Bostock v. Clayton County
June 15, 2020 7:41 AM   Subscribe

In a 6-3 decision written by Justice Gorsuch [pdf], the United States Supreme Court has held that "In Title VII [of the Civil Rights Act of 1964], Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law."

Caveat: Under Title VII, "employer" means, among other limitations, those with fifteen or more employees.

NB: The opinion pdf linked in the post does not include the extremely long appendix to Alito's dissent.
posted by jedicus (134 comments total) 67 users marked this as a favorite
 
thank heaven for victories of any kind these days

the dissents are a collective 138 pages; To be fair, when you're rage-writing in crayon and use a lot of exclamation points, the text is bigger
posted by Kybard at 7:44 AM on June 15, 2020 [36 favorites]


A lot of caveats, a lot of skepticism, and really no less fear of the Gorsuch/Kavanaugh court than yesterday. But relief, at least. I’ll take it.
posted by saturday_morning at 7:45 AM on June 15, 2020 [13 favorites]


The lady who was spewing her anti-queer bullshit at a (literal) Blue Lives Matter protest in a Miami suburb yesterday is going to have a (figurative) stroke when she hears this.
posted by wierdo at 7:45 AM on June 15, 2020 [3 favorites]


This is a very big deal.
posted by mr_roboto at 7:52 AM on June 15, 2020 [4 favorites]


Well isn't that something
posted by PMdixon at 7:54 AM on June 15, 2020


"Instead of a hard-earned victory won through the democratic process, today’s victory is brought about by judicial dictate – judges latching on to a novel form of living literalism to rewrite ordinary meaning and remake American law," [Alito] wrote. "Under the Constitution and laws of the United States, this court is the wrong body to change American law in that way."

Says the man who reliably rewrites laws in his opinions. Most of those laws enable white supremacy, via the notion that racism against white people is a threat that has to be addressed from the federal judiciary.

In conclusion, fuck this guy and his spineless lackey Clarence fucking Thomas, and good for the rest of the court for not buying into their bullshit.
posted by Mayor West at 7:58 AM on June 15, 2020 [45 favorites]


I am not able to really provide much right now to this. I am many good feelings and I just need to argle for a second and collect myself.
posted by nikaspark at 8:00 AM on June 15, 2020 [21 favorites]


If I understand this Twitter thread by Sean Trende, a side effect of Roberts joining the majority was that he could assign who writes the majority opinion. Otherwise, it would have been Ginsberg making that assignment.
posted by ZeusHumms at 8:02 AM on June 15, 2020 [12 favorites]


First: This is WAY WAY BIGGER than we realize. For the first time we have federal anti-discrimination protections for LGBT people. This is just...unbelievably incredible.
posted by nikaspark at 8:02 AM on June 15, 2020 [62 favorites]


This feels like a win.
posted by signal at 8:04 AM on June 15, 2020 [8 favorites]


We’ve been fighting for this for so long, it doesn’t really quite feel real yet. I think I’m in shock.
posted by brook horse at 8:05 AM on June 15, 2020 [14 favorites]


I'm pretty sure Alito is consistent enough that he'd argue against Loving on the same grounds. He's just generally scum.

As for Gorsuch and Roberts, I'm unimpressed. We're seeing the same pattern here we've seen in the past. The Republican Justices will allow the occasional civil rights gain through tat doesn't matter to the elites and tout that as proof of their neutrality and judicial objectivity when they make major rulings against civil rights on issues that matter more to the elites.

They'll rule against economic justice and police reform for example.

Still, it's a win and in happy for our LGBT friends and fellow citizens.
posted by sotonohito at 8:07 AM on June 15, 2020 [24 favorites]


I woke up and checked Twitter and was stunned to see this. The SCOTUSBlog announcement was very simple, and yeah. I'm in shock. And happy. But mostly just stunned right now; I was truly girding myself up for it to go the other way.
posted by kalimac at 8:08 AM on June 15, 2020 [2 favorites]


YES! YES, YES, YES!

It ain't the whole fight, but it's an important victory. In a majority of US states it was previously legal to fire someone and say "it's because you're gay." Totally legal.* At least now in Virginia here there's basis for a suit when that shit goes down, which it will continue to.

(* yeah, yeah, there are complicating factors. You know what I mean.)
posted by introp at 8:09 AM on June 15, 2020 [4 favorites]


I'm in shock that it's a 6-3 decision.

As for Gorsuch and Roberts, I'm unimpressed. We're seeing the same pattern here we've seen in the past.

I'm slightly hopeful only because I wonder if this could have a chilling effect on the kinds of cases that the evangelical right might try to bring in front of SCOTUS.
posted by gladly at 8:11 AM on June 15, 2020 [55 favorites]


We're seeing the same pattern here we've seen in the past. The Republican Justices will allow the occasional civil rights gain through tat doesn't matter to the elites and tout that as proof of their neutrality and judicial objectivity when they make major rulings against civil rights on issues that matter more to the elites.

On the other hand, there's a lot of garment-rending on the Right that social conservatism is the point of the Federalist Society, and that Gorsuch and Roberts have betrayed their masters. As noted, "They are so upset lol".
posted by Etrigan at 8:13 AM on June 15, 2020 [16 favorites]


I don't know how to feel. What a world we're living in right now where this isn't just flat-out, untarnished good news. How can something this positive still leave me waiting for the other shoe?
posted by tzikeh at 8:16 AM on June 15, 2020 [11 favorites]


Oh, it's just not the right KIND of literalism now. I guess if your assumption is that Those People have no rights, you will be unable to understand a literal reading of the text in any other light.

Even if this is part of the general conservative-justice strategy of occasionally letting a substantive win through to distract from the constant procedural assault on one's ability to vindicate one's rights, this particular substance drops into a sufficiently enough established framework that...it's big.
posted by praemunire at 8:16 AM on June 15, 2020 [13 favorites]


As a transgender resident of Tennessee, whose right to just work and live my life was never going to be protected by my state, I am just so fucking happy right now. I am crying (btw, taking testosterone does not always stop you from being able to cry). My state is now gray on this map https://twitter.com/kateredburn/status/1272545583333597184 "states where it is now definitely illegal to be fired for being LGBTQ." Thank you Aimee, Chase, Marsha, Sylvia, and too many others.

How the hell am I supposed to work today?
posted by Is It Over Yet? at 8:17 AM on June 15, 2020 [95 favorites]


…They've also refused to hear a challenge to California's sanctuary laws, leaving those laws in place, and have also refused to take on challenges to state laws that regulate gun ownership.

I...is this hope I'm feeling? It's been a while.
posted by EmpressCallipygos at 8:18 AM on June 15, 2020 [25 favorites]


> How can something this positive still leave me waiting for the other shoe?

Well, hopefully it's a positive shoe.
posted by nangar at 8:20 AM on June 15, 2020


They also refused to take up appeals challenging qualified immunity, leaving Clarence Thomas as the sole voice of reason in his dissent on that topic. I hate agreeing with Thomas and his analysis was, as ever, originalist and textualist, but I also think he's right. A rare day.
posted by 1adam12 at 8:24 AM on June 15, 2020 [10 favorites]


Hedged by qualifications, shabby, but, for 2020, 🌈
posted by GenjiandProust at 8:26 AM on June 15, 2020 [8 favorites]


To be suspicious and hopeful at the same time- I think this is about protecting the integrity of the court in the eyes of the public more than any actual belief in the dignity of queer folks. Let me explain. Gorsuch knows he shouldn't be on the court. Obama should have had his appointment. There is a VERY possible case that he *could* be removed as illegitimate- if for example Moscow Mitch gets removed or tied up in some scandal. Kavanaugh is self explanatory- man shouldn't be any sort of judge not to mention the highest. And *so* many of their past decisions, if the makeup of the court changes even a little will be overturned next challenge. Could take 20-30 years- but Roberts and Gorsuch know their court is going to be viewed by history as laughably illegitimate and on the wrong side of history, the way we look at the courts of the Jim Crow era today. Think about how many people are talking about packing the court as a remedy to Trump appointment and maleficence? This has almost nothing to do with queer people- though I'm personally grateful for the ruling- this is a signal that Gorsuch and Roberts know Biden is going to win.
posted by Homo neanderthalensis at 8:26 AM on June 15, 2020 [17 favorites]


As much as I feel weird about agreeing with Gorsuch about anything, ever, I want to take a moment to gloat about that this:

“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,” Gorsuch writes. “Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

is an argument I've been making since I was in college about how anti-LGBT discrimination is necessarily sex discrimination.

Not that this gets me anything except the endless opportunity to educate cis straight people for free, but still.
posted by bile and syntax at 8:26 AM on June 15, 2020 [48 favorites]


Does the wording in this ruling open up avenues for challenging Trump enabling discrimination against trans Americans when accessing health care?
posted by They sucked his brains out! at 8:26 AM on June 15, 2020 [7 favorites]


For those wondering, as I did, how a conservative court talked itself into "discrimination against homosexuals is the same thing as discrimination against sex":
Consider, for example, an employer with two employees, both of whom are at­tracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is at­tracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.
Thin, but if they’ll go for it that’s fine by me.

(Thin because the discrimination could be easily be cast as for being attracted to the same sex, in which case they would also fire the woman if that was true for her.)
posted by Tell Me No Lies at 8:27 AM on June 15, 2020 [6 favorites]


I'm floored Gorsuch joined this, and to a lesser extent, that Roberts did (it was only 5 years ago that he dissented in Obergefell). I'll have to give this a good read tonight to see on what grounds the opinion is made and what the scope of this decision really is.
posted by Room 101 at 8:27 AM on June 15, 2020 [4 favorites]


Does the wording in this ruling open up avenues for challenging Trump enabling discrimination against trans Americans when accessing health care?
Chase Strangio, a lawyer with the ACLU on the Aimee Stephens case, thinks so: The HHS rule is based on an interpretation of sex under federal law. The courts decide not Trump. Today the highest court just decided.
posted by Is It Over Yet? at 8:33 AM on June 15, 2020 [26 favorites]


!
posted by Jacqueline at 8:35 AM on June 15, 2020


As for Gorsuch and Roberts, I'm unimpressed.
While I won’t go so far as to question what you should be impressed by, I will suggest that a little cautious optimism is warranted. As much as lifetime SCOTUS appointments can be a thorn in the side of progress, they also mean that a Justice doesn’t owe anybody anything once they’re appointed, and historically that has resulted in some big ideological surprises, given who appointed them. Roberts has been much more evenhanded than his sponsors in the Bush administration wanted, and shows signs of slowly becoming more so over time, and Gorsuch has always been a corporate stooge, not a fascist. He can at times be persuaded to do the right thing for human rights so long as there’s no money to be made off violating them.

Alito’s gonna Alito, and Thomas is always going to wait for somebody to tell him what he thinks. Kavanaugh remains exactly what the right wants from all Justices: a surly, manifestly unqualified partisan toady acting as the judicial enforcer of their political will. And I’m not saying Roberts and Gorsuch are anything like reliable allies to anyone, but they show signs of independent human thought now and again, as if they actually take the job seriously.
posted by gelfin at 8:43 AM on June 15, 2020 [34 favorites]


USA Today URL: "[...]supreme-court-denies-job-protection-lgbt-workers[...]"
USA Today headline: "Supreme Court grants federal job protections to gay, lesbian, transgender workers"

Strange.
posted by rossmeissl at 8:44 AM on June 15, 2020 [15 favorites]


USA Today URL: "[...]supreme-court-denies-job-protection-lgbt-workers[...]"
USA Today headline: "Supreme Court grants federal job protections to gay, lesbian, transgender workers"

Strange.


I suspect they had pre-written a version of the article assuming that the case would go the other way and then forgot to update the URL before posting.
posted by jedicus at 8:48 AM on June 15, 2020 [29 favorites]


My jaw dropped when I saw the decision. Had this gone the other way - and with this court there was a very good chance of that - it would have been very very bad. As soon as I saw it I texted a friend in Texas who has a trans son. She’s isolating right now, especially since she’s in a covid hotspot, but I know she’s looking to hug anything friendly that moves right now. (Her dogs are probably “what’s going on right now, why does she keep squishing us?”) She is absolutely thrilled. As am I
posted by azpenguin at 8:48 AM on June 15, 2020 [12 favorites]


I suspect they had pre-written a version of the article assuming that the case would go the other way and then forgot to update the URL before posting.

Guess I don't blame them.
posted by rossmeissl at 8:51 AM on June 15, 2020 [6 favorites]


Chase Strangio, a lawyer with the ACLU on the Aimee Stephens case, thinks so: The HHS rule is based on an interpretation of sex under federal law. The courts decide not Trump. Today the highest court just decided.

I'm not a lawyer, but I noticed that same aspect as common to both. Hopefully a future case will clarify protections for all, or we get together and vote in a different person to clean up the messes Trump has made.
posted by They sucked his brains out! at 8:54 AM on June 15, 2020 [1 favorite]


Homo neanderthalensis: Roberts and Gorsuch know their court is going to be viewed by history as laughably illegitimate and on the wrong side of history

I... don't think this is true. I don't think they think they're illegitimate choices, and even if they do think that, I don't think they care. I also don't think they give a rat's ass how history will view them. This is not the Marshall court.
posted by tzikeh at 8:57 AM on June 15, 2020 [12 favorites]


Mod note: One comment deleted, please avoid doomsaying.
posted by travelingthyme (staff) at 8:59 AM on June 15, 2020 [11 favorites]



Thin, but if they’ll go for it that’s fine by me.

(Thin because the discrimination could be easily be cast as for being attracted to the same sex, in which case they would also fire the woman if that was true for her.)


The fact that it is so simple as a test makes this extremely powerful; the very simplicity means you can't easily bypass it.
posted by jaduncan at 9:02 AM on June 15, 2020 [6 favorites]


I agree with tzikeh. There's no way they'll see themselves as illegitimate. It doesn't fit into their view of the world that this is a possibility.
posted by bile and syntax at 9:03 AM on June 15, 2020 [3 favorites]


If the argument is "You can't fire a man for doing something that you wouldn't fire a woman for doing also," what are the implications for restroom usage?
posted by rebent at 9:10 AM on June 15, 2020 [2 favorites]


The opinion says bathrooms are a separate question.
The employers worry that our decision will sweep beyond Title VII to other federal or state laws that prohibit sex discrimination. And, under Title VII itself, they say segregated bathrooms, locker rooms, and dress codes will prove unsustainable af­ter our decision today. But none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today.
posted by paper chromatographologist at 9:13 AM on June 15, 2020 [10 favorites]


Thin, but if they’ll go for it that’s fine by me.

I'm really curious about how this intersects with conservative opinion on LGBTQ+ people as engaging in deviant sexual behavior. Like, conservatives don't think that people ARE gay or trans, they think they're BEHAVING in sinful ways. I wonder how that influenced this opinion, and if that made it easier to defend than an identity-based opinion.
posted by brook horse at 9:18 AM on June 15, 2020 [3 favorites]


Alito’s gonna Alito, and Thomas is always going to wait for somebody to tell him what he thinks.

I'm no fan of Thomas, but I want to point out that this common dig strikes me as, at best, racial stereotyping about the lone black man on the court. Corey Robin wrote persuasively about this in his recent book: Thomas's ideas are malevolent and often downright terrifying, but there's not much basis to characterize him as intellectually passive or lazy when compared to any of his colleagues.
posted by rishabguha at 9:28 AM on June 15, 2020 [43 favorites]


When I saw those three decisions (LGBTQ+, gun laws, sanctuary cities) I wondered if there was some internal party memo about Trump sinking fast and to deny him any "victories" to try to tantrum him out of office more quickly or something. OR, since the country continues to be galvanized over racial injustice and police brutality, not to give the left additional fuel for protests and voter turnout. Just a thought in crazy times.
posted by Glinn at 9:30 AM on June 15, 2020 [2 favorites]


God, just so rare in these times to get any sort of good news. Thanks for this, Supreme Court. I needed it.
posted by potrzebie at 9:34 AM on June 15, 2020 [2 favorites]


I'm no fan of Thomas, but I want to point out that this common dig strikes me as, at best, racial stereotyping about the lone black man on the court. Corey Robin wrote persuasively about this in his recent book: Thomas's ideas are malevolent and often downright terrifying, but there's not much basis to characterize him as intellectually passive or lazy when compared to any of his colleagues.

I agree. If Thomas were truly "always going to wait for somebody to tell him what he thinks," then Thomas would be one of those judges who occasionally rule in a surprisingly correct way. But he never does -- Thomas is practically always, malevolently, consistent in his rulings.
posted by Gelatin at 9:34 AM on June 15, 2020 [23 favorites]


Thomas is always going to wait for somebody to tell him what he thinks.

Not the main point of todays news, but I see this view show up frequently, including multiple times in just this thread. It's wrong, and can veer into racist. Thomas is terrible, and very intelligent, and somewhat odd, but he has his own strongly held (terrible) views for his own reasons. He's not anyone's "lackey" for goodness sake, and certainly not Alito's.
posted by feckless at 9:37 AM on June 15, 2020 [22 favorites]


Oh hey, should have previewed, other folks got there first.
posted by feckless at 9:37 AM on June 15, 2020


Interesting background on the inclusion of the "sex" in the 1964 Civil Rights Act.

According to the thread, it was added by a southern segregationist, possibly as a joke, possibly because he thought it might derail the bill altogether. The inclusion was supported by Alice Paul, Quaker, suffragist, and co-author of the Equal Rights Amendment.

When the the EEOC declined to enforce Title VII for sex, Betty Friedan and other feminist leaders met and founded The National Organization for Women.

History sure can be convoluted.
posted by Winnie the Proust at 9:38 AM on June 15, 2020 [24 favorites]


Kavanaugh, Alito, Gorsuch, and Thomas are all pretty different types of Republican justices, even though they align frequently. Kavanaugh strikes me as a true party functionary who’ll follow whatever those in power are doing at the moment because he cares most about fitting in socially (a follower, not a leader). Alito is a true believer social conservative in the mold of Scalia, driven by disgust for anyone different from him. Gorsuch is a true believer in ideas that are sometimes in vogue with his party and sometimes not, sort of libertarian. And Thomas makes decisions by probably the strictest metric of any strict constructionist judge, which is based on reality in a time when only rich white men had power and thus often aligns with the party of rich white men.

Roberts is just, I don’t even know. The class principal who cares about making everyone look trustworthy rather than the underlying substance of the cases, or something.

If the GOP continues to embody Trumpist philosophy post-Trump, I think we’ll see more and more divergence between Kavanaugh/Alito/Thomas and Gorsuch/Roberts.
posted by sallybrown at 9:47 AM on June 15, 2020 [11 favorites]


Knowing Roberts and the other conservatives on the Court, they've left themselves plenty of options to undermine this decision in the future, unfortunately. I will enjoy Alito's salty dissent while I can though.
posted by longdaysjourney at 9:48 AM on June 15, 2020 [4 favorites]


(Thin because the discrimination could be easily be cast as for being attracted to the same sex, in which case they would also fire the woman if that was true for her.)

I'm not through the whole thing yet, and I admit to be skimming, but this seems to be addressed:
What the employers see as unique isn’t even unusual. Often in life and law two but-for factors combine to yield a result that could have also occurred in some other way. Imagine that it’s a nice day outside and your house is too warm, so you decide to open the window. Both the cool temperature outside and the heat inside are but-for causes of your choice to open the window. That doesn’t change just because you also would have opened the window had it been warm outside and cold inside. In either case, no one would deny that the window is open “because of ” the outside temperature. Our cases are much the same. So, for example, when it comes to homosexual employees, male sex and attraction to men are but-for factors that can combine to get them fired. The fact that female sex and attraction to women can also get an employee fired does no more than show the same outcome can be achieved through the combination of different factors. In either case, though, sex plays an essential but-for role.

At bottom, the employers’ argument unavoidably comes down to a suggestion that sex must be the sole or primary cause of an adverse employment action for Title VII liability to follow. And, as we’ve seen, that suggestion is at odds with everything we know about the statute. Consider an employer eager to revive the workplace gender roles of the 1950s. He enforces a policy that he will hire only men as mechanics and only women as secretaries. When a qualified woman applies for a mechanic position and is denied, the “simple test” immediately spots the discrimination: A qualified man would have been given the job, so sex was a but-for cause of the employer’s refusal to hire. But like the employers before us today, this employer would say not so fast. By comparing the woman who applied to be a mechanic to a man who applied to be a mechanic, we’ve quietly changed two things: the applicant’s sex and her trait of failing to conform to 1950s gender roles. The “simple test” thus overlooks that it is really the applicant’s bucking of 1950s gender roles, not her sex, doing the work. So we need to hold that second trait constant: Instead of comparing the disappointed female applicant to a man who applied for the same position, the employer would say, we should compare her to a man who applied to be a secretary. And because that jobseeker would be refused too, this must not be sex discrimination.

No one thinks that, so the employers must scramble to justify deploying a stricter causation test for use only in cases involving discrimination based on sexual orientation or transgender status. Such a rule would create a curious discontinuity in our case law, to put it mildly. Employer hires based on sexual stereotypes? Simple test. Employer sets pension contributions based on sex? Simple test. Employer fires men who do not behave in a sufficiently masculine way around the office? Simple test. But when that same employer discriminates against women who are attracted to women, or persons identified at birth as women who later identify as men, we suddenly roll out a new and more rigorous standard? Why are these reasons for taking sex into account different from all the rest? Title VII’s text can offer no answer.
posted by brook horse at 9:51 AM on June 15, 2020 [18 favorites]


Did Kavanaugh really conclude his dissent with this?
Notwithstanding my concern about the Court's transgression of the Constitution's separation of powers, it is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans. Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit-battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today's result. Under the Constitution's separation of powers, however, I believe that it was Congress's role, not this Court's, to amend Title VII. I therefore must respectfully dissent from the Court's judgement.
posted by clawsoon at 9:54 AM on June 15, 2020 [3 favorites]


They don’t think they’re illegitimate- but they know a lot of the country thinks about them that way. They care more about legacy then ideological consistency- and especially with the mounting protests, Roberts and Gorsuch have the smidge of awareness that maybe their obits will put them in the same bin as past bad courts. It also to me is a sign that they think Trump will lose. If they thought he’d win- I don’t think they would have ruled this way.
posted by Homo neanderthalensis at 9:54 AM on June 15, 2020 [5 favorites]


According to the thread, it was added by a southern segregationist, possibly as a joke, possibly because he thought it might derail the bill altogether. The inclusion was supported by Alice Paul, Quaker, suffragist, and co-author of the Equal Rights Amendment.

I had no idea she lived until 1977. What a lot of changes she lived through.
posted by Orlop at 10:06 AM on June 15, 2020 [2 favorites]


Fuck it, today I'm gonna party and no one's gonna dead goat my feelings.

If this had gone the other way? Horrific. Yeah there are details, wrinkles, weaknesses, future tests, but this is a clear line in the sand that will require a lot of effort to walk back.

This is a win. Celebrate, then get back to the vigilant fight.

Let me have today, please.
posted by nikaspark at 10:11 AM on June 15, 2020 [48 favorites]


I saw a note on Twitter about how Kavanaugh just wants to be able to continue going to dinner parties in his metropolitan area, so he threw that in as a sop. I don't think the man is as committed to his principles as Alito and Thomas are: if he had principles, after all, he would have told the truth in those hearings.

Gorsuch is an odd duck: I think it's likely he will continue to be mostly a problem but will occasionally come out with a curve ball. The reports on the hearings about the Indian law case in Oklahoma indicate that he's the only member of SCOTUS who has any understanding of federal Indian law. I really hope he gets assigned to write that case, or it's going to be a shitshow for tribal sovereignty.

As for Roberts, it's my suspicion he is desperate to keep the court from looking like a complete tool of the administration. So this Monday we get a bunch of great rulings favorable to the left. What about next Monday, though?
posted by suelac at 10:13 AM on June 15, 2020 [10 favorites]


Did Kavanaugh really conclude his dissent with this?

Wouldn't anything he would say/write about this be a rationalization, on some level, whatever the literal content?
posted by They sucked his brains out! at 10:14 AM on June 15, 2020 [1 favorite]


It also says something that in a case where one of the plaintiffs, and maybe the best-known of the three, was trans, he just congratulated "gay and lesbian Americans" on their victory.
posted by Holy Zarquon's Singing Fish at 10:16 AM on June 15, 2020 [29 favorites]


desperate to keep the court from looking like a complete tool

Unfortunately, even with this decision and a handful of others over the past decade, that ship has long since sailed.
posted by riverlife at 10:20 AM on June 15, 2020 [4 favorites]


This is good news. I hope Kavanaugh chokes on his beer.

And thanks for all those pushing back on the criticism of Thomas having no independent opinion. The man is a bad jurist and a worse human being, but he definitely has a clear, even consistent (if narrow) approach to his role on the bench, and is no one's lackey.
posted by biogeo at 10:45 AM on June 15, 2020 [7 favorites]


Unfortunately, even with this decision and a handful of others over the past decade, that ship has long since sailed.

Has the Trump court (i.e. with Gorsuch and, later, Kavanaugh) really been that uniformly supportive of the right wing though? Among big cases on the pro-right side, there's upholding the travel ban and rejecting the Common Cause gerrymandering case. But they've been generally hostile to the LAW AND ORDER elements of the right, limiting civil forfeitures (another big one, I think) and limiting police access to cell phone records. Then there's this.

It's a mixed record, definitely, but if I were in the fascist wing of the Republican party, I wouldn't be happy with it.
posted by mr_roboto at 10:52 AM on June 15, 2020 [2 favorites]


Thomas is often (partly, I'm 100% sure race plays a part here) seen as inactive because he doesn't do much of his work through oral questions. You might or might not agree with that as a stance, but I can certainly see why it doesn't play well on TV.
posted by jaduncan at 10:53 AM on June 15, 2020 [3 favorites]


Just noting that this weekend was the anniversary of the Orlando Pulse shooting. I'm not convinced that's anything but coincidence but it sure feels powerfully significant to me.
posted by myfavoriteband at 10:57 AM on June 15, 2020 [2 favorites]


I can certainly see why it doesn't play well on TV.

Supreme Court oral arguments have never been televised; I don't think video recordings even exist. Audio recordings are made available to the public after a delay (maybe a couple of weeks?). Live streaming of audio has been made available for some arguments during the COVID pandemic.
posted by mr_roboto at 10:59 AM on June 15, 2020 [2 favorites]


Yes. To be clear, I refer to summings up by reporters.
posted by jaduncan at 11:00 AM on June 15, 2020 [1 favorite]


The idea that the Republican Justices were anything but lapdogs of their party and would gleefully and cheerfully toss aside any pretense of judicial impartiality ended 20 years ago with Bush v Gore.
posted by sotonohito at 11:00 AM on June 15, 2020 [8 favorites]


The talk of Thomas as not his own man is a persistent racist trope, and not just because he doesn’t engage in questioning. For many years he was more hardline than Scalia and despite this was often described as an unthinking tool (and yet Scalia was never portrayed as following Thomas...). Read one of his opinions and it’s clear he’s marching to the beat of his own drum (to put it mildly). Let the man own his badness and the bizarre nature of his legal theories!
posted by sallybrown at 11:02 AM on June 15, 2020 [20 favorites]


The idea that the Republican Justices were anything but lapdogs of their party and would gleefully and cheerfully toss aside any pretense of judicial impartiality ended 20 years ago with Bush v Gore.

I mean, maybe mostly? But there are important counterexamples: Roberts voted to uphold the ACA at time when striking down the ACA was a central Republican priority. I don't think that's a small thing.
posted by mr_roboto at 11:09 AM on June 15, 2020 [7 favorites]




today’s victory is brought about by judicial dictate

Not "diktat"? That's just lazy writing.
posted by The Tensor at 11:32 AM on June 15, 2020 [3 favorites]


This is an unlooked-for ray of light. w00t!
posted by theora55 at 11:37 AM on June 15, 2020


reading it, it seems like gorsuch is drawing this judgement to protect *only* employment protections, and is avoiding ruling on things like dress codes and bathrooms/locker rooms.

This is fairly standard practice for the Supreme Court, especially in more hotly contested decisions. You decide the question(s) put to the court and don't stray into issues not briefed by the parties.
posted by praemunire at 11:44 AM on June 15, 2020 [1 favorite]


I did not expect this. I don't trust it because I worry there's some poison pill in it to be used in later arguments on something else, but I'll happily take the win.
posted by rmd1023 at 11:57 AM on June 15, 2020 [6 favorites]


there's stuff in alito's opinion

I don't know how much of Alito's dissent is missing the point and how much is arguments in bad-faith. He does this:
We now have the four exemplars listed below, with the dis­charged employees crossed out:

Man attracted to men
Woman attracted to men
Woman attracted to women
Man attracted to women

The discharged employees have one thing in common. It is not biological sex, attraction to men, or attraction to women. It is attraction to members of their own sex.
Which either misses Gorsuch's entire point or is just another asshole trolling. The test under Chapter VII is "replace the FIRST word (sex)", and if the resultant example wouldn't have been fired, you have liability.

Thus:
"Man attracted to men" becomes "Man Woman attracted to men", who wouldn't have been fired, therefore liability attaches...
posted by mikelieman at 12:18 PM on June 15, 2020 [6 favorites]


Alito’s gonna Alito, and Thomas is always going to wait for somebody to tell him what he thinks.

...there's not much basis to characterize him as intellectually passive or lazy when compared to any of his colleagues.


In fact, he's far more likely to be the sole dissenter than any of his colleagues, according to this chart, which reports him as having 23 sole dissents on the Roberts court as of a few months ago; Ginsburg was second with 9. He is extremely intellectually independent, for better or (mostly) for worse.
posted by Mr.Know-it-some at 12:19 PM on June 15, 2020 [5 favorites]


The talk of Thomas as not his own man is a persistent racist trope, and not just because he doesn’t engage in questioning. For many years he was more hardline than Scalia and despite this was often described as an unthinking tool (and yet Scalia was never portrayed as following Thomas...).

This is an old graph (NYT link), but note that Scalia/Thomas were tied for the fourth most-aligned justices, behind Sotomayor/Kagan, Roberts/Alito, and Ginsburg/Kagan.
posted by Etrigan at 12:22 PM on June 15, 2020 [1 favorite]


I am overjoyed. It’s a win. I’ll take it. Quick scan of Alito’s dissent leaves me head scratching. I’m surprised by Gorsuch and Kavanaugh. I would have given anything for the majority opinion to have been written by RBG. Today is starting out beautifully.
posted by lemon_icing at 12:26 PM on June 15, 2020 [1 favorite]


I...is this hope I'm feeling?

I've been describing it as "not-despair".
posted by Mr. Bad Example at 12:46 PM on June 15, 2020 [13 favorites]


An interesting theory is floating around about the opinion’s authorship. On Twitter, Katherine Franke suggests that the original majority was the four liberals and Gorsuch and that the Chief joined so he could assign the case to Gorsuch and get a narrower opinion, rather than Ginsburg assigning the opinion to herself and producing something broader.

Of course, Ginsburg might have assigned the opinion to Gorsuch rather than keeping it for herself to reward him for the switch and to keep him on board.
posted by edithkeeler at 1:03 PM on June 15, 2020 [2 favorites]


One bit of analysis I found interesting from Slate's write-up on the decision by Mark Joseph Stern, "Neil Gorsuch Just Handed Down a Historic Victory for LGBTQ Rights":
Gorsuch’s critique is dead right: Alito does not want the court to stretch Title VII beyond its application—as expected by Congress in 1964—and that approach is not textualism. It is anti-textualism. It elevates the alleged mental processes of long-dead lawmakers over the ordinary meaning of words. Bostock was a hack test, a challenge to the conservative justices to stick by their principles even when they lead to a liberal outcome. Gorsuch and Roberts passed. Alito and Thomas failed. Kavanaugh’s more measured dissent argued that the court should’ve let Congress handle a matter of such importance. But, unlike Alito, Kavanaugh seems happy with the result, even congratulating LGBTQ people on winning a battle he thought they should lose.
posted by mhum at 1:04 PM on June 15, 2020 [10 favorites]


Gorsuch knows he shouldn't be on the court. Obama should have had his appointment. There is a VERY possible case that he *could* be removed as illegitimate- if for example Moscow Mitch gets removed or tied up in some scandal.

I completely agree with the premise that it's about protecting the legitimacy of the court but I view that as being in the face of even center-left folks getting curious about court-packing and ways to circumvent the institution altogether. As far as a Justice being removed as illegitimate due to the circumstances of their appointment - has anything like that ever happened, and does anything that occurred here actually violate the "rules" of appointments (scare quotes implying that I am skeptical that there really are a lot of fixed rules)? Only thing I can think is perhaps somebody could turn up another harrasment/assault/abuse incident from one of these guys and impeach him for that - obviously justices can in theory be turfed out over their own scandals.
posted by atoxyl at 1:11 PM on June 15, 2020 [2 favorites]


Did Kavanaugh really conclude his dissent with this?
Concern trolling over the appropriate vector or venue for change is the cowardly fascist’s version of tone policing. It’s meant to deflect anger from the left (by not openly objecting to the substance of the change) while appealing to bigots on the right (by insinuating that the change was accomplished illegitimately).

You see it most often in geographical shell games: the “correct” scope of governmental authority for a Republican is always the widest scope that gives bigots the power to enforce their bigotry downwards. If you can’t get support to oppress, e.g., LGBT people federally, then the “correct” venue is the states. If you can’t get it in the states, then it ought to be by county, and so forth until bigotry is defended as a rightful matter of individual conscience.

Kavanaugh is doing basically the same thing here, and it’s nothing we haven’t seen before. If something is accomplished by executive order, then it needed to go through the courts. If it’s accomplished by court ruling, then it’s “activist judges” and needed to be passed as a law. If it’s proposed as a law, then it’s a waste of time for something that could be accomplished by executive order. It’s just bullshit procedural games in defense of the indefensible.
posted by gelfin at 1:40 PM on June 15, 2020 [35 favorites]


Imagine being so fucking stupid that you care about what's in Kavanaugh's heart instead of his ruling.

(edit: directed at Mark Joseph Stern, just to be clear)


That doesn't seem like a very fair attack on a journalist who is reporting one aspect of a dissent. Unless I'm missing some context here, should Stern have just ignored this part?
posted by Think_Long at 1:41 PM on June 15, 2020 [4 favorites]


I wish I had enough juice left to feel something, but one good thing at least. I think I find it hard to believe any more.
posted by jenfullmoon at 1:44 PM on June 15, 2020 [1 favorite]


It is interesting that Kavanaugh is that potentially concerned about his PR. Kennedy was also known for being somewhat vain or concerned with his personal reputation, and that may have been part of the reason for his Obergefell opinion after a series of anti-gay rights decisions earlier in his time on the Court.
posted by sallybrown at 1:44 PM on June 15, 2020 [3 favorites]


Oddly not a single peep yet from the Federalist Society, or at least nothing showing up on their website, Twitter feed, or Facebook page. Wouldn't be surprised if, like USA Today, they had one statement ready to go, but are madly revising it in the face of their judicial puppets' 3-2 vote split.
posted by hangashore at 1:50 PM on June 15, 2020 [4 favorites]


I read Kavanaugh’s dissent today as a kind of personal ‘I’m Actually A Good, Impartial Guy!’-branding strategy to assist the defense in his future Senate impeachment.
posted by edithkeeler at 1:54 PM on June 15, 2020 [1 favorite]


My read is that Gorsuch is possibly the only conservative justice who sometimes argues in good faith. The other four are either ideologues (Alito, Thomas) or politicians in costume (Roberts, Kavanaugh). Gorsuch allowed his philosophy to lead him into a decision with the liberals. The other conservatives would never allow such a thoughtcrime to occur.
posted by Glibpaxman at 2:04 PM on June 15, 2020 [3 favorites]


And if McConnell hadn't stolen the seat that got Gorsuch where he is, we might have had avoided this Kavanaugh fella all together. Instead even Scalia's death couldn't get us a SCOTUS that wasn't wildly political, unrepresentative of the body politic in both religious affiliation and gender, and knowingly buttressed with at least two known perpetrators of sexual assault.

Gorsuch is an asshole, but he's an asshole within normal parameters.
posted by aspersioncast at 2:26 PM on June 15, 2020 [5 favorites]


I've heard around that Kavanaugh's reason for including that may have been about wanting to continue to be invited to dinner parties in DC.

Honestly, I would not be at all surprised. It's totally the kind of person he is.
posted by bile and syntax at 3:10 PM on June 15, 2020 [5 favorites]


Gorsuch knows he shouldn't be on the court. Obama should have had his appointment. There is a VERY possible case that he *could* be removed as illegitimate- if for example Moscow Mitch gets removed or tied up in some scandal. Kavanaugh is self explanatory- man shouldn't be any sort of judge not to mention the highest.

Is there any realistic mechanism for removing Gorsuch and Kavanaugh on the grounds of unfairness and/or illegitimacy, other than a Freddie-the-Lobster-getting-these-fucking-rubber-bands-off wish fulfilment scenario of the left getting full spectrum dominance of the legislature and executive branch and then deciding that it's payback time and no more Mr. Nice Guy?
posted by acb at 3:18 PM on June 15, 2020 [4 favorites]


No.
posted by Huffy Puffy at 3:41 PM on June 15, 2020 [3 favorites]


Is there any realistic mechanism for removing Gorsuch and Kavanaugh on the grounds of unfairness and/or illegitimacy [...]

IANAL, but probably not, because impeachment is directed against a person's conduct, not the circumstances of their appointment. However, I don't believe it would be hard to drum up some scandal involving basically anybody if the political will were there. In the case of "Bart" Kavanaugh, you wouldn't even need to be creative: it can probably be shown that he lied during his confirmation hearing.
posted by Joe in Australia at 3:46 PM on June 15, 2020 [3 favorites]


It could be done if there were the will to do it and the establishment Dems weren't partially captive to the same monied interests as *cough* those guys. I firmly believe impeaching Kavanaugh is at least as important as impeaching Trump and probably more attainable in their respective timeframes.

So . . . let's do it! #defrocKavanaugh!

(Disrobe would be funnier but . . . no one wants that)
posted by aspersioncast at 3:51 PM on June 15, 2020 [3 favorites]


The last time either party had 2/3 of the Senate was 1967, and a bunch of those guys were segregationists.

The only time any Supreme Court Justice was impeached was 1804, and he got acquitted.

There’s always some chance of a heretofore unknown scandal motivating a resignation, as happened with a couple of guys in the late 60’s/early 70’s, but still very very unlikely. We’ll be waiting a long time.
posted by Huffy Puffy at 3:55 PM on June 15, 2020 [7 favorites]


Maybe with that attitude! (I know it's actually wildly infeasible. But a feller can dream).
posted by aspersioncast at 4:00 PM on June 15, 2020


OK, I've read about as much of the dissent as I can handle for a while. My main takeaway (other than the fact that Alito's writing style is exactly as assholish as Scalia's, but without a single hint of his wit or capability) is that issues of sexual orientation so often seem ridiculous if an equivalent racial framing were made.

To retread Alito's concluding remarks already linked above and to highlight what I think was a missed opportunity by Gorsuch et al., consider what would happen below if instead of sex, we substituted race.

Quoth Alito, but turning it into an argument about race:
We now have the four exemplars listed below, with the dis­charged employees crossed out:

Black man attracted to white woman
White man attracted to white woman
White woman attracted to black man
Black woman attracted to black man

The discharged employees have one thing in common. It is not biological sex race, attraction to men black people, or attraction to women white people. It is attraction to members of their own sex a different race.
Alito's same logic would mean it's legitimate to discriminate against employees in interracial marriages, because white and black employees are treated the same way. He's literally positing a legal argument against interracial relationships.
posted by Room 101 at 4:13 PM on June 15, 2020 [17 favorites]


This is incorrect. The grounds for impeachment are whatever a majority of the House says they are. They could impeach Kavanaugh for his chronic halitosis if they had the votes.
This is technically true, but what stops them is both the high bar for conviction (in the case of impeachment) and the knowledge that any line one side crosses is available to the other side sometime in the not-too-distant future. See also “pack the court” suggestions.
posted by gelfin at 6:41 PM on June 15, 2020 [3 favorites]


Impeaching a judge for halitosis or some other crap is clearly unconstitutional and anyone doing it would be violating their oath of office. It's true there's no practical way to enforce the issue if it ever comes to that but it doesn't change the meaning of the underlying law. Judges can be removed for treason, bribery, high crimes, otherwise they serve during "good behavior." (FWIW I think perjury or bribery prior to, but during the act of, taking office would be completely impeachable.)

"Packing" the court by expanding it is clearly constitutional. Setting the size of the court is explicitly allowed. Doing it in response to a court you don't like does get into a "wisdom" question, but it is one of the few checks and balances on the judicial branch.
posted by mark k at 7:55 PM on June 15, 2020 [3 favorites]


The grounds for impeachment are whatever a majority of the House says they are.

The grounds for impeachment are rape charges that were never investigated. Kavanaugh is just one more bag of shit to clean up after Trump.
posted by They sucked his brains out! at 8:21 PM on June 15, 2020 [9 favorites]


Kavanaugh's finances were never and still have not been thoroughly investigated. Somebody put up a lot of money to pay off his various debts, and depending on who it is, there could be significant potential for scandal there. Bad enough to force him to resign? There's no way to know without looking into it, which I hope the next Congress will do.
posted by Nat "King" Cole Porter Wagoner at 9:05 PM on June 15, 2020 [17 favorites]


I genuinely hope the next Congress will look into Kavanaugh, though I'm hardly going to hold my breath. His conduct merited one of former Justice Stevens' exceptionally rare public comments, and while Stevens kept to his typical understated style, him saying someone lacked the temperament to sit on the court is the equivalent of an epic burn.
posted by bile and syntax at 7:57 AM on June 16, 2020 [8 favorites]


Alito’s frothing at the mouth over precious originalism and judicial responsibilities is shown to be hypocrisy in his refusal to grant cert to the qualified immunity cases.

He’s fine with breaking his own rules as long as it benefits his authoritarianism.
posted by Revvy at 8:02 AM on June 16, 2020 [4 favorites]


if anybody wants to drink conservative tears like they were a martini, at least until the next bad decision, I suggest Rod Dreher's writing about this

he's genuinely aghast that the religious conservative agreement to accept Trump failed them yesterday

I can't believe I know more than a professional Christian does about contracts with the devil -- the devil never fucking delivers, that is his entire deal
posted by Countess Elena at 8:05 AM on June 16, 2020 [20 favorites]


he's genuinely aghast that the religious conservative agreement to accept Trump failed them yesterday

Actually it seems more heady that that. He's aghast that the religious conservative agreement to accept Republicans failed them yesterday.

Unfortunately he's not interested in breaking with them, just in stating that the Republicans are not enough on their own and more community work is needed.
posted by Tell Me No Lies at 8:28 AM on June 16, 2020 [3 favorites]


Rod Dreher's writing about this

This is a fascinating (if delusional) piece. Among other things it’s like a confession of longing to be part of a “resistance” from a wing of the culture war that’s so publicly scornful about the Never Trump GOPers or anyone trying to “resist” Trump. You missed the boat, Rod. The real test came and you flunked it.
posted by sallybrown at 8:35 AM on June 16, 2020 [4 favorites]


I am fascinated by all the implications and ripple effects this will have throughout federal agencies and policies. Basically everything that relied on Title VII's interpretation of sex just got rewrote yesterday...
posted by nikaspark at 8:45 AM on June 16, 2020 [1 favorite]


This is such a big win. It's these things that really highlight the differences between Canadian and US systems and it's always good when the US moves to being more fair.

Just noting that this weekend was the anniversary of the Orlando Pulse shooting. I'm not convinced that's anything but coincidence but it sure feels powerfully significant to me.

So many acts of notable mass violence have occurred in the last 200+ years that any day is going to be associated with something. Especially when you factor in that stuff like riots/mass protests/mob behaviour often occur over several days. It's a relation of the GOPs constant "now's not the time to talk about gun control" every time there is a mass shooting. There is _always_ an incident in the last couple weeks. That's one way you know you have a problem.

Kavanaugh's finances were never and still have not been thoroughly investigated. Somebody put up a lot of money to pay off his various debts, and depending on who it is, there could be significant potential for scandal there. Bad enough to force him to resign? There's no way to know without looking into it, which I hope the next Congress will do.

At a minimum it might be found that some/all of the funds ultimately came from Koch or some other moneyed crusader and he should recuse himself from any issue they are funding.

The grounds for impeachment are rape charges that were never investigated.

Or the decidedly sketchy situation around the opening on the court in the first place.
posted by Mitheral at 9:11 AM on June 16, 2020 [5 favorites]




Among other things it’s like a confession of longing to be part of a “resistance” from a wing of the culture war that’s so publicly scornful about the Never Trump GOPers or anyone trying to “resist” Trump.

All Americans view themselves as a resister. It's part of the national identity. Everyone loves an underdog.
posted by Apocryphon at 3:59 PM on June 16, 2020 [3 favorites]


"Alito's same logic would mean it's legitimate to discriminate against employees in interracial marriages, because white and black employees are treated the same way. He's literally positing a legal argument against interracial relationships."

Alito later distinguishes that by arguing that without the context of longstanding discrimination against interracial couples being part of the structural apparatus of racism, that it would be fine to fire people in interracial couples. Somehow, in all of his pages and pages of dissent, he failed to note any historical structural discrimination against lgbt+ people.
posted by klangklangston at 6:19 PM on June 16, 2020 [6 favorites]


One thing that's worth noting about the Gorsuch opinion: It is entirely a LIBERAL opinion, in the traditional sense of liberalism. It is consummately concerned with individual liberties and using that framework to defend rights. On the left, it's fashionable to bash liberalism, but a lot of people have only a vague idea of what liberal political opinion looks like. It would be possible to come to the same conclusion (that this is prohibited discrimination) within a left framework, but too often "liberal" is just used to mean "insufficiently left," so it's worth recognizing what actual liberal legal philosophy is.
posted by klangklangston at 6:25 PM on June 16, 2020 [8 favorites]


Joe Patrice at Above the Law sees the decision as a Trojan Horse.
posted by jamjam at 6:39 PM on June 16, 2020


Patrice's take seems eminently plausible in terms of what Roberts and Gorsuch's long-term plan is. But the examples Patrice cites from the opinion just seem like bog-standard stuff that you could find in the statutory construction caselaw of any court in the country. True, a Sotomayor opinion would have been preferable for many reasons, and might have spared us the citations to Webster's as well. But using dictionaries to resolve disputes over what words mean isn't some weird right-wing invention; it's kind of what dictionaries are for.

I mean, this opinion's language surely lends some incremental weight to Gorsuch's particularly unwholesome vision of statutory construction. But in the end there's only going to be a majority for overturning Chevron when there's a majority for overturning Chevron. And that's going to remain chiefly a function of how many reliable Federalist Society functionaries are currently on the court.

(Incidentally, the whole campaign against Chevron deference seems weirdly short-sighted for a movement that otherwise seems intently focused on the long game. Apart from a brief interlude in the late 20th century, the idea that administrative agencies are somehow inherently less reliable servants of wealth and power than the courts are is hard to square with reality. But I cannot claim to know what motivations lurk in the toxic mud at the bottom of Leonard Leo's alleged heart.)
posted by Not A Thing at 8:24 PM on June 16, 2020 [6 favorites]


I have to admit, I don't comprehend the actual reason given, which looks--to me-- like it passively denies LGBT as a valid category, and uses some other rule, sexual discrimination, to get the result. I saw the paragraphs but I find legal writing so unconcise and impenetrable. I can see the appeal of solving one issue in terms of another... but sometimes the output of that is spaghetti code.
posted by polymodus at 4:49 AM on June 17, 2020


if anybody wants to drink conservative tears like they were a martini, at least until the next bad decision, I suggest Rod Dreher's writing about this

Rod Dreher:

Politics, as the saying goes, is downstream from culture. Because we on the Christian Right lost the culture war, we lost political power. Our days as a formidable force in American national politics are over.

Also Rod Dreher:

Totalitarianism is a mindset before it is anything else. Totalitarianism is the idea that there is no area of life that is free from politics — and that also means cultural politics.

I appreciate Rod Dreher for just putting it all out there and confirming Corey Robin's definition of conservatism. I also appreciate him for proving why legislation regulating interactions with others should not have religious exemptions per se.
posted by PMdixon at 5:47 AM on June 17, 2020 [8 favorites]


I have to admit, I don't comprehend the actual reason given, which looks--to me-- like it passively denies LGBT as a valid category, and uses some other rule, sexual discrimination, to get the result. I saw the paragraphs but I find legal writing so unconcise and impenetrable. I can see the appeal of solving one issue in terms of another... but sometimes the output of that is spaghetti code.

The decision actually grapples with that, in a passage that boils down to "we know this is a reductionist way to look at discrimination against LGBT people, but that doesn't mean the logic doesn't work." The passage goes:
We agree that homosexuality and transgender status are distinct concepts from sex. But, as we’ve seen, discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.
posted by Holy Zarquon's Singing Fish at 7:01 AM on June 17, 2020


IANAL but there isn't really a federal law that explicitly says "you can't discriminate against categories" so it's almost forcing you to fit it into the gender framing.

The 14th amendment could prevent government discrimination against classes of people but wouldn't help with private employers.
posted by mark k at 7:28 AM on June 17, 2020 [1 favorite]


So, the Civil Rights Act of 1964, as it’s currently codified in federal law, says in part:
(a) Employer practices
It shall be an unlawful employment practice for an employer—
(1) 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; [emphasis mine]
Should federal law have already explicitly protected LGBT people? Yes, I think so. But such a law had not been passed, so for example a bunch of states passed laws that covered this. This case argued successfully that you didn’t need some broader constitutional argument about equality or to broaden the implicit antidiscrimination language, but that discrimination against LGBT people is discrimination based on sex and as such is already prohibited under the letter of current federal law.
posted by Huffy Puffy at 8:06 AM on June 17, 2020 [4 favorites]


It seems to me that a good thing about the framing used by this decision is that an attempt to sidestep the result by using the Religious Freedom Restoration Act would also mean that the protections afforded to other protected classes could be sidestepped. I.e., if the RFRA protects someone who claims their religion prohibits them from employing gay women, it would also protect someone who claims their religion prohibits them from employing Black women. I hope that would be a bridge too far even for the religious right.
posted by Joe in Australia at 3:03 PM on June 17, 2020 [1 favorite]


But, as we’ve seen, discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.

Yeah so this is the part where the way lawyers think just comes across as … outdated? The whole rhetoric of this depends on what you choose to define as "discrimination based on sex". If the argument is X -> Y, and you hold X, of course that is superficially correct, but nevertheless fallacious if it hinges on what precisely X means. And I think there's a logical cheat being used by changing what X means here.

To most people, discrimination based on sex means the sex of the person being potentially discriminated. But rhetorically that is not how the argument is using that to mean. The preceding sentence, "we agree that LGBT is distinct from sex" is vacuously true. Their mistake is in magical thinking of A ≠ B and asserting that A is a subclass of B, when that is completely arguable. Social constructionists have explicitly said that LGBT being reduced to sex is a type of essentialism. They are irreducible and therefore a category error to say that one is the other (or as the justices assert, inextricably entwined, but like how, exactly?).

Last I checked, homosexuality is defined as independent of the person's sex. That is the widely understood definition based on science and gender studies. By changing the definition of "sex" and/or the definition of "based on", we are getting the desired legal result.

I would apply a biopolitics argument, e.g. Foucault. Ultimately, everything is based on sex. So everything applies! Bad premises, plug-and-chug, bad output. By punting the conceptual issue in this way, the justices are not grappling with basic questions. They're just operating legal machinery and arguing rhetorically, not logically.
posted by polymodus at 4:49 PM on June 17, 2020


Polymodus, I find the court's reasoning very persuasive and I don't understand your objection. It seems to me that you're saying that the same act has a different nature depending on the gender of the person carrying it out. E.g., Alice and and Bob have "sex", while Alice and Barbara have "gay sex". Alice's employer argues that he is entitled to fire employees for having "gay sex", as long as he does so no matter what their gender is. But surely that's merely semantics: a racist employer might argue that he is entitled to fire employees for having "miscegenative sex", and that he is acting legally as long as he punishes both White and Black employees evenhandedly. But that would be nonsense. You can't define away discrimination just by applying an extra adjective. And once you concede that you can't fire married employees for "having gay sex" it necessarily protects married TG employees too: either you recognise their gender, in which case they're just "having sex"; or you don't, in which case they're "having gay sex". Either way, they're protected.
posted by Joe in Australia at 9:11 PM on June 17, 2020 [1 favorite]


Even shorter: the court has placed this within an extremely robust area of statue and case law precedent (discrimination on the basis of gender) and has been explicit about doing so. You should be happy that the court's logic now directly implies that, say, a refusal to recognise the rights of trans/same-sex partners to visit relatives in hospital is sex discrimination.

The court doesn't want to invent novel principles, and the judgement is much more robust for having used existing principles to create a greater ambit of protection.
posted by jaduncan at 9:37 PM on June 17, 2020 [3 favorites]


By punting the conceptual issue in this way, the justices are not grappling with basic questions. They're just operating legal machinery and arguing rhetorically, not logically.

Isn't that the whole m.o. of the judicial system
posted by Apocryphon at 11:35 PM on June 17, 2020 [2 favorites]


Polymodus: I see the logical step as saying “bioessentialism is the manner in which LGBT people are discriminated against the basis of sex”. As in they are referencing bioessentialism NOT in a way that reinforces it, but rather in a way which takes bioessentialism down for the count.
posted by nikaspark at 1:05 AM on June 18, 2020 [2 favorites]


The Supreme Court has also blocked Trump's move to end DACA.
posted by EmpressCallipygos at 7:38 AM on June 18, 2020 [8 favorites]


I wanted to put in a footnote here that I discovered via the recent FPP on the Gullah Geechee culture (among other things) as a bit of pushback for this take on Thomas's behavior upthread:

and Thomas is always going to wait for somebody to tell him what he thinks

Well, maybe that's not such a great take as I recently learned:

US Supreme Court Justice Clarence Thomas was raised as a Gullah-speaker in coastal Georgia. When asked why he has little to say during hearings of the court, he told a high school student that the ridicule he received for his Gullah speech, as a young man, caused him to develop the habit of listening, rather than speaking, in public.[8] Thomas's English-speaking grandfather raised him after the age of six in Savannah.*

posted by RolandOfEld at 8:41 AM on June 18, 2020 [9 favorites]


Lord knows there are lots of awful and yet utterly truthful things you can say about Thomas, but (while I'm too lazy to go look this up) IIRC he's also been on record as saying that he hardly ever asks questions in oral argument because he thinks oral argument is stupid and unnecessary.
posted by GCU Sweet and Full of Grace at 9:38 AM on June 18, 2020 [5 favorites]


"Last I checked, homosexuality is defined as independent of the person's sex. That is the widely understood definition based on science and gender studies. By changing the definition of "sex" and/or the definition of "based on", we are getting the desired legal result."

Homo- or heterosexuality cannot be defined without a reference to an individual's sex. Sine qua non, dude.
posted by klangklangston at 1:53 PM on June 18, 2020


I will say that my creeping fantods in reading this are how well it would decimate any affirmative action program.
posted by klangklangston at 1:54 PM on June 18, 2020


In other Trump civil rights news: Facebook Removes Trump Ads with Symbol Once Used by Nazis to Designate Political Prisoners (WaPo)

The article notes that 'eighty-eight ads with the inverted triangle ran in total,' which seems like an odd choice for an ad buy, but, then again...
posted by box at 2:07 PM on June 18, 2020 [2 favorites]


Last I checked, homosexuality is defined as independent of the person's sex.

No. My being a homosexual and my being a man are very much connected. I didn't start off knowing I was a homosexual and infer from the fact I want to fuck men that I'm a man. I started off knowing I was a man and inferred from the fact that I want to fuck (~only) men that I'm a homosexual.
posted by PMdixon at 2:28 PM on June 18, 2020 [8 favorites]


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