Significant Supreme Court Ruling Issued Today (Re: Lgbtq)

[Kenngo1969]

57 minutes ago, Bob Crockett said:

Don't believe Prager for much, if anything.

Mr. Prager provided the forum.  He did not, in this case, provide the viewpoint.

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"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/.  

With due respect, that's the print equivalent of a soundbite.  It presupposes that slavery is the litmus test for a majority of voters during the period.  That may be so, but mere assertion is not the same thing as proof.  If someone tried that tactic on you in court, I think you would probably object that it assumes facts not in evidence, and I think there is a high likelihood that your objection would be sustained.

Quote

"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/.  

Democrats usually target coastal elites in national elections, confident that they won't be held to account for ignoring the attitudes of a broad swath of the electorate in "flyover country."  That strategy didn't work for Secretary Clinton in the last election.  We'll see if it works for Vice President Biden in this one.

Quote

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.

Yes, I've read The Federalist Papers.  He says nothing of what sort?  That, assuming a sufficient population of registered voters who exercise that right, the same 8-10 states would decide all national elections?  And?  Perhaps it didn't occur to him.  That doesn't mean it isn't a valid point.

Quote

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.

I understand that the revelatory provenance of the ban to which you allude is sketchy, questionable, or non-existent.  I don't understand the reasoning behind it.  As soon as a Prophet, Seer, and Revelator, or the Fifteen Collectively, elucidate those matters, I will be happy to sustain them by acting accordingly.

Edited June 16, 2020 by Kenngo1969

[Daniel2]

2 hours ago, Amulek said:

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]

 

BOOM. 🎤 👋

[Anijen]

1 hour ago, Amulek said:

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.

You are pointing out the obvious and I am acutely aware that not everyone agrees with my assessment about it being textualism.

 

Quote

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

Who?

 

Quote

You know, the editor and chief of Black's Law Dictionary;

Oh him, the editor of Black's Law Dictionary. Which the book has nothing to do with textualism or judicial activism. A book first published in 1891. It does not contain the word 'activism,' or even the word 'textualism' in it. It is simply a reference of terms of choice preferred in legal briefs and court opinions. It basically is a legal dictionary that helps lawyers write in legalese.

 

Quote

the guy who literally wrote the book on textualism along with former Justice Scalia.

Oh, you mean this book written by Garner and Scalia?  Reading Law The Interpretation of Legal Text,  is simply a helpful tool in interpreting the legalese from briefs and court opinions. It is a book to help the non-lawyer or begining law student to better understand the dry subject of legal interpretation and textualism is one of the subjects in the introduction. Oh,  and BTW, in which both Scalia and Garner agree with my perspective on textualism.

Yes, I have both these books and have used them (mostly Black's Dictionary). Here, is a quote taken from the introduction of the Garner/Scalia book:

"A rhetorical ploy that allows the judge to disregard text, as Judge Frank Easterbrook explains: 'shifting the level of generality-emphasizing the anticipated effects of a rule while slighting the rule itself is a method of liberating judges from rules.'"

 

Quote

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]

A tweet by Garner, which says Scalia would have joined Alito in the dissent. That quote, actually emphasises my very point. Justice Alito, in his dissent, blasted the majority for their judicial activism and for their straying from textualism.

The tweeted quote does say that Garner would have sided with Gorsuch in his majority opinion, but whoop-dee-doo. I say again who is Garner? I do not think he represents the same power of an authority as a Supreme Court Justice, especially not like the late great Scalia. Garner probably added Scalia as a co-author to help give his book legitimacy because Scalia has (still is) the go to guy for originalist and was an opponent of judicial activism.

There have been four landmark cases that I can think of right now (there are obviously more than that) that stand out as terrible examples of the consequences that can arise when activist Supreme Court justices substitute personal preferences for constitutional imperatives. Dred Scott, Plessy, Korematsu, and of course Roe v Wade. Read the issues of these cases (the questions before the Court), then read the opinions and how the Court majority wrangled the text of the Constitution to arrive at those opinions.

Bonus Trivia: One thing I learned in Black's Law Dictionary is the word "court" should not be capitalized unless referring to the Supreme Court.

 

[Anijen]

28 minutes ago, Daniel2 said:

BOOM. 🎤 👋

Mike-drop, (although unnecessary), I guess Amulek totally dismantled my post. I should drop out of the conversation just from embarrassment alone.

edited to add: Coincidence? I just received my Certification to practice law before the Supreme Court of North Dakota today, perhaps I ought to tear it up because I am not worthy. Shrug 

Edited June 17, 2020 by Anijen

[Daniel2]

2 hours 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.

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.  

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

You couldn’t be more wrong about me, my views, and even my emotions on multiple points, but I don’t have time this evening to respond in full. I will attempt to offer a proper respond when I have time tomorrow. 

[smac97]

From the Volokh Conspiracy (Jonathan Adler, a Constitutional Law professor at Case Western).  Some key excerpts:

Quote

The decisions in this case highlight a tension with textualism: Do we focus on the discrete meaning of the words, or do we focus on the words as they would have been understood and applied at the time they were adopted. On the one hand, as Justice Gorsuch notes it is virtually impossible to discriminate against someone based upon their gender identity or sexual orientation without discriminating against them on the basis of sex. On the other hand, it is indisputable that the authors of Title VII thought they were prohibiting discrimination against women, not that they were protecting sexual orientation. Indeed, sexual orientation discrimination was enshrined in law throughout the nation when the language was adopted.

Thanks,

-Smac

[carbon dioxide]

7 hours 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. 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. 

I am sure the justices did not consider every situation in their ruling.  I suppose there will be more lawsuits in the future to clarify unique situations that arise.

[Bob Crockett]

2 hours ago, smac97 said:

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

Thank you,

-Smac

Sorry to be such a know-it-all asshat. As a libertarian I don't really hold hard views about anything.

[pogi]

1 hour ago, Anijen said:

I just received my Certification to practice law before the Supreme Court of North Dakota today...

Congrats Anijen, that is awesome!

[Daniel2]

16 hours ago, Anijen said:

Mike-drop, (although unnecessary), I guess Amulek totally dismantled my post. I should drop out of the conversation just from embarrassment alone.

edited to add: Coincidence? I just received my Certification to practice law before the Supreme Court of North Dakota today, perhaps I ought to tear it up because I am not worthy. Shrug 

No, it's wasn't my intent to suggest that Amulek "totally dismantled your post," or imply that you should feel embarrassed or drop out of the conversation or that you know nothing about the law (and congratulations on your certification).

The mike-drop was in reference to Amulek's own point that he/she definitively proved, which was that "not everyone agrees with your assessment about it not being textualism," including legal experts. 

I understand that several people believe that  the Court's ruling was judicial activism and wrong in it's application of legal principles, and some in vehement terms, finding it difficult to even concede that they may be wrong.

The point that I saw Amulek making, and for which I posted the mic drop, is that reasonable and rational minds can and do disagree on whether the court ruled inappropriately. 

[Nofear]

1 hour ago, Daniel2 said:

The point that I saw Amulek making, and for which I posted the mic drop, is that reasonable and rational minds can and do disagree on whether the court ruled inappropriately. 

Curiously, we often believe courts rule appropriately when we agree with the outcome. This is generally true for everybody, left, right, conservative, liberal, etc. On of the things I appreciate about Anijen's post is that, irrespective of whether or not he believes in the consequences of the ruling, he does not believe the appropriate legal venue to achieve that aim was used. Which, as I understand it, is the main point of the dissent.

[Bob Crockett]

1 hour ago, Nofear said:

Curiously, we often believe courts rule appropriately when we agree with the outcome. This is generally true for everybody, left, right, conservative, liberal, etc. On of the things I appreciate about Anijen's post is that, irrespective of whether or not he believes in the consequences of the ruling, he does not believe the appropriate legal venue to achieve that aim was used. Which, as I understand it, is the main point of the dissent.

And so?  If you and he don't like the fact that the "appropriate legal venue to achieve that aim was used," then what? 

Of course, under Marbury v. Madison, the Supreme Court is the end-all be-all to the reading of Congressional statutes. Thus, the appropriate legal venue -- as the law provides -- to construe a Congressional statute is the courts.  There is no other venue.  None.

I note that the Constitution did not provide for a way to determine a proper reading of statute, but nobody has ever challenged Marbury and it has been a foundation of constitutional law ever since. 

Edited June 17, 2020 by Bob Crockett

[Daniel2]

On 6/16/2020 at 3:43 PM, 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.

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.  

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

Smac,

First: your mischaracterization of me borders on offensive.  Calling me "giddy," "facile," and "reactionary" is offensive, let along wrong.  Nothing I have written indicates an emotional response of 'giddy-ness,' and your use of the terms is clearly an Ad Hominem, as is much of the rest of your post, such as accusations that "I couldn't care less" and that I must believe that "the end justifies the means," and that I'm not supportive of governmental separation of powers.  All Ad Hominem arguments, and all simply untrue.

My emphasis that the law is clear is not 'giddy'; it is a firm reminder and response to your repeated attempts to claim the moral superiority and accuracy of your argument.  You can hate on the ruling all you want, but that doesn't change which is now law, and from my perspective, is also moral.

I entirely understand that you give essentially no weight to my legal analysis or those of the majority opinion. 

I don't agree with your or Alito's legal analysis, either--but not because I'm giddy or facile or reactionary.

Rather, I don't because I agree with the numerous rulings, proceedings, and policies over the last 8 years establishing the precedent that Title VII protections protect LGBT individuals "on the basis of sex." 

Those individuals who and the commission which have so affirmed have included:

• The Equal Employment Opportunity Commission (who's entire responsibility it is to enforce Title VII and legally intervene and defend employees facing discrimination, and which has held that Title VII protections apply to members of the LGBT community since 2012),
• Attorney General Eric Holder (formerly of the United States Department of Justice)
• 8 Appellate Judges from Hively
• 10 Appellate Judges from Zarda
• 6 Supreme Court judges (from Bostock). 

In short, what you call "[my] legal analysis" (and summarily dismiss as if I don't know what I'm speaking about) isn't actually mine, at all; rather, my position and agreement aligns with the legal analyses and expertise of ALL of the above individuals and commission.

You keep arguing that you and Alito are right and I (and the legal minds listed above, and any who agree with us) are all wrong.  But as Bob Crockett so succinctly said,

"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."

Daniel

Edited June 17, 2020 by Daniel2

[Anijen]

3 hours ago, Nofear said:

Curiously, we often believe courts rule appropriately when we agree with the outcome. This is generally true for everybody, left, right, conservative, liberal, etc. On of the things I appreciate about Anijen's post is that, irrespective of whether or not he believes in the consequences of the ruling, he does not believe the appropriate legal venue to achieve that aim was used. Which, as I understand it, is the main point of the dissent.

Thank you for the kind words you're exactly right. For what its worth, I do believe the ruling was correct and necessary to help the LGBTQ community. Additionally, I do believe there was judicial activism and zero textualism here. I also believe using the same tactics this case has opened the doors to many more lawsuits, which is good if it helps, not so good if judges start legislating from the bench. Law making is for Congress and not judges.

[Daniel2]

3 hours ago, Nofear said:

Curiously, we often believe courts rule appropriately when we agree with the outcome. This is generally true for everybody, left, right, conservative, liberal, etc.

I certainly agree and think that’s most often true... (I’m fact, I mentioned such confirmation bias earlier in the thread). Though there are times I have agreed with a court’s ruling even when they’ve ruled against some things I personally feel differently about.  The ruling upholding the t-shirt maker’s right to refuse to print gay pride t-shirts is one such case that I agreed with the court’s decision.

Edited June 17, 2020 by Daniel2

[Anijen]

For what it's worth:

Marbury v. Madison comes up frequently during these type of discussions. I'll try to sum it up for better understanding.

1. The Constitution states that a third branch of government would be the Judicial Branch and because of the Constitution being very vague on the judicial branch being set up, it was up to the Legislative Branch (Congress) to do it.
2.  Congress did this by creating the Judiciary Acts of 1789 and 1801
3. The Bill for the 1801 Act was introduced before the presidential election of 1801, but was not passed until after the election.
4. The 1801 presidential election was deadlocked, thus was being determined by the House of representatives.
5. President John Adams signed the Bill just three weeks before the end of his term of office.
6. At this time President John Adams with a few remaining weeks nominates sixteen judgeships and these judgeships were confirmed shortly before Adams term ended.
7. These 16 judges became Adams' "midnight judges."
8. With Thomas Jefferson newly elected and a change of power in both houses from the Federalist Party to the Democratic-Republican Party, Congress immediately repealed the Judiciary Act of 1801, and one month later Congress enacts the Judiciary Act of 1802. This also abolished the sixteen new judgeships nominated by Adams.
9. Thomas Jefferson the new president instructed James Madison (then Secretary of State) not to deliver the commissions of judgeship.

The 1803 Marbury v. Madison decision, the Supreme Court determined that it had the power to decide cases about the constitutionality of congressional and executive actions when deemed they violate the Constitution. Without this case the Judicial Branch basically would be powerless, so weak and would only have a token presence in the government. Thus, judicial review is born. As Bob Crockett appropriately labels Marbury as "the-end-all-be-all to the reading of congressional statutes."

However, John Marshall's (Supreme Court Justice) aim was not to start this dangerous judicial activism precedent, but to give the Judicial Branch an equal footing with the other two branches of government. Additionally, it also helped Marshall, on a personal level, deny the new President, [Thomas Jefferson], his long time political rival, an opportunity to rebuff a Supreme Court controlled by Jefferson's Federalist opponents.

Many politician, lawyers, judges, clergy have differing views if this judicial power is good or not. I am on the side that original intent and the text should be considered as the proper way the Supreme Court Judges should rule. Every case, even modern cases can be ruled in this manner. Yes even Obergefell, Roe, Heller, Plessy, etc., can the correct and morally right outcome be found.

Edited June 17, 2020 by Anijen

[Bob Crockett]

No doubt original intent and text can be cited.

But as a libertarian I hold no allegiance to the Constitution. As a Latter-day Saint I owe some allegiance.  As a lawyer I swore an oath to uphold it. 

There is no compelling argument to resist amending the Constitution as that act is authorized by it. That means by implication there is no reason to uphold original intent in the face of an attempt to amend. 

[smac97]

16 hours ago, Daniel2 said:

Smac,

First: your mischaracterization of me borders on offensive.  Calling me "giddy," "facile," and "reactionary" is offensive, let along wrong.  Nothing I have written indicates an emotional response of 'giddy-ness,' and your use of the terms is clearly an Ad Hominem, as is much of the rest of your post, such as accusations that "I couldn't care less" and that I must believe that "the end justifies the means," and that I'm not supportive of governmental separation of powers.  All Ad Hominem arguments, and all simply untrue.

My emphasis that the law is clear is not 'giddy'; it is a firm reminder and response to your repeated attempts to claim the moral superiority and accuracy of your argument.  You can hate on the ruling all you want, but that doesn't change which is now law, and from my perspective, is also moral.

I entirely understand that you give essentially no weight to my legal analysis or those of the majority opinion. 

I don't agree with your or Alito's legal analysis, either--but not because I'm giddy or facile or reactionary.

Rather, I don't because I agree with the numerous rulings, proceedings, and policies over the last 8 years establishing the precedent that Title VII protections protect LGBT individuals "on the basis of sex." 

Those individuals who and the commission which have so affirmed have included:

• The Equal Employment Opportunity Commission (who's entire responsibility it is to enforce Title VII and legally intervene and defend employees facing discrimination, and which has held that Title VII protections apply to members of the LGBT community since 2012),
• Attorney General Eric Holder (formerly of the United States Department of Justice)
• 8 Appellate Judges from Hively
• 10 Appellate Judges from Zarda
• 6 Supreme Court judges (from Bostock). 

In short, what you call "[my] legal analysis" (and summarily dismiss as if I don't know what I'm speaking about) isn't actually mine, at all; rather, my position and agreement aligns with the legal analyses and expertise of ALL of the above individuals and commission.

You keep arguing that you and Alito are right and I (and the legal minds listed above, and any who agree with us) are all wrong.  But as Bob Crockett so succinctly said,

"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."

Daniel

Daniel,

I was intemperate, harsh and judgmental in my previous remarks to you.  I apologize, and will work to do better.

Thank you,

-Spencer

[Kenngo1969]

22 hours ago, Nofear said:

Curiously, we often believe courts rule appropriately when we agree with the outcome. This is generally true for everybody, left, right, conservative, liberal, etc. On of the things I appreciate about Anijen's post is that, irrespective of whether or not he believes in the consequences of the ruling, he does not believe the appropriate legal venue to achieve that aim was used. Which, as I understand it, is the main point of the dissent.

Yes, perhaps it's true that many times, we believe courts have reached the right decision when we agree with the outcome.  But not always.

[Daniel2]

4 hours ago, smac97 said:

Daniel,

I was intemperate, harsh and judgmental in my previous remarks to you.  I apologize, and will work to do better.

Thank you,

-Spencer

I appreciate that. 

[2BizE]

Suppose a male who works for the LDS church IT department comes out as a transgender Female.  Currently, the employee would probably be fired.  With the new ruling, would this prevent the IT Department from firing her?

[Anijen]

13 minutes ago, 2BizE said:

Suppose a male who works for the LDS church IT department comes out as a transgender Female.  Currently, the employee would probably be fired.  With the new ruling, would this prevent the IT Department from firing her?

The new ruling would not prevent the firing. The ruling clearly grants religious entities immunity from such prosecution.

However, that will not stop the suits from coming because of the manner the opinions were done. Under that type of rationalization they could compare his IT job as his fundamental right to life and happiness via that job being his choice of jobs and his manner of providing for his family etc. The suit could also say although this is a religious entity it is in their public and private business arm and not their religious arm, thus the suit should be heard. Then certiorari could be granted and could very well go the employees way and not the church's way.

[Daniel2]

As I’ve been pondering those posts in this thread that have voiced disagreement over how the court ruled in Bostock, I keep coming back to one thing:  Some have claimed that the ruling created a sixth and perhaps even a seventh protected class(es), namely, sexual orientation and/or gender identity.

In my view, the ruling makes it clear (as found in the portions of the majority ruling that others have quoted previously in this thread) that the court has interpreted sexual orientation and gender identity are both subsets or functions of ‘sex’ itself. 

Reinforcing this concept is that ‘sexual orientation’ would only protected insofar as it relates directly to or as a subset of ‘sex’/’gender” is that in ruling the way it did, the court ensured that other types of orientations (such as age-based or non-human orientations) would NOT (and should NOT, IMO) be covered by Title VII, since they’re not related to “on the basis of sex.”

It also then follows that the court didn’t find a need to elevate sexual orientation or gender identity to an explicit new classification in need of protection, since they’re both subsets of sex/gender.  Title VII, therefore, still (thus far) only identifies 5 protected classes.

Imagine the can of worms the court MAY have opened if they had elevated ‘sexual orientation,’ in and of itself (at least without defining it further), as a protected class… Had they done so, it may have further emboldened pedophiles, necrophiles, and beastial-ists (? not sure what else to call them…), etc. attempting to claim protections for themselves based on their non-traditional sexual orientations.

While there may already be a small but vocal subset of some of those types of individuals claiming protections, the court’s recent ruling failed to give them any additional in-roads or legal precedent to claim protection “on the basis of orientation.”  (I hope, were the courts or legislature ever to elevate “sexual orientation” as a protected class, it would likewise ensure to explicitly specify that ‘sexual orientation’ would only qualify to be protected ‘on the basis of sex,’ as it has so-ruled in Bostock).

One other thing has struck me as I’ve continued to read about Title VII protections:  in eight different cases (see here: https://www.law.com/nationallawjournal/2019/10/07/cases-involving-interracial-relationships-should-spell-scotus-victory-for-lgbt-workers/), the courts found that according to Title VII, it is illegal to discriminate against an employee on the basis of whom they have a relationship with if it relates to one of the protected classifcations; in each of those 8 cases, it was the race of their spouse.  Namely, employers attempted to fire their white employees when they found out their white employee was married to a non-white spouse.  From one legal analysis from 2008 (over 12 years ago):

The court reasoned that Holcomb was a member of a protected class under Title VII because there was evidence that his interracial marriage was the reason for his termination. Thus, “an employer may violate Title VII if it takes action against an employee because of the employee’s association with a person of another race.” The court rejected the reasoning of other courts and held that “where an employee is subjected to an adverse action because an employer disapproves of interracial association, the employee suffers discrimination because of the employee’s own race.” The court noted that all of the district court judges in the Second Circuit who have considered this question, including the district court in this case, have reached the same conclusion and that the Fifth, Sixth, and Eleventh Circuits also agree.

 

Holcomb reminds employers that discrimination claims may be based upon an individual’s association with another person. While the ruling has not been extended to interfaith and same-sex marriages, employers should consider the possibility that the principles enunciated in 

Holcomb will be extended to other types of relationships. This once again reinforces that employers should carefully review termination and other employment decisions to ensure such decisions are based on legitimate business factors and to understand the potential litigation risks that may flow from such decisions.

 

https://www.lexology.com/library/detail.aspx?g=08772e8a-29e7-4750-8dc8-1f1345708e7e

 

So as far back as 2008, before same-sex marriage was even legal, it was recognized that if Title VII requires that employers cannot fire an employee based on the race of their spouse/significant other (which is a violation of “on the basis of race”), it was entirely likely that someday, the courts would recognize that Title VII would likewise require that employers cannot fire an employee based on the sex of their spouse/significant other (which is likewise a violation “on the basis of sex”).

I really don’t see how this isn’t entirely internally, externally, and all-around entirely consistent with the eight cases that found one cannot discriminate based on the protected classification status of one’s spouse, whether due to race, and now, on the basis of their sex/gender.

Edited June 19, 2020 by Daniel2

[provoman]

45 minutes ago, Daniel2 said:

As I’ve been pondering those posts in this thread that have voiced disagreement over how the court ruled in Bostock, I keep coming back to one thing:  Some have claimed that the ruling created a sixth and perhaps even a seventh protected class(es), namely, sexual orientation and/or gender identity.

In my view, the ruling makes it clear (as found in the portions of the majority ruling that others have quoted previously in this thread) that the court has interpreted sexual orientation and gender identity are both subsets or functions of ‘sex’ itself.  ...

 

I agree, the Opinion effectively says you can't make a decision on orientation or identity without first applying gender/orientation norms/expectations. I do not understand how Alito thought the application analogy failed. Thanks for your thought posts. 

[Daniel2]

On ‎6‎/‎19‎/‎2020 at 2:40 PM, provoman said:

I agree, the Opinion effectively says you can't make a decision on orientation or identity without first applying gender/orientation norms/expectations. I do not understand how Alito thought the application analogy failed. Thanks for your thought posts. 

Well said, Provoman. 

I've continued to try to read up on the ruling, as well as many of the legal analyses of it. 

One thing really stood out to me from the dissent written court's most recent Trump appointee, Justice Brett Kavannah, and which hasn't been mentioned in this thread thus far, was this surprising portion:

Quote

Notwithstanding my concern about the Court’s transgression of the Constitution’s separation of powers, it is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans. Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit-battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result.

Edited June 22, 2020 by Daniel2