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Senator Hawley: Bostock "represents the end of the conservative legal movement"

"If we've been fighting for originalism and textualism and this is the result of that, then I have to say it turns out we haven't been fighting for very much"

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Senator Josh Hawley of Missouri delivered an impassioned and important speech on textualism, originalism, and the conservative legal movement.

Here is an excerpt:

This decision, this Bostock case and the majority who wrote it, it represents the end of something. It represents the end of the conservative legal movement or the conservative legal project as we know it. After Bostock, that effort as we know it, as it has existed up to now, it's over. And I say this because if textualism and originalism gives you this decision, if you can invoke textualism and originalism in order to reach a decision, an outcome that fundamentally changes the scope and meaning and application of statutory law, then textualism and originalism and all of those phrases don't mean much at all. If those are the things we were fighting for, that's what I thought we were fighting for, those of us who call ourselves legal conservatives, if we've been fighting for originalism and textualism and this is the result of that, then I have to say it turns out we haven't been fighting for very much or maybe we've been fighting for quite a lot but it's been exactly the opposite of what we thought we were fighting for. Now, this is a very significant decision and it marks a turning point for every conservative and it marks a turning point for the legal conservative movement.

You should watch the entire speech.

Hawley expressed many of concerns I have heard over the past 24 hours since Blue Monday (my nickname for Monday, June 15 at the Supreme Court). These remarks do not come from an outsider, but from an insider. Both Josh Hawley, and his wife Erin, were formerly law professors. (We all filed an amicus brief in support of the Little Sisters of the Poor). They both clerked for Chief Justice Roberts, and were regular at FedSoc events. Hawley brings a lot of credibility to this debate.

Hawley's words need to be carefully considered.

Update: Hawley has published his remarks at Public Discourse.

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110 responses to “Senator Hawley: Bostock "represents the end of the conservative legal movement"

  1. So Mr Hawley only believes in textualism so long as it produces the desired outcome?

    This sounds more like some “textualists” and conservative are finally admitting that they were merely using “Textualism” as an ex post facto justification for their preferred outcomes rather than legitimately held judicial principle.

    I agree — people should pay attention to this because Hawley is essentially admitting that a large portion of the conservative legal community are disingenuous and outcome-based rather than following legal principles to their logical conclusion

    1. Textualism did not require this outcome. Not by a long shot.

      1. “The precedents set here will have major implications… This will mean that legislators actually won’t know what they are voting to pass—because words might change cultural meaning dramatically between the time of passage and some future court case,” writes Russell Moore, president of the Ethics and Religious Liberty Commission.
        https://thefederalist.com/2020/06/16/scotuss-transgender-ruling-firebombs-the-constitution/

        1. The Federalist is…um.
          And “Russell D. Moore is an American evangelical theologian, ethicist, and preacher.”

          Stop posting nonsense.

          1. Was hoping you would complete that thought beyond the ad hominem and after the “um.” Have seen you do better and suspect you read/comment here partly because you care more for reason than identity.

            1. Guy who is a priest not a lawyer is talking about the difficulties for the legal profession.

              That’s not ad hominem, that’s taking an expertise that is not your own.

              Of course, dude also gets the decision wrong. Gorsuch updated no meanings to modern understanding, cultural or otherwise.

          2. So legislatures will know the implications of what they pass, for decades to come, and are well aware of hiding surprises that would get them run out of town on a rail in their contemporaneous era?

            While increasing personal freedom is a good thing, politicians sneaking things through isn’t, historically.

            1. Textualism like this isn’t something liberals are into, chief. This is a dumb bed y’all made.

      2. Gorsuch’s school of textualism sure does.

        This is a doctrinal decision. You can attack the doctrine as a bad one, but you cannot pretend it does not exist.

        Or, rather, you can, but it reveals a lot about what you really want from the Court, which is exactly what you accuse liberals of wanting.

        1. Original public meaning. That is what textualism is supposed to lead to.

          1. No; textualism is a positivist methodology that is not supposed to *lead to anything*.

            1. If you didn’t want a procedure to lead to anything, you’d use some form of random choice. Remember, the general idea is that the law has a meaning, independent of the desires of the people reading it. And a procedure for interpreting the law is supposed to converge on that meaning, if you’re an originalist.

              Textualism is supposed to lead to original public understanding on the basis that the law isn’t written in a secret code, but instead to intelligibly transmit a particular meaning to contemporary readers. Non-contemporary readers have to put themselves in the position of the contemporary readers to avoid mistaking this meaning, THAT is originalism.

              Admittedly, legislators often being the scum that they are, they will sometimes try to write the law in secret code, so as to mislead the public. But I’m not sure, normatively speaking, an interpretive methodology should seek to facilitate such motives.

              1. Brett, I’ve seen you argue that if the legislature drafts something badly courts should enforce it as is in order to assure they are more careful with their drafting in the future.
                I think that’s dumb myself, but it’s the past idea of what textualism should lead to; it contains the positivist idea that hewing to the text is a good *in and of itself*

                Now you are suddenly into public understanding. That’s new, and textualism is a dumb way to get there. The way to make original public understanding the standard is to make original public understanding the standard.

          2. Public meaning isn’t public understanding, though. These words had the same meaning back then, they just didn’t intend those words to lead to this result.

  2. I think it was a bridge too far — and that the entire legal establishment is going to lose respect in what is already a populist era. After all, even kindergarten children know the difference between boys & girls: https://www.youtube.com/watch?v=I_qdLp5lfvw

    The decision was asinine and Joe Sixpack can understand that, and throw in all the street protests, which most people are assuming (correctly) have evolved out of academia and I could see a re-elected Donald Trump quoting Andrew Jackson’s famous line of “John Marshal has made his decision, now let’s see him enforce it.”

    But lawyers, law professors, and/or judges being respected as inherent fonts of knowledge — not when a 10 year old can do a better job understanding what a word means than six purportedly learned justices of our purportedly highest court.

    And this will hit critical mass, and quickly, on the Tranny Athlete issue — if we are allowed to call them that, and if they are allowed to participate as female athletes. (That’d a pending dispute in Connecticut right now on the High School level.)

    In higher ed, this includes Title IX’s mandate of scholarships for female athletes, so that’s going to go bang real fast, regardless of what the schools do.

    1. In other words, the AAUW is gonna sue if the XY women get “women’s” scholarships — and the XY women will if they don’t.

      A photo of the “women” who won 1st & 2nd in the CT States is here:
      https://www.washingtontimes.com/news/2019/feb/24/terry-miller-andraya-yearwood-transgender-sprinter/

      And Massachusetts will issue a new birth certificate in your desired sex, as well as M/F/X options on driver’s licenses.

      1. “She shouldn’t be running, they say, not against girls.”

        That’s a standard aspect of coverage of this issue that’s really pissing me off. No, “they” are not saying “she” shouldn’t be running against girls. They’re saying HE shouldn’t be running against girls, because they’re not playing along with the joke that he’s also a girl.

        1. Still confused by the concept of gender, I see.

    2. Ed, the people this decision tick off never cared about the judiciary except as a means to power.

      The people in these comments caterwauling have steadily posted about how much they hate the judiciary, and will continue to do so.

      The needle has not moved. Your position has not changed, and neither has ML and BB and Tarkin. You’re just repeating what you always say, but angrier for a while. No one new is going along with you.

      McConnell is doing more to undermine the judiciary than this dumb decision, by so nakedly grabbing partisan judicial power, he’s making liberals question the integrity of the Court.
      That’s new, not making y’all rageaholics more ragey for a bit.

      1. People should question the integrity of the court.

        1. You are a radical, so of course you think that.

          1. Extremism in the defense of liberty is no vice. And moderation in the pursuit of justice is no virtue.

          2. Americans should question the integrity of the courts. And the legiature. And the executive branch. It’s in our DNA.

            1. Maybe as you understand it Krayt, but not as Ed does.
              Read his post, he’s not talking about integrity, he’s talking about legitimacy of the judiciary as a thing.

  3. This is the same Josh Hawley who is so well-spoken on Section 230 of the CDA, right?

    1. /sarcasm, in case you missed it.

      1. Bill,
        No, I think we all caught it the first time 🙂

  4. Spot on! Great speech.

  5. There are two issues here.

    First, academic originalism is being burrowed into and hollowed out from within by people who are actually living constitutionalists, such as Jack Balkin.

    Second, being known to be a principled originalist pretty much guarantees you won’t end up on the bench, because politicians determine who ends up on the bench, and politicians, regardless of what they sometimes have to say when voters are listening, do NOT want to be forced to live within the Constitution.

    If originalism is ever to prevail, both these problems will have to be dealt with. Academic originalists will have to better police their own numbers, and, despite the natural academic tendency to be open to any argument, actually reject with the contempt it deserves any living constitutionalist who tries to claim to be a member of their ranks. And we’re going to have to somehow, (Convention!) alter the Constitution so the judges are not chosen by people whose interests lie in their subverting the Constitution.

    I don’t see either of these as likely, so in all likelihood the Constitution’s days are numbered. Let’s at least leave a clear record of how and why it died, so that future generations can make their own mistakes, instead of repeating ours.

    1. Yes, but it should be no surprise. If you believe in a dynamic interpretation of the Constitution, then dynamic interpretation of statutes is easier. The problem is that the Court has removed an important, self-imposed restriction on its own power. Legislators will have a hard time voting on legislation because they can’t know how future courts will interpret the language. The legislature will have to try and create a very specific legislative history stating what they are, and are not, meaning with the law. But even then, a future court could say that the meaning of the words has changed and the court is then free to do what it wants.
      Maybe the best thing is for Congress to pass no new laws at all. There is going to be a flood of new litigation because of this. The lower courts will bear most of the burden, but we have just entered an age of great uncertainty.

      1. ” Legislators will have a hard time voting on legislation because they can’t know how future courts will interpret the language.”

        Legislators have been running away from voting on legislation for at least a decade.

    2. One could argue that the Constitution’s days are not numbered, but that they are long gone and have been for some time!

      And that we are living under a lawless State of untethered force, one not remotely run by any elected representative, but only by a judicial oligarchy and unelected bureaucrats!!

      1. Some of us hoped (hope) Trump can fix that.

        1. Look at what McConnell is doing. Basically brought confirmation of nominees to a halt, but keeping the Senate in purely nominal “session” to keep Trump from making any recess appointments.

          Congressional Republicans are now confident enough of Trump losing that they’ve jumped ship and are planning for the post-Trump future, ideally with them in the minority. (Not as much graft, but much less work.)

          1. Nah that’s not it. The odds are still more likely than not that Trump wins again. The point is that just getting “your guy” installed into an irreparably broken system is not the way.

        2. You’ve got to be kidding Dr Ed! Maybe if we just vote harder and give him another four years and ANOTHER couple of justices, everything will be fixed right?!

    3. The constitution died in a case involving statutory interpretation? I think all the sackcloth, ashes, wailing, and, particularly, the gnashing of teeth is just too much. Calm down. You’re gonna get the vapors.

      (This is not just for Brett, or Josh, or the other Josh, it’s for all of them plus basically every commenter on here, the lot of whom appear to be suffering from some weird form of hysteria. To get past “sex” meaning “sex” and then acknowledging all the consequences of a prohibition on “sex” meaning “sex”, you really have to get into the minds of the several hundred legislators and the President who signed the law. Seriously? And how do you do this head count, assuming you can read minds, many of which no longer exist? If one person who voted for it thought sex meant sex in the sense that the prohibition on discrimination applies, where biological sex of the employee was the but-for factor in a firing, would that be enough to calm you? Or are you trying to get to a majority who you “know” felt one way or the other? It is rare that a majority of legislators know and understand the consequences of the laws they vote on, so maybe it’s just best to go with the very straightforward text in this statute.)

      Ya’ll are choosing a strange hill to claim the Constitution died on.

      1. Well, the case involves gays. It’s not as rage-inducing an issue as is abortion rights, but it’s pretty damn close for a decent amount of far-right commentators here. So, not the absolute best hill to die on. But maybe the second-best? (From their perspective.)

      2. This decision does not make the top 100 list of events regarding the death of the Constitution. As far as the death of the modern “conservative legal movement” however Josh is probably right.

  6. Hey, the arc of history bends towards justice. Whatever the judicial philosophy expressed, i can at least enjoy the sweet, sweet tears of those people who think employers should be able to fire employees for being gay or trans. Anyway, this wasn’t a matter of constitutional rights, just interpretation of a law. If Congress and the president want bigotry back, they can amend Title VII as they please.

    As for the OMGing about sports, all that’s needed is to divide competition groups by weight, height, strength, or whatever other categories serve to divide athletes by skill level, and let those levels compete among themselves. We have boxing weight classes, major and minor leagues, pro-am tournaments, and such already. Dividing sports by sex is a much cruder way to achieve such separation.

    1. Reality 101 — a lot more LBGTQ are going to get fired NOW — as this is an issue that 99% of people didn’t used to care about.

      We’ll see some very creative BFOQs written as well.

      1. So, because presumably you believe other people who think like you will react like you, you believe that employers, in an act of retribution against Gorsuch and the LBGTQ community generally, will fire gay people and lesbians they otherwise would not have fired? Definitely not the moral majority, eh?

    2. Hawley could have introduced legislation amending Title VII to reverse the case this morning. Instead, he chose to make a speech for his 2024 presidential campaign. He doesn’t actually care about any of this; he just sees it as a path to higher office.

      1. Exactly this.

        1. Obama and Pelosi could’ve introduced legislation…and never seemed to really push it.

          1. And the legislation would have made it:

            “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin and this time we really mean it!

            1. No, it would have said,

              “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, sexual orientation, or national origin.”

              Like many of the analogous state provisions do.

              1. Yep. Would’ve been clear then.

                Was never pushed…

                1. If person does act X, and the employer fires the for act X, but wouldn’t fire them for act X if they had different dangly bits, they necessarily were fired because of their sex (i.e., the particulars of their dangly bits).

                  The current language of Title VII is only ambiguous if you use it to me something other than what the Supreme Court interpreted it to mean. That’s the whole thrust of any reasonable argument against the Bostock decision:

                  Congress didn’t mean for the language to result in the practical consequences to which the plain meaning of the language leads.

                  But that’s something other than textualism.

                  And, no, “sexual orientation” just gets to one thing that a person might do in which an employer decides their dangly bits “matter”. That doesn’t reach discrimination against transgender people. Which kind of gets to the point, you want the statute to address every conceivable thing in which a person’s sex might make a difference in how an employer evaluates their conduct, but that burden of specifying the things reached by the law, if every such thing isn’t intended to be forbidden, is on those who have a list of things they want to be excepted from the general rule that is easily stated by: “it shall be unlawful to discriminate based on sex.”

                  I guess you could say: “it shall be unlawful to discriminate based on motherhood, pregnancy, traditional gender roles…” Oops, you are going to have to be more specific, because traditional gender roles includes many of the things you don’t want people to be discriminated against for doing, but also many things that you, apparently, are comfortable with them being discriminated against for doing.

                  Basically, if you want the law to say sex does matter, but only matters in certain circumstances, then say it. Otherwise, the law says you have to treat people the same regardless of their sex.

                  1. The counter argument is “because for sex” does not mean, or at least does not unambiguously mean, a but-for cause standard.

                    1. Does not necessarily mean.

                      It is reasonable, I guess, to ask whether “but-for” is the standard used for the very same language with regard to race, color, religion, and/or national origin. Is there a case where someone would not have been fired but-for their race, color, religion, or national origin, yet the firing doesn’t violate Title VII?

                      If a reasonable hypo can be produced, they at least make it to ambiguity. If no such hypo can be produced, I think the but-for standard, while not mandated by the language, is easily the most natural reading.

                      The only examples I can think of are jobs that require working on Saturdays (or for others Sundays) and their religion strictly prohibits working on that day and there is no accommodation possible in that particular job. Or, for example, perhaps being a professional wine taster…..but it still isn’t the religion that is the but-for cause, it is the “not working Saturdays” or “not drinking wine” that is the but-for cause.

                      The analogy to those examples in the sexual orientation or transgender situation would have to be something that gay or lesbian people just won’t or can’t do and it is essential to some job. Any such job pretty much has to involve the sexual organs, at least those are the only conceivable examples that come to mind, and most of those jobs aren’t legal in the United States.

                      So, it seems to me, but-for is pretty much the standard for all these categories. Granted, maybe but-for is an objective way of getting to the subjective “because of” standard. But the latter is clearly implied and the former seems to be nearly irrefutable evidence of the latter except, again, where the job simply requires person to X and trait A does not permit it. Examples can be found for religion (and that still turns on the choice of the religious person, a religious Jew who nonetheless chooses to work Saturdays certainly could not be fired just because many Jews don’t; or Christians on Sundays; or Muslims drinking wine, etc.).

                      There is a lot of work to be done to get away from the but-for standard without treating identical language for race/religion differently than the same language for sex.

                    2. Another counter argument is the but-for cause standard wasn’t properly applied by Gorsuch. As he put it, the

                      but-for test directs us to change one thing at a time (my emphasis) and see if the outcome changes. If it does, we have found a but-for cause

                      . But, perhaps Gorsuch changed two things in his analysis: sex and sexual orientation. Namely, he concluded the employee would not have been fired had he been female and attracted to men. But that analysis also changed the employee’s sexual orientation. Had Gorsuch instead assumed only sex changed, the hypothetical female employee would be gay, and she still would have been fired.

          2. Pelosi did introduce legislation. The Equality Act. It passed the House only to die in the Senate.

      2. “Hawley could have introduced legislation amending Title VII to reverse the case this morning. Instead . . . ”

        It’s as if you did not even watch/read the words you are commenting on. Hawley’s only stated objection was to legislation being passed by a superlegislature that is supposed to be a court. He said nothing about the policy result.

        1. Then he (unlike us) has two options. First he can introduce legislation reverting this specific statute to where it was. Second, he could introduce legislation regulating or limiting SCOTUS’s appellate over the civil rights act (or any other statute).

          1. Obergefell was also legislating from the bench.

            I don’t think there is any option, any way to stop this kind of thing. It’s all subjective in the end. That’s why it was supposed to be state governments and their judges deciding. Federal judges were supposed to have no jurisdiction in state matters. Now it’s the opposite and federal judges have virtually unlimited jurisdiction over everything.

  7. Glad to have you and Hawley on record confirming that it’s not, and never has been, about proper methods of statutory interpretation or constitutional construction, but only ever about proper outcomes.

    1. Reinterpreting the text to mean something that nobody ever thought it meant, and which it does not unambiguously state, is not the proper method of anything.

      1. Gorsuch argues that being fired “because of sex” had the unambiguous ordinary public meaning in 1964 that you would not have been fired had you been the opposite biological sex.

        1. It’s just that nobody realized it at the time. Or for the next 50 years. And the employer honestly though he was discriminating against gays, not men or women.

          1. Gorsuch didn’t analyze the text based on how the text should be applied to any specific case. No perhaps textualism should take into account specific applications to avoid what appear to be absurd results, but it is clear Gorsuch doesn’t think so. He thinks the text should speak for itself.

            1. It’s just that nobody realized it at the time. Or for the next 50 years. And the employer honestly though he was discriminating against gays, not men or women.

              How were the employers supposed to know that they were discriminating against men when they thought they were discriminating against gay people instead? The EEOC didn’t think so. All of the states that passed laws adding protection against sexual orientation discrimination on top of existing laws against sex discrimination didn’t think so. Congress, which tried to pass laws adding sexual orientation discrimination to the protections of Title VII didn’t think so. Bill Clinton didn’t think so when he signed Don’t Ask, Don’t Tell and the Defense of Marriage Act into law. The people who sued to get Don’t Ask, Don’t Tell struck down didn’t think so. Barak Obama didn’t think so when he signed the bill ending Don’t Ask, Don’t Tell. None of those people knew how to read a statute? That’s a whole lot of piss-poor lawyers. Where are all of the people, over the course of 56 years, whose plain-text reading of Title VII says it prohibits discrimination based on sexual orientation?

              It’s trivially easy to discriminate against someone based on their sexual orientation without knowing their sex, and it’s pure sophistry to insist that somehow you are still discriminating against them based on their sex. Gorsuch didn’t let the text speak for itself. Instead, he adopted the plaintiffs’ framing, which gave him logical cover for the decision even though it’s not the better framing. It doesn’t match the way ordinary people talk about the events in question. It can’t account for discrimination against bisexual or asexual people.

              Everyone seems to admit that Congress had no intention of prohibiting sexual orientation discrimination in employment when they passed Title VII. How should they have written the statute to avoid this issue? Why would they have felt the need to add “except on the basis of sexual orientation” after sex?

              1. You keep applying the text to a specific case (sexual orientation) which Gorsuch argues isn’t permitted when the text is unambiguous, even if in 1964 no one thought the application should be covered by the text,

                It’s trivially easy to discriminate against someone based on their sexual orientation without knowing their sex, and it’s pure sophistry to insist that somehow you are still discriminating against them based on their sex.

                If “because of sex” unambiguously means but-for being the biological sex you are, you wouldn’t have been fired, then you don’t need to know the person’s biological sex in order discriminate against them because of sex.

                1. “You keep applying the text to a specific case (sexual orientation) which Gorsuch argues isn’t permitted when the text is unambiguous, even if in 1964 no one thought the application should be covered by the text”

                  And I’m arguing that he is wrong.

                  “If “because of sex” unambiguously means but-for being the biological sex you are, you wouldn’t have been fired, then you don’t need to know the person’s biological sex in order discriminate against them because of sex.”

                  This is pure sophistry.

                  What reason is there to believe that a gay man wouldn’t have been a gay woman who would have still been fired? And I’m still waiting for someone to explain how this opinion prevents discrimination against bisexuals or asexuals.

                  1. Regarding expected application, Bryan Garner (who coauthored The Interpretation of Legal Textswith Scalia) says Scalia agrees with you. But, Garner agrees with Gorsuch. It’s two schools of textualism.

                    What reason is there to believe that a gay man wouldn’t have been a gay woman who would have still been fired?

                    I agree with you the proper but-for comparison likely should have been a gay woman, changing only the employee’s sex. Gorsuch changed the employee’s sex and sexual orientation (a gay man was compared to a straight woman), which does not strike me as correct. (but as an aside, that is separate argument from not knowing the sex of the employee, which I think Gorsuch got correct without sophistry).

                    And I’m still waiting for someone to explain how this opinion prevents discrimination against bisexuals or asexuals.

                    I need a clarification on the facts. Why exactly as the person fired? Because they were a bisexual or asexual? Or, because they were in a relationship with a person of the same sex? Or, some other conduct or belief?

                    1. “Regarding expected application, Bryan Garner (who coauthored The Interpretation of Legal Textswith Scalia) says Scalia agrees with you. But, Garner agrees with Gorsuch. It’s two schools of textualism.”

                      It’s not expected application. It’s the original meaning. Turning sexual orientation discrimination into sexual discrimination takes lawyering, not reading.

                      As an aside, I strongly suspect that the gay holding (probably the transgender holding as well, but I haven’t thought enough about that issue to have any opinion) follows as a logical extension of a long line of case that have expanded what is recognized as being protected by Title VII. I just don’t think it was actually a really textualist decision.

                      “I agree with you the proper but-for comparison likely should have been a gay woman, changing only the employee’s sex.

                      But in that case, there is no but for discrimination based on sex.

                      “Gorsuch changed the employee’s sex and sexual orientation (a gay man was compared to a straight woman), which does not strike me as correct.”

                      Of course, Gorsuch, no doubt, would respond that it’s you (and I) who have changed two things, not him. You changed the sex of the employee and the sex of the person the employee was attracted to. He only explicitly changed the sex of the employee. That doing so changes the employee from gay to straight is of no moment (which I could see bothering some gay people).

                      It all comes down to the initial framing (which is another reason I can’t get too upset about it–win the framing, win the case isn’t exactly a new phenomena). Which is why examining which framing works best for other orientations as well.

                      “I need a clarification on the facts. Why exactly as the person fired? Because they were a bisexual or asexual? Or, because they were in a relationship with a person of the same sex? Or, some other conduct or belief?”

                      A bisexual (or asexual) person fired because the employer thinks that bisexuality (or asexuality) is wrong. There are ample examples of discrimination against bisexuals by both gay and straight people specifically for being bisexual rather than choosing one side or the other. I suspect there has been some discrimination against asexual people as well, even if it seems like that would be much harder for the employers to suss out.

                    2. It’s not expected application. It’s the original meaning

                      Gorsuch/Garner and Alito/Scalia are debating what role (if any) that fact no one thought sexual orientation was covered by Title VII in 1964 has in determining the original meaning of “discriminating because of sex.”

                      But in that case, there is no but for discrimination based on sex.

                      In the end (for different reasons than yours), I am not persuaded by Gorsuch’s argument because the but-for cause standard was not met. On the other hand, it’s probably the right result based on the prohibition against sex stereotyping from Price Waterhouse.

                      A bisexual (or asexual) person fired because the employer thinks that bisexuality (or asexuality) is wrong

                      At first blush, that seems legal under Gorsuch’s logic because if you substitute a male (female) employee for the fired female (male) employee, they still would be fired.

              2. Don’t Ask, Don’t Tell is irrelevant. Title VII doesn’t cover the military.

                1. The statute does. Judges who don’t follow the statutes say it doesn’t.

        2. “Gorsuch argues” may be our first hint that something is wrong here. Parties argue, judges are not supposed to argue.

          Gorsuch is wrong but the point here is that, no, contrary to Uvagrads blather, it is about proper methods and jurisprudence.

          1. Judges necessarily make arguments in their opinions. What did Gorsuch get wrong?

            1. Simply stated, if someone isn’t hired because of sexual orientation, that doesn’t mean it was because of their sex, according to the original textual meaning of “because of sex.”

              If I may copy my own comment from the other thread:

              I say “reason” instead of cause, because proximate and but-for/actual causation were really creatures of tort law. From law school memory, you need to show that a negligent action was not only the but-for cause of injury, but also the proximate cause. If you leave a broken glass on the ground, it would be the but-for and proximate cause of someone cutting themselves on it (it’s foreseeable). It would also be the but-for cause a building burning down due to sunlight somehow refracting through the glass onto a pile of dry tinder. But it may not be the proximate cause of the building burning down (not foreseeable). In addition, there can be a “superseding cause” which breaks the causal chain and therefore renders proximate cause not present. Someone left a pile of kerosene-soaked tinder sitting around.

              The concepts are not exactly the same as what we are talking about, but maybe it maps onto it. In a discrimination claim there will be an issue of damages and to what extent those were caused by the unlawful discrimination. What we are talking about is not the causation of damages, but whether there was unlawful discrimination to begin with. That depends on what the “reason” was for the action.

              In order to assess whether there was an unlawful reason, courts have understandably looked at whether the act would have been taken “but for” the characteristic of race or sex. The idea seems to map onto this analysis. What we have here is perhaps a possible “superseding reason.” Plaintiff was not hired to work the ice cream counter because they thought a middle aged man in heels is weird. Muslim barber shop disagrees with outspoken plaintiff’s behaviors and moral beliefs and doesn’t want to work with them. Each defendant has no problem hiring people of any sex. Sex was a but for reason, but not a proximate reason.

              1. Didn’t NToJ show you that but-for alone is the current precedent for the CRA, which Gorsuch followed?

              2. Gorsuch argues that the but-for standard is the “traditional test,” and notes it is more exacting than the alternative “motivating factor” standard from 42 U.S. Code §2000e–2(m). I don’t believe either dissent suggests Title VII requires a proximate-cause standard.

                1. That may be, but thus far I still stand by my position. There is nothing in the statute about “but for” causation. Admittedly, I am engaging in the practice of commenting while only having read snippets and not the whole document.

                  1. Gorsuch relied primarily on Nassar, a 5-4 conservative majority opinion, that held only the more exacting but-for test applies to retaliation claims under Title VII. The less exacting motivating-factor test was endorsed by the four liberals (this lesser test applies to direct claims). But as a result, all nine justices appear to have endorsed that “because of” in 42 U.S. Code §2000e(a)(1) equates to the but-for standard.

                    1. I also agree with but for. But, as was developed in tort law, sometimes but for isn’t enough and you need to check and make sure there is proximate as well.

                      Theres no great analogy but let’s say I was making a salad out of fruits and vegetables. I’m putting all sorts in. But I really dont like bananas. Leave those out. Have I rejected it because it is a fruit? After all, if it were not a fruit, then it would not be a banana, and I would not have disliked it.

                    2. If it was illegal to discriminate because of food grouping, the but-for standard would conclude you have broken the law (assuming you include every non-fruit in your salad). Perhaps that isn’t an exacting enough standard, but no one in the dissent or the Nassar court argued otherwise.

                    3. “(assuming you include every non-fruit in your salad)”

                      No, no, no. I’m including many sorts of fruits and vegetables.

                      The defendants who will be persecuted under this ruling may hire many sorts of men and women, but that won’t matter.

  8. To think it was Justice Scalia that birthed “liberal textualism” with his Heller opinion! How proud he must up in heaven with Rock Hudson and Freddie Mercury. I bet they are giving each other high fives!

  9. People routinely get fired for stating facts or widely held opinions about certain topics.

    If a religious organization is sued for firing a gay or transgender person, the organization should argue that it has not qualms with an employee being gay or trans per se, but rather that the person was fired for expressing (either explicitly or thru their lifestyle) that gay or trans activities are acceptable – and that such expressions are in contradiction to the teachings of the organization.

    1. Many positions within religious organizations are exempt from this law. But to humor your point, based on my interpretation, the organization could only do that if they fired every employee who supported homosexuality/transgenderism, not just the homosexual or transgender ones.

  10. While Hawley was very passionate, the only argument he gave against Bostock being textualist was it produced

    an outcome that fundamentally changes the scope and meaning and application of statutory law.

    That argument begs the question, and I am certain Gorsuch doesn’t see it that way.

  11. The problem with this decision is that in conjunction with “disparate impact,” it means that employers have no ability to control the morality in their offices.

    How about an employer who has no issue hiring gay men, as long as they don’t go home and bareback whomever he picked up that night? Would liberals be okay with that? Of course not! Because it’s not the “trait” they want protected, but the behavior, and they’ll argue that the behavior is inexplicably linked with the trait.

    1. How would the employer know the man was barebacking one-night stands? And no, unprotected one-night stands is not inextricably linked to being gay.

      1. You don’t know many gay men, do you?

        1. I do. “[U]nprotected one-night stands is not inextricably linked to being gay.”

          1. LOL. It really is.

            1. Bless your heart.

    2. Aktenberg78, why exactly is it an employer’s business whom one of his employees is banging, bareback or not?

      My boss gets to control my behavior Monday through Friday from 8 to 5. Other than that what I do is no concern of his.

      1. Oh, so you’d support a law prohibiting companies from firing people for “hate speech” at protests or elsewhere? Good! Me too!

        1. I’m still waiting for you to answer my question of what business is it of an employer who his employees are having sex with on their own time.

          And your analogy to hate speech doesn’t work because most of the time, when people have sex, they don’t do it in public, unlike hate speech. I suppose if a couple, gay or straight, were posting videos of themselves having sex and it became a public embarrassment to the company, that would be different. It would also be analogous to the kind of hate speech that actually gets people fired.

          1. “Public embarrassment” is in the eye of the beholder.

            1. So you’re not going to answer my question about why it’s any business of an employer who his employees are having sex with on their own time? Ok.

              1. Not unless you’re going to answer my question about why someone’s politics or speech on their own time are any of an employer’s business.

  12. Sen. Hawley’s speech sounds like the “lamentations of their women” in the American culture war.

  13. So do conservative textualists agree then that Citizens United was judicial activism? The founders did not have any notion as to corporate entities that exist today, and no idea that a corporation could amass so much assets as to influence politics with their free speech.
    And what about Heller? The second amendment discussed the right of a militia to bear arms, not individuals, and the documented arguments at the time of the bill of rights supports that idea as well.
    I was fortunate to see the late Justice Scalia speak at my law school. He discussed that while he disagrees with substantive due process, he also firmly believes in stare decisis and would not overrule the doctrine now that it was created. An hour later in the talk he was asked about Roe v Wade, and said there was no constitutional support for it and would overturn it if he had the opportunity. Writing the holding before the analysis much?
    I’m fine with textualism if it were applied equally to conservative and liberal causes. But it isn’t. Proponents of textualism claim it is to increase predictability of decisions, but given Heller and citizens United, just to name two high profile conservative cases, show that the doctrine is often contorted to serve conservative interests. And this post linking conservativism with textualism inherently admits such. It also appears to admit the desire for partisan judges.

    1. Don’t you people ever stop lying? It does not discuss “the right of the militia” you piece of shit.

      1. The right belongs to the people (plural), and is declared necessary to preserve ordered liberty. Scalia was correct to decide that the right must attach to individuals for self-defense – the state cannot have a monopoly on the legitimate use of force in a free society. We must be able to defend our homes and families against the masses who cannot comprehend that words mean things, and only the words that are enacted are law (not the subjective intentions of the hundreds of individuals responsible for the enactment) AND that when a case or group of cases arise that require the application of the legal text to a specific set of facts arises, a judge’s role is to apply the law as written, consistent with precedent when logically possible. Justice Gorsuch, joined by two principled textualists who would have written a strikingly similar opinion had they been assigned the task (Roberts, Kagan) and three justices who agreed with the result and pragmatically chose not to offer alternative (non-textualist) reasoning, did their job. Justice Alito would find a reason to justify the opposite result regardless of his alleged originalism, because the Pope says gay = bad – therefore, it is the original intended application rather than the original public meaning of the text that governs in this case.
        The conservative evangelical “Christian” marriage of convenience with the Republican party was supposed to result in a Supreme Court majority that will find a principled way to impose the will of the would-be theocrats consistent with the Constitution. The problem is that only an unprincipled legal hack could find a way to decide this statute as interpreted historically by the Court did not command this result on these facts. Everyone paying attention knew this was coming.
        The threats of civil unrest ring hollow. Followers of Jesus don’t take to the streets in favor of injustice – only in opposition to it.

        1. the state cannot have a monopoly on the legitimate use of force in a free society

          I think there’s a typo there. A society is only free if the state has the monopoly on the legitimate use of force. Otherwise society is, well, nasty, brutish, and short…

    2. “So do conservative textualists agree then that Citizens United was judicial activism? The founders did not have any notion as to corporate entities that exist today, and no idea that a corporation could amass so much assets as to influence politics with their free speech.”

      No, it remains a fact that the 1st amendment doesn’t pick out particular speakers who have freedom of speech. Rather, it just imposes a blanket prohibition on Congress, (Extended to the states by the 14th amendment.) putting infringing on freedom of speech or of the press off the table.

      If anything is dubious from a 1st amendment pure textual approach, it’s things like libel laws.

      “I’m fine with textualism if it were applied equally to conservative and liberal causes. But it isn’t.”

      It inherently can’t be equal between them, because ‘liberals’ want to change things. Which means that the established meaning of the Constitution is much more likely to be against them.

    3. The founders did not have any notion as to corporate entities that exist today, and no idea that a corporation could amass so much assets as to influence politics with their free speech.

      Neither of these statements is correct.

  14. With all due respect to Sen. Hawley, this sounds like a textbook example of the “no true Scotsman” fallacy.

  15. The “definitions” section of Title VII says ‘(k) The terms “because of sex” or “on the basis of sex” include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions;’.

    If an employer fired a woman when she became pregnant, they would be in violation of Title VII because of sex, even if the employer argued that they were not firing employees because they were women, because, after all, they were fine with employing non-pregnant women. That strongly supports Gorsuch’s argument.

    1. Yeah the difference is that the pregnancy portion was specifically added in by Congress. The way it’s supposed to be done.

      1. You’re missing the point. The law doesn’t say “because of sex or pregnancy”. The law says that “because of sex” includes pregnancy. So the notion that discrimination based on sex is something other than just being fired or not hired because of being male or female is already baked into the law.

        1. That was never in dispute. Adverse actions were, whether at the time of hiring or not. What exactly is your point?

          1. People disputing the majority view say that “because of X” means only that employers are not allowed to fire, or refuse to hire, employees on the grounds that they possess characteristic X. They say that it’s fine to fire an employee for being gay, because being gay is not listed in Title VII, and being gay should not be covered under “because of sex”.

            But the law says, explicitly, that the definition of “because of sex” includes being pregnant. So we see that the law does not mean that “because of X” is solely about whether a person has characteristic X, but rather includes ancillary components related to X. For example, https://open.mitchellhamline.edu/cgi/viewcontent.cgi?article=2546&context=wmlr mentions several cases where employers were found in violation of Title VII for requiring that female employees (flight attendants in one case) not be married, even though marital status is not listed in Title VII.

  16. It’s about time conservatives realized they are also allowed to argue for laws they want, and don’t have to lock themselves into only one method of legal interpretation. Legislating morality FTW