Civil Rights

[old_gregg]

I missed the janitor example... can you give me a page number? Page 9 (24/52) has these:

• A man sues a church for being dismissed as an in-house attorney after he enters a samesex marriage in violation of the church’s doctrines on marriage.
• A woman in a same-sex relationship sues an association of churches for rejecting her application to be chief financial officer based on failure to believe and comply with church doctrines on sexuality.
• A transgender woman sues when not hired as a chapel architect at a denominational headquarters.

first, those are hypotheticals. second, the reference comes from amos (which i reference above) (483 U.S. 327 (1987)). here's what you're looking for:
"Such conflicts risk fatally undermining the outcome in Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327 (1987), where the Court upheld Title VII’s religious exemption against a challenge by an employee who was a member of the faith but was terminated for failing to live up to its standards."

the employee was a gym janitor.

Wrenching litigation that will last years and cost millions of dollars should be music to your ears!

i don't give a shit about litigation ever. doesn't change my life. but, it is not a compelling argument.

[Walter Sobchak]

Found it. Thanks.

[All-American]

the "it's going to be hard figure out" argument is dumb as shit. "wrenching litigation"?

Just to be clear-- do you think the Church is wrong because its interests will be protected without litigation, because you think the Church's interests will be protected and the costs of litigation are not that significant, or because the Church has no legitimate interest that needs to be protected?

[old_gregg]

Just to be clear-- do you think the Church is wrong because its interests will be protected without litigation, because you think the Church's interests will be protected and the costs of litigation are not that significant, or because the Church has no legitimate interest that needs to be protected?

former

[All-American]

I think it should give us cause for skepticism, if not suspicion, when the Court determines that language means what we want it to mean, even though nobody thought it meant that before. But that doesn't mean we shouldn't do what the law says, even though the drafters may not have thought of all the things the language they drafted covered.

I like the take of Ilya Shapiro on the textualism of Bostock, and tend to agree that it is a fairly close call.

https://www.nationalreview.com/2020/...xtualists-now/

I'm mostly glad we did not follow the Judge Posner route, and expressly toss the text out the window if the judges think it no longer conforms with what they in their now-enlightened state realize the law should be.

[All-American]

former

There are three things. Do you mean the first or the second?

[old_gregg]

There are three things. Do you mean the first or the second?

draft clearer. second.

[Topper]

I was one of the few around here who thought the reasoning of Justice Kennedy's gay marriage opinion was a joke, and I got lambasted for it. I still stand by that opinion (although I'm happy about the result).

I have the complete opposite view of Gorsuch's opinion in this case. I 100% agree with Justice Kavanaugh that it is not the role of the Supreme Court (or any other court) to amend statutes, even when Congress is as dysfunctional as it is today, just like its my view that it is not the Court's place to invent constitutional rights out of cloth that have no grounding in the text of the Constitution. But I completely disagree that Gorsuch's opinion does that. To know whether a court is "amending" a statute, you have to start with an understanding of what the current statute means. And that depends on the text, not on someone's views about politics or morality or even what the legislature intended when the statue was enacted. And as hard as Justices Alito and Kavanaugh tried, I don't think they laid a finger on Gorsuch's textual analysis, which is pretty unimpeachable from my perspective.

I think the most important consideration of this case, which neither of the dissenting opinions even attempt to deal with head on, is that the question in the case was not really whether Title VII bars discrimination on the basis of sexual orientation or gender identity. It obviously doesn't. The real question is whether discrimination because of sexual orientation or gender identity necessarily entails discrimination because of sex. I have yet to see a reasonable argument that it doesn't. In fact, the definitions of sexual orientation and gender identity that Justice Alito uses in his opinion include the word "sex." And I don't see how it would be possible to define those characteristics without a reference to sex (or some synonym for it). So, because an employer that discriminates on the basis of sexual orientation or gender identity is, by definition, discriminating because of sex, Title VII unambiguously applies.

I don't think the question here is whether the Court should leave it to Congress to resolve these kinds of issues. The real question is what are the issues that Congress needs to resolve? If the Court had held that discrimination on the basis of sexual orientation and gender identity does NOT entail discrimination on the basis of sex in violation of Title VII, then those that think the law should protect LGBT individuals would be required to work to amend the statute. But because the Court (correctly, IMO) concluded that Title VII DOES bar discrimination on the basis of sexual orientation and gender identity, the burden is now on those that think the law should not protect such individuals to fight for an amendment. The question here is not whether Congress should be the one's to legislate on these issues, but who has the burden to legislate to get their views enacted into law.

In my view, Gorsuch's reasoning is consistent with his principled view that statutory interpretation depends on the text and not on the views of individual legislators. The real hypocrites in this decision are those that have previously taken a view consistent with Gorsuch's, but now are dissenting, and those that have previously taken the view that legislative intent is paramount, regardless of the text (e.g., J. Breyer) who joined the majority.

As an aside, while I think Gorsuch's reasoning was unimpeachable, I can't stand his writing style. It comes off as if he is trying to sound pompous when he really isn't. Some of his questions during oral argument come off that way too. It is annoying.

I agree with your analysis of the Gorsuch opinion, except for maybe your quibble about style.

[SeattleUte]

I was one of the few around here who thought the reasoning of Justice Kennedy's gay marriage opinion was a joke, and I got lambasted for it. I still stand by that opinion (although I'm happy about the result).

I have the complete opposite view of Gorsuch's opinion in this case. I 100% agree with Justice Kavanaugh that it is not the role of the Supreme Court (or any other court) to amend statutes, even when Congress is as dysfunctional as it is today, just like its my view that it is not the Court's place to invent constitutional rights out of cloth that have no grounding in the text of the Constitution. But I completely disagree that Gorsuch's opinion does that. To know whether a court is "amending" a statute, you have to start with an understanding of what the current statute means. And that depends on the text, not on someone's views about politics or morality or even what the legislature intended when the statue was enacted. And as hard as Justices Alito and Kavanaugh tried, I don't think they laid a finger on Gorsuch's textual analysis, which is pretty unimpeachable from my perspective.

I think the most important consideration of this case, which neither of the dissenting opinions even attempt to deal with head on, is that the question in the case was not really whether Title VII bars discrimination on the basis of sexual orientation or gender identity. It obviously doesn't. The real question is whether discrimination because of sexual orientation or gender identity necessarily entails discrimination because of sex. I have yet to see a reasonable argument that it doesn't. In fact, the definitions of sexual orientation and gender identity that Justice Alito uses in his opinion include the word "sex." And I don't see how it would be possible to define those characteristics without a reference to sex (or some synonym for it). So, because an employer that discriminates on the basis of sexual orientation or gender identity is, by definition, discriminating because of sex, Title VII unambiguously applies.

I don't think the question here is whether the Court should leave it to Congress to resolve these kinds of issues. The real question is what are the issues that Congress needs to resolve? If the Court had held that discrimination on the basis of sexual orientation and gender identity does NOT entail discrimination on the basis of sex in violation of Title VII, then those that think the law should protect LGBT individuals would be required to work to amend the statute. But because the Court (correctly, IMO) concluded that Title VII DOES bar discrimination on the basis of sexual orientation and gender identity, the burden is now on those that think the law should not protect such individuals to fight for an amendment. The question here is not whether Congress should be the one's to legislate on these issues, but who has the burden to legislate to get their views enacted into law.

In my view, Gorsuch's reasoning is consistent with his principled view that statutory interpretation depends on the text and not on the views of individual legislators. The real hypocrites in this decision are those that have previously taken a view consistent with Gorsuch's, but now are dissenting, and those that have previously taken the view that legislative intent is paramount, regardless of the text (e.g., J. Breyer) who joined the majority.

As an aside, while I think Gorsuch's reasoning was unimpeachable, I can't stand his writing style. It comes off as if he is trying to sound pompous when he really isn't. Some of his questions during oral argument come off that way too. It is annoying.

I agree with the decision. But just to play devil’s advocate with your effort to reconcile fidelity to the text, rejection of applying current norms and context external to the text, if an employer fires an employee for sex on the job with a subordinate, does that violate the act because it was “because of sex”? Also, I think that those who purport to chain themselves to the “original intent” are hypocritical because they too are deploying their alleged principle to reach a politically motivated outcome. We all know what motivated this opinion. The change in public opinion toward LGBT did.

I don’t know how it helps to lie to ourselves about the motivation for the opinion. The fact is that the meaning of language changes as societal mores change, technology is introduced, and new problems arise in an ever changing and more complex society.

I don’t think it’s a bad thing that the Court is influenced by progressive public opinion. That is a real restraint on the court’s exercise of power, and the Court is otherwise not a democratic institution after the justices’ s original appointment and approval by the senate.

[wapiti]

I agree with the decision. But just to play devil’s advocate with your effort to reconcile fidelity to the text, rejection of applying current norms and context external to the text, if an employer fires an employee for sex on the job with a subordinate, does that violate the act because it was “because of sex”? Also, I think that those who purport to chain themselves to the “original intent” are hypocritical because they too are deploying their alleged principle to reach a politically motivated outcome. We all know what motivated this opinion. The change in public opinion toward LGBT did.

I don’t know how it helps to lie to ourselves about the motivation for the opinion. The fact is that the meaning of language changes as societal mores change, technology is introduced, and new problems arise in an ever changing and more complex society.

I don’t think it’s a bad thing that the Court is influenced by progressive public opinion. That is a real restraint on the court’s exercise of power, and the Court is otherwise not a democratic institution after the justices’ s original appointment and approval by the senate.

Anyone who has a problem with this opinion should blame Congress, not the court. This had to be the law of land and 6 justices recognized that. Congress could craft a better law but its too dysfunctional.

[All-American]

I don’t know how it helps to lie to ourselves about the motivation for the opinion. The fact is that the meaning of language changes as societal mores change, technology is introduced, and new problems arise in an ever changing and more complex society.

Because it is not the Court's job to change the law. If the law is supposed to be something different than what it is, then the legislature needs to change it.

I would rather maintain even a facade of separation of powers principles than pretend it is okay for the Court to legislate.

[UVACoug]

I agree with the decision. But just to play devil’s advocate with your effort to reconcile fidelity to the text, rejection of applying current norms and context external to the text, if an employer fires an employee for sex on the job with a subordinate, does that violate the act because it was “because of sex”?

No. Because everyone knows that the definition of "sex" that Congress was relying on when the law was passed was biological sex, not the act of sex. No reasonable person would argue that Congress intended to ban discrimination because of people having sex. Thus, the ambiguity that exists because the word has more than one accepted definition was not at issue in the case, and likely never would be (at least not in a case that reaches the Supreme Court). Everyone in the majority and both dissents agree that "sex"= biological sex in this case.

Also, I think that those who purport to chain themselves to the “original intent” are hypocritical because they too are deploying their alleged principle to reach a politically motivated outcome.

I'm not sure I understand your point here. If your point is that by applying "original intent" you are reaching an outcome motivated by the political views of the Congress and President that passed and signed the law, that is obvious and unsurprising. Of course the law was politically motivated. The "political branches" act on the basis of politics by definition. And when a statute is enacted, it shows that the political motivations of enough members of Congress was strong enough to see their political preferences turned into law. Why shouldn't the law be applied in accordance with the political motivations of those that passed it?

If your point is the one that I see many liberals push -- that "originalism" is just a facade to make certain political preferences appear more authoritative than others, I don't see how this case illustrates that at all. Gorsuch's opinion was not based on the outcome that the Congress that passed Title VII would have intended. He explicitly states that in his opinion. And even the liberals would not have said that the 1964 Congress would have intended to protect LGBT rights when the law was passed. Alito and Kavanaugh criticize Gorsuch for not applying the law the way the Congress that passed it would have intended.

This case did not turn on "original intent" with respect to the outcome. It turned on the "plain meaning" of the words of the statute, which has not changed at all since 1964. No one argued that the meaning of "sex" or "because of" changed at all between now and 1964.

We all know what motivated this opinion. The change in public opinion toward LGBT did.

I absolutely agree that the change in public opinion allowed this decision to be made, but I don't agree that it was what motivated it. If it did, how would you explain Roberts joining the decision after his strong dissent in Obergefell. And do you really think Gorsuch would have joined the majority in Obergefell? While I don't think this case would have had the same outcome if it was decided 40 years ago, the logic of the reasoning in Gorsuch's decision is sound and I think it is what dictated the outcome. I don't think he or Roberts would have had any problem deciding that Title VII did not protect gay or transgender people if the law allowed that outcome.

I don’t know how it helps to lie to ourselves about the motivation for the opinion. The fact is that the meaning of language changes as societal mores change, technology is introduced, and new problems arise in an ever changing and more complex society.

I don’t think it’s a bad thing that the Court is influenced by progressive public opinion. That is a real restraint on the court’s exercise of power, and the Court is otherwise not a democratic institution after the justices’ s original appointment and approval by the senate.

There is no change in meaning of the words of this statute. The definitions applied by Gorsuch in this opinion were the same today as they were in 1964. It helps society to apply the law as it is written because to do otherwise would be anti-democratic. Our political system is designed to make it somewhat difficult to enact new laws or to repeal old ones. It is even harder to change the Constitution. That is by design. It is only when the political will of Congress, which is meant to be a reflection of the political will of the people, is strong enough that laws change. When the Court, who is not elected and not subject to any political accountability, decides that the meaning of a law should change because of a change in societal mores or the introduction of some technology, they are acting as oligarchs. How is that consistent with democracy? And how does it benefit society? There is no reason to believe that the 9 people that sit on the Supreme Court have any more special wisdom or knowledge, or have a moral compass that is more well-grounded, than the people do collectively.

[SeattleUte]

UVA, what I mean by the hypocrisy of original intent is that its adherents claim it’s a neutral check on judicial power, but this dovetails nicely with the adherents’ inevitable and unfailing conserve politics when progressives want to contextualize the text to expand individual rights. But sensitivity to progressive public opinion has proved to be a real check on the judge’ individual politics—which is what we’re concerned about here. We’re less concerned about them being influenced by public opinion unless the tyranny of the majority is a problem. Where individual rights of minorities are an issue that’s not a concern.

I agree that this case does not demonstrate originalism used to justify politically conservative opinions. But Gorsuch, while blowing to public opinion, pretends to maintain his originalist values. We should be honest about the real rationale or motivation. The founders are less qualified than the public-influenced modern judges to determine meaning of any provision in context.

[Bo Diddley]

Because it is not the Court's job to change the law. If the law is supposed to be something different than what it is, then the legislature needs to change it.

I would rather maintain even a facade of separation of powers principles than pretend it is okay for the Court to legislate.

This.

I'm happy with the outcome itself, but the ends don't justify the means. We're going down a dangerous road.

[MartyFunkhouser]

I'm happy with the result. However, at some point the Supreme Court is going to have to stop punting and actually address if LGBTQ people are a protected class or not and what level of scrutiny will be applied to laws that discriminate on the basis of being LGBTQ.