Significant Supreme Court Ruling Issued Today (Re: Lgbtq)

[SeekingUnderstanding]

10 hours ago, bsjkki said:

Interesting take on this case. https://www.realclearpolitics.com/articles/2020/06/15/why_roberts_gorsuch_voted_with_liberals_on_lgbt_case_143456.html

"Instead, the argument went like this: Imagine a workplace with three employees: Amy, Bill and Chuck. Amy declares her love for Chuck. The next day, Bill declares his love for Chuck. The argument was that the employer can fire both Amy and Bill for violating a prohibition against workplace romances.

What the employer cannot do is fire Bill because of a workplace prohibition on same-sex romances. The reason has nothing to do with Bill’s sexual orientation, at least as such. Instead, it has to do with Bill’s sex. Firing Bill but not Amy says that a woman may declare her love for a man in the office, but a male may not. The employer is inherently creating a categorization based on sex, which the Civil Rights Act flatly prohibits (in fact, the CRA does spell out some instances where employers can discriminate on the basis of sex, the so-called bona fide occupational qualification exception, but the fact that Congress made some exceptions but did not also spell out an exception based on sexual orientation works against conservatives here)."

 

It is particularly telling that (Unless I missed something) not a single opponent of the courts ruling in this thread has addressed this. This undercuts every argument of judicial activism, but isn’t addressed. 🤔

[Daniel2]

10 hours ago, Scott Lloyd said:

So it doesn’t matter to you, then, that the “legally correct” position in the United States was that persons of African descent could not claim citizenship. 

I’m not arguing that the SCOTUS  decision is the law of the land. I accept that it is and I intend to abide by it. But I don’t have to pay obeisance to it. 

 

Of course I am familiar with the Dred Scott Case; in fact, we’ve discussed it before on multiple occasions on this board.  To review for the purposes of this discussion: it was an 1857 Supreme Court case in which the Court held that the US Constitution was not meant to include American citizenship for black people, regardless of whether they were enslaved or free, and so the rights and privileges that the Constitution confers upon American citizens could not apply to them.  A bit more context courtesy of Wiki:

In March 1857, the Supreme Court issued a 7–2 decision against Dred Scott. In an opinion written by Chief Justice Roger Taney , the Court ruled that black people "are not included, and were not intended to be included, under the word 'citizens' in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States.”…Because the Court ruled that Scott was not an American citizen, any federal lawsuit that he filed automatically failed because he could never establish the "diversity of citizenship" that Article III of the US Constitution requires for a US federal court to be able to exercise jurisdiction over a case. After ruling on those issues surrounding Scott, Taney continued further and struck down the entire Missouri Compromise as a limitation on slavery that exceeded the

US Congress's constitutional powers.

 

Although Taney and several of the other justices hoped that the decision would permanently settle the slavery controversy, which was increasingly dividing the American public, the decision's effect was the complete opposite. Taney's majority opinion "was greeted with unmitigated wrath from every segment of the United States except the slaveholding states," and the decision was a contributing factor in the outbreak of the American Civil War four years later, in 1861. After the Union's victory in 1865, the Court's rulings in Dred Scott were superseded by amendments to the US Constitution: the Thirteenth Amendment abolished slavery, and the

Fourteenth Amendment guaranteed citizenship for "all persons born or naturalized in the United States, and subject to the jurisdiction thereof."

 

The Supreme Court's decision has been widely denounced ever since. Bernard Schwartz said that it "stands first in any list of the worst Supreme Court decisions—Chief Justice Charles Evans Hughes called it the Court's greatest self-inflicted wound."  Junius P. Rodriguez said that it is "universally condemned as the U.S. Supreme Court's worst decision." Historian David Thomas Konig said that it was "unquestionably, our court's worst decision ever."

I agree; the court ‘got it wong’ in the Dred Scott case, even though it was technically right… and I think you’d be hard-pressed to find anyone who would defend it, today.  But I think most would agree Dred Scott was ‘wrong’ from a moral perspective, if not legal one.

A few salient points, when attempting to compare Dred Scott with the recent ruling on LGBT employment protections:

• The Dred Scott Case re-affirmed that black people were EXCLUDED from citizenship and therefore any legal protections otherwise guaranteed to U.S. citizens by the Constitution and American law.

• The majority opinion was “greeted with unmitigated wrath from every segment of the United States except the slaveholding states.”

• Slavery was “increasingly dividing the American public” in the sense that the majority of the American public opposed slavery and supported equal rights for all, regardless of race.

In considering those salient points when attempting to evaluate whether the court “got it wrong” with regards to expanding equal protections for LGBT people:

• Unlike Dred Scott, which was based on reaffirming the exclusion of a minority group from equal civil rights (in that case, excluding blacks from citizenship and personhood), this new ruling is based in including a minority group with equal civil rights (expanding equal employment protections for LGBT individuals).

• At the time of Dred Scott, the majority of the public opposed slavery, and that majority was increasing.  Unlike Dred Scott, in this case, the increasingly-growing majority of the public agree with and support expanding equal civil rights for and public acceptance of LGBT individuals, especially in non-discriminatory employment protections (see here). 

• Even the LDS Church on record as supporting non-discrimination law regarding employment of LGBT individuals.  And ironically, even the lawyer-author of the article that Smac posted admits, “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.”  He just disagrees with how the court ruled in securing these expanded rights.

• In other words, the clear majority of Americans agree that it IS “right” that LGBT individuals should be protected from discrimination with regards to employment.

Those who oppose this ruling claim the court “got it wrong” by “legislating from the bench” because they disagree with how the law was applied.

But statistics show that the vast majority of the public feel that it certainly is “right” that LGBT individuals should be protected from discrimination in employment, as well as increasingly accepted in all other civil right-related issues. In fact, many people I’ve spoken with in the last 24 hours were surprised to hear that up until yesterday, it had been legal for employers to fire LGBT people in 29 states, simply because of the sex of their spouse or the sex they identified as.

Now, Smac, Peterson, and other nay-sayers want to assert their legal interpretation as “right,” whereas my legal interpretation “got it wrong.”  As Smac often says, reasonable minds may disagree on the issue… but at least I have a preponderance of court rulings that support my view, including (but not limited to) this most recent (and now fully binding) SCOTUS case.

Edited June 16, 2020 by Daniel2

[provoman]

6 minutes ago, Duncan said:

is it bad to employ someone qualified without a recommend? members of the Church hire nonmembers all the time, the Church here is building a Temple, no one is a member, ...

Scott's pount, as I understand it, is that a Religious Org should have the autonomy to expect adhereance to organizational religious standards as a condition of employment. 

I think the SCOTUS opinion issued yesterdays confirms Religious Orgs still have that autonomy.

As for Scott clarifying with knowingly, well that was implied in his first comment. His concern is obviously that a Religious Org could be forced - via force of secular law - to hire someone that does not meet the religious standards for the position. And that being the concern, knowingly is implied.

Edited June 16, 2020 by provoman

[Scott Lloyd]

1 minute ago, Duncan said:

is it bad to employ someone qualified without a recommend? members of the Church hire nonmembers all the time, the Church here is building a Temple, no one is a member, they follow the rules of the site but none of it has to do with worthiness. In other places of the world maybe a recommend is required to work at a Temple site but in most places they don't have the membership to sustain a construction crew,like here for example. I can't think of a single member employed in construction if there are it's not enough for them to construct the Temple.

No, it’s not a bad thing in every instance. But there are certain positions for which temple worthiness is an essential requirement. I have already suggested a few examples: seminary or institute instructor, worker in the manufacture of sacred temple clothing, temple engineer (the worker who is on hand in the temple each day to keep the mechanical systems functioning). 
 

Every employer is entitled to have certain eligibility requirements for the positions it offers. As an employer, the Church is no different in that respect. 

[pogi]

36 minutes ago, smac97 said:

Here's a (now ironic) quote from Justice Gorsuch's book, A Republic, If You Can Keep it:

Justice Gorsuch's opinion is not textualist.  He did precisely what he criticizes above.  Regarding the Civil Rights Act, he "simply declare{d} what it ought to be" by way of "extraneous value judgments about persons or policies."

Justice Kagan, while not walking the textualist/originalist walk, nevertheless acknowledged how it works (from the same link) :

No, "we're" not.  

A bit more:

Yep.

But that's exactly was Justice Gorsuch and the others did.

Thanks,

-Smac

If I understand you correctly, your claim (and that of Justice Kavannagh) is that Justice Gorsuch and other's amended the law instead of interpreting it textually.  Is that correct?

It seems the accusation is that they are making the law about sexual orientation when the text clearly states it is about sex.  As you quote:

Quote

For Francisco it was simple, "the law distinguishes between between sex and sexual orientation."  

"Sex means whether you're male or female, not whether you're gay or straight," he said. 

I posted this early and it was largely ignored.  It seems that Kavanagh and Francisco ignored their actual argument too.  They clearly are interpreting the text and arguing that a person's sex is inescapably used to discriminate:

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 This:

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). 

Quote

 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.  

To me, it seems clear that his argument is not conflating sex with sexuality, and that they are interpreting the text of the law and not amending or adding to it.   Fransisco, it seems, didn't read this argument, because it is an argument about how sex (male and female) is unavoidably used to discriminate. 

Edited June 16, 2020 by pogi

[provoman]

53 minutes ago, juliann said:

Transgenderism is going to be the flashpoint. It is unbelievably sloppy if this ruling doesn’t deal very directly with what that is. 

I agree a flashpoint, it is already happening. 

[smac97]

3 minutes ago, pogi said:

If I understand you correctly, your claim (and that of Justice Kavannagh) is that Justice Gorsuch and other's amended the law instead of interpreting it textually.  Is that correct?

Yes.  

3 minutes ago, pogi said:

It seems the accusation is that they are making the law about sexual orientation when the text clearly states it is about sex.  As you quote:

I posted this early and it was largely ignored.  It seems that Kavanagh and Francisco ignored their actual argument too.  They clearly are interpreting the text.  

"Clearly" doesn't work here.

Moreover, even if they are "interpreting the text," you are conceding my point (Justice Alito's point, actually).  Originalism/textualism does not allow for post hoc "interpretation" that radically departs from the text.

3 minutes ago, pogi said:

And This:

To me, it seems clear that his argument is not conflating sex with sexuality, and that they are interpreting the text of the law and not amending or adding to it.   Fransisco, it seems, didn't read this argument, because it is an argument about how sex (male and female) is unavoidably used to discriminate. 

Again, you are only proving the point.  We cannot conflate sex with sexual orientation, but the majority opinion does just that.  It does it because the text of the Civil Rights Act makes no mention of sexual orientation.  

And if there is discrimination against homosexuals, it is the province of the legislature to modify statutes to address that.  What we have here, though, is six justices reading their "extraneous value judgments about persons or policies" into the text of a statute that says nothing about sexual orientation.

Thanks,

-Smac

[Scott Lloyd]

6 minutes ago, Daniel2 said:

 

Of course I am familiar with the Dred Scott Case; in fact, we’ve discussed it before on multiple occasions on this board.  To review for the purposes of this discussion: it was an 1857 Supreme Court case in which the Court held that the US Constitution was not meant to include American citizenship for black people, regardless of whether they were enslaved or free, and so the rights and privileges that the Constitution confers upon American citizens could not apply to them.  A bit more context courtesy of Wiki:

In March 1857, the Supreme Court issued a 7–2 decision against Dred Scott. In an opinion written by Chief Justice Roger Taney , the Court ruled that black people "are not included, and were not intended to be included, under the word 'citizens' in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States.”…Because the Court ruled that Scott was not an American citizen, any federal lawsuit that he filed automatically failed because he could never establish the "diversity of citizenship" that Article III of the US Constitution requires for a US federal court to be able to exercise jurisdiction over a case. After ruling on those issues surrounding Scott, Taney continued further and struck down the entire Missouri Compromise as a limitation on slavery that exceeded the

US Congress's constitutional powers.

 

Although Taney and several of the other justices hoped that the decision would permanently settle the slavery controversy, which was increasingly dividing the American public, the decision's effect was the complete opposite. Taney's majority opinion "was greeted with unmitigated wrath from every segment of the United States except the slaveholding states," and the decision was a contributing factor in the outbreak of the American Civil War four years later, in 1861. After the Union's victory in 1865, the Court's rulings in Dred Scott were superseded by amendments to the US Constitution: the Thirteenth Amendment abolished slavery, and the

Fourteenth Amendment guaranteed citizenship for "all persons born or naturalized in the United States, and subject to the jurisdiction thereof."

 

The Supreme Court's decision has been widely denounced ever since. Bernard Schwartz said that it "stands first in any list of the worst Supreme Court decisions—Chief Justice Charles Evans Hughes called it the Court's greatest self-inflicted wound."  Junius P. Rodriguez said that it is "universally condemned as the U.S. Supreme Court's worst decision." Historian David Thomas Konig said that it was "unquestionably, our court's worst decision ever."

I agree; the court ‘got it wong’ in the Dred Scott case, even though it was technically right… and I think you’d be hard-pressed to find anyone who would defend it, today.  But I think most would agree Dred Scott was ‘wrong’ from a moral perspective, if not legal one.

A few salient points, when attempting to compare Dred Scott with the recent ruling on LGBT employment protections:

• The Dred Scott Case re-affirmed that black people were EXCLUDED from citizenship and therefore any legal protections otherwise guaranteed to U.S. citizens by the Constitution and American law.

• The majority opinion was “greeted with unmitigated wrath from every segment of the United States except the slaveholding states.”

• Slavery was “increasingly dividing the American public” in the sense that the majority of the American public opposed slavery and supported equal rights for all, regardless of race.

In considering those salient points when attempting to evaluate whether the court “got it wrong” with regards to expanding equal protections for LGBT people:

• Unlike Dred Scott, which was based on reaffirming the exclusion of a minority group from equal civil rights (in that case, excluding blacks from citizenship and personhood), this new ruling is based in including a minority group with equal civil rights (expanding equal employment protections for LGBT individuals).

• At the time of Dred Scott, the majority of the public opposed slavery, and that majority was increasing.  Unlike Dred Scott, in this case, the increasingly-growing majority of the public agree with and support expanding equal civil rights for and public acceptance of LGBT individuals, especially in non-discriminatory employment protections (see here). 

• Even the LDS Church on record as supporting non-discrimination law regarding employment of LGBT individuals.  And ironically, even the lawyer-author of the article that Smac posted admits, “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.”  He just disagrees with how the court ruled in securing these expanded rights.

• In other words, the clear majority of Americans agree that it IS “right” that LGBT individuals should be protected from discrimination with regards to employment.

Those who oppose this ruling claim the court “got it wrong” by “legislating from the bench” because they disagree with how the law was applied.

But statistics show that the vast majority of the public feel that it certainly is “right” that LGBT individuals should be protected from discrimination in employment, as well as increasingly accepted in all other civil right-related issues. In fact, many people I’ve spoken with in the last 24 hours were surprised to hear that up until yesterday, it had been legal for employers to fire LGBT people in 29 states, simply because of the sex of their spouse or the sex they identified as.

Now, Smac, Peterson, and other nay-sayers want to assert their legal interpretation as “right,” whereas my legal interpretation “got it wrong.”  As Smac often says, reasonable minds may disagree on the issue… but at least I have a preponderance of court rulings that support my view, including (but not limited to) this most recent (and now fully binding) SCOTUS case.

I reiterate that back in the 1850s there would have been plenty of people more than willing to argue the “rightness” of the Dred Scott case. Declaring in a conclusory way — and even engaging in the fallacy of appeal to popularity — does not all by itself make a thing right. 
 

Smac gave another example, Plessy v Ferguson, that established the “separate but equal” doctrine. That was the settled law of the land and many people considered it “right” for a long time, but that didn’t make it so, as is widely recognized today. 

[Duncan]

5 minutes ago, Scott Lloyd said:

No, it’s not a bad thing in every instance. But there are certain positions for which temple worthiness is an essential requirement. I have already suggested a few examples: seminary or institute instructor, worker in the manufacture of sacred temple clothing, temple engineer (the worker who is on hand in the temple each day to keep the mechanical systems functioning). 
 

Every employer is entitled to have certain eligibility requirements for the positions it offers. As an employer, the Church is no different in that respect. 

why would some organization hire someone who isn't qualified to do the job? I can't imagine people would hire someone strictly based on their sexual orientation and the Church is no different, they want as does everyone else someone qualified. I suppose they could not hire someone based on their sexual orientation , you can't fire someone you didn't hire. The Provo City Centre Temple was designed by someone who was transitioning to a woman as was the MTC , IIRC, Laurie Lee Hall assisted in both projects, she was exed but before that she was on those projects

[SeekingUnderstanding]

3 minutes ago, smac97 said:

We cannot conflate sex with sexual orientation, but the majority opinion does just that.

Which line exactly does this? (Please cite the opinion itself) CFR. 

[stemelbow]

29 minutes ago, Scott Lloyd said:

 

 

 

 

 

 

 

 

Please review the above history. You shot off a response to me without paying proper attention to what I had posted. I said the concern is that the Church might one day BE FORCED TO EMPLOY a non-temple-worthy worker in a position for which temple worthiness is required. You claimed that it has already happened. My CFR was for you to document that it has already happened, i.e. that that the Church has already been subjected to such force. 

I reviewed it.  Here's the pertinent part as I see it:

I responded:  "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? "

My clarification is suggesting i'm saying what has already happened was the second part of your statement--that unworthy members have already been employed by the Church.  I did not intend to suggest the Church has been forced to employ them.  But my question remains.  Did it hurt the Church or cause you an issue when an "unworthy" person worked for the Church?    

[Scott Lloyd]

14 minutes ago, Duncan said:

why would some organization hire someone who isn't qualified to do the job? I can't imagine people would hire someone strictly based on their sexual orientation and the Church is no different, they want as does everyone else someone qualified. I suppose they could not hire someone based on their sexual orientation , you can't fire someone you didn't hire. The Provo City Centre Temple was designed by someone who was transitioning to a woman as was the MTC , IIRC, Laurie Lee Hall assisted in both projects, she was exed but before that she was on those projects

Again, certain positions offered by the Church, due to the nature of the work,  have temple worthiness as a requirement, while others do not. It’s the way of things. 

Edited June 16, 2020 by Scott Lloyd

[pogi]

3 minutes ago, smac97 said:

Yes.  

"Clearly" doesn't work here.

Moreover, even if they are "interpreting the text," you are conceding my point (Justice Alito's point, actually).  Originalism/textualism does not allow for post hoc "interpretation" that radically departs from the text.

Again, you are only proving the point.  We cannot conflate sex with sexual orientation, but the majority opinion does just that.  It does it because the text of the Civil Rights Act makes no mention of sexual orientation.  

And if there is discrimination against homosexuals, it is the province of the legislature to modify statutes to address that.  What we have here, though, is six justices reading their "extraneous value judgments about persons or policies" into the text of a statute that says nothing about sexual orientation.

Thanks,

-Smac

I think these justices would agree that we cannot conflate sex with sexual orientation.  Their argument is that the law is applicable because sex is a but-for cause in these cases.   If it wasn't for their sex, they wouldn't be discriminated against.  It doesn't matter if there were other motivating factors - if sex is used to discriminate, it is against the law.  In these cases, the persuasive argument was made that sex is inescapably used to discriminate.  They are right.  How can you argue otherwise? 

[Duncan]

8 minutes ago, Scott Lloyd said:

Again, certain positions offered by the Church, due to the nature of the work,  have temple worthiness as a requirement, while others do not. 

isn't there something in your guys' laws about firing someone for losing a recommend? obviously if you're involved in criminal matters then sure but gambling, WOW stuff, if that enough to fire someone over? In the States can a nonmember employer fore some member for losing a recommend? late on child payments let's say, is that a fireable offence?

Edited June 16, 2020 by Duncan

[smac97]

6 minutes ago, SeekingUnderstanding said:

Which line exactly does this? (Please cite the opinion itself) CFR. 

From this post:

Quote

As Alito undisputedly says, “if every single 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 majority tries to “pass off its decision” as just an application of the term “sex” in Title VII, claiming it is applying the textualism championed by the late Justice Antonin Scalia. But according to Alito, that claim and the majority’s opinion “is like a pirate ship.” He added:

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.

Alito said that the majority’s “arrogance” is “breathtaking,” since “there is not a shred of evidence that any Member of Congress interpreted the statutory text that way when Title VII was enacted.”

And here:

Quote

Neither “sexual orientation,” nor “gender identity” appear on the list of five specified grounds for discrimination in Title VII, and the majority’s “argument is not only arrogant, it is wrong,” he wrote.  The terms “sex,” “sexual orientation,” and “gender identity” are “different concepts,” and neither of the two latter terms are “tied to either of the biological sexes.”
...

The majority is “usurping the constitutional authority of the other branches” of government and has taken the latest congressional bill on this topic and “issued it under the guise of statutory interpretation.”

Thanks,

-Smac

[pogi]

3 minutes ago, smac97 said:

From this post:

And here:

Thanks,

-Smac

That is not a quote from the opinion itself.  That is an opinion of the opinion.  Where in the opinion does it conflate sex with sexual orientation?

Edited June 16, 2020 by pogi

[Scott Lloyd]

1 minute ago, stemelbow said:

I reviewed it.  Here's the pertinent part as I see it:

I responded:  "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? "

My clarification is suggesting i'm saying what has already happened was the second part of your statement--that unworthy members have already been employed by the Church.  I did not intend to suggest the Church has been forced to employ them.  But my question remains.  Did it hurt the Church or cause you an issue when an "unworthy" person worked for the Church?    

My point was that the Church has not (yet) been forced by the government to knowingly hire someone ineligible for a position. There was no Part 1 and Part 2 to my point. That was the thing I was issuing the CFR for. Just admit that you didn’t take time to understand the point I was making, and we can move on. 
 

As to your question, the injury was that the Church was defrauded in that one or more persons (according to your account) obtained or remained in employment under false pretenses. Offhand, I can’t think of a single employer who would be OK with being so defrauded. 
 

Furthermore, each such person occupied a position of employment that could have been offered to a job seeker who was eligible for it. 

[smac97]

1 minute ago, pogi said:

I think these justices would agree that we cannot conflate sex with sexual orientation. 

They can't have it both ways.  The majority cannot reach the decision they did without conflating sex with sexual orientation.  again from Justice Alito's dissent:

Quote

As Alito undisputedly says, “if every single 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 majority tries to “pass off its decision” as just an application of the term “sex” in Title VII, claiming it is applying the textualism championed by the late Justice Antonin Scalia. But according to Alito, that claim and the majority’s opinion “is like a pirate ship.” He added:

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.

Alito said that the majority’s “arrogance” is “breathtaking,” since “there is not a shred of evidence that any Member of Congress interpreted the statutory text that way when Title VII was enacted.”
...
Neither “sexual orientation,” nor “gender identity” appear on the list of five specified grounds for discrimination in Title VII, and the majority’s “argument is not only arrogant, it is wrong,” he wrote.  The terms “sex,” “sexual orientation,” and “gender identity” are “different concepts,” and neither of the two latter terms are “tied to either of the biological sexes.”

What are your thoughts about these remarks?

1 minute ago, pogi said:

Their argument is that the law is applicable because sex is a but-for cause in these cases.  

Which "cause" can only be achieved by conflating "sex" with "sexual orientation."

"I refuse to hire you because you are a woman" is not synonymous "I refuse to hire you because you are gay."  

1 minute ago, pogi said:

If it wasn't for their sex, they wouldn't be discriminated against. 

See?  You are doing it.  You are conflating sex and sexual orientation.

And in any event, Justice Alito's point about the statutory text remains: 

Quote

Neither “sexual orientation,” nor “gender identity” appear on the list of five specified grounds for discrimination in Title VII, and the majority’s “argument is not only arrogant, it is wrong,” he wrote.  The terms “sex,” “sexual orientation,” and “gender identity” are “different concepts,” and neither of the two latter terms are “tied to either of the biological sexes.”

Thoughts?

1 minute ago, pogi said:

It doesn't matter if there were other motivating factors - if sex is used to discriminate, it is against the law. 

Again, sex and sexual orientation are not interchangeable.  

1 minute ago, pogi said:

In these cases, the persuasive argument was made that sex is inescapably used to discriminate.  They are right.  How can you argue otherwise? 

See above.  Justice Alito says it better than I could.

Thanks,

-Smac

[Scott Lloyd]

5 minutes ago, Duncan said:

isn't there something in your guys' laws about firing someone for losing a recommend? obviously if you're involved in criminal matters then sure but gambling, WOW stuff, if that enough to fire someone over? In the States can a nonmember employer fore some member for losing a recommend? late on child payments let's say, is that a fireable offence?

I’m not an expert on labor law. You’ll have to go to someone else for that. 
 

But as a matter of common sense, it seems to me that if a worker is contractually obligated as a condition of employment to remain worthy to hold a temple recommend and then ceases to be worthy, that person has breached the contract and is no longer eligible to remain in the position. 

[SeekingUnderstanding]

23 minutes ago, smac97 said:

From this post:

And here:

Thanks,

-Smac

Nope. You said the majority opinion conflated sex with orientation. Either it did or didn’t.  If it did, shouldn’t you be able to show me where it did this exactly? If not, maybe you should revise your statement. CFR stands. 

Edited June 16, 2020 by SeekingUnderstanding

[stemelbow]

10 minutes ago, Scott Lloyd said:

My point was that the Church has not (yet) been forced by the government to knowingly hire someone ineligible for a position. There was no Part 1 and Part 2 to my point. That was the thing I was issuing the CFR for. Just admit that you didn’t take time to understand the point I was making, and we can move on. 
 

As to your question, the injury was that the Church was defrauded in that one or more persons (according to your account) obtained or remained in employment under false pretenses. Offhand, I can’t think of a single employer who would be OK with being so defrauded. 
 

Furthermore, each such person occupied a position of employment that could have been offered to a job seeker who was eligible for it. 

I had already gotten your point.  I simply question whether an "unworthy" employee had any negative impact.  You simply do not know if there was any defrauding going on.  The "unworthy" employees could very well have divulged to the corp their unworthiness and the corporation could have decided to keep them on, even if temporarily.  I do not know and neither do you.  

[SeekingUnderstanding]

11 minutes ago, smac97 said:

Again, sex and sexual orientation are not interchangeable.  

Can you define sexual orientation in a way that doesn’t include someone’s sex? Acknowledging that this is impossible doesn’t equal conflating the two. 

Edited June 16, 2020 by SeekingUnderstanding

[Scott Lloyd]

4 minutes ago, stemelbow said:

I had already gotten your point.  I simply question whether an "unworthy" employee had any negative impact.  You simply do not know if there was any defrauding going on.  The "unworthy" employees could very well have divulged to the corp their unworthiness and the corporation could have decided to keep them on, even if temporarily.  I do not know and neither do you.  

Then why are you even bringing it up if you don’t know the circumstances. Sheesh!

[Daniel2]

 

31 minutes ago, pogi said:

That is not a quote from the opinion itself.  That is an opinion of the opinion.  Where in the opinion does it conflate sex with sexual orientation?

I absolutely agree, Pogi: the opinion does NOT conflate sex with sexual orientation (or gender identity); it's very clear when reading how the apply the law that they recognize "sex" as distinct from "sexual orientation" and even "gender identity."

Further, contrary to Smac's and Alito's views, the majority recognizes the limits of it's judicial review.  From the majority ruling itself:

“This Court normally interprets a statute in accord with the ordinary public meaning of its terms at the time of its enactment. After all, only the words on the page constitute the law adopted by Congress and approved by the Presi­dent. If judges could add to, remodel, update, or detract from old statutory terms inspired only by extratextual sources and our own imaginations, we would risk amending statutes outside the legislative process reserved for the peo­ple’s representatives. And we would deny the people the right to continue relying on the original meaning of the law they have counted on to settle their rights and obligations. [page 4]

[Duncan]

27 minutes ago, Scott Lloyd said:

I’m not an expert on labor law. You’ll have to go to someone else for that. 
 

But as a matter of common sense, it seems to me that if a worker is contractually obligated as a condition of employment to remain worthy to hold a temple recommend and then ceases to be worthy, that person has breached the contract and is no longer eligible to remain in the position. 

that's true but why build in a religious test, a recommend, for employment to begin with? I don't see how having a recommend makes one somehow better at making garments than someone who doesn't?