Significant Supreme Court Ruling Issued Today (Re: Lgbtq)

[pogi]

22 minutes ago, Anijen said:

Judicial activism can take place no matter if it is a split decision or unanimous decision.

 

I get that. You would be in the majority of those who have read the decision.

However, I have noticed the legally trained here on this board, even while disagreeing with each other, has appeared to stipulate that judicial activism has occurred. One saying overreach has happened the other saying what does it matter, and me just pointing out it has happened and will continue to happen and suits will be forthcoming using these same tactics in the future.

If you were to take a larger sample of legally trained individuals, I think you will find that opinion varies greatly.  I am simply of the opinion that it didn't happen.  I suspect that there has rarely been a decision made where the questions of judicial activism was not raised by those who disagree.  

Edited June 16, 2020 by pogi

[Ahab]

Just now, pogi said:

The ruling addresses this.  Go read it. 

I read it. And I like what they decided to do. I don't think it had anything to do with Title 7 or the Civil Rights act, though, except that most of them thought it was a civil thing to do for people regardless of sexual orientation.

[smac97]

4 minutes ago, pogi said:

The ruling addresses this.  Go read it. 

The dissent addresses the speciousness of the majority opinion's "textualism."

Thanks,

-Smac

[pogi]

Just now, Ahab said:

I read it. And I like what they decided to do. I don't think it had anything to do with Title 7 or the Civil Rights act, though, except that most of them thought it was a civil thing to do for people regardless of sexual orientation.

We disagree. Go figure

[Ahab]

4 minutes ago, pogi said:

We disagree. Go figure

It is just the way things are.  A fact of life that I have become accustomed to,

[Anijen]

12 minutes ago, Amulek said:

This isn't just a branding issue. Justice Gorsuch is a conservative, known for his adherence to both originalism and textualism. And the argument he advances in the opinion follows textualism; see, e.g., here:

That is why it surprises so many that Justice Gorsuch is siding with the majority. Many articles out there are already been written that Gorsuch has gone rogue. It is not textualism.

 

Quote

So, that's him explaining why discrimination on the basis of sexual orientation qualifies as discrimination "based on sex" under the plain text of the law.  That's classic textualism. Much of his reasoning throughout is similarly textualist in nature. 

It cannot be textualism (based on the original text of Title VII) if he adds more meaning to that text. In fact it is the opposite of textualism. It doesn't matter if I agree with Gorsuch or not (I do agree with him).

 

Quote

Now, to be fair, there is certainly room for debate among textualists about the correct methodological considerations relating to the case and where those considerations should lead,

Yes, I agree,  there is certainly room about the correct methodology (i.e., textualism v. originalism, v. activism, v. stare decisis, v. unprecedented, etc.).

 

Quote

but I don't think you can just shrug it off and say it isn't textualism just because you disagree with the outcome. 

I am not doing that and I have never said nor implied that I disagree with the outcome. I do not.

I disagree with the branding this as textualism when it is not.

[Anijen]

22 minutes ago, pogi said:

If you were to take a larger sample of legally trained individuals, I think you will find that opinion varies greatly.  I am simply of the opinion that it didn't happen.  I suspect that there has rarely been a decision made where the questions of judicial activism was not raised by those who disagree.  

I agree

[Ahab]

16 minutes ago, Amulek said:

Justice Gorsuch is a conservative, known for his adherence to both originalism and textualism. And the argument he advances in the opinion follows textualism; see, e.g., here:

"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…."

That's where he messed up when considering the issue of sexual orientation.  He should not have specified the sex of the persons someone else was attracted to.  He should have simply stated whether those persons were gay or straight.

Like this:

Consider, for example, an employer with two employees, one who is gay and the other is straight. The two individuals are, to the employer's mind, materially identical in all respects, except that one is gay and the other is straight. If the employer fires the gay employee for no reason other than the fact he or she is attracted to someone of the same sex, the employer discriminates against him or her for traits or actions it would not tolerate in the other colleague…."

I'll leave you to wonder why he framed the example the way he did.

[pogi]

1 hour ago, Ahab said:

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.

No, I understood that. 

[Islander]

On 6/15/2020 at 1:19 PM, smac97 said:

Yes.  My quesion is whether the Church can maintain its requirements re: sexual behaviors (rather than orientation) for its employees.

And the Church does not do this, and I am glad of that.

I wonder how transsexuals will be handled.  

I quite agree.  The question I have is whether SCOTUS has situated itself so as to prohibit the Church from requiring behavioral/sexual standards of its employees.  I hope not.

Thanks,

-Smac

Only religious organizations are permitted to give preference in hiring to those who agree with their religious views. A non-religious organization (i.e., a typical business) is committing unlawful religious discrimination if it requires applicants or even current employees to sign a statement of faith. To a religious organization it is allowed to include a statement of faith and ministry principles agreement as part of the hiring contract/agreement, and it is afforded under section 702(a) of the Civil Rights Act of 1964,

[Daniel2]

1 hour ago, smac97 said:

The dissent addresses the speciousness of the majority opinion's "textualism."

Thanks,

-Smac

While the dissent attempts to address it, the argument’s of the three dissenting judges ultimately proved unpersuasive and didn’t prevail.

And now the law has been established that Title VII’ “on the basis of sex” prevents non-discrimination for all in the LGBT community, and even to those that are straight! 

[Daniel2]

59 minutes ago, Islander said:

Only religious organizations are permitted to give preference in hiring to those who agree with their religious views. A non-religious organization (i.e., a typical business) is committing unlawful religious discrimination if it requires applicants or even current employees to sign a statement of faith. To a religious organization it is allowed to include a statement of faith and ministry principles agreement as part of the hiring contract/agreement, and it is afforded under section 702(a) of the Civil Rights Act of 1964,

Well said, Islander.  And I fully support the reality that this recent ruling does nothing to rob religious organizations from the enumerated employment protections they already enjoy.

[Amulek]

59 minutes ago, Anijen said:

I disagree with the branding this as textualism when it is not.

I'm not going to get into a long debate about this. I'll just point out that not everyone agrees with your assessment about it not being textualism.

Including - significantly, I think - Bryan A. Garner.

You know, the editor and chief of Black's Law Dictionary; the guy who literally wrote the book on textualism along with former Justice Scalia. 

Here's his exact quote:

“Scalia J. would have been with Alito J. in dissent because the nobody-ever-thought-it-meant-that line of reasoning carried a lot of weight with him. (For what it matters [not a whit!], I’d have been with Gorsuch J.) The important thing is that all the opinions were TEXTUALIST.” [emphasis in original]

 

[smac97]

30 minutes ago, Daniel2 said:

Quote

The dissent addresses the speciousness of the majority opinion's "textualism."

While the dissent attempts to address it, the argument’s of the three dissenting judges ultimately proved unpersuasive and didn’t prevail.

Daniel, I get that you're giddy about the decision in this case.  But your assessment is facile and reactionary.  My sense is that you have what I think is an unprincipled approach to legal issues.  That is to say, you don't care about the legal principles, just the results.  The ends justify the means.  If you like the outcome, then you like the decision.  If you don't like the outcome, you don't like the decision.

I am a big fan of the separation of powers.  I think it is the province of the legislature, not the courts, to craft and enact statutes.  I am also a big fan of the Tenth Amendment, which should operate as a substantial check on the federal government's ability to legislate matters pertaining to non-delegated powers (which, under the Tenth Amendment, "are reserved to the States respectively, or to the people").  I am generally and strongly opposed to the federal government's use of the Commerce Clause as the constitutional basis for legislating matters that would otherwise be in violation of the Tenth Amendment.  I think the states (not the federal government) should pass legislation protecting homosexuals from discrimination in employment.

And so on.  These are some of the legal principles I rely on, the lens through which I view decisions from the courts.  Whether I like the outcome or not is secondary, and often highly derivative of, these principles.

Again, I don't think you care about any of these things.  The ends justify the means.  I get it.  You're as dependable as the tides on that.  But that being the case, you'll understand why I give no essentially no weight to your legal analysis, such as it is.  

Quote

And now the law has been established that Title VII’ “on the basis of sex” prevents non-discrimination for all in the LGBT community, and even to those that are straight! 

Yep.  "Established" by six unelected, life-tenured, unreviewable, unaccountable-to-anyone judges legislating from the bench, not by the legislature. 

"Established" by disregarding the plain text of the statute and reading into it the personal (and socially popular) preferences of the judges.

"And now the law has been established."  I couldn't have said it better myself.  The Civil Rights Act was passed by Congress.  In 1964.  But, as you so aptly put it, "now the law" - the statutory text passed nearly 60 years ago - has been radically amended.  Not by Congress, but by SCOTUS.

And yet, I suspect, you couldn't care less.  Because the ends justify the means.

-Smac

Edited June 16, 2020 by smac97

[pogi]

3 hours ago, smac97 said:

Is discrimination against "parenthood" prohibited by Title VII?  

Motherhood is protected for the same reasons that a lesbian is protected.  Fatherhood is protected for the same reasons that a gay man is protected.  Parenthood is therefore protected for the very same reasons that sexual orientation is protected.

 

[smac97]

Just now, pogi said:

Quote

Is discrimination against "parenthood" prohibited by Title VII?  

Motherhood is protected for the same reasons that a lesbian is protected. 

I don't think so.  

Just now, pogi said:

Fatherhood is protected for the same reasons that a gay man is protected.  Parenthood is therefore protected for the very same reasons that sexual orientation is protected.

Again, I don't think so.

Thanks,

-Smac

[pogi]

10 minutes ago, smac97 said:

I don't think so.  

Again, I don't think so.

Thanks,

-Smac

You don't think that motherhood and fatherhood is protected, or are you suggesting they are protected for different reasons?

Edited June 16, 2020 by pogi

[Bob Crockett]

24 minutes ago, smac97 said:

Daniel, I get that you're giddy about the decision in this case.  But your assessment is facile and reactionary.  My sense is that you have what I think is an unprincipled approach to legal issues.  That is to say, you don't care about the legal principles, just the results.  The ends justify the means.  If you like the outcome, then you like the decision.  If you don't like the outcome, you don't like the decision.

On the other hand, I think I have a principled approach to legal issues.  My firm of twenty represents several major religions and schools around the country on constitutional issues.  Recently, I scored a significant victory for a religious school in Ohio challenging decisions made by an accreditation entity.  I am always on the side of religious freedom and First Amendment freedom.

Moreover, I consider myself a conservative.  

Under Marbury v. Madison, the law is as stated by the Supreme Court, and not by Congress if the law has been challenged in the courts.  There is no need call somebody as facile, reactionary, giddy, uncaring about the analysis.  The Supreme Court has spoken and has reinterpreted textualism.  

Now, you may not like the decision, but critics like you can't accomplish much except to perhaps galvanize the president of the U.S. to have a different focus in the selection of judicial nominees.  That is the only reason for your criticism, at least from a principled legal perspective.  A lot of ink has been spilled against Roe v Wade, and the only effect has been to influence voters and the president. Roe v. Wade remains the law.  I also note that while the Republicans have spent time and money on a flag-burning amendment to the constitution, they have done nothing to prevent the continued murder of children in the womb with a constitutional amendment.  (It reminds me of the time around 1880 when the Republican Party spent time and money trying to pass a constitutional amendment banning the Catholic Church.)  Republicans are intolerant.  Democrats are intolerant of views that disagree with theirs.  True Christianity:  Tolerant. 

Edited June 16, 2020 by Bob Crockett

[smac97]

7 minutes ago, pogi said:

You don't think that motherhood or fatherhood is protected?  Or, are you suggesting they are protected for different reasons?

I don't think they are protected "for the same reasons that a gay man {or a lesbian} is protected."

I suppose I need to review this issue in further detail.  For example, see here:

Quote

Estée Lauder Companies, Inc., one of the world's leading manufacturers and marketers of skin care, makeup, fragrance and hair care products, violated federal law when it implemented and administered a paid parental leave program that automatically provides male employees who are new fathers lesser parental leave benefits than are provided to female employees who are new mothers, the Equal Employment Opportunity Commission (EEOC) alleged in a lawsuit it announced today. 

Note here how "new fathers" (males) were treated differently from "new mothers" (females) based on sex.  

This is a 2017 case, BTW.

Quote

According to the suit, in 2013 Estée Lauder adopted a new parental leave program to provide employees with paid leave for purposes of bonding with a new child, as well as flexible return-to-work benefits when the child bonding leave expired. Under its parental leave program, in addition to paid leave already provided to new mothers to recover from childbirth, Estée Lauder also provides eligible new mothers an additional six weeks of paid parental leave for child bonding.  Estée Lauder only offers new fathers whose partners have given birth two weeks of paid leave for child bonding.  The suit also alleges that new mothers are provided with flexible return-to-work benefits upon expiration of child bonding leave that are not similarly provided to new fathers. 

The case arose when a male employee working as a stock person in an Estée Lauder store in Maryland sought parental leave benefits after his child was born.  He requested, and was denied, the six weeks of child-bonding leave that biological mothers automatically receive, and was allowed only two weeks of leave to bond with his newborn child.  Such conduct violates Title VII of the Civil Rights Act of 1964 (Title VII) and the Equal Pay Act of 1963, which prohibit discrimination in pay or benefits based on sex.  The suit seeks relief for the affected employee, and other male employees who were denied equal parental leave benefits because of their sex.
...
EEOC Philadelphia District Office Regional Attorney Debra M. Lawrence added, "Addressing sex-based pay discrimination, including in benefits such as paid leave, is a priority issue for the Commission."

(Emphases added).

All of this fits well within Title VII.  Men were being treated differently from women in terms of parental leave "because of their sex."

In contrast, an employer who fires "gay" employees is not treating men differently from women, since both men and women can be gay.

Now, if an employer fires lesbians, but not heterosexual women or gay men, then I think a Title VII issue arises.  But that's because "sex" is the disparate factor, and because "sex" is enumerated as a protected class in Title VII.

Thanks,

-Smac

[smac97]

12 minutes ago, Bob Crockett said:

On the other hand, I think I have a principled approach to legal issues.  My firm of twenty represents several major religions and schools around the country on constitutional issues.  Recently, I scored a significant victory for a religious school in Ohio challenging decisions made by an accreditation entity.  I am always on the side of religious freedom and First Amendment freedom.

Moreover, I consider myself a conservative.  

Under Marbury v. Madison, the law is as stated by the Supreme Court, and not by Congress if the law has been challenged in the courts. 

And I find that to be problematic in some respects.  That this is the status quo doesn't justify it.

12 minutes ago, Bob Crockett said:

There is no need call somebody as facile, reactionary, giddy, uncaring about the analysis. 

I was critiquing his argument.  But perhaps I personalized my assessment.  I apologize to Daniel.

12 minutes ago, Bob Crockett said:

The Supreme Court has spoken and has reinterpreted textualism.  

I know.  I think that's wrong.

12 minutes ago, Bob Crockett said:

Now, you may not like the decision, but critics like you can't accomplish much except to perhaps galvanize the president of the U.S. to have a different focus in the selection of judicial nominees.  That is the only reason for your criticism, at least from a principled legal perspective. 

Perhaps there is more.

12 minutes ago, Bob Crockett said:

A lot of ink has been spilled against Roe v Wade, and the only effect has been to influence voters and the president. Roe v. Wade remains the law. 

That "only effect" (influencing voters and the holder of the most powerful office in the world) is pretty significant, though.

12 minutes ago, Bob Crockett said:

I also note that while the Republicans have spent time and money on a flag-burning amendment to the constitution, they have done nothing to prevent the continued murder of children in the womb with a constitutional amendment. 

Again, I'd rather not go into partisan politics.

Thanks,

-Smac

[Kenngo1969]

2 hours ago, Bob Crockett said:

... The Electoral College is an affront to personal freedom, but it was established to benefit slave states. 

 

I will defer to your historical acumen on most matters, and to your legal acumen on nearly all matters.  However, even accepting your premise as true, I don't think the Electoral College is simply a relic of a long bygone era that, now, has outlived its usefulness.  Were it not for the Electoral College, assuming that the required number of registered voters exercise that right, every ... single ... presidential ... election would be decided by voters in the same 8-10 states.  The only way anyone could conclude that that would be an acceptable state of affairs would be to conclude that voters in New York or California think pretty much the same way about most things as voters in Utah or Nebraska do.  Somehow, I doubt that.   https://greatgourdini.wordpress.com/2017/02/27/electoral-college-undemocratic/

2 hours ago, Bob Crockett said:

This country was built on the backs of slaves. Time to liberate ourselves from outdated legislation.

Slavery is an abhorrent, reprehensible institution that betrays the values on which the country is founded.  I would have preferred that it have been dealt with constitutionally, and it's easy to fault the Founders for kicking that can down the road, but given the fact that the eventual attempt to deal with it nearly ripped the country asunder, perhaps the Founders don't get the credit they may be due for making the best decision possible for that time and under those circumstances.

In any event, there's more than one way to look at the Three-Fifths Compromise:

 

[pogi]

20 minutes ago, smac97 said:

I don't think they are protected "for the same reasons that a gay man {or a lesbian} is protected."

I suppose I need to review this issue in further detail.  For example, see here:

Note here how "new fathers" (males) were treated differently from "new mothers" (females) based on sex.  

This is a 2017 case, BTW.

(Emphases added).

All of this fits well within Title VII.  Men were being treated differently from women in terms of parental leave "because of their sex."

In contrast, an employer who fires "gay" employees is not treating men differently from women, since both men and women can be gay.

Now, if an employer fires lesbians, but not heterosexual women or gay men, then I think a Title VII issue arises.  But that's because "sex" is the disparate factor, and because "sex" is enumerated as a protected class in Title VII.

Thanks,

-Smac

I think a person would have a pretty solid case if a parental discrimination case were to ever come up in the Supreme Court by using this ruling as legal precedence and following the same arguments of the majority opinion here.  This interpretation of the law may change things a bit for parental protections. 

 

Edited June 16, 2020 by pogi

[Bob Crockett]

43 minutes ago, Kenngo1969 said:

I will defer to your historical acumen on most matters, and to your legal acumen on nearly all matters.  However, even accepting your premise as true, I don't think the Electoral College is simply a relic of a long bygone era that, now, has outlived its usefulness.  Were it not for the Electoral College, assuming that the required number of registered voters exercise that right, every ... single ... presidential ... election would be decided by voters in the same 8-10 states.  The only way anyone could conclude that that would be an acceptable state of affairs would be to conclude that voters in New York or California think pretty much the same way about most things as voters in Utah or Nebraska do.  Somehow, I doubt that.   https://greatgourdini.wordpress.com/2017/02/27/electoral-college-undemocratic/

Don't believe Prager for much, if anything.

"If the [electoral college's] system’s pro-slavery tilt was not overwhelmingly obvious when the Constitution was ratified, it quickly became so. For 32 of the Constitution’s first 36 years, a white slaveholding Virginian occupied the presidency."  Time Magazine, at https://time.com/4558510/electoral-college-history-slavery/.  

"More than two centuries after it was designed to empower southern white voters, the system continues to do just that." The Atlantic, https://www.theatlantic.com/ideas/archive/2019/11/electoral-college-racist-origins/601918/.  

Now, the electoral college is discussed in Madison's paper at Federalist No. 68. https://avalon.law.yale.edu/18th_century/fed68.asp.  He says nothing of the sort.

I think at this point in our history, we as Latter-day Saints need to bear the burden of slavery, in particular because of the Church's historic stance toward blacks.  We need to acknowledge the centuries of oppression and do something about it.  None of us, nor any of our leaders, are actually responsible for any of this, but that doesn't let us off the hook as Christians to remedy a wrong.

Edited June 16, 2020 by Bob Crockett

[Bob Crockett]

52 minutes ago, smac97 said:

And I find that to be problematic in some respects.  That this is the status quo doesn't justify it.

OK.  The only solution, of course, is a constitutional amendment to overturn Marbury v. Madison.

I remember as a senior at BYU taking my health class I had put off for four years. I was in the class with 300  freshman. The instructor went off the rails for three straight days railing against the Social Security system, declaring it unconstitutional. It was really an abuse of his position.  I finally raised my hand and said that under Marbury the Supreme Court gets to declare constitutionality and it had, so time to move on.  His response was highly insulting, a discredit to his position in the Lord's university.  

And so it is here.  

[smac97]

21 minutes ago, Bob Crockett said:

OK.  The only solution, of course, is a constitutional amendment to overturn Marbury v. Madison.

I remember as a senior at BYU taking my health class I had put off for four years. I was in the class with 300  freshman. The instructor went off the rails for three straight days railing against the Social Security system, declaring it unconstitutional. It was really an abuse of his position.  I finally raised my hand and said that under Marbury the Supreme Court gets to declare constitutionality and it had, so time to move on.  His response was highly insulting, a discredit to his position in the Lord's university.  

And so it is here.  

Well, I respect your opinion.  I will take it under advisement.

Thank you,

-Smac