Supreme Court

How Gorsuch Took a Page From Scalia in an LGBT Employment Discrimination Case

"Only the written word is the law, and all persons are entitled to its benefit."

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In their book Reading Law: The Interpretation of Legal Texts, the late Supreme Court justice Antonin Scalia and his co-author, the legal lexicographer Bryan Garner, made the case for textualism, a school of legal interpretation that they say "begins and ends with what the text says and fairly implies." According to Scalia and Garner, when a textualist judge is given the job of interpreting a statute, that judge must give the statute "the interpretation that would be given to [its] text by a reasonable reader, fully competent in the language, who seeks to understand what the text meant at its adoption, and who considers the purpose of the text but derives purpose from the words actually used."

Justice Scalia's unanimous opinion in Oncale v. Sundowner Offshore Services, Inc. (1998) provides a useful example of this sort of textualism in action. The case centered on Title VII of the Civil Rights Act of 1964, which made it unlawful for an employer to discriminate against a job applicant or employee "because of such individual's race, color, religion, sex, or national origin." Oncale asked whether same-sex employment discrimination (a male employee harassed by his male co-workers) qualified as employment discrimination "because of…sex" under Title VII.

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

Another example of Scalia-style textualism in action arrived today in Justice Neil Gorsuch's majority opinion in Bostock v. Clayton County, Georgia, a case that asked whether firing an employee for being gay or transgender violates Title VII's prohibition on employment discrimination "because of…sex."

Gorsuch held that it did. "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," he wrote. "Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids."

In Oncale, Scalia stressed that the text of Title VII mattered a great deal more in the end than did the intentions or expectations of the text's authors. Gorsuch, who repeatedly cited Oncale in his Bostock opinion, made the same point. Here's how Gorsuch put it:

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 basis of 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.

It might come as a surprise to find Gorsuch and Scalia playing such big roles in a Supreme Court decision that is being celebrated as a landmark liberal victory. But that misses the point of textualism. In the words of another self-described textualist, the veteran libertarian litigator and current Arizona Supreme Court Justice Clint Bolick, "true textualists will not always agree with the policy results of their decisions." But "personal policy preferences must yield to the rule of law or we have no rule of law."

Bolick then pointed to Scalia. "Although Justice Scalia was considered a conservative judge," Bolick observed, "he often quipped that he should be the darling of the criminal defense bar because he enforced the Bill of Rights guarantees protecting the rights of criminal defendants just as vigorously as protections such as the First and Second Amendments. And so a true textualist should."

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  1. “Only the written word is the law . . .”

    Somehow I don’t think this is a sentiment the Founding Fathers would have agreed with.

    1. I concur.

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    2. “Somehow I don’t think this is a sentiment the Founding Fathers would have agreed with.”

      I’d say that is self-evident.

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    3. Clearly they meant for “well-regulated militia” to be summarily ignored. It’s just there for decoration.

  2. “Libertarians” overjoyed as private property rights are further eroded by legal positivism and leftist cultural subversion

    1. You must bake the cake, bigot!

    2. There goes the ” But Gorsuch!” argument

      1. Just another swamp creature!

  3. “”Only the written word is the law,..”
    Uhm, bullshit!
    Taken in context, this is speaking entirely about the “written” statutory law, which is one, limited component of law.
    “when a textualist judge is given the job of interpreting a statute…”

    The lex non scripta in common law/constitutional law, is a timeless concept that predates the Supreme Courts existence.
    Of course they are talking about “civil” liberties and probably in the capacity of an article 1, administrative court, not in article 3 jurisdiction.
    Maybe they should all sit down and read Blackstone’s Commentaries again, if they ever read it in the first place.

  4. i suppose the football scene in Starship Troopers was entertaining enough.

      1. this is the most this you have ever been.

      2. …make it 20

  5. Except Bryan Garner, Scalia’s repeated co-author on legal writing and statutory interpretation, says Scalia would have disagreed with Gorsuch’s analysis.

    1. Scalia J. would have been with Alito J. in dissent because the nobody-ever-thought-it-meant-that line of reasoning carried a lot of weight with him.

      –@BryanAGarner’s tweet today.

      1. Both the worst thing and best thing IMO about Alito is his decisions rely on common sense readings of the law.

        I think its bad in the sense that the law generally requires more rigorous analysis and his legal arguments tend to be pretty weak. But its good in the sense that all good arguments generally need to fit with a common sense understanding of the issues at hand.

        So I usually tend to agree with his opinions, even if I think his arguments are lousy.

  6. The written word; “or sex”
    The ruling; “or sex, or sexual orientation, or desire to be a certain sex, or uncertain feelings”
    Yeah, right.

    1. Yep. We have gone from being legally protected for what you are to being protected for what you do.

      Totes in keeping with what was written.

      1. If you would not fire a man for doing something, then you cannot fire a woman for doing that same thing. That IS discrimination on the basis of sex, because you aren’t firing them for doing the thing, you are firing them for doing that thing *as a member of a certain sex*.

        That’s why it runs afoul of Title VII.

  7. I don’t think Gorsuch was wrong in his analysis, but it’s yet another example of why the CRA is such bad law. It prevents a private business owner from controlling every aspect of THEIR business.

    1. Correct. In a libertarian world, I would be allowed to sell children life-altering hormones without a parent’s approval or a doctor’s prescription.

      1. I too dream of a world overrun with mutant, genetically enhanced children, hunting down the previous, inferior generations amongst the rubble of a corrupt and decadent society.

    2. In the same sense that a herd of buffalo, out on the plains, know the fastest way out of a storm is to walk straight into the teeth of it, perhaps making bad law worse really is the libertarian thing to do.

  8. Nah. Its would be entirely rational to agree with Scalia that sexually harassing a male employee is harassing them because of their sex; but firing a gay employee isn’t firing them because of their sex.

    This issue was more or less addressed at length Alito’s dissent, where he makes it more or less about the intent of the employer. In this example, if you harass a male employee because he’s male, you have a conscious intent to harass him because he’s male. If you fire a gay employee, you don’t care what their sex is, but the fact that they’re gay. Alito disassembles the court’s “check box” analogy, where he makes the point that the employer doesn’t need to know the sex of a person to know that he’s gay. Thus, in that line of reasoning, there’s no discrimination based on ‘sex.’

    So, there isn’t an unavoidable straight line between Scalia and Gorsuch’s position, and I’m almost certain Scalia would have disagreed with Gorsuch.

    1. You use the term “sexually harrass” like it is something other than a legally defined thing.

  9. “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,”

    This is the Scotus version of the meme of the guy with the brain so big he’s sitting on it.

    1. What is not mentioned here is hostile work environment. This decision makes objecting to homosexuality or professing Christianity, Judism, or Islam in any meaningful way effectively the same thing as hurling a racial slur.

      The Court made being an open and practicing member of the three Abrahamic religions effectively illegal. Sure, you won’t go to jail, but you won’t be able to hold a job, run a school, or do anything outside maybe say something in the privacy of your own home, although that right is unlikely to last long in many places.

      But hey, the court made up for it by turning down cert on every single 2nd Amendment case and allowing the circuit courts to read that amendment out of the BOR while they read the free exercise clause out of it. The Libertarian moment indeed.

      1. Someone needs to tell BLM and antifa that all the shit they’re rioting over is approved by judges.

      2. There is nothing in the Court’s ruling that prohibits Abrahamic religions. First not all interpretations of these religions are opposed to homosexuality or alternate gender identities. Even within are secs that opposed their may be a large segments that disagrees and are accepting. A majority of Catholics favor homosexual marriage. Second even when they are opposed that does not immediately mean they endorse discrimination against the individual. I have heard Catholics say a gay man can be a priest if he abides by the oath of celibacy the same as a heterosexual man. Even when there is opposition that opposition is usually in certain area, so we don’t want a homosexual teaching in our school, they may not mind a homosexual doctor or nurse practicing at their hospital.

      3. This decision makes objecting to homosexuality or professing Christianity, Judism, or Islam in any meaningful way effectively the same thing as hurling a racial slur.

        Many Christian denominations don’t object to homosexuality; please stop peddling this myth.

        And the situation before the ruling was already that you couldn’t object to homosexuality in a meaningful way in the workplace, because if you did, almost all employers would already fire you.

      4. If I were a libertarian I’d be pissed by small-minded theocratic bigots constantly trying to appropriate my label.

      5. Your employer has the right to make you keep it in your pants at work. They don’t want a hostile work environment. If you are the kind of person who constantly makes racist or sexist or otherwise bigoted comments, why wouldn’t they fire you for it? That puts their business at risk, driving off customers and alienating and stressing out other employees.

        That’s a freedom of speech issue, and the courts have pretty consistently ruled that freedom of speech applies to the government, not individual parties like employers. Your employer can, in fact, fire you for being a Nazi.

        It’s not oppression to not be able to scream at gays at work. Your boss has a very good reason not to want you to do that, because it is bad for business and bad for your fellow employees.

      1. Yea that’s the one.

  10. Both Gorsuch and Alito have good arguments. I think Gorsuch is more generalizable and easier to explain. If it is ok for men to date women, it’s ok for women to date women.

    It’s why a clever company never gives a reason.

    1. The problem with Gorsuchs analysis is literally what Alito stated. Now we cant have sex based bathrooms. So women who have been raped cant have a private space because kicking a man out is different based on sex. Same with title IX and sports. There is no way to have an LPGA that denies men as participants now.

      1. There’s a possibility that when those cases come up, Gorsuch will side with conservatives, in that he’ll argue that the biological sex in those cases is materially relevant.

        Even if so, I think it’ll be a tortured argument… Specifically if he relies on something subjective like citing the discomfort of others — ie with bathrooms, or with the case for employing someone for bikini waxes. For instance, you aren’t allowed to discriminate against black people just because racists are discomfortable with black people. And having a physical organ associated with a particular sex is still an aspect of sex, and according to Gorsuch, so discriminating based on physical features would be discrimination.

        The only way a court can end up making those judgments on material relevancy is through actually understanding that the argument made in Bostock is overly broad and flawed for that reason.

      2. They said that bathrooms would need to be addressed separately, quite explicitly.

        The question is whether or not there is a bona fide reason to have separate, sex/gender segregated bathrooms, or if it is just a cultural tradition rooted in discrimination.

        Female sports leagues can exclude biological men because men are vastly stronger than women are; the purpose of the existence of female sports leagues is to give women a place where they can compete. There is a bona fide reason for it – without this gender segregation, professional female athletes would functionally cease to exist.

        1. “The question is whether or not there is a bona fide reason to have separate, sex/gender segregated bathrooms, or if it is just a cultural tradition rooted in discrimination.”

          Well that’s just going to be up to whoever writes the next opinion, isn’t it, since there’s no Big Book of Objective Reasons sitting out there to turn to the Bathroom Segregation entry.

    2. Both Gorsuch and Alito have good arguments. I think Gorsuch is more generalizable and easier to explain. If it is ok for men to date women, it’s ok for women to date women.

      Except for the circuitousness of the logic. The gender identity interpretation idiocy should only reinforce the redundancy: It’s illegal to fire a person for dating a person when you wouldn’t fire a different person for dating a person. If women are protected for being women, and they are/have been, then it’s already illegal to fire a woman for dating a woman when you wouldn’t fire a man for dating a woman.

      You have to assume the company was going to violate the CRA anyway and then infer intent from there, that their intent was specifically to violate the CRA.

      1. The law already makes it clear, or should, that it’s illegal to fire a woman for any behavior, sexual or otherwise, when you wouldn’t fire a man for the same behavior, sexual or otherwise. To assume employers fired someone for being gay or transgendered, you have to assume they were going to fire them on the basis of sex, as in gender, which is already illegal.

        His reading makes it exceptionally clear that it’s a case of all animals are equal but some animals are more equal than others.

  11. Gorsuch is going to be hell when it comes to food and drug law, whose statutory definitions, taken verbatim, would apply much more broadly than they’ve traditionally been read as meaning. For sure he’d’ve gone for tobacco products as medical devices, but also, if anybody litigated it that way, clothing would become cosmetics, weapons would become pesticides, etc.

  12. Scalia “often quipped that he should be the darling of the criminal defense bar because he enforced the Bill of Rights guarantees protecting the rights of criminal defendants just as vigorously as protections such as the First and Second Amendments.”

    Scalia voted to allow searches based on “evidence” obtained by allegedly pot-sniffing dogs and also allowed evidence obtained in violation of the “no knock” rule. He voted to allow federal “regulation” of marijuana via the interstate commerce clause. He frequently voted against 4th amendment rights for motorists as opposed to home owners. He voted in favor of the “right” of states to criminalize a wide variety of victimless crimes, including (of course) homosexuality, and even masturbation. He was the “darling” of the police far more than the defense bar.

    1. OK, I meant evidence obtained in violation of the “knock and announce” rule.

  13. I’m not sure the framers intended Congress to regulate private hiring-and-firing choices.

  14. I’ve always supported textualism as “Step One,” backed by originalism when the text isn’t abundantly and indisputably clear.

    The problem I have with Gorsuch’s analysis is that I don’t think the text was indisputably clear—it didn’t say sexual orientation or gender identity.

    His logic is arguably sound—but cloaking this as textualism seems to destroy the meaning of the term.

    1. his logic not sound in the slightest.. he reasons backwards

      1. I think it is mostly sound logic:

        If Person A does X, it’s fine. If Person B does X, they get fired.

        As such, the impermissibility of the conduct is based on a distinction between Persons A and B—and that difference is their gender.

        That mostly makes sense to me (though I think it is subject to arguments about what “X” is—he says it’s “sleeping with a male,” but I could define it as “sleeping with a same-sex partner.” Under my formulation, his argument struggles).

        So again, I think his logic is sound, though arguable.

        It’s just not textualism.

        1. If Person A does X, it’s fine. If Person B does X, they get fired.

          If Person A says the N-word, it’s fine. If Person B says the N-word, they get fired. Because A is black and B is white. You fired B on account of their race.

          If Person A joins a professional organization that is exclusively for women, it’s fine. If Person B joins a professional organization that is exclusively for men, they get fired. Because A is a woman and B is a man. You fired B on account of their sex.

          If Person A joins a professional organization, say, the Society of Black Engineers. If Person B joins a professional organization, say, the Society of White Engineers, they get fired. Because A is a black and B is a white. You fired B on account of their race.

          A man tries out for a WNBA team, but is not permitted to do so, because he is a man. You discriminated against him because of his sex.

          1. I mean, I think that firing people, regardless of race, for use of a racist epithet is entirely reasonable, and I think that if someone fired someone for using it and did not fire a member of another race for using it, then the person in question would have a case under Title VII for discrimination. I don’t think an all-or-nothing approach to the use of such terms is a bad idea for most companies to adopt.

            Likewise, I suspect that professional gender-segregated organizations will almost certainly be abolished under this ruling. I don’t think that’s a bad thing.

            On the other hand, the WNBA example would fall under the same thing as, say, casting actors – the WNBA only employs female athletes because if they did not, female athletes would not be able to compete at the top levels because men are much better than women at sports. The purpose is to create a separate league for people of lesser physical ability. It’s a bona fide occupational requirement, and it’s probably okay – though they’d probably examine with scrutiny reasons why there is such gender segregation.

            Notably, the top professional leagues – the NBA, NFL, MLB, and NHL – do not discriminate on the basis of sex. Female athletes are free to compete there. The fact that none are able to do so would be evidence that there is a bona fide reason for the WNBA’s existence, rather than mere bigotry against men.

            1. Except there are thousands (millions?) of men not good enough for the NBA, who would be able to join the WNBA. What about their Gorscuch-given right to make a living as a basketball player, as long as someone with lesser ability is getting paid to do so in a discriminatory league?

          2. I gave these exact examples yesterday, in the original thread.

            The logic is sound, and Gorsuch may very well be consistent in those examples. The other 5 almost certainly wouldn’t.

  15. A “reasonable reader, fully competent in the language, who seeks to understand what the text meant at its adoption, and who considers the purpose of the text but derives purpose from the words actually used” would conclude that “sex” refers to the biological sex of the person, nothing else.

    1. It’s strange how everyone has become a grammar Nazi and seem to be willing to bulldoze over the liberty of Americans to maintain the purity of definitions. It’s all very convincing.

      1. Tony, missing the point again.

        What you describe as an argument over semantics and definitions is really one advocating for the separation of powers—and suggesting that if Congress wanted Title VII to say “sexual orientation” they could have inserted that term at any point in the past 56 years.

    2. Except that’s exactly what Gorsuch is doing.

      If a man dates a woman, and that’s fine, but a woman who dates a woman gets fired for dating a woman, the reason for the discrimination was not the act (dating a woman) but the sex of the person who committed the act.

      Thus, it is discrimination on the basis of sex.

  16. “Only the written word is the law, and all persons are entitled to its benefit.”

    What “benefit”? Anti-discrimination laws hurt the people they are supposedly protecting: they make us harder to hire, lead to firing under pretext, force us to work for people who secretly hate us, deny our agency, and remove the economic penalty of bigotry and discrimination.

    Extension of the civil rights act and other non-discrimination laws to gays and lesbians is not a “benefit”, it’s a curse.

    1. Black people have seen massive economic gains as a direct result of the end of segregation.

      Moreover, by forcing people not to discriminate, it has greatly lowered the level of bigotry in society overall. Being a bigot makes you a criminal, and most people don’t want to be criminals, so…

  17. I feel like Gorsuch’s opinion reads wonderfully and makes a lot of sense… right up until you look at the cases that it’s supposedly ruling on. The rulings on the two homosexual cases are… fine in that they are a coherent legal philosophy that the word of the CRA protects against the harms the plaintiffs suffered. The CRA may be a piece of shit law but it is, in fact, the law.

    The transgender case is different though. Because Harris Funeral Homes & Gardens wasn’t intolerant of behavior from man that it would tolerate from a woman or vice versa. The business has a dress code. There is a dress code for men and a dress code for women. Aimee Stephans wasn’t canned for failing to do something only men or only women were required to do. Aimee Stephans was canned for failing to adhere to the dress code that Harris Funeral Homes & Gardens thought Aimee Stephans should be adhering to.

    If Aimee Stephans is a man, then the funeral home isn’t sexually harassing him by requiring him to dress like a man. If Aimee Stephans is a woman, then the funeral home might be sexually harassing her by requiring her to dress like a man. The case seems to take it at face value that Aimee Stephans is a woman with no deeper analysis given than the fact that Aimee Stephans says so. But I feel like that’s really dodging the point of the case. If funeral homes can be forced to accept that people with penises are women simply based on the desires of said penis owners then who else? Women’s sports are about to really go down the shitter.

    1. On the other hand, a liberty so important to the individual that it affects her daily existence is practically inconsequential for anyone else, so textualism or no, we can celebrate the victory for individual liberty.

      1. Whose liberty? Because as an employer this doesn’t feel terribly liberating. But hey, freedoms for me, cages for thee, right?

        1. I just think it’s silly when people talk about individual liberty all day and then it turns out they only care about the liberty of employers to control their fiefdom in any way they see fit, leaving the vast majority of us to spend most of our daylight hours with no rights at all.

          1. Is it not possible to care about both? Freedom works both ways. It has to work both ways or it’s not really freedom. The CRA is an awful law that is horribly anti freedom despite its good intentions. I don’t doubt for a moment that its architects and signers and everyone involved in its creation and execution since 1964 to today has done so with only the best intentions. But the road to hell is paved with good intentions and “freedom” at gunpoint isn’t real freedom, especially not for the smelly unfortunate you’ve got the gun pointed at. Freedom isn’t the right to get what you want. It’s the right to not be told what to do and there’s only one party (well, three parties, but all the defendants) in this case that’s being told what to do.

            Call it noble, call it good, call it righteous or just, just don’t call it freedom.

            1. But it clearly is an increase of freedom for employees, who in theory don’t have to worry about losing their livelihood because of how they were born. Sure, it definitely decreases the liberty of employers, but we make such trades all the time; ideally we are sacrificing a trivial or unhelpful liberty (the right to discriminate) for a meaningful one that makes society better (the right not to be fired because of an irrelevant personal trait). Again, the default libertarian position is to give all the rights, even trivial ones, to employers at the expense of employees and slapping a bumper sticker on the situation that reads “liberty!” These, you understand, are slogans employed for the benefit of powerful interests over the interests of the less powerful. That’s the difference between libertarianism and liberalism. One cares about how most actual human beings live.

              It is social engineering, if you like, but that goes for any law that affects people’s behavior. It’s quite likely that without the incentives provided by laws like the CRA, our society would be much further behind on tolerance of minorities.

              1. There is no right to be employed by someone else. Your argument fails on that point alone.

              2. Libertarians don’t favor rights of employers over employees. The libertarian starting point is basically that all exchanges of goods and services must be voluntary by all parties, and any party has the right to not exchange goods and services to anyone for any reason.

                An employee has the right to not work for an employer for really awful and bigoted reasons too.

                But as far as moving closer to a more libertarian society, I’d rather be more strategic. Civil rights laws are not very high on my list of horribles.

                And to answer your earlier question, yes, it does suck that bigots can often be the loudest proponents of certain libertarian LEGAL ideals. But that’s not a problem with libertarianism. It’s a consequence of liberty. Libertarianism is neither bigoted nor tolerant. It’s just about what the government can and can’t force people to do.

                Ultimately I do believe that social change is moving in the right direction through empathy and wider spread knowledge, and that forced tolerance doesn’t work nearly as well. But since government itself has been so overwhelmingly responsible for coercive bigotry, it doesn’t bother me too much when it overcorrects for awhile. In theory, I don’t like anti-libertarian law over the private sector, but it’s not the hill for libertarians to die on right now, as there is a battle of hearts and minds to be won.

                And given that these civil rights laws DO exist, I applaud the decision to interpret them mechanically and correctly, as I believe this decision has.

                1. If this meaning was somehow baked into the law, then why did Congress feel that they needed to modify the law on multiple occasions? Why didn’t SCOTUS just kick the can back to Congress and say if “sex” is supposed to mean “sex, sexual orientation, transgender status, and anything else we can think it might mean” then Congress is free to add that text into the law?

                  I don’t think people should be fired for being gay or trans, but I don’t think this was textualism either. And I for damn sure don’t like that it opens up yet another can of worms to deal with whenever you are trying to hire or fire someone that will get you sued even when you had no anti-gay discrimination in your mind or heart at the time.

                  1. It’s technically baked into the law, but nit exactly the way you describe it. It’s still about discrimination that comes down to biological sex.

                    If a biological male can identify as a man and not get fired, then a biological female who identifies as a man should not be fired either. You’re still discriminating based on biological sex.

                    Same goes for sexual attraction. If a man can be attracted to women and not get fired for it, then you can’t fire a woman for being attracted to women.

                    It’s already baked into the text.

                    If Congress wants to go back and make exclusions to the law, they can do that.

              3. It is social engineering, if you like, but that goes for any law that affects people’s behavior. It’s quite likely that without the incentives provided by laws like the CRA, our society would be much further behind on tolerance of minorities.

                Considering that the CRA was passed by a congress of people elected by the general population it seems clear to me that it was codifying a social standard that already existed in 1964. There was nothing to engineer. The majority was already in favor of equal treatment. It just came down to bringing down the hammer on the <49% of the country who were pro-jerk. What you are arguing here is that it is fundamentally right and good for the government to actively punish people that the majority doesn't like for whatever reason, to deprive them of their property and agency, to make crimes of their beliefs, and to fine, imprison, and ultimately kill those who will not "get with the program". This is everything libertarians (should) oppose. It is utterly anathema to their core fundamental beliefs. We do not want to live in a world where the government (i.e. the will of society) can attack and destroy the "bad" people. It requires that someone decides who the "bad" people are that way lies tyranny.

        2. All this means is that men and women can’t have different dress codes. It doesn’t abolish the legality of dress codes, it just means you cannot have different ones for men and women.

          Pick something and stick to it. Either everyone can wear pants and dresses, or everyone has to wear the same thing.

    2. This would suggest that male/female specific dress codes are probably a violation of Title VII.

      So men and women probably will have to have the same dress code.

      I don’t see any problem with this, and it’s not really a big deal. You either say it’s okay for both men and women to wear either skirts/dresses or pants, or you just say that everyone has to wear pants.

      I’ve worked at places that have required everyone to wear long pants for safety reasons, so this is hardly beyond the ken.

  18. so, in the end Gorsuch the classical liberal fails as well….we just need more like Thomas and Alito

  19. In a 2005 article published by National Review, Gorsuch argued that “American liberals have become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda” and that they are “failing to reach out and persuade the public”. Gorsuch wrote that, in doing so, American liberals are circumventing the democratic process on issues like gay marriage, school vouchers, and assisted suicide, and this has led to a compromised judiciary, which is no longer independent. Gorsuch wrote that American liberals’ “overweening addiction” to using the courts for social debate is “bad for the nation and bad for the judiciary”

    1. Didn’t take him long to change his mind did it?

      1. How is this changing his mind? His preference might still be for liberals to first try and make changes through legislation. But as a judge it’s still his job to interpret the literal meaning of the laws that come before him. So he does that.

        1. which he did not do

  20. LGBT and all others are always wellcome at the best platform for sex contacts – Sextreffen in Münster

  21. This ruling affirms what I personally have believed and asserted for some time. I am indifferent on gay and trans issues but this is a matter of freedom.
    This is the kind of truly bipartisan, freedom-loving, liberty-preserving ruling that all libertarians and lovers of freedom everywhere should celebrate!

    1. This is a horrible ruling for legal reasons. If we wanted a law that forbid discrimination of people who are sexually attracted to those of the same sex, then we should have passed one. This law was never intended to have that meaning.

      But of course, you clearly believe that the ends justify the means.

  22. This ruling is garbage and the justification for it as “texualism” is fraudulent. This ruling exposes that the “conservative” justices that voted for it have misrepresented themselves to become justices.

    When this law was passed, a person’s “sex” was understood to mean male or female. Homosexual was not a “sex” but rather an adjective applied to the actual sex. This would have appeared as homosexual male, homosexual female, gay man, or gay woman.

    Scalia’s opinion was still consistent with the original meaning as it still concerned discrimination against a man because he was a man. The fact that the discriminators were male also was not germane.

    The Gorsuch opinion is not remotely consistent with the original intent, or with the Scalia precedent. Scalia maintained a consistent meaning of the word sex, from the passage of the law to present time. To reach his opinion Gorsuch had to redefine the original meaning of sex in the law.

    This ruling is judicial activism wrapped in a thin disguise of textualism.

    This does not mean that I am in favor of firing people because they are gay or whatever. But if we are have a law that makes it illegal we should pass one, not reinvent the meaning of a existing law.

    1. This ruling is still consistent with the word “sex” in the law.

      if you fire someone for something that they would not be fired for if they were the opposite biological sex, then it is illegal.

      If a biological male identifies as a man he isn’t fired. So if a biological female identifies as a man, you can’t fire her for that either.

      If a man isn’t fired for being attracted to women, you can’t fire a woman for being attracted to women.

      It does not change the definition of “sex” at all. This is just the literal interpretation of sex discrimination.

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      2. The problem is how you define the conduct.

        You adopt Gorsuch’s approach—the conduct is characterized as “being attracted to women.” That lets you say: “If it’s fine for a man, it has to be fine for a woman—otherwise it’s sex discrimination.”

        What if I changed the description of the conduct at issue to “dating someone of the same sex”—and let us be honest—that’s the real objection in these cases. Under that formulation, both men and women would be subject to the same restriction—so it’s hard to say it’s sex discrimination. It’s just discrimination based on sexual orientation, which isn’t in the statute.

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