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BREAKING: Supreme Court Holds Title VII Prohibits Discrimination Based Upon Sexual Orientation or Transgender Status (Updated)

Justice Gorsuch writes for six-justice majority that discrimination based upon sexual orientation or transgender status is sex discrimination under Title VII.

|The Volokh Conspiracy |

This morning the Supreme Court handed down one of the most long-awaited decisions of the term. In Bostock v. Clayton County, the Supreme Court held that discrimination on the basis of sexual orientation or transgender status constitutes discrimination "because of . . . sex" under Title VII of the Civil Rights Act. Justice Neil Gorsuch wrote the opinion for the Court, joined by the Chief Justice and Justices Ginsburg, Breyer, Kagan, and Sotomayor. Justice Alito dissented, joined by Justice Thomas, and Justice Kavanaugh dissented.

The respective opinions, including a lengthy appendix to Justice Alito's dissent, total 172 pages, and appear to have crashed the Supreme Court's servers. I've been able to download a copy and will update this post with excepts.

Justice Gorsuch's opinion for the Court begins:

Sometimes small gestures can have unexpected consequences. Major initiatives practically guarantee them. In our time, few pieces of federal legislation rank in significance with the Civil Rights Act of 1964. There, in Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin. Today,we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.

Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result.Likely, they weren't thinking about many of the Act's consequences that have become apparent over the years, including its prohibition against discrimination on the basisof motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters' imagination supply no reason to ignore the law's demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it's no contest. Only the written word is the law, and all persons are entitled to its benefit.

Justice Gorsuch's opinion emphasizes text over the intention of the authors of Title VII.

We agree that homosexuality and transgender status are distinct concepts from sex. But, as we've seen, discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second. Nor is there any such thing as a "canon of donut holes," in which Congress's failure to speak directly to a specificcase that falls within a more general statutory rule creates a tacit exception. Instead, when Congress chooses not to include any exceptions to a broad rule, courts apply the broad rule. And that is exactly how this Court has alwaysapproached Title VII. "Sexual harassment" is conceptuallydistinct from sex discrimination, but it can fall within Title VII's sweep. Oncale, 523 U. S., at 79–80. Same with "motherhood discrimination." See Phillips, 400 U. S., at 544. Would the  employers have us reverse those cases on the theory that Congress could have spoken to those problems more specifically? Of course not. As enacted, Title VII prohibits all forms of discrimination because of sex, however they may manifest themselves or whatever other labels might attach to them.

From Justice Gorsuch's conclusion:

Some of those who supported adding language to Title VII to ban sex discrimination may have hoped it would derailthe entire Civil Rights Act. Yet, contrary to those intentions, the bill became law. Since then, Title VII's effects have unfolded with far reaching consequences, some likely beyond what many in Congress or elsewhere expected.

But none of this helps decide today's cases. Ours is a society of written laws. Judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations. In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee's sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.

Justice Alito's dissent, joined by Justice Thomas, begins:

There is only one word for what the Court has done today: legislation. The document that the Court releases is in the form of a judicial opinion interpreting a statute, but that is deceptive.

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on any of five specified grounds: "race, color, religion, sex, [and] national origin." 42 U. S. C. §2000e–2(a)(1). Neither "sexual orientation" nor "gender identity" appears on that list. For the past 45 years, bills have been introduced in Congress to add "sexual orientation" to the list, and in recent years, bills have included"gender identity" as well. But to date, none has passed both Houses. . . .

Because no such amendment of Title VII has been enacted in accordance with the requirements in the Constitution (passage in both Houses and presentment to the President, Art. I, §7, cl. 2), Title VII's prohibition of discrimination because of "sex" still means what it has always meant. But the Court is not deterred by these constitutional niceties. Usurping the constitutional authority of the other branches, the Court has essentially taken H. R. 5's provision on employment discrimination and issued it under the guise of statutory interpretation. A more brazen abuse of our authority to interpret statutes is hard to recall. . . .

The Court attempts to pass off its decision as the inevitable product of the textualist school of statutory interpretation championed by our late colleague Justice Scalia, but no one should be fooled. The Court's opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated––the theory that courts should "update" old statutes so that they better reflect the current values of society. . . . If the Court finds it appropriate to adopt this theory, it should own up to what it is doing.

Many will applaud today's decision because they agree on policy grounds with the Court's updating of Title VII. But the question in these cases is not whether discrimination because of sexual orientation or gender identity should be outlawed. The question is whether Congress did that in 1964.

It indisputably did not.

Justice Kavanaugh's separate dissent begins:

Like many cases in this Court, this case boils down to onefundamental question: Who decides? Title VII of the Civil Rights Act of 1964 prohibits employment discrimination "because of " an individual's "race, color, religion, sex, or national origin." The question here is whether Title VII should be expanded to prohibit employment discrimination because of sexual orientation. Under the Constitution's separation of powers, the responsibility to amend Title VII belongs to Congress and the President in the legislative process, not to this Court.

Kavanaugh's opinion ends:

Notwithstanding my concern about the Court's transgression of the Constitution's separation of powers, it is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans. Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today's result. Under the Constitution's separation of powers, however, I believe that it was Congress's role, not this Court's, to amend Title VII. I therefore must respectfully dissent from the Court's judgment.

The decisions in this case highlight a tension with textualism: Do we focus on the discrete meaning of the words, or do we focus on the words as they would have been understood and applied at the time they were adopted. On the one hand, as Justice Gorsuch notes it is virtually impossible to discriminate against someone based upon their gender identity or sexual orientation without discriminating against them on the basis of sex. On the other hand, it is indisputable that the authors of Title VII thought they were prohibiting discrimination against women, not that they were protecting sexual orientation. Indeed, sexual orientation discrimination was enshrined in law throughout the nation when the language was adopted.

There's much more to say about these opinions. One thing is for sure: Every law school Legislation & Regulation course will be poring over these opinions next year.

UPDATE: A few additional thoughts:

The Chief Justice was in the majority, so he assigned the majority opinion to Justice Gorsuch. Had he dissented, it's not clear Justice Ginsburg (the senior-most justice in the majority) would have done the same. This matters, as the Gorsuch opinion is more textualist, and more narrow, than an RBG opinion would have been.

Justice Gorsuch had already written an opinion from the October sitting, whereas the Chief Justice and Justice Ginsburg had not. This led to speculation that the Chief was writing the Bostock opinion. One possibility is that the Chief initially drafted a majority opinion going the other way, but failed to hold Gorsuch—or even that both the Chief and Ginsburg drafted opinions while Gorsuch was making up his mind. Perhaps we'll know one day, but at this point it is all speculation.

One argument for the dissent is that Congress could never have conceived that this statute would have produced this result. This is similar to one of the arguments in King v. Burwell, specifically the argument that Congress could not have intended to put tax credits at risk should states fail to create their own exchanges. In each case, however, the text is the text. In other words, some of the arguments for the majority opinion in Bostock support Justice Scalia's dissent in King. Time permitting, I'll elaborate on this point in a separate post.

UPDATE: The late Justice Scalia's sometime-co-author, Bryan Garner tweets:

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453 responses to “BREAKING: Supreme Court Holds Title VII Prohibits Discrimination Based Upon Sexual Orientation or Transgender Status (Updated)

  1. Let me be the first to say that Gorsuch has been influenced by conservative libertarian thought best exemplified by this blog.

    1. Roberts and Gorsuch are building capital for the big one—overturning Roe v Wade.

      1. Yeah, right.

        1. TRAP laws have already decimated abortion rights. Roberts will save Republicans from themselves if he overturns it but makes it a right to have an abortion in cases of rape and incest. If Republicans in red states are allowed to outlaw abortion even in cases of rape and incest then they will and suburban moms will flip out and vote Democrat.

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      2. Good point. It seems that Roberts joined the majority solely to assign the opinion to Gorsuch, just like Burger joined the majority in Roe in order to assign it to Blackmun, but the establishment of additional judicial credibility was a nice bonus that Roberts can point to if he votes to overturn Roe. He’s probably the one most concerned that the Supreme Court not be seen as composed of political operatives, and joining the majority here had no cost to him. Gorsuch noted at oral argument that it was a “very close” question. The consideration you mention may have helped him to decide it the way he did.

        1. Though I don’t think that Roberts would vote to do that unless they got at least one more conservative appointed to the court.

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        2. If Ginsburg had written the opinion and was too strident, she might have lost Gorsuch. We would have had a plurality opinion drafted Ginsburg with Breyer, Sotomayor, and Kagan joining, but with Gorsuch merely concurring. Maybe that would have been better; there would not have been a binding opinion…at least for now.

      3. A question for any cultural conservative who wishes to answer it: I am surprised at the difference in how conservatives have responded to Roe v. Wade vs. all the pro-gay Supreme Court decisions. Since Roe, there has been 50 years of unrelenting attempts to overturn it, passing state laws making it harder and harder to get an abortion, and harassment (including murders) of abortion providers. On abortion rights, conservatives are pit bulls who have sunk their teeth into Roe and aren’t letting go.

        On gay rights, conservatives appear to mostly have accepted it. They may not like Lawrence/Obergefell/Windsor, but neither are they spending much effort trying to reverse them. There has been no comparable move at the state level to narrow gay rights. Gay rights seems to be a fait accompli at this point.

        So, why the difference between the two? I can’t believe cultural conservatives dislike gays any less than they dislike abortion.

        1. ” I can’t believe cultural conservatives dislike gays any less than they dislike abortion.”

          The mind boggles at how little understanding you must have of anti-abortion sentiment to write this. Conservatives might think gays are, literally, perverts, and are really pissed off about the judiciary redefining the word “marriage” and just steam rollering every attempt to stop them, but abortion is freaking MURDER.

          1. It’s true, as one who lives my life based on science and reason, it wouldn’t have occurred to me to think of abortion as murder. Thanks for the clarification.

            1. Science and reason require the conclusion that no fetus is a human being? The definition of a human being is a scientific question? Is this determined through the scientific method?

              1. “The definition of a human being is a scientific question?”

                He said science and reason. Do you think personhood is beyond human reason?

                1. He implied that reason clearly came down on one side of the question. Is that your view?

                  1. My personal moral confidence diminishes the older the fetus gets. And I should have been more precise with my usage. The issue is not strictly speaking “personhood” since abortion involves competing demands, not just the “personhood” rights of one entity. And his use of “murder” muddies the water too, since some “murders” are morally justifiable (although most of us don’t speak like that).

                    But I think as between a pregnant woman and a blastula, reason clearly does come down on one side of the question. I think on the whole I’ll take the mom’s side through most of the pregnancy, too. I agree with you that isn’t strictly speaking a scientific question, but biology informs my views about moral consideration. (This applies to the rights of non-humans, too.)

                    1. I would add that it’s going to be difficult for anyone to disagree with me without relying on something like “reason”. Even when expressing my lack of moral confidence, I’m relying on what I think is reason. Is your response going to be faith-based?

                    2. According to the Talmud and long standing Jewish tradition, a fetus does not become a person until it graduates from law school or medical school.

                    3. NToJ:

                      My objection was simply to Krychek_2’s implication that it would not occur to a person who lives his life based on science and reason to think of abortion as murder. Certainly each person can reason to his own conclusion but science and reason do not compel a pro-choice orientation.

                      But I think as between a pregnant woman and a blastula, reason clearly does come down on one side of the question. I think on the whole I’ll take the mom’s side through most of the pregnancy, too.

                      Very well, your reason brings you down that way. Are you saying that any person who is exercising reason must also come down that way? If so, please explain that line of reasoning.

                    4. @swood,

                      I’ve not seen a reasonable argument supporting the moral claim: “aborting a blastula is (unjustifiable) murder”. I’m not prepared to say that everyone who disagrees is unreasonable, as it’s possible I’ve not seen the right argument. Krychek_2 might be more confident than me.

                    5. The only reason you think that your conclusion is the rational, science based one is because it is your opinion.

                      This question clearly comes down to an unknowable factor – when does life begin. That cannot be answered objectively, as the underlying axioms are the precise matter which is in dispute.

                      You will find equally convicted and learned folks making impassioned arguments for every moment from conception through birth as “the moment when a separate life begins”. Hell, you’ll even find some Catholics who are willing to roll that back to the events immediately prior to the joining of egg and sperm.

                      So no, your pontifications about your certainty do not carry any weight beyond your own mind. There is no objective truth to be had here. Biologically a compelling argument can be made for the moment of conception, implantation, any one of several neurological developmental milestones, external viability, and on and on. Hell, by some of those standards you could argue for post-birth abortion for the first year or two. And some societies have actually adhered to that standard.

                      If there is an objective moral truth here, it will not be sussed out by the machinations of the human mind. That divination would require a higher power.

                    6. @Cyto,

                      I reject that the moral issue is resolved by “when does life begin”. Blastulas are alive. So are cockroaches, and pigs. So are the mothers.

                      Your position is that the moral question cannot be resolved by reason. The argument eats itself first, and then the debate. You can’t reach your conclusion except by reasoning to it. And if you’re right, there’s no reason to outlaw abortion at any stage. We shouldn’t legislate unknowable providence.

            2. It’s true, as one who lives my life based on science and reason, it wouldn’t have occurred to me to think of abortion as murder.

              This is one of those those comments that evidence membership in the “I fucking love science” group of self-deluded individuals who, despite what they so desperately want to believe about themselves, neither love science nor even understand it at even a basic level. I’ll bet you also like to use the phrase, “The science is settled” when arguing public policy issues. In fact you clearly don’t even understand the fundamental nature of the question of abortion as a legal matter, which wrestles with the rights of “persons” rather than of “humans”. What constitutes the former is, although informed by a basic human biology, primarily a philosophical question, while the latter is a question for science. And even if the law were concerned with the rights of biological humans, that would not help your case, as there is no compelling scientific argument to be made for the position that a human fetus is not a human.

              1. WuzYoung, it’s actually not a comment that evidences such membership; it’s a snarky response to those who assume, with no real evidence, that it’s settled that the fetus is a person. If a pro-lifer can say “I’m right because I’m right” then I’ll give it the response it deserves.

                Now, as far as the actual science, the distinction that pro-lifers fail to grasp is between human life and human personhood. Yes, a fetus is human life. So are the cells I killed last time I scratched my nose. But they are not human persons, not legally, and not biologically. Personhood requires a special set of characteristics that a fetus lacks, at least in the early stages of pregnancy.

                1. I have been involved in several miscarriages so abortion isn’t an important issue to me, but I would hope 99% of Americans would agree an 8 month old fetus is a person. So once we all agree that giving birth isn’t the point that a fetus becomes a person it is simply a question of at what point does the fetus become a person??

                  Here is the reality though—nobody truly believes an embryo is a person because if we did we wouldn’t be so cavalier about how babies are made. So take Rick Santorum and his wife—they were having unprotected sex over 45 years of age which means they were basically serial killers if you believe an embryo is a person. Senator Duckworth is very open about how many embryos died in her pursuit of a baby…and after 2 babies what do you think happened to the excess embryos??

                  1. I don’t disagree with you, which is why I specified “at least in the early stages of pregnancy.” I will acknowledge there are some late terms abortions that make me uncomfortable, though I ultimately still come down on the side that you can’t force someone to allow their body to be seized for the benefit of someone else, even if that someone else clearly is a person.

                    For reasons I gave last time this subject came up, I think it comes down to what distinguishes a person from other living things, and that thing is consciousness. So I would say it becomes a person at the time it acquires consciousness, which is usually around the end of the first trimester.

                    1. The use of the term “seized” is clearly intended to lead to a predetermined result. And it is a term that does not comport well with the facts. The human body is in fact entirely designed for the purpose of placing the fertilized egg in the uterus and protecting it until it is born. From a biological point of view, the entirety of our lives is the irrelevant bit – it is the sperm and egg that are our true form and the mixing thereof that is the purpose of the rest of our lives. Everything else we do is ultimately irrelevant. If it does not end up being passed along in the germ line, it is biologically irrelevant.

                      Biologically speaking, a man is merely a vehicle for the feeding and carrying of the spermatozoa. And a woman is merely the vessel for the egg and the offspring’s incubation.

                      So any talk of “seizing” uteruses is merely a construct of our own ego, not some biologically established fact. The womb is the home for the growing fetus. It did not put itself their, nor did it create itself. Those were acts of its mother (and her body). Proclaiming a fetus as a usurper of rights of the mother is a biological insanity.

                      All that being said, do not interpret this as an argument for prohibition of abortion. It is merely an argument that claims of biologically based truth on the matter are absurd and usually demonstrably at odds with reality. As are arguments based on property rights, analogizing tenant and landlord arrangements.

                    2. Ok, then making a baby should be closer to a shuttle launch than a booze soaked frat party.

              2. The question is, when does life begin? This is a spiritual question; science can never give us an answer (unless we are able to learn the science behind consciousness). If we don’t know the answer, we can’t know if we are making a mistake.

                1. No, life begins at conception. This is basic biology, and has zero to do with spirituality, religion, or philosophy.

                  When “personhood” begins is all of those, because “person” is not a scientific concept, and does not have a definition.

                  1. Go arrest Karen Santorum for manslaughter then because she has an embryo guillotine between her legs.

                  2. I agree with the thrust of your comment, Toranth, but life is already there before conception. Life is an ongoing process. The egg and sperm are alive. There is a new genetic organism, I suppose, when they join their DNA, but it is reorganized life that already existed. But, as someone noted upthread, those cells I scratch off my nose were alive until I killed them too.

                    As you say, the pertinent question is “personhood” which is a legal, not a spiritual question, which is good for the anti-abortion side because the law has no business answering spiritual questions for anybody, much less everybody.

                    The legal question must draw on science and reason. I am with Krychek and NToJ in that I have not heard a reasonable defense (reason and science-based defense) of laws against destruction of a blastocyst. At that state, all the anti-abortion people have, from what I can see, are spiritual arguments which ought not be settled by legislative fiat.

          2. You shall not lie with a male as with a woman; it is an abomination.

            1. Yes, and did you hear about the bull that swallowed a bomb? It was a bomb in a bull.

            2. Whatsoever hath no fins nor scales in the waters, that shall be an abomination unto you.

            3. So is mixing wool and silk.

              1. Wool and linen.

            4. Vengence is mine, sayth the Lord…

              1. “Silk/Wool is a mixture of silk and wool blended woven. Silk/Wool is a sturdy, medium-weight fabric with satiny sheen on one side. It can be used for bridal/wedding, lingerie, high-end sportswear, and home decor. It is incredibly durable. It is a very crisp fabric that holds its shape when draped.”
                So, go with Viyella. “Cool when it’s hot, warm when it’s not.”

                1. You will burn in HELL!!

        2. I can’t believe cultural conservatives dislike gays any less than they dislike abortion.

          Well, murder has to be worse than discrimination. Plus, showing an incorrect viewpoint on gay rights has been suppressed in a way that expressing pro-life views has not been, resulting in many people changing their views on gay rights.

          1. I think the difference is easier to explain. A lot of the arguments in favor of discriminating against gay marriage (ie, to not legalize it) was based on a parade of horribles that would result, if gays were indeed allowed to marry.

            What happened, of course, was that the horribles did not come to pass. Straight conservatives, generally, saw that gays got married, some of them later got divorced, and life went on. There was not a huge spike in the number of gays molesting children, so that myth was dispelled. The institution of marriage continued, for better or worse, as it had, so that myth was dispelled. And so on.

            But with abortion, the perceived bad result or evil continues, and so *that* parade of horribles has (in the eyes and minds of anti-choice advocates) been borne out. Countless lives murdered. (That fact that I strongly disagree with the anti-choice side does not mean that I am unable to see their good-faith objection to women being allowed to end what these advocates see as innocent lives.)

            1. Do you consider the opposite side of anti-choice pro-abortion?

              1. Hmm. Have not thought of it in a semantic way before. I am strongly pro-choice, and in my own mind, I know what that means. Is there a significant difference, in your own mind, between “pro-choice” and “pro-abortion rights?” That linguistic subtlety may be recognized by some, but it’s lost on me, I must admit. 🙂

                1. The meaning is the same. But the perception of people can change based upon whether it is called pro choice or pro abortion or even pro women’s rights. Just as a different perception can attach to pro life or anti choice or anti women’s rights. It’s a way to change the framing of the argument.

                  1. And I have heard many “pro-choice” advocates react unpleasantly when labeled “pro-abortion”.

                    1. Yeah, I expect it’s because to be “pro choice” is a legal position rather than a personal preference, where as “pro abortion” implies that you recommend the practice.

                      Perhaps “pro the-legal-right-to-have-an-abortion” is more precise, but it’s a bit clunky.

            2. Another interpretation would be that the parade of horribles actually came to pass first, then everyone accepted gay marriage.

              The worry was that it would normalize homosexuality – that had already occurred.

              The worry was that it would devalue marriage. That had already occurred.

              Truly, by the time gay marriage was legally accepted, the institution of marriage was in a shambles for reasons having absolutely nothing to do with homosexuality.

            3. I think the difference is easier to explain.

              The real answer is that the older generation who held these views more strongly died out.

          2. santamonica811 : (That fact that I strongly disagree with the anti-choice side does not mean that I am unable to see their good-faith objection to women being allowed to end what these advocates see as innocent lives.)

            I used to be generous and hold that view. What changed my mind was the anti-choice crowd trying to expand their fatwa to cover some forms of contraceptives. Specifically : They had their own religious definition of the origin of life and demanded certain types of contraceptives be banned on that basis. Then scientific studies showed the birth control they targeted didn’t function per the definition; by every study the contraception wasn’t “murder” by their very own rule.

            So how do you think the anti-choice groups reacted? Did they rejoice over less “murders” in the world? Of course not. They ignored the science and continued their crusade. They acted exactly opposite how you’d expect with a sincere belief.

            Now at the deepest level this is obviously about controlling women. That obsession is hardwired into the DNA of almost every religion with tribal roots. But I think there’s some simpler going on here as well. True religious piety is hard, requiring hard choices, difficult sacrifices, and uncomfortable opinions. But the anti-choice movement is optimal consumer choice piety, with its easy contrast of wanton hussies & cherubic protobabies. This is piety where you don’t have to break a sweat. So of course they ignored the science in undisguised enthusiasm for more “murders (however phony). When you’ve got such a winning consumer choice, you look to expand your markets.

            1. the anti-choice crowd

              Such simple-minded broad-brush arguments don’t really make you sound like the enlightened intellectual you’ve deluded yourself into thinking you are. And the use of bullshit euphemisms like “anti-choice” (and I say the same of the equally bullshit “pro-life”) doesn’t speak well of your regard for honesty either.

            2. My what a broad brush you wield. Do yoou use the same brush with regards to BLM protesters and rioters and looters? Or Muslims and Islamic terrorists?

              1. I’m talking about every major anti-choice group in the United States. Who are you talking about?

                1. I see. You mean like all of the major anti-gun group in the United States. At the deepest level they’re all about controlling people. It’s not about saving lives.

                  1. You really wanna go there? I can say the deepest root cause of the anti-choice movement is the attitude of tribal religions to women because I have millennia of history on my side. We’re not talking subtle, history-wise, and it isn’t limited to any era, place,religion or sect. No doubt you’ll want to claim the religious obsessions of today have no relationship to a relentless and unbroken obsession that runs back hundreds and thousands of years.

                    Good luck with that.

            3. and demanded certain types of contraceptives be banned

              Who demanded that certain types of contraceptives be banned? By this phrase are you referring to people who resist being forced to provide certain contraceptives to their employees?

        3. Conservatives core tenet is the the sanctity of life. Judges, playing super legislatures, awarding persons with messed up sexuality issues protected status, sacrifices no innocent lives, like Roe does,

          1. iowantwo : “Conservatives core tenet is the the sanctity of life”

            Except (of course) when excessive concern over extraneous old people threatens to depress third quarter GNP. As we’ve seen in the coronavirus debate, the “sanctity of life” is more sanctified in some area more than others…….

            1. That’s just a silly argument.

        4. Krychek

          I predicted the very thing you are wondering about on this blog when Obergefell was made.

          Obergefell will always stand for a gross misappropriation of legislative authority by the judiciary in redefining the word “marriage.” But as far as gays actually getting married, I always felt that everyone would immediately notice that this has little impact on their lives even if they opposed the policy.

          Roe is completely different and abortion will one day be viewed like we view slavery now.

          1. I disagree. Obergefell was another step down the road of judicial domination of public life. The judges are forcing the country down the path they want. The public follows because of our respect for the law, but we are becoming more and more cynical. We see that there is a cultural elite that does not care what we think and that wants to impose its rules on us.
            Obergefell changed the boundaries for the field of play; and the progressives adapted by going beyond same sex marriage and pushing for trans-rights. They got trans-rights and they just keep pushing on and on. Now we are being told that white silence = violence. How long before the Supreme Court rules in favor of that principle?

            1. You’re off the deep end. Most people supported gay marriage prior to Obergefell. The Supreme Court did not lead public opinion, but followed it.

              1. I think the TGMT has a quite pinched definition of ‘the public.’

    2. whats libertarian or conservative about forcing employers to abide by a specific moral philosophy on how they choose their employees?

      1. I agree that a pure libertarian would argue that she should have the right to refuse to hire a Jew, or a black, or a woman, etc.. That argument is perfectly consistent with libertarian values. But I am not sure it is a conservative value. (Many conservatives might secretly support this; but it’s not something they actually argue for or advocate for out loud, do they?)

        1. Conservatism doesn’t say things shouldn’t change, but should only do so after long pondering of the issue, because there is value in established tradition.

          1. No, that is British Whigism.

            Too many modern “conservatives” are Whigs, see the cult of Burke for instance.

  2. Oh goodie, I can now declare myself to be a trans-Beta and use whatever restroom I want. And when a cop demands to see ID, I can say I threw it away because it doesn’t properly identify me.

    1. What exactly are you doing in the bathroom that requires a cop to ID you?

      1. None of that cop’s damned business!

      2. Those homophobic cops who don’t realize that I identify as an 11-year-old girl and hence wish to hang out with…..

        1. You identify as an 11 year-old girl? If nothing else, that does explain the things you write in these comments, anyway.

          1. Google “sarcasm….”

            1. And for the record, I am not attracted to prepubescent girls — but there are creeps who are, and SCOTUS has now enabled them….

              1. An act of pedophilia would still be illegal. But it now seems less clear whether a declared pedophile could sue a daycare center for firing her, barring any overt act.

                1. Of course they could, if they would also fire a male pedophile in the same circumstances.

                  This is a narrow ruling, focusing solely on the but-for causation based on the sex of the employee. It’s not expanding things for “perversion in general”, or anything like that. That association is purely in your mind.

                  1. Since sexual attraction is purely in the mind, anyway, I don’t follow how this is “based on the sex of the employee.” If I can’t fire a woman for liking women or a man for liking men, it’s not obvious why I can’t fire a woman for being declaredly attracted to very young girls.

                    1. HMI,
                      I get your comment. Fortunately, it’s obvious to most other people.

                    2. Particularly since there isn’t the explicit exclusion that *is* in the nondiscrimination laws. QED….

                2. We really need to distinguish pedophilia from other conditions:
                  Pedophilia: a psychiatric disorder in which an adult or older adolescent experiences a primary or exclusive sexual attraction to prepubescent children.
                  Hebephilia: strong, persistent sexual interest by adults in pubescent children who are in early adolescence, typically ages 11–14 and showing Tanner stages 2 to 3 of physical development.
                  Ephebophilia is the primary sexual interest in mid-to-late adolescents, generally ages 15 to 19.

              2. Dr. Ed, a pervert who decides to follow a prepubescent girl into a bathroom is not going to be deterred by whether transgendered people are, or are not, allowed in the same bathroom she is. He’ll just follow her in.

                The thing I find most amazing about the perverts in bathrooms argument is how little it fits the facts. These days, most bathrooms have private stalls so you’re not going to see much of anything anyway. Perverts of all genders and sexual orientations have been following people into bathrooms since there have been bathrooms, and the way to deal with them has nothing to do with keeping the transgendered out. And a male pedophile has free access to men’s rooms, where little boys sometimes go unescorted, so that problem isn’t fixed at all by excluding transgendered people from their bathroom of choice.

                Your whole line of argument is based on irrational, stereotypical hysteria. It deserves no respect than its first cousin arguments about black males not being able to control themselves around white women.

                1. I think the Donald Trump (disgusting) rhetorical response to this is:
                  “Does Dr. Ed follow children into the bathroom and put his penis into their mouths? Maybe yes and maybe no. Who knows.”
                  Or…
                  “Some people are saying that Dr. Ed follows young children into bathrooms and sexually molests them. Is that true? I don’t know.”

                  It’s a particularly repulsive way of speaking, and I’m really bothered that liberal and conservative media don’t hold his feet to the fire when he does this.

                  1. I think the Donald Trump (disgusting) rhetorical response to this is:
                    “Does Dr. Ed follow children into the bathroom and put his penis into their mouths? Maybe yes and maybe no. Who knows.”
                    Or…
                    “Some people are saying that Dr. Ed follows young children into bathrooms and sexually molests them. Is that true? I don’t know.”

                    Do you have a link to a record of him actually having said something like that?

                    1. Wuz,
                      Fair point. I was using a reductio ad absurdum example. Sadly, on the web, you can find almost ANYTHING. If Dr Ed were a famous person, there’d be some moron on the fringe who would be making utterly bullshit claims. Thereby giving Trump (or any other repulsive person) license to use the rhetoric of, “Some people are saying…”
                      (Note: For Trump’s other rhetorical device, you don’t even need that one delusional “source” for it to work. Trump can raise any hypothetical, and ask it as a yes/no question.” “Does Santamonica kill small children, grind them up, and put them into burgers that she sells to her customers? Maybe yes and maybe no…I don’t know.” He did something like this with his racist Obama birtherism lies, when he mentioned that there were “top people” in Hawaii investigating Obama’s birth, and that these people had already found information that would shock all of us when that info was released.

                      {God, it’s hard to remember all the awful things Trump did in the past . . . they’ve been overrun and swamped by the hundred new awful things he’s said/done recently. It’s actually sort of genius, on his part.}

              3. And for the record, I am not attracted to prepubescent girls — but there are creeps who are, and SCOTUS has now enabled them….

                Is attraction to prepubescent girls protected by Title VII?

                “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.”

                1. IF it was necessary to add the “minor children” exclusion, I assume it was for a reason.

                  1. What “minor children” exclusion are you talking about?

            2. Google “Freud, Sigmund”

    2. First off, you don’t need to declare yourself a beta anything. That’s always been obvious. Second, have you long had a complaint about not being able to use the men’s room, or is this a new desire?

      1. Actually the pandemic has revealed that our bathrooms are suboptimally designed. So we need a single room with much more privacy for each stall AND lids on public toilets. This also solves the modern problem of daddy/daughter day and restroom breaks.

        1. We will end up with too few bathrooms. Men’s rooms are able to handle more users because men can use a urinal faster than men or women can use a stall. Stalls take up more space. So we will end up with fewer bathroom spaces for people to use. So you had better learn to hold it in for longer.
          And I seem to remember that this becomes a problem at rock concerts where women want to use men’s rooms because fewer women can cycle through women’s rooms.

      2. You really take things literally, don’t you? Daily life must be terribly upsetting if diving into these comments is better.

        1. Look, don’t get mad at me because you come here and dump your purse all over the table and reveal a little more of yourself than intended. Besides, I’m on the side that says you shouldn’t be discriminated against just because you now identify as male.

  3. At some point, why not just cut the Gordian Knot and say that all discrimination for non-productivity reasons ist verboten?

    That could be some fun!

    1. I actually would support that. In England, it is illegal to discriminate against anyone for any reason not related to the job. That strikes me as making far more sense than carving out specific categories, like race, sex and sexual orientation.

      There has been some litigation over there over what is, and is not, job-related, but there’s been litigation over that here to even without that being the law.

      1. That is not what the law says, is what.

        1. Right, and I’m talking about what I think the law should be, not what it is.

    2. Why not LEGALIZE discrimination and let the marketplace deal with it?

      1. Because then the wrong people might get discriminated against, and we need to make sure only personas non grata suffer such discrimination

      2. Don’t know what country you’re from but we already had legalized discrimination in the USA.

        1. To be fair to Ed here; I am pretty sure he is saying, “There are currently tons of allowable discrimination, but that category should be expanded, so that all discrimination is now permitted.”

          I think it’s a dopey argument. But I want to be fair…I don’t think Ed was saying that, currently, discrimination as a legal concept is not permitted in the law.

          1. To be fair to OtisAH, I think he’s saying: We tried allowing discrimination based on the now verboten categories, the marketplace did not fix it, and U.S. society decided that was a very unsatisfying and unjust world to live in. The citizenry decided that the law should prohibit at least some forms of discrimination in some contexts.

            We tried it, didn’t like it. We don’t really want to give it another go, frankly.

      3. Or what you really mean, stop making discrimination illegal. I would love that. Of course government could not, but everyone else should be able to discriminate as much as they want.

        A. I want to know who the bigots are so I can not patronize their businesses. Some people would gladly picket them, and that is fine too, as long as they don’t get violent or block the entrance (or window displays, etc)

        B. Market efficiencies would make it plain to these bigots that their bigotry has a cost, and that is their choice. Markets would cut down bigotry tremendously, and while it would start out as just lip service, eventually those bigots would realize their bigotry was unfounded.

        1. EXACTLY…..

        2. A and B worked really well back in the days of Jim Crow. Or for the three bigoted employers whose case ended up in today’s Supreme Court ruling.

          1. Actually… during much of the Jim Crow era, discrimination was demanded by law. People and businesses in some jurisdictions were not allowed to be non-discriminatory.

            And while in a given time/place a particular majority may hold views we do not like, so long as the acts motivated by those views do not violate anyone’s rights (and yes, in many instances during Jim Crow they very much did and deserve to be called out in those instances) then there is no victim. If there is no victim, there is no just role for the state unless you accept the state’s role legislate on proper thinking.

            1. It was demanded in law in some places, and in others done voluntarily – both de facto and de jure.

              Or just look at how many clubs forbade women from entering just ’cause until quite recently.

              No one here is talking about thoughts, everyone here is talking about discriminatory acts like firing someone.

            2. Sparkstable, I was responding to the specific claim that even without anti-discrimination laws, the free market will eventually fix the problem. That’s just manifestly not true.

              And yes, some Jim Crow was mandated by law, but it was law that enjoyed wide popular support at the time, at least among the white people. It’s not like the legislature passed it just because they felt like it; they were responding to what their constituents wanted.

              1. The existence of those laws, however, meant that a free market was not allowed to address the ideas. Yet, as you point out that law is downstream from culture and popular opinion, a number of firms had been transitioning to non-discriminatory policies prior to legal requirements to do so. The law clearly took longer to address the problem than many individual actors did… otherwise it would have been made illegal to discriminate well before it actually was. The law had from the 1790s to the 1960s to address the problem and it failed. But during that same time actors all across the nation, unconnected to the government, were calling for equality. Were they the majority? Not in the beginning, bit no historical change starts and ends in a single instant.

      4. Aren’t conservatives and some on this blog currently complaining about the effects of this model in the area of social media? The narrative there is that liberal tech companies are discriminating against conservative speakers, and the proper response is therefore to regulate the companies.

        I suppose you disagree with this though, as you appear to support a marketplace that permits discrimination, regardless of how the chips fall.

        1. To be fair to them; I have heard most of them say that it’s bad for tech companies to discriminate, and not that it should be against the law for these companies to discriminate in this way. (Yes, some people *have* argued that it is or should be illegal…I’m just pointing out that most are making a “good vs bad” argument, and not a “legal v illegal” argument.)

    3. We have a sort of version of that in California, with our “no firing for out of work conduct” law.

      1. …unless that conduct is hate speech. Got it.

        1. I’m not sure you can fire someone for off the job hate speech in California. Indeed, I suspect in certain circumstances, you can’t.

          1. You can if the person in not in a union and is an at will employee not in a protected class.

            1. I don’t think so. We have a statute that protects “lawful conduct occurring during nonworking hours away from the employer’s premises”.

            2. Don,
              Do you have a cite for your claim? I know some states would allow this, but I did not think California was in that group of states.

    4. And the problem will be that any non-cis person who suffers a negative job action will claim that it was because of their non-cis nature, not because of their job performance. The new law will make it easier for their claim to get past the motion-to-dismiss stage and into discovery. This will be a bonanza for lawyers.

  4. So the supposedly “conservative” SCOTUS rewrites Title VII in a way patently ridiculous, and denies all 2nd Amendment appeals, even ones challenging laws that are patently unconstitutional.

    As I said before, this country is too far gone. Let it burn.

    1. Well if you can figure out how to fire someone for being homosexual without reference to their sex, then maybe you would have a point. But since you can’t, I don’t think the outcome is “patently ridiculous.”

      1. That’s not the way laws should be interpreted. It should be interpreted as “Would the people who voted for this, at the time they voted for it, have agreed that they were passing a law that does what the claimant is arguing?” If not, it’s not the correct interpretation.

        1. That seems a risky position for an advocate of expansive interpretation of the Second Amendment to take in a country in which John Wayne collected guns outside the saloon and held them until the partiers or travelers left town without being labeled a godless commie gun-grabber.

          1. Fuck off, slaver.

            1. Enjoy the remainder of your disaffected, vanquished, misfit life at the inconsequential, impotent, whimpering fringe of modern America.

        2. So you reject textualism?

          1. Yes, I always have.

          2. “So you reject textualism?”

            “Textualism” means applying the text as written, not applying 2020 meanings to a 1964 document.

            I don’t know what Gorsuch did but it is not textualism.

            1. No. You’re just pretending it isn’t because you don’t like the result. “Because of sex” means what it says. If you can fire someone for being gay and not have sex be a but-for cause, then by all means try. But as Gorsuch correctly points out, that is impossible.

              1. “Because of sex” means what it says.”

                Agreed, it means being discriminated against because you are are a woman.

                1. Or a man.

                2. The argument is that if a woman is permitted to have sex with a man without getting fired, but a man is not permitted to have sex with a man without getting fired, it’s sex discrimination. Which strikes me as perfectly plausible.

                  I also think sexual orientation is independently protected by the First Amendment. A sexual orientation is nothing more than a collection of thoughts, feelings and emotions. Are gay people not as entitled to their thoughts, feelings and emotions as everyone else?

                  1. Employees having sex in my workplace will be fired — you’re supposed to be working, damn it!

                    1. Except for you porn people – you keep going.

                  2. I also think sexual orientation is independently protected by the First Amendment.

                    First Amendment doesn’t apply to private employment.

                  3. The plaintiff/employee was fired not for being inclined to have sex with men. The plaintiff/employee was fired for being gay. Notice how that says nothing about whether the employee is a man or a woman? That proves discrimination on the basis of sexual orientation is not discrimination on the basis of sex.

            2. You guys absolutely need 2020 meanings to get where you want to go on the Second Amendment. 1791 connects the RKBA to the obligation of individuals to perform service in the militia, with all the discipline and training and restrictions that implies.

              1. No it does not. No other right has any such connection to any such government function. It apparently doesn’t take much for statists to thread the government into everything.

                1. No other right has the same history the Second Amendment does, or has a preamble.

                  (Also, other rights involve different things. The Second Amendment involves guns. The notion that the contours of a right related to guns might be different than other rights is not a heretical concept.)

                  1. The problem with your interpretation is that it requires you to apply the 2020 definition of militia in order to claim that 2020 definitions are required

                    Also, the founders didn’t view guns as some unusual object that needed to be treated differently than everything else. They were tools, no different than the printing press referenced in the 1st amendment

                  2. Guns were a tangible technological extension of the body itself. This is important because Locke (whom much of our legal philosophy was based on at the time) explained that all people had a right to revolt even violently and that the tools of revolt could not ultimately be deprived from the people as they will always retain physical force and unarmed combat (he used much more flowery language). I could, with enough time, manage to wrangle a nail into a board to at least some degree with just bare hands. May take years… but it is doable. A hammer does not substantially alter what I am doing. And as long as the act of doing it is justifiable, the tool I do it with is irrelevant.

                    1. all people had a right to revolt even violently

                      I know gun rights types say this all the time, but it’s worth noting there’s an express provision of the Constitution that says you do not have the right to revolt (it specifically says that levying war on the United States is punishable as a serious crime), and nobody thinks the Second Amendment repealed it.

                      Saying “I have a constitutional right to revolt” is about as false as saying “I have a constitutional right to a monarchy”. The Constitution is entirely specific, in the text, about this.

                    2. Re: Dilan Esper below, won’t let me reply to him directly
                      So you are trying to tell me that a group of men who thought it right and noble to revolt against a government that became destructive to the ends of preserving inalienable rights (among which would be self-defense… and as it is a right it is universally present in all instances in which your rights are being violated, regardless of the perpetrator be it state actor or private actor) decided only a few years later to say “Yup… got that wrong. Our descendants must acquiesce to this nation we create here, now and forever!” Never mind that in creating that same document many states (the parties joined in the contract that is the Constitution) expressly reserved the right to leave the arrangement. And if they were to carry out that expressed right to leave the arrangement (which was accepted by the other parties, by the way) that those who sought to leave would be committing both a legal AND moral wrong in using force, if necessary, to defend their rights of liberty?

                      If that’s what you are telling me you sure as sh*t better not call this a free country. A state that denies its citizens the inherent human right of control of their own body, especially in an attempt to defend it from unjust harm, is a state full of unjust prisoners.

              2. 1791 connects the RKBA to the obligation of individuals to perform service in the militia

                You sound like a broken record containing a speech by a Flat Earther.

                1. Nope. The flat earthers are the people who think the RKBA protects whatever the 2020 NRA’s platform is.

              3. The militia can train, yes.
                But by design, the militia is not controlled by the govt. The militia exists to protected itself from the govt.
                Membership in the militia is every male of fighting age.

            3. Bob, read the opinion.
              Gorsuch talked about the text as written.

        3. Nonsense. We’ll never know what they meant at the time they voted for it, we’re not in their heads.

          The law is a text. That text means things. We can all read that text. It is *only* the text that controls the meaning of the law. No other consideration should matter when it comes to interpreting law.

      2. Look up what RBG said about _Roe_ being a mistake.

        1. She said it was not well doctrinally explicated, not that it should have gone the other way.

          1. NO, she says SCOTUS ought to have left it to the legislatures.

            1. Ed, you need to read better sources. This is the nut qote:
              “My criticism of Roe is that it seemed to have stopped the momentum on the side of change,” Ginsburg said. She would’ve preferred that abortion rights be secured more gradually, in a process that included state legislatures and the courts, she added. Ginsburg also was troubled that the focus on Roe was on a right to privacy, rather than women’s rights.

              “Roe isn’t really about the woman’s choice, is it?” Ginsburg said. “It’s about the doctor’s freedom to practice…it wasn’t woman-centered, it was physician-centered.”

              That is certainly not ‘left it to the legislatures.’ She sees a pretty robust judicial role.

              1. Except that the “quote” you’re referencing there isn’t actually a quote of Ginsberg at all…

                She would’ve preferred that abortion rights be secured more gradually, in a process that included state legislatures and the courts, she added. Ginsburg also was troubled that the focus on Roe was on a right to privacy, rather than women’s rights.

                Those are both assertions about Ginsberg’s positions by the author that aren’t supported at all by what little of her own words is actually quoted.

          2. Nope.

            “Roe, I believe, would have been more acceptable as a judicial decision if it had not gone beyond a ruling on the extreme statute before the Court. The political process was moving in the early 1970s, not swiftly enough for advocates of quick, complete change, but majoritarian institutions were listening and acting. Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.”
            — North Carolina Law Review, 1985

            “Women were lobbying around [the abortion] issue. The Supreme Court stopped all that by deeming every law – even the most liberal – as unconstitutional. That seemed to me not the way courts generally work.”
            – Address to University of Kansas law students, 2005

            She articulated one of the most potent arguments against judicial activism: instead of resolving the social issues at stake, it prolongs political conflict over them. Think about how US politics is still stuck on the abortion issue, but Europe, for the most part, got over it decades ago. That’s because they handled it legislatively.

            I can’t say she’s been consistent about this with her rulings on other issues, though.

    2. I’ve spent my life interpreting statutory law. This is a little change that will potentially have a major impact. I told my wife this. She is a super-progressive. She wants to know why the conservatives on the court did this and how is it going to hurt her. I kept saying that this was the liberal position; and she keeps saying, “But the court is controlled by conservatives.”

  5. Oh, those evil conservative justices owned by racists and LGBTQ+ hating Christians.

    1. I trust you saw how they also screwed us on guns today.

  6. But, what exactly does this imply in regards to transgenders? Suppose an employer treats guys who pretend to be women just like any other guy, and gals who pretend to be men just like any other women? But doesn’t discriminate against either, despite their manifest insanity?

    Somehow I suspect “non-discrimination” is going to end up implying humoring their delusions, not just refraining from discriminating against them.

    1. Ah. The psychologist has signed on, I see.

      1. More of a biologist, in this case. There ARE species that are capable of changing their sex; Some frogs can do it, for instance.

        Humans aren’t such a species. Once a male, always a male. Once a female, always a female. The distinction runs right through the genetics of every cell.

        1. On the other hand, any criminal cases relying on DNA evidence can now be thrown out. If DNA can’t accurately identify the race of a suspect, how can it possible identify anything that points to guilt?

        2. I’ll add biologist to the list of professions you think you know better than, then.

        3. Brett, I have an actual degree in biology, and you could not be more wrong. Anatomy is only one of several factors that determines an individual’s sex.

          But more to the point, why are you so concerned with other people’s gender? If someone tells me they identify as male, female, both or neither, I don’t actually care enough to independently verify whether they’re right. What makes this such a huge concern of yours?

          1. It’s not a huge concern of mine most of the time, but if I run into somebody who’s deluded/pretending about their sex, I don’t want to be forced the humor them.

            1. Well I don’t want to be forced to humor a lot of people. And yet I do, because I’m not a dick.

        4. So what is an XXY person? How about an XYY person? What do you say about hermaphrodites? How do you deal with birds in which the female has a harem of males? Or what can you say about homosexual animals. Clearly, the problem is in your mind and not the diverse natural world.

          1. These vanishingly rare deformities and aberrations don’t change anything. They are the exception that proves the rule.

    2. But, what exactly does this imply in regards to transgenders [sic]?

      You can’t fire someone because they are transgender.

      1. You cant fire them because they are transgender –
        But can you fire them because their behavior is repulsive to the customers?
        Can you fire them because of the mental illness negatively impacts their performance on the job?

        Is the inability to fire a transgender or gay employee going to have the effect of reducing employment opportunities by making it less likely to get hired in the first place due to the risks of terminating the employee for poor performance?

        1. But can you fire them because their behavior is repulsive to the customers?

          Generally, yes. But not if that behavior is inextricably linked to being transgender.

          Can you fire them because of the mental illness negatively impacts their performance on the job.

          If you can show that being cisgender is a bona fide qualification of the job, you may legally refuse to hire a transgender person. But no, you cannot categorically claim that being transgender or suffering from gender dysphoria justifies not hiring a transgender person.

          due to the risks of terminating the employee for poor performance

          Did you really just say that gays and transgender people perform worse on the job?

          1. But can you fire them because their behavior is repulsive to the customers?
            Generally, yes. But not if that behavior is inextricably linked to being transgender.
            —————————————–
            Did you read the facts in the case about the funeral home? Which does it fit, repulsing customers, or inextricably linked?

            1. Both, and thus she can’t be fired.

    3. Worse than that — employer will have to tolerate them hitting on coworkers…

      1. Not really, that is sexual harassment, a horse of a different color

    4. How about just treating all the employees the same without any regard to gender?

      1. The better idea was already described , prohibit firing for any matters that are not job related….. BUT that would grossly distort the predominant concept of “at will employment” in the U.S.

        1. The even better idea is to not outlaw any discrimination, letting the bigots face full market wrath, suffer financially and socially, and eventually learn their bigotry was unfounded.

          1. Because in many communities those business would thrive. A white only bar in the south would do great. Bringing back segregation is not something that is good for the country.

        2. “that would grossly distort the predominant concept of “at will employment” in the U.S.”

          Yes. That would be a feature, not a bug.

          1. And you would have the same problems of employee reward and motivation that exist in Europe or among represented employees.

  7. 1. Scratch out the word “dates,” write in the word “employs,” and you get the same analytical result. If the Civil Rights Act outlaws discriminating against people who do one as a sexual stereotype, analytically it ought to outlaw discriminating against people who do the other.

    Sure, Title VII applies only to employers. But other provisions apply to courts and other people involved in enforcement. The purpose of the act is to prevent discrimination from occuring, not to benefit particular groups or parties. The idea “same sex employment is wrong” is as much a gender stereotype as the idea “same sex dating is wrong.”

    1. The answer to that is that Congress focused on discrimination in employment because employment is fundamentally an economic activity, while dating is fundamentally a personal, intimate one. A law that tells you who and how you may date intrudes on your personal life in ways that employment laws don’t.

      I am dubious that a non-discrimination-in-dating law would survive a Constitutional challenge. Certainly focusing only on employment (and other economic activities, like housing) is well within Congress’ power to differentiate.

      1. Really attractive women in their 20s refuse to date me. Their discrimination is age-based, and appearance-based. I wanna sue. (But, okay; I do get that enforcing an award of specific performance is gonna be a problem.) 😉

  8. Surprising. These protections should have been done by Congress – it’s long overdue – but as a layperson I can’t see how outlawing discrimination against sex in Title VII includes discrimination against your sexual identity.

    1. Page nine of the majority opinion explains it nicely.

      1. If you are on drugs….

      2. Yes, but they had to reinterpret what the word sex meant. Not means; but meant in 1964. There is simply no way – Gorsuch admits it then tries to make his admission disappear – that the original understanding of the word sex in 1964 included homosexuality. None.
        What’s the limiting principle then? If the Court can “update” the meaning of words then where does it stop?

        1. There’s no update. Try to fire someone for being gay using the definition of sex as biologically male or female, and then don’t include the words male or female in the reason. It’s impossible.

          You’re fired for being gay
          What’s gay?
          You are a man who is attracted to men.

          You’re referencing sex twice. It’s doubly because of sex. It’s about what biological sex you are and the biological sex you are attracted to. You don’t need “updated” understandings for this to still be true.

          1. It is about the biological sex you are attracted to, not to which sex you are.

            1. It’s both. How is that not obvious?

              1. because both sexes can suffer from the “defect” it would not depend on which sex the perpetrator is

                1. Person A is attracted to men. Is Person A gay?

                  You have no idea, because you need to know Person A’s gender in order to know if they are gay or not. Simply knowing what gender there are attracted to tells you nothing

            2. if you were a woman attracted to a man, you wouldn’t be fired for being gay. So if you fire a man for being attracted to a man, it is because of his sex. You’re firing one sex for behavior you wouldn’t fire the other sex for.

              There’s no way around Gorsuch’s logic here.

          2. In 1964, you would be admitting to a crime.

            1. (1) Not a federal crime

              (2) May depend on what state you were in.

              (3) It can both be the case that the law prohibits employment discrimination for a particular behavior AND makes that behavior illegal. Especially if one of those laws is federal and the other is state.

          3. “You’re fired for being gay
            What’s gay?
            You are a man who is attracted to men.”

            That’s obviously a mistaken definition of being gay (or homosexual). Women can be gay. Once you see that, you see that obviously one can fire someone for being and be totally indifferent to whether they are male or female.

            1. “You’re fired for being gay
              What’s gay?
              You are a woman who is attracted to women.”

          4. Being gay is having same sex attraction. Male and Female don’t have to be in the definition if you don’t intentionally put it there.

            1. A same what attraction now?

            2. You can’t just remove to generalities. You have to consider the behavior of the employee in relation to how you’d treat a similarly situated employee of the opposite sex. If you wouldn’t fire a woman for said behavior, you can’t fire a man for that behavior, and vice versa.

        2. Dynamic interpretation of a statute. Now, imagine a dynamic interpretation of ERISA. My head is hurting.

        3. WHO, in 1964, would have even thought of transexual?

          1. Well, considering the word is in a song in Rocky Horror from the 70s, it probably has roots well back into the 60s. Granted, the meaning then does not seem to be the meaning now – it seems to have been used with reference to transvestism, which definitely existed in the 60s.

  9. “Ours is a society of written laws. Judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations.”

    Uh, how about rewriting a fee as a tax when the law was specifically written to NOT use the word tax?

    1. “When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.”

      Same as above – – – –

    2. You’re confusing two issues. No one is alleging that the Civil Rights Act is unconstitutional if applied to transgender people. But SCOTUS is not free to assume the legislature intended an unconstitutional law. The “plain statutory commands” are presumed to have constitutional ends, which is why judges are required, under the Constitutional Doubt Canon (Section 38 of Scalia’s book, Reading Law: The Interpretation of Legal Texts”) to interpret the law in a way that avoids placing its constitutionality in doubt.

      The “written laws” referenced here includes the Constitution. And the legislature is presumed not to have violated the Constitution, except in obvious cases. SCOTUS is not “rewriting a fee as a tax”; it is interpreting the statute so as to avoid a constitutional infirmity. SCOTUS is required, constitutionally, to do that.

    3. The middle shall cease to hold….

      1. The liberal-libertarian mainstream continues to call the shots, shaping American progress against the wishes and works of conservatives.

        Right-wingers will continue to mutter bitterly about this, until they are replaced as progress continues; it is the natural order.

        1. Or we have another Great Awakening….

  10. I think it is unusual, to say the least, for a Supreme Court decision to concede that what was actually intended by the legislature is not what the law is, because textualism. Textualism is not an interpretive theory. It is just a method of originalism. Justice Scalia’s concerns about legislative intent were sensible. Too casually judges say “The legislature must have intended X” when either (1) that was not apparent or (2) it isn’t obvious that a human being can know what a body politic’s intent really was, based on the musings of individuals within the body politic. (It’s hard enough in bilateral contracts.) But I don’t recall Scalia ever saying “I subjectively believe the legislature did not intend X, but X they shall have.”

    It’s a remarkable concession by Gorsuch, and I think one that will ultimately bring textualism down. When Posner’s pragmatism is more faithful to a textualist judge’s subjective beliefs about the legislature’s intent, then it suggests we’ve reached late stage originalism.

    1. “It’s a remarkable concession by Gorsuch, and I think one that will ultimately bring textualism down. When Posner’s pragmatism is more faithful to a textualist judge’s subjective beliefs about the legislature’s intent, then it suggests we’ve reached late stage originalism.”

      You say that, and it’s a fine bit of analysis, but it requires consistency.

      As you can see from the comments, the majority of people (not attorneys, judges, or legal scholars) do not care about consistency. Those who scream most loudly for originalism and textualism in other circumstances (most likely when it suits them) are those who will most dislike this decision, and not see any tension in that, because it is all about the results.

      Fundamentally, the theories of jurisprudence are simply the fig leafs people use to get the results that they want.

      1. “Fundamentally, the theories of jurisprudence are simply the fig leafs people use to get the results that they want.”

        I know that’s true for the comments section. I believe it’s also true for judges. That very concern was one of the driving forces behind textualism. The promised consistency placed observable limits on judicial misbehavior, because it had more of an objective standard against which justices could be evaluated. That’s why I’ve always been hostile to emerging, trendy theories of “originalism,” that finds the exact opposite conclusions of the original originalists. (This site’s fantastic William Baude is at the forefront of new “originalism”.)

        I think we need to be more careful thinking about theories of interpretation and contrasting them with methods of interpretation. Because we’re seeing in decisions like this one where the former is incompatible with the latter. Original-intent originalism was a theory of interpretation intended to faithfully interpret the law consistent with the original intent of the legislature. But what emerged was inconsistent judge-made law that bore less relationship to original intent than what objective observers might have expected. Textualism was stricter and narrower and so it would be easier to judge. But it only really works if you intentionally disregard individual statements of intent.

        There was always going to be a tension between textualism and originalism. How I had expected to see that tension play out in in opinions like Jaster v. Comet II Construction, Inc., 438 S.W.3d 556 (Tex. 2014). Nine conservative, nominally originalist judges arguing over arcane misuse of words by the legislature and trying to divine the right result. Heavy hitters like Justice Willett (now of the 5th Circuit) debating earnestly with the plurality about what words were intended when used 18 different ways in 18 different statutes. And a robust dissent from Chief Justice Hecht–a frequent originalist and textualist–complaining about his colleagues “being viewed as conducting a contest among the Pharisees in the Temple of Textualism over who is the most devout.” But the judges who disagree about what the legislature intended say that. Or at least they say “My colleague believes the legislature intended X, but that isn’t clear to me.”

        I did not anticipate that textualism would ever come to a place where someone says “We know the legislature intended X but they shall not have it, because textualism.” I had always thought textualism would feign obedience to original intent in hard cases, by saying “We just can’t tell what the legislature meant.” Here, it really seems to me that Gorsuch is giving the game away. And I understand why; nobody could seriously say that the 1964 Legislature intended to protect gay or transsexual people, because the 1964 Legislature was a bunch of dickheads.

        If textualism divorces itself entirely from original intent, I think that will be the end of textualism.

      2. We are no longer a country of laws. We are a country that will be ruled by the people who scream the loudest.

    2. We’ve had dynamic interpretation of the Constitution for a while. Now we finally have dynamic interpretation of statutes. My head aches. I am a tax lawyer. I don’t want to think about a dynamic interpretation of ERISA or of the Internal Revenue Code. Written law means only what 5 members of the Supreme Court says it means.

      1. ” I am a tax lawyer. I don’t want to think about a dynamic interpretation of ERISA or of the Internal Revenue Code.”

        EXACTLY — your example shows the danger of doing a bad thing for what is perceived to be a good reason, which is what SCOTUS did today.

        1. Thank you Dr. Ed. At least someone agrees with me today.

          1. I sense that Justices Thomas and Alito (dissenting, as usual and as appropriate) would agree with both of you most of the time.

    3. I think you need to break down _intent_ into _goals_ and _meanings_. Congress did not intend the _goal_ of protecting homosexuals against discrimination. But they absolutely intended the _meaning_ of protecting based on sex. The second implies that the first, whether or not congress realized it at the time.

      There are a lot of laws congress passes with unintended consequences. That doesn’t mean that the court should not apply it to those unintended cases.

      1. We need to distinguish between laws that had unintended factual ends (like the 1A applying to mediums that did not exist at the time of ratification) from laws that we think the legislature specifically did not intend application to. The former is not unintended at all; the laws were passed to cover a category of things that didn’t exist, but the legislature’s intent is presumed to apply even to those cases it could not specifically contemplate, but did intend to address abstractly. They aren’t really “unintended consequences”.

        The latter is not like that, here. It is not that the 1964 legislature could not conceive of gays or transsexuals. They knew about them, and hated them. Gorsuch’s opinion concedes that they did not intend application to specific groups that existed even back then. Under those circumstances, originalism is completely inconsistent with “unintended consequences”. And since the answer as to what “the court should” or “should not apply” the laws to is necessarily tied to original intent, the concept of “unintended consequences” guiding judicial opinions makes no sense.

        Textualism is similarly inconsistent with “unintended cases”. The intent is derived from the text. That’s why it was so curious for Gorsuch to say the text is inconsistent with the legislature’s intent.

    4. Originalism and textualism are not the same thing.

      Originalism is ‘whatever the people who wrote it thought they meant’.

      Textualism is ‘whatever the words say’.

      These don’t need to be in agreement. Especially when we’re talking about something where the ‘people who wrote it’ are unlikely to have said anything about the subject (congress critters in 1964 likely didn’t say anything about sexual orientation whatsoever), so the ‘originalists’ have to impute meaning to the *absence of declarations of intent*. But if they didn’t have any stated intention, you don’t get to invent it.

      Do i think they intended to cover sexual orientation? I don’t think they even thought about it. And what they likely would have intended if they did think about it is irrelevant, because without an established record on the matter, *there is no actual intention to refer to*.

      (If you have references of actual discussions by congress regarding sexual orientation with respect to Title 7 in 1964, by all means, provide them).

      1. I was sufficiently clear about the distinction between Originalism and textualism. The reason textualism exists is only because the written word was considered more faithful to original intent than any alternative. Here, Justice Gorsuch accepts textualism while conceding the opposite. That’s remarkable.

        That Congress has attempted, unsuccessfully, to extend Title VII to sexual orientation is some evidence that it didn’t extend it to sexual orientation in 1964. In any event, this isn’t about you or I divining intent in 1964. Gorsuch says his own subjective understanding of original intent is contrary to the result. I’m not even aware of a Brennan decision that went that far.

  11. “We agree that homosexuality and transgender status are distinct concepts from sex.”

    Yet we will now pretend a law dealing with sex covers them.

    I see Roberts joined the nonsense too.

    1. How do you address the impossibility argument?

      1. What “impossibility argument”? You have to explain, I am not reading 160 pages.

        1. The majority opinion is only 29 pages.

          The statute says “because of sex.” It is impossible to fire someone for being gay without sex being a but-for cause of that, because you can’t do it without reference to the sex of the individual.

          1. Its just a conclusion pretending to be an argument.

            All the protected classes are protected because they were considered inferior, nobody considers a gay to be inferior, just immoral. Transgender have an extreme delusion, it has nothing to do with who they sleep with.

            1. And they’re immoral because? They’re delusional because? Can you answer those questions without referencing sex?

              1. They’re immoral because they don’t keep their clothes on.
                Male/female is identifiable by chest & hips — while clothed.
                Sexual &*anything* isn’t.

                1. In other words, if you were WORKING, like I’m paying you to, how would I ever know what is or isn’t in your pants? Or what you do or don’t do with it? Or why would I care?

          2. I’m in Kavanaugh’s camp on this one. It think Congress should have dealt with this long ago, but to reach the majority decision requires a level of sophistry that courts generally try to avoid. It’s obvious to Gorsuch and probably the rest of the majority that “sex” meant women or men when the law was drafted but they get where they want to go with things like “because of sex.”

            1. I agree with you donojack.

            2. Agreed

            3. It’s impossible to avoid the conclusion that you are either willfully ignoring the main argument here because you don’t like the result, or you are too stupid to understand the main argument.

              1. It’s impossible to ignore the fact that you were too lazy to even read the OP; otherwise you would know that if I am in Kavanaugh’s camp that I like the result but don’t like the way it was reached.

                If you didn’t read the OP then I assume you haven’t gotten up the energy to read the opinions, as I have. So on that point I guess I’ll have to plead too stupid to understand them. We’ll wait until you find the time in your busy schedule to read them and give us your views to determine your stupidity or lack thereof.

          3. It’s totally possible. Watch:

            I fire you from this blog for being gay.

            But wait, you have no idea what sex I am.

            Exactly.

  12. Two Words: Unmitigated Bullshite.

    I think Alito sums it up best: “The question is whether Congress did that in 1964. It indisputably did not.

    In 1964, the Massachusetts State Police arrested two Smith College Professors for “suspicion of homosexuality.” Alito is right.

    And much as _Roe_ gave birth to the anti-abortion movement, this has just given birth to the anti-gay movement.

    1. “This has just given birth to the anti-gay movement.”

      There are going to be a lot of bad takes out there on this decision. This is far and away likely to be the worst take on this decision.

      First of all, if Obergefell didn’t result in a strong anti-gay movement then this likely won’t either. Obergefell touched on much more fundamental aspects of human society, and people have basically just rolled with it, give or take a few exceptions.

      Second, the use of the word “just” is interesting. It’s like you are denying that there has been an anti-gay movement in existence for years. And it’s only a “movement” now, because being anti-gay was the norm until roughly fifty years ago and now there needs to be a “movement” against gay rights.

      1. Marriage didn’t bother others — having to take a shower with someone does.
        And this means that biological men can be on girl’s sports teams.

        1. Maybe this will lead to the end of communal showers in favor of individual stalls, which is just better anyhow.

          1. And make on-campus housing even more expensive.
            I am not judging. BTW my daughter’s med students dorm 15 years ago has unisex bathrooms and showers of just such a sort.
            Which was why she took showers at 4 am.

            1. I suspect very few dorms have communal open showers anymore. I am thinking of gyms.

        2. Marriage didn’t bother others

          Excuse me, Ed, but there was much weeping and wailing and gnashing of teeth on the right over it, including, I’m guessing, by you.

          As for giving “birth to an anti-gay movment,” well, that movement has been around for millennia.

          1. Yeah. Those arguments were literally about the end of civilization. This, not so much.

          2. No, people who don’t like this will keep their opinions to themselves. Disagreeing with the elite approved, media supported rule on this will be the path to career destruction.

            1. Not if this is the tipping point.
              Not if this and the Wuhan Flu births another Great Awakening.

        3. How does this mean biological men can be on girl’s sports teams if standard Title 7 didn’t already mean that? (And since it patently doesn’t, this can’t possibly change that).

          I mean, if your conclusion was at all sound, you don’t have to claim to be a woman to be on a girl’s sports team, exclusion from it would be a violation on face because you were excluded based on your sex.

          I’m also reasonably sure (1) membership on most sports teams isn’t employment (ie, high school, college, recreational), (2) there’s a sex-specific sports team carve out in Title 7.

      2. Yeah, it’s pretty obvious that very few Americans think you should be fired just for being gay.

        1. Right. It’s like DADT. There were like 8? republican senators who were against SSM who voted to repeal it because they thought that was the right thing to do. Way less people are going to be mad about this decision. And it’s not going to give birth to any backlash except making people who were already mad even madder.

          1. Lesbians don’t like transgendered.

            1. Okay. So?

        2. Yeah, but one of the cases involved a man, identifying as a man (but homosexual) who was accused by a female, identifying as a female (but heterosexual) of “inappropriate touching” during the business transaction. A heterosexual man would have been fired in those circumstances.

          1. Good point.

            And the fact he got killed doing something else makes me wonder if his employer was thinking liability more than homosexuality.

            After all, all he had to do was tell his employer that he lied about being gay to make the customer happy. If he was good at his job, that’d been the end of it. Now if he wasn’t….

        3. “very few Americans think you should be fired just for being gay.”

          Yes – including, actually, virtually everyone who nonetheless does not think that the federal government should decree that everyone everywhere must be open to hiring gays and transgenders at their small businesses and other associations.

          Two very different things.

          1. That was actually my point. While some people may feel SCOTUS got this wrong, almost nobody actually supports what the religious right supports, which is trying to kick gay people out of their jobs because of their sexual orientation.

            1. That’s not what I was saying. The “religious right” is no doubt a much larger group than “almost nobody”, as you well know. And yet almost nobody is “trying to kick gay people out of their jobs.” The “religious right” are always thinking more about the plaintiffs who go around shopping for defendants to prosecute.

              The point is, just because something shouldn’t be done doesn’t mean it should be outlawed.

              1. The religious right certainly does support discrimination against gays as a means to deter what they call “homosexual conduct”, and not only do they say this, but support positions that seem clearly consistent with that view.

                The thing is, only a tiny percentage of the general public agrees with them.

                1. The vast majority of people simply want to be left alone.
                  That’s why this decision is going to be far more incendiary than many realize.

        4. It’s totally possible. Watch:

          I fire you from this blog for being gay.

          But wait, you have no idea what sex I am.

          Exactly.

      3. “First of all, if Obergefell didn’t result in a strong anti-gay movement then this likely won’t either.”

        Well, it did, but Obergefell occurred in a context where dissent was becoming increasingly perilous. Opinion in the US is increasingly subject to falsification due to a rational fear that you might be subject to retaliation down the road for stating what you really think.

        1. Orrrr maybe people are not dicks to gay people anymore as much. Present company excepted of course.

        2. Brett, if you think Obergefell strengthened the anti-gay movement, you really are becoming delusional.

          Pre-Obergefell, politicians of both parties fell over each other to tell us how anti-gay marriage they were. W Bush ran on the issue, and Obama refused to admit he supported gay marriage. Clinton signed DOMA.

          Nowadays, even politicians and groups who might still oppose gay marriage stay completely silent about it.

          1. I think Obergefell pissed off a lot of people, but that it didn’t amount to anything in the long run because we now live in an atmosphere of fear, and it’s really hard for a movement to pick up steam when expressing solidarity with it can lose you your job, maybe even years later, even if you’re a somewhat famous guy. And when you’ve already had it proven to you that democracy is futile.

            As I’ve already said, I’m not terribly upset about the outcome in Obergefell, but I’m really offended by how it was achieved. The judiciary just decided they were going to do it, and ran over the opposition like a steamroller, even as state after state tried to stop them.

            Sooner or later they’re going to do it again, maybe on something more important. I’m starting to think, given the way the Supreme court is behaving now, it will be gun rights. But it will be something; They’ve felt that power, and they’re not going to forget it.

    2. There has been an anti-gay movement for centuries.

      Most recently, in America, conducted by a dwindling number of character-deprived, superstitious, bigoted, poorly educated,right-wing rubes.

      Who have lost the culture war. Because they’re lousy people in a country that is getting better.

      But haven’t stopped whining about it.

  13. Lotta people suddenly really pissed their outcome didn’t get favored. People who have claimed that liberals suck because conservative doctrine is concrete, while liberals are outcome-oriented.

    Definitely something to point to the next time I”m told I’m a liar because I’m not an originalist.

    1. “really pissed”

      I’m not even mad. So many knives in my back I can’t be hurt anymore.

      1. You’re confusing “knives in your back” with “stomping on your own dick” again. Two different concepts.

      2. “I’m not even mad. So many knives in my back I can’t be hurt anymore.”

        As always, there’s a song for that:

        Kick me like you’ve kicked before
        I don’t even feel the pain no more

    2. Notable (not really) that Alito’s dissent sucks as much as the ‘I didn’t read the opinion but I’m very mad’ commenters here.

    3. You don’t believe it’s possible for someone to actually prefer this outcome and not like how it was achieved?

      1. Sure, or vice-versa, as Kavanaugh.

        But thus far that’s not what I’m seeing on the right.

        Indeed, no one is really challenging Gorsuch’s analysis so much as they’re stamping their feet and saying no.

        1. First of all that is exactly what K said: he liked the outcome but not the process.

          I don’t see foot-stomping. Is NToJ stomping his feet? I don’t know if he is a textualist or not but he sees this decision as all but killing it. In fact Gorsuch basically mocks it, saying essentially ‘yep sex meant women in 1964 but new times call for new meanings.’ You are not an originalist or a textualist so that probably makes you doubly happy: you got the decision you liked and textualism got a death blow. I don’t like judge-made law but I want gays and transgenders to have employment protection so I guess I’m just singly happy.

          1. I like textualism. I like it better when it doesn’t purport to dominate the underlying interpretive theory that it exists to effect.

            I think gay people and transgenders should be treated like human beings, and welcome social change in which they are treated the same as the rest of us. I’ve got reservations about anti-discrimination laws generally. I like my bigots loud and proud so I can identify them and retaliate economically, and I think anti-discrimination laws force them to create harder-to-identify pretext, while also solidifying their bigotry, which manifests through insufferable victimhood claims by the in-group. I’m not aware of any empirical evidence showing that anti-discrimination laws cause unity between in-groups and out-groups, though I have plenty of anecdotal experience showing they frustrate such unity.

            I’m also not sure that anti-discrimination legislation improves employment outcomes for the people they exist to protect. (Banning the box initiatives are a good, recent example.) I also think anti-discrimination laws in a democracy are theoretically silly, since the need for anti-discrimination laws is inversely related to their passage. Places overrun by bigots need anti-discrimination laws the most, since minorities require protection just to find a job when all doors are closed to them. But they won’t get the laws, because of the bigots. On the flip side, a jurisdiction with no bigots has no need for anti-discrimination laws, but that’s where they are passed with ease.

            1. Good summary of the points against anti-discrimination laws. I agree, except I wouldn’t necessarily characterize the mom and pop shop that didn’t want to put the unpassable transgender behind the ice cream counter as “bigots.” Nor the Muslim small business owners that disagree with a gay persons beliefs, opinions, viewpoints about sexual morality and therefore doesn’t want to hire them as the person they work closely with day in and day out.

              1. I think there is a liberty interest in people being allowed to discriminate. And I don’t think the state discarding that liberty interest helps the victims, here, since they’re still stuck working with somebody who doesn’t want them there. The employer and employee are both destined to be miserable.

                The counter example is the 1964 civil rights act, and what it did for blacks. The counter-counter argument is that the 1964 civil rights act reflected change rather than effecting it. And that the underlying change was caused by the hard work of so many people, through private boycotts, protests, etc., to win the argument as opposed to just winning the legislature.

        2. Well Sarcastr0, I am saying, “Ok. But how does this work in practice?”

          I am a fortune 500 company. I cannot fire an employee for being gay or transgender. I get that.

          I am the Town Manager of a small, suburban town. I cannot fire an employee for being gay or transgender. I get that.

          I am the Presiding Bishop of a geographic area for a religious organization recognized by both the state and feds as a religion. Gay and transgender violate the laws of my religion. I fire a teacher who identifies publicly as gay or transgender because that violates our beliefs. Now what?

          I thought Justice Gorsuch pointed out something very interesting. When legislatures pass big, sweeping piece of legislation, there are going to be unintended and unanticipated results. That observation makes me more firm in my belief that we should be doing very limited, incremental legislation when it comes to social and cultural questions.

          1. I fire a teacher who identifies publicly as gay or transgender because that violates our beliefs. Now what?

            Take guidance from Hosanna-Tabor Evangelical Lutheran Church & School v. Equal Employment Opportunity Commission (2012)?

            1. So the religious organization can fire the LGBT employee.

              1. It depends on whether the employee is considered a minister. We will likely have a better idea soon enough.

          2. A faith-based organization doesn’t get to discriminate based on race when you hire, even if your faith excludes blacks.

            That seems to answer the question to me.

            I think Gorsuch’s opinion shows why textualism is silly and assumes inhuman precision by humans and fallible words.

        3. “no one is really challenging Gorsuch’s analysis”

          That’s just a lie.

          1. No, it’s exactly right. Even the dissents couldn’t take on the argument head on. Instead it says the decision “is legislating,” or it’s changing the meaning of the word “sex,” or the legislators didn’t intend that outcome. But none of those arguments challenges Gorsuch’s analysis. For good reason.

            1. If you say that, you didn’t read them, or you’re just drinking your own KoolAid. The fact that you might believe they’re not successful challenges to Gorsuch’s analysis doesn’t mean they don’t challenge him.

  14. I’m coming out as a male lesbian — I now identify as a woman who is attracted to other women. And now I have a right to be hired as the person monitoring the women’s changing room. Ain’t SCOTUS great?

    1. I thought you identify as 11 year old girl? Pick a lane, shithead.

      1. Lanes are arbitrary and restrict my right to be me.

        1. Seems like your right to be a shithead remains as strong as ever, and nothing in this decision changes that. So what are you whimpering about?

    2. “I’m coming out as a male lesbian — I now identify as a woman who is attracted to other women. And now I have a right to be hired as the person monitoring the women’s changing room. Ain’t SCOTUS great?”

      The Congregation Of Exalted Reason holds a woman’s control of her reproductive decisions to constitute a sacrament; requires congregants to accept gays while aggressively shunning gay-bashers; regards use of marijuana and most other recreational drugs to be sacramental; teaches that superstition-based beliefs are evil, to the point at which no congregant should hire someone who espouses organized superstition (or attended a school that teaches nonsense, such as creationism); and declares that no congregant should employ or permit on the congregant’s property anyone who owns a gun beyond a shotgun or modest pistol suitable and used for self-defense in the home.

      The law’s safeguarding of congregants’ religious liberty should be glorious.

  15. Well, now we see that, for a majority of the court, textualism is not a neutral tool but a fig leaf to justify whatever result they want to reach anyway. I’m not particularly surprised at Roberts, but it’s a shame to see Gorsuch leading the way. If this is his idea of textualism, it’s hardly distinguishable from a policy-driven methodology. It goes without saying that the four liberals would never allow textualism to dictate a result that goes against their political inclinations.

  16. One other thing here — of the three plaintiffs, two are dead and the third was allegedly fired for embezzlement, not being gay.

    Just sayin…..

    1. That estates still have claims and that reasons for firing can be pretextual and Title VII has never said “sole cause” or “primary cause”?

      Because you are “just sayin” what is well known about employment discrimination law.

    2. Are you claiming this case was moot?

      1. No, merely reflecting on a statistically high rate of mortality.

        1. …So lets not give them jobs?

          1. Add “statistics” to the list of things Dr. Ed knows fuck-all about, I guess.

    3. “and the third was allegedly fired for embezzlement, not being gay.”

      This is always an issue in employment discrimination cases. The employee says, I was fired (or not hired) because of a forbidden reason (race, religion, sex) and the employer says, no, I had a permitted reason (the employee was incompetent, he was a crook, we had to downsize, etc.)

      Then it becomes an issue of fact for the court and the jury, why was the person fired.

      1. You point out the reason why firing should not be a quick process, but needs to be a well documented process taking some time. Unless the cause is prima facie obvious as it is in work place violence.
        The long the person has been an employee, the longer the process takes. The employer might still get sued but s/he will have a far greater chance of winning.

  17. Lots of confusion here:

    All the court said was that employers should not be able to fire people on the basis of LGBT issues. It expressly did not rule on other issues.

    It did not say for example that bathroom laws are invalid. It did not say that transgender rights supersede rights of women to have their own locker rooms. I would not be surprised if the court uses today’s opinion to invalidate rules allowing use of girls locker rooms.

    Again, all it is saying is that you cannot fire people on the basis of sexual orientation or gender identity. Based on how it is worded, it didn’t even claim that other genders exist.

    The core claim is that to consider these issues, in the process, you consider sex. If it is an issue that doesn’t consider sex …it’s fine, at least for now.

    Though, this does highlight for me why Justice Posner was always right about textual interpretation and pure textualist is stupid. I have found this argument to patently ridiculous, so sex does not equal gender for all other purposes, but here it does???

    I would take this opinion and say, hey, sex equals gender per the supreme court, and run it that way for conservatives.

    1. BLM is incredibly homophobic — that alone could make this interesting.

    2. It expressly did not rule on other issues. It did not say for example that bathroom laws are invalid.

      Well it’s a good thing the Court’s reasoning is never relied on in other cases that address related-but-not-exactly-the-same issues.

      1. Except QI?

    3. But there actually ARE jobs where you’re allowed to hire on the basis of sex. Jobs where sex is a “bona fide occupational qualification”, a BFQQ.

      So you’ve got a job where you’re legally entitled to only hire women, and along comes a dude claiming he’s a woman. Do you have to hire him now, because you’re not allowed to legally acknowledge that he’s a guy who’s a nutcase, rather than a woman?

      You’re a clothing designer, you design exclusively clothing for women, one of your models up and has her breasts cut off and starts taking testosterone and growing a beard. You can’t fire her?

      1. Given how weak this legal argument is, I could easily create a legal argument saying that, in those cases, one does have the right to fire employees who do that. And I could make it broader.

        If sex is a qualification you are allowed to consider, you should automatically be allowed to consider gender identity per this ruling. Because it isn’t a separate qualification.

        1. But the transgender activists don’t seem to want to be treated as a separate gender you can’t discriminate against, they want to be treated as legitimate members of the gender they claim to be.

          So they’re going to fight any effort to treat a guy pretending to be a girl differently from an actual girl.

          BFQQ’s are where this fight will be most obvious.

  18. TL/DR Gorsuch holds that you are the sex you are born with

    1. If that is the argument to be used from now on, I’ll accept, even welcome, today’s opinion.

  19. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.

    This is the heart of the opinion. And it is wrong. An employer could say, I only hire people who date/sleep-with/marry members of the opposite sex. That applies equally to men and women. No “sex” discrimination.

    1. An employer can fire people in interracial marriages under that logic. “I’m not discriminating because of race, because I would fire a white person married to a black person or a black person married to an Asian person.”

      1. Analogies between race and sexual behaviors are frequently drawn but never apt.

        1. But based on the text of the statute it absolutely is.

        2. This logical dodge does not depend on anything about the specific classifications, and thus applies to both.

          It’s also been discarded by the Court.

        3. Race and sex discrimination analogies are commonly relevant and do help put things in context.

      2. “An employer can fire people in interracial marriages under that logic. “I’m not discriminating because of race, because I would fire a white person married to a black person or a black person married to an Asian person.”

        Assume, for the sake of argument, that’s true. What does that get you? I mean, you realize that Title VII of the 1964 Civil Rights Act was passed three years before Loving v. Virginia, right?

    2. Dude, your policy still mentions sex.

      1. A lot of us aren’t British

      2. So what? Title VII outlaws discrimination on the basis of sex, not mentioning it. An employer who adopts that policy is treating everyone equally — I will only hire you if you date/sleep-with/marry members of the opposite sex.

        1. Would I would only hire you if you date members of the same race also work?

        2. Legally, discrimination is creating a distinction based on the characteristic.

    3. Agreed. The decision seems ridiculous even as a purely textual matter.

      Also, while the statute prohibits discrimination “because of” sex, that doesn’t mean it prohibits actions where one’s sex could be arguably a “but for” cause, so to speak, in some narrow sense. It is more analogous to a proximate cause analysis.

      In Roberts and Gorsuch we apparently have just another case of yellow-livered supposed conservatives pining for 15 minutes of praise in the liberal mainstream.

      Kavanaugh’s paean to the policy result is perhaps even more offensive. Freedom of association beyond dead.

      1. Have you ever considered that they actually don’t hold the same bigoted views you think they do, and that Kavanaugh is exercising his freedom of association by honestly stating how he feels?

        1. You obviously don’t have a grasp of the basic legal issues here, like what freedom of association is, so you should be more measured in your comments. I have no problem generally, and in fact do, employ gay persons.

          I have a problem, generally, with the government telling people what to do. Especially the federal government, and even much more especially 5 federal judges.

          1. Well, no one was challenging the Civil Rights Act on First Amendment grounds so it is not a basic legal issue here. And it wasn’t clear how your offense at Kavanaugh was related to freedom of association, other than the inference that he was doing some kind of forced “virtue signalling” against his innate desires and therefore being constrained in his freedom of association.

            I’ll be more circumspect when you articulate what you mean better.

            1. I mean the issues referenced in my and your comments. I disagree with this result both as a legal decision and as a policy matter. As a policy matter, because government telling individuals and mom and pop businesses what to do infringes on their liberty and freedom of association, irrespective of how the court interprets any such right under the constitution.

              That Kavanaugh felt the need to include a paean to the policy result is somewhat nauseating regardless of why or whether he holds such sentiments, but I assume he does or he wouldn’t write it.

            2. In general, the Civil Rights act should be challenged on 10th amendment grounds; The 14th amendment, after all, only extends the requirement for non-discrimination to state actors, and a lot of what is being regulated under the Civil Rights act isn’t legitimately interstate commerce, either.

              But the Supreme court isn’t interested in limiting the federal government to its enumerated powers, they gave up on that fight decades ago. These days we’re lucky if they stop the feds from doing things they’re explicitly forbidden to do.

          2. ML, helluva high horse to jump from ‘maybe Kavaugh is being sincere’ to ‘you are dumb like a child because you don’t agree with me that the Civil Rights Act is unconstitutional.

            We’ve got a pretty long history that does a great job showing why your idealistic problem with government results in a crappy an operationally less free society.
            You, on the other hand, think the Confederacy was cool, so I could see why you wouldn’t see that kind of issue as much of a cost to live up to your simplistic view.

            FFS this isn’t judicial policymaking, it’s textual analysis of an existing law. I disagree with Gorsuch’s hidebound textualism, but that doesn’t mean I think he’s seizing power he shouldn’t just because he’s not agreeing with me.
            You are a trained attorney. You would think that you could realize alternate findings from what you want are not proof of bad faith. But again and again you prove you cannot due this.

            1. I’m not alleging bad faith or insincerity on anyone’s part. What I am saying is that I disagree, and I include some speculation well-founded in human nature about the reason for such sincere positions. As for LawTalkingGuy, he clearly didn’t grasp my point about freedom of association, which anyone familiar with these types of cases would be very familiar with. That doesn’t mean he’s dumb nor does it mean his comprehension is any more at fault than my lack of explanation.

              Your comprehension on the other hand continually suggests that you frequently fall prey to the temptation of deliberately mischaracterizing those you disagree with. (I.e. “you think the Confederacy was cool”.) Your thinking is so simplistic that you can’t assimilate a fraction of the nuance of history, which in reality is always very nuanced.

              As Jefferson noted regarding judges, “They have, with others, the same passions for party, for power, and the privilege of their corps…. Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots.”

              1. LTG: Have you ever considered that they actually don’t hold the same bigoted views you think they do, and that Kavanaugh is exercising his freedom of association by honestly stating how he feels?

                M L: You obviously don’t have a grasp of the basic legal issues here, like what freedom of association is…
                ============
                Looks to me like you exactly came in hot to someone suggesting Kavanaugh may believe what he says with your dumb essentialism about your extreme view of the Constitution.

                My style is to break arguments down to their main thrust. If people push back, it’s revealing how often they will *ahem* refine their goalposts.

                I know what your thesis is, it’s crazytown. You wish we had the government spending of 1859, and now you’re a 14th Amendment truther. And you think the Confederacy was not about slavery, but rather noble independance.

                I know what you are.

                1. You don’t know anything, apparently. Stating honestly how you feel would be freedom of speech, not freedom of association. Association is when you associate with other people through some type of organization or relationship. Of course, freedom of speech does not apply to government officials when the speech is part of their official duties anyway, and to suggest it would apply to judicial opinions in laughable…

                  You should consider that what you think of as “breaking down arguments to their main thrust” is in practice consistently discarding all nuance and distinction to blatantly mischaracterizing those you disagree with…

    4. I don’t agree with the majority opinion. But I also don’t think your analogy dodges Gorsuch. The employer would say “Mary, I found out you were married to Martha. I must fire you now.” The distinguishing characteristics of Mary are (1) she’s married to a woman and (2) Mary is a woman.

      1. Even if Mary’s sex is similar to a “but-for” cause of the reason given for firing (or non-hiring, equally applicable), it’s not similar to a proximate cause. It’s not the real reason and the discrimination is not “because of” sex.

        1. Why do you think proximate cause governs? But-for causation is the standard for retaliation claims under Title VII. There is a lesser standard for non-retaliation claims under 42 USC 2000e-2(m), but it isn’t proximate cause. It’s “motivating factor”.

          1. Cite for but-for causation is Nassar 570 US 338 (2013). That was 5-4, but if memory serves that was only because the liberals on the court wanted the lesser standard (42 USC 2000e-2(m)) to apply. So basically 9 justices in support of not using proximate cause.

            1. Thank you, good point of law. I would think that but-for causation has probably been a useful judicial standard because it creates perhaps as bright of a line as possible when dealing with anti-discrimination laws that seek to probe motive for hiring and firing decisions. Nonetheless, I don’t believe it is written into the statute, correct?

              I just think when you look at the issue in this case and consider the textual meaning (original public meaning) of “because of sex” it pretty clearly does not include “because of sexual orientation” even though, hyper technically and narrowly, a distinction based on sexual orientation necessarily includes a “but-for” determinant of sex.

              1. It’s complicated. SCOTUS originally glued tort’s but-for causation to the entire statute (Price Waterhouse, maybe even earlier cases, I don’t remember). The legislature later glued on a lesser standard for retaliation claims. If the legislature had wanted a higher standard than but-for causation (proximate cause, perhaps), it could have amended the statute after the fact to rebuke the Court (just as it did when it thought a lower standard should apply to retaliation claims)?

                I guess my position is that I’m not aware of anybody thinking proximate cause (which is less uniform across the country than but-for causation) should be the standard in the original legislation, and a lot has happened since 1964 to solidify but-for causation both as a matter of judicial interpretation, and subsequent legislative change to the statute.

                I happen to agree with you and the dissent that the majority has misinterpreted the statute. I think this interpretation does not square with the original intent.

                1. Makes sense.

                  Just seems like “but for” makes sense as an evidentiary tool and standard, but should not be imposed on the text in a way that radically alters its meaning and yes, its original intent.

                  Maybe we need both text and intent. But still I just can’t see how even textualism necessarily mandates today’s result.

    5. If there is a job applicant who is married to a man, and I hire them if they are a woman but won’t if they are a man, then that is sex discrimination.

      1. If for 97% of men their sex would not matter to you, but you don’t hire one because he is gay, then his sex was not the proximate reason.

        1. If you don’t hire someone because he is gay then sex is the reason. What else would the reason be?

          1. You said it yourself right there – “because he is gay.” Sexual orientation and sex are two different things as Gorsuch acknowledged.

            1. “For an employer to discriminate against employees for being homosexual or transgender, the employer must intentionally discriminate against individual men and women in part because of sex.” -Gorsuch

    6. It fails any ‘as applied’ test, because any specific case will be one sex, and fired for behavior that would have been acceptable for the other sex.

  20. I agree with the concept, but I strongly disagree with the Court imposing it this way. The proper way was through legislation. There appears to be little limit on what the Court can do now. We have dynamic interpretation of statutory and constitutional language. The words mean whatever 5 members of the Supreme Court want them to mean.

    1. Words have always meant what 5 justices said with respect to the law. In other words nothing has changed.

      1. Well… those who have been saying that for a while now, who repeatedly get mocked for claiming we live in a nation governed by men and not law, can now point to a codified legal statement that admits it.

        That changed.

    2. It was legislated, it was called the Civil Rights Act.

  21. I for one can’t wait for the “I was fired by my gay boss for being straight” cases to come forward.

    1. Already has: _Melnychenko v. 84 Lumber Co_

      LEONID LENNY MELNYCHENKO & others 1 vs. 84 LUMBER COMPANY. 2 , 424 Mass. 285, 676 N.E.2d 45, 1997 Mass. LEXIS 48, 73 Fair Empl. Prac. Cas. (BNA) 179, 69 Empl. Prac. Dec. (CCH) P44,538, (Supreme Judicial Court of Massachusetts February 18, 1997, Decided ) -Melnychenko v. 84 Lumber Co., 424 Mass. 285

  22. Applying Gorsuch’s logic (if you can call it that): if I told my employer that I identified as African-American, showed up tomorrow in an afro wig speaking jive and was fired for that reason, I would have a valid Title VII claim because I was fired on the basis of my racial identity, which is inextricably bound up with the protected category of race, because a similarly situated genetic-African-American would not have been fired for that reason.

    Judicial legislation has rarely been deployed both so poorly – 1L exam-tier reasoning – and in service of so weak a cause.

    1. The “cause” got a 7-2 vote FWIW.

    2. Would you be fired for that reason, speaking jive? But what if you used the N-word where blacks were not fired for using that word? Or what if you said or did something deemed racially insensitive and were fired for that reason (which seems to be happening all over the place these days) where a black speaking those same words would not be fired? That would seem to be the same principle.

  23. My issue with this, primarily, is essentially echoed in Kavanagh dissent: We have basically used textualism to supersede any guise of separation of powers. Now every social issue is the full realm of the courts. Locker room disputes? Court issue. Bathroom issues? Court issue.

    Activists have been trying, and failing, and succeeding in some states, to pass more protective legislation. That is how the process is supposed to work. Not the court stepping in and saying, those laws that you were trying to pass for 40 years but couldn’t because democracy … they are enacted now.

    And it’s not just social issues I mean, I tend to agree with the campaign finance rules the Supreme court puts out … but they should not be the preview of the courts. It should be done by legislatures. I support gay marriage, but court imposed gay marriage?

    The court has already held that in some cases you can discriminate against gay people with the Masterpiece Cakeshop case … so now is the court going to decide ever case of when is discrimination ok and when it isn’t? That seems to be a gross assumption of authority by the court system.

    1. This is the court interpreting a statute. How is separation of powers implicated? I didn’t see this in the Kavanaugh dissent.

      1. It starts in Kavanaugh’s first paragraph:

        “The question here is whether Title VII should be expanded to prohibit employment discrimination because of sexual orientation. Under the Constitution’s separation of powers, the responsibility to amend Title VII belongs to Congress and the President in the legislative process, not to this Court.”

        1. But that’s just begging the question.

          1. It is nevertheless Kavanaugh’s separation of powers argument.

            1. Fair enough, I suppose.

          2. Does it beg the question to say that at the time that Title VII was written the word “because of sex” did not convey to reasonable people the same meaning as “because of sexual orientation” or “because of gender identity”? Does it beg the question to say that since there are no dictionaries from 1964 that defined “sex” to mean sexual orientation, gender identity, or “transgender status,” therefore “sex” did not have any of these meanings?

            1. No, it does not.

              But then you’d have to discard textualism and go with legislative intent.

              Which do you choose?

              1. No. Legislative intent means that you try to determine what the legislators thought they were doing. Textualism ignores that and says that the meaning of statutes is to be found not in the subjective, multiple mind of Congress but in the understanding of the objectively reasonable person at the time.

                1. Ahh, Easterbrook. Original public meaning isn’t quite textualism.

                  But he lost out to Scalia with his bevvy of dictionaries, exactly the trees-instead-of-forest point Adler highlights.

                  I agree with you that Gorsuch is being dumb here, but he is being dumb in an extremely textualist way.

                  1. If “sex” means “sexual orientation” then you are right. But does not Gorsuch admit that it does not? His argument is that orientation does not matter but only sex. It is not that a person is gay as to why they are being fired… it is because they are of the same sex as their partner. If they were a different sex, there would be no issue. The entirety of his argument is that the person being fired’s sex is the variable under consideration…. that they are gay is merely a context in which it is being considered, not the thing being considered itself.

                  2. Original public meaning isn’t quite textualism.

                    Whatever the differences are between textualism and originalism, they both refer to a public meaning at the time that the document was enacted.

                    I agree with you that Gorsuch is being dumb here, but he is being dumb in an extremely textualist way.

                    The strictures of originalism can be defeated by changing the level of generality at which the analysis takes place. That way they can claim to be originalists and yet reach a result that the vast majority of people at the time of ratification or enactment would have rejected as not what the text was intended to mean. This is the approach followed, for example, by those who say that Brown v. Board of Education was correctly decided as a matter of the original public meaning of the equal protection clause (e.g. Robert Bork, while at the same time agreeing that “no one then imagined that the equal protection clause might affect school segregation.” It’s the same in this case. Such decisions must drive legislators to a nervous breakdown. How do you draft a law so as to guard against an unimaginable interpretation?

              2. As a purely textual matter, “because of sex” did not include “because of sexual orientation.”

                It’s true that sexual orientation is of course defined with reference to sex (or more lately, not sex any more but gender!). And therefore any act of discriminating, classifying, or distinguishing based on sexual orientation necessarily includes a “but-for” determinant of sex. But that doesn’t mean that the discriminating action is “because of sex” in a “proximate” sense.

                1. Read Adler’s analysis at the end of the post, ML.

                  Your textual scope is not Gorsuch’s. Nor was it Scalia’s.

              3. I don’t think its accurate to describe that as legislative intent, and more to be going towards Original Public Meaning style originalism. Grab a dictionary from that year, see what sex means, read a few NYT articles. Bingo bango.

                1. It’s both. But the dictionary bit is more Scalia and Gorsuch’s word-by-word textualism that I’ve always thought was silly and…sorta smug?

                  ‘You screwed up, legislature, look what you said haw haw!’

      2. The separation of powers is that the language is unclear in the statute, the extension urged by the plaintiff is hardly clear from the language used, and that the legislature has wrestled with precisely this extension for decades without resolution. There is another branch implicated, too, since I don’t think the DOJ is defending the plaintiff’s interpretation (though I could be wrong about that).

  24. SCOTUS CHIEF JUSTICE and his comrades are frustrated lawmakers. Obamacare and now this decision was in the purview of Congress, not the courts. Its completely understandable that the cases involving the second amendment were just denied Cert because Chief Justice Roberts cannot be trusted to vote any other way than with the communists.

    I can imagine Roberts being the deciding vote to reverse Heller and all other rulings that stood for the second amendment. The leftists on the high court will die in office because they are sworn to resist any vote beneficial to gun and abortion rights.

    It will be a great day in America when conservatives take the Supreme Court

    1. We didn’t do good on guns today…

      1. Most of the members of the Court simply don’t like the 2nd amendment, and they hate that it’s part of the Constitution. The left-wing members take that hate to the point of being willing to actively rule against it, the right-wing members are reluctant to do anything more than stay out of the way of the lower courts doing it.

        Thomas is kind of unusual in that they traumatized him so much during his confirmation hearing that he just doesn’t give a damn what anybody thinks anymore.

  25. Strategically this was an easy one for the Court majority to take a “pass” on. Had they held otherwise Congress would have eventually overruled in it by amending the law. And that would have thrown more fuel on to the fire of “court packing” or whatever the liberals are doing now to delegitimize the institution. Considering the vast majority of states prohibit this type of discrimination in some way too means it functionally has little impact.

  26. For what it is worth, social conservatism lost the policy and moral argument at least 7-2 at the Court.. Look at Kavanaugh’s conclusion. It echos Roberts’s Obergefell dissent but is much more forceful:

    “Notwithstanding my concern about the Court’s transgression of the Constitution’s separation of powers, it is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans. Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result. Under the Constitution’s separation of powers, however, I believe that it was Congress’s role, not this Court’s, to amend Title VII.”

    Alito is more tepid so it’s hard to say he’s endorsing the result or movement himself unlike Kavanugh:

    “The updating desire to which the Court succumbs no
    doubt arises from humane and generous impulses. Today,
    many Americans know individuals who are gay, lesbian, or
    transgender and want them to be treated with the dignity,
    consideration, and fairness that everyone deserves.”

    But in any event, we’re a long way from the Burger opinion in Bowers or the Scalia dissent in Lawrence.

    1. Truth. Scalia is missed.

      1. Perhaps. But certainly not for his ant-gay views.

        1. Bigots still constitute a substantial — but dwindling — minority in America.

    2. Social conservatism lost the ruling class years ago, and the part of the ruling class that relies on the votes of conservatives is getting tired of pretending they care what conservatives think. That’s what I take from this.

      1. When you say ruling class…you mean most ordinary people. Most people don’t entirely suck and therefore think bigoted philosophies kind of suck too when they understand the people and stakes involved. This doesn’t have anything to do with the ruling class.

        1. No, when I say “ruling class”, I mean the largely self-contained and self-perpetuating clique of people who actually run the country. They have systematically different values and interests from ordinary people, and where they’re agreed on something, they don’t let democracy work, either by arranging for the courts to decide it to give them cover, or just simply ignoring public opinion.

          You maybe notice we’ve had two recent Presidents from the same family, came close to three, and another family came within a hair of giving us two Presidents? You see members of Congress passing seats on to their family?

          Our ruling class aren’t formally defined, like in some country that has royalty, but they control entry into their group pretty effectively, and are starting to assume the characteristics of an aristocracy, such as being largely immune to normal legal processes most people have to worry about.

          1. What’s this have to do with people realizing that we shouldn’t be dicks to gay people?

            1. You shouldn’t be a dick to anyone.

              You shouldn’t be 300 pounds overweight.

              You shouldn’t play video games 24/7 and accomplish/contribute nothing.

              But to say that whatever shouldn’t be done should and can effectively be made punishable by law is the height of naive folly, utopian thinking and totalitarianism.

              1. Precisely.

              2. Okay, but this still doesn’t have anything to do with a shadowy ruling class forcing its beliefs on people. Politicians and judges were among the last to come around. Social conservatives weren’t ignored by the “ruling class” they ignored by most people on these issues. Whether government intervention is appropriate is a different question than the social and cultural moment that brought this intervention.

                And FWIW, part of the gay rights movement involved getting government out of the private lives of gay people. If you reject this decision on intervention grounds, then you must think that Lawrence was correctly decided to be consistent.

                1. Well, there’s nothing shadowy about it. It’s very out in the open, front and center.

                  No, I don’t have to agree with Lawrence as a legal decision, but I do agree with the policy result of that decision. Here’s why this is consistent. I think the government can generally outlaw things that some people might think you shouldn’t do. But I generally don’t think the government should outlaw most things that some people think you shouldn’t do.

                  1. Wait. So do you view the Civil Rights Act as unconstitutional on freedom of association grounds…but you don’t view sodomy laws the same way? I don’t think that makes any sense…

            2. You could not be a dick to gay people and still vote for laws that legislate what you view as moral.

  27. The point that a statute means what it says, and not what its drafters specifically had in mind should be uncontroversial. That’s a basic aspect of textualism.

    The point that there is no “canon of donut holes” is less obvious, and this point seems to be the one that is actually doing a rather large share of the work. Textualism isn’t textualism unless texts are read according to either established rules of legal interpretation or normal conventions of linguistic usage.

    As a matter of fact, there is a “canon of donut holes” in normal linguistic usage. Imagine that I ask you to get me a sandwich and you come back with a hot dog. I may concede the point that, from a taxonomic perspective, you are correct that a hot dog is technically a sandwich. Nonetheless, I will tell you that you have misinterpreted my command.

    Is there an established rule of legal interpretation that runs in the opposite direction? Gorsuch cites the cases for it. Dubitante.

    1. Which is a perfect illustration of why, in cases like these, textualism is stupid and ought to be replaced with Posner esque pragmatism.

    2. No, its not uncontroversial depending on what aspect of meaning you’re talking about.

      There are two types of intent; intent of the language, and intent of the law.

      The meaning of language is often interpretable, whether its because words have different uses or because words change meaning over time. Its an obvious thing for any English speaker. If I say that my dog smells bad, I’m probably not talking about the dog’s olfactory abilities, but his odor. So you always have to look at the intent of the language to determine the meaning of language.

      On the other hand, once you have the meaning of the language understood, then yes the law either says something or it doesn’t, and you can’t argue that because the framers didn’t intend on a certain effect, that the law doesn’t apply that way.

      My problem with a lot of textualist approaches is they often confuse the two things, and Gorsuch IMO does that here. He thinks this is a case of the latter, that the language clearly includes sexual orientation and sexual identity, even if it wasn’t intended. I think its the case of the former, that the language doesn’t include that.

      Alito makes the argument in his dissent that even from a textualist approach his argument is problematic, because textualism isn’t literalism and the point of a textualist analysis is still to figure out what a law is saying or isn’t saying, and it takes adding something to the law that isn’t obviously there to include sexual orientation.

      With the example you gave, there can be an argument that the meaning of “sandwich” to exclude hot dogs is a linguistic issue; that your definition of “sandwich” excluded hot dogs, and the person you were talking to understood your definition of “sandwich”. Therefore its an issue of intent of language, and not the intent of your command. As a judge, substituting my understanding of “sandwich” as including hot dogs is arrogant, because my personal definition of a sandwich doesn’t matter.

      Part of Gorsuch’s hangup IMO is he doesn’t like vagueness, and has had a tendency to throw out laws he’s considered too vague, something Reason has praised him for. In this case, my belief is the same instincts are telling him to make things clear-cut. However, vagueness is a normal and avoidable feature of language, and that’s why we have a judiciary.

      1. “vagueness is a normal and avoidable feature of language”

        *normal and unavoidable

  28. Three amazingly different cases to lump together.
    In one, a homosexual is fired for financial hank-panky, which happens after people at his work site ‘discover’ he is homosexual. I can’t even find a court determination that the fraud was proved or disproved, but it has to be relevant.
    In another, there was an accusation of inappropriate touching of a female, which is surely relevant, as a straight man would also have been fired for the same accusation.
    In the third, the appearance of the transgender was driving away customers. Surely a valid business concern for a public facing job.
    Yet they all got tossed in the hopper as one question.

    1. Different fact patterns present, as part of the inquiry, the same question of law. Happens all the time.

      Don’t think this question of law disposes these cases; they just all present it as part of their inquiry. After all, who cares about looking into the facts if cause doesn’t need to be shown to fire a transgender?

    2. They were all dismissed under the same basic premise — “the law doesn’t protect you at all.” That conclusion was tossed. Now all three cases can be considered on their individual merits.

      1. Does this mean that the three cases are now to be adjudicated under the auspices that if cause isn’t proven it is assumed to be a discriminatory firing and therefore illegal?

        How this ruling impacts the cases as a whole is not something I’ve seen written about (haven’t looked to be honest… that this case was working it’s way was somewhere floating around in the back of my mind until I saw the news this am).

        1. Now the court need to make factual findings to see if the firings are discriminatory under the Civil Right Act.

        2. How could anybody write about them? The facts haven’t been developed.

    3. In another, there was an accusation of inappropriate touching of a female, which is surely relevant, as a straight man would also have been fired for the same accusation.

      There was no accusation of “inappropriate touching,” simply apprehension of being on the same parachute (and necessarily tied closely together) with a male.

    4. “the appearance of the transgender was driving away customers. Surely a valid business concern for a public facing job.”
      Nope. If the person was black, or Muslim, or any other protected class, you still can’t fire them if your customers don’t like it.

    1. The first-term [Republican] congressman became a target of conservatives after officiating a same-sex wedding in 2019.

      Conservatives on a purity crusade within the GOP? Yeah, that’s already a pattern.

  29. No need now for 2021 “court packing” when Biden wins.

  30. If you’d asked me for my opinion on whether Title VII prohibits discrimination on the basis of sexual orientation or gender identity before I’d read Gorsuch’s majority opinion, I would have said no. After reading the first couple of pages and understanding his reasoning, I was completely convinced that he was right. In my opinion, whether an adverse employment action was “because of… sex” should be tested using something akin to the way that scientists test for causation when they conduct experiments—i.e. using the method for testing whether doing ‘X’ causes ‘Y’ to happen.

    In science-y terms, the ‘independent variable’ is the employee’s sex and the ‘dependent variable’ is whether the adverse employment action occurs, all else being equal. When an employer discriminates against an employee based on sexual orientation or gender identity, their choice is necessarily based on and inseparable from the employee’s sex. Whether someone who is sexually attracted to men is gay or whether someone who identifies as a man is transgender depends solely on whether that someone’s sex is ‘male’ or ‘female’. A female in both of the cases above would be straight and cisgender, a male would be gay and transgender. Thus, all else being equal, discrimination on the basis of sexual orientation or gender identity is discrimination “because of… sex”.

    1. Its not science, its law. Treating law like science is stupid.

    2. That also means that Title VII does not protect sexual preference or trans status. It means that it protects sex, and nothing more. Which is a weird idea seeing as how that is then used as a defense for sexual orientation or trans.

      It would be like saying I burnt a canvas that was painted purple and someone said “You can’t do that! It is illegal to burn things that are blue and purple is inherently constructed in part by being blue!” If we all admit that everyone knew that outlawing the destruction of purple was not intended when the law protecting blue was passed… how can anyone rightly conclude that it does, in fact, cover purple? Especially given that the same body who outlawed blue has admitted as much through various attempts to clarify by adding purple specifically to the group of protected colors?

      1. purple is only composed of ‘blue’ in some color theories. Purple is a separate wavelength from blue when talking about light, for example. (And blue isn’t even a primary color in CYM colors).

        If I was a legislature banning the burning of ‘blue’ things, and I didn’t define what I meant by ‘blue’, I think I wouldn’t be entitled to complain when that got interpreted in ways I didn’t expect.

        1. So you’re using the “It depends on what “is” is” argument. So by your logic, since none of the words have been specified in the CRA by the CRA itself, the entire CRA can be interpreted to mean anything we want so long as we can proffer at least SOME type of tangential argument no matter how absurd otherwise. To focus on this word or that word that needs to be interpreted in order to reach a conclusion while accepting the normal understanding of all other words in the text is rather hypocritical.

          1. Gorsuch’s argument assumes the normal understanding of sex.

            Firing a man for behavior that would have been acceptable for a woman is exactly what Title 7 covers. That this even applies to intimate relations may not have been foreseen by Congress in ’64, but not because the words didn’t inherently carry that meaning.

            But your example is flawed, because you assume ‘blue’ means one objective thing. If it does, it refers to a set of wavelengths of light (but exactly which wavelengths? not exactly objective, but closest we can get), and in that color theory your compositional argument isn’t even wrong. It’s incomprehensible.

  31. One argument for the dissent is that Congress could never have conceived that this statute would have produced this result. This is similar to one of the arguments in King v. Burwell, specifically the argument that Congress could not have intended to put tax credits at risk should states fail to create their own exchanges.

    The actual argument was that the language in the ACA was, on its surface at least, contradictory; that there was some language that only appeared to envision state exchanges and some other language that appeared to envision Federal exchanges as well, if I’m remembering correctly.

    But there was a huge logical hole in the DC Circuit opinion when they tried to square that circle, and it wasn’t noticed by the dissenters on the Supreme Court when they cited the Circuit Court decision as the basis of their dissent.

  32. >>>>>>>>>>>>>>>>>>>>>>>>>>>
    The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex.
    >>>>>>>>>>>>>>>>>>>>>>>>>>>

    Uhhhh….what? I can refer to someone as gay or transgender without even referring to their specific sex.

    >>>>>>>>>>>>>>>>>>>>
    Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.
    >>>>>>>>>>>>>>>>>>>>

    Taking an angle grinder to your genitals has nothing to do with your specific sex. Men and women are equally capable of doing it. And employers can and should be allowed to question the mental capacity of such people. It ‘depends’ on sex in the same way beating off in public does, and I’m not seeing Gorsuch rushing to defend that. But there is no discrimination at all between men and women.

    >>>>>>>>>>>>>>>>>>>>>>>>>>>>>>
    When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.
    >>>>>>>>>>>>>>>>>>>>>>>>>>>>>>

    Wow what a titan…is this all it takes to not only be in the SC but be one of its more intelligent members?

    1. I can refer to someone as gay or transgender without even referring to their specific sex.
      Each of those words is defined based on sex. So…no, you cannot.

      employers can and should be allowed to question the mental capacity of such people.
      It’s funny when they argue the outcome and think they’re arguing the merits.

      1. You could tell me you are gay. I could then announce that you are gay. All could be true statements. And all are possible without me ever knowing your sex.

        1. True, but as Gorsuch wrote

          the employer intentionally refuses to hire applicants in part because of the affected individuals’ sex, even if it never learns any applicant’s sex

          1. But that’s a logical leap that just doesn’t quite make it. If I fire you for being gay, but do not know your sex, then what sex am I discriminating against? How can I do it if I don’t know it?

            It’s like saying that if there are three fruit behind three boxes… an apple, a banana, and a pear. If I choose the box in the middle because it is blue and discover it contains a pear… according to Gorsuch I have discriminated against the other two fruits BECAUSE of the fruit they are, not because they were in red boxes. That’s not possible since I don’t know the type of fruit.

            (In retrospect I see how the use of fruit could be seen as problematic to some, ironic to others… I find it ironic and also am too lazy to reconstruct using other items. Just roll with it).

            1. Gorsuch is making a but-for cause argument. That is, because but-for personX being the (unknown) sex they are, they would not have been fired, they were fired because of sex. Gorsuch also points out such discrimination need not favor men over women (or vice versa) across the population. The but-for cause standard applies on an individual basis.

            2. If you don’t know my sex, how could you possibly know if I’m gay (or not)? The conclusion (person is gay) presumes assumption about their sex.

              1. No it doesn’t. That is not necessitated by logic. Again… I have no clue as to your sex. You could tell me you are gay. I could repeat the claim you are gay expressing my knowledge of your sexual preference. I could, therefore, know you are gay and not know your sex.

                I could read an article about a person and their partner. The people may both have androgynous names. I know they are gay from explicit statements in the article. I may imagine them being one way or another in my mind but as I turn to the final page of the article find myself surprised that they in fact are not quite at all as how I had pictured them.

                I could be looking at an application to hire that doesn’t ask if you are male or female but does ask if you are gay. In such a circumstance it would be very possible to be biased against the sexual preference but be indifferent to the sex.

                To say these people were fired… because they were of a particular sex… and that is the claim being made… would imply an animus towards that sex. Yet, if it were possible that the employer had on staff every possible make up of all men in the universe of all varying characteristics but for one… being gay… then it does not follow that the characteristic of being a man is what played a role in the exclusion of a particular group but instead was their sexual preference. What Gorsuch is doing is not logic but sophistry.

        2. Gay necessarily contains sex classification within it’s definition.

          1. What sex are you if you are gay?

            Being gay is independent of your sex. How you express your sexual preference is done through the sex of your chosen partner (your sexual preference is not the same as your partners sex, conceptually). All of which can be understood absent any concrete understanding of your particular sex.

            1. While both sexes can be gay, being gay is not independent of your sex.

            2. I accidentally flagged this comment.

              You cannot “understand” the gayness of a person without knowing their sex.

              1. Why not? Saturday Night Live could have come out and explicitly said that Pat was straight (which I believe was the operative assumption) and you still wouldn’t have known whether Pat was a man or a woman.

                1. I seem to recall Pat as trapped on a desert island and had sex with a dude.
                  But that’s neither hear nor there. Operationally, the Pat scenario is never going to be the case (that’s why it’s a joke). Someone’s sexual orientation will always rely on their sex.

                  I don’t think this is a very good argument, but you must admit it is a textual one.
                  As noted in the update, textualism itself turns out to be ambiguous.

                  1. I seem to recall that you are a moron and I don’t care what you think.

                2. If I believed Pat was banging dudes, I’d have to make an assumption about Pat’s sex to conclude that Pat was straight.

                  I think Gorsuch was wrong so this case would be easy to resolve for me. But I suppose even under his opinion, the employer could still argue no sex discrimination (in your hypo) because the employer did not, in fact, know the employee’s sex.

                  1. Yeah – were I a Federalist Society type I’d be shaking my head ruefully. Live by the robot-umpire-judge, die by the RUJ.

                    But I’m not. I don’t know if I’d dispose of this by looking at the totality of the text, or finding the text ambiguous look at legislative intent, but either way I’d be in the dissent.

                    Now Equal Protection as applies to the CRA, on the other hand…

                  2. “If I believed Pat was banging dudes, I’d have to make an assumption about Pat’s sex to conclude that Pat was straight.”

                    The starting assumption was that Pat was straight, and they were trying to find out whether Pat was a man or a woman by finding out about Pat’s partner. And there are indeed people like Pat in the world (there was one in my law school).

                    Or what if I told someone who had never heard of Lynn Breedlove that Lynn Breedlove is a gay author. They would know that Lynn Breedlove was gay. They would not know whether Lynn Breedlove was a man or a woman.

  33. Gorsuch had already show activist tendencies in rulings on criminal justice law, ruling with liberal justices in those instances, and has been praised by Reason for this. Conservatives tended to overlook it for various reasons. But even Roberts has called him out on it in the past.

    The only thing I can say for Roberts is that he’s hypocritical on the issue of activism and his decisions are often motivated by politics. I don’t see how he could justify his Obergefell dissent now. By the same logic used in this decision, preventing gays from marrying is discrimination by sex; since, the only difference between a man marrying a man and a man marrying a woman is the sex of one of them.

    1. So much telepathy, you should take your show on the road!

      preventing gays from marrying is discrimination by sex DOMA post-dates, so it overrides.

      1. So is Roberts retracting his Obergefell dissent or not? He didn’t have to concur on this decision just because Kennedy disagreed with him on Obergefell. Three of the other judges didn’t.

        1. There is no conflict between this decision and the Obergefell dissent, because the dissent in O. was about whether DOMA was Constitutional, nothing about the Civil Rights Act.

          I believe the reason the Civil Rights Act didn’t come up is because DOMA came after it, and thus wherever they conflicted DOMA superseded, as is the usual rule for newer laws overriding old ones.

  34. The only thing I can say for Roberts is that he’s hypocritical on the issue of activism and his decisions are often motivated by politics.

    I am shocked – shocked! – to hear that there is politics going on in the Supreme Court.

    1. More often what you see is justices’ political biases will influence their decisions, even as they claim to be objective. Roberts’ tendency is more generally less of a bias issue and about political calculation — he makes decisions based on how he feels a certain ruling will affect the political debate.

  35. “On the one hand, as Justice Gorsuch notes it is virtually impossible to discriminate against someone based upon their . . . sexual orientation without discriminating against them on the basis of sex.”

    Not really. Even if you accept the plaintiffs’ framing, which is designed to make discrimination based on sexual orientation into discrimination based on sex (which is how they should frame it), you still run into trouble with discrimination specifically against bisexuals and in favor of both gays and straights (which is a real thing). They aren’t discriminated against because they are men who have sex with men, or because they are men who have sex with women, but because they won’t pick a side. As long as the discrimination is against both male and female bisexuals, and in favor of gay and straight men and women, where is the discrimination based on sex?

    If you accept the defendants’ framing it’s trivially easy as long as you discriminate against both males and females in the same way. The defendants’ framing has the added benefit for being able to account for discrimination against bisexuals.

    1. Can you explain what a bisexual is without referring to sex? Because you very much did not just now, 4 times by my count.

      1. But you are a moron, so I don’t care about your count.

  36. They aren’t discriminated against because they are men who have sex with men, or because they are men who have sex with women, but because they won’t pick a side.

    They are discriminated against because of what sex they have sex with.
    Which makes the distinction you put forth not a difference.

    1. See. You don’t even understand the argument you are purportedly defending.

      1. I think you may be misunderstanding the argument of the main opinion.

        Under Gorsuch’s galaxy-brain textualism, if you cannot explain what bisexual means without referring to sex, it is a sex-based classification.

        And, as you demonstrated above, you cannot do so.

        Your argument is therefore not the silver bullet you think it is.

        1. Allow me to quote myself. “See. You don’t even understand the argument you are purportedly defending.”

  37. Gorsuch’s argument reminds me of how Somin argued that DOMAs discriminated on the basis of sex, and thus triggered heightened scrutiny. The same would apply to the law at stake in Lawrence. I thought, and still think, that argument is too cute by half.

    On the other hand, I am persuaded that discrimination against transgender people is inconsistent with Price Waterhouse and its interpretation that discrimination on the basis of sex includes sex stereotyping (*). It is also possible the same logic applies to discrimination against gays, but perhaps not as convincingly.

    (*) I have no idea what the Court said about sex stereotyping since I still can’t download the decision. Can anyone post a workable link?

    1. Here is a working link. And it appears the Court did not discuss sex stereotyping except to support its argument that sex need not be the primary reason for discrimination for Title VII’s prohibition against discrimination because of sex to apply. Nonetheless, the dissent rebutted the sex stereotyping argument, unpersuasively in my opinion.

  38. “The employers assert that it should make a difference that plaintiffs would likely respond in conversation that they were fired for being gay . . . and not because of sex. But conversational conventions do not control Title VII’s legal analysis, which asks simply whether sex is a but-for cause.”

    This seems like a really bad argument, especially for an advocate of original public meaning, and one that raises substantial due process considerations (and it’s not just the employers who would describe it that way, I’m willing to bet that’s the way the vast majority of the general population would describe it as well). For the first forty or fifty years that Title VII was in place, people generally recognized that it did not include sexual orientation discrimination. Now, thanks to some clever lawyering, it does. How were the employers supposed to know that it did when they did what they did?

    1. Are employers going to be retroactively liable?

      1. If not, wouldn’t these cases be moot because the plaintiffs couldn’t recover anything? And according to Gorsuch, he’s just doing a textualist analysis of what the law has always said so I’m not sure there’s even a question of retroactivity (but I’ve spent very little time thinking about retroactivity).

  39. It all plays into the evil practice of Congress ducking its responsibility and letting the courts clean up the mess.

    Members of Congress have figured out that any vote on any bill will be twisted in meaning for use in an attack ad. Therefore, the best way to get re-elected is to duck responsibility and never vote.

    Courts can and should refuse to hear cases that involve injustices that Congress should fix.

  40. I consider Alito’s Appendix C, detailing all federal statutes that prohibit discrimination on the basis of sex, to be a public service to anti-discrimination lawyers and their clients.

  41. What’s really remarkable about the opinion is that even its dissents are a far cry from the homophobia expressed by CJ Burger’s concurrence in Bowers v. Hardwick less than 40 years ago. Together with the main opinion, they give the lie to the claims of the gay left, and their Democratic handlers, that Bush and Trump’s appointees “would set back gay rights.” Kudos to the Log Cabin Republicans for never falling for that rant and supporting these Justices as they did through their trying confirmation process.

    1. It is remarkable. But idk if it’s a completely wrong claim. Are Gorsuch and Kavanaugh the same as James Ho or Kyle Duncan who went out of their way to explain why they aren’t using preferred pronouns? Or Justin Walker? Or Bill Pryor?

      I mean this opinion would probably go the other way if they were all on the panel.

    2. Herb,
      You are absolutely correct that this ruling did the exact opposite of setting back gay rights. And it’s well-worth point that out.
      It is also worth pointing out that Trump has had 2 open seats. One voted to dramatically curtail gay rights, and one voted to dramatically expand gay rights.
      So, it’s not as clear-cut as it would have been if both of Trump’s appointees had voted in one direction or the other. But, given that liberals are (I suspect, almost universally) shocked and pleased at today’s ruling, I’m gonna agree with you about most of your post, and I’ll put on my big boy pants and say that I was wrong about how Gorsuch would treat gays. I’ve been surprised sometimes by both liberal and conservative members of the court. Sometimes pleasant surprises and sometimes unpleasant ones. Today was a good day, from my perspective. Very very happy to have been so wrong about where I thought this case would land.

      1. “One voted to dramatically curtail gay rights”

        This here, this is what you call a bald-faced lie. One voted to maintain gay rights under Title VII they way they were unambiguously understood for the first forty or fifty years of its existence.

      2. Agree with you re: Gorsuch, his rather environmentally rabid mother notwithstanding. Thankfully, the simile remains “like father, like son.”
        I see that the Dems, former Clinton staffers mostly, along with an outfit calling itself “Demand Justice, a progressive [sic, et pace Messrs. LaFollette and T. Roosevelt] movement dedicated to fighting Donald Trump’s takeover of our courts,” and, of all people, Stephen King, the Barbara Cartland of horror, are already using a selective reading of Kavanaugh’s dissent to attack Sen. Susan Collins for supporting him in her excellent speech summarizing the lack of credible evidence against him while his nomination was being considered. Here’s a link to a good summary of their not-so-good efforts:
        https://www.foxnews.com/politics/kavanaugh-dissent-in-gay-rights-case-to-renew-criticisms-of-sen-collins

  42. So if I and my girlfriend are making love in the back of the shop where we work, and the boss catches us, he can’t fire us, because that’d be discrimination on the basis of sex, right?

    1. No. Wrong. But thanks for playing.

  43. 400 comments . . . nothing lathers up the Conspiracy’s fans like God, guns, and gays.

    Party like it’s 1955, clingers.

    1. The comments on this article are abnormally calm and rational compared to what we normally see.

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