Of loose cannons and loose canons in Title VII

At oral argument yesterday, Judge Richard Posner took heat from all sides

|The Volokh Conspiracy |

Former Seventh Circuit Judge Richard Posner made a surprise appearance at oral argument in the Supreme Court yesterday.  He came under a barrage of criticism even though he wasn't a judge whose decisions were being reviewed and wasn't even a judge who wrote any majority opinion in any case involving the issues at hand.

More poignantly, perhaps, he came under the harshest criticism from some of the most prominent and effective advocates of LGBT civil rights, who agree with him on substance but sought to distance themselves from his methodology.

I.

What earned him this obloquy? In a 2017 concurring opinion in Hively v. Ivy Tech Community College (7th Cir) (en banc), shortly before his retirement, Judge Posner agreed with the majority that Title VII's prohibition on "discrimination because of . . .sex" should be understood to encompass sexual-orientation discrimination. But he offered a rationale distinct from the majority opinion by Diane Wood with its careful parsing of dictionary definitions, application of intervening precedents, original-expected-applications methodology, the (in)significance of post-ratification developments, and sexual-orientation analysis:

I would prefer to see us acknowledge openly that today we, who are judges rather than members of Congress, are imposing on a half-century-old statute a meaning of "sex discrimination" that the Congress that enacted it would not have accepted. This is something courts do fairly frequently to avoid statutory obsolescence and concomitantly to avoid placing the entire burden of updating old statutes on the legislative branch.

Posner claimed, with considerable descriptive (if not prescriptive) power, that this method of construction was actually quite common among judges of all ideological stripes. Some uses of this method have been congenial to modern political conservatives.  Most of it has not been. Courts have used it with constitutional provisions like the First, Second, Fourth, and Eighth Amendments. They have done it with statutes, like the Sherman Act of 1890, which gave courts a common-law like power to develop a body of law to prevent combinations restraining trade.

And they have done it repeatedly with Title VII itself, using the 1964 Civil Rights Act in common-law-like fashion to develop responses to increasingly complex understandings of the phenomenon of "sex discrimination":

[I]t has taken our courts and our society a considerable while to realize that sexual harassment, which has been pervasive in many workplaces (including many Capitol Hill offices and, notoriously, Fox News, among many other institutions), is a form of sex discrimination. It has taken a little longer for realization to dawn that discrimination based on a woman's failure to fulfill stereotypical gender roles is also a form of sex discrimination. And it has taken still longer, with a substantial volume of cases struggling and failing to maintain a plausible, defensible line between sex discrimination and sexual-orientation discrimination, to realize that homosexuality is nothing worse than failing to fulfill stereotypical gender roles.

Now, he suggested, is the time to acknowledge that the statutory line between "sex" discrimination and "sexual-orientation" discrimination cannot be held, and that sexual orientation discrimination falls well within the domain of illegal sex stereotyping:

The compelling social interest in protecting homosexuals (male and female) from discrimination justifies an admittedly loose "interpretation" of the word "sex" in Title VII to embrace homosexuality: an interpretation that cannot be imputed to the framers of the statute but that we are entitled to adopt in light of (to quote Holmes) "what this country has become," or, in Blackstonian terminology, to embrace as a sensible deviation from the literal or original meaning of the statutory language.

Posner, who hated originalism because he thought it offered a feigned authenticity and false objectivity, called his method of statutory construction "judicial interpretive updating."  Legions of critics, including some our own Volokh Conspiracy brethren (for example, here  and here), essentially called it lawless.  Even Guido Calabresi, the progressive intellectual powerhouse on the Second Circuit, denounced Posner's method as "baloney":

There are people like the critical legal theorists, and people like Judge Richard Posner—who is simply a critical legal theorist of the Right—who say that courts can do anything they want because language does not tell us anything. . . . To say either that language does not mean anything, or that it tells us exactly what everything means, is baloney. The truth lies somewhere in between. Text means language in context.

Posner can be acquitted on the most extreme charge that he believes language means nothing at all, and that therefore judges can simply do as they please to suit their policy preferences. On the other hand, some of his critics will have a much harder time maintaining that judicial application of "discrimination because of … sex" means just what it would have meant in 1964. Not even the employers or the government think the application of Title VII has been–or should have been–static.

Posner's approach to statutory construction lies somewhere between pretending that the judicial role is either just to uncover fossils untouched by human civilization over the ages or to look up at random collections of stars and imagine they form the shape of Ursa Major.  He does suggest that reading sexual orientation into Title VII requires a "loose 'interpretation' of the word sex."

Let's call it the loose canon  of statutory construction: where a statute is very old, and the principle embodied in the language is susceptible to more than one meaning, and where experience in the intervening time has exposed unforeseen layers of complexity in that principle, and where the principle can fairly be applied to circumstances unforeseen by the enacting legislature, it's appropriate for courts to adopt new understandings.

The loose canon was on the minds of every judge and advocate in the Supreme Court yesterday.

II.

Which brings us to the first set of oral arguments (transcript here), combining Bostock v. Clayton County (11th Circuit) and Altitude Express Inc. v. Zarda (2nd Circuit).  As in Hively, the question was whether sexual-orientation discrimination is a form of sex discrimination prohibited by Title VII. Stanford law professor Pam Karlan delivered a fluent and informed argument for the men who claimed they had been fired for being gay.

In his very first question for Karlan, Chief Justice Roberts asked:

Do you agree or disagree with Judge Posner's statement that the statute should be read to encompass sexual orientation discrimination to "avoid placing the entire burden of updating old statutes on the legislative branch"?

Karlan was ready with an unequivocal repudiation of the loose canon:

I disagree with Judge Posner. I don't think you need to do any updating here. I think you should read the words as they were understood then, which is "men" and "women."

Next, Justice Alito noted that Congress has so far failed to pass the Equality Act, which would explicitly add "sexual orientation" and "gender identity"to Title VII.  Shouldn't that have some significance for the way Title VII is interpreted, and weren't the plaintiffs asking the Court to do Congress's legislative work? He continued:

We might as well just take the Equality Act and issue that as our opinion and say, as Judge Posner said, that the courts need to intervene on questions like this when the legislative branch simply will not do so. What would we—how would we respond to that question?

Now Karlan replied by denouncing the Loose Cannon himself:

Well, the fact that a loose cannon like Judge Posner says, "do whatever you feel like" is not what we're asking for. We're saying, if you read the words "because of sex" and you ask, in 1964, what did those words mean? They meant treating men differently from women.

The do-whatever-you-feel-like school of statutory construction is a bete noir, or at the very least a secret society whose members rarely confess. It overstates Posner's loose canon to say he is a member, much as Calabresi exaggerated Posner's faults.

But Karlan went on to make the very cogent point that Congress's original expectations about what "sex discrimination" might have meant should no more govern the sexual-orientation cases than should its presumed original expectations should govern "sex stereotyping" or "sexual harassment" or many other acknowledged instances of sex discrimination.  (In fact, Posner argued much the same thing in Hively.) What should govern, she continued, is the linguistic meaning of "sex" (even if it's understood to refer only to biological sex) combined with the understanding that sexual-orientation discrimination cannot even be conceptualized without reference to sex in that narrowest biological sense. Again, Posner argued in Hively that even given a narrow understanding of sex, as he said Congress understood it in 1964, sexual-orientation discrimination should be prohibited as a form of sex discrimination. But Kaplan had to distance herself as far as possible from Posner, the stand-in for all that is wrong with the federal judiciary.

Less surprisingly, the employer's attorney, Jeffrey Harris, called the case a "particularly pernicious" use of Posner's loose canon because when "Congress seeks to expand the scope of Title VII's liability provisions, it typically couples that itself with an expansion of the religious employers' exemption to Title VII."

That might be a fine balancing-of-interests principle, and it might be something Congress wants to revisit if the Court rules for the LGBT plaintiffs, but in fact Congress has not always coupled expanded Title VII liability with expanded religious exemptions. And neither Bostock nor Altitude  Express, a county government and a sky-diving company, respectively, involve religious employeror even claimed religious-conscience rights to fire gay workers.

III.

The second oral argument (transcript here) came in R.G & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission (6th Circuit), which raised the question whether discrimination based on "transgender status" is prohibited sex stereotyping or sex discrimination under Title VII.  David Cole, the deservedly celebrated law professor and civil-liberties lawyer, argued for Aimee Stephens, a transgender woman who was fired by a funeral home after years of meritorious service when she announced she was transitioning.

In his opening two-minute statement, Cole summarized the arguments for why firing Stephens was discrimination because of sex. The arguments were very similar to those in the sexual-orientation cases. He closed with a whack at the dreaded Posner:

None of these arguments ask this Court to redefine or, in Judge Posner's words, "update" sex. They assume, arguendo, that sex means at a minimum sex assigned at birth based on visible anatomy or biological sex.

This stiff-arm to Posner might have seemed especially gratuitous. In Hively, Posner didn't directly opine on whether discrimination based on transgender status or gender identity amounted to sex discrimination (though he did observe that "now of course transgender persons are common"). It's not entirely clear that he would have reached the conclusion that gender-identity discrimination is also prohibited by Title VII, given what he recited as the comparatively advanced social understanding and particular legal developments regarding sexual orientation. He might have concluded that no comparable social consensus or legal evolution had yet attended our society's understanding of gender identity. But it has to be admitted that the loose canon admits many conclusions.

The Court wasn't done with Posner yet. Justice Breyer started to push Solicitor General Francisco to explain whether the federal government was relying on the uncontested fact that Congress could not have imagined how the Court was being asked to interpret Title VII now. "That's what I think . . . Judge Posner, who had a good point," was suggesting, Breyer said, before adding hastily, "I'm not saying it's a winning point." At that, there was laughter in the courtroom.

IV.

The entire legal establishment of the United States made a show of saying that it considers Posner's judicial-interpretive-updating method of statutory construction risible. "We're all textualists, now," it incanted, as if to summon a judicial antibody against the loose-canon contagion.

If the plaintiffs in these cases were to prevail, they knew they had to convince the Court that they were not relying on the Loose Cannon's loose canon. They were not, in effect, cheating by convincing the umpires to update the rules in their favor. They have sophisticated arguments about text and precedent on their side that do not rely on the loose canon, including especially the amicus brief  by William Eskridge and Andrew Koppelman. But it's quite clear that, at least in his candor about what he was doing, Judge Posner did them no favors yesterday.

Conservative critics will say that the plaintiffs' lawyers were being disingenuous: they really do embrace the loose canon and are simply making arguments to give one side a "complete victory" in the courts that they could not obtain in Congress, as the Solicitor General warned. Progressives will say that conservative critics are being unfaithful to the very method of interpretation they espouse, namely textualism, simply because they don't like the policy result–protecting gay or transgender employees from discrimination–or because they fear the possible policy consequences of that interpretation in costs to religious liberty or separate-sex facilities. But consideration of such policy consequences, if independent from the textual arguments, would be its own form of loose-canon construction. Everyone, it seems, repudiates Judge Posner's methodology while charging the other side with Posnerism.

Meanwhile, both sides can say that Congress is fully empowered to deal with the consequences of an adverse ruling from the Court as it has in the past when Congress believed the Court erred.  If the employers prevail, Congress can add sexual orientation and gender identity to Title VII. If the LGBT plaintiffs prevail, Congress can add greater protection for religious freedom and/or clarify that sex-specific spaces and policies are indeed permissible.

 

 

 

 

 

 

NEXT: SCOTUS Debates Whether the Right to Trial by Jury Should Mean the Same Thing in State and Federal Court

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  1. “Posner’s approach to statutory construction lies somewhere between pretending that the judicial role is either just to uncover fossils untouched by human civilization over the ages or to look up at random collections of stars and imagine they form the shape of Ursa Major.”

    Is there any school of interpretation whose members *don’t* consider themselves in between these extremes?

  2. Putting the cat back in the bag is much more difficult than letting it out, as Posner did.

    1. Posner wasn’t the creator of “loose canons”, though I love this post for giving a name to the practice.

      The root of most of our present system’s improper deviations from the Constitution, in my opinion, is the New Deal cases, which amount to SCOTUS, partly under threat of being “packed”, taking on themselves the illegitimate power to amend the Constitution to expand Congress’s powers in exactly the ways that Federalist #39 through #41 prove the Constitution doesn’t grant. And so we now have 90 years of precedents that need to be overturned to get our constitutional form of government back.

      1. Respectfully, though things got worse during the New Deal and the switch in time that saved nine, the Reconstruction Era Supreme Court took some might Posnerian approaches to the 14th Amendment and the various civil rights acts of the time in order to minimize or rule them unconstitutional.

        1. Agreed. I’d say that that the new Deal court just took what had previously been an occasional abuse, and took it mainstream. They didn’t invent the abuse out of whole cloth.

          It did take the New Deal to put that abuse on a theoretical basis as something legitimate, rather than an abuse you’d deny having committed, though.

          1. I agree re the 14th amendment. It appears there was no intent for that amendment to “incorporate” the bill of rights against the States, and that is how the courts and SCOTUS saw it for 60 years, before then deciding to do some Posnerian “updating.”

            1. ML, I guess you and I have a difference of opinion on what the privileges and immunities clause was supposed to do. 🙂

              1. I’ll amend myself, I do think there’s an argument for the privileges or immunities clause being originally meant to incorporate the enumerated rights of the federal Constitution. But it’s less than clear.

              2. Andrew Rogers of New Jersey, a Democratic opponent of the amendment, said, “What are the privileges and immunities? Why, sir, all the right we have under the laws of the country are embraced under the definition of privileges and immunities. The right to vote is a privilege. The right to marry is a privilege. The right to contract is a privilege. The right to be a juror is a privilege. The right to be a judge or President of United States is a privilege. I hold if [Section 1] ever becomes a part of the fundamental law of the land it will prevent any state from refusing to allow anything to anybody embraced under this term of privileges and immunities,’ he said. ‘That, sir, will be an introduction to the time when despotism and tyranny will march forth undisturbed and unbroken, in silence and in darkness, in this land which was once the land of freedom…’

                So, you see, there was agreement between the amendment’s friends and foes as to what it meant, and what it meant is exactly that the states would be bound to respect these rights formerly only binding the federal government.

                1. A guest VCer wrote:

                  “Radical Republicans initially tried to use a broad unenumerated rights reading of Corfield and the Comity Clause to justify congressional regulation of all civil rights in the states. Moderate and conservative members responded by pointing to abundant antebellum case law that interpreted the Comity Clause as merely requiring equal access to a limited set of state-secured rights. The response was so overwhelming that Radical Republicans ultimately conceded the issue. Even the term “civil rights” was removed from the Civil Rights Act lest the law be interpreted as authorizing federal regulation of the content of civil rights in the States. Even if Radical Republicans were willing to abandon the last vestiges of federalism, their more moderate colleagues were not.

                  Although John Bingham used the language of the Comity Clause in his first draft of the Fourteenth Amendment, this was due to his original belief that the Clause, properly interpreted, obligated the states to enforce the federal Bill of Rights. Bingham never once referred to Corfield during the debates of the 39th Congress and he opposed efforts to federalize the subject of civil rights in the States. According to Bingham, his first draft sought only “to enforce the Bill of Rights as it stands in the Constitution today. It ‘hath that extent — no more.’”

                  However, when Bingham’s moderate and conservative colleagues saw the language of the Comity Clause, they assumed Bingham’s proposal did nothing more than authorize federal enforcement of the equal protection principles traditionally associated with the Comity Clause. This was not at all what Bingham intended and, once he realized his initial draft would not be read as protecting enumerated national rights, he withdrew his own proposal. Weeks later, Bingham returned with a second draft. This second and final version abandoned the language of the Comity Clause and instead used the language of national treaties — language historically linked to the protection of enumerated constitutional rights.”

                  And John Bingham himself said: “I hope the gentleman now knows why I changed the form of the amendment of February, 1866. Mr. Speaker, that the scope and meaning of the limitations imposed by the first section, fourteenth amendment of the Constitution may be more fully understood, permit me to say that the privileges and immunities of citizens of the United States, as contradistinguished from citizens of a State, are chiefly defined in the first eight amendments to the Constitution of the United States.”

            2. I’d have to disagree with you. I’ve read the Congressional debate concerning the 14th amendment, and it was pretty unambiguous about what they were doing: Forcing the states to respect ALL the rights the federal government was legally bound to respect. Both the amendment’s advocates AND its foes interpreted it that way.

              It protects the Privileges and Imunities of citizens:

              Such is the character of the privileges and immunities spoken of in the second section of the fourth article of the Constitution. To these privileges and immunities, whatever they may be—for they are not and cannot be fully defined in their entire extent and precise nature—to these should be added the personal rights guaranteed and secured by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances, a right appertaining to each and all the people; the right to keep and to bear arms; the right to be exempted from the quartering of soldiers in a house without the consent of the owner; the right to be exempt from unreasonable searches and seizures, and from any search or seizure except by virtue of a warrant issued upon a formal oath or affidavit: the right of an accused person to be informed of the nature of the accusation against him, and his right to be tried by an impartial jury of the vicinage; and also the right to be secure against excessive bail and against cruel and unusual punishments.

              … The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees.

              IOW, the P&I are nothing but the guarantees of the Bill of Rights, together with those unenumerated rights protected by the 9th amendment.

              1. Some argue that the meaning of the passage you cite was that the “great object” was to force states to apply the protection of those rights equally, i.e. to treat newly freed slaves equally, as opposed to reserving for the federal government the supreme authority to determine and define what “cannot be fully defined” — and to enforce those determinations against the States going forward.

                Not an expert here but contrary to my post above I do agree with you to an extent that the weight of the Congressional debate seems to support that at least enumerated rights were incorporated under the PorI clause (as opposed to the due process clause of course). I went round and round with someone on this a while who thought incorporation was totally wrong, and I argued that enumerated rights at least were incorporated. This person relied heavily on the idea that the courts didn’t come up with incorporation until 60 years later. But as I read the Congressional debate, I don’t find it exactly crystal clear as you do on these issues nor clear that they were all of one mind.

      2. I’d put it back the creation of the first National Bank, where Hamilton said the Necessary and Proper Clause should be interpreted loosely.

  3. It’s the usual ratchet; Judicial ‘amendment’ of laws transforms the requirement to enact a law to change the law, in to a requirement to enact a law to restore it. Default stability of law becomes default change, where you must surmount multiple veto points just to keep the law from changing.

    1. “”Now, *here,* you see, it takes all the running you can do, to keep in the same place. If you want to get somewhere else, you must run at least twice as fast as that!””

  4. > [I]t has taken our courts and our society a considerable while to realize that sexual harassment … is a form of sex discrimination.

    This bugs me because while this is plausibly sometimes true, often it’s nowhere close to a standard sort of sexual discrimination. While it is true that tolerating sexual harassment often has a disparate impact, viewing it through a sexual discrimination framework misses the point of why it is wrong. It’s wrong because it is abusive, not because it happens more often to women: consider a bisexual who sexually harasses equally.

    > It has taken a little longer for realization to dawn that discrimination based on a woman’s failure to fulfill stereotypical gender roles is also a form of sex discrimination.

    I agree that this has taken longer, but it is absolutely should not. It’s the heart of sexual discrimination: using different standards for men and women.

    > And it has taken still longer, with a substantial volume of cases struggling and failing to maintain a plausible, defensible line between sex discrimination and sexual-orientation discrimination, to realize that homosexuality is nothing worse than failing to fulfill stereotypical gender roles.

    Yup.

    1. Heterosexuality and homosexuality are forms of sex discrimination.

      1. I mean, you’re not *wrong*, but …

        1. It’s the fundamental point. See my comment below.

  5. Dale (or anyone),
    How common is it for the government to ‘change sides’ in a case when a new administration comes into office while that case proceeds through the various courts? Is this something that is actually pretty commonplace?

    1. I would say (couldn’t really back it up though) that given the overlap of a change of party control of the WH and an ongoing case with major policy implications that such a reversal is almost inevitable.

      Now, the question becomes how often do those two things overlap.

    2. Well, post-WW2, most incumbents get re-elected so you’re not going to see a change in that situation – it’s not really a change of administration. That cuts the number of possible changes of sides in about half. For the remainder, remember that the vast majority of cases are not really all that controversial. The administration may not even have a position on a technical point of bankruptcy law, much less desire to change sides. Of the remainder after that, the administration is most likely to weigh in on cases affecting their prerogatives. When the IRS wants some interpretation that lets them extract an extra pound of flesh, neither Ds nor Rs show any desire to rein them in. So no changing of sides there, either.

      The only cases that come up where the government might want to change sides are the subset of cases touching on social issues where the Ds and Rs strongly disagree. So in that sense, it will be rare. However, of the subset of cases meeting that criterion, it’s not especially uncommon for the new administration to change positions, take new legal directions, file new briefs, etc.

  6. Judge Katzmann on the Second Circuit seemed to have it right, and this was a point Gorsuch appeared to pick up on: the starting point for discriminating based on sexual orientation is someone’s sex. And then you use the sex of someone else. So the employer is invoking sex twice as part of their justification.

    I don’t think there’s a way to fire someone for their sexual orientation without reference to their sex.

    1. The problem is that, while firing somebody for reasons related to their sexual orientation has something to do with their sex, that doesn’t make it their sex.

      To give you an example, if you had an employee who went around telling everybody he was a citizen of Lichtenstein, when he was born in Ohio, and showed all indications of believing it, you might want rid of that nutcase, (Who knows what else they might become delusional about?) but would that really count as discrimination on the basis of national origin? Especially if you had an employee who actually was in on a H-1b visa from Lichtenstein, and had no problems with him?

      No, it would be discrimination on the basis of being delusional.

      Now, I suppose an argument could be made that being delusional on a topic that isn’t job related SHOULD be a protected class. But that doesn’t mean it IS a protected class.

      1. While you and some employers may believe gay people are delusional, that’s not actually why they are fired. It’s the content of their supposed delusion that is the basis for the firing. It’s because they a are a man (delusionally according to you and the employer) attracted to or in a relationship with another man. Again, it’s still at root because of the sex of the participants. Excusing it based on not-so-pop-psychology does not really address the Title VII issue.

        1. I don’t think “gay” people are delusional, unlike the transgender. But the analogy does point out that being related to sex, and BEING sex, are two different things.

          1. The statute says “because of sex.” That means sex is part of the reasoning process.

            Under your approach an employer would be permitted under the statute to fire people for interracial relationships.

            1. That would be discrimination on the basis of race, which is barred, not discrimination on the basis of sex (which means biological category, not sexual intercourse).

              1. “I’m firing you because you are a black person dating a white person” is discrimination because of race. Race appears twice in the reason.

                “I’m firing you because you are a man dating another man” is discrimination because of sex. Biological sex appears twice in the reason.

                1. Yeah, and “I’m firing you because you’re a natural born American claiming to be Lithuanian.” twice refers to nationality, but you’d still be firing them because they were lying or delusional, not because they were either American or Lithuanian.

                  I’ll be frank: I think anti-discrimination laws are an abomination in a supposedly free society, that civil rights law went horribly wrong when they went beyond guaranteeing everybody their constitutional rights, and decided to remove from everybody their right to make free choices based on whatever they wanted, but only if the person disadvantaged by the decision was granted special status.

                  That was when the civil rights movement made the transition from expanding rights, to contracting them.

                  And so I’m not welcoming to any new interpretation of these laws that makes them even worse in that regard than was intended by their authors. Let’s fight our way back to being a free people, not forge chains so we can all be equally unfree. (Only some animals will inevitably be more equal than others.)

                  1. So in your view the civil rights movement went off the rails when black people and women decided they didn’t like being excluded from society anymore. I wouldn’t expect anything less from you.

                    1. That’s a funny way of framing a positive right, which is an obligation upon others, thus making them less free.

                    2. It’s pretty hard to argue that the net result of the civil rights movement was less freedom, m_k.

                    3. Why, that a utilitarian argument coming from you. That the civil rights movement was largely voluntary, it did increase freedom for more people than it reduced the freedom of voluntary disassociation.

                      And be careful mixing up 1st and 2nd wave feminism with the civil rights movement, they are not the same thing, even if they were occasional fellow travelers.

                    4. I’m saying that’s your argument.

                      Mine would be Kantian – don’t instrumentalize a subgroup without consent, even if formalistically your freedom of association is at stake.

                    5. I am just taking exception at LawTG framing the civil rights movement as he did. Private discrimination =/= public discrimination, that’s my argument, thank you very much.

                      And I’ll admit my general ignorance of Kant in that I don’t know what is or isn’t a Kantian argument wrt rights.

                      Either way, you end up where one always ends up, competing values; i.e. the rights of the majority vs individual rights.

                    6. Kant’s the guy that says the solution to the Trolley problem is to do nothing. The key is not to use other people.

                      I hold that America is Kantian. Our villains in pop culture are oftentimes utilitarian, our heroes are Kantian.

                    7. Fun fact, Posner once criticized a paper az “Kantian claptrap”.

                    8. @mad_kalak
                      Private discrimination, if common enough, is indistinguishable from public discrimination.

                      “White Citizen’s Councils” proved that rather well.

          2. The fact that you can’t write the word gay without scare quotes speaks volumes.

      2. “No, it would be discrimination on the basis of being delusional.”

        Which probably violates the ADA. 🙂

    2. I agree firing someone for being gay references their sex. But that doesn’t necessarily mean it is because of sex. Perhaps “because of sex” means if you replace the fired person with someone else who is identical in every respect except they are not the same sex, the replacement wouldn’t have been fired.

      If we replace Bostock with a woman who is identical in every other respect, she would be gay. She too would have been fired.

    3. I don’t think there’s a way to fire someone for their sexual orientation without reference to their sex.

      They gave an example in the oral arguments: let’s suppose you have a job applicant with a gender-neutral name, and you have the information that this person is gay, and you reject the candidate. You have discriminated against this person for his/her sexual orientation without any consideration of his/her sex.

    4. Suppose an employer says “Bisexuals will not be hired”.
      Is a bisexual person being denied a job due to that person’s sexual orientation?
      Is a bisexual person being denied a job due to that person’s sex?

  7. I have less problem integrating societal changes in what constitutes unenumerated rights, because that is in keeping with constitutional principles, where these exist inherently and inalienably and prior to a constitution.

    But changing values increasing government’s control over economics into areas it was not intended, sans amendment, no, because that is not in keeping with constitutional design principles, where all grants of power should be explicitely approved by supermajority amendment.

    Giving government more power is a job for Superma(jority)!

    1. Agreed except unenumerated rights under the Constitution were supposed to apply to the federal government and not the States.

      1. See above – Brett has some pretty burly quotes saying otherwise.

        Generally, you don’t believe the administrative state is constitutional, so your understanding of what the Constitution says is pretty idiosyncratic.

        1. Simple majorities are a small bar for demagogues to leap, when they hunger for more power.

          1. Which is why the negative construction of rights is so important.

            Inaction leaving things to the marketplace that end up taking away any choice from large areas of the population is why the positive construction of rights is important.

            1. That is why positive rights should require broad social support because you’re creating obligations upon people, without their consent, a positive right is akin to a tax.

              1. The obligation of society to care for it’s constituents is a fundamental social function.

                If you like liberty, how much liberty did the poor in the great depression have? They didn’t have a lot of choices to make, even if their tax obligations might indicate maximum freedom.

                How much you pay in taxes is a poor proxy for freedom.

                1. “The obligation of society to care for it’s constituents is a fundamental social function.”

                  Are you saying that a nation has an obligation to put its citizens first? If so I agree.

                  1. I said nothing ordinate.

                    You are the one that sees zero sum as the appropriate paradigm for international relations.

                    1. Nope. Nothing zero sum whatsoever about my viewpoint.

                      To say that a government, and the representatives therein, have an obligation to prioritize the interests of their constituents/citizens, is not to say that those interests are necessarily in conflict with the interests of non-citizens in any particular matter.

                      To the contrary, in general there is mutual benefit to be gained in all matters between nations who deal with each other honestly and fairly in a spirit of goodwill and respect, with full realism and pragmatism, and whose governments are not corrupt but genuinely put their own people first. Where things break down is when nations do not deal fairly with each other, are not realistic and pragmatic, and most significantly do not put their own people first, but instead elevate ideology, political objectives, self-interest of corrupt actors, or the interest of non-citizens above that of the citizens.

  8. It has taken a little longer for realization to dawn that discrimination based on a woman’s failure to fulfill stereotypical gender roles is also a form of sex discrimination.

    So if my employer fires me for supporting President Trump the court would accept that I was fired not for my political position, but because I (as a black man) failed to fulfill stereotypical race and ethnic roles, and therefore such political discrimination is in fact a form of race discrimination.

    1. Amazing analogy, and one I’ve never seen before.

  9. If something matters enough to be celebrated it matters enough to be criticized. You can’t spend millions/billions celebrating 13 LGBT months and brainwashing children that nonheterosexuals formed +50% of the historically important figures throughout history then turn around and say the the subject and activism in the name of the subject is beyond criticism or examination of possible downsides and negative effects. Either it matters in both a good and bad way or it doesn’t. Can’t have it both ways.

  10. I refer to this issue as dynamic statutory interpretation. Think of the consequences if we have a dynamic interpretation of ERISA. Ugh.

    Courts have the power to legislate in the absence of action by the legislature, but I think courts should not change their interpretation of statutory language that is already settled.

    1. “Courts have the power to legislate in the absence of action by the legislature,”

      Quite frequently “the absence of action” is actually an affirmative refusal to act, a rejection of the proposed action.

      Such was the case here.

  11. Posner is smart but not one millionth as smart as he thinks he is. Such people can cause great suffering to the rest of society and I am thus delighted to see that, at least at the Supreme Court, his name is toxic.

  12. “Meanwhile, both sides can say that Congress is fully empowered to deal with the consequences of an adverse ruling from the Court as it has in the past when Congress believed the Court erred.”

    Both sides could also say that Congress is fully empowered to legislate an amendment to its own statute, while the Supreme Court is not. At least, not legitimately.

  13. They’re just gonna make it up anyway so WTF … a national divorce is in order — it’s less bloody.

    1. No, most of us get along. Don’t mistake the terminally online or politically overzealous for America.

      1. Watch Roe get overturned and see how quickly the Democrat party decides it wants to go — they like baby-killing at least twice as much as owning black folk.

        1. Yeah, don’t think that’ll be a secession situation.

          1. When ballots fail, there are alternatives … usurpation after usurpation must end.

  14. I think a fundamental problem with the plaintiffs’ arguments is that what Title VII prohibits is sexual preference – expressions of sexual preference in certain interests he commerce activities. It seems a stretch to conclude, from a law Congress passed to prohibit sexual preference in interstate commerce, that that same law would somehow protect sexual preference in domestic relations.

    Indeed, the opposite could be inferred. As the Supreme Court said of this same law in Atlanta Hotel, this is a morality law, and Congress’ power to legislate morality is the same as the states’ power to legislate morality in domestic affairs.

    So if the states’ power to legislate morality in domestic affairs does not extend to prohibiting sexual preference In domestic relations, why in the world should Congress have the power to prohibit sexual preference in commercial relations?

    My basic problem with all this is that if you look at things from a Martian point of view, the effect of a person who refuses to hire someone because he/she prefers someone of the same sex is not objectively different from the effect of a person who refuses to date or marry someone for the same reason. In both cases, the people involved may be mad, but they haven’t objectively been hurt, they walk away with nothing less than they came in.

    All differences are social and cultural in character, reflecting the attitudes people bring to the transaction, not the objective characteristics of the transaction itself.

    A rational person could easily see a difference. There are many things that cause no harm if a few people do them, but can have great effects if many people do them. Sexual preference, of both kinds, may be among these issues. If everybody wants their own sex, In either activity, the other can be shut out. A rational person could easily see the risks as different in the different situations, justifying a different approach.

    But these sorts of risk evaluations are legislative, not constitutional, in character.

    Indeed if the plaintiffs are right, then the Civil Rights Act itself, by treating same-sex hiring decisions differently from opposite-sex hiring decisions, would be discriminating on the basis of sexual preference (in hiring), and therefore, if the plaintiffs are right, on the basis of sex.

    The constitution provides no basis for treating same-sex preference in commercial relations differently from same-sex preference in domestic relations. All get the equal protection of the laws. And a fundamental element of due process is that all are entitled to do what they want absent a duly-passed law to the contrary.

    It is one thing for the Justices to extend rules of privacy or similar to protect individuals from the government. But here the courts are threatening to use the power of government stick it to people that they don’t like, because they don’t like them. To extend a law beyond what Congress wrote to deny a class of people whose preferences the justices don’t like their constitutional right to participate in interstate commerce as employers and supervisors, not just low-level employees, is to turn the Equal Protection Clause on its head.

    It is to make the animals the Supreme Court likes more equal than the other animals.

  15. This is something courts do fairly frequently to avoid statutory obsolescence and concomitantly to avoid placing the entire burden of updating old statutes on the legislative branch.

    Maybe if we put that “entire burden” on the legislative branch, they’d waste less of their time with pointless witchhunts and more making sensible legislation and being accountable to voters for it. You’d think that a body that we pay $76 million in salaries every year alone, plus many times that in resources and staff, should be able to keep our laws f*cking updated.

    If every federal law on the books came with a 10 year sunset provision and a requirement of individual passage by recorded vote after a minimum of 30 min debate with a quorum present (or silent meditation), Congress would have little time to get into trouble and do the kind of nonsense they are doing; they’d be too busy keeping important laws from sunsetting.

  16. To make the point more bluntly, when a plaintiff sues a man for preferring to hire men, or a woman for preferring to hire women, it is suing them for failing to conform to a gender stereotype (that they should not care about their respective genders in hiring) and is therefore discriminating on the basis of sex. Nor does the fact that they feel emotionally committed to them or feel them to be true and right. The gender stereotypes that Title VII itself imposes are not analytically distinguishable from any other gender stereotype. Title VII imposes norms of gender behavior. The fact that the liberals may think these norms morally good does not analytically distinguish them from gender norms that (say) conservatives might think morally good. They are still gender norms. And imposing them is still gender discrimination.

    The problem is that the equal protection clause prohibits government sex discrimination. And if sex discrimination includes imposing norms of gender behavior, and refusing to let people participate in commerce because of their associational gender preferences is imposing a norm of gender behavior, then the government cannot refuse to let people participate in commerce or impose disabilities on them just because of their associational gender preferences including gender preference in hiring. Doing so would be imposing unconstitutional gender behavior norms and constitute unconstitutional government sex discrimination.

    1. In other words, instead of the word “guard,” instead of the word “date,” just substitute the word “hire,” and you get exactly the same argument.

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