Significant Supreme Court Ruling Issued Today (Re: Lgbtq)

[smac97]

33 minutes ago, Daniel2 said:

Quote

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.

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

Because motherhood is unique to women, whereas sexual orientation is not.

33 minutes ago, Daniel2 said:

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

There is no way to discriminate against a mother without also discriminating against a woman, since all mothers are women.

In contrast, there is no unique connection between sexual orientation and women.  Women are gay.  Men are gay. 

If an employer with five gay men and five gay women in his employ were to summarily fire all of them because of their sexual orientation, has he discriminated based on sex?  Nope.

Thanks,

-Smac

[SeekingUnderstanding]

2 minutes ago, smac97 said:

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

Please quote the relevant section where it does “precisely that”. The actual words of the opinion. If it does this, surely it won’t be hard to quote the actual opinion to show it. Using its actual words. Again this is a CFR for the claim that the opinion conflated the two. 

[Ahab]

5 minutes ago, smac97 said:

Sigh.

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

Thanks,

-Smac

the correct answer is "five"

[smac97]

1 minute ago, SeekingUnderstanding said:

Quote

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.

None of which is "sexual orientation."

And yet the majority opnion held that discrimination based on sexual orientation is a violation of Title VII.  They get there by . . . conflating sex with sexual orientation.  Even though homosexuality is shared by both sexes.

1 minute ago, SeekingUnderstanding said:

The majority found that it is impossible to discriminate on the basis of sexual orientation without discriminating based on sex.

Yes, the whole talking-out-of-both-sides-of-their-mouth bit.

Here's a thought experiment: An employer, Bob, has a policy that discriminates against homosexuals.  The HR director approaches Bob and says "Hey, I just found out that two of our employees is gay."  Bob, without asking anything further, says "Terminate those employees.  Right now."

I think we all agree that Bob is behaving deplorably, but has he discriminated based on sex?  Nope.  He didn't know their gender.  They could have been both male, both female, or one each.  What Bob did discriminated against was sexual orientation, not sex.  He did not discriminate against a woman because she is a woman, or a man against a man.  He discriminated against those two employees because of their sexual orientation.

Thanks,

-Smac

1 minute ago, SeekingUnderstanding said:

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. 

d

[pogi]

3 minutes ago, Anijen said:

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

I didn't see any attempt to redefine sex.  If a person is sexually oriented towards men, isn't that person's sexual orientation inextricably connected to that person's sex?  It is not conflating the two any more than saying that motherhood is inextricably connected to that person's sex.  It is showing a connection not a conflation. 

From the opinion:

Quote

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

 

12 minutes ago, Anijen said:

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

 

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.

I think it is wrong to accuse a 6-3 politically bipartisan ruling of "judicial activism (framed as textualism)" and overstepping their roles as judges.  Is it truly without precedence for the Supreme Court to interpret a law in a way that Congress has never heretofore done?   

 

[Kenngo1969]

50 minutes ago, Duncan said:

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? 

The only religious tests that are prohibited in the United States are those for holding public office.  A recommend holder has made the covenants involved in wearing garments, and therefore understands the significance of the symbolism that goes into making them.  Thus, a recommend holder is likely to approach making garments differently than would Al, hired by Beehive Clothing from the Levi Factory.  Yes, in some ways, making garments is like making Levi's: A seam here, a pleat there, a tuck here!  In other ways, it most decidedly is not.

[pogi]

23 minutes ago, smac97 said:

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

Thanks,

-Smac

I will quote myself here:

Quote

If a person is sexually oriented towards men, isn't that person's sexual orientation inextricably connected to that person's sex?  It is not conflating the two any more than saying that motherhood is inextricably connected to that person's sex.  It is showing a connection not a conflation.

From the opinion:

Quote

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

 

Edited June 16, 2020 by pogi

[Daniel2]

1 hour ago, Scott Lloyd said:

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. 

I wasn't employing 'the fallacy of appeal to popularity" as a rhetorical means to win an argument.  Rather, my point in showing the growing legal support for equal civil protections is that going forward, acceptance of LGBT citizens will likely result in future generations viewing the government recognizing equal protection from discrimination as "right" from a moral perspective.  If this decision by the court is ever reversed, I anticipate it will only be because the legislature decides to explicitly add "sexual orientation" and "gender identity" into law (such as adopting the Equality Act, which I'm not sure is likely, now the court has spoken, but I suppose we'll see...).  I think it's entirely plausible that many Senators are actually secretly relieved the court decided the issue so they can still have plausible deniability with their constituents that they don't support same-sex causes, even if they privately believed such discrimination is legally unsustainable and/or untenable. 

[stemelbow]

1 hour ago, Scott Lloyd said:

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

I'll re-explain, no problem.  You seem concerned that the Church might be forced to hire someone who is not temple worthy.  I pointed out that I was aware some employees, likely all former now, were "unworthy" and yet worked there.  It doesn't seem to have negatively impacted the work, nor the Church.  So I'm not sure it's a big deal if the Church were forced to employ someone who is "unworthy".  Indeed, in some cases, an unworthy person might be best for their corporate goals anyway.  

In truth I don't think this ruling with impact whether the Church will be forced to hire someone who is unworthy or not, though.  

[Ahab]

I think the only reason this issue is confusing to some people is because they... those who get confused... conflate sex with sexual orientation.

They just don't understand that the sex of a person has nothing to do with sexual orientation, and sexual orientation has nothing to do with the sex a person is. 

Part of the problem is also that sex has more than one definition, with people sometimes using the word sex to refer to sexual activity rather than the sex/gender a person is.

And thus people get confused sometimes on issues like this.

[smac97]

18 minutes ago, SeekingUnderstanding said:

Parenthood can be experienced by men and women.

Is discrimination against "parenthood" prohibited by Title VII?  

18 minutes ago, SeekingUnderstanding said:

A company can’t employ parents who are male, but not parents who are female without discriminating based on sex. 

Right.

But a company can refuse to employ people with same-sex attraction "without discriminating based on sex," since both men and women can be gay.

Now, could an employer discriminate against lesbians, but not gay men, per Title VII?  I don't think so, since lesbianism is, like motherhood, unique to women.

18 minutes ago, SeekingUnderstanding said:

Attraction to females can be experienced by men and women.

That's my point.  Sexual orientation is not synonymous with sex.

18 minutes ago, SeekingUnderstanding said:

A company can’t employ men attracted to women, but not women who are attracted to women without discriminating based on sex. 

Let's say the employer, Bob, has a policy of hiring only heterosexuals and gay men, but no lesbians.  Has he discriminated based on "sex?"  Yes, because all lesbians are women.  But has he discriminated based on sexual orientation?  Nope.  Because he hires gay men.

More to the point, even if he does discriminate based on sexual orientation, the Civil Rights Act doesn't prohibit that.

18 minutes ago, SeekingUnderstanding said:

It’s simple, straightforward and easy.

I agree, but in the other direction. 

"Sex" and "sexual orientation" are not synonymous.  It’s simple, straightforward and easy.

The text of the Civil Rights Act presents five characteristics on which is it unlawful to discriminate.  "Sexual orientation" is not one of them.  It’s simple, straightforward and easy.

The majority opinion, recognizing that the text of the statute does not say what they wanted it to say, resorts to doublespeak.  They claim fealty to textualism, and then proceed to fabricate a sixth category under Title VII.  Again, from Justice Alito's decision:

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.”

Yep.

18 minutes ago, SeekingUnderstanding said:

No conflation between sex and parenthood.

Huh?

18 minutes ago, SeekingUnderstanding said:

No conflation between orientation and sex. 

Nothing but "conflation between orientation and sex."

Again, there are only five categories of protected classes/characteristics under Title VII, none of which is "sexual orientation."  One of these classes is "sex," which the majority conflated with "sexual orientation" to reach their desired objective.

Thanks,

-Smac

[pogi]

Just now, Ahab said:

They just don't understand that the sex of a person has nothing to do with sexual orientation, and sexual orientation has nothing to do with the sex a person is. 

Nothing to do with the sex of the person?  Serious?  

A person is sexually oriented towards men and only has sex with men. Is that person gay or straight? 

It depends on ______ 

A) That person's sex

B) That person's hair color

C) If that person had spaghetti or pizza for dinner

[Scott Lloyd]

11 minutes ago, stemelbow said:

I'll re-explain, no problem.  You seem concerned that the Church might be forced to hire someone who is not temple worthy.  I pointed out that I was aware some employees, likely all former now, were "unworthy" and yet worked there.  It doesn't seem to have negatively impacted the work, nor the Church.  So I'm not sure it's a big deal if the Church were forced to employ someone who is "unworthy".  Indeed, in some cases, an unworthy person might be best for their corporate goals anyway.  

In truth I don't think this ruling with impact whether the Church will be forced to hire someone who is unworthy or not, though.  

You see it as a “big deal” that the Church be compelled to place someone in a position of working daily in the temple when that person does not meet the requirements for admission to the temple. I do see it as a big deal. It would be an egregious infringement on the free exercise of religion, a right so fundamental to our liberty that it is protected in the Bill of Rights as part of the First Amendment. In fact it bothers me a great deal that someone could be so cavalier with regard to this important right and makes me more determined than ever to resist encroachment on our religious liberty. 
 

So I guess we are at loggerheads on this matter. 

[Bob Crockett]

35 minutes ago, smac97 said:

Sigh.

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

Thanks,

-Smac

"Sigh" means, "You're a freaking idiot."

Give it up.  Constitutionality and the interpretation of statute, since Marbury v. Madison, are what the courts say they are, not what Congress says. Everybody who is a lawyer knows that.  Or should know.  Or get out of pretending to be a constitutional lawyer.

Lawyers can urge a particular reading of statute, to be sure. But once the court has ruled, what's the use? Your argument is the same made against Roe v. Wade. 

I think God, in His right mind, legislates against the sin but then sits with the sinners.  When He does, he discusses repentance.  Not freakin' politics.  

[Ahab]

5 minutes ago, pogi said:

Nothing to do with the sex of the person?  Serious?  

A person is sexually oriented towards men and only has sex with men. Is that person gay or straight? 

Could be either, so as I said, a person's sexual orientation has nothing to do with that person's sex.

We call a person different things depending on their sexual orientation AND what sex they are, a combo term that reflects BOTH their sex AND their sexual orientation, but sex and sexual orientation are separate attributes.

5 minutes ago, pogi said:

It depends on ______ 

A) That person's sex

B) That person's hair color

C) If that person had spaghetti or pizza for dinner

So silly.  I hope what I have said has helped to clear up your confusion.

[stemelbow]

5 minutes ago, Scott Lloyd said:

You see it as a “big deal” that the Church be compelled to place someone in a position of working daily in the temple when that person does not meet the requirements for admission to the temple.

My goodness, Scott.  You seem intent on mischaracterizing everything I say.  I did not suggest anything about someone who works in the temple.  I indicated there may be some positions in the Church's corporation, that now require Church worthiness endorsement, which might best be filled by someone who is not worthy.  AND I added, I don't think this ruling with force the Church either way.  So, your concern really is no big deal, if you ask me.  

5 minutes ago, Scott Lloyd said:

I do see it as a big deal. It would be an egregious infringement on the free exercise of religion, a right so fundamental to our liberty that it is protected in the Bill of Rights as part of the First Amendment. In fact it bothers me a great deal that someone could be so cavalier with regard to this important right and makes me more determined than ever to resist encroachment on our religious liberty. 
 

So I guess we are at loggerheads on this matter. 

It may be an egregious infringement, but I think you're stuck swinging at windmills on this.  

[smac97]

12 minutes ago, pogi said:

Nothing to do with the sex of the person?  Serious?  

A person is sexually oriented towards men and only has sex with men. Is that person gay or straight? 

It depends on ______ 

A) That person's sex

B) That person's hair color

C) If that person had spaghetti or pizza for dinner

A person is sexually oriented towards women and only has sex with women. Is that person gay or straight? 

It depends on ______ 

A) That person's sex

B) That person's hair color

C) If that person had spaghetti or pizza for dinner

"Sexual orientation" is not unique to men or to women. 

Most men are straight, and some few are gay, bisexual, asexual, etc.  

Most women are straight, and some few are gay, bisexual, asexual, etc.  

Now, I suppose it's conceivable to discriminate against lesbians, but not gay men.  But then, that becomes sex-specific (like motherhood), and therefore potentially actionable under Title VII.

But broadly speaking, "sexual orientation" is not synonymous with "sex."

Thanks,

-Smac

[Bob Crockett]

7 minutes ago, smac97 said:

But broadly speaking, "sexual orientation" is not synonymous with "sex."

-Smac

Not according to the law of the land.

What does it really matter?  Gov't shouldn't discriminate.  People relying on gov't funds should not discriminate.  

This discussion is just freakin' politics.  How you see the answer depends upon your political persuasion, not based upon your religion.  If you're a right ring flame-thrower, you'll hate the decision.  

Edited June 16, 2020 by Bob Crockett

[smac97]

2 minutes ago, Bob Crockett said:

Not according to the law of the land.

What does it really matter?  Gov't shouldn't discriminate.  People relying on gov't funds should not discriminate.  

I agree.  My point is to object to judicial overreach.  It is the province of the legislature, not the courts, to re-write statutes.

Thanks,

-Smac

[pogi]

14 minutes ago, Ahab said:

Could be either, so as I said, a person's sexual orientation has nothing to do with that person's sex.

We call a person different things depending on their sexual orientation AND what sex they are, a combo term that reflects BOTH their sex AND their sexual orientation, but sex and sexual orientation are separate attributes.

So silly.  I hope what I have said has helped to clear up your confusion.

Stop the word games. I think you know what was meant.  The argument is whether being gay or straight is inextricably tied to a persons sex.  You seem to concede that point here.

 

Edited June 16, 2020 by pogi

[Ahab]

1 minute ago, pogi said:

Stop the word games.  Sexual orientation is being used by everyone here but you to mean gay or straight.  The argument is whether being gay or straight is inextricably tied to a persons sex.  You seem to concede that point here.

 

You are having some trouble correctly understanding me, again.

I agree that sexual orientation refers to whether a person prefers to have sexual relations with either a man or a woman.

What you don't seem to understand, even after I have tried to explain it to you, several times, is that the sex of a person does not determine the sex preferred for sexual relations. Whether male or female, anyone can prefer either.

[pogi]

20 minutes ago, smac97 said:

A person is sexually oriented towards women and only has sex with women. Is that person gay or straight? 

It depends on ______ 

A) That person's sex

B) That person's hair color

C) If that person had spaghetti or pizza for dinner

"Sexual orientation" is not unique to men or to women. 

Most men are straight, and some few are gay, bisexual, asexual, etc.  

Most women are straight, and some few are gay, bisexual, asexual, etc.  

Now, I suppose it's conceivable to discriminate against lesbians, but not gay men.  But then, that becomes sex-specific (like motherhood), and therefore potentially actionable under Title VII.

But broadly speaking, "sexual orientation" is not synonymous with "sex."

Thanks,

-Smac

The answer is A, it depends on their sex.  Sex is the deciding factor.  Connection not conflation.

If changing the persons sex, in this example “would have yielded a different choice by the employer-a statutory violation has occurred.”

Edited June 16, 2020 by pogi

[Anijen]

1 hour ago, Amulek said:

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:

I will have to disagree. It is being branded about as a textualist approach (i.e.,  Justice Kagan saying; "we are all textualist now"), but it is still changing the meaning of the text (Title VII) to include dictum not in Title VII, thus it is judicial activism. Legislating from the bench.

[pogi]

5 minutes ago, Ahab said:

I agree that sexual orientation refers to whether a person prefers to have sexual relations with either a man or a woman.

That’s not what I said.  I was using the term to mean gay or straight (there is a difference).  I made that clear.  

 

[smac97]

4 minutes ago, pogi said:

The answer is A, it depends on their sex.  Sex is the deciding factor.  Connection not conflation.

Nope.  Conflation.

"Sexual orientation" has no innate "connection" to a "sex."  Women are straight, gay, bisexual, asexual, etc.  So are men.

Thanks,

-Smac