It stands to reason that if it’s illegal to discriminate against anyone in the workplace based on sex, race, or religion, that it should be illegal to discriminate on the basis of sexual orientation (gays and lesbians) or on transgender status. For the life of me I can’t see any valid reason to allow discrimination of any of these groups. Neither did the Supreme Court, ruling today that Title VII of the Civil Rights act of 1964, barring employment discrimination on the basis of race, sex, national origin, and religion, also protects gay and transgender workers.
Here’s the article, hot off the press;
The cases under review involved two instances of gay men being fired, and one case in which a transgender woman was fired from a funeral home after she said she’d adopt her gender identity at work.
The 172-page opinion is here (I’ve not read it), but the vote was a solid 6-3, with conservatives Gorsuch and Roberts joining the liberals, Kagan, Ginsburg, Breyer, and Sotomayor. The dissenters were Alito, Kavanaugh, and Thomas, the latter two who are hopeless. I have increasing hopes that Roberts, at least, will mellow with time, becoming one of those who moves toward the center. And Gorsuch wrote the majority opinion!
To the shame of the Trump administration, it took sides against the plaintiffs, arguing that “sex” is not the same thing as sexual orientation or gender identity. If you want to bar that discrimination, said the Trumpian miscreants, Congress can pass a new law. But the spirit of the law is what’s important here, and that spirit was upheld, aligning with the views of most Americans. Even Republicans favor it by a three-to-one margin!
h/t: Ken
I have to say I was surprised, in a good way, by this decision. I feared the worse.
Great news. Big news.
Who knew Gorsuch was secretly a Satanic commie Deep State sleeper agent?
Whatever one may think of Gorsuch, it took a lot of courage for him to buck his fervent conservative supporters, who have not taken very long to attack him. I hardly think he is converting to liberalism, but, for the moment at least, my hat is off to him.
https://www.nytimes.com/2020/06/15/us/politics/gorsuch-supreme-court-gay-transgender-rights.html
Who would have thought that he could actually be consistent when it comes to “textualism”/”origanalism”. (I always got the impression that Scalia, for example, used it as a prop.)
The real question might be, where do those dissenters get their law from….the bible. So if we could all just go back 2000 years it makes sense.
The thing is, “traditional marriage” as idealized in 1950s TV is a relatively new institution and not well supported by scripture.
But the Bible is very clear in its prohibitions against homosexuality. This is one of many reasons to ban the Bible.
It doesn’t have anything to say on transgender issues though.
traditional marriage was idealized on TV. I have not seen that reference in any law cases. Scripture was pretty clear what to do with those perverts and homosexuals.
Having separate beds and frumpy dressing gowns and pajamas seems very far from ideal to me. At that point, I might as well be sleeping on the couch!
Separate beds or not, everyone knew Rob and Laura Petrie were boning. 🙂
There’s no reason to sleep together unless the woman is ovulating.
“took sides against the plaintiffs, arguing that “sex” is not the same thing as sexual orientation or gender identity. If you want to bar that discrimination, said the Trumpian miscreants, Congress can pass a new law.”
First, I would readily support a law forbidding these forms of discrimination. But, this brings out the contrarian in me.
They have a good point! In a democracy, laws should be made by people you can vote into or out of office, not by unelected lifetime appointments.
It’s because of the tendency to rule on the “spirit” of the case (= “what we think the law should be, not what it actually is”) that makes the US Supreme Court so politicised.
In the UK, judges tend to simply rule on what the law actually is, and so Brits generally don’t know any of the names of the people on our Supreme Court.
But Parliament did pass a law (2010 Equality Act) outlawing these forms of discrimination in employment.
I think in this case it’s more that the law should always have protected gays through the plain meaning of ‘discrimination on the basis of sex’, but that the US was so biased at the time against gays that we applied the law selectively. SCOTUS is removing the heretofore selective application of the general law.
After all, if a company is told one of their employees is getting married to Bob, and the company has to ask “is the employee a man or a woman” before deciding whether to fire that employee or congratulate them, that’s pretty obviously discrimination based on the basis of the employee’s sex.
But suppose the company says, “Well we only ask this question because we want to know whether the employee is gay. We are fine with our employees marrying people of the same sex for any reason other than being gay — for tax deduction, say. On the other hand we’d fire employees who are gay even if they are single, regardless of sex.”
I’m glad Gorsuch had a stopped clock moment, but I don’t buy the argument that discrimination based on sexual orientation is conceptually identical to discrimination based on sex.
What is the RELEVANT MORAL difference that would allow you to discriminate against lesbian women but not women?
No moral difference, and I wasn’t saying discriminating against either group was justified.
My beef with Gorsuch’s opinion is that (as I read it, IANAL) he could have ruled that discrimination based on sexual orientation is illegal — which would be a new doctrine, distinct from the established illegality of discrimination based on sex — but chooses not to.
In case my reply didn’t get through (it still appears to be “awaiting moderation”), I wrote:
No moral difference, and I wasn’t saying discriminating against either group was justified.
My beef with Gorsuch’s opinion is that (as I read it, IANAL) he could have ruled that discrimination based on sexual orientation is illegal — which would be a new doctrine, distinct from the established illegality of discrimination based on sex — but chooses not to.
I’ve only read a few excerpts, but in general the US courts tend to avoid outlandish speculation. So SCOTUS would not likely address the idea that a company would allow same sex marriage ‘for tax purposes’ while only preventing it for gays, unless a situation like that actually came up. Goresuch’s actual opinion seems to basically align with what I said above. Here’s an excerpt: “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.” If Alice can marry Bob and not get fired, Alfred can too.
I’ve only read a few excerpts, but in general the US courts tend to avoid outlandish speculation. So SCOTUS would not likely address the idea that a company would allow same sex marriage ‘for tax purposes’ while only preventing it for gays, unless a situation like that actually came up. Goresuch’s actual opinion seems to basically align with what I said above. Here’s an excerpt: “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.” If Alice can marry Bob and not get fired, Alfred can too.
This case, Bowers v. Clayton County, is not one of constitutional interpretation in which the Court discovered some new right hidden away in the US constitution.
Instead this was a case of statutory interpretation, which is to say, interpretation of what congress has already done by way of statute — in this case, what it did by enacting the landmark Civil Rights Act of 1964. Title VII of that Act prohibits employment discrimination based on “race, religion, national origin and sex.” (emphasis added) The Court found that, while “sexual orientation” may not have been what congress specifically had in mind when it enacted the statute, by expressly including “sex,” the text of the statute congress enacted encompasses matters of sexual orientation.
Thanks Ken.
Yes, though it’s interesting that one of the dissenters in the 2nd Circuit, Judge Lynch, had this to say:
““Speaking solely as a citizen,” he wrote, “I would be delighted to awake one morning and learn that Congress had just passed legislation adding sexual orientation to the list of grounds of employment discrimination prohibited under Title VII of the Civil Rights Act of 1964. I am confident that one day — and I hope that day comes soon — I will have that pleasure.”
“I would be equally pleased to awake to learn that Congress had secretly passed such legislation more than a half-century ago — until I actually woke up and realized that I must have been still asleep and dreaming,” Judge Lynch wrote. “Because we all know that Congress did no such thing.””
(quote taken from https://www.nytimes.com/2019/04/22/us/politics/supreme-court-gay-transgender-employees.html?)
From my quick reading of it, that’s also essentially the line that Kavanaugh took today in his separate dissent.
I act as sort of “policy interpreter” at work sometimes, when I do the “business needs for security” exercise. It seems that this works the same somewhat startling way: the person performing the analysis in either case finds a plausible or entailed consequence of a statement and ensures that this too is enforced etc.
I do wonder in both situations whether the “plausibilistic reasoning” involved can be better codified. In the specific case we are discussing it seems an out and out entailment, with likely no variation across any plausible logics, so that’s easier.
As I read an account of Gorsuch’s opinion, it seemed to say that we cannot separate a person’s sex and a person’s sexual orientation as two different things. The rational for that is that it is the person’s sex that makes the sexual orientation what it is. If it is okay for a man to kiss a woman, it must be okay for a woman to do so, as the only difference is the sex of the person doing the kissing, and we can’t discriminate based on sex.
I’m tempted to say that discrimination based on sexual orientation is a subset/type of discrimination based on sex. Because, again, if you’re punishing Alice for doing something you’d let Bob do, that’s sex discrimination. Even if your motivation for discriminating is to say you don’t like Alice being gay.
If it ever gets to SCOTUS, I would guess Goresuch will similarly support trans use of bathrooms with which they identify, because it’s basically the same argument: the school, shop, etc. is punishing Alice/Alfred for using a facility they’d happily let Bob use.
That’s the excuse the judges used, claiming that it was already in the letter of the law. But “sex” really is conceptually distinct from “sexual orientation”, and the law as passed intended the former and not the latter.
The price for this form of “updating” the law by judges is that the Supreme Court then gets hugely politicised. Is that really a good thing?
Can you give me a realistic example of discrimination based on sexual orientation that does not involve any consideration of the person’s sex?
Bob can marry Charlene, but Alice can’t. If Alice were straight we’d let her marry Charlene, but since she’s a lesbian she can’t? Nope, in practice that’s just not the way the discriminating person is reasoning.
I’ll bake Bob a cake if he’s marrying Charlene, but not if he’s marrying Charlie. Well I’d have no problem baking Bob and Charlie a wedding cake if they’re both straight, it’s just the gay thing I oppose. Does that justification ever realistically get made? Nope.
I’ll hire Bob who sleeps with Charlene every night, but I’ll not hire Alice who sleeps with Cindy every night. Because I have no problem with two straight women living and sleeping together, it’s just Alice is a lesbian. Does such an argument ever actually occur? Nope.
Alice can wear makeup and high heels to work, but Bob can’t. I’d have no problem at all if Bob wore makeup and high heels to work if he wasn’t trans, but since he is, he’s not allowed. Does anyone ever argue this? Again, realistically, nope.
Congress forbade discrimination on the basis of sex. Maybe they didn’t realize the full implications of doing so when they did it, but given that discrimination on the basis of sexual orientation is about treating people differently based on ones’ expectations of how someone of their sex should act, it’s practically always also discrimination on the basis of sex.
Gorsuch’s reasoning isn’t based on conflating the concepts of sex and sexual orientation. He merely says this: take two people, both of whom love a man (not the same man). If you allow one to work because she is a woman who loves a man, and if you fire the other because he is man who loves a man, the only difference – and that which leads to the firing of one – is the *sex* of the employee, and the Civil Rights Acts forbids that.
A few comments. First of all, I am thrilled by the decision, and I’m impressed by the exerpts of Gorsuch’s opinion that I’ve read. Second, while we’ve seen way too many 5-4 conservative victories, there are surprises. For example, in the Curtis Flowers case, a 7-2 majority overturned a death penalty conviction based on racial bias in jury selection (dissenters were Alito and Gorsuch), and Kavanaugh wrote the majority opinion. And then, also today, the Court declined to take up the case against the California “sanctuary cities” law. Is it just me, or perhaps do the justices read the newspapers and realize that the Trump Train may have derailed?
Well, back a century ago, satirist Finley Peter Dunne’s alter-ego Mr. Dooley claimed that “no matter whether the constitution follows the flag or not, the Supreme Court follows the election returns.”
The lifetime tenure Article III of the US constitution confers on federal judges is meant to protect them from political influence — and to a large measure it does. Nevertheless, while SCOTUS has often been willing to get slightly out in the vanguard on social issues (school desegregation and same-sex marriage, for example) it is chary to get too far in front of where US society as a whole is, for fear of undermining its own legitimacy.
The Court, after all, has no army or other mechanism for enforcing its rulings; its authority ultimately derives from the consent of the other branches of government and from that of the people governed.
Thanks Ken.
I seize and greedily feast upon this good news, amidst a time where most of the news is bad news. 🌈
One of the key powers a chief justice has (when the Chief is in the majority on an issue) is in assigning which justice to write the opinion for the Court. And one of the tactics chief justices sometimes use in wielding this power is to assign the opinion to the justice they think may be wavering on an issue, since the act of writing the opinion tends to firm up that justice’s commitment to his or her initial vote. Chief Justice Roberts likely did not want this case decided by a bare 5-4 majority, so may have employed that tactic here, by assigning the opinion to Gorsuch rather than keeping it for himself.
Plus, Gorsuch was a law clerk for Justice Anthony Kennedy, who authored the Court’s opinions in key gay-rights cases — including Lawrence v. Texas (invalidating criminal laws against homosexual sodomy), Windsor v. United States (invalidating the Defense of Marriage Act), and Obergefell v. Hodges (legalizing same-sex marriage) — so may have sought in this case to continue his mentor’s legacy.
Justice Kavanaugh also clerked for Kennedy and, although he dissented, he wrote an opinion for himself alone that objected to the majority opinion on technical, statutory grounds, but contained language surprisingly sympathetic to gay and transgender rights. (Justice Alito, joined by Justice Thomas, filed a much more bumptious dissent, seemingly from a remote location in an earlier century, apparently because the case implicitly involved yucky butt-stuff and transgenderism.)
Let’s hope the Right overreacts to Gorsuch’s apostasy on this issue and drives him ever further to his Left, the way an earlier generation did with Justice David Souter, and the way an even earlier generation did with Justice Harry Blackmun, after his opinion for the Court in Roe v. Wade.
“Yucky butt-stuff” has always been my second-favorite legal term, behind (heh) “surplusage.”
Do you think this has any implications of how a Robert’s court will handle the impending abortion cases that come their way?
Excellent question. I think it’s on the razor’s edge now.
The current anti-abortion tactic is to chip away at the ability of women to practically access the procedure. It’s been fairly successful from their point of view.
Hard to say, Mark, but it certainly bodes better than had this case gone the other way, especially as regards the surprising Gorsuch vote.
If Gorsuch (or Kavanaugh) were to vote to uphold Roe v. Wade, evangelicals and others of the far-right ilk will go absolutely bonkers. (I mean, like, even more than usual.) 🙂
Yeah, I was hoping for a 5-4, and did not expect a 6-3. I think that bodes better in regards to abortion decisions. It won’t be long until we know for sure if Trump’s gift to the evangelicals pays off. I’m hoping for a good dose of absolute bonkers among the faithful.
Roberts, in many of the biggest cases starting with National Federation of Independent Business v. Sebelius, has shown that he’s more concerned with maintaining the legitimacy of the SCOTUS as an institution than in being a good “Conservative.” He even had a chance to somewhat temper his perceived support for Obamacare in the 2015 case King v. Burwell, but instead chose to take some potshots at the “Conservative” wing of the Court by using their own words from their dissent in NFIB v. Sebelius to uphold a provision of Obamacare.
Roberts has clearly established that he is going to make rulings in accordance with what he feels will maintain the SCOTUS’ legitimacy, rather than whether a given decision would be “Conservative” or not. He’ll continue to rule with the Conservatives on things like the Second Amendment, restrictions on voting (or not, perhaps, depending on the case), etc., but rule with the Liberals on other issues to maintain balance. It seems his primary goal is to keep the Court from swinging too far in one direction or the other.
It looks like we got somewhat lucky with Roberts. We can only hope that luck continues with Gorsuch.
I agree. I think this is biggest concern, actually. I admire him for this. And it’s a damned good thing, since he’s going to be sitting in that important seat for a long time.
Maintain the SC’s legitimacy? I’d say regain the SC’s legitimacy.
I think they lost -at least in my layman’s eyes- their legitimacy in 2000.
This is great news and a relief. I didn’t listen to the oral arguments, but I read that Roberts and Gorsuch were questioning in ways that hinted they might side with the plaintiffs. (2 of the 3 plaintiffs are sadly dead now.)
And another win today for anti-Trumpers, SCOTUS declined to take up the case against California Sanctuary Cities, so the lower court’s ruling stands. Sanctuary Cities are legal.
Nice to have some judicial good news.
Agree. 🙂
All good. And it may be a sign that even though Trump has appointed lots of federal judges, we can perhaps count on them to not make every decision by considering, “What would Trump want me to do?”
I can see the bumper stickers now…WWTD? 🤣
Lie, fornicate, ferment discord… doubtless they’d think they’re bringing on the end times.
Isn’t it strange there is a powerful political movement that wants end times and thus pushes it on its way acting the while that it’s god’s will. What’s the end result? Crickets…so far. I’m afraid for America and what Trump has done. The theocracy has all of a sudden become a reality.
This ruling will make it harder to hire transgenders, since an employer could be forced into a settlement when they are fired to avoid being sued for discrimination.
Substitute “women” or “black people” for “trangenders” in that sentence and see how it looks.
Nicely put, GBJames.
Title VII protection extends to “religion” and “national origin,” too, so we could add some other categories to your very apposite query of “savage,” Greg.
Seems to me tRump always take the side of any issue that will cause the most harm. Probably most of his hardcore supporters do too.
Gorsuch is a good example of why the left/right dichotomy is too simple. Although, the seat should have gone to Garland, he is my favorite supreme court justice. From the LA Times last year.
“He is a libertarian who is quick to oppose unchecked government power, even in the hands of prosecutors or the police. And he is willing to go his own way and chart a course that does not always align with the traditional views on the right or the left.
…
But in the last month, he also wrote several broad and bold opinions — mostly in dissent — urging the court to revive the Constitution’s protections for individual liberty. He did so while taking the side of people not usually embraced by conservative justices, including a sex offender from Maryland, an Alabama man who was prosecuted twice for carrying a gun in his car, and two African American men from Texas who were sentenced to more than 50 years in prison for robbing gas stations.”
https://www.latimes.com/politics/la-na-pol-gorsuch-supreme-court-conservative-20190712-story.html
In an ideal world I’d prefer a representative body legislating this sort of policy rather than an unelected bench of lifetime judges deciding it. But we do not have an ideal world. The will of the people can be thwarted by a non-majoritarian Senate and a electoral college elected President with veto power. Consider the SCOTUSpoll results. They indicate that such a policy should pass easily in a representative system. But does anyone really think it could be passed and signed by our current Congress and President?
The consistency of Thomas’ ineptitude and lack of enlightenment continues to astound me. History will not be kind to him, if he is even remembered at all.
Is pedophilia a sexual orientation?
If so, and regarding the wording of the poll, then no, some jobs should not be open for people of a certain sexual orientation.
Pedophilia, if acted on, is a crime</b. The poll said nothing about firing an employee for criminal conduct.
BTW, the same goes for bestiality (since such inquiries are usually paired).
The only reason pedophiles should not be employed is because they’re in jail. I don’t think this kind of thing belongs in employment law. Do we really want to force HR departments to ask applicants if they’ve molested any children lately?
I note that it is more common for SC justices to become more ‘liberal’ over time than vice versa, at least since the ’50s. Justices Black & White (I kid you not!) appear notorious exceptions.
https://en.wikipedia.org/wiki/Ideological_leanings_of_United_States_Supreme_Court_justices
Or maybe they just become more liberal with age, none of the recent ones became less liberal after 65:
https://fivethirtyeight.com/features/supreme-court-justices-get-more-liberal-as-they-get-older/
This has led to over a half-century of right-wing disappointment with Republican SCOTUS appointees — from Eisenhower’s appointment of Earl Warren and William Brennan, to Nixon’s appointment of Harry Blackmun (and, to a lesser extent, Lewis Powell and Warren Burger), to Gerald Ford’s appointment of John Paul Stevens, to Reagan’s appointment of Sandra Day O’Connor and Anthony Kennedy, to Poppy Bush’s appointment of David Souter, to Dubya’s appointment of John Roberts (and close call with the nomination of Harriet Miers).
This is precisely what the close vetting of potential Republican nominees by right-wing groups like the Federalist Society was meant to forestall.
I’m sure that, after yesterday’s opinion for the Court by Justice Neil Gorsuch in the Bostock case, conservatives are waking up this morning with a plus ça change, plus c’est la même chose hangover.
“this has led to over a half-century of right-wing disappointment with Republican SCOTUS appointees”
Yes, and I see it as some kind of proof that the left wing is on the right side of history and rational thinking. Smart people whose minds are freed from influence of their party, given time to think about things, tend to move to the left. I’m good with that.
Gorsuch voted with the majority for textualist reasons, not because he’s necessarily sympathetic to LGBTQ, or because he understands the plaintiffs were treated unfairly, or because he’s becoming more liberal. He voted the way he did because he held to a strict reading of the text of the 1964 Civil Rights Acts.
I’m glad he voted the way he did, but the next case may well involve great injustice, unfairness, etc., based on a strict reading of the text of some law. The sword cuts both ways. But we’ll take this one.
Maybe but even SC justices usually find some way to vote their conscience.