Comment by andrewla | Hacker News Reader

Comment by andrewla | Hacker News Reader

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There are two dissents, one by Alito joined by Thomas, and one by Kavanaugh alone.

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.

Worth noting Thomas' dissent is very consistent with his dissent in Texas V Lawrence, where he explicitly says that if he were a texas legislator he would vote to strike down the anti-sodomy laws (as he believes they are bad laws) but he doesn't believe it's the SCOTUS' role to do so.

And yet decidedly inconsistent with his reputation of being a textualist, since he appears to take into consideration the intention drafters of the law by looking at other attempts to amend it. He does not appear to address in his dissent the meaning of the text itself beyond pointing out an omission that the Majority opinion addresses explicitly (though somewhat contradictorily).

> Kavanaugh makes a very similar argument, even citing the same attempts to amend, and I'm not sure why he didn't join.

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.

Tangent:

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...

The textualist position on this would be: yes, there is no language explicitly affirming non-discrimination rights for LGBT workers, but there is also no language explicitly denying those rights, either.

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.

Maybe ... by making an explicit enumeration rather than saying something like 'and any other non-elective conditions' or similar language to capture the central idea, it seems that there were specific areas where they saw problematic discrimination and chose to make them illegal.

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.

One distinct if uncomfortable possibility is that Kavanauughs dissent makes no mention of trans people or gender identity. It only mentions the L and G of LGBT.

An interesting possibility is that by not mentioning it and focusing his objections on sexual orientations, Kavanaugh is tacitly conceding that firing a biological male for 'living as a woman' might fall under the ordinary meaning of discrimination based on sex.

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