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.
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.
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.
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.
(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
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.