Gay/Lesbian Issues

Workplace Discrimination Against Gays Is Covered Under the Civil Rights Act, Says a Second Federal Court

A third court disagrees. The Supreme Court had the chance to take on the case to resolve the conflict, but it declined.

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rainbow flag and gavel
Elvira Koneva / Dreamstime.com

Two federal courts have now decided that Title VII of the Civil Rights Act protects people from workplace discrimination on the basis of sexual orientation, even though the law does not specifically use those words. A third federal court had previously ruled the opposite, and the current Department of Justice does not agree that federal antidiscrimination law covers sexual orientation. So there's a good chance one of these cases will end up before the Supreme Court within the next couple of years.

On Monday the 2nd U.S. Circuit Court of Appeals, which covers Connecticut, New York, and Vermont, reversed a previous panel decision and concluded, in a 10–3 opinion, that discriminating against a person on the basis of sexual orientation is a type of sex-based discrimination forbidden under federal law.

The Civil Rights Act of 1964 does not mention sexual orientation, and when it was first passed it certainly was not assumed to cover sexual orientation. But over time, as court precedents and case law have hammered out the contours of what "discrimination based on sex" means in practice, the door has opened to a broader understanding of the phrase. One of those precedents, a Supreme Court decision from 1989, ruled that punishing an employee on the basis of whether he or sh exhibited stereotypical gender traits is a form of forbidden sex discrimination.

That ruling is now being used to argue that anti-LGBT discrimination essentially punishes an employee on the basis of not engaging in stereotypical gender traits, as in entering relationships with somebody of the opposite sex (or in transgender cases, living as the opposite sex). The majority decision on Monday agreed with this argument, noting in part:

To determine whether a trait operates as a proxy for sex, we ask whether the employee would have been treated differently "but for" his or her sex. In the context of sexual orientation, a woman who is subject to an adverse employment action because she is attracted to women would have been treated differently if she had been a man who was attracted to women. We can therefore conclude that sexual orientation is a function of sex and, by extension, sexual orientation discrimination is a subset of sex discrimination.

With this ruling, the 2nd Circuit is on the same page as the 7th Circuit, which covers Indiana, Illinois, and Wisconsin. The 7th Circuit ruled in a similar fashion for similar reasons last spring. But this ruling is at odds with the 11th Circuit Court, which covers Alabama, Georgia, and Florida, and which has ruled that the Civil Rights Act does not cover sexual orientation.

The Supreme Court had the opportunity to hear an appeal of the 11th Circuit case and settle the matter, but in December it turned the case away.

Now we have two federal districts disagreeing with a third. Furthermore, we've got the Department of Justice at odds with the U.S. Equal Employment Opportunity Commission, which has been supporting the argument that the Civil Rights Act covers workplace discrimination on the basis of sexual orientation and gender identity.

At some point the Supreme Court is going to have to take a case to hear this argument. It seems untenable for workplace discrimination against LGBT people to be a violation of federal law in New York but not in Georgia. This isn't about a difference in what classes are covered by each state's own laws. This is an inconsistent application of federal law.

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225 responses to “Workplace Discrimination Against Gays Is Covered Under the Civil Rights Act, Says a Second Federal Court

  1. So now they’re saying that gender and sex are the same thing? I suppose that’s cool if it furthers sombody’s goal.

      1. You are a female homo. Haha.

        1. I don’t think either of you understand this article.

          1. Now you know how most of us feel on Reason when you chime in with your nonsense to nearly 99% of the articles here.

    1. Penumbras and emanations.

      1. Living Constitution

  2. One thing we know is that appellate courts have a rock solid reputation for following the constitution and representing the law correctly in their respective circuits.

    Either that or they are constantly politicizing issues that do not have constitutional support and then get reversed by the SCOTUS is not too overworked to smack down them down.

    1. It’s not a constitutional question, genius.

  3. I like the “but for” reasoning because it permits antidiscrimination law to cover people without having to add a bunch of classifications to existing law. Otherwise we could theoretically add sexual orientation but leave out gender identity, meaning a trans person who is attracted to the opposite sex (whatever that would mean) wouldn’t be protected.

    The legislators clearly didn’t have these things in mind when they wrote this law, but the framers didn’t have ARs in mind when they wrote the 2nd amendment, did they, so fuck off.

    1. But if you simply say “the Civil Rights Act covers all discrimination that we don’t like.” you still have to define “what we don’t like”.

      Otherwise nobody can be certain that they aren’t running afoul of the law.

      What about fat people? Are they covered?

      How about bad teeth?

      Green eyes?

      Low intelligence?

      Lack of athletic ability?

      Those are all pretty much “how I was born” kind of things…. more or less.

      But some of this LGBTQAI stuff gets into “how I chose to be”.

      So we don’t want to cover political affiliation. But what about pedophiles?

      Having it undefined and open ended invites trouble as the winds shift.

      1. Why don’t you people read this article, which nicely explains the logic. Fatness and eye color have nothing to do with it. The question is whether the discrimination would have happened “but for” the person’s sex.

        1. Right.

          So what if the discrimination would not have happened “but for” the person’s eye color? Is that protected or not? Saying “but for” is just another way of saying “because”. It didn’t define anything. The important bit isn’t saying “discriminated against because of” it is whatever comes after that phrase.

          The precedent here is saying that the courts will insert whatever they like into the “but for” object, as long as they can find a way to tangentially relate it to some other protected class.

          In this case, liking boys is gender based discrimination if you happen to also be a boy, because that isn’t stereotypical boy behavior.

          So if we have a rash of green-eye hatred sweep the nation, would we shoehorn “green eyes” into some other protected class?

          I agree with the basic principle as a matter of right and wrong. I’m less certain about the method of redress.

        2. We ask whether the employee would have been treated differently “but for” his or her sex.”

          Sounds like “transgenders” are not covered as long as I think BOTH men who think they are women AND women who think they are men are too farked in the head to have as employees.

      2. Having it undefined and open ended invites trouble as the winds shift.
        Yes. But the alternative is unworkable.

        1. Isn’t at least one alternative to amend the law?

          1. Nah. Look at the 9th and 10th Amendments. You leave something un-enumerated but “covered”, and it ends up not being covered.

            Unless by “amend” you meant “repeal”, then theoretically sure, but y’all have shown no capacity for that.

          2. Yeah, but getting the support of all those ignorant people in flyover country is so inconvenient. It’s so much more “democratic” just to find a sympathetic judge who will declare it by judicial fiat.

    2. Nobody wants to take gay jobs away.

  4. We’re talking about the Civil Rights Act as it regards employment. What happens when we get to the Fair Housing Act? Doesn’t the Fair Housing Act piggyback on the Civil Rights Act?

    What happens when a religious couple rents out a room in their home to someone and then tries to kick the tenant out when they realize he’s gay?

    Show me in the Civil Rights Act, Fair Housing Act (Title VIII) or the 14th Amendment where it says that sex trumps First Amendment freedom from establishment and free exercise.

    1. The courts are not settled on that issue but we’re all hoping we get to a place where tenants can’t be evicted merely for being gay, I’m sure.

      1. Landlords care about one thing. Green. If given a choice between an empty apartment and renting to puffers, most landlords will rent to the puffers.

        1. Not if they’re right with Jesus.

          1. Hey Tony! Take an outlier and parade it around like it’s everyone! Everyone will think you are awesome!

            1. So what do you care? Why are you here? If you’re not taking the Jesus people’s side against the homosexuals, then what point are you making? That the law should continue to deny that sexual orientation is protected like sex, race, and religion because it’s just no big deal? I’ve been around here for too long to take your word that buttsecks is just no big deal to you people.

              1. What do I care?

                I don’t.

                I am here to pass time. To instigate.

                The rest of your post is a rant against a straw man that I will not defend.

                Tooodles!

          2. Imitation Game is still a good movie. It’s on Netflix. Check it out.

            1. I actually like you, Tony. Figure that one out.

              1. *falls out of chair*

                1. Ry, I like you too.

                  I just created a new email.

                  ReallySarcasmic@gmail.com

                  Tony, you can use it… Abuse it… Flog it…

                  1. Nobody likes me everyone hates me think I’ll go eat worms!

                    Big ones small ones thing I’ll got eat worms!

                    1. I’ve never actually eaten worms though. I suspect that they taste like dirt.

                  2. Please understand that my not giving you the attention you seek doesn’t mean you’re a bad or unworthy person or that I don’t like you.

        2. Some of them will, but it’s the ones who won’t that the First Amendment is supposed to protect.

          I know a 90 year old woman, sharp as a whip, who because of her religious beliefs refused to rent her house to a gay couple–once she realized they were gay.

          You’d have had to throw her in prison. She’d have rather been burned at the stake than willingly participate in someone’s sin. To her mind, participating in someone’s sin was like participating in nailing Jesus to the cross.

          She invited them over to her house for lunch, made a nice cake from scratch, and then broke out her Bible and showed them that what they were doing was wrong. She told them that Jesus loves them and died for them, and then she asked them to let her pray for them–that they’d realize how important they were to God.

          Then she explained that she couldn’t in good conscience rent her house to them. They were nice about it, but she was definitely discriminating against them.

          1. Okay and if you think that’s permissible then you don’t get to tell gay people that participating in society and the market is as free an experience for them as it is for straight people, and they get to rightly tell you to fuck off with your free-market utopianism.

            And nobody goes to prison for violating the CRA.

            1. Sometimes life isn’t fair. And believe it or not, acting like an asshole doesn’t usually solve anything.

              1. Sorry you can’t evict gay people. Cry to someone who gives a shit. “Sometimes life isn’t fair.”

                1. Sorry you can’t evict gay people. Cry to someone who gives a shit. “Sometimes life isn’t fair.”

                  What makes you think I would want to?

              2. Sometimes life isn’t fair. And believe it or not, acting like an asshole doesn’t usually solve anything

                Man. Woman. Whatever. I love you.

            2. She would have blocked the door.

              She wouldn’t have left.

              She’s move into the house and refuse to leave.

              They’d have had to arrest her for trespassing or unlawful entry or disturbing the peace or something.

              She’d have rather died than participated in that sin.

              The First Amendment is there to protect her rights.

              Because the government has no business discriminating against you for your uncontrollable urge doesn’t mean your uncontrollable urge trumps her First Amendment rights.

              https://www.youtube.com/watch?v=Qh1pvspa0Fs

              1. I wouldn’t have the government try to reeducate her on her stupid beliefs, especially at her age, but when those beliefs turn to action, law enforcement sometimes must get involved.

                Discriminating against someone, the law says, is to harm them. We don’t let people get away with sacrificing babies to their god because of the First Amendment either.

                1. “I wouldn’t have the government try to reeducate her on her stupid beliefs, especially at her age, but when those beliefs turn to action, law enforcement sometimes must get involved.”

                  Clearly, some people just need a good billy club to get their head right. We call that “progress”.

                  1. Believing in sky grandpa is not a license to break any and all laws.

                2. How about a different set of beliefs? What if they are good beliefs?

                  Can you refuse to rent to a neo-nazi? What if you are a Nation of Islam black separatist? Should he have to rent the room over his garage to an alt-right whitey?

                  Or if we want to peel it back to only protected classes… What about the black nationalist guy? Does he have to rent to whitey? What if it isn’t a house, but it is an extra room?

                  Or what about a Jezebel.com man-hating lesbian type? Does she have to rent her garage apartment to a frat-boy who brings over different women all the time?

                  Everything gets messy when you start mucking about with the right of people to freely associate. Even if you do take the moral high ground.

            3. “I found someone who won’t sell something I want to me, like no other kind of person ever! So, free markets are a big lie!”

            4. But it is as free for them…

              (well, would be, in our free market utopianism)

              1. No it would inherently not be unless your utopia magically does away with all discrimination against minority groups, in which case even I’d agree these laws would be unnecessary.

                1. When the government can force everyone to be nice to everyone else, then, and only then, will we have the real true freedom.

                  1. When the government can force everyone to be nice to everyone else, then, and only then, will we have the real true freedom.

                    No one is free unless they can use violence upon anyone who disagrees with them.

                2. Do we really have to go over our different conceptions of freedom here, Tones?

                  1. We don’t have different conceptions of freedom. We both want some people to have more freedom than they currently do and some people to have less. You just like to pretend that your scenario is ordained by Jesus or nature or whatever.

                    1. The freedom being constrained is the old woman’s. No one has a right to use her property without her consent. Not renting to a specific person for whatever rationale is not a harm to that person. Just because the law says it is a harm does not make it so.. It is not clear why being refused based on one reason over another gives that person a claim on the owner’s property.

                    2. Don’t even pretend it is Tony. You openly admit that you have a different concept of freedom based on vague notions of things being better.

            5. Not a fan of private property or freedom of association, are you?

            6. Does the woman own her house? Why should she have no discernment in who uses her property and in what ways it is used?
              To flip things, I’d also say that a gay person could refuse to rent to someone who is a member of the NRA or the GOP.

      2. By the way, The Imitation Game is a fabulous movie.

        1. Tragic what they did to poor Turing.

          1. The war was over. The socialists of England didn’t need him anymore.

      3. We are already 99.5% of the way there but what’s the big deal with bringing in the giant, crushing weight of the government to get us that extra .5%, right?

        1. Sounds like you answered your own question.

          1. Thanks to socialists like Tony.

            YOU WILL ACCEPT GAYS.

            Until the socialists have no use for gays again.

          2. Yes, it’s a complete waste of resources. Not to mention that punishing thoughtcrime never ends well.

            1. But if we leave things status quo it means that the law explicitly leaves gay people out of the antidiscrimination regime that protects everyone else.

              1. I never asked for an “antidiscrimination regime” to “protect” me.

                1. Sure, but if we start questioning the ethical validity of folks being bound by the laws and customs of the society and nation that we’re born into, we’ll get stuck in a rather tedious philosophical debate that will inevitably end up with “because YOUR MOM!!”

                  Which is to say you aren’t wrong, but that it doesn’t matter.

                2. So clamor for a political movement to reinstate the system as it was before the civil rights laws, get a majority in Congress and a willing president, and have at it. Nobody’s stopping you except those who disagree with and outnumber you, as is only fair.

                  1. …says the person who still can’t accept the last election.

                    1. In what way have I not accepted it? As much as I’d like to disown the fat orange rapey buffoon as my president, alas I cannot. It’s up to Congress to save us from further global embarrassment.

                    2. Sorry, I must have misunderstood you.

                      It’s only fair that Trump is president.

                  2. You know this is a fallback that you only use when you agree with the law? At least have the decency to argue and idea rather than just saying “It’s a law and so it is” because that’s pure nihilism.

        2. Right. Because the idea is such a good one that it needs to be mandatory and compliance forced no matter what.

      4. Only if they believe in the 2nd amendment.

    2. First-up, you didn’t even bother looking at what the Fair Housing Act actually applies to. Generally speaking, if the owner lives in the place they’re renting out rooms from, it doesn’t apply.

      Second-up, same problem with a Christian refusing to rent to a Muslim, a woman, a black, an Irishman, etc. and so-on. So acting like it’s a special problem for gay folk to be covered ain’t honest.

      1. Why not cover everyone? If it is no big deal to expand this to the beloved gays, why not just end the right of people to refuse to rent for any reason or just let the government make the decision?

        1. Why not cover everyone?

          Because folks agree that sometimes discrimination is appropriate.

          So we enumerate categories for which we believe it’s inappropriate.

          That said, it’s when folks notice a new problem and say “hey, group X is facing a lot of problems” that the list gets expanded to include group X. Because folks slowly come around and agree that yeah, that kind of discrimination is also a problem.

          So who knows, maybe one day we’ll be at the point where there’s very little room for discretion in economic activity, but we aren’t there yet.

          1. Because folks agree that sometimes discrimination is appropriate.

            That is just begging the question. What makes discrimination against gays not okay but discrimination for other groups okay? All you are saying is “well if you are not popular with judges and the people who matter, you are fucked”. Sorry but that isn’t a very compelling response.

            1. Sorry but that isn’t a very compelling response.

              Okay? Still true though.

              1. It is true that they used to lynch black men. It being true is not a justification for it or in any way make it less appalling. Perhaps you should stop gloating over this and consider the implications of it.

                1. It being true is not a justification for it or in any way make it less appalling.

                  Didn’t claim it was.

                  Perhaps you should stop gloating over this and consider the implications of it.

                  I’m not gloating.

                  1. If you are not gloating then explain why you find this to be objectionable. Do you disagree with this? If so, explain why. If not, own up to that position.

                    1. There’s a lot of space between “gloating” and “objectionable”. I’m pretty indifferent to this news. Even if the SCOTUS upholds this, it won’t change very much at all.

                    2. Why are you indifferent to it? Do the rights of people you don’t like not matter to you?

                    3. Why are you indifferent to it?

                      Dude, I have a list of folks whom I trust enough and value the opinion of that I’d share introspective thoughts regarding why I think and feel the way I do. You are not on it. You are not anywhere near it. I mean, I don’t want to be insulting here, but I’d find religion and talk to Odin before I’d ever consult you.

                    4. So what are you doing publicly discussing the topic if you only share your precious wittle feewings with those in your Trust Circle? Awful convenient when you say stupid shit that you aren’t capable of defending.

                    5. Awful convenient when you say stupid shit that you aren’t capable of defending.

                      Stupid shit like “you didn’t even bother looking at what the Fair Housing Act actually applies to. Generally speaking, if the owner lives in the place they’re renting out rooms from, it doesn’t apply”?

                      I don’t see how my “feelings” regarding the FHA are at all relevant to that statement. That you think I need to share my “feelings” in order to answer basic questions about the law is kind of weird.

          2. The rhetoric surrounding this says no, folks do not agree that sometimes discrimination is appropriate. Discrimination has become a fetish word that is completely unacceptable. The problem is that types of discrimination they like they simply do not call discrimination.

    3. There’s no constitutional right to exercise your religion in a way that violates generally applicable law. For one.

      There is a statutory test that cuts back the application of federal law where someone claims their religious freedom is being violated – so religious people get a special right under federal law to ignore laws the rest of us have to follow – but the standard there is a bit looser. But good luck finding a judge eager to discover that prohibiting racial discriminating in housing isn’t sufficiently important, and banning such discrimination isn’t sufficiently narrowly-tailored, to meet the requirement of the federal RFRA. (And that’s relevant because it would be the immediate implication of any holding that people have an RFRA-based right to discriminate against gays.)

      I am honestly not sure what the big deal is. No one’s religious practice requires them not to rent to gays. They just feel like their religion compels them to make life miserable for gays. That’s a separate question not relevant for free exercise purposes.

      1. There’s no constitutional right to exercise your religion in a way that violates generally applicable law.

        Oh really? You do realize that is a fucking null set of a sentence? All you are saying is “you have the right to freedom of religion so long as the government doesn’t pass a law saying you don’t.

        Not only is your statement completely wrong about the law, the fucking draft is generally applicable yet religious people can avoid it to give one example, it is completely disingenuous and would read the right to free exercise entirely out of the Constitution.

      2. “There’s no constitutional right to exercise your religion in a way that violates generally applicable law.”

        Let’s look at the text of the First Amendment again, shall we?

        Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”.

        —-First Amendment

        That’s what it says.

      3. No one’s religious practice requires them not to rent to gays.

        Well then what’s the problem? If some stupid twat on the internet says it then it must be true. Those idiots that have been doing the same thing for 2,000 years have had it all wrong this whole time.

      4. “No one’s religious practice requires them not to rent to gays.”

        There are plenty of people who think participating in sinful activity is why Jesus had to die.

        “For it is impossible for those who were once enlightened, and have tasted of the heavenly gift, and were made partakers of the Holy Ghost

        And have tasted the good word of God, and the powers of the world to come,

        If they shall fall away, to renew them again unto repentance; seeing they crucify to themselves the Son of God afresh, and put him to an open shame.”

        —-Hebrews 6:4-6

        You see, if you believe that Jesus died for your sins, then you’re supposed to avoid doing things that require him to be crucified again.

        Maybe before you were baptized and became a Christian, you didn’t really understand that the results of your choice to sin was that Jesus had to suffer and die. Now that you’re a Christian, on the other hand, you knew that what you were doing meant that Jesus had to die–for your sins specifically–and you willfully chose to go ahead and do what made him have to die for you all over again?!

        That’s not impressive–according to the Bible.

      5. In Roman times, there were Christians who would rather be thrown to the lions than bow to an effigy of the emperor.

        I know someone who, through Operation Whitecoat, volunteered to be injected with biological weapons–because as a conscientious objector during the Vietnam War, he wanted to show that although he wasn’t willing to break the commandment against killing for religious reasons, he was willing to risk his own life for his country.

        A person’s religious convictions are a powerful thing, and that the First Amendment protects them against those who are flippant about their importance is a great credit to our nation. Like I wrote below, the First Amendment is a big part of what makes us American, and I won’t shut up while people flush religious freedom down the toilet in the name of phony tolerance.

    4. I thought these non-discrimination laws were more complicated than our knee jerk reactions about free association, but not so in this case.

    5. The whole problem is that when ti comes to Private Enterprise & Private Property, Civil Rights Laws are UNCONSTITUTIONAL!!!

    6. It’s right there in the BFYTW amendment of the Living Constitution.

  5. blah blah blah blah blah

  6. Fortunately, this dispute is *totally unrelated* to the dispute over SSM, so we don’t have to worry that the SSM precedents will lead to further restrictions on freedom of association.

    /sarc

  7. “But over time, as court precedents and case law have hammered out the contours of what “discrimination based on sex” means in practice, the door has opened to a broader understanding of the phrase.”

    Someone is going to make serious fun of this, and there are more blunt, less polite ways to put it, but that’s more or less what happened.

    For instance, “sex” wasn’t added to Title VIII until 1974.

    That shows something interesting, which is that if congress wants to add protected classes to the CRA, it has the means to do so. If they didn’t add LGBTQI+, it’s because they didn’t want to do so.

    This is much like the logic behind the individual mandate. Whatever else you thought about the constitutionality of forcing Americans to eat broccoli, they court held that if congress wanted to repeal the individual mandate, they were free to do so. They weren’t going to save congress from itself by legislating for congress. Sure enough, I believe congress got rid of the individual mandate in Trump’s tax reform package, didn’t they?

    Point being, if congress wants to add LGBTQI+ to the Civil Rights Act, there’s a way for them to do so. If congress amended CRA protections specifically to deny them to LGBTQI+, would the Court find that acceptable? Are they saying that those protected classes exist independent of the CRA in the Fourteenth Amendment? If so, then why was it necessary to have a CRA at all? Why was it necessary to add “sex” to Title VIII?

    1. They didn’t want to include sexual orientation but it turns out they weren’t explicit enough in their desire to permit it and thus left open the logic that discriminating based on sexual orientation is in fact discriminating based on sex.

      1. You need a constitutional amendment to force people to associate with people they don’t want to.

        Even then, there will probably just be a civil war and all lefties will be killed if they don’t self-deport.

      2. “But over time, as court precedents and case law have hammered out the contours of what “discrimination based on sex” means in practice, the door has opened to a broader understanding of the phrase.”

        That isn’t logic.

        That’s rationalization.

        They decided what they wanted to do first, and then they looked for a way to justify it.

        1. And they found one. We’re all winners!

          1. By deliberately ignoring the plain meanings of words. Yay! Thank goodness there’s no possible way that could come back and bite anyone on the ass.

            1. If someone fires you because you are gay, they are firing you for being a male who likes other males. Meaning they wouldn’t fire you if all else being equal you were female. It’s a pure equivalence. There’s hardly any twisting going on in this logic.

              1. Makes me think of the Key & Peele skit with the two gay office mates.

                The thing is that a gay person who gets fired is not necessarily fired because they’re gay. Sometimes they just suck at their job, just like a straight person can suck at the job. Or blacks and whites. Or men and women.

                Creating the protected classes just creates a minefield where perfectly valid reasons for action will not be pursued for fear of lawsuits.

                1. Creating the protected classes just creates a minefield where perfectly valid reasons for action will not be pursued for fear of lawsuits.

                  Sounds great. Get rid of ’em all. I can support that.

                  But so long as I’m obligated to sit here and ignore what your? God says about gays, I think it’s fair that you’re also obligated to ignore what your God says about gays.
                  ________
                  ?General “your”. I don’t know or care about your particular religious beliefs.

                  1. But so long as I’m obligated to sit here and ignore what your? God says about gays, I think it’s fair that you’re also obligated to ignore what your God says about gays.

                    Can you clarify this?

                2. It’s not like employers are guilty until proved innocent in these actions.

                  And I think we currently err too much on the side of employer rights over employee rights, so that’s not such a bad stopgap situation in my personal opinion.

                  At any rate I’ve worked in an office where they systematically got rid of every women who, let’s say, voiced their opinions too much, and it was plain as day what was going on, but it could never be proved because the bosses came up with sufficient BS cause.

              2. Tony:
                “If someone fires you because you are gay, they are firing you for being a male who likes other males. Meaning they wouldn’t fire you if all else being equal you were female. It’s a pure equivalence. There’s hardly any twisting going on in this logic.”

                Not really. They might just assume you’re into butt sex, and think that’s gross.

                1. Would they make that assumption about a heterosexual, who is just as likely to be into butt sex?

                  1. Probably not, because…come on, really?

                    1. That data guy who researched Google searches thinks butt sex will be more common than vaginal sex in the near future.

                    2. Maybe for him, at least.

                  2. Tony, if a male is into butt sex- they are homosexual.

                    This is the kind of guy Libertarians try and discuss things with.

                    1. Females have butts too, or have you never seen a female naked?

  8. Here’s footnote 33 of the 2nd Circuit opinion (pp. 66-67):

    “We also note that there has been a sea change in the constitutional framework governing same?sex marriage. See generally Obergefell v. Hodges, 135 S. Ct. 2584 (2015); United States v. Windsor, 133 S. Ct. 2675 (2013). In the wake of this transformation, the intersection of the modern constitutional framework and decades?old precedents regarding sexual orientation discrimination under Title VII created a “paradoxical legal landscape” in which a man could exercise his constitutional right to marry his same?sex partner on Saturday and “then be fired on Monday for just that act.” Hively, 830 F.3d at 714 (majority). This decision frees this circuit’s jurisprudence regarding sexual orientation from that paradox.”

    1. From last year’s Hively decision in the 7th Circuit (pp. 19-20):

      “Today’s decision must be understood against the backdrop of the Supreme Court’s decisions, not only in the field of employment discrimination, but also in the area of broader discrimination on the basis of sexual orientation….The latter line of cases began with Romer v. Evans…Romer was followed by Lawrence v. Texas…Next came United States v. Windsor…Finally, the Court’s decision in Obergefell, supra, held that the right to marry is a fundamental liberty right, protected by the Due Process and Equal Protection Clauses of the Fourteenth Amendment. 135 S.Ct. at 2604. The Court wrote that “[i]t is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality.” Id.”

      1. From p. 5 of the Hively decision:

        ” Especially since the Supreme Court’s recognition that the Due Process and Equal Protection Clauses of the Constitution protect the right of same-sex couples to marry, Obergefell v. Hodges, 135 S.Ct. 2584 (2015), bizarre results ensue from the current regime. As the panel noted, it creates “a paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act.” 830 F.3d at 714. Finally, the panel highlighted the sharp tension between a rule that fails to recognize that discrimination on the basis of the sex with whom a person associates is a form of sex discrimination, and the rule, recognized since Loving v. Virginia, 388 U.S. 1 (1967), that discrimination on the basis of the race with whom a person associates is a form of racial discrimination.”

        1. I only said this was going to happen about a hundred fucking times. It wasn’t hard to see coming. But gays are sacred to many Libertarians and God damn it should get whatever pony they want.

        2. I only said this was going to happen about a hundred fucking times. It wasn’t hard to see coming. But gays are sacred to many Libertarians and God damn it should get whatever pony they want.

        3. But having a particular job is not a Constitutional right, so how can these things be conflated? One set of rulings deals with Constitutional strictures, the other with statutory ones.

          1. Teh ability to object to homosexuality is necessary for free exercise.

    2. Speaking of Obergefell, how come after that decision states basically had to comply immediately. For example, when that Tennessee clerk did her thing, I happened to look at the form the clerk needed to fill out. The form, and apparently the state law, required that the marriage license be obtained in the county in which the female resided. So if a man & woman were getting married and they happened to live in two different counties, they’d have to get the marriage license in her county, not his. In which county, by state law, would a man & man who lived in two counties have to file? The states were given no time to adjust their laws like this to comply. Pretty much BAM, compliance is mandatory and you WILL issue licenses NOW.

      Compare that to, say D.C. after Heller. The District took years to come up with new laws that still didn’t (don’t) comply. Why didn’t the District and states *not* have to begin issuing carry permits immediately like they had to start issuing marriage licenses?

      1. I don’t know…apparently made-up rights are more urgent to enforce than writes written down in black and white.

      2. Judges like gays and don’t like guns. So gays have rights that get enforced and gun owners generally less so. If you want the government to do anything for you, become a politician or a gay.

      3. The federal courts can affirmatively rewrite state laws and even constitutions when it is a progressive issue. SCOTUS has no abiliity to do that in a federal jurisdiction like DC if it decides something that favors the right.

  9. I wasted I don’t know how many hours trying to explain to you people how saying there was a constitutional right to government marriage for gays was going to make gays a protected class and inevitably lead to courts expanding the CRA to cover gays. And every God damned one of you people sans a very few called me a bigot and said that I didn’t know what I was talking about. And I am pretty sure Shackford was one of the people who said that was impossible.

    To all of you people who denied this was going to happen, go fuck yourselves. You refused to believe the truth because you didn’t have the courage to see the facts as they were.

    1. Pretty sure that people call you a bigot because of your personal views, not your legal views.

      1. I am pretty sure I was right and they were wrong. And I can almost guarantee that had you been here, you would have been one of the people claiming this couldn’t happen.

        So, the bottom line here is that you don’t know a fucking thing about this topic and have nothing to add to it other than your preferences and desire to use the force of government to fuck those whom you don’t like. You have neither the knowledge nor the integrity to speak intelligently about this subject. So, stop wasting my time by pretending that you do. Come back when you get something right.

        And you are not fooling anyone with your projection. You are the biggest bigot here.

        1. … do I really need to clarify that pointing out why other people call you a bigot isn’t the same as me calling you a bigot? I mean, up above you seem to have confused me stating how things are with me trying to persuade that that’s how they should be, so maybe you do need clarification.

          So let me make it clear: I can talk about views without sharing them. I can describe the world without affirming it. I can point out why folks think you’re a bigot without agreeing with them. And despite your protests to the contrary, I know what I’m talking about regarding non-discrimination and marriage law.

          1. You don’t know a damn thing or if you do you have not demonstrated it. I have yet to see you do anything but call people names and gloat over the prospect of the law destroying people’s lives.

            1. Citations please.

              1. Show me where you have demonstrated any knowledge of this? You are the one making the assertion. I don’t see it. If you have, give me the citation.

                You don’t really understand logic and argument very well do you?

                1. To put it simply John, I am not the one that has been making personal attacks and making assumptions about other people. I am not the one that threw out unprovoked insults.

                  The worst I have actually done is riff off your “people call me a bigot” line.

                  So you think I’m gloating or calling folks names? I’m curious what you read that lead you to think such. I know I haven’t done such in this thread. Pretty sure I haven’t done that elsewhere today.

                  And unlike you, when I asked for a citation I asked and said please.

                  1. You asked for a citation to prove your assertion. I can’t prove a negative. If you have made any useful points in this thread, I haven’t seen them. Point to an example or shut up.

                    1. Actually, I do have a meeting to go to soon, and after that some wrap-up stuff.

                      So you lucked out, I actually am going to “shut up” soon.

                    2. It’s a good thing too because you were just about to actually defend your position if that darned meeting hadn’t gotten in the way. Maybe next time.

    2. I didn’t call you a bigot.

      RC Dean agreed with you.

      I didn’t agree.

      I didn’t see it coming at all.

      If average gay rights supporters showed as much support for the rights of Christians as Christians showed for gay rights, this wouldn’t have been a problem. I suppose that’s to be expected–since “Do unto others as you would have done unto you” is a Christian thing.

      1. If average gay rights supporters showed as much support for the rights of Christians as Christians showed for gay rights, this wouldn’t have been a problem. I suppose that’s to be expected–since “Do unto others as you would have done unto you” is a Christian thing.

        I’d like to point out that gay folk getting covered under non-discrimination laws is that “as you would have done unto you” part of things.

        Face it, the worst that we’ve done to y’all is the least of what you’ve done to us.

        1. Are you Tulpa?

          1. Nah. Just between projects so I have some spare time on my hands. Once works picks up I’ll be ’round here a lot less.

      2. RC and Pro Liberate and I called this. The fact that we were all three lawyers didn’t seem to matter.

        1. Lawyers, even libertarian ones like Michael LeBron (Lionel), don’t always make these calls right. On the radio Lionel said that if tobacco execs ever admitted their products were “addictive”, they’d be ipso facto effectively illegal to sell, because every buyer could then be said to have been harmed, & the makers of the product liable for more in damages than the product could ever be sold for.

  10. This is all find and good, but as a real libertarian, laws like this simply shouldn’t exist. So, fuck it. Enjoy believing that forcing a boss to hire you and make money off of you is near the apex of the social ladder, or something.

    1. If these laws should not exist, and they shouldn’t, expanding them to cover more people is not the answer.

      1. Assume we’re not repealing the Civil Rights era any time soon.

        1. No Tony we won’t. We will just be letting assholes like you sue everyone, because God damn it you have a right to demand everyone accept you.

          1. Actually I don’t, not based on my sexual orientation at least.

            But you do with respect to your sex, religion, race, and disability status. You goddamn lawsuit-happy mooch!

            1. Ostensibly, discrimination on sexual orientation would be legal for everyone and all reasons, not just gays.

              I know it’s hard to imagine that you’re not the only victim in the whole world, but you might feel better trying.

              1. I understand, and John does not, that this interpretation would mean people are equally protected from discrimination for being heterosexual.

                My argument is not about sexual orientation being a special source of victimhood, it’s about the law treating it with the same respect it does other classes, because otherwise the de facto situation is one that singles gays out as second-class.

                1. Your argument is that you are special Tony. That is all it is.

                2. “My argument is not about sexual orientation being a special source of victimhood, it’s about the law treating it with the same respect it does other classes, because otherwise the de facto situation is one that singles gays out as second-class.”

                  Not really. Heterosexuals aren’t protected from being fired for their sexual orientation any more than gays are, if we read the law as not applicable to sexual orientation.

                  So when you say, “singles gays out as second-class”, you’re just wrong. Sorry.

                  I can say it again, but I can’t make you understand.

                  1. I specifically referred to the class of sexual orientation in order to include heterosexuals. Given the existence of protections of other classes, why exclude this one? It clearly comes with a history of discrimination.

                    1. “I specifically referred to the class of sexual orientation in order to include heterosexuals.”

                      And when that translates to “singles gays out as second-class”, let me know.

                    2. We can agree that these laws technically protect all members of a class but in reality it’s the minority members who are at risk.

                    3. Democracy tends to do that.

                3. Sometimes the tables turn. This is in Canada (cbc.ca), but…

                  Bethany Paquette applied in September 2014 for an assistant guide position with Amaruk Wilderness Corp., which says it is headquartered in Norway and operates an office in Vancouver.

                  The tribunal says the graduate of Trinity Western University received an emailed response from wilderness guide Olaf Amundsen, who informed her she was not qualified.

                  “Unlike Trinity Western University, we embrace diversity, and the right of people to sleep with or marry whoever they want, and this is reflected within some of our staff and management,” he wrote.

                  “In addition, the Norse background of most of the guys at the management level means that we are not a Christian organization, and most of us actually see Christianity as having destroyed our culture, tradition and way of life.”

                  In the decision, tribunal member Norman Trerise says religious discrimination was a factor in the company’s rejection of Paquette’s employment application, and that the emails sent by staff were “egregious” religious harassment.

                  He ordered the company to pay her $8,500 for injury to her dignity and self-respect, as well as $661.08 to reimburse various expenses. He also ordered the company to stop discriminatory practices.

                  Trotter said Paquette is currently in the far North running dog sled tours, “the very kind of work that Amaruk rejected her from.”

                  1. Their reasoning sounds pretty lame and even as religious discrimination they are using guilt of association.
                    The company is free to do this and I don’t really have a problem with that practice being made public. However, I have to side against her for seeking damages and for whoever awarded her that much money for being rejected for a position. Stupid is as stupid does and sometimes it feels good to say everybody in a situation is wrong.

      2. It’s not supposed to be an answer.

        For the most part, some right-thinking people are supposed to hear this on the news and feel nice and warm, before they go grab a beer, spank it, and go on with their lives completely unaffected.

        But, somewhere, out there, we can imagine a wrong-thinking person going to jail for being an asshole, and feel snuggly and warm.

        1. But, somewhere, out there, we can imagine a wrong-thinking person going to jail for being an asshole, and feel snuggly and warm.

          Tony had an orgasm reading that sentence.

        2. But, somewhere, out there, we can imagine a wrong-thinking person going to jail for being an asshole, and feel snuggly and warm.

          You can imagine that, sure. But it’s not realistic. Folks don’t go to jail for violating the CRA.

          1. They just lose their businesses and the ability to make a living if they do not adhere to the publically approved ideology. But, fuck them. You don’t like those people and I am sure that will never happen to you if for no other reason than you lack the integrity or courage to ever have an unpopular viewpoint.

            1. They just lose their businesses and the ability to make a living if they do not adhere to the publically approved ideology.

              I won’t rule out that it can’t happen, but generally speaking, it doesn’t.

              That said, I have never heard of a fine for a non-discrimination violation that put someone out of business. In the case of Sweet Cakes by Melissa the owners decided to shutter their (still profitable) store and go to an online-only model that allowed them to change careers to the (much more profitable) professional martyr, but there’s no other case I know of where anyone lost their business.

              In most cases of discrimination, even illegal discrimination, it makes news for a cycle or two then goes away. If there’s a court case it’ll keep coming up and drifting away when there are new developments, but contrary to your angry protests, folks don’t really get run out of business.

              1. If you continue to violate the CRA, you will be sued out of business. You cannot operate a business in this country in open violation of the CRA. The civil penalties for doing so make that effectively impossible. Moreover, you cannot operate a business and allow your employees to express opinions that are contrary to the CRA because doing so will leave you open to judgment for having a hostile work environment. It is effectively illegal to express opinions contrary to the CRA in this country. And now that the CRA has been expanded to cover gays, it will be effectively illegal to express any objection to homosexuality in the workplace even if you own that workplace.

                1. You’re welcome to set up shop in some shithole country without civilized protections.

                2. @John
                  Again, while that is always a theoretical possibility, that is not practical reality.

              2. I do have a distaste for professional victims.

                1. Note that nobody’s whining harder here than John.

                  Society is so mean to him!

                  1. That’s a bit rich of a criticism coming from you.

                    1. As much as you want me to play the part of hysterical victim, that’s not what I’m doing. It’s what John’s doing.

                    2. Yes Tony you are a vile nasty person who views politics and government as a way to punish your perceived enemies. You don’t need to remind us of that every day.

                    3. And you need to calm down with the gay panic butthurt before you give yourself a cardiac incident.

                    4. Gay people are in the panic. They think most Americans want to hurt them or something.

                      I just don’t want to be forced to associate with people that I don’t want to associate with.

                      My real fear is that I will be forced to associate with you Tony.

                    5. I think you need to grow the fuck up. You share the planet with 7.4 billion people. If you don’t want to accidentally associate with anyone you think is an abomination, you’re welcome to wall yourself into your mom’s basement and never come out.

          2. “You can imagine that, sure. But it’s not realistic. Folks don’t go to jail for violating the CRA.”

            I don’t mean “me” so much as “we” as in progtards.

            For example, Tony upthread thinks law enforcement is going to get involved.

            Progtards generally aren’t lawyers, or really know how this works. They just clap like seals at the imagined world they live in, and how much better it might be, nevermind that it’s disconnected from any reality they might actually experience.

            1. Progtards generally aren’t lawyers, or really know how this works.

              Most folks aren’t lawyers or know how much of anything (legally) works.

              1. I stand by my original statement, and I don’t see you contradicting it.

                1. /shrug

                  Contradicting y’all on your stereotypes for “progtards” isn’t worth the effort. I’m content to generalize the stereotypes to “people” instead.

                  1. It wouldn’t bother me so much, except protards vote.

          3. Folks don’t go to jail for violating the CRA.

            What exactly do you think happens if you can’t or won’t pay your fines you stupid faggot?

            1. Typically a lien is placed against assets.

              1. Presuming you have any. But keep going. You’re almost there.

                1. I’ll help you out. The end result of ignoring ANY law or judgment is always actual, literal, no-fucking-nonsense imprisonment. Or death if you manage to piss off one of the king’s men while resisting your punishment.

  11. One of the things that Shackford doesn’t bother to notice in his glee over this is the incredible loss of privacy it will represent. Banning descrimination based on race or sex is easy because those things are immediately recognizable by an employer. Sexual orientation is not. Understand that most descrimination cases are disparate impact cases. Few employers are dumb enough to give a discriminatory reason for firing or punishing someone. So, when these cases go to court the issue revolves around whether the employers either had policies that had a disparate impact on the protected group or treated members of the protected group differently than other employees. The only way an employer is going to be able to defend themselves against a suit by a gay claiming discrimination is to show that they treat gays and nongays the same. And the only way to do that is to know the sexual orientation of all your employees.

    Before the CRA, no one was ever required to check a block identifying their race. Well, now you do. And thanks to this, your sexual preferences are now fair game for your employer. You refusing to share your sex life with your employer will be grounds for them to fire you. If your employer is ever sued for discriminating against a gay, you can expect to be hauled into a deposition and expected to answer questions under oath about your sexual preferences. But Privacy is really not something Libertarians are that interested in I guess.

    1. I could be wrong but I believe this is not the only place in US law outside of Guantanamo Bay where people are guilty until proven innocent.

    2. Historically, Shackford has been pretty firmly against non-discrimination laws, and this is a pretty dry article on what happened without editorializing. So I’m curious where you see “glee” here.

      1. No. Shackford has paid lip service to being against discrimination laws and then turned around and supported legal positions that he knew would produce this result. Now that we have this result, Shackford makes no objection to it. He merely rubs his chin and points out the boot that he helped put on people’s faces. He is the most dishonest and in his own way worst writer at Reason. Dalmia is crazy and ignorant but she is at least honestly crazy and ignorant. There is nothing honest about Shackford.

        1. So you see the “glee” in his lack of an emotional response?

  12. Gay Court may have had its day in the late Aughts, but today it would be problematic.

  13. A few commenters (with varying degrees of profanity) pointed out the link between government-sponsored SSM and government restrictions on the private sector. Other commenters had various rebuttals.

    Somee denied the connection.

    Others disclaimed responsibility because the government doesn’t listen to them anyway, so they could advocate for both government-sponsored SSM and private sector freedom and it wouldn’t affect things one way or the other.

    Still others said get the government to recognize SSM because Justice Delayed is Justice Denied…and sort out the private sector problems later.

    While still others said the argument over freedom of association had already been lost, seeming to indicate that the inclusion of other protected classes in the Civil Rights Act wouldn’t be a problem because the existence of any protected classes at all represents a definitive defeat for libertarianism, so why agitate the issue now?

    Have I missed anyone?

    1. You missed the part about the First Amendment, freedom of religion, and freedom of association, and someone should mention it.

      “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

      —-First Thingamajig

      Does this law congress made infringe on freedom of association, an establishment of religion, prohibit the free exercise of religion, stop people from putting things in ads that make it clear with whom they would rather not associate, etc?

      If so, it probably violates the First Amendment somehow.

      I’m sure the ACLU will jump right on it.

      1. You keep referring to a freedom of association as if it exists in the constitution.

        1. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

          I know you are dumb as a post Tony, but even you should understand that “assemble” is a synonym for “associate”.

          1. It’s absolutely not, especially in the way you want it to.

            1. It absolutely is and every court that has ever considered the subject has seen it as such.

              1. So every court has abolished antidiscrimination laws? Oh wait no they’re still in place.

                1. Every court has recognized a right to freedom of association. What they have not done is read that right to extend to public accommodations.

                  It is not even so much that you are wrong Tony, it is that you are so fucking stupid you manage to be wrong for the wrong reasons.

                  1. The only context “freedom of association” ever comes up is you people saying it equates to the freedom to discriminate against gay people (and black people in earlier times).

                  2. While the real legal context isn’t about that. Here it refers to the radical libertarian definition where people allegedly get to choose exactly who they surround themselves with. Which is nonsensical of course.

                  3. It is not even so much that you are wrong Tony, it is that you are so fucking stupid you manage to be wrong for the wrong reasons.

                    Not even wrong

      2. They will do that right after they are done defending the 2nd Amendment.

      3. The Supreme Court isn’t fully enforcing the First Amendment right now (one of Scalia’s mistakes, alas) – if the government accidentally steps on a religious minority, that is, just screw them without actually *intending* to persecute them, then the Court says that’s OK. Thus there’s no right to ingest sacramental peyote, discriminate against customers, etc., in violation of a “neutral and generally applicable” law.

        This rule lets the government trample on religious freedom with nothing more than an “oops.” Minority religious hardest hit.

        That’s why under Bill Clinton, there was a *bipartisan* majority to pass the Religious Freedom Restoration Act (RFRA) and put some teeth back into the First Amendment and say that in order to restrict religious practice, the government had to show that doing so was the least restrictive means of achieving a compelling interest.

        This pro-First-Amendment rule now applies to the feds, and to the states re zoning and prisoners, but not to the states in general, except in those states which imitated the feds and passed their own RFRAs.

        1. It was the progs who called a halt to the bipartisan cooperation when they realized that a RFRA in a given state would mean the state courts would have to investigate whether forcing gay cakes on religious objectors was the least restrictive means of furthering a compelling government interest. The activists don’t want to have to meet that burden.

          Bear in mind that the progs were fine with making prison administrators meet that burden if a federal prisoner objected to some security regulation, but they draw the line when a conservative Christian small business owner tries to hold the government to a similar burden.

          So RFRAs, which were perfectly laudable when Bill Clinton signed one, are now hate-filled fundamentalism.

          Are the progs afraid they wouldn’t be able to meet their burden of justifying the effect of their “nondiscrimination” laws on religious minorities? That would be a damning admission – that either there’s no compelling interest, or that interest can be met with less restrictive methods (like crossing the street to another business, for instance).

    2. It would have been one thing if people had been honest and said: “sure this means covering the gays under the CRA but I like that or that is a price worth paying for the holy grail of government sanctioned gay marriage.” I would have disagreed but it at least would have been honest. What most people did instead was pretend that the facts were other than what they were so they could rationalize their support for gay marriage and their objections to the CRA. They basically just called anyone who pointed out the truth liars and pretended that supporting court-mandated government recognition of gay marriage did not have the implications it did.

      1. I would have disagreed but it at least would have been honest. What most people did instead was pretend that the facts were other than what they were so they could rationalize their support for gay marriage and their objections to the CRA.

        And, IMO, in this case, they’re doubling down. Had they said, forcing women to wear skirts is sex discrimination so forcing them to kiss or not kiss someone of their choosing in their private lives constitutes sex discrimination as well. I would’ve understood the reasoning. I still would’ve kinda generally disagreed with the ultimate decision/resolution but I wouldn’t disagree with rational consistency under the law.

        In this case however, they basically flat out violate every notion of sex discrimination in order to (paradoxically) say that lesbians *cannot* be discriminated against the same way (gay) men are. Otherwise, the ‘but for’ example would’ve contained a full permutation of gay/straight and man/woman instead of just comparing lesbian women to straight ones.

  14. “Libertarian” Reason supporting more specially legally protected victim groups.

    1. It can never be pointed out enough that Shackford was one of the worst offenders in dishonestly claiming this would not be the result of court mandated gay marriage. Shackford has been appallingly dishonest about this issue.

      1. Like so many of the Welchie Boy gang, he’s a Professional Fake Libertarian.

      2. It’s the same as the old “nobody is talking about taking away your guns” schtick.

    2. I don’t think he is arguing that. He’s either neutral or hostile to the idea. He probably just believes the CRA shouldn’t even exist.

      1. Oh bullshit. Becoming a government sanctified victim is this dude’s personal holy grail.

    3. Maybe you missed when they came out with the “Whatever is good for Liberty is constitutional” theory of jurisprudence, otherwise knows as “”More shit I approve of is the Law”.

      The Progressive rot is deep and growing.

  15. One thing I think people should understand, too . . .

    We’re talking about all the ways they’re rationalizing the First and Second Amendments away, but I there’s a good case to make that the First and Second Amendments are what make our government distinctively American.

    The Commonwealth countries don’t have them. If we didn’t have them, we’d be like them.

    The reason you can’t sue a website for what some commenter writes in the comment section in the U.S. is ultimately because you have to prove malice (and damages) in the U.S. In the UK, Australia, even Canada, website can be and are sued for what commenters write in the comments section, and their websites are often heavily moderated by the site owners because of that. Sites that can’t afford a staff of moderators often just disallow commenting.

    That our commitment to freedom is such that we won’t even begin to buy into the idea that the state has a monopoly on violence–and we have an amendment to our constitution that keeps us armed in case we need to violently overthrow our own government? That’s American as fuck.

    Other countries don’t have that.

    You flush that all down the toilet, and I’m no longer patriotic so much as I’m nostalgic. It’s the First and Second Amendments that make me patriotic. We make our commissioned military swear to defend the Constitution against all enemies, “both foreign and domestic”. That’s about the First and Second Amendments to me.

    1. “We’re talking about all the ways they’re rationalizing the First and Second Amendments away, but I there’s a good case to make that the First and Second Amendments are what make our government distinctively American.”

      It goes deeper than that.

      Rule of Law and enumerated powers are being replaced with “The Law is What I Want”.

      Similar to representative government being replaced with “The Government Should do What I Want”.

      People consult their feelz, and that’s what government should do.

  16. I see those two Amendments as a unifying thing. I’m willing to put up with an awful lot of horseshit because we still have the First and Second Amendments.

    I don’t think people understand that our rights are real and that violating them has real consequences in the real world. Take away the idea that the government is protecting our religious beliefs–regardless of whether they’re popular. Take away the idea that the government is there to serve the people, and we have a responsibility to protect our own rights from tyranny (by force if necessary) . . . and the famous melting pot theory disappears.

    The First Amendment, especially, is the glue that holds this big pot of diversity together. Get rid of that glue, and all hell’s gonna break loose eventually.

    They think the world is going to be more accepting and diverse if we just let them shit all over the First and Second Amendments, but they’ve got it exactly backwards. It’s the understanding that your aberrant behavior doesn’t impact other people’s rights that makes them tolerant. Kick the legs out from under that belief, and the tolerance will eventually go with it.

    1. What do the first and second amendments have to do with this subject?

      Freedom from discrimination is a right too. Why do libertarians want to have as few liberties as possible?

      1. “Freedom from discrimination is a right too.”

        Rights are choices.

        “Freedom from discrimination” would be a right for other people not to make a choice?

        Freedom from choice is sooooooooooooooooo Orwellian.

        The government has no right to discriminate against you.

        A right is the right to make a choice for yourself.

        You have no right to impose yourself on other people against their will.

        It’s really not hard to understand.

      2. Freedom from discrimination is a right too.

        No it isn’t. Freedom from anything is not a right and cannot be. That’s why FDR got his second bill of rights packed up his ass.

        1. That’s the dumbest thing posted here. You don’t have a freedom from being murdered protected by law?

      3. No it’s not. There is only one right, to be free from the initiatory use of force.

        1. I stand corrected.

      4. “Freedom from discrimination”

        No. That’s a demand for people to treat you the way you want them too instead of the way they want to treat you.

        It annihilates the preferences of others for your preferences. It makes illegal the Great Transgression of Preference. People always say Rand created impossible fantasy worlds. But the world so often manages to bring the impossible to life.

        Did you see the story about schools banning “best friends”?

        International 4-8818 and we are friends. This is an evil thing to say, for it is a transgression, the great Transgression of Preference, to love any among men better than the others, since we must love all men and all men are our friends.
        Anthem
        Ayn Rand

    2. “I see those two Amendments as a unifying thing. I’m willing to put up with an awful lot of horseshit because we still have the First and Second Amendments.”

      You’re putting up with horseshit because your alternatives are unpalatable. And likely to get worse.

  17. “But over time, as court precedents and case law have hammered out the contours of what “discrimination based on sex” means in practice, the door has opened to a broader understanding of the phrase.”

    But over time, the courts keep making shit up.

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