Significant Supreme Court Ruling Issued Today (Re: Lgbtq)

[smac97]

26 minutes ago, SeekingUnderstanding said:

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. 

Sex and sexual orientation are not synonymous, thought.  That's the point.

There is no way to read the Civil Rights Act so as to include sexual orientation in one of the five discrete categories of prohibited discriminatory behavior.  No way except to conflate sex and sexual orientation.  That conflation does violence to the language of the statute.

Thanks,

-Smac

[pogi]

31 minutes ago, smac97 said:

What are your thoughts about these remarks?

I think it is largely missing the point.

32 minutes ago, smac97 said:

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

No, I think you are largely missing the point too.

Again it is well explained in this simple example:

Quote

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 

They are discriminating based in part on sex, even if the ultimate goal was to discriminate based on sexual orientation.

38 minutes ago, smac97 said:

Thoughts?

 I think it misses the point.

38 minutes ago, smac97 said:

Again, sex and sexual orientation are not interchangeable.  

Agreed. 

 

[smac97]

30 minutes ago, SeekingUnderstanding said:

Nope. You said the majority opinion conflated sex with orientation. Either it did or didn’t.  

It did.

30 minutes ago, SeekingUnderstanding said:

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. 

Again, Alito's dissent is pretty good.  I'll get into the nitty gritty later.  

If I ask you "Have you stopped beating your wife yet," are you able to "show me ... exactly" where I made any accusation against you?

Thanks,

-Smac

[Daniel2]

41 minutes ago, SeekingUnderstanding said:

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. 

Additionally, there have been several cases of individuals being fired by employers simply for learning that said employee has a same-sex spouse, without the employers ever acknowledging or even asking about the fired employee's sexual orientation.  That is CLEARLY an example of discrimination based entirely on sex, and not sexual orientation or gender identity.  

Additionally, the court found that other classifications related to sex have been and continue to be covered by Title VII. 

The example they gave that sticks out most in my mind is motherhood.  An employer who readily hired both men and women was simultaneously discriminating against hiring mothers with young children, but would employ fathers with young children.  The employer claimed they weren't discriminating based on sex, but were discriminating based on motherhood because, according to their beliefs, small children need their mother in the home.  Said employers claimed that "motherhood" isn't the same as "sex," since not all women are mothers, and it was the non-hirable employees' status as PARENTS that made them unfit for employment, not their sex, since they employed plenty of women who didn't have kids.  The courts found that since only women could be mothers, motherhood is related to and covered "on the basis of sex" in Title VII, and ruled the employer was, in fact, discriminating "on the basis of sex."

Edited June 16, 2020 by Daniel2

[smac97]

46 minutes ago, pogi said:

That is not a quote from the opinion itself.  That is an opinion of the opinion. 

It's from the dissent.

46 minutes ago, pogi said:

Where in the opinion does it conflate sex with sexual orientation?

Again, see Alito's dissent.  

Thanks,

-Smac

[Daniel2]

5 minutes ago, smac97 said:

Sex and sexual orientation are not synonymous, thought.  That's the point.

There is no way to read the Civil Rights Act so as to include sexual orientation in one of the five discrete categories of prohibited discriminatory behavior.  No way except to conflate sex and sexual orientation.  That conflation does violence to the language of the statute.

Thanks,

-Smac

Sex and motherhood are not synonymous, either, yet discrimination against mothers is covered by "on the basis of sex" in Title VII.

Yet no one is arguing that "motherhood" is some sort of 'sub-set' of sex.

Nor does the fact that "motherhood" is covered by Title VII conflate sex with motherhood, or that motherhood "does violence" to the language of the statue (which is an absurd accusation, whether in reference to motherhood, sexual orientation, or gender identity).

[Daniel2]

4 minutes ago, smac97 said:

It's from the dissent.

But he's asking from the opinion.  How is this not clear to you?

[SeekingUnderstanding]

15 minutes ago, smac97 said:

If I ask you "Have you stopped beating your wife yet," are you able to "show me ... exactly" where I made any accusation against you?

Thanks,

-Smac

First The equivalent of what you said is “You beat your wife.” You stated that the majority opinion conflated the sex and gender identity. You didn’t ask when they stopped conflating the two. 
 

Second, easy:

15 minutes ago, smac97 said:

Have you stopped beating your wife yet

Implied in this statement is the assumption that I, in the past beat my wife. 
 

On the matter at hand, the majority ruling explicitly goes out of its way not to conflate sexual orientation with sex. It’s in the plain language of the ruling. That you disagree with their reading of the plain language of the statute is fine. Stating that they are conflating two terms that they painstakingly differentiate is dishonest.

Edited June 16, 2020 by SeekingUnderstanding

[pogi]

2 minutes ago, smac97 said:

It's from the dissent.

Right.  

The CFR was not to show where the dissent accuses the majority opinion of conflating sex with sexual orientation. The CFR is to show a specific quote from the majority opinion where it happens.  Making accusations that it does so (as the dissent does without reference) doesn't show where it actually happened.   

[SeekingUnderstanding]

7 minutes ago, smac97 said:

It's from the dissent.

Again, see Alito's dissent.  

Thanks,

-Smac

So you admit that nowhere in the majority opinion does it conflate the two terms correct? Please retract your original statement. I believe that’s the terms of board participation. 

[smac97]

3 minutes ago, pogi said:

I think it is largely missing the point.

No, I think you are largely missing the point too.

Again it is well explained in this simple example:

Quote

Imagine an employer who has a policy of firing any employee known to be homosexual.

"Homosexual" being a reference to being attracted to a person of the same sex.

The employer's behavior, while repugnant to you and me, is not prohibited by the Civil Rights Act.

3 minutes ago, pogi said:

Quote

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?

Probably not.

3 minutes ago, pogi said:

Quote

If the policy works as the employer intends, the answer depends entirely on whether the model employee is a man or a woman.  

No.  A man can be gay.  A woman can be gay.  If an employer fires persons for their sexual orientation, then "whether the model employee is a man or a woman" is immaterial.

And again, the employer is not prohibited by the Civil Rights Act of firing someone because of his or her sexual orientation.

3 minutes ago, pogi said:

Quote

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 

Nope.  The policy is based on sexual orientation, not sex.

Now, if the employer's policy were to fire females with same-sex orientation, but not gay males, then you might have a point.  Because the woman is being treated differently, for employment purposes, than the man.

And again, the Civil Rights Act lists five categories of prohibited discrimination, none of which is sexual orientation.

3 minutes ago, pogi said:

They are discriminating based in part on sex, even if the ultimate goal was to discriminate based on sexual orientation.

I don't think this is availing.  This approach creates way too much malleability for judges to tweak and distort, or even ignore, statutory texts when it suits them.

Thanks,

-Smac

[Daniel2]

4 minutes ago, SeekingUnderstanding said:

First The equivalent of what you said is “You beat your wife.” You stated that the majority opinion conflated the sex and gender identity. You didn’t ask when they stopped conflating the two. 
 

Second, easy:

Implied in this statement is the assumption that I, in the past beat my wife. 
 

On the matter at hand, the majority ruling explicitly goes out of its way not to conflate sexual orientation with sex. It’s in the plain language of the ruling. That you disagree with their reading of the plain language is the statute is fine. Stating that they are conflating two terms that they painstakingly differentiate is dishonest.

Very well said.

[smac97]

5 minutes ago, Daniel2 said:

Sex and motherhood are not synonymous, either, yet discrimination against mothers is covered by "on the basis of sex" in Title VII.

Motherhood is inherent with the female sex.  Sexual orientation is not.  Both males and females can be gay.

5 minutes ago, Daniel2 said:

Yet no one is arguing that "motherhood" is some sort of 'sub-set' of sex.

To disriminate against mothers is necessarily to discriminate against women.

In contrast, to discriminate against people with same-sex attraction is to discriminate based on that attraction, not on the gender of the individual (since, again, both men and women can have such attraction).

5 minutes ago, Daniel2 said:

Nor does the fact that "motherhood" is covered by Title VII conflate sex with motherhood, or that motherhood "does violence" to the language of the statue (which is an absurd accusation, whether in reference to motherhood, sexual orientation, or gender identity).

I disagree as to the latter two.

Thanks,

-Smac

[pogi]

1 minute ago, smac97 said:

Probably not.

Why do you say that?  Doesn't it depend on the employees sex?

[Daniel2]

6 minutes ago, smac97 said:

And again, the employer is not prohibited by the Civil Rights Act of firing someone because of his or her sexual orientation.

I'm willing to bet that few-to-none of employers who have fired people for having a same-sex spouse actually asked about the orientation of their sexual behaviors, and likely knew little-to-nothing about them. 

The fact that they employees they fired fell in love with and had/have relationships with members of their own SEX was all most of them needed.

Discrimination based on sexual orientation, like discrimination based on motherhood, is discrimination based on sex, even without knowing anything about the sexual proclivities of any employees.

You are, of course, free to disagree, as reasonable minds can and do.  But the preponderance of law, as well as it's ultimate authority, is on the side of us who hold that discrimination based on sexual orientation is covered by Title VII, not your opposing view.

Edited June 16, 2020 by Daniel2

[smac97]

5 minutes ago, SeekingUnderstanding said:

First The equivalent of what you said is “You beat your wife.” 

What?  Where did I say that?  Chapter and verse, please.  CFR.  😁

Just kidding about the CFR.  You see my point, and have in fact reinforced it.

5 minutes ago, SeekingUnderstanding said:

You stated that the majority opinion conflated the sex and gender identity. You didn’t ask when they stopped conflating the two. 

Well, to paraphrase you: The equivalent of that the majority opinion said is "The text of the Civil Rights Act prohibits discrimination based on sexual orientation."

Here's an interesting thought exercise: Until the last day or so, there were previously five categories of prohibited discrimination under Title VII of the Civil Rights Act: race, color, national origin, sex, and religion.

My question to you is: How many are there as of June 16, 2020?  Five or six?

If your answer is "five," then you and the Gorsuch crowd are conflating "sex" with "sexual orientation."

If your answer is "six," then the Gorsuch crowd legislated from the bench.

So which it is?  Five or six?

5 minutes ago, SeekingUnderstanding said:

Second, easy:

Implied in this statement is the assumption that I, in the past beat my wife. 

Right.  That is the point that Alito is making.  Implication.  See here:

Quote

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.”

"Implication" = "textualist flag."

5 minutes ago, SeekingUnderstanding said:

On the matter at hand, the majority ruling explicitly goes out of its way not to conflate sexual orientation with sex.

Of course they did.  Talking out of both sides of their mouth is the only way to reach the decision they did.  

Again, are there five categories of prohibited discrimination under Title VII, or six?

5 minutes ago, SeekingUnderstanding said:

It’s in the plain language of the ruling.

And yet the plain language of the statute does not prohibit discrimination based on sexual orientation.

That's Alito's point.  And Kavanaugh's.  And mine.

5 minutes ago, SeekingUnderstanding said:

That you disagree with their reading of the plain language is the statute is fine.

Um, what?  Are you seriously suggesting that "their reading of the plain language i{n} the statute" includes a prohibition against discrimination based on sexual orientation?

The "plain language" of the statute says nothing about sexual orientation.

5 minutes ago, SeekingUnderstanding said:

Stating that they are conflating two terms that they painstakingly differentiate is dishonest.

Baloney.  Denying that they are conflating "sex" with "sexual orientation" is dishonest.

Again, are there five categories in Title VII, or six?

Thanks,

-Smac

[Anijen]

1 hour ago, pogi said:

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

That is what they are doing. The Court's opinion is trying to redefine sex to also include sexual orientation.

 

Quote

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? 

The 'but-for' test is commonly used in tort law and criminal law to determine actual causation. The point SMAC is making is the court is redefining textualism but it is actually judicial activism. The Court's opinion is using the but-for test to rationalize its changing an old court case (Title VII) to mean more than it stated.

If Justice Gorsuch can use his flavor of textualism to rewrite a statute to comport with changing public mores, then it is meaningless. It is meaningless because that judicial activism (framed as textualism) becomes one more tool of those who believe in a "living constitution" which means whatever any justice says it means. Justice Gorsuch is interpreting the Title VII Statute to mean something no member of Congress understood it to mean at the time of its passage. SMAC is not saying the opinion is bad or good for those who have a different sexual orientation he is saying that it is the role of Congress to make the laws and not the role of the Supreme Court.

For example, Congress itself has demonstrated an understanding that a prohibition on discrimination on the basis of sex did not encompass discrimination on the basis of sexual orientation or gender identity.  Congress included sexual orientation and gender identity alongside sex in the enumeration of prohibited discriminatory motives found in the Matthew Shepard and James Byrd Hate Crimes Prevention Act, and in other Congressional Acts (e.g. Equality Act).

It was Congress who sought to amend Title VII to add prohibitions against discrimination based on sexual orientation and gender identity (not combine them to mean the same thing). It would be an abuse of the separation of powers to allow SCOTUS to rewrite laws. In all of the the dissenting justices' opinions it is Congress who should decide whether Title VII extends to discrimination based on sexual orientation or gender identity. The dissents accuse the majority of stepping into the legislative role.

So the issue here is not how wonderful or terrible this Supreme Court decision was helpful for the LGBTQ community but whether the Court overstepped its role. "Any literal interpretation contrary to ordinary meaning undermines the rule of law" wrote Justice Kavanaugh in his dissent.

The injustices of past practices provide the impetus to update Title VII, but changing the statute is Congress' job not the court's.

 

 

Edited June 16, 2020 by Anijen

[smac97]

11 minutes ago, pogi said:

Quote

 

Quote

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?

Probably not.

 

Why do you say that? 

First, because I didn't have enough information to reach a more specific conclusion.

Second, because the vast majority of people are heterosexual, such that "Susan's" spouse is, statistically speaking, a man.

Third, because the gender of "Susan's" spouse is not dispositive.  Plenty of gay people are in mixed orientation marriages.

11 minutes ago, pogi said:

Doesn't it depend on the employees sex?

No.  It depends on the sexual orientation of the employee.  Sexual orientation and sex are not synonymous.

Thanks,

-Smac

[SeekingUnderstanding]

14 minutes ago, smac97 said:

Motherhood is inherent with the female sex.  Sexual orientation is not.  Both males and females can be gay.

Parenthood can be experienced by men and women. A company can’t employ parents who are male, but not parents who are female without discriminating based on sex. 
 

Attraction to females can be experienced by men and women. A company can’t employ men attracted to women, but not women who are attracted to women without discriminating based on sex. 
 

It’s simple, straightforward and easy. No conflation between sex and parenthood. No conflation between orientation and sex. 

[smac97]

14 minutes ago, Daniel2 said:

Quote

And again, the employer is not prohibited by the Civil Rights Act of firing someone because of his or her sexual orientation.

I'm willing to bet that few-to-none of employers who have fired people for having a same-sex spouse actually asked about the orientation of their sexual behaviors, and likely knew little-to-nothing about them. 

Irrelevant.  Employers are not prohibited by the Civil Rights Act of firing someone because of his or her sexual orientation.

14 minutes ago, Daniel2 said:

The fact that they employees they fired fell in love with and had/have relationships with members of their own SEX was all most of them needed.

And that is unfortunate.  But still beside the point.  The Civil Rights Act does not prohibit discrimination based on sexual orientation.

14 minutes ago, Daniel2 said:

Discrimination based on sexual orientation, like discrimination based on motherhood, is discrimination based on sex, even without knowing anything about the sexual proclivities of any employees.

Demonstrably false.

Sexual orientation is not unique to men or women.  Motherhood, in contrast, is unique to women.

14 minutes ago, Daniel2 said:

You are, of course, free to disagree, as reasonable minds can and do.  But the preponderance of law, as well as it's ultimate authority, is on the side of us who hold that discrimination based on sexual orientation is covered by Title VII, not your opposing view.

I have the text of the statute.  You have a activist judges legislating from the bench.

Thanks,

-Smac

[smac97]

26 minutes ago, SeekingUnderstanding said:

Quote

It's from the dissent.

Again, see Alito's dissent.  

Thanks,

-Smac

So you admit that nowhere in the majority opinion does it conflate the two terms correct?

I admit no such thing.

26 minutes ago, SeekingUnderstanding said:

Please retract your original statement.

No.

26 minutes ago, SeekingUnderstanding said:

I believe that’s the terms of board participation. 

Poppycock.

Have you stopped beating your wife yet?  A yes or no answer, please.  

Thanks,

-Smac

[smac97]

27 minutes ago, pogi said:

Right.  

The CFR was not to show where the dissent accuses the majority opinion of conflating sex with sexual orientation. The CFR is to show a specific quote from the majority opinion where it happens.  Making accusations that it does so (as the dissent does without reference) doesn't show where it actually happened.   

Sigh.

How many categories of prohibited discrimination are itemized in the text of Title VII?  Five or six?

Thanks,

-Smac

[smac97]

31 minutes ago, Daniel2 said:

But he's asking from the opinion.  How is this not clear to you?

The majority opinion is speaking out of both sides of its mouth.  It denies conflating sex with sexual orientation, and then proceeds to do precisely that.

How is this not clear to you?

Thanks,

-Smac

[Amulek]

3 hours ago, smac97 said:

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

I believe the majority opinion takes a textualist approach to dealing with this by pointing out that sex matters even if it is only part of the reason:

Quote

Nor does it matter that, when an employer treats one employee worse because of that individual's sex, other factors may contribute to the decision. Consider an employer with a policy of firing any woman he discovers to be a Yankees fan. Carrying out that rule because an employee is a woman and a fan of the Yankees is a firing "because of sex" if the employer would have tolerated the same allegiance in a male employee. Likewise here. sexual or transgender, two causal factors may be in play— both the individual's sex and something else (the sex to which the individual is attracted or with which the individual identifies). But Title VII doesn't care. If an employer would not have discharged an employee but for that individual's sex, the statute's causation standard is met…

To be honest, I would have had much more respect for the Obergefell decision if it had followed a similar line of reasoning - simple sex discrimination rather than the hodgepodge of wandering we got from Kennedy, waxing on about dignity and all of that. And, frankly, I think the sex discrimination argument was even stronger in the marriage case than in this one - though I understand the Court's reasoning.

I certainly have some sympathy for Justice Alito's dissent - after all, it isn't like nobody has ever thought about adding sexual orientation as a protected class before. They have; it just never happened (legislatively). So, I understand his frustration.

Still, at the end of the day, I think the Court wound up with an acceptable decision. For those who disagree with it, look at the bright side - it could have been a lot worse if Gorsuch hadn't been assigned to write the majority opinion and RBG had been given the reigns instead. 

 

Side note: Good to know that it's still perfectly legal to fire Yankees fans so long as you do so on a sex-neutral basis.  

 

Edited June 16, 2020 by Amulek
spelling...

[SeekingUnderstanding]

10 minutes ago, smac97 said:

My question to you is: How many are there as of June 16, 2020?  Five or six?

Have you even read the majority opinion? There are still five. The majority found that it is impossible to discriminate on the basis of sexual orientation without discriminating based on sex. Just like you can’t fire parents because they are female, you can’t fire people attracted to females because they are female. I get you disagree with this, but this is not the same as conflating parenthood with sex or orientation as sex.