6 ms·

> 6-3 ruling represented the biggest moment for LGBT rights Why did 3 vote against? Is there an explanation for their reasoning?

by bkor 6y ago

rrss 6y ago
https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf Alito and Kavanaugh wrote dissenting opinions. Thomas joined with Alito's opinion.
- throwanem 6y ago
  Nit: Thomas joined Kavanaugh's opinion, not Alito's.
  - dghf 6y ago
    > ALITO, J., filed a dissenting opinion, in which THOMAS, J., joined. KAVANAUGH, J., filed a dissenting opinion. -- p. 4 in the PDF. > JUSTICE ALITO, with whom JUSTICE THOMAS joins, dissenting. -- p. 38 in the PDF. https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf
    - throwanem 6y ago
      Apparently I can't read. Good catch, thanks.
  - rrss 6y ago
    No. page 38 or so: > JUSTICE ALITO, with whom JUSTICE THOMAS joins, dissenting page 145 or so: > JUSTICE KAVANAUGH, dissenting.
afterburner 6y ago
You must be new to the politics of the current Supreme Court. A certain number will always lean away from progress. EDIT: apparently some people think justices of the Supreme Court are "above" politics. Laughable, though they do an excellent job of covering with a lot of legalistic-sounding justification.
deleted 6y ago
[deleted]
atestu 6y ago
From https://www.wsj.com/articles/supreme-court-rules-for-gay-rights-in-the-workplace-11592230310 https://www.wsj.com/articles/supreme-court-rules-for-gay-rig...: > Title VII of the 1964 act broadly prohibits employers from discriminating against workers, including in hiring and firing decisions, based on an employee’s sex. > The Trump administration argued that the 1964 law doesn’t cover LGBT workers. There's a debate around whether "employee's sex" includes "employee's sexual orientation."
throwanem 6y ago
Yes, they'll have written a dissent that will be published alongside the majority opinion. I'm looking for it now, but since Reuters didn't bother to name the case, that's more complicated than it might be. edit: Found it: https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf Kavanaugh's dissent (p. 145ff.) appears to revolve around it being not the proper province of the Supreme Court to decide the extent of Title VII, which, IANAL but that seems like a weak dodge. The whole point of the Supreme Court is to finally decide among competing interpretations of extant legislation. Alito's and Thomas's dissent (pp. 38-144) appears to rely on the same strict-constructionist interpretation. Its Appendix A cites a stack of dictionaries. So there's that, I guess. Appendix D is an application for employment in the US armed forces. Presumably the body of the dissent explains what this is meant to prove, although I doubt I would feel myself enlightened for the effort of going back and finding that exegesis.
- deleted 6y ago
  [deleted]
- RegnisGnaw 6y ago
  Alito and Thomas dissent is basically: the word "sex" does not include sexual orientation. So its not covered by the original Title VII. So if they want protection, they need a new law.
  - Amicius 6y ago
    There is a strong legal argument to be made here. If one can simply identify as trans but the law doesn't provide a definition under which this would work, you're opening up ambiguity as to what the law even is and how it's to be used to protect someone claiming such an identification. This is a great case where a dissenting opinion is done for the protection of those seeking title as a protected class from those who will shoot the ambiguity loophole to deny the protection this decision purports to offer.
    - joshuamorton 6y ago
hakka-nyu-su 6y ago
> The legal fight focused on the definition of “sex” in Title VII [of the Civil Rights Act of 1964]. The plaintiffs, along with civil rights groups and many large companies, had argued that discriminating against gay and transgender workers was inherently based on their sex and consequently was illegal. So there's a difference in philosophy between 'textualists' who interpret the meaning of the text, and in particular what the word 'sex' implies, versus 'originalists' who look of the intent of the legislators in 1964.
- hirundo 6y ago
  The dominant school of originalists are the "public meaning" originalists. They hold that the original public meaning gives notice to the public about how to obey the law, where the original intent does not, since most people can't be expected to know what the intent was. Gorsuch is a leader of the public meaning approach.
  - notahacker 6y ago
    The interesting thing about Gorsuch's opinion considering his reputation is that he specifically focuses on applying the logical implications (if a company would not fire a person for being in a relationship with a man if they were female, clearly firing a man for doing so treats sexes differently) to the Civil Rights Act text rather than likely 1964 understanding of its intent and actually rules out the probable lack of consideration of LGBT issues by the original framers as a relevant factor.
- LudwigNagasena 6y ago
  Originalists and textualists would interpret “sex” the same way. Unless you think that Civil Rights Act of 1964 implied protections for gay and transgender people in that very time and was misinterpreted by everyone (which is very unlikely). The people who support the idea that “sex discrimination” can be interpreted as including gay discrimination and trans discrimination adhere to “loose constructionism” and think that constitution and laws can change their meaning without being formally updated.
mikenyc 6y ago
Just for background, there's nearly always a lengthy opinion explaining the reasoning in great detail. And if there's a dissent, the dissenters' reasoning is typically laid out in great detail as well, and included along with the opinion. Here's the full opinion for those interested: https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf
joey_bob 6y ago
https://casetext.com/case/bostock-v-clayton-county https://casetext.com/case/bostock-v-clayton-county
deleted 6y ago
[deleted]
dahdum 6y ago
From my layman’s view, they argued that the existing law did not cover sexual orientation, while the 6 argued that “on the basis of sex” does despite lawmakers making no mention of it in the bill. That’s not such a wild stretch, but it is reading more into the law than was written or intended at the time, so peeling 2 textualists off is a bit surprising.
- tgb 6y ago
  I think the majority opinion is more interesting than that. They argue that firing someone for being LGBT is firing them for behavior that you would not have fired them for had they been a different sex. Ergo, it inherently is firing them on the basis of sex.
  - dahdum 6y ago
    Yes it is interesting. Most likely not what the lawmakers intended at the time, but the law itself doesn't limit the scope. It's a great outcome, but unfortunate that it takes the Supreme Court to get there.
    - drewbug01 6y ago
      > Yes it is interesting. Most likely not what the lawmakers intended at the time, but the law itself doesn't limit the scope. There's a section in the majority opinion about this, actually - I would paraphrase it as "it's not surprising that broad outcomes are drawn from laws written in extraordinarily broad terms."
- regulation_d 6y ago
  Title VII covers other things that the majority opinion describes as "conceptually distinct" from sex but also "necessarily entail(ing) discrimination based on sex". In particular, they talk about sexual harassment and motherhood discrimination.
typicalbender 6y ago
It's worth reading the full dissent and majority opinion but its a textualist argument that the original legislation did not intend to include homosexuality and transgender in the Title VII law against sex discrimination and its not the courts job to legislate and that if these are to be included its congress' job to amend the laws to be more specific.
- intopieces 6y ago
  > but its a textualist argument that the original legislation did not intend to include homosexuality Ah, but that's not textualism. Textualism is a method of statutory interpretation whereby the plain text of a statute is used to determine the meaning of the legislation. Instead of attempting to determine statutory purpose or legislative intent, textualists adhere to the objective meaning of the legal text. [0] [0]https://ballotpedia.org/Textualism https://ballotpedia.org/Textualism
pdonis 6y ago
The actual opinions are here: https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf
LudwigNagasena 6y ago
Yeah, the explanation is that “sex” means “sex” and it doesn’t mean “sexual orientation” or “transgender status”. This seems pretty obvious. Why did 6 vote for seems more questionable, the Supreme Court is a judicial branch, not a legislative one.
- SkyBelow 6y ago
  Because the notion of sex is implicit in some sexual orientations. If you fire a man for loving some individual, but not fire a woman for loving the same individual, then that is discrimination on the basis of sex. The question that I think is still untested is what happens when you consider someone asexual or bisexual, as that isn't as simple a case to handle as just flipping the genders. If you fire a man for loving two people and fire a woman for loving those same two people, it doesn't appear you are discriminating based on sex. But given that such a relationship would also be considered poly-amorous bisexual and not monogamous bisexual, and given that the likelihood of having a business that only fired people for poly-amorous bisexual relationships and not for monogamous homosexual relationships is extremely small, I'm guessing it will be some time before it is tested in courts.
  - LudwigNagasena 6y ago
    Page 17 of the dissent analyzes your example.
- Pfhreak 6y ago
  Clearly, it's not "pretty obvious" or there wouldn't be this case or ruling.
- rrrrrrrrrrrryan 6y ago
  Can you define homosexuality without invoking sex? Can you find a way to say "this person is straight" or "this person is gay" without bringing that individual's sex into the equation? That's basically the argument. Discriminating against a woman who is in a relationship with a woman is discrimination against (certain) women, because if she were a male, in a relationship with that same woman, she would be treated differently.

> 6-3 ruling represented the biggest moment for LGBT rights Why did 3 vote against? Is there an explanation for their reasoning?

by bkor 6y ago

> 6-3 ruling represented the biggest moment for LGBT rights Why did 3 vote against? Is there an explanation for their reasoning?

rrss 6y ago

https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf Alito and Kavanaugh wrote dissenting opinions. Thomas joined with Alito's opinion.

throwanem 6y ago
Nit: Thomas joined Kavanaugh's opinion, not Alito's.
- dghf 6y ago
  > ALITO, J., filed a dissenting opinion, in which THOMAS, J., joined. KAVANAUGH, J., filed a dissenting opinion. -- p. 4 in the PDF. > JUSTICE ALITO, with whom JUSTICE THOMAS joins, dissenting. -- p. 38 in the PDF. https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf
  - throwanem 6y ago
    Apparently I can't read. Good catch, thanks.
- rrss 6y ago
  No. page 38 or so: > JUSTICE ALITO, with whom JUSTICE THOMAS joins, dissenting page 145 or so: > JUSTICE KAVANAUGH, dissenting.

afterburner 6y ago

You must be new to the politics of the current Supreme Court. A certain number will always lean away from progress. EDIT: apparently some people think justices of the Supreme Court are "above" politics. Laughable, though they do an excellent job of covering with a lot of legalistic-sounding justification.

deleted 6y ago

[deleted]

atestu 6y ago

From https://www.wsj.com/articles/supreme-court-rules-for-gay-rights-in-the-workplace-11592230310 https://www.wsj.com/articles/supreme-court-rules-for-gay-rig...: > Title VII of the 1964 act broadly prohibits employers from discriminating against workers, including in hiring and firing decisions, based on an employee’s sex. > The Trump administration argued that the 1964 law doesn’t cover LGBT workers. There's a debate around whether "employee's sex" includes "employee's sexual orientation."

throwanem 6y ago

Yes, they'll have written a dissent that will be published alongside the majority opinion. I'm looking for it now, but since Reuters didn't bother to name the case, that's more complicated than it might be. edit: Found it: https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf Kavanaugh's dissent (p. 145ff.) appears to revolve around it being not the proper province of the Supreme Court to decide the extent of Title VII, which, IANAL but that seems like a weak dodge. The whole point of the Supreme Court is to finally decide among competing interpretations of extant legislation. Alito's and Thomas's dissent (pp. 38-144) appears to rely on the same strict-constructionist interpretation. Its Appendix A cites a stack of dictionaries. So there's that, I guess. Appendix D is an application for employment in the US armed forces. Presumably the body of the dissent explains what this is meant to prove, although I doubt I would feel myself enlightened for the effort of going back and finding that exegesis.

deleted 6y ago
[deleted]
RegnisGnaw 6y ago
Alito and Thomas dissent is basically: the word "sex" does not include sexual orientation. So its not covered by the original Title VII. So if they want protection, they need a new law.
- Amicius 6y ago
  There is a strong legal argument to be made here. If one can simply identify as trans but the law doesn't provide a definition under which this would work, you're opening up ambiguity as to what the law even is and how it's to be used to protect someone claiming such an identification. This is a great case where a dissenting opinion is done for the protection of those seeking title as a protected class from those who will shoot the ambiguity loophole to deny the protection this decision purports to offer.
  - joshuamorton 6y ago

hakka-nyu-su 6y ago

> The legal fight focused on the definition of “sex” in Title VII [of the Civil Rights Act of 1964]. The plaintiffs, along with civil rights groups and many large companies, had argued that discriminating against gay and transgender workers was inherently based on their sex and consequently was illegal. So there's a difference in philosophy between 'textualists' who interpret the meaning of the text, and in particular what the word 'sex' implies, versus 'originalists' who look of the intent of the legislators in 1964.

hirundo 6y ago
The dominant school of originalists are the "public meaning" originalists. They hold that the original public meaning gives notice to the public about how to obey the law, where the original intent does not, since most people can't be expected to know what the intent was. Gorsuch is a leader of the public meaning approach.
- notahacker 6y ago
  The interesting thing about Gorsuch's opinion considering his reputation is that he specifically focuses on applying the logical implications (if a company would not fire a person for being in a relationship with a man if they were female, clearly firing a man for doing so treats sexes differently) to the Civil Rights Act text rather than likely 1964 understanding of its intent and actually rules out the probable lack of consideration of LGBT issues by the original framers as a relevant factor.
LudwigNagasena 6y ago
Originalists and textualists would interpret “sex” the same way. Unless you think that Civil Rights Act of 1964 implied protections for gay and transgender people in that very time and was misinterpreted by everyone (which is very unlikely). The people who support the idea that “sex discrimination” can be interpreted as including gay discrimination and trans discrimination adhere to “loose constructionism” and think that constitution and laws can change their meaning without being formally updated.

mikenyc 6y ago

Just for background, there's nearly always a lengthy opinion explaining the reasoning in great detail. And if there's a dissent, the dissenters' reasoning is typically laid out in great detail as well, and included along with the opinion. Here's the full opinion for those interested: https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf

joey_bob 6y ago

https://casetext.com/case/bostock-v-clayton-county https://casetext.com/case/bostock-v-clayton-county

deleted 6y ago

[deleted]

dahdum 6y ago

From my layman’s view, they argued that the existing law did not cover sexual orientation, while the 6 argued that “on the basis of sex” does despite lawmakers making no mention of it in the bill. That’s not such a wild stretch, but it is reading more into the law than was written or intended at the time, so peeling 2 textualists off is a bit surprising.

tgb 6y ago
I think the majority opinion is more interesting than that. They argue that firing someone for being LGBT is firing them for behavior that you would not have fired them for had they been a different sex. Ergo, it inherently is firing them on the basis of sex.
- dahdum 6y ago
  Yes it is interesting. Most likely not what the lawmakers intended at the time, but the law itself doesn't limit the scope. It's a great outcome, but unfortunate that it takes the Supreme Court to get there.
  - drewbug01 6y ago
    > Yes it is interesting. Most likely not what the lawmakers intended at the time, but the law itself doesn't limit the scope. There's a section in the majority opinion about this, actually - I would paraphrase it as "it's not surprising that broad outcomes are drawn from laws written in extraordinarily broad terms."
regulation_d 6y ago
Title VII covers other things that the majority opinion describes as "conceptually distinct" from sex but also "necessarily entail(ing) discrimination based on sex". In particular, they talk about sexual harassment and motherhood discrimination.

typicalbender 6y ago

It's worth reading the full dissent and majority opinion but its a textualist argument that the original legislation did not intend to include homosexuality and transgender in the Title VII law against sex discrimination and its not the courts job to legislate and that if these are to be included its congress' job to amend the laws to be more specific.

intopieces 6y ago
> but its a textualist argument that the original legislation did not intend to include homosexuality Ah, but that's not textualism. Textualism is a method of statutory interpretation whereby the plain text of a statute is used to determine the meaning of the legislation. Instead of attempting to determine statutory purpose or legislative intent, textualists adhere to the objective meaning of the legal text. [0] [0]https://ballotpedia.org/Textualism https://ballotpedia.org/Textualism

pdonis 6y ago

The actual opinions are here: https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf

LudwigNagasena 6y ago

Yeah, the explanation is that “sex” means “sex” and it doesn’t mean “sexual orientation” or “transgender status”. This seems pretty obvious. Why did 6 vote for seems more questionable, the Supreme Court is a judicial branch, not a legislative one.

SkyBelow 6y ago
Because the notion of sex is implicit in some sexual orientations. If you fire a man for loving some individual, but not fire a woman for loving the same individual, then that is discrimination on the basis of sex. The question that I think is still untested is what happens when you consider someone asexual or bisexual, as that isn't as simple a case to handle as just flipping the genders. If you fire a man for loving two people and fire a woman for loving those same two people, it doesn't appear you are discriminating based on sex. But given that such a relationship would also be considered poly-amorous bisexual and not monogamous bisexual, and given that the likelihood of having a business that only fired people for poly-amorous bisexual relationships and not for monogamous homosexual relationships is extremely small, I'm guessing it will be some time before it is tested in courts.
- LudwigNagasena 6y ago
  Page 17 of the dissent analyzes your example.
Pfhreak 6y ago
Clearly, it's not "pretty obvious" or there wouldn't be this case or ruling.
rrrrrrrrrrrryan 6y ago
Can you define homosexuality without invoking sex? Can you find a way to say "this person is straight" or "this person is gay" without bringing that individual's sex into the equation? That's basically the argument. Discriminating against a woman who is in a relationship with a woman is discrimination against (certain) women, because if she were a male, in a relationship with that same woman, she would be treated differently.