In a 6-3 decision authored by Neil Gorsuch, the Supreme Court rules that employment discrimination against LGBT+ people violates the Civil Rights Act.
The landmark ruling will extend protections to millions of workers nationwide and is a defeat for the Trump administration, which argued that Title VII of the Civil Rights Act that bars discrimination based on sex did not extend to claims of gender identity and sexual orientation.The 6-3 opinion was written by Justice Neil Gorsuch and joined by Chief Justice John Roberts and the court’s four liberal justices.“An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids,” Gorsuch wrote.
Watch for more on this in this week’s Wednesday Writs.
I feel quite confident that Kennedy would have joined the majority on this one, while his replacement did not. I wonder if he thought that sort of thing would happen.Report
Kavanaugh wrote his own dissent so that he could say that he personally prefers the majority’s opinion about what Title VII ought to say, just can’t agree that when Congress wrote “sex” in the 1960s they meant to include LGBTQ. Weasel. Alito and Thomas just stopped at “sex doesn’t mean all those other things.”Report
So, why not vote for it? Dude’s trying to have it both ways. Which is pretty much why he makes a poor judge. He’s always worried about who to please.Report
Because they aren’t there to rule on What Would Be Nice, they’re there to rule on what the law says, and Kavanaugh says–which I think isn’t wrong?–that you can’t just take words out of their historical context and insist that they mean something different because the result is something we like.
Like, when someone says “oh, the Second Amendment says ‘a well-regulated MILITIA’, but you have to understand the historical definition of ‘militia’ which refers to an organised body of armed men operating with government authorisation and under government control, they didn’t mean just a bunch of dudes with their own guns”, they’re making the same argument Kavanaugh does here.Report
a key difference here is that the definition of a well regulated militia hasn’t really changed since it was codified in the Constitution. The definition of “sex” has changed as science has examined the genetics and physiology of the idea. Congress at the time of the writing of the Act had no idea what the biology would reveal.Report
While it does say “the right to keep and bear arms shall not be infringed”, the right doesn’t *APPLY* to women or minorities. It comes out and says “well-regulated militia”. That’s the only people the right applies to.
Which definition, as you know, hasn’t really changed since it was codified.Report
i think maybe you want to rethink this line of argument, because if you want to argue that “sex” as a term no longer has a meaningful definition that’s great but it also implies that gender presentation is a matter of fashion choice and firing someone over theirs is no more significant than firing them for wearing an Ed Hardy T-shirt instead of following a dress codeReport
Sex has a meaningful biological definition that is more complex then was believed when the Civil Rights Act was passed. Gender presentation is secondary to Sex in biological terms.Report
It’s worth noting that Gorsuch agrees for the purposes of the opinion that sex means what it mean then: biological distinctions between male and female.
The notion that Gorsuch is arguing that the definition of “sex” as used in the statute has changed or must be updated for modern times is incorrect. Rather, he says the result reached when applying the statute to the facts of this case may have been one that was not intended back then but that is not a deciding concern when interpreting the text.
I did a full write-up on the decision in Writs today, if you are interested.Report
Gorsuch with the opinion. Wonder how Trump’s evangelical base will respond to that.Report
Splenetic outrage that america as we know it is ended and religious freedom no longer exists of course. There is really no other option.Report
Also that godless liberal elites are the cause of it all.Report
Accusing him of selling his soul for popularity, and insisting that the next Justice be someone reliable, like Michell Malkin,Report
It’s the evangelical base that sold its soul — and the check just bounced.Report
I’m sure there are some that will be unhappy. Because no matter what it is, there’s somebody unhappy about it.
At the same time, I think the really big unhappiness was about SSM, not workplace discrimination.
So we will likely see some pushback whataboutism: “What if it’s a Christian Bookstore?” etc., etc. but not a lot of crowds in the streets over this one.Report
I think that’s about right.Report
Loudly? Outrage about the declining moral fiber of Americans today. Quietly? Delight that they’ll be able to use this to milk the olds for more money. It’s perfectly timed, for instance, to help push Rod Drehers book on how to survive the impending imposition of woke totaliarianism on the country.Report
Any honest analysis (which I know probably excludes Dreher) will actually look at this as a textualist victory. They argued it to get Gorsuch’s vote. No woke silliness about sex meaning something other than biology, just whether the discrimination was on the basis of sex. If you wouldn’t fire a woman for dating a man it’s prohibited discrimination to fire a man for dating a man. They did well.Report
Agreed, though you can argue the textualist basis for sex being broader then cis- designations since science now tells us there is a genetic basis to each “version” of sex that exists.Report
I certainly agree. They’ll still call it judicial activism and liberal overreach on the right.Report
The orders list was at least as interesting as this. The Court denied cert for all of the qualified immunity and 2nd Amendment cases in the queue.Report
you are right – that is at least as interesting. Unfortunately denying cert on the QI cases won’t be the hint to Congress they think it should be.Report
Also it denied cert to a case on Sanctuary CitiesReport
Yeah, I’m going to have to go back and see exactly how the Ninth Circuit ruled in that one.Report
The popular press noted the 9th ruled the Cali law was fine in as much as it didn’t prevent ICE from doing its job but Cali cities, counties etc don’t have to help.
Federalism at its finest.Report
Roberts and to a lesser extent Gorsuch care deeply about the legitimacy of the Supreme Court and want the public to have faith in the opinions of the Supreme Court. This means that every now and then, they will back down from a decision that would be hugely unpopular and create a view that the Supreme Court is merely another political actor. Of course, there are other times when they will be perfectly fine in making obviously partisan decisions.Report
Ad the gone the other way then the prior Same Sex Marriage decision would also have been ripe for revisit. I can’t see them wanting to wade back into that.Report
My guess is Gorsuch and Roberts are playing a long game, letting an issue they don’t care much about come out “wrong” to establish some principle that they can use later, and then expend the political goodwill they acquired today to bring the hammer down on something they really care about.Report
What they really care about is elections (e.g. gutting the VRA.) Watch them rubberstamp every bit of voter suppression between now and November.Report
With the exception of vote-by-mail. Just as Kennedy, a California boy, wouldn’t go along with restricting the immensely popular western-state practice of passing election laws by initiative, Gorsuch the Colorado boy won’t go along with restricting the immensely popular western practice of vote-by-mail.
And I say that as a vote-by-mail supporter, but one who believes that you can’t do vote-by-mail well without prep that takes a year or more the first time. Some number of states that have historically had absentee ballot rates in the single digits will try to conduct a mostly by-mail election and will have a disaster.Report
That is the current cynical interpretation of what is going on here, yes.
It is still causing a huge twitter meltdown on the right though: https://slate.com/news-and-politics/2020/06/carrie-severino-meltdown-neil-gorsuch-lgbtq-rights.htmlReport
i find it hilarious that they NEVER stopped to consider that activist judges sit on both sides of the aisle.Report
Or maybe the judiciary just isn’t as ridiculously politicized as people constantly insist it is. Roberts has been a justice for 15 years, and while he may conceivably be for another 20 or more it must be a hell of a long game. I can only imagine what he’s saving up for, what with this and saving the ACA.Report
Spot on. And some legal commentators have already speculated as much.Report
They didn’t install Gorsuch to keep the religious conservatives happy. They installed him to overturn Massachusetts, Chevron, and Hampton & Co.Report
There is such a thing as mixed motives.Report
Kavanaugh’s dissent ends on a surprisingly gracious note where he states that regardless of his decision, LGBT Americans won a great victory this day.Report
Roberts did something similar in Obergefell, but I agree that Kavanaugh’s comments are more graciousReport