Hacker News Reader

Comment by bkor | Hacker News Reader

> 6-3 ruling represented the biggest moment for LGBT rights

Why did 3 vote against? Is there an explanation for their reasoning?

Yes, they'll have written a dissent that will be published alongside the majority opinion. I'm looking for it now, but since Reuters didn't bother to name the case, that's more complicated than it might be.

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.

Alito and Thomas dissent is basically: the word "sex" does not include sexual orientation. So its not covered by the original Title VII. So if they want protection, they need a new law.

There is a strong legal argument to be made here. If one can simply identify as trans but the law doesn't provide a definition under which this would work, you're opening up ambiguity as to what the law even is and how it's to be used to protect someone claiming such an identification. This is a great case where a dissenting opinion is done for the protection of those seeking title as a protected class from those who will shoot the ambiguity loophole to deny the protection this decision purports to offer.

Except that the majority opinion doesn't rely on someone identifying as trans, only acting in a way not socially in accordance with their biological sex.

They also cite that Congress has attempted to amend the law several times (to date unsuccessfully), indicating that they recognize that the law as written does not cover the classes of sexual orientation or gender identity.

That is probably the best dissenting argument.

And the majority opinion is basically: if you fire a male employee for being with another man, its not a sexual orientation issue since the basis for your firing is that the employee is male. Thus, all protections apply

The majority opinion and dissents are rich sources of insight as to how the law in question will be applied as to how the decision could affect precedent in the future so I agree that the least the journalists could do is name the case so those of us who want to go to the source can look it up.

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.

IF the resulting ruling was, indeed, based primarily on license eligibility cross-state line then wow, what a mislead but also what a possible challenge hole like you said.

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!

> It almost implies state licenses exceed state lines to an almost federal level which seems pretty counterintuitive to me.

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).

Would this further extend to fishing or hunting licenses?

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.

I believe that the state could argue a compelling interest in hunting/fishing licenses, since they affect resources spent by the state. It’s already legal for such licenses to be more expensive for out of state visitors, for a similar reason.

IANAL.

Well a marriage license is not actually a document certifying that you are married, it is a document granting you the right to get married in the state that issued it. You can't get a marriage license in Indiana and use it to get married in Illinois.

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.

Gay rights leading to gun rights, that would be facinating if only just to see the political fallout. I've always wondered how people would react if gun rights were tied to abortion rights somehow, and if political alignments would change.

I'm sorry but this is a gross misunderstanding/misrepresentation of what Obergefell v. Hodges was.

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.

> 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.

Yeah that seems very strange. That's what the SCOTUS ... a great deal of the time.

Like many wide reaching principles, judicial conservatism is not evenly applied.

Just for background, there's nearly always a lengthy opinion explaining the reasoning in great detail. And if there's a dissent, the dissenters' reasoning is typically laid out in great detail as well, and included along with the opinion. Here's the full opinion for those interested: https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf

> The legal fight focused on the definition of “sex” in Title VII [of the Civil Rights Act of 1964]. 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.

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 dominant school of originalists are the "public meaning" originalists. They hold that the original public meaning gives notice to the public about how to obey the law, where the original intent does not, since most people can't be expected to know what the intent was. Gorsuch is a leader of the public meaning approach.

The interesting thing about Gorsuch's opinion considering his reputation is that he specifically focuses on applying the logical implications (if a company would not fire a person for being in a relationship with a man if they were female, clearly firing a man for doing so treats sexes differently) to the Civil Rights Act text rather than likely 1964 understanding of its intent and actually rules out the probable lack of consideration of LGBT issues by the original framers as a relevant factor.

Originalists and textualists would interpret “sex” the same way. Unless you think that Civil Rights Act of 1964 implied protections for gay and transgender people in that very time and was misinterpreted by everyone (which is very unlikely).

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.

Yeah, the explanation is that “sex” means “sex” and it doesn’t mean “sexual orientation” or “transgender status”. This seems pretty obvious. Why did 6 vote for seems more questionable, the Supreme Court is a judicial branch, not a legislative one.

Because the notion of sex is implicit in some sexual orientations. If you fire a man for loving some individual, but not fire a woman for loving the same individual, then that is discrimination on the basis of sex.

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.

Page 17 of the dissent analyzes your example.

Clearly, it's not "pretty obvious" or there wouldn't be this case or ruling.

Can you define homosexuality without invoking sex? Can you find a way to say "this person is straight" or "this person is gay" without bringing that individual's sex into the equation?

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.

This sounds like a gotcha rather than an argument. Does this ruling mean gendered dress codes are now illegal in the US?

It has been since the late 80s, yes, when a similar ruling was made.

https://en.wikipedia.org/wiki/Price_Waterhouse_v._Hopkins

This is not about dress code. Otherwise https://en.wikipedia.org/wiki/Jespersen_v._Harrah%27s_Operat.... would have a different outcome. It sounds like a Bergeronian dystopia to deny sexed nature of humans and claim that every sexed treatment is discrimination.

You don’t need to mention sexual orientation at all. It’s illegal to fire a woman for being married to a man. If it’s legal to fire a man for being married to a man then you’re discriminating based on sex. The sexual orientations of the people involved are irrelevant.

"Are employees allowed to wear dresses and high heel shoes to work?"

"Well, that depends."

"What does it depend on?"

"..."

It's worth reading the full dissent and majority opinion but its a textualist argument that the original legislation did not intend to include homosexuality and transgender in the Title VII law against sex discrimination and its not the courts job to legislate and that if these are to be included its congress' job to amend the laws to be more specific.

> but its a textualist argument that the original legislation did not intend to include homosexuality

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]

[0]https://ballotpedia.org/Textualism

From my layman’s view, they argued that the existing law did not cover sexual orientation, while the 6 argued that “on the basis of sex” does despite lawmakers making no mention of it in the bill.

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.

I think the majority opinion is more interesting than that. They argue that firing someone for being LGBT is firing them for behavior that you would not have fired them for had they been a different sex. Ergo, it inherently is firing them on the basis of sex.

Yes it is interesting. Most likely not what the lawmakers intended at the time, but the law itself doesn't limit the scope.

It's a great outcome, but unfortunate that it takes the Supreme Court to get there.

> Yes it is interesting. Most likely not what the lawmakers intended at the time, but the law itself doesn't limit the scope.

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."

Title VII covers other things that the majority opinion describes as "conceptually distinct" from sex but also "necessarily entail(ing) discrimination based on sex". In particular, they talk about sexual harassment and motherhood discrimination.

The actual opinions are here:

https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf

Alito and Kavanaugh wrote dissenting opinions. Thomas joined with Alito's opinion.

Nit: Thomas joined Kavanaugh's opinion, not Alito's.

> ALITO, J., filed a dissenting opinion, in which THOMAS, J., joined. KAVANAUGH, J., filed a dissenting 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

Apparently I can't read. Good catch, thanks.

No.

page 38 or so: > JUSTICE ALITO, with whom JUSTICE THOMAS joins, dissenting

page 145 or so: > JUSTICE KAVANAUGH, dissenting.

https://casetext.com/case/bostock-v-clayton-county

From https://www.wsj.com/articles/supreme-court-rules-for-gay-rig...:

> 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."

You must be new to the politics of the current Supreme Court. A certain number will always lean away from progress.

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.

Reply on news.ycombinator.com