Supreme Court

Antonin Scalia's Surprising Role in the Latest Supreme Court Fight Over Legal Protections for Gays

Understanding what’s at stake in Bostock v. Clayton County, Georgia

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The late Justice Antonin Scalia was nobody's idea of a gay rights activist. When the Supreme Court struck down a state ban on "homosexual conduct" in Lawrence v. Texas (2003), Scalia faulted the majority for embracing "the so-called homosexual agenda." When the Supreme Court recognized a constitutional right to same-sex marriage in Obergefell v. Hodges (2015), Scalia denounced the ruling as a "threat to American democracy."

Scalia's views on legal protections for gays will be front and center once again next month when the Supreme Court hears a far-reaching case that asks whether anti-gay workplace discrimination is illegal under current federal law. Except this time around, Scalia's jurisprudence will be favorably cited and employed by the openly gay petitioner and his lawyers.

The case is Bostock v. Clayton County, Georgia. Gerald Lynn Bostock was employed by Clayton County as a child welfare services coordinator. He claims that he was fired solely on account of his sexual orientation. He argues that such actions by his employer violate federal law.

According to Title VII of the Civil Rights Act of 1964, it is unlawful for an employer to discriminate against a job applicant or employee "because of such individual's race, color, religion, sex, or national origin." The question before the Supreme Court in Bostock v. Clayton County is whether employment discrimination because of sexual orientation qualifies as employment discrimination "because of…sex."

In their principal brief to the Supreme Court, Bostock and his lawyers rely in part on Justice Scalia's unanimous 1998 ruling in Oncale v. Sundowner Offshore Services, Inc. At issue was whether same-sex workplace harassment violated Title VII's prohibition on discrimination "because…of sex." Scalia held that it did.

"Male on male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII," Scalia acknowledged. "But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed." The protections of Title VII, Scalia concluded, "must extend to sexual harassment of any kind that meets the statutory requirements."

Scalia, a self-described textualist, often argued that the plain meaning of a statute should trump the ostensible intentions, purposes, or expectations of the statute's authors and supporters. That was one of the reasons why Scalia famously rejected the use of legislative history in such statutory cases.

Bostock and his lawyers are now hoping that Scalia-style textualism will help them achieve victory and secure broader legal protections for gay workers nationwide. "In holding that same-sex sexual harassment is actionable under Title VII, the Court in Oncale confirmed that the statute prohibits forms of sex discrimination that Congress may not have envisioned in 1964, and instead goes beyond what was contemplated to cover 'reasonably comparable evils,'" they told the Court. "Sexual orientation discrimination is clearly such a 'reasonably comparable evil,' and is therefore also prohibited."

Oral arguments in Bostock v. Clayton County, Georgia will be held on October 8.

NEXT: Alabama Dean Resigns After Conservative Snowflakes Publicize His Old Tweets

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  1. Antonin Scalia’s Surprising Role in the Latest Supreme Court Fight Over Legal Protections Special Privileges for Gays

    Fixed.

    1. Yes… In this New Dawning Gay Age, only gays will be allowed to sing…

      “Don we now our gay apparel!”

      1. I can’t tell whether you are stupid or just the world’s worse comic, but either way, STFU!!

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        2. ..I am making a good salary from home $1200-$2500/week , which is amazing, under a year back I was jobless in a horrible economy. I thank God every day I was blessed with these instructions and now it’s my duty to pay it forward and share it with Everyone, Here is what I do……….. > 2salary.com

        3. “I can’t tell whether you are stupid or just the world’s worse comic”

          Given that it’s Squirrely, can’t it be both?

    2. Oh, balls. Gays should have the same protections against sexual harassment as straights. That they also want a raft of special considerations in other matters does not mean they are in the wrong in this case.

      1. Gays can have the same protections as straights when they quit bawling for that “raft of special considerations in other matters.” Because whatever they are trying to get now is just a click of the ratchet toward the rest of the extra privileges they want.

        1. Keeping in mind that the vast majority of gay people just want to be left alone and treated like anyone else. There are a handful of activists out there and my impression is most gay people want nothing to do with them.

      2. Good comment, C.S.P. S.: We surely want to allow gay folks to live their lives as they wish, but (infrequently) they demand idiocy, e.g., calling it discrimination when religions disagree with them.

        1. Well it is discrimination when religions disagree with them (depending on exactly what you mean by “disagree” with them). If a christian church wants to have a policy that gays can’t be pastors/priests/deacons or whatever, then they are literally discriminating against them. Calling it that isn’t idiocy. The idiocy is trying to force religions to recognize them or takeaway from religions’ right to determine who gets to lead their congregation/flock/parishioners/whatever.

          1. Free association rights should almost always trump accommodation laws.

      3. “Oh, balls. Gays should have the same protections against sexual harassment as straights.”

        Gays already have the same protections against sexual harassment as straights. That’s what the Scalia case was about, whether same-sex sexual harassment was prohibited by the statute.

        This case is about whether discrimination based on sexual orientation is barred by Title VII even though Title VII on its face only prohibits sex discrimination, not sexual orientation discrimination.

    3. “When the Supreme Court recognized a constitutional right to same-sex marriage in Obergefell v. Hodges (2015), Scalia denounced the ruling as a “threat to American democracy.”

      This is a disingenuous reading of Scalia’s dissent in Obergafell clearly in the context you are using this to paint Scalia as anti-LGBT, when in the case of Obergafell that was not the case. Scalia even said in his opinion that he did not care if same sex couples got married. In his opinion he even called the the same sex marriage debate “the greatest example of American democracy”. What he denounced as “A threat to democracy” was SCOTUS decision to take a national question of debate and render an answer against the will of the American people. Something that this publication has called out before. Judaical Activism, SCOTUS had no legitimate reason to circumvent the national debate over same sex marriage and decide a case such as Obergafell. The question of same sex marriage was on the national stage when the case was decided 13/50 states had some form of legalized same sex marriage. Scalia’s dissent neither advocated for or against same sex marriage, merely to allow the democratic process to play out and leave the Courts out of it. For all you faux small government libertarians you certainly have no problem with the Courts pushing you around.

      1. SCOTUS should’ve never heard the case at all, for there is no Constitutional Right to marriage of any kind, thus it is a power only unto the states, not the federal Govt. & thus, the 14th Amendment does not apply:

        https://www.jurist.org/commentary/2014/10/richard-kelsey-samesex-marriage/

        1. Actually, freedom of association, often linked to the First Amendment, is indeed infringed if certain forms of association (such as marriage) are forbidden to people by the government simply because the sexes of the two principals involved are not different.

          Of course, the proper solution is for the government to recognize civil unions between any people who can provide and demonstrate legal consent, and let churches and other religious entities decide for whom they shall and shall not perform marriage ceremonies.

          1. Of course, the proper solution is for the government to recognize civil unions between any people who can provide and demonstrate legal consent, and let churches and other religious entities decide for whom they shall and shall not perform marriage ceremonies.

            No, the “proper solution” is a complete separation of marriage and state. It should not be necessary to get the government’s permission to get married, and it should not be necessary to get a judicial decree to terminate it. Redefining the meaning of “marriage” by judicial fiat is just plain wrong.

            1. I think it is the same thing he is saying. Libertarians have long held that governments should not be in the marriage business.

              Civil union is another thing. It is a contract and has implications for property rights, inheritance, worker benefits, and unfortunately tax laws.

              What has happened though is society and law have been unable to make the distinction. The only way to go has been to redefine marriage.

            2. Still not quite right. The proper solution would be to remove all (federal) rules, regulations, and incentives that hinge on marriage, mostly embedded through the tax codes.

              When there are tax tables for married versus single, then the government gets to decide who is married and who is not. Remove all of those types of provisions and the question goes away leaving only contract law to determine who is married or not.

        2. There is no marriage right in the Constitution, but there a plenty of rights there that support letting people live as they wish, including sexual proclivities. Some day when all the world realizes gays are not gay in order to ruin your life, or smash religion, instead gays just wish to be left alone to live their lives as they see fit, which the constitution is most CLEARLY interested in. By your logic, southern states should have been left to continue segregation. Think before you post.

      2. Judaical Activism

        Freudian slip?

      3. For the state, marriage is a contract. As such the state should not prohibit two people from entering into such contract.

        SCOTUS should address items of popular debate as those cases deserve attention, and definitely not duck them.

        1. For the state, marriage is a contract. As such the state should not prohibit two people from entering into such contract.

          Indeed. Nor should the state require a judicial decree to dissolve such a contract.

    4. ..I am making a good salary from home $1200-$2500/week , which is amazing, under a year back I was jobless in a horrible economy. I thank God every day I was blessed with these instructions and now it’s my duty to pay it forward and share it with Everyone, Here is what I do……….. > http://www.2salary.com

  2. The question before the Supreme Court in Bostock v. Clayton County is whether employment discrimination because of sexual orientation qualifies as employment discrimination “because of…sex.”

    How could sexual orientation possibly be the same thing as sex?

    1. Sex and sexual orientation both cause babies, so they are both the same thing!

      If’n ye DOUBT that “sexual orientation causes babies”, then ponder ye this…

      EACH AND EVERY ONE OF US, as we were born, had to align (AKA, “orient”) our very baby bodies, with the SEXUAL ORGAN of Our Mama, to make it into this world! Hence, “sexual orientation”!

      (NOT a racist slam here against orientals… The above is true of occidentals and accidentals ass well!)

      1. Oooops! I totally forgot about those of us born via C-section!!! So I lied to ya! Those of us born via C-section may have been extracted via a quasi-random orientation, having nothing to do with sexual organs whatsoever!!!

        So then… Is it legal to discriminate against those of us born via C-section?!?! I have NO idea! Maybe Our Bettors on the SCROTUS will illuminate us all, some sunny day!!!

        1. Since time immemorial, women have advised other women on what to do to get the baby to “drop”. OBGYNs, a field dominated by women, frequently assist in turning the babies and, C-sections aside, plenty of babies are born breach.

          Either way, I think it’s pretty clear that sexual orientation is a construct instituted and maintained by the matriarchy.

          1. Yes! One might even go so far as to say that sexual orientation is a cuntspiracy as cuntstituted by the matriarchy! But only go so far as to say that if you’re not afraid to get your head bitten off!

      2. As for “breech births”… Those are dangerous!!! They are a BITCH for both Mama AND the doctor!!! As such, they need to be just flat-out, outlawed!!!

        1. Your existence should be outlawed.

    2. Its not. Everyone can read the Legislative deliberations of the Civil Rights Act of 1964.

      Its also why gay people want to add the words “sexual orientation” into the law. Because “Sex” means man or woman.

    3. It’s not the same thing and nobody says it is.

      If you discriminated against a man who seeks relationships with other men, you are discriminating against him because of his sex because you wouldn’t discriminate against a woman who seeks a relationship with a man.

      It’s the same line of thinking as Loving v Virginia. They claimed it wasn’t discriminatory because blacks could marry blacks and whites could marry whites so it treated everyone equal. That claim, like the claim that discriminating on orientation isn’t necessarily discriminating on sex, is bullshit.

      1. “If you discriminated against a man who seeks relationships with other men, you are discriminating against him because of his sex because you wouldn’t discriminate against a woman who seeks a relationship with a man.”

        That’s the argument, but it’s not a very good one. It’s entirely reliant on a particular framing of the issue and a particular factual scenario. There’s no reason to prefer that framing to the other framing, where you discriminate against both men and women who seek relationships with people of their own sex, and there’s no reason to limit it to a single factual scenario. So the entire argument depends on getting people to agree to the premise, which there isn’t any reason to do.

        In fact, there are reasons to reject that formulation because it can’t account for discrimination against bisexuals (and discrimination specifically against bisexuals is a real thing) or other factual scenarios. What if I only discriminate against bisexuals? How does your discrimination based on sex argument work then? Or what if I only hire lesbians? It seems pretty clear that I would be discriminating against straight women, just like I would be against all types of men, but how could a straight woman claim that I wouldn’t hire her based on her sex?

        “It’s the same line of thinking as Loving v Virginia. They claimed it wasn’t discriminatory because blacks could marry blacks and whites could marry whites so it treated everyone equal. That claim, like the claim that discriminating on orientation isn’t necessarily discriminating on sex, is bullshit.”

        No. For one thing, there’s no analogue to sexual orientation at issue in Loving. The restriction was explicitly based on race.

      2. Since marriage is a power solely unto the states, Virginia had every right to ban marriages between 2 different races if they choose to & they did! There is NO Constitutional right to marriage of any kind so the 14th Amendment does not apply & thus, SCOTUS never should’ve even taken the same-sex marriage case!

        The Civil Rights Act of 1964 was also Unconstitutional!

        1. “Since marriage is a power solely unto the states, Virginia had every right to ban marriages between 2 different races if they choose to & they did! There is NO Constitutional right to marriage of any kind so the 14th Amendment does not apply & thus, SCOTUS never should’ve even taken the same-sex marriage case!”

          You are wrong.

          1. Sorry, you are wrong……If you do not like it , change the laws within the state! 14th Amendment has been abused over & over!!!!

            https://www.jurist.org/commentary/2014/10/richard-kelsey-samesex-marriage/

            1. That’s just like, his opinion, man. Do you think that I can’t link to any number of articles with a different opinion? I would, but the issue has been settled in both the courts and the court of public opinion, and there’s not much point in arguing cases that have long-since been decided.

              1. This. I am quite surprised by the number of commenters here who still have an issue with this. Thought it was over.

                1. Just because it is settled law does NOT make it correct…See: Roe v. Wade, another horrible decision on an issue, abortion, that is also a power unto the states & NOT the federal Govt.!!!!!

                  It is amazing how ignorant people are about the Constitution!!!…Truth be told, at least 2/3, but probably more like 3/4 of the cases SCOTUS hears should not even come before them! The system is severely corrupted!!!

                  1. “It is amazing how ignorant people are about the Constitution!!!”

                    An impressive confluence of tell and show don’t tell.

            2. Just because it is settled law does NOT make it correct…See: Roe v. Wade, another horrible decision on an issue, abortion, that is also a power unto the states & NOT the federal Govt.!!!!!

              It is amazing how ignorant people are about the Constitution!!!…Truth be told, at least 2/3, but probably more like 3/4 of the cases SCOTUS hears should not even come before them! The system is severely corrupted!!!

      3. Jesus. Reason just brings socks back willy nilly.

    4. Sex and Sexual Orientation are not the same thing. When you fill out any form asking for your sex there are 2 options: Male or Female. Gay or Lesbian are not sexes but sexual orientations. It should not be the job of the courts to read Title VII in a manner that was clearly not intended at the time of its passing. Re redefining sex to mean sexual orientation or including sexual orientation in title VII protections should take an act of Congress not the Court

      1. “When you fill out any form asking for your sex there are 2 options: Male or Female.”

        That would seem to leave it to the government to decide how many sexes there are. Are you sure you want to do that?

        1. That would seem to leave it to the government to decide how many sexes there are.

          No, Nature has already done that. Remember Biology class? “Sex” is about reproduction: It requires a Male and a Female.

        2. JPH yes in this context we need uniformity and objectivity when it comes to society’s institutions. If I go to the DMV and apply for a drivers license the information I give including my height, weight, hair color, eye color, race, sex (not my gender identity), will be used as identifying information in many interactions I have in everyday society. That information will be used for me to access my bank, buy age restricted products, apply for jobs, interact with police. If we don’t have institutional uniformity it could lead to confusion and chaos.

        3. leave it to the government to decide how many sexes there are.

          They didn’t “decide” it; they simply observe it.

    5. I’ll bet dollars to donuts he was fired for being inept or a poor worker, etc. & he is using his homo-ness to keep his job!!! Happens all the time with minorities!

    6. Nobody was saying it’s the same thing, just a ‘reasonably comparable evil’. And unless you believe sexual orientation is a choice, being discriminated because of it is similar to those other possible reasons for discrimination.

      Alternatively, and perhaps a stronger a case: in some way a gay person is being discriminated because of their sex AND their sexual orientation, because these things are connected. Assuming the plaintiff here is a gay man, a MAN that likes men, he is being discriminated for being a man, for if he was a WOMAN that likes men, he would not be gay and thus not being discriminated against. So if only his SEX had been different, he would not have been fired.

      P.S. I’m all for allowing any employer to hire or fire for any reason whatsoever. I might not like you for it, but if you want to have a homophobic, racist or any other kind of silly, discriminatory hiring policy, I’m not going to come to your house and beat you up.

  3. Sure, it covers other forms of sex discrimination than the ones Congress originally contemplated. And, if sexual harassment is covered, unless the statute is explicitly limited to opposite-sex sexual harassment including same-sex sexual harassment is a no brainer.

    But sexual orientation discrimination is not sex discrimination. It’s discrimination based on sexual orientation, not sex. You have to pretend that sexual orientation isn’t a real thing to claim that it’s really sex discrimination.

  4. One gets the impression here that Reasons supports the law over principle.

    Under Freedom of Association, dissemination is a civil right . This is still a concept Reason has yet to grasp – much less use any consistent principles in its articles .

    1. Scott Shackford got very butt hurt and accused me of being a troll because I said that regardless of his claims to the contrary his positions and arguments regarding gay marriage meant that he supported expanding the CRA to cover gays.

      As usual and as always, Shackford was lying

      1. +100

        People like Shackford are going to be shocked when Obergefell v. Hodges (2015) is reversed and many other special privileges that are NOT in the Constitution.

        Gay marriage was to get same-sex benefits from corporations. Gay people could already enter into matrimonial contracts.

        Expanding CRA is to allow more legal attacks on dissenters who refuse to comply with the Gay Mafia that Gay people are not like everyone else but special.

        1. It’s amazing how you two think you are so important to Shack’s world.

          You two wouldn’t know principles from pedophiles if you didn’t have Trump to follow.

        2. Gays wanted the same marriage rights as straight people. That’s not special treatment. That’s equal protection.

          1. Get the government out of marriage. Civil union contracts from the government, marriage by the church. Problem solved.

            1. Or just keep calling it marriage. It’s just a word.

              1. Negro is also just a word. Same with coon, queer, spic, fag, wop…

                1. If I had the world’s most powerful electron microscope I could not find the point you are trying to make.

                  1. Because you are very stupid and generally obtuse Tony.

              2. I see the point Tony. At some point it becomes a distinction without a difference.

            2. That too.

              All contracts, including homo unions should be enforced by government and that is the extent of their envolvement.

          2. Women didnt even have the right to vote until the 19A.

            Homos need an amendment to get special privileges. Otherwise marriage is between a man and woman. Plural marriages are bullshit too.

            Be an America and convince a majority to your side.

            1. Women didnt even have the right to vote until the 19A.

              A case can be made that the 19A is a major cause of the negative course this country has been on since. I would repeal the 19A and go back to only taxpayers (property holders) voting.

              1. Ann Coulter offered evidence that since women have had the vote, if you remove female voters from every presidential election that the more conservative candidate wins every time

    2. I re-read the article just to try to see where there may be any advocacy expressed in it and I couldn’t find any. Care to point out where the author expressed his opinion? Maybe in the first line, I guess.

  5. So under this theory bisexuals get a free pass as long as they don’t discriminate and harass both men and women?

    1. “My boss, Pat, is unfair but at least zhe is nondiscriminatory.”

  6. “But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”

    Statutes have emanations from penumbras too? Thanks, Scalia.

  7. Private employers should, but don’t, have the right to hire or not anyone for any reason. Governments should not. But that hardly helps here.

    1. +1000000

  8. Strange New Respect for Justice Scalia!

    1. Like Reagan, Lefties love the some dead conservatives.

  9. Sexual orientation is not sex.

    Sex is defined by genetics and functioning reproductive organs.

    Orientation is a choice. If not, it’s a disorder.

    People do and should discriminate against bad choices and disorders.

    The forms that discrimination takes, however, should be regulated by law in civilization.

    Marriage should have remained defined as between one man and one woman to the exclusion of all others. It was gays who didn’t respect that. If they wanted their union recognized by the state they should have just chosen a different word to represent their different union.

    1. When did you choose your sexual orientation?

      1. Whenever the issue arises.

        1. I see. They call that “pansexual” these days. You need to understand that makes you very unusual. Almost all of us have a much narrower sexual orientation, especially men. Keep that in mine when you talk about it being a “choice”.

          1. Wrong again dipshit.

            I always choose heterosexuality.

            1. It’s OK. I’m not judging you.

              1. Heh
                Yup must be difficult having to make a “choice” every time.

                “Let’s see…should I or shouldn’t I…what a quandary”

                1. Maybe for some people.

            2. I always choose heterosexuality.

              And always the same species?

            3. Really Rob? So gay for pay doesn’t count? Or do you just change back after? As it is your choice.

              So you are proceeding choice. Just no Jews, right?

    2. Marriage should have remained defined as between one man and one woman to the exclusion of all others. It was gays who didn’t respect that. If they wanted their union recognized by the state they should have just chosen a different word to represent their different union.

      It was conservatives who argued that civil unions or domestic partnerships were just as bad as same-sex marriage, and banned them in over 20 state constitutions alongside same-sex marriage.

      Similarly, in the states that did have civil unions, it was conservatives who repeatedly refused to treat them as legally equivalent to marriage, causing multiple courts to rule that (no surprise) “separate but equal” didn’t work.

  10. Hot take: The CRA was a mistake. It infringes on critical freedoms of association. It was well intentioned and created to address real problems but I think everyone should know by now what the road to hell is paved with.

    That said…

    I think the plaintiff is also misconstruing the Oncale ruling though. Oncale is based upon the question of “Here we have conduct that would clearly violate a law if the plaintiff were the opposite sex, does the conduct still violate the law if the plaintiff’s sex is what it is?” The court decides that “discrimination” on the basis of sex covers the entire range of “activities you would do to someone because they are A instead of B”. Because the plaintiff in Oncale would not have been subjected to the same treatment if they were a woman, what happened to them is deemed as “discriminatory” ergo the law is violated.

    Here, you have a man who is gay and who was fired from his job. If we assume that everything claimed is true and that he was fired principally because he was gay then I don’t see how Oncale helps him. There’s nothing in his complaint that suggest anyone made any sexual advances on him that they might otherwise not have made if he were a woman, merely that a lot unfair things happened to him because he was gay. But homosexuality isn’t unique to men. Women can also be homosexual and if the plaintiff was a lesbian I don’t see how that would change the situation.

    1. Happy Chandler presents the very specific framing that turns it in to sex discrimination. According to this rather implausible framing, he wasn’t fired because he was gay, he was fired because he was a man who has sex with other men. If they don’t fire women who have sex with men, they they are firing him because he is a man.

      1. Bostock undermines that position in his own brief though. He states that participated in a gay softball league and promoted the Court Appointed Special Advocates program he managed as a volunteer opportunity for league members and his brief claims that for these activities he was ridiculed by high ranking county officials, his CASA program was subject to an unwarranted audit, people made disparaging comments about his orientation and membership in the league at a county meeting and was then subsequently fired for “conduct unbecoming of a county employee”.

        So if we take all these claims at face value and assume they are 100% true, then that sinks his own claim of sex discrimination because he was never fired for having sex with men but, by his own admission, mainly participating in a gay softball league. But if he were a straight man with a wife who for some reason decided to join a gay softball league then presumably he’d suffer the same harms. Likewise, if he were a woman (straight or lesbian) who joined a gay softball league, still the defendants would still be treating them badly. I can’t see a way you can slice this where the sex of Mr. Bostock matters (much less the sex of people he has sex with). If we are to take HIS OWN CLAIMS at face value, then this isn’t sex discrimination.

  11. seems like LGBTs are finally being cared for

    1. Tell this to Rob. He will blame it on the Jooooossssss.

  12. Scalia was murdered in exactly the same way as Andrew Breitbart. By the same people.

  13. “Legal Protections for Gays”

    One gets the impression that Reason supports the concept of special protection for certain groups. – a very anti-libertarian concept IMHO

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