SCOTUS Rules in Favor of LGBT Rights in Workplace Discrimination Case

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Em Carpenter

Em was one of those argumentative children who was sarcastically encouraged to become a lawyer, so she did. She is a proud life-long West Virginian, and, paradoxically, a liberal. In addition to writing about society, politics and culture, she enjoys cooking, podcasts, reading, and pretending to be a runner. She will correct your grammar. You can find her on Twitter.

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38 Responses

  1. Avatar Doctor Jay
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    says:

    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

    • Avatar Michael Cain
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      says:

      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

      • Avatar Doctor Jay
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        says:

        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

        • Avatar DensityDuck
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          says:

          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

          • Avatar Philip H
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            says:

            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

            • Avatar Jaybird
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              says:

              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

            • Avatar DensityDuck
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              says:

              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

              • Avatar Philip H
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                says:

                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

            • Avatar Em Carpenter
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              says:

              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

  2. Avatar Michael Siegel
    Ignored
    says:

    Gorsuch with the opinion. Wonder how Trump’s evangelical base will respond to that.Report

    • Avatar greginak
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      says:

      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

    • Avatar Doctor Jay
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      says:

      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

    • Avatar North
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      says:

      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

      • Avatar InMD
        Ignored
        says:

        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

        • Avatar Philip H
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          says:

          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

        • Avatar North
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          says:

          I certainly agree. They’ll still call it judicial activism and liberal overreach on the right.Report

  3. Avatar Michael Cain
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    says:

    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

  4. Avatar Saul Degraw
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    says:

    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

    • Avatar Philip H
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      says:

      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

    • Avatar CJColucci
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      says:

      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

  5. Avatar LeeEsq
    Ignored
    says:

    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

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