SCOTUS, Sex and Race - A Bigot is a Bigot is a Bigot

[T.G.G. Moogly]

Supreme Court clashes over meaning of ‘sex’ in LGBT discrimination cases

As I read this article it was as if I were reading an article on race, not sex, and how people wishing to oppress a person or group based on their skin color were really no different than people wishing to oppress a person or group based on their "sex." A bigot is a bigot is a bigot it seems and the message is to 'be afraid, be very afraid.'

Justice Samuel Alito, one of the court’s Republican appointees, noted that Congress has had time since the law was first passed to add protections for LGBT workers, and has declined to do so. If the court said the law applied to gay workers, “we will be acting exactly like a legislature,” he said.

This is splitting hairs because an injustice is an injustice, whether the legislature acknowledges it or not. That's what SCOTUS is for.

“This is the type of issue that is better left to Congress than the courts,” Solicitor General Noel Francisco, arguing in favor of the employers, told the court. The question, Francisco said, wasn’t whether Congress should bar discrimination against LGBT employees, but rather whether is had actually done so.

In other words, 'we prefer the double standard.' 'Separate but equal' is still the rallying cry here for bigotry.

The article is well worth reading and I recommend it.

 

[repoman]

Huh, but a clerk's footnote on what corporate personhood means is sacrosanct now.

This was discussed here before.

The question is whether court will act like a diode for the increasingly liberal society, against the understanding of the times of what is now the societally ancient 1970s. More protections (even with occasional issues of transwomen maybe dominating powerlifting in the future) and never less like a diode only allows current in one direction.

 

[Trausti]

The separation of powers is the cornerstone of the federal republic. If you say the Court can write statutes that Congress never passed, then Congress is irrelevant.

 

[repoman]

I think that taking the opinion of the general public and the congress at the time that the law was passed and NOT the opinion of the cultural vanguard of academia and 1970s gender specialists is the only fair way.

Or you gonna say that those people were not bigoted assholes or at least ignorant back then.

If we are better now, the laws will be passed.

 

[Trausti]

I think that taking the opinion of the general public and the congress at the time that the law was passed and NOT the opinion of the cultural vanguard of academia and 1970s gender specialists is the only fair way.

Or you gonna say that those people were not bigoted assholes or at least ignorant back then.

If we are better now, the laws will be passed.

A bill expanding protected classes to include gays/lesbians would easily pass. Transgenders? Maybe not. Pederasts are also unlikely.

 

[Bomb#20]

Justice Samuel Alito, one of the court’s Republican appointees, noted that Congress has had time since the law was first passed to add protections for LGBT workers, and has declined to do so. If the court said the law applied to gay workers, “we will be acting exactly like a legislature,” he said.

This is splitting hairs because an injustice is an injustice, whether the legislature acknowledges it or not. That's what SCOTUS is for.

No it isn't. "This is a court of law, young man, not a court of justice." - Oliver Wendell Holmes

The SCOTUS is for figuring out what the law is and figuring out who violated it.

“This is the type of issue that is better left to Congress than the courts,” Solicitor General Noel Francisco, arguing in favor of the employers, told the court. The question, Francisco said, wasn’t whether Congress should bar discrimination against LGBT employees, but rather whether is had actually done so.

In other words, 'we prefer the double standard.' 'Separate but equal' is still the rallying cry here for bigotry.

In other words, the branches of government should not be checks on one another's arbitrary use of power -- we should instead have an Iranian-style government where the judiciary is the boss and the executive and legislative branches just follow orders.

Whether discrimination against LGBT employees is an injustice and bigoted and really no different from racial oppression is legally irrelevant. What matters is whether the employers discriminated on the basis of sex -- because that's what Congress prohibited.

And the answer, obviously, is "Yes, of course they did."

“Let’s do truth serum, okay? Wouldn’t the employer maybe say [the firing is] because this person was a man who liked other men? And isn’t that first part sex?” Gorsuch asked of Jeffrey Harris, an attorney for Clayton County, Georgia, which was accused of firing a county employee who is gay.

Bingo. The employer wouldn't have fired a woman for liking men. Therefore the sex of the employee is what made the difference.

“Your honor, I think in common parlance, we would call that a same-sex attraction,” Harris responded.

Drivel. Why on earth should lawyers give a hoot what common parlance would call that? Common parlance is not legal reasoning and "same-" is not a sex. The employee was fired for male-sex attraction while being male. That's straight-up sex discrimination.

“If he were a woman, he wouldn’t have been fired,” she told Francisco. “This is the usual kind of way in which we interpret statutes now. We look to laws. We don’t look to predictions. We don’t look to desires. We don’t look to wishes. We look to laws.”

She gets it.

“we will be acting exactly like a legislature,”

Nonsense. No broadening of "sex" to include orientation or identity is involved. The employers fired the employee because he had a penis.

 

[Jarhyn]

No it isn't. "This is a court of law, young man, not a court of justice." - Oliver Wendell Holmes

The SCOTUS is for figuring out what the law is and figuring out who violated it.

“This is the type of issue that is better left to Congress than the courts,” Solicitor General Noel Francisco, arguing in favor of the employers, told the court. The question, Francisco said, wasn’t whether Congress should bar discrimination against LGBT employees, but rather whether is had actually done so.

In other words, 'we prefer the double standard.' 'Separate but equal' is still the rallying cry here for bigotry.

In other words, the branches of government should not be checks on one another's arbitrary use of power -- we should instead have an Iranian-style government where the judiciary is the boss and the executive and legislative branches just follow orders.

Whether discrimination against LGBT employees is an injustice and bigoted and really no different from racial oppression is legally irrelevant. What matters is whether the employers discriminated on the basis of sex -- because that's what Congress prohibited.

And the answer, obviously, is "Yes, of course they did."

“Let’s do truth serum, okay? Wouldn’t the employer maybe say [the firing is] because this person was a man who liked other men? And isn’t that first part sex?” Gorsuch asked of Jeffrey Harris, an attorney for Clayton County, Georgia, which was accused of firing a county employee who is gay.

Bingo. The employer wouldn't have fired a woman for liking men. Therefore the sex of the employee is what made the difference.

“Your honor, I think in common parlance, we would call that a same-sex attraction,” Harris responded.

Drivel. Why on earth should lawyers give a hoot what common parlance would call that? Common parlance is not legal reasoning and "same-" is not a sex. The employee was fired for male-sex attraction while being male. That's straight-up sex discrimination.

“If he were a woman, he wouldn’t have been fired,” she told Francisco. “This is the usual kind of way in which we interpret statutes now. We look to laws. We don’t look to predictions. We don’t look to desires. We don’t look to wishes. We look to laws.”

She gets it.

“we will be acting exactly like a legislature,”

Nonsense. No broadening of "sex" to include orientation or identity is involved. The employers fired the employee because he had a penis.

Ultimately, and logically, discrimination on the basis of LGBT status is discrimination on the basis of sex. The fact that some legislation failed to understand that at the time they banned discrimination on the basis of sex is irrelevant to the fact.

Trans discrimination? Discrimination on the basis that a person of a particular genital configuration ("sex") has done some thing in some particular way that is reserved within the context exclusively for someone with another "sex". Or, it is sex based discrimination to withhold from me a benefit (here, the right to be called "her" and wear a dress, and be considered for a job) on the basis of my genitals.

With LGB, it is much the same: discrimination against me for having sex with a man because I am not a woman. Still sex based discrimination.

The supreme Court is not inventing rights or legislation. They are forcing logic on the legislation, interpreting it, also known as doing their fucking jobs.

 

[repoman]

If the US congress takes a highly rightward turn and makes saying all sex based and LGBT discrimination is fine and the court was still leftish, I bet the court would cripple those laws on some constitutional grounds.

Not a likely scenario, but it would shake out like that.

 

[Jarhyn]

If the US congress takes a highly rightward turn and makes saying all sex based and LGBT discrimination is fine and the court was still leftish, I bet the court would cripple those laws on some constitutional grounds.

Not a likely scenario, but it would shake out like that.

This is an easy one:

"humans have a right to privacy, in our freedom from unreasonable searches and seizures, in our right to speak and communicate freely (and so to NOT speak or communicate), and through many other paths.

As such, It is hard to imagine that this would not extend to such private matters as our private parts. Thus it is outside the bounds of governmental power to make or place requirements of people on the basis of this private information. As such it is unacceptable, within the government and those the government sanctions to public business, to make decisions on the basis of this private information, what their clothes may conceal.

This would naturally extend to such spheres as sex, and sexuality: that employers within the government have no right to ask what, in particular, is concealed under pants or a skirt, or under the pants or the skirt of those they cleave to, or what they do within the privacy of their own homes"

 

[ideologyhunter]

I hope you're right, but there's nothing 'easy' or 'natural' about the hard right's reasoning. Look up Scalia's dissents on gay rights cases and you'll find this so-called 'strict constructionist' ranting about the Gay Agenda and his own personal loathing of gays.

 

[Jarhyn]

I hope you're right, but there's nothing 'easy' or 'natural' about the hard right's reasoning. Look up Scalia's dissents on gay rights cases and you'll find this so-called 'strict constructionist' ranting about the Gay Agenda and his own personal loathing of gays.

I didn't say it would be easy for this court. In fact I find it vanishingly unlikely; it's got a majority on it who will bad-faith doublethink their way right into whatever fucking opinion that their criminal handlers tell them to.

Of course, it's a reasonable position to take, to uphold the right to privacy and to stand against sex based discrimination, but I don't expect religious fundamentalist fanatics to accept reality. I was just describing how a liberal court could reasonably extend the protections afforded to people on virtue of their rights to free speech and free association, and against unreasonable search and seizure to recognize the natural right people have to do what they want regardless of what is in their pants, at least in the context of the government and those they contract with.

 

[James Madison]

No it isn't. "This is a court of law, young man, not a court of justice." - Oliver Wendell Holmes

The SCOTUS is for figuring out what the law is and figuring out who violated it.


In other words, the branches of government should not be checks on one another's arbitrary use of power -- we should instead have an Iranian-style government where the judiciary is the boss and the executive and legislative branches just follow orders.

Whether discrimination against LGBT employees is an injustice and bigoted and really no different from racial oppression is legally irrelevant. What matters is whether the employers discriminated on the basis of sex -- because that's what Congress prohibited.

And the answer, obviously, is "Yes, of course they did."

“Let’s do truth serum, okay? Wouldn’t the employer maybe say [the firing is] because this person was a man who liked other men? And isn’t that first part sex?” Gorsuch asked of Jeffrey Harris, an attorney for Clayton County, Georgia, which was accused of firing a county employee who is gay.

Bingo. The employer wouldn't have fired a woman for liking men. Therefore the sex of the employee is what made the difference.

“Your honor, I think in common parlance, we would call that a same-sex attraction,” Harris responded.

Drivel. Why on earth should lawyers give a hoot what common parlance would call that? Common parlance is not legal reasoning and "same-" is not a sex. The employee was fired for male-sex attraction while being male. That's straight-up sex discrimination.

“If he were a woman, he wouldn’t have been fired,” she told Francisco. “This is the usual kind of way in which we interpret statutes now. We look to laws. We don’t look to predictions. We don’t look to desires. We don’t look to wishes. We look to laws.”

She gets it.

“we will be acting exactly like a legislature,”

Nonsense. No broadening of "sex" to include orientation or identity is involved. The employers fired the employee because he had a penis.

Ultimately, and logically, discrimination on the basis of LGBT status is discrimination on the basis of sex. The fact that some legislation failed to understand that at the time they banned discrimination on the basis of sex is irrelevant to the fact.

Trans discrimination? Discrimination on the basis that a person of a particular genital configuration ("sex") has done some thing in some particular way that is reserved within the context exclusively for someone with another "sex". Or, it is sex based discrimination to withhold from me a benefit (here, the right to be called "her" and wear a dress, and be considered for a job) on the basis of my genitals.

With LGB, it is much the same: discrimination against me for having sex with a man because I am not a woman. Still sex based discrimination.

The supreme Court is not inventing rights or legislation. They are forcing logic on the legislation, interpreting it, also known as doing their fucking jobs.

Ultimately, and logically, discrimination on the basis of LGBT status is discrimination on the basis of sex. The fact that some legislation failed to understand that at the time they banned discrimination on the basis of sex is irrelevant to the fact.

Whether the word “sex” was understood at the time Title 7 was crated, passed, and signed into law, to encompass sexual orientation is very much germane to the dialogue. Posner, a former 7th Circuit jurist, was a topic of discussion because of his concurring opinion in Hively, where he said it is no secret Title 7 doesn’t include sexual orientation, sure as hell didn’t in 64, but it’s all good because the judiciary can “update” the statute and its meaning to accommodate contemporary times. It’s that backdrop in which the meaning of the statute was discussed at oral argument. Discussed at oral argument was the notion the Court shouldn’t give any particular meaning it wants to a statute since the Court isn’t vested with law making power under the Constitution. If a statute has X meaning, then that’s the meaning.

The argument is same sex, sexual orientation, is a subset of “sex” in the 1964 Title 7 statute. The statute says, “It shall be an unlawful employment practice for an employer … 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.”

The argument centers in part upon, inter alia, the short phrase “because of.” What does “because of” mean? Does it include mixed motives? Mixed motives meaning, the protected class isn’t the only cause, the only motive, for discrimination, but it’s the protected class plus some other consideration. So, an analogy used at oral argument was a man isn’t hired because he likes to sew. The Court has held mixed motives are covered by the statute as they construed “because of” to mean the protected class is a factor, a cause, a motive, and it is not necessary the protected class be the only cause, factor, motive, or even the primary cause, factor, or motive.

An issue at oral argument was does “because of” cover the mixed motive of, “You’re a man, who dates a man.” In other words, whether sexual orientation, where the specific sex of the person is know, is a kind of mixed motive covered by the statute?

Depending on the test used, there’s more than one, the answer is yes. Ms. Karlan used a test that results in the affirmative. But the issue raised was whether those tests are faithful to the meaning of the statute, a meaning that when the statute came into existence in 1964, sexual orientation wasn’t understood to be covered by the statute. (Some strong evidence supporting that meaning was raised by, among others, Justice Ginsburg). As was discussed during oral argument, if the statute’s meaning doesn’t include sexual orientation, then the tests that would include sexual orientation have to yield to the meaning. Said another way, those tests cannot result in protection for sexual orientation where the meaning of the statute didn’t include sexual orientation.

Ms. Karlan’s response to that argument wasn’t the strongest. Her response was, in part, the Court has included sexual harassment, although sexual harassment wasn’t contemplated to be covered by the statute at the time. (I say in part because I’ve listened to oral arguments once, going through a second time, and she said more but I can’t recall the other specifics but will update her response in later post).

Depending on one’s view, if sexual harassment wasn’t understood in 64 to be included in the statute, then why commit the same error again? Another possible reply is sexual harassment comes within the meaning of the statute, where the woman is harassed because she’s a woman, since the classic harm to be addressed by the statutes is men and women are treated differently because the person is a male and/or a female.

Alito, perhaps using a hypo inspired by Rawls’ veil of ignorance, said imagine all the employer knows is that the person wanting the job isn’t heterosexual but gay and the employer has no idea the sex of the person wanting the job. The person is denied the job. There’s be no Title 7 violation, as was conceded at argument, thereby showing, for Alito, at least in part, the statute doesn’t include sexual orientation.




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[Bomb#20]

'Our progress in degeneracy appears to me to be pretty rapid. As a nation, we began by declaring that "all men are created equal." We now practically read it "all men are created equal, except negroes". When the Know-Nothings get control, it will read "all men are created equal, except negroes, and foreigners, and Catholics."' - Abraham Lincoln​

The supreme Court is not inventing rights or legislation. They are forcing logic on the legislation

Ultimately, and logically, discrimination on the basis of LGBT status is discrimination on the basis of sex. The fact that some legislation failed to understand that at the time they banned discrimination on the basis of sex is irrelevant to the fact.

Whether the word “sex” was understood at the time Title 7 was crated, passed, and signed into law, to encompass sexual orientation is very much germane to the dialogue.

Why? What makes original understanding trump logic?

Suppose historical research were to show that the Continental Congress understood "all men are created equal" to not include Negroes. Would that make Lincoln's criticism of that interpretation unreasonable? What's wrong with treating words as meaning what they plainly say, when what they plainly say is better than what the authors intended? If the Continental Congress didn't intend to include Negroes, they could have said so. The fact that they chose not to indicates either that they meant to include Negroes, or else that they were hypocritically pretending to be more idealistic than they actually were. So why should those of us who come later reward them for their hypocrisy by reading according to what they meant rather than according to what they said?

There's a principle in law that when there's ambiguity in a contract, the court will read the contract against the side that composed the contract, and in favor of the side that just had the contract shoved under their noses. Well, if the authors of Title 7 who wrote "unlawful to discriminate because of sex" actually intended that phrase to mean "unlawful to discriminate because of sex except it's okay to prohibit your male employees but not your female employees from humping men", those legislators are the side that wrote the statute. The male employees being discriminated against are the side that got the statute shoved under their noses. The court should read the statute against the side that wrote it. The legislators could have written "No discriminating on the basis of sex, except it's okay to prohibit your male employees but not your female employees from humping men" if they'd wanted to make their meaning clear. Why should those of us who come later reward them for their ambiguity?

So, an analogy used at oral argument was a man isn’t hired because he likes to sew. The Court has held mixed motives are covered by the statute as they construed “because of” to mean the protected class is a factor, a cause, a motive, and it is not necessary the protected class be the only cause, factor, motive, or even the primary cause, factor, or motive.

Good analogy.

Another possible reply is sexual harassment comes within the meaning of the statute, where the woman is harassed because she’s a woman, since the classic harm to be addressed by the statutes is men and women are treated differently because the person is a male and/or a female.

Good reply.

Alito, perhaps using a hypo inspired by Rawls’ veil of ignorance, said imagine all the employer knows is that the person wanting the job isn’t heterosexual but gay and the employer has no idea the sex of the person wanting the job. The person is denied the job. There’s be no Title 7 violation, as was conceded at argument, thereby showing, for Alito, at least in part, the statute doesn’t include sexual orientation.

"As was conceded at argument"? Conceded by whom, the plaintiffs' attorney? The plaintiffs' attorney's mistakes aren't intellectually binding on the rest of us. When Alito makes an illogical argument, if counsel fails to spot the fallacy then that's two wrongs, not a right that the nation has to stipulate is established fact.

Let's take your earlier example. Imagine what the employer knows is that the person wanting the job is a man and he likes to sew. The person is denied the job because the employer thinks sewing is an unsuitable hobby for a man, but if the person had been a woman who sewed she'd have been hired. A Title 7 violation, yes? It's covered by the statute as the Court construed “because of” to mean the protected class is a factor, yes? The classic harm to be addressed by the statute is men and women being treated differently because the person is a male and/or a female, yes?

Now let's flip it around. Imagine what the employer knows is that the person wanting the job is a woman and she likes to restore muscle cars. The person is denied the job because the employer thinks restoring muscle cars is an unsuitable hobby for a woman, but if the person had been a man who restored muscle cars he'd have been hired. Still a Title 7 violation, yes? It's covered by the statute as the Court construed “because of” to mean the protected class is a factor, yes? The classic harm to be addressed by the statute is men and women being treated differently because the person is a male and/or a female, yes?

Now let's imagine that somehow, remarkably, all the employer knows is that the person wanting the job is either a man who likes to sew or a woman who likes to restore muscle cars, but the employer has no idea which. The person is denied the job because the employer thinks sewing is an unsuitable hobby for a man and restoring muscle cars is an unsuitable hobby for a woman, and therefore infers that the applicant has a gender-inappropriate hobby without needing to know the applicant's sex. But if the person had been the other sex then he or she would have been hired. Well then, that's still a Title 7 violation. The mere circumstance that the employer doesn't know which Title 7 violation he or she's committing can hardly change the fact that it's one or the other: it's either discriminating against somebody because he's a man or discriminating against somebody because she's a woman. No matter which sex the applicant is, men and women are treated differently because the person is a male and/or a female, yes?

Which brings us back to Alito. Imagine all the employer knows is that the person wanting the job isn’t heterosexual but gay and the employer has no idea the sex of the person wanting the job. The person is denied the job. Of course that would be a Title 7 violation. A partner whom the employer considers unsuitable for the applicant's sex is no different in this respect from a hobby the employer considers unsuitable for the applicant's sex -- the employer merely not knowing which sex role stereotype he or she is enforcing doesn't change the fact that what's being enforced is a sex role stereotype. Men and women are treated differently because the person is a male and/or a female. That's the classic harm to be addressed by the statute. So if the plaintiffs' attorney conceded Alito's point, the plaintiff's attorney erred.

 

[Jarhyn]

'Our progress in degeneracy appears to me to be pretty rapid. As a nation, we began by declaring that "all men are created equal." We now practically read it "all men are created equal, except negroes". When the Know-Nothings get control, it will read "all men are created equal, except negroes, and foreigners, and Catholics."' - Abraham Lincoln​

Whether the word “sex” was understood at the time Title 7 was crated, passed, and signed into law, to encompass sexual orientation is very much germane to the dialogue.

Why? What makes original understanding trump logic?

Suppose historical research were to show that the Continental Congress understood "all men are created equal" to not include Negroes. Would that make Lincoln's criticism of that interpretation unreasonable? What's wrong with treating words as meaning what they plainly say, when what they plainly say is better than what the authors intended? If the Continental Congress didn't intend to include Negroes, they could have said so. The fact that they chose not to indicates either that they meant to include Negroes, or else that they were hypocritically pretending to be more idealistic than they actually were. So why should those of us who come later reward them for their hypocrisy by reading according to what they meant rather than according to what they said?

There's a principle in law that when there's ambiguity in a contract, the court will read the contract against the side that composed the contract, and in favor of the side that just had the contract shoved under their noses. Well, if the authors of Title 7 who wrote "unlawful to discriminate because of sex" actually intended that phrase to mean "unlawful to discriminate because of sex except it's okay to prohibit your male employees but not your female employees from humping men", those legislators are the side that wrote the statute. The male employees being discriminated against are the side that got the statute shoved under their noses. The court should read the statute against the side that wrote it. The legislators could have written "No discriminating on the basis of sex, except it's okay to prohibit your male employees but not your female employees from humping men" if they'd wanted to make their meaning clear. Why should those of us who come later reward them for their ambiguity?

So, an analogy used at oral argument was a man isn’t hired because he likes to sew. The Court has held mixed motives are covered by the statute as they construed “because of” to mean the protected class is a factor, a cause, a motive, and it is not necessary the protected class be the only cause, factor, motive, or even the primary cause, factor, or motive.

Good analogy.

Another possible reply is sexual harassment comes within the meaning of the statute, where the woman is harassed because she’s a woman, since the classic harm to be addressed by the statutes is men and women are treated differently because the person is a male and/or a female.

Good reply.

Alito, perhaps using a hypo inspired by Rawls’ veil of ignorance, said imagine all the employer knows is that the person wanting the job isn’t heterosexual but gay and the employer has no idea the sex of the person wanting the job. The person is denied the job. There’s be no Title 7 violation, as was conceded at argument, thereby showing, for Alito, at least in part, the statute doesn’t include sexual orientation.

"As was conceded at argument"? Conceded by whom, the plaintiffs' attorney? The plaintiffs' attorney's mistakes aren't intellectually binding on the rest of us. When Alito makes an illogical argument, if counsel fails to spot the fallacy then that's two wrongs, not a right that the nation has to stipulate is established fact.

Let's take your earlier example. Imagine what the employer knows is that the person wanting the job is a man and he likes to sew. The person is denied the job because the employer thinks sewing is an unsuitable hobby for a man, but if the person had been a woman who sewed she'd have been hired. A Title 7 violation, yes? It's covered by the statute as the Court construed “because of” to mean the protected class is a factor, yes? The classic harm to be addressed by the statute is men and women being treated differently because the person is a male and/or a female, yes?

Now let's flip it around. Imagine what the employer knows is that the person wanting the job is a woman and she likes to restore muscle cars. The person is denied the job because the employer thinks restoring muscle cars is an unsuitable hobby for a woman, but if the person had been a man who restored muscle cars he'd have been hired. Still a Title 7 violation, yes? It's covered by the statute as the Court construed “because of” to mean the protected class is a factor, yes? The classic harm to be addressed by the statute is men and women being treated differently because the person is a male and/or a female, yes?

Now let's imagine that somehow, remarkably, all the employer knows is that the person wanting the job is either a man who likes to sew or a woman who likes to restore muscle cars, but the employer has no idea which. The person is denied the job because the employer thinks sewing is an unsuitable hobby for a man and restoring muscle cars is an unsuitable hobby for a woman, and therefore infers that the applicant has a gender-inappropriate hobby without needing to know the applicant's sex. But if the person had been the other sex then he or she would have been hired. Well then, that's still a Title 7 violation. The mere circumstance that the employer doesn't know which Title 7 violation he or she's committing can hardly change the fact that it's one or the other: it's either discriminating against somebody because he's a man or discriminating against somebody because she's a woman. No matter which sex the applicant is, men and women are treated differently because the person is a male and/or a female, yes?

Which brings us back to Alito. Imagine all the employer knows is that the person wanting the job isn’t heterosexual but gay and the employer has no idea the sex of the person wanting the job. The person is denied the job. Of course that would be a Title 7 violation. A partner whom the employer considers unsuitable for the applicant's sex is no different in this respect from a hobby the employer considers unsuitable for the applicant's sex -- the employer merely not knowing which sex role stereotype he or she is enforcing doesn't change the fact that what's being enforced is a sex role stereotype. Men and women are treated differently because the person is a male and/or a female. That's the classic harm to be addressed by the statute. So if the plaintiffs' attorney conceded Alito's point, the plaintiff's attorney erred.

Thank you. This is what I'm talking about. Original intent be damned when the original model is inconsistent with reality or logic.

The fact that the legislature didn't understand the extent with what "discrimination on the basis of sex" would logically apply to does not change the realities of what is actually discrimination on the basis of sex.

It is discrimination against a person on the basis of sex that they allow one person to wear a dress on account of their sex, and deny that to another on the basis of their sex. That some people double-think about it, regardless of whether the person double-thinking is an employer, legislator, SCOTUS justice, or a poster on these forums does not change the fact that it is double-think.

 

[T.G.G. Moogly]

The separation of powers is the cornerstone of the federal republic. If you say the Court can write statutes that Congress never passed, then Congress is irrelevant.

Don't be silly or childish. All branches are empowered with the responsibility to "govern," and that's what they do.

 

[Jarhyn]

The separation of powers is the cornerstone of the federal republic. If you say the Court can write statutes that Congress never passed, then Congress is irrelevant.

Don't be silly or childish. All branches are empowered with the responsibility to "govern," and that's what they do.

Not to mention Congress DID pass this legislation. This is an act of congress. That Congress didn't think through the fact that their act had further reaching implications isn't the problem of the courts; the responsibility of the court is to interpret laws. That's their constitutional duty. This is interpretation of the law. It couldn't be a more clear-cut case of this being fully the purview of the court

 

[laughing dog]

'Our progress in degeneracy appears to me to be pretty rapid. As a nation, we began by declaring that "all men are created equal." We now practically read it "all men are created equal, except negroes". When the Know-Nothings get control, it will read "all men are created equal, except negroes, and foreigners, and Catholics."' - Abraham Lincoln​

Whether the word “sex” was understood at the time Title 7 was crated, passed, and signed into law, to encompass sexual orientation is very much germane to the dialogue.

Why? What makes original understanding trump logic?

Suppose historical research were to show that the Continental Congress understood "all men are created equal" to not include Negroes. Would that make Lincoln's criticism of that interpretation unreasonable? What's wrong with treating words as meaning what they plainly say, when what they plainly say is better than what the authors intended? If the Continental Congress didn't intend to include Negroes, they could have said so. The fact that they chose not to indicates either that they meant to include Negroes, or else that they were hypocritically pretending to be more idealistic than they actually were. So why should those of us who come later reward them for their hypocrisy by reading according to what they meant rather than according to what they said?

There's a principle in law that when there's ambiguity in a contract, the court will read the contract against the side that composed the contract, and in favor of the side that just had the contract shoved under their noses. Well, if the authors of Title 7 who wrote "unlawful to discriminate because of sex" actually intended that phrase to mean "unlawful to discriminate because of sex except it's okay to prohibit your male employees but not your female employees from humping men", those legislators are the side that wrote the statute. The male employees being discriminated against are the side that got the statute shoved under their noses. The court should read the statute against the side that wrote it. The legislators could have written "No discriminating on the basis of sex, except it's okay to prohibit your male employees but not your female employees from humping men" if they'd wanted to make their meaning clear. Why should those of us who come later reward them for their ambiguity?

So, an analogy used at oral argument was a man isn’t hired because he likes to sew. The Court has held mixed motives are covered by the statute as they construed “because of” to mean the protected class is a factor, a cause, a motive, and it is not necessary the protected class be the only cause, factor, motive, or even the primary cause, factor, or motive.

Good analogy.

Another possible reply is sexual harassment comes within the meaning of the statute, where the woman is harassed because she’s a woman, since the classic harm to be addressed by the statutes is men and women are treated differently because the person is a male and/or a female.

Good reply.

Alito, perhaps using a hypo inspired by Rawls’ veil of ignorance, said imagine all the employer knows is that the person wanting the job isn’t heterosexual but gay and the employer has no idea the sex of the person wanting the job. The person is denied the job. There’s be no Title 7 violation, as was conceded at argument, thereby showing, for Alito, at least in part, the statute doesn’t include sexual orientation.

"As was conceded at argument"? Conceded by whom, the plaintiffs' attorney? The plaintiffs' attorney's mistakes aren't intellectually binding on the rest of us. When Alito makes an illogical argument, if counsel fails to spot the fallacy then that's two wrongs, not a right that the nation has to stipulate is established fact.

Let's take your earlier example. Imagine what the employer knows is that the person wanting the job is a man and he likes to sew. The person is denied the job because the employer thinks sewing is an unsuitable hobby for a man, but if the person had been a woman who sewed she'd have been hired. A Title 7 violation, yes? It's covered by the statute as the Court construed “because of” to mean the protected class is a factor, yes? The classic harm to be addressed by the statute is men and women being treated differently because the person is a male and/or a female, yes?

Now let's flip it around. Imagine what the employer knows is that the person wanting the job is a woman and she likes to restore muscle cars. The person is denied the job because the employer thinks restoring muscle cars is an unsuitable hobby for a woman, but if the person had been a man who restored muscle cars he'd have been hired. Still a Title 7 violation, yes? It's covered by the statute as the Court construed “because of” to mean the protected class is a factor, yes? The classic harm to be addressed by the statute is men and women being treated differently because the person is a male and/or a female, yes?

Now let's imagine that somehow, remarkably, all the employer knows is that the person wanting the job is either a man who likes to sew or a woman who likes to restore muscle cars, but the employer has no idea which. The person is denied the job because the employer thinks sewing is an unsuitable hobby for a man and restoring muscle cars is an unsuitable hobby for a woman, and therefore infers that the applicant has a gender-inappropriate hobby without needing to know the applicant's sex. But if the person had been the other sex then he or she would have been hired. Well then, that's still a Title 7 violation. The mere circumstance that the employer doesn't know which Title 7 violation he or she's committing can hardly change the fact that it's one or the other: it's either discriminating against somebody because he's a man or discriminating against somebody because she's a woman. No matter which sex the applicant is, men and women are treated differently because the person is a male and/or a female, yes?

Which brings us back to Alito. Imagine all the employer knows is that the person wanting the job isn’t heterosexual but gay and the employer has no idea the sex of the person wanting the job. The person is denied the job. Of course that would be a Title 7 violation. A partner whom the employer considers unsuitable for the applicant's sex is no different in this respect from a hobby the employer considers unsuitable for the applicant's sex -- the employer merely not knowing which sex role stereotype he or she is enforcing doesn't change the fact that what's being enforced is a sex role stereotype. Men and women are treated differently because the person is a male and/or a female. That's the classic harm to be addressed by the statute. So if the plaintiffs' attorney conceded Alito's point, the plaintiff's attorney erred.

One can only hope that there are at least five ( hopefully 6 or 7) justices on the court eho are intelligent enough to understand Bomb20’s arguments and have the integrity to go beyond their ideological biases.