१५ जून, २०२०

"Today, we must decide whether an employer can fire someone simply for being homosexual or transgender."

"The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbid.

Writes Justice Gorsuch, and Chief Justice Roberts is with the majority as well.

The answer is clear, because we've got 2 of the conservative justices joining the liberals. Nice work!

I'm reading the live blogging at SCOTUSblog.

Here's the PDF of the opinion. 172 pages. SCOTUSblog explains:
Alito has a long dissent with at least 4 appendixes, Appendix D is full of images of government forms....

kavanaugh [dissenting] ends with: "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. Under the Constitution’s separation of powers, however, I believe that it was Congress’s role, not this Court’s, to amend Title VII. I therefore must respectfully dissent from the Court's judgement. "
ADDED: From Alito's dissenting opinion, we see how much everyone pays obeisance to Justice Scalia:
The Court tries to convince readers that it is merely enforcing the terms of the statute, but  that is preposterous. Even as understood today, the concept of discrimination because of “sex” is different from discrimination because of “sexual orientation” or “gender identity.” And in any event, our duty is to interpret statutory terms to “mean what they conveyed to reasonable people at the time they were written.” A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 16 (2012) (emphasis added). If every single living American had been surveyed in 1964, it would have been hard to find any who thought that discrimination because of sex meant discrimination because of sexual orientation––not to mention gender identity, a concept that was essentially unknown at the time.

The Court attempts to pass off its decision as the inevitable product of the textualist school of statutory interpretation championed by our late colleague Justice Scalia, but no one should be fooled. The Court’s opinion is like a pirate ship. 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. See A. Scalia, A Matter of Interpretation 22 (1997). If the Court finds it appropriate to adopt this theory, it should own up to what it is doing.

Many will applaud today’s decision because they agree on policy grounds with the Court’s updating of Title VII. But the question in these cases is not whether discrimination because of sexual orientation or gender identity should be outlawed. The question is whether Congress did that in 1964.
I understand your argument, but right now, I am busy applauding.

ALSO: This does help Trump, of course.

PLUS: Here's something from the Gorsuch majority opinion:
By discriminating against homosexuals, the employer intentionally penalizes men for being attracted to men and women for being attracted to women. By discriminating against transgender persons, the employer unavoidably discriminates against persons with one sex identified at birth and another today. Any way you slice it, the employer intentionally refuses to hire applicants in part because of the affected individuals’ sex, even if it never learns any applicant’s sex....

We agree that homosexuality and transgender status are distinct concepts from sex. But, as we’ve seen, discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second. Nor is there any such thing as a “canon of donut holes,” in which Congress’s failure to speak directly to a specific case that falls within a more general statutory rule creates a tacit exception. Instead, when Congress chooses not to include any exceptions to a broad rule, courts apply the broad rule. And that is exactly how this Court has always approached Title VII. “Sexual harassment” is conceptually distinct from sex discrimination, but it can fall within Title VII’s sweep. Oncale, 523 U. S., at 79–80. Same with “motherhood discrimination.” See Phillips, 400 U. S., at 544. Would the employers have us reverse those cases on the theory that Congress could have spoken to those problems more specifically? Of course not. As enacted, Title VII prohibits all forms of discrimination because of sex, however they may manifest themselves or whatever other labels might attach to them.

१९२ टिप्पण्या:

mikee म्हणाले...

Here is the most important, authentic argument about this subject I've ever seen.
https://www.youtube.com/watch?v=e3h6es6zh1c&t=0m6s

Stay Safe म्हणाले...

The Supreme Court doing what the Supreme Court should be doing. High praise to the two conservative judges who joined with those who believe in individual autonomy and freedom.

Gahrie म्हणाले...

While I disagree with the outcome, I agree that it was a reasonable interpretation of the law and the intentions of the people who wrote it. I just think it is bad law.

Marcus Bressler म्हणाले...

Will this result in employers' tendency to now not hire those categories, as it can be much more problematic to fire a bad employee when they add that to their defense or action?

THEOLDMAN

Douglas B. Levene म्हणाले...

Levene, joining in the opinions of Kavanaugh, J., and Alito, J.

Stay Safe म्हणाले...

Judge Kavenaugh’s dissent is totally classy with it's tone of reconcilliation. But you can tell that he knows he is on the wrong side of history.

Howard म्हणाले...

Hopefully PDJT will issue an executive order overturning the SCOTUS wrongthink. It's a war on our Christmas way of life.

rehajm म्हणाले...

Notwithstanding my concern about the Court’s transgression of the Constitution’s separation of powers...

Relax, judge. It's a living docoument...

Temujin म्हणाले...

Thanks mikee. I needed a good laugh.

Stay Safe म्हणाले...

The hillbillies will howl, wanting us to continue to live in the dreck that they love so much. The rest of us want indoor plumbing.

rehajm म्हणाले...

Notwithstanding my concern about the Court’s transgression of the Constitution’s separation of powers

Pop quiz on that document...

CJinPA म्हणाले...

This does help Trump, of course.

Because one less issue to fire up the Left in an election year? I don't think it is physically or emotionally possible to fire up the Left more than it is.

Sebastian म्हणाले...

"we see how much everyone pays obeisance to Justice Scalia"

Which makes no difference.

"I understand your argument, but right now, I am busy applauding."

Which is all that matters.

Just don't tell us about the rule of law and impartial judges and more such fables. We know the world we live in, but spare us the insults.

rhhardin म्हणाले...

I understand your argument, but right now, I am busy applauding.

Women can't think-through systems. Feelings block it.

Birkel म्हणाले...

Hey, as long as we can fire people for being conservative and force them to provide services they prefer not to provide, it's all jake.

Readering म्हणाले...

This helps Trump because he is known to be anti-gay and people don't want a tolerant president?

Birkel म्हणाले...

Hey, as long as we can fire people for being conservative and force them to provide services they prefer not to provide, it's all jake.

Michael K म्हणाले...

I just hope this does not require the military to accept transgenders who are on constant medical care. Cross dressers off duty are no problem.

Jim Gust म्हणाले...

Once again, the Supreme Court goes where Congress dares not to go. Even though this is the job of Congress.

Perhaps it's time to stop pretending we are governed by laws and not men.

Readering म्हणाले...

This will help Trump because he will get credit for appointing Gorsuch?

Sebastian म्हणाले...

"Today, we must decide whether an employer can fire someone simply for being homosexual or transgender."

Of course, this framing itself is a lie: first they must decide whether it is their role to decide.

But such lies get applause.

narciso म्हणाले...

the Court is useless to acknowlege sane behavior, kavanaugh's splunge statement wasn't surprising, but dissapointing none the less,

Ken B म्हणाले...

This decision relies on the reality of biological sex. It’s crazy to have to point that out, but I think we do need to.

cacimbo म्हणाले...

Transgender should not be lumped in with gay.Completely different issue.

Dave Begley म्हणाले...

Trump appointed Gorsuch so it's all good.

hombre म्हणाले...

Althouse: “I understand your argument, but right now, I am busy applauding.”

Are you applauding because the Court has, once again, bent the law to favor a group of people who were not intended to be favored at the time of its passage,

Or, are you applauding because an overreaching federal court has, once again, usurped the authority of another branch of government and obviated the need for the Congress to go through the “tedious” process of amending the law?

This judicial authoritarianism helps to explain why the Congress has been reduced to the role of posturing idiots. Yea!!!

NotWhoIUsedtoBe म्हणाले...

Congress's job, not the court, but the outcome doesn't bother me. Good for them.

I am starting to think that viewpoint discrimination by employers is going to kill free speech, though. Some actions by the courts may be necessary.

Mike Sylwester म्हणाले...

everyone pays obeisance to Justice Scalia

Horrors!

Dear corrupt left, go F yourselves म्हणाले...

good!

meanwhile..



Derek Chauvin was a racist cop, a registered Democrat, working for a Democrat Police Chief, voted into office by Democrat voters, in a Democrat controlled city, in a Democrat controlled state. Protected by a Democrat controlled union.

He had 18 complaints against him and was let off multiple times by Democrat prosecutor, now Democrat Senator and failed Democrat presidential candidate Amy Klobuchar.

But somehow it's all Trump's fault??????"

Mike (MJB Wolf) म्हणाले...

Kavanaugh is right. Our cowardly Congresscritters should have addressed this, but Democrats prevented that by larding you bills with the right to play dress up at work. This isn’t really a victory for LGBTQ, so much as for G and L. Nobody is sure what equal fights look like for BTQ because beyond using the “right” restroom nobody needs to accommodate TBQs. How? This reporting is horrible. It is a victory for gay employees worried about being fired for being gay. That’s a small minority. Every large and most small business employers have behaved in accordance with this already, and CA has had this law for a long time. HR was up to speed long before Congress if the USSC.

Browndog म्हणाले...

Maybe now more people will view the VRA with the skepticism it deserves instead of swallowing whole the liberal narrative.

It was bad law then, it's bad law now. I applaud Rand Paul for having the guts to say so.

This ruling will be so legally perverted you won't remember the grounds for the original case. Same as it ever was.

Mike (MJB Wolf) म्हणाले...

“Trump is anti-gay” is still tossed off by progs? Where’s the evidence?

rcocean म्हणाले...

Of course, all they needed was Roberts and we knew he would join the liberals. Just as he's done on one important decision after another. It should be noted that one R president after another (starting with Bush I) has claimed they will nominate "judges who won't be activists but originalists - just like Scalia" and then give us Souter (a total leftist), Roberts (a fake con), and now Goresuch the supposed "New Scalia". I wondered why fake Cons like Jonah Goldberg and David French were so happy that "Conservative" Goresuch got nominated. Well, now we know.

As Alioto states, the question isn't "Should it be Gays have Civil Rights" the Question is "Who should do it?" The correct answer is Congress. Instead Gorescuh as shown himself a social liberal and activists will to use judicial power to enforce their whims.

I'll come back later and see if anyone has written an intelligent comment.

Owen म्हणाले...

So “sex” now means “sexual orientation.” How long before necrophilia and pediphilia and bestiality are protected classes? Why would anyone expect Congress to grow a pair* and settle such matters, when the Supremes are its shadow legislative committee enacting “what the words really mean”?

*Apologies for using such a sexist metaphor. It’s as close to virility as Congress is likely ever to get.

rcocean म्हणाले...

Of course, if we actually had a Conservative media or pundits, they'be be beating the drum for civil rights due to Political Orientation and extending protection to conservatives to keep them from being fired and de-platformed for expressing Conservative opinions. But of course, we have almost no conservative political pundits or newspapers, just lackeys of Big Business and/or the Controlled opposition.

Mike (MJB Wolf) म्हणाले...

“Congress or the USSC” I meant.

Browndog म्हणाले...

Helps Trump with who?

Liberals?

You've got to be kidding me.

hombre म्हणाले...

Stay safe: “... but you can tell that he knows he is on the wrong side of history.”

Yay the “history” cliche. Screw the Constitution, the plain meaning of language, legislative intent and the need for a responsible Congress.

Lefty in a nutshell. (No pun intended.)

jeremyabrams म्हणाले...

Let me get this straight. A law professor is applauding a S.Ct. decision that substitutes the will of the court for the will of the people as expressed in legislation, simply because she likes the result.

mccullough म्हणाले...

This will also redound to the benefit of heterosexual men and women.

Many large companies have gone out of their way to help transgenders and gays. Now any help to them is a form of discrimination.

So big companies will be sued from both sides.

This is a huge victory for an employment lawyers (both plaintiff and defense).

If your a small employer, keep the number of employees under 15.

rehajm म्हणाले...

everyone pays obeisance to Justice Scalia

I'm not a lawyer but isn't stare decisis some kind of law thingy?

Dust Bunny Queen म्हणाले...

An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbid.

What if those traits or actions that e necessary for the job are those that ARE integral to the sex/gender of the employee. A Hooter's waitress for example. Customers expect a woman with certain attributes. Gaining those attributes (hooters) by artificial means as a male XY person....does not an XX person make. Customers are paying for one thing and substituting another is not an acceptable business practice.....whether it be Hooters or Prime Rib.

Roger Sweeny म्हणाले...

I'm not sure it helps Trump. A lot of people who oppose the decision may just feel that voting for Trump won't change this or future decisions. After all, two of the Justices who joined were "conservatives" appointed by "conservative" presidents. The opponents will then decide who to vote for based on other things.

iowan2 म्हणाले...

The question is not can you fire a person because they are homosexual. The question is, can a person that gets fired, sue the employer, claiming its because he is a homosexual. This is old HR doctrine. I can fire a person for no reason. I cannot fire a person for the wrong reason.
I cant fire an active alcoholic, its a disability. I can fire a active alcoholic because he is late for work all the time.

Patrick Henry was right! म्हणाले...

Of course, you now realize that this works both ways. No discrimination against straight people now.
So, no more Affirmative Action for LGBT folks.

hombre म्हणाले...

There are no laws, only tribes.

RichAndSceptical म्हणाले...

So I hired Tom, who is a 250 lb white male who dressed in a coat and tie. Tim, now Sally, now comes to work in a dress.

mccullough म्हणाले...

DBQ,

Bona Fide business necessity protects discrimination against sex. So strip clubs and the porn industry are safe from these lawsuits.

TreeJoe म्हणाले...

Gotta give props to Kavanaugh on that segment of his dissent. Classy, supporting the outcome, but decrying the courts role in it and putting his vote where his opinion lies: Congress do your damn job it's not the courts role to create or "update" laws.

JAORE म्हणाले...

The Imperial President has too much power (as long as he's a Republican).

The Courts can ignore plain language (so long as Althouse applauds).

Based on the above, the Congress proves once again they are too cowardly to be considered an equal branch of government.

JAORE म्हणाले...

Pet peeve:
"The right side of history".

Just like all the articles that say " what Trump meant). Bunch of f'in' clairvoyants and mind readers on the left.

readering म्हणाले...

Remember, many employers operate in states where this was already the law under state of local law.

Birches म्हणाले...

I don't see how it helps Trump. The justices do what they want.

Can you fire a transgender woman because she scares the customers and they complain? Is SCOTUS asking for a whole new citizenry?

Yancey Ward म्हणाले...

Now someone needs to sue over getting fired for calling the cops on someone who was threatening her dog. Now someone needs to sue over getting fired for venturing the opinion that there are natural differences between the two sexes. Now someone needs to sue over getting fired for venturing the opinion that George Floyd's death wasn't murder. Etc. I will welcome all the liberal justices to also join Gorsuch and Roberts in those decisions, too, along with Alito, Kavanaugh, and Thomas.

This is another case where I like the effect of the outcome, but not the way it was reached. Kavanaugh is correct- this is supposed to be the job of Congress, not the court. The majority opinion is horseshit through and through. If you had tried to push through a civil rights bill covering homosexuals and transgenders at the same time Title VII was passed, that bill would have failed, and everyone on the court surely knows this.

Here is the problem- you can link any personal behavior or trait to sex and gender, if you stretch the definitions of sex and gender enough to cover those behaviors and traits. Let's say you don't like to bathe at all, and your employer fires you because no one wants to work in the same building as you do. You can now sue and claim that you have a special gender that simply doesn't bathe. Voila, you can't be fired because of Title VII. What is Gorsuch going to do in such a case? Can he then draw the line that Congress didn't intend its "broad rule" to cover this particular "donut hole"?

You think my example is ridiculous, don't you? However, I will point out that "transgender" doesn't even now only cover male-to-female and female-to-male- aren't we all told now that there are dozens of genders, only limited by our imaginations. Gosuch etal. may want to believe Title VII has a broad rule that has no donut holes, but even he would start to find donut holes if he thought his ruling was being "abused" by stretching his definition of "sex" in Title VII- and that immediately undercuts his reasoning right here in this decision.

Lyssa म्हणाले...

I’ve got my concerns with respect to privacy and safety there -the majority opinion (to the extent quoted here) would seem to suggest there is no right to any such division between the sexes, bathrooms, changing facilities, sleeping arrangements, etc.

That said, I do wish Gorsuch had been on the court for the gay marriage opinion and applied this reasoning. It is leaps and bounds better then Kennedy’s nonsense.

narciso म्हणाले...

hah, you're funny patrick henry, that will be derigure,

wendybar म्हणाले...

jeremyabrams said...
Let me get this straight. A law professor is applauding a S.Ct. decision that substitutes the will of the court for the will of the people as expressed in legislation, simply because she likes the result.
6/15/20, 10:14 AM

Scary, isn't it?? No wonder America is in the shape we are in.

alanc709 म्हणाले...

I don't think we can call Roberts a conservative any longer.

BlackjohnX म्हणाले...

Narciso - what is a splunge statement? - you really need to take the extra 10 seconds to review your comments and determine whether a normal English speaker would understand what you are trying to say. You write in some form of mental shorthand which to me, perhaps the only one, who find it as vexing as trying to wade through a bog. I probably should just ignore your postings, however, it is obvious you are intelligent and well read and hove something useful in terms of the site's dialog.

Unclebiffy म्हणाले...

Anne, shame on you. Perhaps if we actually applied the rules as written Congress would have done the right thing long ago. Instead we have constitutional law professors applauding the subversion of the rule of law. What happens when both sides decide the rules no longer apply to them? I fear that we are soon going to find out.

madAsHell म्हणाले...

By discriminating against transgender persons, the employer unavoidably discriminates against persons with one sex identified at birth and another today. Any way you slice it.......

Hilarious!!

Ironclad म्हणाले...

I think one of the casualties of a judicial fiat rather than a congressional law is that women’s sports are toast. Now “transgender” males can play sports and you can’t discriminate - even if they haven’t taken one hormone treatment. So identity politics tosses one group aside.

I think that a narrow law forbidding discrimination in employment would have been better. But when LBGTXYZ expanded to cover every anomaly, ( and canny males decided to become women to win trophies) the barn doors just opened.

And I think the decision was in the right direction, but I fear it’s going to have repercussions in areas where it was never intended.

Michael K म्हणाले...

eadering said...
This will help Trump because he will get credit for appointing Gorsuch?


With your leftist allies? Bad joke.

The Vault Dweller म्हणाले...

This is really dangerous. If the court becomes a policy maker, that independently weighs the policy merits of cases before making their decision, justices are going to start more and more thinking like politicians. Justices don't and aren't supposed to engage in quid pro quo deals with their fellow justices, but politicians do all the time. Justices know what is on the docket and they know which cases are likely to come up in the future. What's to stop them from engaging in quid pro quo, where even if it is just a tacit deal, one justice or group of justices convinces another justice to join with them in this decision with the expectation they will support him or her in another decision down the road.

On a side note, including transgender people in the broad category of those now protected by sex is going to leave a big hole open. Presumably the discrimination occurs when the employer discovers the transgender person (let's assume a male, so a trans-woman) dressing, altering their voice, and taking hormone replacement therapy to appear more like a woman. These are actions.

Kay म्हणाले...

Owen said...
So “sex” now means “sexual orientation.” How long before necrophilia and pediphilia and bestiality are protected classes?
6/15/20, 10:11 AM


Well people have been making the case for gay rights for a very long time. If you want people to also accept necrophilia and pedophilia then you need to present that argument. And be prepared, people might reject your argument.

Temujin म्हणाले...

Yes, as has been pointed out, it is still possible to fire someone because of conservative thinking or speech. Or even past conservative thinking or speech. Just the notion of you having impure thoughts can get you removed from a university, a corporate board, sales position, political office, you name it.

Sorry if I don't celebrate the Supreme Court and it's venture into transgender or homosexual job discrimination. While I get the importance of this and the importance of backing it up, believe it or not there ARE conservative trans and homosexual people. And they can still get fired for their impure conservative thoughts. And it's not just that they can be let go, it's that it is encouraged. The mob doesn't just request. They demand.

So while there is applause going on, I wonder if we'll hear from the usual suspects when a conservative homosexual (say...Richard Grenell) is removed from a position, or prevented from having a position because of his impure thoughts? I doubt it.

Known Unknown म्हणाले...

I tend to agree with the outcome, however, some enterprising people have brought up scenarios that make this decision tricky. One of them is:

Strip club hires biologically female dancers to perform topless. One of the dancers decides to transition from F to M. Does the club have a right to fire the now-M dancer?

Fernandinande म्हणाले...

By discriminating against transgender persons, the employer unavoidably discriminates against persons with one sex identified at birth and another today.

I supposed that's one of those falsehoods which are supposed to good for the mental health of crazy people.

Now do the Navajo Preference in Employment Act, for people who were not identified as Navajo when they were born, but identified themselves as Navajo today. I dare you.

Unknown म्हणाले...

> The answer is clear, because we've got 2 of the conservative justices joining the liberals. Nice work!

Truth by consensus.

They prefer the bunny to the wolf - they feel the minorities pain.

n.n म्हणाले...

Transgender (i.e. deviant physical and/or mental attributes) spectrum: homo, bi, neo, inter.

Kevin म्हणाले...

The only group you can legally discriminate against are Trump supporters.

Even paroled mass murders receive more protection.

n.n म्हणाले...

Perhaps it's time to stop pretending we are governed by laws and not men.

An alt-religion, not limited to ethics (i.e. relativistic), and laws (e.g. politically congruent), which has been fatally distorted through the establishment of the Progressive Church and Pro-Choice, selective, opportunistic religion.

The Cracker Emcee Refulgent म्हणाले...

It’s a conservative idea to extend this protection to homosexuals. It’s sheer lunacy to extend it to the mentally ill. At some point, putting apples and oranges in the same basket is going to backfire. From what I’ve seen, this just encourages employers to cull the potentially litigious from the considered applicants.

On the plus side, we’ve picked up a Gay commenter. The old Progs are a dim lot and we could use some new blood.

Earnest Prole म्हणाले...

Like Justice Kennedy, Gorsuch appears to have a strong libertarian side to his conservatism, probably because, like Kennedy, he’s a Westerner.

Kevin म्हणाले...

The question is whether Congress did that in 1964.

Once again the court does what Congress is unwilling to do. And in doing so, makes Congress all the more dysfunctional.

We are increasingly unwilling to separate the art from the artist, yet clap merrily when the ruling arrives untethered from the statute.

jimbino म्हणाले...

Gorsuch's clerk who wrote this opinion erred in not observing American rules of English grammar: apart from using the British spelling "judgement," he/she fails in use of the past tense of "forbid," which is "forbade."

=> Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbid.

cf. Shakepeare in Rape of Lucrece:
=> My bloody judge forbade my tongue to speak;

Too bad choice of clerks is limited to Harvard and Yale law school grads.

Wince म्हणाले...

Most people applauding this decision after reading a headline, like Althouse's, using words like "simply" or "merely" because of sexual orientation, think that means the plaintiffs were discriminated only or primarily because of that status.

While that may even be the righteous fact pattern in these particular cases, as the Court points out, that is not a requirement under Title VII.

Finally, the employers suggest that because the policies at issue have the same adverse consequences for men and women, a stricter causation test should apply. That argument unavoidably comes down to a suggestion that sex must be the sole or primary cause of an adverse employment action under Title VII, a suggestion at odds with the statute.

Unfortunately, it's the "easy" cases that can make bad law. The effect of Court's expansion of the protected class definition here in combination with the broad but-for causation standard is likely to be much more far reaching prospectively when it's applied to the swath of cases that are likely to arise in the wake of this precedent, in ways that Congress never contemplated when it specifically enumerated the protected classes and the standard of causation to be applied thereto.

Gorsuch for the majority:

But this submission rests on a mistaken understanding of what kind of cause the law is looking for in a Title VII case. In conversation, a speaker is likely to focus on what seems most relevant or informative to the listener. So an employee who has just been fired is likely to identify the primary or most direct cause rather than list literally every but ­for cause. To do otherwise would be tiring at best. But these conversational conventions do not control Title VII’s legal analysis, which asks simply whether sex was a but­-for cause. In Phillips, for example, a woman who was not hired under the employer’s policy might have told her friends that her application was rejected because she was a mother, or because she had young children. Given that many women could be hired under the policy, it’s unlikely she would say she was not hired because she was a woman. But the Court did not hesitate to recognize that the employer in Phillips discriminated against the plaintiff because of her sex.

Sex wasn’t the only factor, or maybe even the main factor, but it was one but­-for cause — and that was enough. You can call the statute’s but­-for causation test what you will — expansive, legalistic, the dissents even dismiss it as wooden or literal. But it is the law.

Yancey Ward म्हणाले...

This again, goes back to the question, "What is the limiting principle?" Where would Gorsuch draw the line to the question, "What is meant by sex for purposes of Title VII?" I am sure Gorsuch would have an answer to that question, don't you?

MCfromJG म्हणाले...

"This does help Trump, of course."

I'm not sure I understand your reasoning. Is the idea that Republicans are more motivated to vote when a SCOTUS decision goes against them? The opinion was written by one of Trump's appointees, all this does is teach religious conservatives that they have no real reason to care about SCOTUS anymore, they're gonna lose anyway.

Rabel म्हणाले...

"I will be open to the considered views of my colleagues on the bench, and I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability, and I will remember that it’s my job to call balls and strikes, and not to pitch or bat."

- John Roberts

WK म्हणाले...

Nor is there any such thing as a “canon of donut holes,”.

But a donut hole cannon would be pretty cool.

Mr Wibble म्हणाले...

So “sex” now means “sexual orientation.” How long before necrophilia and pediphilia and bestiality are protected classes?
6/15/20, 10:11 AM


Pedophiles have been pushing under the radar for a while. I've seen attempts to try and normalize the term "minor-attracted-persons", and arguments that age of consent laws are harmful to gays because older men taking an underaged lover are somehow a part of gay culture.

Give it about five years and it'll be a lot more open.

Bay Area Guy म्हणाले...

Not a fan of discriminating against gays or transgenders.

Not a fan of Scotus substituting its political will for the political will of the people, by pretending that the law does something it doesn't.

Oh well, that's the modern legal left.

MadisonMan म्हणाले...

I also find myself in agreement with Kavanagh. Why, for example, in 2009 did the Democrats not put this kind of protection into law? They controlled the House, Senate and White House.

sunsong म्हणाले...

Nice to have some good news! Thanks to SCOTUS

readering म्हणाले...

For more fun with statutory interpretation try another case released this morning, the delightfully named Cowpasture River Preservation Association. Are Federal lands lands within the National Park System? Are trails lands?

And left unsaid, was it right for Pres. Hoover to rename a national forest after a noted slaveholder?

narciso म्हणाले...

splunge is a made up word, from a python sketch, an attempt to artificially reach a middle ground, the Court is derelict on second amendment and sanctuary laws as well,

Earnest Prole म्हणाले...

Despite the butt-sex I suspect American business will somehow survive.

n.n म्हणाले...

The laws refers to sex, not gender discrimination. Pass a new law, stop sharing/shifting responsibility. Or was this upheld under the Twilight Amendment (e.g. reproductive rites, trans/homo marriage)?

traditionalguy म्हणाले...

At last maybe we can move on from punishing sexual immorality to some other issue. How about punishing Treason.

n.n म्हणाले...

If you want people to also accept necrophilia and pedophilia then you need to present that argument

Exactly. The established Church is Progressive, and their religion is Pro-Choice, selective, opportunistic, bigoted.

n.n म्हणाले...

re: political congruence ("=")

Some, select, Black Lives Matter. Here's to the Twilight Amendment, the Progressive Church, and its weird religion.

Drago म्हणाले...

Adios to women in sports.

Soon it will be Men's competitions and Other Men's competitions.

Megan Rapinoe wont stand a chance.

Oh well. Lefty omelettes and eggshells and that sort of thing.

Big Mike म्हणाले...

I see this ruling opening up a huge can of endless litigation. What happens if female employees resign because a transgender makes them uncomfortable following them into the ladies’ room? And, a real case that thankfully happened to a different project manager, what do you do with a gay man who comes out of the closet (though he fooled hardly anyone) and goes from being a solid member of the development team to getting in the face of every straight male, destroying team cohesion and putting the project success in jeopardy? Terminating an employee for cause is a tedious process at best. When the problem employee thinks “You can’t fire me — I’m gay” (or transgendered or whatever) then it’ll be that much harder to straighten him out. (Perhaps I have been fortunate, but lesbian employees have never caused me a bit of trouble.)

Drago म्हणाले...

readering: "And left unsaid, was it right for Pres. Hoover to rename a national forest after a noted slaveholder?"

Hey, when are you guys going to get around to removing Robert Byrd's statues and name off publuc buildings and works.

He was an actual KKK-er you know.

Or did you guys plan on impeaching Trump for Byrd's KKK membership?

MeatPopscicle1234 म्हणाले...
ही टिप्पणी लेखकाना हलविली आहे.
mikee म्हणाले...

I've worked with tranny strippers, and I've worked with closeted gays. I've worked with Roman Catholic priests openly communist engineers. In no case was how they liked to use their genitals, or what God or revolution they believed in, of significance to their ability to do their jobs. I'd rather work with a competent flamboyant lesbian than an incompetent practicing Episcopalian.

Owen म्हणाले...

Kay @ 10:47: “... Well people have been making the case for gay rights for a very long time. If you want people to also accept necrophilia and pedophilia then you need to present that argument. And be prepared, people might reject your argument.”

Personally I don’t plan to make that argument but I imagine some will, either for those practices or others —anything at all, really, because the Justices have dynamited the footings of a word that we all thought had a stable meaning. But my question to you is, to whom should the argument be made? Will there even be a need to make it? The real danger with this ruling is that no employer can navigate safely across the bog of uncertainty it creates. If you were counseling an employer where the “bright line” is around “discrimination on the basis of sex,” could you do it? What could you point to and say, “That, over there, is still safe for you to disapprove or exclude”?

We are trying to set survey stakes in a quagmire.

JAORE म्हणाले...

"I will be open to the considered views of my colleagues on the bench, and I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability, and I will remember that it’s my job to call balls and strikes, and not to pitch or bat."

- John Roberts

So, no clue as to whether he's a pitcher or a catcher....

I keed,I keed.

I Callahan म्हणाले...

Great. Now do political views.

n.n म्हणाले...

Why, for example, in 2009 did the Democrats not put this kind of protection into law?

Political congruence ("=") is a sociopolitical construct that is exploited for leverage when profitable.

I Callahan म्हणाले...

This helps Trump because he is known to be anti-gay and people don't want a tolerant president?

Trump is not anti-gay in any way. You are a bald-faced liar.

JAORE म्हणाले...

"Well people have been making the case for gay rights for a very long time. If you want people to also accept necrophilia and pedophilia then you need to present that argument. And be prepared, people might reject your argument."

If I recall correctly every single time the public voted on gay marriage it was voted down*. The courts, first some states then the SC said it is a right. So your "reject your argument" doesn't fly.

* Might have a different outcome today, but that is irrelevant.

steve uhr म्हणाले...

not sure why this helps trump. Most people will be ok with the result and feel less connected with the republicans who disagree with the decision.

I Callahan म्हणाले...

And be prepared, people might reject your argument.

They may. Then again, originally, the gay marriage argument was rejected as well. That all changed.

The point is that it's a slippery slope. Why stop at LGBTQ? If the laws are written a certain way, they should be interpreted that way, and if not, then Congress needs to change it.

I Callahan म्हणाले...

strong libertarian side

Libertarian? What's libertarian about government forcing employers to hire certain people?

Rabel म्हणाले...

"Like Justice Kennedy, Gorsuch appears to have a strong libertarian side to his conservatism, probably because, like Kennedy, he’s a Westerner."

Further extending the reach of federal employment law is authoritarian, not libertarian.

Mike (MJB Wolf) म्हणाले...

Despite my agreement with what Gorsuch wrote I fear his text will be twisted to mean an employer must accommodate an employee’s “sex” in obtrusive ways. If Jebs Pizza hires a guy who chooses to be issued the male uniform shirt and agrees to wear proper shoes and slacks, and then one day he shows up demands to be called she and change uniforms, how accommodating must Jeb be? Can the employee switch back and forth at will demanding accommodations? Must he/she be allowed to switch restroom preference at will? Do Jeb’s female customers have to accommodate the new guy too, on his feminine days? This is almost the perfect issue in that everyone can find something to Krause and to fear about its Implementation. Only thing I’m certain if is the chaos will be intentional because progs love chaos and disorder and destruction. Ooh papa Mao Mao.

JAORE म्हणाले...

Too bad choice of clerks is limited to Harvard and Yale law school grads.

Do you mean Harvard and Slave Trader U?

Mike (MJB Wolf) म्हणाले...

And bye bye Title IX!! We hardly knew ye!!

wendybar म्हणाले...

So when Transgenders take over Womens sports, and the few fans they have tune out...you know who to blame, because it IS coming.

Static Ping म्हणाले...

Stay Safe: "...knows he is on the wrong side of history."

I am very much of the opinion that anyone who uses the term "wrong side of history" has ceased to think in any meaningful way and can be safely ignored for any sort of wisdom or insight. If you pay attention, you will note that certain persons and causes have this habit of going from one side to the other and back again. Furthermore, pretty much everyone ever has declared themselves to be proper and good (i.e. "the right side of history") and the large majority proved to be quite mistaken. It's a phrase for fools and charlatans.

Francisco D म्हणाले...

Dust Bunny Queen said... What if those traits or actions that are necessary for the job are those that ARE integral to the sex/gender of the employee. A Hooter's waitress for example.

If you drink enough, tits are tits. Does it matter if they are on a waitress with a five o'clock shadow?

Apparently not to the SCOTUS.

Rick म्हणाले...

but right now, I am busy applauding....the dilution of the rule of law.

What could go wrong?

Matt म्हणाले...

Embarrassing amount of mental gymnastics needed to come up with this decision. To suggest that a person's physical anatomy, their 'sex', is the same as the behavior they undertake with their physical anatomy...I mean, c'mon, man. The legislation says you can't discriminate against a man for being a man, nor against a woman for being a woman. It doesnt say anything about the behavior that man or woman engages in while being man or a woman.

This is clown world shit. But there was never any doubt about what the outcome would be. No one is gonna disappoint the 'mos during their special month.

Static Ping म्हणाले...

I'm sure that defining laws in unusual ways such that no one knows what the laws mean is a great way to inspire confidence in the courts in specific and the government in general. Be careful while you are remodeling the place that you do not knock out all your supports. You don't want to be like Gollum, who was so pleased at winning his "Precious" that he barely had time to register his impeding fiery doom.

CStanley म्हणाले...

What if those traits or actions that e necessary for the job are those that ARE integral to the sex/gender of the employee. A Hooter's waitress for example. Customers expect a woman with certain attributes. Gaining those attributes (hooters) by artificial means as a male XY person....does not an XX person make

While I agree with the general point here, I’m not sure that Hooter’s waitresses’ attributes being necessarily naturally acquired is the best example to use in making the point. ;-)

rehajm म्हणाले...

I understand your argument, but right now, I am busy applauding.

...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


Given the second statement the first seems quite shortsighted. I suppose we can just dismiss the second as inaccurate, or falsely assume the desires of progressives will never be challenged by decisions of a future SCOTUS.

JackWayne म्हणाले...

You applaud. Shame on you! Kavanaugh has it exactly right. It’s Congress’s job to fix it. All the Constitution is to you Althouse is a game.

Mark म्हणाले...

An exercise in raw judicial power.

GingerBeer म्हणाले...
ही टिप्पणी लेखकाना हलविली आहे.
GingerBeer म्हणाले...

It seems to me that "I understand your argument, but right now, I am busy applauding" is shorthand for "Alito has the better argument, but I much prefer this outcome." So, when the giddiness wears off later today, please add the Cruel Neutrality Bullshit" tag. Because that's what it is Ann.

GingerBeer म्हणाले...
ही टिप्पणी लेखकाना हलविली आहे.
Tom T. म्हणाले...

Obviously it helps Trump: "We have to keep pushing to name even more principled conservatives to the Supreme Court. Even the good ones, like Justice Gorsuch, they'll slip once in a while, and that's all it takes, because the ones on the left always stick together and vote their politics. Joe Biden's not going to protect your First and Second Amendment rights like I will."

rehajm म्हणाले...

OK, I want to know if this ruling means that the IAAF Semenya rule is now illegal in US jurisdictions?

Ralph L म्हणाले...

The Catholic church wasn't going to fire all its gay priests anyway.

rhhardin म्हणाले...

Congress should start declaring court actions unconstitutional.

damikesc म्हणाले...

One plus...womens sports are effectively dead.

Good riddance.

Jim at म्हणाले...

But you can tell that he knows he is on the wrong side of history.

Do you realize just how arrogant you have to be to think you get to decide what is the right and wrong side of history?

Michael K म्हणाले...

I'd rather work with a competent flamboyant lesbian than an incompetent practicing Episcopalian.<

Embrace the power of and.

stephen cooper म्हणाले...

Three quick takeasays.

First, while Gorsuch was in the top one percent of federal circuit court of appeals judges, the deeper issues that the Supreme Court faces have shown his limitiations. Even if you agree with his majority decision, you have to wonder why he wrote it so badly. In particular, he did a worse job than the average talented law student would do to defend himself against the argument that he was legislating .... but, read on, maybe he did that on purpose (read on to the third point, the second point is irrelevant to what I just said....)

Second, if you read the Alito dissent, and ignore the unnecessary praise of Scalia (who at his best was good, but was generally just a really talented law professor LARPing as a judge) .... and if you read it carefully, and if you notice the touches therein which show that Clarence Thomas helped him out - you may realize, as I do, that the only two first class lawyers on the Supreme Court in my lifetime have been Alito and Thomas.

Third, Kagan (the only intelligent, non-senile one of the four liberals) may have made a mistake by not filing a concurrence. Every argument Gorsuch makes declaring that discrimination against homosexuals is wrong because if they had been born in the other sex you would have no problem with their attraction to the sex they are attracted to is an equally strong argument that fetuses are human beings, being the only difference between a fetus and a child who has been born is the trivial detail of having exited the womb, always in one direction - away from where you were. Kagan and the three old phonies made a tactical mistake in signing on to that argument. It is likely that in 40 years or so, the world will have changed, the killing of human beings simply because they have not exited the womb will be recognized as a crime not protected by the Constitution, and the Supreme Court will be arguing over more interesting and relevant questions, like whether some stupid doctor's belief that fetuses are subhuman is a defense to a murder charge. The senile ones - Breyer and Ginsburg - and the foolish untalented one, Sotomayor - could not have seen that, because they lack the wisdom. It surprises me that Kagan did not see that.

Readering म्हणाले...

Remember "Congress can always amend the statute" works as an argument in both directions.

Things get interesting when it's, the government can change its interpretation of the statute. Happened here under Trump with different agencies filing dueling briefs.



The Godfather म्हणाले...

I'm with Kavanaugh on this one: This was NOT a decision that the Court should be making, even though the decision is one that I would welcome had it been made by Congress.

When I was in law school I learned that the first question to answer is not, What's the right decision, but, Who should make the decision? I suspect that after President Trump appoints another two or three Justices (and a bunch more Circuit Court Judges) liberals (and Althouse) will begin to see the wisdom of that teaching.

Lindsey म्हणाले...

I eagerly await the court case where an individual sues because they are fired due to being a sex offender.

iowan2 म्हणाले...

Kay said
Well people have been making the case for gay rights for a very long time. If you want people to also accept necrophilia and pedophilia then you need to present that argument. And be prepared, people might reject your argument.

You missed the whole issue.
I don't need anyone to agree. Just enough black robbed oracles to carry the day. If I could sway enough people to my way of thinking, that's called legislation, self governance, representative rule. All those ideas SCOTUS shit canned in this decision. SCOTUS playing Super Legislatures.

Nichevo म्हणाले...


Well people have been making the case for gay rights for a very long time. If you want people to also accept necrophilia and pedophilia then you need to present that argument.


Eh, what's the difference.

n.n म्हणाले...

Congress should start declaring court actions unconstitutional.

Yes, a consensus of common cause, an expression of solidarity.

Josephbleau म्हणाले...

"And be prepared, people might reject your argument."

It matters not one whit what the people reject or accept, the people are going to have to do whatever the Supreme Court tells them to do.

The court is now there to paper over the cowardice of Congress. If this is a consequence of law then congress should have made it explicit, but if they did that they might loose some votes, as was planned by permitting citizens to vote them out every two years. Now that protection is irrelevant, just pass a half assed law and let the court doctor it later. It won't be the fault of the dear congress, and the supreme court needs no votes.

Why do we lie to our children and tell them these fantasies about separation of powers and impartial justice? What a crock. What an immoral government.

DEEBEE म्हणाले...

Ahh the umbra and penumbra of sex strikes this tine. Ann your and Gorsuch’s lack of integrity when it. Ones to homosexuality is breathtaking. You guys of course are smarter than the supposed low IQ folks who spent so much effort trying to change the law. What a inch fools they were wasting everyone’s time.

The more outrageous consequence of this is that sex is just a stretchable — socially constructed — concept to include other things.

n.n म्हणाले...

The Catholic church wasn't going to fire all its gay priests anyway.

It's ironic that the Catholic Church was first to embrace sociopolitical congruence ("="), and will NOW be cancelled and leached by second wave (e.g. lawyers, activists) politically congruent. The Boy Scouts, too.

It's a paradox that the Transgender Spectrum Flag excludes black and brown, and takes gay satisfaction ("pride") in the shredded remains of white. I guess Black Lives don't Matter. #BLM

Browndog म्हणाले...

Cherry picking Scalia is offensive.

The could have cited him saying it's not the job of the Judiciary to clarify the intent of the legislature. If you want to know what a law means, ask them. Maybe they will get the drift and stop writing laws that are overly broad and subject to interpretation.

Earnest Prole म्हणाले...

Libertarian? What's libertarian about government forcing employers to hire certain people?

The same thing as when the government forces businesses to serve blacks: Apartheid and individual freedom are incompatible.

RobinGoodfellow म्हणाले...

“Blogger alanc709 said...
I don't think we can call Roberts a conservative any longer.“

Welcome to the party, pal!

StephenFearby म्हणाले...


‘A Pirate Ship … Sail[ing] Under a Textualist Flag’
By ED WHELAN

'...3. Gorsuch’s ruling will almost surely have extreme consequences. Those consequences wouldn’t provide a reason to misread the text of the law. But they ought to have induced more humility about whether Gorsuch’s reading is in fact right.

As Alito spells out, those consequences extend to whether bathrooms and locker rooms may be sex-specific (pp. 45-47), whether women’s sports and girls’ sports may be reserved for females (pp. 47-48), and whether colleges may assign dormitory rooms by sex (p. 48).

Gorsuch doesn’t dispute that such consequences will ensue; he says only that these “are questions for future cases.” (Majority at 31-32.)'

Browndog म्हणाले...

damikesc said...

One plus...womens sports are effectively dead.


Title IX dictates so then would mens.

RobinGoodfellow म्हणाले...

“By discriminating against homosexuals, the employer intentionally penalizes men for being attracted to men and women for being attracted to women. By discriminating against transgender persons, the employer unavoidably discriminates against persons with one sex identified at birth and another today.”

Now who can argue with that? I think we're all indebted to Gabby Gorsuch for clearly stating what needed to be said. I'm particulary glad that these lovely children were here today to hear that speech. Not only was it authentic frontier gibberish, it expressed a courage little seen in this day and age.

Readering म्हणाले...

Stephen Cooper, at which law school did Gorsuch come across as worse than your average talented classmate?
(But thanks for sending me to Google for larping. Never too old to work on my vocabulary.)

~ Gordon Pasha म्हणाले...

I dated a woman who was a 17 x All American in track and field, and a National Indoor 5 K champion. She is unalterably opposed to this since now since any woman who follows her will never be able to compete with even an average man who identifies as a woman. This decision is the end of woman's sports.

Rick म्हणाले...

Owen said...
If you were counseling an employer where the “bright line” is around “discrimination on the basis of sex,” could you do it? What could you point to and say, “That, over there, is still safe for you to disapprove or exclude”?


I'm very comfortable conservatism and libertarianism will always remain safe to discriminate against.

RobinGoodfellow म्हणाले...

“Blogger I Callahan said...
‘This helps Trump because he is known to be anti-gay and people don't want a tolerant president?’

Trump is not anti-gay in any way. You are a bald-faced liar.”

Trump was the most gay-friendly president elected. Even St Barack of Obama was against gay marriage.

CWJ म्हणाले...

"...who joined with those who believe in individual autonomy and freedom."

But not the employer's autonomy and freedom.

Readering म्हणाले...

POTUS today "a very powerful decision." Sticking with his guy Gorsuch.

Jeff Brokaw म्हणाले...

The main thing the Supreme Court is really good at is making controversial decisions — that it should leave to either the states or to federal legislators — that create and deepen social divisions. Here’s another one. Thanks guys and gals.

Also, theCivil Rights Act of 1964 ... is there anything it can’t do?

Beloved Commenter AReasonableMan म्हणाले...

Speaking of Trump's failures:

Daniel Horowitz said ...
Taken in totality, the “conservative” legal movement, which has promoted the idea of “appointing better judges” rather than fighting the entire concept of judicial supremacism, has failed miserably. This was its Waterloo.

The Godfather म्हणाले...

Just think how much more meaningful it would have been if Congress -- the Democrat-controlled House and the Republican-controlled Senate -- had passed a law banning employment discrimination against homosexuals, and the President had signed it (as Trump surely would have). That would have marked a new consensus on this issue in the USA. Right now, what do we have? The opinions of half a dozen old and middle-aged men and women. Who knows what the People think? We don't, because their elected representatives haven't acted.

Bob Loblaw म्हणाले...

The hillbillies will howl, wanting us to continue to live in the dreck that they love so much. The rest of us want indoor plumbing.

Idiotic framing, but let me address the substance: That's not the court's remit. If you want "indoor plumbing", then try getting your crazy agenda though the legislature instead of abusing the courts.

DavidUW म्हणाले...

So the Supreme Court has ruled in the past 20 years:

1) Congress means 'tax' when it explicitly does not use that word for reasons actually written contemporaneously.
2) Congress means "gender" when it explicitly wrote sex at a time when sex only meant its correct meaning: biological, verifiable, immutable sex. Never mind never mentioned sexual orientation.
3) "Interstate commerce" means activities that are neither interstate nor commercial.

Got it.

And we're supposed to respect this institution why?

Michael K म्हणाले...

I certainly hope the destruction of women's sports means that men's minor sports like wrestling and crew will be funded again. Silver lining and all that.

Too bad about ARM's progs. Tough luck.

Earnest Prole म्हणाले...

But not the employer's autonomy and freedom.

We settled that question in 1964. Now we’re just haggling about the fine print.

Mark म्हणाले...

All this concern trolling over women's sports. Is that all you have?

n.n म्हणाले...

Who knows what the People think?

Actually, we know. In California, Democrats, in the majority, turned down trans/homo marriage of couplets, but democracy was overridden by an em-pathetic trans/homo judge. Then the politically congruent protested the votes of blacks, browns, and Catholics, by marching in SLC against Mormons. Talk about a progressive dissociative disorder.

Beloved Commenter AReasonableMan म्हणाले...

The Godfather said...
Just think how much more meaningful it would have been if Congress -- the Democrat-controlled House and the Republican-controlled Senate -- had passed a law banning employment discrimination against homosexuals, and the President had signed it (as Trump surely would have).


What planet would this have occurred on? The religious right would have lynched any Republican politician who signed onto this.

TheDopeFromHope म्हणाले...

Applauding the preposterous. Far too many justices and judges see themselves as legislators in robes, and not only legislators but super-legislators, with veto power over Congress and state legislatures and the power to amend the Constitution as warranted. Now if they could only do away with Article III's "case or controversy" requirement so they could address any issue that strikes them.

MadTownGuy म्हणाले...

From Alito's dissent:
"Employment by religious organizations. Briefs filed by a wide range of religious groups––Christian, Jewish, and Muslim––express deep concern that the position now
adopted by the Court “will trigger open conflict with faith based employment practices of numerous churches, synagogues, mosques, and other religious institutions.” They argue that “[r]eligious organizations need employees who actually live the faith,” and that compelling a religious organization to employ individuals whose conduct flouts the tenets of the organization’s faith forces the group to communicate an objectionable message.

This problem is perhaps most acute when it comes to the employment of teachers. A school’s standards for its faculty
“communicate a particular way of life to its students,” and a “violation by the faculty of those precepts” may undermine the school’s “moral teaching.”

Thus, if a religious school teaches that sex outside marriage and sex reassignment procedures are immoral, the message may be lost if the school employs a teacher who is in a same-sex relationship or has undergone or is undergoing sex reassignment.


Yet today’s decision may lead to Title VII claims by such teachers and applicants for employment. At least some teachers and applicants for teaching positions may be blocked from recovering on such claims by the “ministerial exception” recognized in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. 171 (2012).
Two cases now pending before the Court present the question whether teachers who provide religious instruction can be considered to be “ministers.” But even if
teachers with those responsibilities qualify, what about other very visible school employees who may not qualify for the ministerial exception? Provisions of Title VII provide exemptions for certain religious organizations and schools
“with respect to the employment of individuals of a particular religion to perform work connected with the carrying
on” of the “activities” of the organization or school, 42 U. S. C. §2000e–1(a); see also §2000e–2(e)(2), but the scope of these provisions is disputed, and as interpreted by some
lower courts, they provide only narrow protection.
"

Shorter version: how may this be applied to churches, synagogues, mosques, ashrams and schools?

Joan म्हणाले...

I live in Arizona, which is a right-to-work state. That means you can quit your job at any time for any reason, although it is courteous to give 2 weeks' notice. It also means your employer can fire you, at any time for any reason, including rescinding contracts previously signed by both parties. (Happened to me!)

Does Title VII apply in right-to-work states? It seems to me the way around this is national right-to-work. Or am I missing something? I would love to hear an explanation of whether or not Title VII beats right-to-work.

Jaq म्हणाले...

"Today, we must decide whether an employer can fire someone simply for being homosexual or transgender.”

There’s the problem right there! That isn’t what they were supposed to decide, they were supposed to decide what the law actually said and whether it comported with the Constitution. Instead they insert themselves into the role of absolute sovereign, like one of those kings of Araby who receives suits of his subjects in his tent and resolves them on the spot since his word is law.

I don’t really care about this decision one way or another, BTW. Just sayin'

Anne-I-Am म्हणाले...

This is insane. Sex at birth vs "sex today.". NO ONE CAN CHANGE SEX. Period. End of sentence. This is not a debatable issue. Either a human has the potential to produce large gametes or small gametes--and that is how male and female are defined.

Lawyers are ignorant fools.

ALP म्हणाले...

I work for BigLaw in Seattle. To date, we have been given 1.5 days off due to racism. Hey, I am not complaining. I got an email today that said this Friday off due to "Juneteenth". I read it initially as "Junenuary" which is a way to describe Seattle's June weather: always cloudy. Mash up of June and January. And I then thought "Now THAT is a strange reason for a day off but whatever..."

But I figured it out. Now with this decision I wonder: will we get further days off, at least half a day, to ponder our homophobia or at least honor Pride Month or Stonewall Riots? I mean, eventually someone in that group will speak up, asking "how about us? when do we get a half day or even a full day off?" Hmmmmm...

Ray - SoCal म्हणाले...

Trump has an amazing ability to make his opponents show their true faces...

> concept of judicial supremacism, has failed miserably. This was its Waterloo.

I wish the court had passed on the transgender issue, it opens up a huge can of worms.

Ray - SoCal म्हणाले...

Recent actions by the Supreme Court May be a coincidence, but the saying is three times is enemy action...

1. The White House was preparing an executive order on trans competing in Women Sports. Sounds like this ruling kills that.

2. Doj was going to go after religious discrimination against religion with lockdowns, and Roberts pulled the rug from under that.

3. 9th circuit sanctuary city ruling allowed to stand.

Readering म्हणाले...

Shorter AA comenters: sky falling (again). Duck.

Big Cat म्हणाले...

Roberts... the Bush's gift that keeps on giving how fucked up were we to believe 41 and 43?

walter म्हणाले...

"the employer unavoidably discriminates against persons with one sex identified at birth and another today."
Or yesterday.
"Class, I would like to share some good news!"


jvermeer51 म्हणाले...

So ever since the passage of the 1964 Civil Rights Act, which said explicitly that discrimination on the basis of "race, color, religion, sex, national origin" is illegal, courts have repeatedly held that, au contraire, it's OK if the person discriminated against is white, Asian, Jewish and if the person discriminated for is black, Hispanic or Amer Indian. So today, the court held that despite five specific groups named, it really meant some other groups too.

Drago म्हणाले...

Beijing Boy: "What planet would this have occurred on? The religious right would have lynched any Republican politician who signed onto this."

Explain 2009-2010.

stephen cooper म्हणाले...

Readering - Georgetown, which I went to despite having the LSATs to go anywhere I wanted, because I like living in the Mid-Atlantic.

By the way, I graduated with honors, and even more important, like Ann A., I was the best as something - I got the highest score in Martin Ginsburg's Mergers and Acquisitions class.

I could have been a millionaire many times over, but I went into public service law.
And yes, Gorsuch would have been a dim bulb in any study group I was in.

ken in tx म्हणाले...

"Today, we must decide whether an employer can fire someone simply for being homosexual or transgender.”

This is not what this case decided. It decided that such persons can not be fired at all, without going to court to prove another reason. Now, a wise employer will not hire them in the first place. There are already too many people in the work place who can not be held accountable.

buwaya म्हणाले...

Indoor plumbing and indeed the entire system of modern water supply and sewage management is an excellent example of the incremental, empirical "deplorable" way of progress, as opposed to the credentialed, "scientific", "intellectual" model. The modern world was generally built by humble men without social status improving things gradually over time.

In this history the lone tinkering inventor of small improvements and the small business play huge roles.

People that are left entirely out of the "scientific" world view. At the same time the "scientific" party use the loo, or take a shower, mindlessly ignoring the world they are directly feeling with their bodies.

Bunkypotatohead म्हणाले...

So I can still fire the homo if he wears a MAGA hat to work, right?
That's still cool, isn't it?

The Godfather म्हणाले...

On this very comment thread we have a demonstration of how wrong the Supreme Court majority is.

I commented earlier that it would be more meaningful (and I would support) if Congress and the President amended the law to bar employment descrimination against homosexuals than having a handful of Supreme Court Justices amend the law "by interpretation" to accomplish that result, and a commenter (belovedARM) said "What planet would this have occurred on? The religious right would have lynched any Republican politician who signed onto this." Assume he's correct (I don't). Do you think that the Congress that passed the statute in question decades ago was more enlightened on issues of sexual orientation than today's Congress is? Highly unlikely! No, BelovedARM's comment shows that the Congress that passed the legislation banning discrimination "on the basis of sex" did NOT intend to ban discrimination against Gays and Lesbians (they would have been "lynched" if they'd done so, he says). They certainly didn't think they were voting to ban discrimination of the basis of "sexual identity" -- a concept they probably had never heard of.

Thank you, BelovedARM. I assume we'll soon see your name on an amicus brief asking the Court to admit that it's interpretation of the statute was wrong?

Mark म्हणाले...

Now, a wise employer will not hire them in the first place.

Sorry Ken, but the law prohibits refusal to hire as much as it prohibits firing.

glacial erratic म्हणाले...

If a man went to a surgeon and demanded his left arm be cut off because he was "really" a one-armed person, despite having two arms "assigned at birth", no ethical surgeon would perform the operation. Instead, the surgeon would recommend mental therapy for an obvious mental illness.

No healthy society redefines mental illness as a civil right.

Readering म्हणाले...

Stephen Cooper. I strongly considered georgetown, but they offered me no financial aid in 1977. But a very big school so doubt gorsuch would have failed to stand out in top half. Of course, like me he went to a Jesuit high school, so may have had enough of that. (Not that the law school is religious.)

Oso Negro म्हणाले...

As of today, people are losing their jobs for comments that they make on social media that are offensive to blacks. Other minorities aspire to this exalted status, but aren't quite there yet. Within a few years, the trans activists will be able to get people fired for mocking the pronouns of perversity in their private lives. How this possibly squares with traditional American values, I cannot possibly imagine. But our hostess and others appear as children screaming "wheee" in delight as we ride the slippery slide to the bottom.

Jason म्हणाले...

I understand your argument, but I’m too busy applauding.

Are you like, twelve or something?

BUMBLE BEE म्हणाले...

Lawyers need the work.

iowan2 म्हणाले...

What planet would this have occurred on? The religious right would have lynched any Republican politician who signed onto this.

That's the point. Democrats are incapable of passing legislation that advances their agenda. Why does the fact Democrats are inept, allow unelected robbed oracles to define a nations values? But, it's looking like President Trump is going to appoint 2 more SCOTUS justices. So leftist will be required to accept the infallibility of the court. So I'll be like our host, I'll be too busy applauding the results to worry about the process.

Mark म्हणाले...

"Thus, if a religious school teaches that sex outside marriage and sex reassignment procedures are immoral, the message may be lost if the school employs a teacher who is in a same-sex relationship or has undergone or is undergoing sex reassignment."

Religious folks have fought to force public schools to teach creationism, most science teachers provided a same argument but your side ignored it. Turnabout is fair play.

Plus, in many states those religious schools take voucher money and thus public funds. If you think you can take public tax money and ignore civil rights laws, just you wait.

Kai Akker म्हणाले...

Thanks for posting this topic, Ann, with the specific arguments highlighted. I appreciated seeing exactly what the pro and con points were.

GingerBeer म्हणाले...

Yea team!

Tina Trent म्हणाले...

soyou don't give a damn about girl's sports.

Because you don't get to pick that any more.

Mazel tov with your hard clapping.

DavidUW म्हणाले...

Plus, in many states those religious schools take voucher money and thus public funds. If you think you can take public tax money and ignore civil rights laws, just you wait.
>>
Many states?
I count 12. I'm not sure they all allow religious schools to use vouchers either.

The only one I have experience with, Milwaukee, did not "take public funds"; rather the vouchers used public funds more efficiently by allowing a student such as myself to attend a MUCH higher quality high school at a fraction of the cost of failing to educate me at a public high school.