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).
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.
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.
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.
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].
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.
> 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:
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.
I think you answer your own objection right there. Conservatives don't conserve anything, it's liberalism with a speed limit. The United States doesn't have any party that is interested in conserving anything cultural or legal, anywhere. Which is great for Democrats (like myself).
(There are many conservative voters in both parties, of course, and they would absolutely disagree with this latest ruling. But that's not the same as those voters having a party—there are literally no "conservative" elites in position of power in the Democrat or Republican parties, or anywhere else for that matter. We're effectively at year zero.)
> not because it's what they believe
No, they believe it. The courts are by far the fastest and best means of enacting liberal reforms today. Voters cannot be relied upon to enact these kinds of changes themselves (quite the opposite, in fact—they consistently vote against them). Civil rights legal principles always trump any other law or principle, which is why it's the sole justification for all of these landmark cultural rulings. The Anglo-Saxon legal tradition is as out-of-date with culture today as a statue of George Washington or Thomas Jefferson.
After the courts, we have to rely primarily on finance (private corporations) to push change; Goldman Sachs and assorted hedge funds are incredibly powerful allies in the long march towards progress.
I find it rather grimly ironic that a political party that calls itself "Democratic" endorses explicitly non democratic means for making reforms, on the grounds that, in your own words, "Voters cannot be relied upon to enact these kinds of changes themselves".
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.
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?
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?
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.
> 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.
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.
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.
> 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.
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. :)
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
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.”
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)
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.
> 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.
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.
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.
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.”