here is the correct one. One of the key grounds given by LGBTQ individuals for their right to equal treatment is that those traits are innate. But if, for example, sexual orientation is an innate trait, then changing a man attracted to men into a woman attracted to men is changing more than just that person's sex: it's changing their sexual orientation as well. In other words, the Court's hypothetical is not "changing just one thing, leaving everything else the same", as it claims to be.
On this view, which is a better reflection of the views LGBTQ people are actually advocating, the proper hypothetical for changing just the person's sex, leaving everything else intact, would be to change a man attracted to men into a woman attracted to women. And in that hypothetical, the hiring/firing decision would not change; and by contrast, in corresponding hypothetical where you only changed sexual orientation, not sex (so changing a man attracted to men into a man attracted to women), the hiring/firing decision would change. Which leads to the opposite conclusion from the one the majority makes.
The discussion in this thread has made me fully appreciate, while this might be a step forward for human rights, these protections really do need to be explicitly codified in law as well. Not just because they're resting on fragile interpretations of existing law, but also because this interpretation wouldn't necessarily extend to bisexuals, asexuals, etc.
They were each fired for something someone of the opposite sex would not have been fired for, so, in both cases, they were fired on the basis of sex since their sex was a sine qua non of the firing.
It's possible for a firm to have two closely related discriminatory policies, one of which discriminates against each sex. They don't net out to nondiscrimination, but instead provide causes of action for discrimination for those harmed by each policy.
> Sometimes small gestures can have unexpected consequences. Major initiatives practically guarantee them. In our time, few pieces of federal legislation rank in significance with the Civil Rights Act of 1964. There, in Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin. Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.
> Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extra-textual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.
Continuing:
> From the ordinary public meaning of the statute’s language at the time of the law’s adoption, a straightforward rule emerges: An employer violates Title VII when it intentionally fires an individual employee based in part on sex. It doesn’t matter if other factors besides the plaintiff ’s sex contributed to the decision. And it doesn’t matter if the employer treated women as a group the same when compared to men as a group. If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee—put differently, if changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred. Title VII’s message is “simple but momentous”: An individual employee’s sex is “not relevant to the selection, evaluation, or compensation of employees.” Price Waterhouse v. Hopkins, 490 U. S. 228, 239 (1989) (plurality opinion).
> The statute’s message for our cases is equally simple and momentous: An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause of his discharge. Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.
> That distinguishes these cases from countless others where Title VII has nothing to say. Take an employer who fires a female employee for tardiness or incompetence or simply supporting the wrong sports team. Assuming the employer would not have tolerated the same trait in a man, Title VII stands silent. But unlike any of these other traits or actions, homosexuality and transgender status are inextricably bound up with sex. Not because homosexuality or transgender status are related to sex in some vague sense or because discrimination on these bases has some disparate impact on one sex or another, but because to discriminate on these grounds requires an employer to intentionally treat individual employees differently because of their sex.
https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf
Not only that, the SCOTUS itself is surprisingly accessible. I don't know any other country that generally requires some fraction of the seats to be walk-up observers for the full arguments, and requires some fraction of the seats to be rotated among tourists for shorter time slices.
So speaking with an offensive caricature of an Italian accent or wearing makeup intended for individuals with a different skin tone could potentially be acceptable under this standard. Or we would have to see a strong reversal in tolerance for in-group people using terms that would be interpreted as slurs were someone not in that group to use them.
I hope that the Congress will move to pass legislation explicitly adding protections for sexual orientation and gender identity so that we don't have to suffer through any slippery slope related to this.
I don't know if anyone is fighting for the right to speak in offensive accents or to wear blackface, but if someone did these things, got fired, and took it to court, I'd be surprised if the judges were unable to articulate the nuance between how these scenarios differ from firing a person for being gay.
We should be way more angry at our representatives in Congress who have refused to incorporate this language into the law than at the justices who oppose this opinion on what seem to me to be much more well-reasoned grounds that are unrelated to their opinions on the treatment of these classes of people.
Still, expediency here counts for something, and in the end this is a positive move with tangible gains in the near term.
I'm reminded a bit of the gay marriage debacle in the late aughts. At the time, people were arguing that we should just strike the word "marriage" from all our laws, and replace it with "domestic partnership". Let "marriage" be a purely religious term, a process that happens in whatever church someone happens to attend, then everyone would be happy (theoretically). In actuality, the legislators arguing against gay marriage weren't really arguing in good faith, and they very much wanted "marriage" defined, in law, as a relationship between a man and a woman. This stubbornness forced gay marriage advocates to go through the courts, which worked for a bit, until it didn't (Prop 8), until it did (Obergefell v. Hodges).
It's not ideal, but as long as the courts are on the side of protecting people from having their rights legislated away, I'm not tremendously bothered by these examples of legislating from the bench.
At this point, to reverse this, Republican (presumably) congressmen would have to actively introduce legislation excluding the protections for LGBT individuals, which would make it much more unpalatable than the current strategy of "dragging their feet" (as with gay marriage) to prevent the law from moving forward.
My only fear, probably unjustified, is that the logic and precedent used here can be used to generalize the protections in unexpected and undesirable ways.
Strange though that the court has never applied title vii to immigration law/status despite it being one of the most obvious areas of systematic discrimination based on national origin.
[1] Okay, not really, because judges are not automata and everyone will recognize that this decision should not be taken as a precedent in terms of its arguments. Chances are everyone will just take the precautionary approach and say that any offensive speech, even directed by an in-group member at another in-group member (e.g. one Jewish person saying to another something that would be considered offensive were a non-Jew to say it, or take your other religion/ethnicity as you like it) is ground for termination in order to avoid having to make the distinction.
OK, let's play around with this logic for a second.
Suppose instead that we have an employer with four employees, A B, C, and D. Two are attracted to women, two are attracted to men. The four individuals are, to the employer's mind, materially identical in all respects, except that A is a man attracted to women, B is a woman attracted to women, C is man attracted to men, and D is a woman attracted to men.
Suppose the employer decides to fire C and D, for no other reason than that they are attracted to men. According to this logic, that's permissible, since the gender of the employee has no bearing on the employer's decision.
But no doubt if the law was passed today it would include "sexual orientation"
There are many such cases that are successful going on all the time.
Your comment is baseless cynicism.
As we should be aware, there is a big difference between making a rule and enforcing one.
That does not mean that the law is pointless or that it doesn't offer any protection.
So no, I don't think it was "baseless".
Because "beyong an individual's control" would become a major legal fight, for example many, even in scientific literature, thought being LGBT was "within someone's control" as recently as into the 1970s, and certainly marrying someone of the same sex or changing your gender is "within someone's control" today.
So you've taken Title VII and cuts its legs out under the gies of making it more expansive. Plus "not relevant otherwise" would likely allow much more gender descrimination than the existing Title VII does.
I am not a lawyer but this sounds to me like the Supreme Court just admitted that while the text of the law doesn't include protection for gay or transgendered persons, they are going to retroactively "understand the term" as though it does.
How, then, can we assume any of the laws mean what the text says when a court can decide words mean something else? I have to agree with the dissent in this case; amending the Civil Rights to update, expand, or clarify the definition "sex" is the surest way to protect gay and transgender person from a future court taking a strict textual interpretation and annulling this ruling.
Too bad the court system can't create the equivalent of a bug report for legislation. If we had that then in this case the SCOTUS could have issued a legislative mandate to Congress requiring them to clarify or expand the definition of "sex" so that now-protected classes are protected from a further court ruling on what the actual text of the law says. It is the role of the court to interpret the laws, not make them.
The rest of the argument makes it very clear why the conservative textualist justice who wrote the opinion considers that discrimination against homosexual or transgendered people is based in part upon the biological distinction between male and female: the assumption that the sexual preferences or identity of the individuals in these cases would be entirely unobjectionable to the employer if their biological sex was different. They're very clear on this and go on for several pages about it.
You may or may not agree with this argument or its applicability to these specific cases, but cherry picking something from the beginning of their actual argument and substituting a completely different 'retroactively "understand the term"' argument of your own invention is disingenuous at best
"Ultimately, the employers are forced to abandon the stat-utory text and precedent altogether and appeal to assump-tions and policy. Most pointedly, they contend that few in1964 would have expected Title VII to apply to discrimina-tion against homosexual and transgender persons. And whatever the text and our precedent indicate, they say, shouldn’t this fact cause us to pause before recognizing liability?
This Court has explained many times over many years that,when the meaning of the statute’s terms is plain, our job isat an end. The people are entitled to rely on the law as written, without fearing that courts might disregard its plain terms based on some extratextual consideration.
And as we have seen, no ambiguity exists about how Title VII’s terms apply to the facts before us. To be sure, the statute’s application in these cases reaches “beyond theprincipal evil” legislators may have intended or expected toaddress.
But “‘the fact that [astatute] has been applied in situations not expressly antic-ipated by Congress’” does not demonstrate ambiguity; in-stead, it simply “‘demonstrates [the] breadth’” of a legisla-tive command."
When reading the opinion, which I strongly recommend, you won't feel like they are somehow reinterpreting words to mean different things. The opinion goes to great lengths to define every single word in Title VII, what it means, its intent, and precedence to build on its reasoning, which is states multiple times is based on a plain reading of the law.