Significant Supreme Court Ruling Issued Today (Re: Lgbtq)

[Scott Lloyd]

2 minutes ago, Daniel2 said:

The protection of which the ruling does mention, as well, even though there were no religiously-based questions before the court. 

If there is any risk at all of this ruling abridging the free exercise of religion, now or in the future, I should think the Church would be prudent to withhold its support. 

[Daniel2]

1 minute ago, Scott Lloyd said:

If there is any risk at all of this ruling abridging the free exercise of religion, now or in the future, I should think the Church would be prudent to withhold its support. 

I don’t see any material differences between this ruling and the legislation the Church already supported, other than this ruling only addresses employment and doesn’t address housing (which wasn’t before the court anyway). So it’s actually less than what the Church is already on record supporting.

[Daniel2]

3 hours ago, smac97 said:

So sexual orientation is not a "'sex' category of Title VII."  Male, female and . . . gay?

Thoughts?

-Smac

When one reads the actual ruling instead of reporting by a religious news website, it’s clear that court did not rule that “gay” is a category of sex.

Rather, it ruled that homosexuality and trandender-ism are covered by Title VII “on the basis of sex,” just as “motherhood” and “sexual harassment” are and have been legally ruled be, and upon which legal president the court partially-based its findings. 

For everyone, the full ruling is here and is worth the read: 

https://assets.documentcloud.org/documents/6944617/6-15-20-Bostock-Opinion.pdf

Edited June 15, 2020 by Daniel2

[Scott Lloyd]

12 minutes ago, Daniel2 said:

I don’t see any material differences between this ruling and the legislation the Church already supported, other than this ruling only addresses employment and doesn’t address housing (which wasn’t before the court anyway). So it’s actually less than what the Church is already on record supporting.

Maybe you don’t see it, and maybe I don’t see it, but I gather from what Smac posted that this ruling is setting the stage for future conflict in this regard. 

[smac97]

1 hour ago, provoman said:

I read the majority as saying gay, trans, straight, and any other orientation related to "sex" ( male or female) is now a protected class.

The majority is saying this about a statute that has no language saying that.  That's my concern.

Quote

I base this on my understanding of the Court saying that orientation based considerations necessarily relie on notions of male or female.

Conflating sexual orientation with gender also doesn't work for me.  

Thanks,

-Smac

Edited June 15, 2020 by smac97

[Anijen]

My two cents of thought...

I think regardless, there will be law suits in the near future. This will be accomplished by a gradual shift in objectives during the course of a campaign to make temple marriage available (mission creep). This opens up different possible paths. For example, since Obergefell allowed marriage as a fundamental right to all same-sex couples, it could be argued (and probably will be), that it is unconstitutional prohibiting a same sex couple to be married in the temple. Another path I see being used is by arguing with the same rational SCOTUS used in this decision (business hiring practices) and apply them to religious type marriages. I have read the opinion and even though religion was promised that their own rights will not be affected, I can, nevertheless see the same reasoning being used. That being, the ruling that firing someone because they identify as gay or transgender falls under the ban in Title VII of the act on employment discrimination. Thus, these same type of arguments will be used  for allowing temple marriage because even religion cannot take away a fundamental right.

Here, in the past, on this board, I said that there will be suits pitting a constitutional right against another constitutional right. I ended up being correct and that has since came to pass. I am just the messenger here and not taking a side, so please hold your vitriol for someone else. Once more, I am simply predicting the law suits will come soon and probably in the manner I described.

Edited June 15, 2020 by Anijen

[pogi]

35 minutes ago, smac97 said:

It a statute that has no language saying that.  That's my concern.

Conflating sexual orientation with gender also doesn't work for me.  

Thanks,

-Smac

I don't think the court is conflating sexual orientation with gender.  This is the opinion of the court.  Makes sense to me:

Quote

There is simply no escaping the role intent plays here: Just as sex is necessarily a but-for cause when an employer discriminates against homosexual or transgender employees, an employer who discriminates on these grounds inescapably intends to rely on sex in its decisionmaking.  Imagine an employer who has a policy of firing any employee known to be homosexual. The employer hosts an office holiday party and invites employees to bring their spouses. A model employee arrives and introduces a manager to Susan, the employee’s wife. Will that employee be fired? If the policy works as the employer intends, the answer depends entirely on whether the model employee is a man or a woman.  To be sure, that employer’s ultimate goal might be to discriminate on the basis of sexual orientation.  But to achieve that purpose the employer must, along the way, intentionally treat an employee worse based in part on that individual’s sex

and more:

Quote

From the ordinary public meaning of the statute’s language at the time of the law’s adoption, a straightforward rule emerges:  An employer violates Title VII when it intentionally fires an individual employee based in part on sex. It doesn’t matter if other factors besides the plaintiff ’s sex contributed to the decision. And it doesn’t matter if the employer treated women as a group the same when compared to men as a group.  If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee—put differently, if changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred. Title VII’s message is “simple but momentous”:  An individual employee’s sex is “not relevant to the selection, evaluation, or compensation of employees.”  Price Waterhouse v. Hopkins, 490 U. S. 228, 239 (1989) (plurality opinion). 
 The statute’s message for our cases is equally simple and momentous:  An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on 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.  Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause of his discharge. Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision. 

 

Edited June 15, 2020 by pogi

[Scott Lloyd]

12 minutes ago, Anijen said:

My two cents of thought...

I think regardless, there will be law suits in the near future. This will be accomplished by a gradual shift in objectives during the course of a campaign to make temple marriage available (mission creep). This opens up different possible paths. For example, since Obergefell allowed marriage as a fundamental right to all same-sex couples , it could be argued (and probably will be), that it is unconstitutional prohibiting a same sex couple to be married in the temple. Another path I see being used is by arguing with the same rational SCOTUS used in this decision (business hiring practices) and apply it to religious type marriages. I have read the opinion and even though religion was promised its own rights will not be affected, I can nevertheless see the same reasoning used. That being the ruling that firing someone because they identify as gay or transgender falls under the ban in Title VII of the act on employment discrimination. Thus, these same type of arguments will be used but the for allowing temple marriage because even religion cannot take away a fundamental right.

Here, in the past, on this board, I said that there will be suits pitting a constitutional right against another constitutional right. I ended up be correct and that has since came to pass. I am just the messenger here and not taking a side so please hold your vitriol for someone else. Once more, I am simply predicting the law suits will come soon and probably in the manner I described.

So I gather from this that lexical duplicity (conflict over the definition of marriage) might be the basis of future lawsuits. 

Edited June 15, 2020 by Scott Lloyd

[Daniel2]

17 minutes ago, Anijen said:

My two cents of thought...

I think regardless, there will be law suits in the near future. This will be accomplished by a gradual shift in objectives during the course of a campaign to make temple marriage available (mission creep). This opens up different possible paths. For example, since Obergefell allowed marriage as a fundamental right to all same-sex couples , it could be argued (and probably will be), that it is unconstitutional prohibiting a same sex couple to be married in the temple. Another path I see being used is by arguing with the same rational SCOTUS used in this decision (business hiring practices) and apply it to religious type marriages. I have read the opinion and even though religion was promised its own rights will not be affected, I can nevertheless see the same reasoning used. That being the ruling that firing someone because they identify as gay or transgender falls under the ban in Title VII of the act on employment discrimination. Thus, these same type of arguments will be used but the for allowing temple marriage because even religion cannot take away a fundamental right.

Here, in the past, on this board, I said that there will be suits pitting a constitutional right against another constitutional right. I ended up be correct and that has since came to pass. I am just the messenger here and not taking a side so please hold your vitriol for someone else. Once more, I am simply predicting the law suits will come soon and probably in the manner I described.

I predict that this ruling, along with Obergefell, will have the same net effect on religious liberty, religious employment, and religious marriage that the Civil Rights Act of 1964 and Loving vs. Virginia had on religious liberty, religious employment, and religious marriages, with similar lawsuits resulting in all similar successes and similar failures.

To my knowledge, some 56 years after the Civil Rights Act, the LDS Faith has not once been legally forced to change their religious doctrines on race or gender; nor have the been forced to hire/employ people of any given race/mixed race or even gender (in fact, it's top leadership still doesn't reflect any black individuals, nor does it's Priesthood body allow the ordination of females); nor have they been required to solemnize interracial marriages in any of their temples, and not even in their chapels, and certainly no LDS clergy were forced to perform any such marriages anywhere, and certainly not against their will.

Yep... I submit any similar challenges by misguided LGBT individuals to the Church will be met with the same outcomes.  And I certainly support the Church's right to only hire and marry people that it wants to, and while I support grassroots or social efforts to effect change, I would be openly critical of any LGBT individuals who try to use the courts to legally force the Church to change in such areas.

Edited June 15, 2020 by Daniel2

[provoman]

26 minutes ago, smac97 said:

It a statute that has no language saying that.  That's my concern.

 

Thanks,

-Smac

Ah got it, understood. 

[Daniel2]

40 minutes ago, Scott Lloyd said:

Maybe you don’t see it, and maybe I don’t see it, but I gather from what Smac posted that this ruling is setting the stage for future conflict in this regard. 

My perception is that Smac often employs tactics (also used by others) that strike me as bordering on fear-mongering in the attempt to rally the faithful to usually conservative causes, misguided as I believe that tactic to be. 

Of course, I don't expect the two of you to agree with me on that point.    In MY worldview, one can support religious liberty AND support equal civil rights for the LGBT community.  It doesn't have to be either/or, and compromise and respect must flow both directions.

Edited June 15, 2020 by Daniel2

[Anijen]

4 minutes ago, Scott Lloyd said:

So I gather from this that lexical duplicity (conflict over the definition of marriage) May be the basis of future lawsuits. 

Yes. Specifically I am predicting the same arguments for business hiring practices in the future will be used for same sex temple marriage. I think in incremental suits that will grow closer to that objective. This leap-frogging legal technique has been successfully employed in the past and I believe it will continue to be employed in that manner.

 

5 minutes ago, Daniel2 said:

I predict that this ruling, along with Obergefell, will have the same net effect on religious liberty, religious employment, and religious marriage that the Civil Rights Act of 1964 and Loving vs. Virginia had on religious liberty, religious employment, and religious marriages, with similar lawsuits resulting in all similar successes and similar failures.

I can agree with this.

 

Quote

To my knowledge, some 56 years after the Civil Rights Act, the LDS Faith has not once been legally forced to change their religious doctrines on race; nor have the been forced to hire/employ people of any given race/mixed race; nor have they been required to solemnize interracial marriages in any of their temples.

I can't think of any thing in the past either. However, I have seen encroachment upon religious freedoms such as the Masterpiece case and others like it. Thus, pitting one right against another (e.g. discrimination v. 1st Amendment). You may argue about it wasn't against religious freedom but purely discrimination and we will probably amicably disagree there.

 

Quote

Yep... I submit any similar challenges by LGBT individuals to the Church will be met with the same outcomes.

Maybe, maybe not. My point is there will be attempts in the form of legal suits. A constant banging with the same hammer eventually will hit the nail. Times change things. We will see.

Thanks

[Scott Lloyd]

6 minutes ago, Daniel2 said:

My perception is that Smac often employs tactics that strike me as fear-mongering in the attempt to rally the faithful to his usually conservative causes, misguided as I believe that tactic to be. 

Of course, I don't expect the two of you to agree with me on that point.    In MY worldview, one can support religious liberty AND support equal civil rights for the LGBT community.  It doesn't have to be either/or, and compromise and respect must flow both directions.

What do you think about Anijen’s point about conflict over the definition of marriage possibly being the basis of future lawsuits regarding free exercise of religion? You can dismiss that as unlikely fear mongering, but already on this board, we have seen some individuals try to argue that gay marriage ought to be performed in the temple because of how SCOTUS has defined marriage. Of course, I regard those arguments as absurd, but those individuals have continued to press their point. 

[stemelbow]

So are people concerned the Church may one day be forced to employ someone who is LGBTQ?  News flash...it already has and likely does. 

[Boanerges]

2 hours ago, Scott Lloyd said:

Doesn’t undergoing a sex-change operation render one ineligible for a temple recommend?

I do believe so, but there is some new wording there in the latest handbook as I recall and I don't have time at the moment to go and check out how I think it would apply. On the surface it would appear that the church might be able to fire someone in that case but it would be applying the rule that they must have a temple recommend, if it applies, and not simply because they had the surgery. It seems to get complicated.

[Boanerges]

2 hours ago, Daniel2 said:

While it may not “always” be the case, I recall the LDS Church received a lot of media coverage and praise for it’s outreach efforts to collaborate with local Utah-based LGBT civil rights groups in supporting and passing Utah-based  non-discrimination and employment protections for the LGBT Utahns. 
 

Given its very public support, I would presume the Faith is supportive of the Supreme Court’s ruling today, especially in light of Gorsuch’s ruling pointing out the numerous statutes still protecting religious liberties and qualifying Title VII’s application to religious entities.

I agree that the church will comply if not support the ruling.

Where I live (eastern US) things related to the church tend to get less press coverage. Certainly people here read church news and Deseret News, and get church emails. I wouldn't say the majority in my ward are fully aware of the latest church news. It's hard to judge, but if a showing by raise of hands who has read the essays is any indication, it's far less than half.

[Scott Lloyd]

10 minutes ago, stemelbow said:

So are people concerned the Church may one day be forced to employ someone who is LGBTQ?  News flash...it already has and likely does. 

The concern is that the Church may one day be forced to employ non-temple-worthy people in positions for which temple worthiness is an essential requirement. 
 

Do try to keep up, stemelbow. 

Edited June 15, 2020 by Scott Lloyd

[Peppermint Patty]

4 minutes ago, Scott Lloyd said:

The concern is that the Church may one day be forced to employ non-temple-worthy people in positions for which temple worthiness is an essential requirement. 
 

Do try to keep up, stemelbow. 

News flash...it already has and likely does.

[Scott Lloyd]

27 minutes ago, Peppermint Patty said:

News flash...it already has and likely does.

In positions requiring temple worthiness? Prove it. 
 

And we’ll call this a CFR. 

Edited June 15, 2020 by Scott Lloyd

[Calm]

2 hours ago, Anijen said:

For example, since Obergefell allowed marriage as a fundamental right to all same-sex couples, it could be argued (and probably will be), that it is unconstitutional prohibiting a same sex couple to be married in the temple.

I don’t see this as a big deal since the Church has long adapted to countries where marriages must allow the attendance of any of the public, simply have the religious ceremony in the temple and the civil aspect not...something many people are currently doing in the States due to Covid, including two of my nieces. From what I see they are having fun with a public wedding as well as eagerly looking forward to their sealings. 

[stemelbow]

1 hour ago, Scott Lloyd said:

The concern is that the Church may one day be forced to employ non-temple-worthy people in positions for which temple worthiness is an essential requirement. 
 

Do try to keep up, stemelbow. 

Newsflash to that.  Already has happened.  That is to say, a number of employees former and current have been unworthy.  Did it hurt the church or cause you an issue?  

 

Oh sorry peppermint patty,  you beat me to it.

Edited June 15, 2020 by stemelbow

[Daniel2]

7 hours ago, Anijen said:

I have seen encroachment upon religious freedoms such as the Masterpiece case and others like it. Thus, pitting one right against another (e.g. discrimination v. 1st Amendment). You may argue about it wasn't against religious freedom but purely discrimination and we will probably amicably disagree there.

In response to your comment about the Masterpiece case being “an encroachment in religious freedom”: 

First, it’s worth pointing out that Mr. Phillips won his case, as the court found he was singled out because of his religious beliefs. (While I may disagree with the court’s ruling, I acknowledge he won and stand by the law, in his case).

Second: I still struggle with the idea that refusing service to customers based on religious belief is an accurate example of an enumerated civil right afforded to citizens in the name of religious freedom. 

An honest question: whether or not YOU think business SHOULD be allowed to do so, do you believe that public accommodation laws, as currently written and long-interpreted by the American legal system, allow public business owners to refuse to bake a wedding cakes for customers who’s weddings they religiously-object to?

To be more specific: do you believe the laws or our courts would actually allow and uphold bakers to cite religious objects to baking cakes for any or all of the following:

A) Jewish Couples

B) Mormon couples

C) Athiest couples

D) Mixed-Faith couples

E) Interracial couples

F) Disabled couples

G) Preciously-married couples (with either one or the other divorced)

H) Multi-generational (where one is elderly and one is young but still of age) couples 

I) Barren (non-procreative) couples

...?

In other words, do you REALLY think the law has NO limits for public business owners to have unfettered religious freedom to deny services to whomever a business owner wants in the name of religon?

Is that how our courts define or recognize a legitimate example of “religious freedom”?

Even when I was devoutly LDS, I never saw the requirement for public businesses to provide equal services (that is, the same goods or services they provide to the general public) to protected classes as an unjust, legitimate, or compelling “violation” or an “erosion” of business owners’ “religious freedoms.” Do you? 

Edited June 16, 2020 by Daniel2

[smac97]

I came across this story and posted about it before reading the decision itself.  Anyway, it looks like I'm not alone in looking at it as an inappropriate use of the judicial power.  See, e.g., here (written by an attorney):

Quote

SUPREME COURT, PER NEIL GORSUCH, INVENTS NEW LGBT RIGHTS

In this time of pandemic, it’s easy to lose a robust sense of where we are in the year. Today, the Supreme Court reminded us that we’re at the time of year when it delivers decisions in major cases.

Until recently, this was a dreaded time for conservatives. We dreaded it mainly because the Supreme Court was prone to inventing new constitutional rights based on its policy preferences, not on any credible reading of the Constitution.

With the addition to the Court of Justices Gorsuch and Kavanaugh, and the subtraction of Justice Kennedy, there seemed to be less reason for dread. Today, however, the Court, in an opinion by Gorsuch, one-upped the Kennedy Courts. It invented new rights based not on the Constitution, but on a statute that plainly does not confer them.

Yes, that's the problem.

Quote

The statute is Title VII of the Civil Rights Act of 1964. The new rights are freedom for lesbians, gays, and transgender individual from employment discrimination based on their LGT status.

These are rights that, properly understood, I believe such individuals should have. Employment discrimination, properly understood, because of sexual orientation and gender identity is wrong.

Today’s decision may reduce the amount of it. On the other hand, it will lead to the filing of a great many meritless suits and will enable left-liberal judges to construe Title VII as banning sex-specific restrooms, locker rooms, and shower facilities, and to take the statue on additional absurd and harmful frolics.

But all of this is beside the point. The point is that Congress has never banned discrimination against lesbians, gays, and transgender individuals. Rather, it has continuously declined to do so.

That Congress has ignored this issue is unfortunate, but that does not excuse the judicial activism on display today.

Quote

Yet, Chief Justice Roberts and Justice Gorsuch joined the four liberal Justices to conjure up such a ban. The four libs were happy to turn the floor over to Justice Gorsuch for his own absurd frolic into pseudo “textualism.”

They must have had a good laugh. This isn’t the first time that idiosyncratic pseudo-conservative legal theory has played into their hand.

Justice Alito was not amused. His dissent, in which Justice Thomas joined, is a masterpiece. Here is how it begins:

Quote

There is only one word for what the Court has done today: legislation. The document that the Court releases is in the form of a judicial opinion interpreting a statute, but that is deceptive.

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on any of five specified grounds: “race, color, religion, sex, [and] national origin.” 42 U. S. C. §2000e–2(a)(1). Neither “sexual orientation” nor “gender identity” appears on that list. For the past 45 years, bills have been introduced in Congress to add “sexual orientation” to the list and in recent years, bills have included “gender identity” as well. But to date, none has passed both Houses.

Last year, the House of Representatives passed a bill that would amend Title VII by defining sex discrimination to include both “sexual orientation” and “gender identity,” H. R. 5, 116th Cong., 1st Sess. (2019), but the bill has stalled in the Senate. An alternative bill, H. R. 5331, 116th Cong.,
1st Sess. (2019), would add similar prohibitions but contains provisions to protect religious liberty. This bill remains before a House Subcommittee.

Because no such amendment of Title VII has been enacted in accordance with the requirements in the Constitution (passage in both Houses and presentment to the President Art. I, §7, cl. 2), Title VII’s prohibition of discrimination because of “sex” still means what it has always meant. But the Court is
not deterred by these constitutional niceties. Usurping the constitutional authority of the other branches, the Court has essentially taken H. R. 5’s provision on employment discrimination and issued it under the guise of statutory interpretation. A more brazen abuse of our authority to interpret statutes is hard to recall.

The Court tries to convince readers that it is merely enforcing the terms of the statute, but that is preposterous. Even as understood today, the concept of discrimination because of “sex” is different from discrimination because of “sexual orientation” or “gender identity.” And in any event, our duty is to interpret statutory terms to “mean what they conveyed to reasonable people at the time they were written. A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 16 (2012) (emphasis added). If every single living American had been surveyed in 1964, it would have been hard to find any who thought that discrimination because of sex meant discrimination because of sexual orientation––not to mention gender identity, a concept that was essentially unknown at the time.

The Court attempts to pass off its decision as the inevitable product of the textualist school of statutory interpretation championed by our late colleague Justice Scalia, but no one should be fooled. The Court’s opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated––the theory that courts should “update” old statutes so that they better reflect the current values of society. See A. Scalia, A Matter of Interpretation 22 (1997). If the Court finds it appropriate to adopt this theory, it should own up to what it is doing.

Many will applaud today’s decision because they agree on policy grounds with the Court’s updating of Title VII. But the question in these cases is not whether discrimination because of sexual orientation or gender identity should be outlawed. The question is whether Congress did that in 1964.

It indisputably did not.

(Emphasis added)

Justice Kavanaugh wrote his own dissent. I wish he had joined Justices Alito and Thomas, but maybe I should be grateful that only one of the two Justices appointed by President Trump indulged in egregious judicial activism.

Justice Alito is spot on here.

Thanks,

-Smac

[Scott Lloyd]

1 hour ago, stemelbow said:

Newsflash to that.  Already has happened.  That is to say, a number of employees former and current have been unworthy.  Did it hurt the church or cause you an issue?  

 

Oh sorry peppermint patty,  you beat me to it.

I think you’re both wrong. And there’s a CFR on the table. 
 

Does the Church knowingly employ or retain in employment non-temple-worthy instructors in the seminaries and institutes, for example? Or workers at Beehive Clothing Mills (manufacturers of temple garments)? Or as temple engineers? I could go on. 

Edited June 16, 2020 by Scott Lloyd

[Daniel2]

22 minutes ago, smac97 said:

I came across this story and posted about it before reading the decision itself.  Anyway, it looks like I'm not alone in looking at it as an inappropriate use of the judicial power.  See, e.g., here (written by an attorney):

Yes, that's the problem.

That Congress has ignored this issue is unfortunate, but that does not excuse the judicial activism on display today.

Justice Alito is spot on here.

Thanks,

-Smac

Nah... Justice Alito was entirely wrong, in his dissent. (I can assert the superiority of my opinion, too).

The legal reality is whether or not one agrees,  the law is now established by a 6-3 ruling.

Too bad you poisoned the well by reading opinion pieces like these before allowing yourself the benefit of reading the ruling for yourself.  But I guess confirmation bias is a real thing for all of us, anyway. 

Edited June 16, 2020 by Daniel2