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U.S. Supreme Court endorses gay, transgender worker protections (reuters.com)
345 points by singingwolfboy 21 days ago | hide | past | favorite | 376 comments



A better title would be “Supreme Court holds that Title VII prohibits gay, transgender employment discrimination.”

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.”


> I happen to agree with Justice Gorsuch’s majority opinion (the existing law already covers such discrimination, in view of the text and existing judicial gloss on the text).

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.


Title VII prohibits employment discrimination against someone “because of” their “sex.” Supreme Court precedent holds that this phrase includes discriminating against someone for not conforming to sex stereotypes. For example, in Price Waterhouse v. Hopkins the Court held that it was Title VII discrimination to fire a woman because she had masculine behaviors. She wasn’t fired because she was a woman, but because she was a woman who did not conform to stereotypes and norms applicable to women.

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).


That makes a ton of sense, the precedent about sex stereotypes was the missing piece for me. Thanks!


Also, In the article I believe the reasoning is outlined that given you wouldn't fire a woman for dating a man, then firing a man for dating a man is discriminating on he basis of sex. The behavior alone isn't objectionable, it's only when sex comes into play that you start discriminating which cases are ok and which aren't.


The crux of the argument is: "Pretend that you could magically change a person to the opposite sex but leave everything else the same. If that changes your decision to fire the person, it's sex-based discrimination."


I don’t think that quite explains it—try applying that thought experiment to a man or woman fired for being bisexual. I think the Price Waterhouse precedent of conforming to sex-based norms is an indispensable part of the puzzle.


The majority opinion doesn't mention the word "bisexual" ... perhaps indeed because their argument doesn't work?

'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."


Yes, the fight for explicit protection via legislation does need to continue, because this decision (potentially) leaves a loophole open to fire bisexuals, asexuals, etc.

Still a step forward, though.


Regarding sexual orientation I found this bit of logic interesting:

“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.


>regarding sexual orientation

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.


Though your hypothetical seems like it would run afoul of disparate impact protections. A violation of Title VII may be proven by showing that an employment practice or policy has a disproportionately adverse effect on members of the protected class. AFAICT, a disparate impact also does not require a showing of intention.


But is sexual preference a protected class?

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.


No the disparate impact I'm talking about has nothing to do with sexual preference. I'm talking about disparate impact on sex.

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.

https://en.wikipedia.org/wiki/Disparate_impact


What is the scope of this geographically? Does disparate impact apply locally, or is it generalized nationally first? If the discrimination took place somewhere like Palm Springs, in a place where half the population is LGBTQ, could they get away with it?


The scope of the law is probably commensurate the scope of the employment policy in question — i.e. for a nationwide company, the scope might be applied nationally. For a local mom-and-pop shop, it might apply locally.

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...


Yeah I dont believe it, its a platitude thats been repeated, BUT, 10.7% of households identify as same sex in the census.

http://web.archive.org/web/20181205015304/https://williamsin...


Yes, and also worth mentioning that this ruling really only impacts a subset of states.

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.

[1] https://i.imgur.com/7QBYkvp.png


I think you misread that pdf. The highest % of same sex couple is in San Francisco at 3%.


> 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.

“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.


The fact that sexual orientation has anything to do with a person's own sex is crazy. We need to normalize better terminology that just says who you're attracted to.

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 :)


> Titles like these make people think that the Supreme Court is “endorsing” or “rejecting” gay and transgender worker protections.

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...


Your argument is invalidated by the fact that apparently "conservative" judges here voted to SUPPORT LGBT rights in this case.

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.


7 of 9 justices voted with their respective liberal/conservative blocs and you say my point (that the public perceives the justices as having ideological biases) is invalidated?

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.


> apparently "conservative"

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.


> Which is great for Democrats (like myself)

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".


Political labels are almost meaningless; always judge politics by actions, not words. The Democrat Party today is as far from Andrew Jackson (it's first President) than North Korea (the Democratic People's Republic of Korea) is from being a democracy, or a republic.


The term "Democrat Party" (and, more generally, "Democrat" as an adjective) is both a shibboleth signaling opposing tribal membership, and an epithet signaling contempt for the Democratic Party — the actual name of the organization. It's adult name-calling. The usage is widely understood to be an intentional discourtesy.


You called yourself a "Democrat". Even if you want to disclaim association with the political party that calls itself that, you still have the same problem I attributed to them.


Judges are nominated and confirmed by elected officials, which are determined by the voters. Which part of that is "undemocratic"?


> Which part of that is "undemocratic"?

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.


> 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.


> The entire purpose of Civil Rights legislation was to enable the courts to "enact policies"

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.


Would you have preferred that judges didn’t rule the way they did in the case of Brown vs Board of Education?

The “busy bodies” are the people who want to deny employment to people just because who they share a bed with.


> Would you have preferred that judges didn’t rule the way they did in the case of Brown vs Board of Education?

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.


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.

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.


> 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?

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.


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.

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.


> You really don’t know much about how bad that whole “separate but equal” thing worked out in practice?

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.


So I should want to live in this great theoretical democracy where the will of the majority means the government can legally discriminate against me? Or as late as 2013 , there were cases where gay people were being arrested for “sodomy” because they were having sex in their own homes? (https://slate.com/human-interest/2013/08/gay-people-are-stil...) just because those are the laws passed by the “democratic process”?

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?


> So I should want to live in this great theoretical democracy where the will of the majority means the government can legally discriminate against me?

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?


Well, in both cases the “democratic elected representatives” thought so until “activist judges” got involved.


I didn't ask what they thought. I asked what you think.

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 trust “activist judges” who aren’t subject to the whims and votes of “religious people” who believe that a book written over two millennium ago means that if they allow homosexual acts and “race mixing” that they will damn the country to hell.


Maybe it’s because the majority should never have the right to impinge on basic liberties because of religious beliefs — see also, laws against “sodomy” (non heterosexual sex) and laws against “miscegenation” (interracial marriage).


What’s a “basic liberty?” Who gets to decide? What happens if the majority literally believes that God will punish their society if it condones “sinful” behavior? You can say that religious beliefs shouldn’t be the basis of law, but who put you in charge? And what happens when people’s “basic liberties” conflict? Isn’t freedom of association a “basic liberty?” Is there somewhere in the constitution that says it doesn’t apply to employers?

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.


So we can argue theory all day long. Do you think a “democracy” should have the right to imprison someone who marries someone of a different race or if two consenting adults decide to have sex?

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?


> 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).

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.


Ah, but Gorsuch is not liberal - at least, he was installed by the Republicans, and looked up to Scalia a lot, and was proposed by the Federalist Society.

That's what makes this decision such a welcome surprise to me. Maybe textualism isn't a lie.


That's quite true, although not totally invalidating my point, because the terms "liberal" and "conservative" as they apply to the Supreme Court tend to be too one-dimensional. Gorsuch and Roberts are definitely conservatives in some respects, but when it comes to social issues, they're more moderate/libertarian, in the vein of Anthony Kennedy.

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.


> when it comes to social issues

In a society, those are the only issues that actually matter.


> 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.


Literally no one's definition of "society" ignores individuals. Not sure what you're on about.


> Literally no one's definition of "society" ignores individuals.

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".


> because society has to respect individual rights

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).


> Actual 1st Amendment rights like "Freedom of Association" were severely curtailed by Civil Rights legislation

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.


> The 1st Amendment does not protect some vague right to "freedom of association".

Finally, we agree!

https://en.wikipedia.org/wiki/Freedom_of_association


That Wikipedia article actually references a Supreme Court decision that says the 1st Amendment does protect freedom of association because it is an essential part of freedom of speech. I haven't read the opinion in that case, though, so I don't know what "freedom of association" actually meant in the context of that case.

I personally would say the 9th and 10th Amendments are more to the point, since they talk about rights not specifically mentioned.


> That hasn't been true since the 1960s when the bulk of our Civil Rights legislation was passed.

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.


> 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?


> the Supreme Court literally did the thing you think it should not do.

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.


sigh

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?


> it's as if you're telling me what a piece of code does by reading the comments.

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.


> 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.

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. :)


> whatever code that you're thinking of isn't running anywhere but in the minds of (mostly White) voters

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! :-)


Respectfully, this is the hugest flaw with small c conservative thought, it's hyperfocused on the individual and ignores any larger social context or wellbeing to the detriment of a nation, state, etc


I think your "small c conservative" thought is actually more like libertarianism, but otherwise I agree.

(When I think of actual "small c conservatives", someone like G. K. Chesterton is what immediately comes to mind…)


I might have to revisit my perspective, thanks for this!


You can turn that around just as easily. As an Asian, I’m always a bit unsettled by the degree to which liberals are willing to absolutely set the social fabric on fire to accommodate individuals. Like, a school in small town Iowa where everyone is Christian can’t use their public institutions that they pay for to perform one of the most fundamental functions of human societies: socializing children in the community’s religion. I see why it’s that way through the view of western individualism, but I can’t say your average person in Bangladesh would see that as rooted in a consideration for the “larger social context.”


> set the social fabric on fire

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.


> the degree to which liberals are willing to absolutely set the social fabric on fire to accommodate individuals. Like, a school in small town Iowa where everyone is Christian can’t use their public institutions that they pay for to perform one of the most fundamental functions of human societies: socializing children in the community’s religion.

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.


IMO I find Alito's argument interesting, but dubious:

> 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.


I think his argument is more of the form 'people are trying to pass legislation to [explicitly] add these protections, therefore the existing legislation does not afford these protections' than trying to derive any principle from the current legislature's [un]willingness to pass it.

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)


Alito’s argument is basically: Title VII can’t already confer these protections, or else Congress wouldn’t be trying to enact them.


Right, but it's hard for me to see how that argument proves anything since it ignores the slow and deliberate nature of judicial review and how events can occur out-of-order.

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"?


Thank you for clarifying. I haven’t read the opinion yet, but have read some of the lower court rulings. I really thought they might split on orientation vs transgender. Orientation does feel like the bigger leap logically.

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 really depends. In this case, the Court interpreted an act of law enacted by Congress[1]. Congress has the authority to set statutory law as they see fit, and are fully within their rights to pass a bill that clarifies their intent, by either cementing the interpretation of the Court or by contradicting it. After which, that is the new law of the land, superseding the previous opinion of the court where it may have differed.

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


> A better title would be “Supreme Court holds that Title VII prohibits gay, transgender employment discrimination.”

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.


Sorry, I didn’t mean the HN title, since that reflects the Reuter’s title. I was taking a dig at Reuter’s.


Oh no, that was totally clear. But we always try to change misleading titles—indeed the guidelines say to (as you know): https://news.ycombinator.com/newsguidelines.html.


Based on the reasoning used by the dissent in this case, they would have similarly dissented in Loving v. Virginia.


This is superficially true, but very different considerations applied in the two contexts. Loving was a 14th amendment case, while this was a statutory case. In statutory cases the Supreme Court is more deferential to what Congress intended to say, because Congress can easily change the statute if it wants to change the outcome. Moreover, in Loving there was the issue that marriage has long been considered one of the most fundamental rights in the Anglo-American tradition.


And the right to work and provide a living for yourself isn’t?


No. We extensively regulate commerce.


Until this ruling passed, employers were legally allowed to discriminate against LGBTQ in many states because the “majority” elected officials that thought that was okay.


I'm not sure what that has to do with my point or anything upthread.


You seem pretty well read on SCOTUS.

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.



Textualism is a meaningless distinction.

Back in the Lockner era, textualists did nothing but legislate from the bench. Which lead to the switch in time to save nine.


Here's the decision: https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf

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.


The supporters (is that the right word) seem to agree. The issue isn't that the people were discriminated based on their sexual orientation or gender identity, but because of their sex. That is to say, if they were males presenting as females, then the discrimination is based on their sex of being male because had they been female presenting as female they would not have faced such discrimination.

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.


No you're completely right, the argument they make is quite correct: the discrimination is based on preconceived notions of who a certain sex is allowed to present as or be attracted to.

The correct term would be the majority, or assenters maybe


> 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.

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.


A blanket policy ban on hiring people attracted to women, or people attracted to both sexes, or attracted to neither sex. The court did not add "sexual orientation" to the list of protected classes, they just said that firing a man for being attracted to a man, but not firing a woman for being attracted to a man is discrimination based on the sex of the employee.


> The supporters (is that the right word)

FYI - the word is "the majority".


>race, color, religion, sex, nationality

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 ...


That's not the intention of these laws though. The basic presumption is "it's a free country, so people should be able to discriminate for whatever reason they want". However, when there's an overwhelming need for it, we will make carve-outs for specific situations. In particular things that people really can't change (race, nationality, sex) or that we deem as a society that they shouldn't have to change (religion).

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.


> race, color, religion, sex, or national origin

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.


> Sex can be changed, except on chromosome level So it can't be changed after all


The problem with that is how easy it is to construct an argument that something like race is an impediment to work because of the biases of coworkers or customers.

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'm sure some albinos could claim discrimination in customer-facing jobs due to skin tone and eye color. It just might not be obvious (e.g. the employer simply never called them back after the interview, rather than hiring them and explicitly firing them later for "scaring our customers").


Playing Devil's advocate, let's imagine I pour my life savings into opening up a fruit stand, it does well I move to a fruit store that is popular and everyone loves, at this point everything has been bought with my personal funds, it is basically my property, I run it as a sole proprietorship instead of an LLC, I hire people, but ultimately everything is bought paid for and owned by me.

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.


This is a bad example because discriminating against people with purple hair is absurd on its face, and doesn't lead people to question why that should be allowed.

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.


None of these are discrimination in the narrower sense that it's usually understood as.

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.


Yes, these are all arguments you might be able to use to varying degrees of success to defend yourself against a discrimination lawsuit, but that's a lot more hassle to deal with than if said lawsuits are already just invalid on their face because discrimination is legal generally except for a few specific kinds.

Also I'm not as optimistic as you are that some of these defenses would work.


Because you live in a society that mostly functions because people mostly don't discriminate against each other, and the conditions which result in you being able to open a fruit stand for personal profit would be basically impossible without that.

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.


Some people would rather argue from their hypothetical spherical fruit stand in a vacuum than to argue from reality at hand.


You're absolutely allowed to discriminate based on hair color because it's not a protected class.

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).


> "You're absolutely allowed to discriminate based on hair color because it's not a protected class."

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.


That's the inverse, not the converse, and if we're talking about propositional logic it is not implied by the original statement.


I don't think you're saying anything different than the comment you're replying to. They are themselves replying to the question "well, why not just forbid discrimination on anything except the ability to perform the job", and their answer is the same as your second paragraph.


>Why should the government be able to legally control what I choose to do with my property and my goods. ... So why should the government force me to sell them to people I do not want to?

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.


The entire premise of government is that you give up some of your personal freedoms in return for rules in a society. What you're saying makes sense in an anarchist regime, but that's not what we have today.

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).


LOL!

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.


Game theory, in specific a coordination problem:

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.


I guess this perspective makes too much sense for the people who want to continue discrimination.


> Why should the government be able to legally control what I choose to do with my property and my goods...

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.


That is not true. It remains private property, even though some public regulations apply.

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.


I specified that it ceases to be as private as it once was, not that it was no longer private.


Yes, but the case presented focused solely on the definition of "sex" in title VII so that's what the court ruled on. As programmers its easy for us to take it up to a more abstract level, but in the legal world I guess that's difficult to do.


It's not that it's more difficult to do, it's that you generally don't do it. SCOTUS in particular will not respond to, mention, or address anything even approaching a hypothetical scenario, which is sometimes frustrating when the specifics of a case aren't just ride for larger sweeping changes that society may want. You'll often hear of proponents of one reform or another saying that a given case is perfect for SCOTUS because it lines up very closely with their policy objectives.


I don't have an example off the top of my head, but I'm pretty sure I've seen arguments presented to the SCOTUS that are absolutely based on hypotheticals, including hypotheticals introduced by the justices themselves.

EDIT: Here's a very recent one: https://www.msn.com/en-us/news/us/supreme-court-justice-s-co...


Yes the justices ask questions around hypotheticals and can ask the attorneys to make arguments based on hypothetical situations the justices present, but they hear only specific cases, not hypothetical ones, and the decisions refer to the specifics of the attorneys' arguments and the case law only.


Of course. There's no court case that is based entirely on a hypothetical. But it seems exceedingly common - especially on the scale of SCOTUS - to abstract a specific event or argument to the more general one.

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 accurate? Maybe.

More effective? No. You'd have endless lawsuits debating what traits do or do not affect a person's ability to perform.


Only if you believe discrimination laws are cost free. On the other hand, if you believe that such laws have cost at scale - frivolous lawsuits from fired employees erroneously claiming protection, and more constrained hiring and firing to avoid such lawsuits - then you'd only want anti-discrimination laws for the cases where discrimination has existed historically.


Yes, kinda. It's called "bona fide occupational qualification". The law states that you may discriminate so long as (race, sex, national origin, etc...) "is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise"

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...


Protected characteristics are not an never-ending list, and that's the only thing you cannot discriminate based on.

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.


That's not really a justiciable standard. If I say only aggressive, pushy people can effectively sell cars at my dealership, and a timid person thinks I'm full of it, how's a court supposed to resolve that dispute?


The dissenters said that the 1964 Civil Rights Act did not intend to cover sexual orientation or gender identity and that the proper remedy is for Congress to change the law and not for the courts to, in effect, become legislators.


I could honestly see it both ways, but this argument seems relatively weak to me. The court here isn’t necessarily creating legislation but rather are making the judgment/interpretation that “sex” does include sexual orientation. From what I can tell making those kind of interpretations are at the core of the Court’s purpose.


That is exactly what the majority opinion stated in response to the historical meaning argument. It is not reasonable to expect every time a court finds a law should be applied in a way its never been applied before to then throw up their metaphorical hands and say "welp. Guess we have to let the legislative branch do something, our work here is done."

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.


> Re-interpreting existing law is a HUGE component of our legal process.

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.


It's the same BS that got us out of control qualified immunity, just because a court hadn't already found that the precise way a cop/government official violated your rights was a violation of your rights they couldn't be charged for it. [0] More conservative justices love originalism because it lets them just throw back to the decisions of a more backwards time and say, 'well we have to respect their direct explicit intent' [1] it's a convenient way to not move forward.

[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.


> The court here isn’t necessarily creating legislation but rather are making the judgment/interpretation that “sex” does include sexual orientation.

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.


Thanks for the clarification. I read Kavanaugh’s dissent instead of the Court’s opinion, so I made a wrong assumption. You are correct, they aren’t making the argument I was thinking they were.

With that said, I still think that this is far from the Judiciary system amending legislation.


They are basically right. It is unimaginable anyone writing the 1964 Civil Rights Act had transgenders in mind.


On the other hand, the entire idea of transgenderism is based on sex. Without sex, transgenderism doesn't exist. So by discriminating on the basis of if a person is transgender, you are by extension discriminating based on their sex.


The counter to this would be that these bans aren't discriminatory on the basis of sex because the same rule applies to both sexes. It all depends on how you want to look at it. It can either be:

(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.


> Practically they are the same

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?


They're both discriminatory. The question is what are you discriminating against?


(1) references the subject's sex less directly, but it is clearly still referencing it, and thus is discriminating based on sex.


It's perhaps in 1964 many of those voting would not have thought of transgender folks... on the other hand we also expect these laws to be applied fairly. A random house member might have some constituency in mind, and not everyone else, but is that the basis for not protecting someone under the law?

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.


Unimaginable? Why? The Stonewall riot happened in 1969 and it wasn't the first action by and in support of transgender people in the US. In what year would it have been imaginable, for you?

https://en.wikipedia.org/wiki/List_of_LGBT_actions_in_the_Un...


Here is the court's response to this argument[0]:

> "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


Textualism != Originalism

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


Let's apply the same logic to the 2nd amendment!

Only flint-lock muzzle loaders allowed.


Flint-lock muzzle loaders, private warships, hand crank machine guns, etc.


> hand crank machine guns, etc.

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.


That doesn’t logically follow, the 2A precludes government restriction rather than permitting one owning a particular weapon.


We actually do. Do you know anybody with a mortar tube?


You can own a mortar tube in the US. It's classified as a "destructive device" so you might have to fill out some extra forms, and it's probably hard to find someone who will sell it to you.


Do you know anybody in the 1700s with magfed rifles?


Not that I'm aware, but they did have privately owned cannons firing grapeshot; veritable WMDs. Grenades were also a well established concept back then, though I don't know what the history of private grenade ownership in America is.


"What the writers had in mind" is one way of interpreting laws in the present day, but by no means the only way. You will probably find a ton of laws in effect today that are applied to things, or interpreted in ways, that no one could have anticipated when they were written.


The thing is that the concept of transgender and homosexuality both existed and were recognized at the time. This isn't extending law based on telegraphs to computers; this is extending law based on telegraphs to horse-based mail delivery.

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


Why bother writing laws if the mindset of legislators is all the matters? Members of Congress could submit daily diaries for the record, and then the Supreme Court could try to imagine what they might have been thinking 60 years ago whenever an issue comes up.

Please read the decision, it's a very straightforward reading of the law. Transgender discrimination is sex discrimination by definition.


Not really. This scans from a textualist perspective, which is one approach to law greatly encouraged by conservative judges.

You throw away A LOT of law without textualism.


It's a good thing this view isn't taken on free speech or you'd have to rely on legislation to make it legal to publish your post online.


To me that is so simple, and makes so much sense. It's time to legislate!


I’m not sure why this thread is giving so little focus to the logic of the justices who voted in favor. Their argument makes sense too.

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.


Huh, seems pretty obvious to me.


But isn't it literally the Supreme Court's job to interpret competing possibilities of extant laws? This seems like the weakest argument you could think of.


SCOTUS does not consider or rule on hypotheticals, only the specifics of a given case. And generally, judges will rule only based on the individual attorneys' arguments, not other arguments they can think of but the attorneys did not make.


I don't see what that has to do with anything. Saying that "congress should change the law because the law is vague" isn't a ruling. The Supreme Court has weighed in on far more vague and unclear laws before. It's basically just saying that they don't want to touch the issue.


That's not the argument the dissenters are making. They're saying that the fact Congress has tried several times and failed to add specific orientation and transgender provisions is evidence they shouldn't be included in "sex" (otherwise Congress would see no reason to add those specific provisions). Just because we happen to disagree with the argument doesn't necessarily make it a bad legal argument.


If you want a good tech example of how courts evolve the definition of phrases as society evolves, you need look no farther than the word "eavesdropping." We use that word all the time today, but why do we call it that? When towns started to give way to cities, the spacing between houses began to shrink to the point where rain could cause water to spill off the roof of one house onto their neighbors property, a process that was called eaves dropping because the water dropped off the eaves of the roofs. Who owned that water and who was liable for the damages it might cause became a thing courts needed to address. That English common law decision, that courts could adjudicate the ownership of and damages caused by things that unintentionally pierced property boundaries "because water" is today the legal basis for a broad class of infosec law that we think of as eavesdropping law.

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.


> example of how courts evolve the definition of phrases as society evolves

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.


(As the poster you're responding to) I don't disagree, but I also see that those who are opposed to this decision are inclined to frame it as the courts re-defining the word sex (check how Fox News covers this over the next few days). You can argue "it's not a redefinition" and cite the courts decision as basis, but someone who wanted a different opinion is likely to say "the court came to that decision because they redefined the word." My counter to that persons argument is whether we call it redefinition or not courts exist to interpret things, and there is nothing new in them doing so here and now. That's their job, and that's how we got the concept of eavesdropping.


> employers banning being married to a women is only "banned" for one gender and not the other, making it sexual descrimination

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.


There are a few outstanding questions that will test this. Can someone discriminate against an asexual or bisexual person? If so, then this logic doesn't protect LGBT but only LGT, which is something of an important distinction in social circles. If not, then it seems that they aren't being honest about their justification. Granted, I haven't read the full opinion and only a summary, so these corner cases may be handled.


The civil rights act has been on the books for 64 years; but has not been interpreted this way historically.


It has always been interpretted exactly this way.

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.


to play devil's advocate here, that argument breaks down for bisexual people. But I'm aware that the court's opinion actually handles this because of prior precedent holding it illegal to discriminate against gender norms.


I think this is the second time I've seen this sort of reply, and truthfully I don't understand? Why wouldn't the argument apply for bisexuals?

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).


Consider a generic action FOO. Suppose Alice and Bob are identical in all respect except that Alice is female and Bob is male; and Alice is heterosexual.

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.


Thank you! I think I understand what you’re trying to say here, and it also clarifies why I found this response confusing.

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. >_<


Looks like it hasn't been interpreted by the supreme court at all, really:

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


> (e.g. employers banning being married to a women is only "banned" for one gender and not the other, making it sexual descrimination)

What about in a state that allows same sex marriage?


Such as every state?


Yes, for example. Is it sexual discrimination to refuse to hire someone due to them being married to a woman in a state that allows a man or woman to be married to a woman?


It is sex discrimination to refuse to hire someone due to them being married to a woman if you would hire someone of that person's opposite sex despite them being married to a woman.

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.


But, is it discrimination if the employer could care less what the applicant's sex is, and only decided on whether the spouse was female?

Edit: So the company has only employees that are either: not married, or only married to a male. How does this apply?


There isn't precedent for discrimination based on the gender of spouse specifically. In general, to answer the question "Is it discrimination?" It's helpful to apply the replacement test: if it were someone else who differed in only one non-work related aspect, would that person receive the same outcome?

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 answer to that question would depend on how the employer has treated other applicants of the opposite gender in same situation (that is, being married to a female). The law hinges on disparate treatment; it does not account for what the employer cares about.


> no farther than the word "eavesdropping.

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

[1] https://en.wikipedia.org/wiki/Eavesdropping


Source added to post above because HN wasn't letting me respond to your post directly.


It would be cool if you edited the wiki article, adding an alternate etymology, citing the 1911 E.B.


Will do - will be my first wikipedia edit - thanks!


Unfortunately it comes at the same time that the administration rolled back healthcare protections for transgender people. Must be terrifying for someone to make your basic humanity a political football. SCOTUS rulings are much more durable than executive actions though.


> Must be terrifying for someone to make your basic humanity a political football.

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.


Ah but did you know how brave you are for existing? Imagine... I couldn't exist like that... but you? So brave... your courage... to just stand there and exist. Wow. I'm so inspired. I tell my wine tasting friends how brave all my lgbt coworkers are and i honestly feel like an honorary lgbt and i just tear up. sniff


I've seen some people floating the idea that this ruling also nullifies that rollback, as the affordable care act does not allow discrimination of provision of care based on sex, and if this ruling is centered around the whether or not the word sex encompasses any characteristic of which sex is a part, then the same logic would apply to the ACA also.


> SCOTUS rulings are much more durable than executive actions though.

...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.


I'd be surprised if that EO won't come up for judicial review before SCOTUS before too long. And it probably gets the same 6-3 treatment.


That ruling is dead on arrival now - it's only a matter of time before it's enjoined by federal district courts for directly contradicting the Supreme Court's interpretation of the relevant statutory language.


I tried to resurrect your parent post, but it remains dead. So I'll ask here instead.

> 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.


How can "it just got harder for Trump to brag about his SCOTUS" picks be construed as a positive statement about Trump?


The actual decision, BOSTOCK v. CLAYTON COUNTY, GEORGIA, is here [1]

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


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.


>Aren’t these cases different, the employers ask, given that an employer could refuse to hire a gay or transgender individual without ever learning the applicant’s sex? Sup-pose an employer asked homosexual or transgender appli-cants to tick a box on its application form. The employerthen had someone else redact any information that could beused to discern sex. The resulting applications would dis-close which individuals are homosexual or transgenderwithout revealing whether they also happen to be men or women. Doesn’t that possibility indicate that the employer’s discrimination against homosexual or transgender persons cannot be sex discrimination?

>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.


I believe that in this hypothetical there is only a single checkbox [Either Catholic or Black/Neither Catholic nor Black], such that the employer will have learned neither the applicant's race nor their religion with certainty.


They will know the applicant's race & religion within the classification system the employer uses. In other words, in the eyes of this hypothetical employer the racial system is Black & Not Black. By not checking the box they know for certain that the employee is Not Black and presumably eligible to be hired. The fact that others might subdivide Black or Not Black into different categories doesn't change anything for the employer.


Sure, but the 'homosexual/heterosexual' classification system the other hypothetical employer uses is also intended to ensure that women are ineligible to be hired if they have the same sexual preferences as those men who are eligible to be hired, and vice versa. One could argue that this treats men and women 'separately, but equally' as both have the chance to be hired under different hiring criteria unlike the illustrative example, but 'separate but equal' is so well understood to be unconstitutional it's not really worth raising as a counterargument.


what are you talking about? no it doesn't. There are a myriad of different religions and races.


Dissenting opinions start at page 38: https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf


Kavanaugh's separate dissent at 145.


tldr...

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.


Having read the opinion and dissents, I heartily disagree that Kavanaugh made solid points. Nor Alito, for that matter.

> "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.


Related question for discussion: Do you believe dress codes that have different standards for men and women should be outlawed? For example, if a man wants to "cross-dress" at work in front of clients and complies with the female dress code it follows from the reasoning of this ruling he should be allowed to.


We had that discussion here in Sweden a decade ago. Buss drivers had a dress code that required pants for men, while women could choose between pants or skirt. That year it was extra hot weather during the summer and quite a few male drivers were complaining about the heat, and some even went as far as bringing a kilt as a way of protest against the discriminating dress code.

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.


Their logic of "imagine a person doing X (say... being attracted to a male) if you'd punish a male for it but not a female that's sex discrimination" is going to open up whole new world of equality/discrimination lawsuits.

Sex based bathrooms for example are now discrimination under this logic.


There's nothing legally stopping someone from using whichever restroom they want in most states.


My answer is that we have better things to do than to argue about dress codes.

I feel like the media and social media is making people obsess about trivialities and edge cases.


> 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.


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.


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.


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.


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.


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.


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.


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


> 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.


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?"

"..."


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


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.



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.



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.


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