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IMO I find Alito's argument interesting, but dubious: > Last year, the House of Representatives passed a bill that would amend Title VII by defining sex discri

by bhupy 6y ago

IMO I find Alito's argument interesting, but dubious: > Last year, the House of Representatives passed a bill that would amend Title VII by defining sex discrimination to include both “sexual orientation” and “gender identity,” H. R. 5, 116th Cong., 1st Sess. (2019), but the bill has stalled in the Senate. An alternative bill, H. R. 5331, 116th Cong., 1st Sess. (2019), would add similar prohibitions but contains provisions to protect religious liberty.3 This bill remains before a House Subcommittee. > Because no such amendment of Title VII has been enacted in accordance with the requirements in the Constitution (passage in both Houses and presentment to the President, Art. I, §7, cl. 2), Title VII’s prohibition of discrimination because of “sex” still means what it has always meant. Unless I'm missing something, I can't see how this principle can be consistently applied since there are so many laws that have been passed, that may not pass if the current iteration of the Legislative branch were to vote on it, eg. First & Second Amendments (as is), New Deal, etc. It seems like a more roundabout way of saying that the US has strong status quo biases baked into its system, but that's about it. IANAL, so shrug. EDIT: I'm not sure why this is getting downvoted, I'm making an argument affirming the majority decision and attacking the logic of the dissenting opinion.

rayiner 6y ago
Alito’s argument is basically: Title VII can’t already confer these protections, or else Congress wouldn’t be trying to enact them.
- bhupy 6y ago
  Right, but it's hard for me to see how that argument proves anything since it ignores the slow and deliberate nature of judicial review and how events can occur out-of-order. A policy opportunist would try to simultaneously appeal a law through the appellate court system while also trying to circumvent that process through the legislature. If the appeal were to eventually pass judicial review before Congress were to finally enact the clarification of the law itself, does that render the judicial opinion inaccurate? Put another way: if Congress had tried (and failed) to pass a law that clarifies the interpretation of the First Amendment per Citizens United before the Citizens United decision happened, does that make CU any less "correct"?
notahacker 6y ago
I think his argument is more of the form 'people are trying to pass legislation to [explicitly] add these protections, therefore the existing legislation does not afford these protections' than trying to derive any principle from the current legislature's [un]willingness to pass it. That argument has its limitations as legislation is often drafted intended to further clarify stuff which already exists (e.g. the Seventh Amendment affirmed a right to trial by jury already mentioned in the original constitution) but it's using the fact some legislators think the Bill is necessary to pass rather than the assumption some object to it to justify his interpretation of the existing law. Ultimately constitutional law is always the status quo, plus things the legislature or sometimes the judiciary are willing and able to follow the procedures to change, and not just in the United States)

by bhupy 6y ago

rayiner 6y ago

Alito’s argument is basically: Title VII can’t already confer these protections, or else Congress wouldn’t be trying to enact them.

bhupy 6y ago
Right, but it's hard for me to see how that argument proves anything since it ignores the slow and deliberate nature of judicial review and how events can occur out-of-order. A policy opportunist would try to simultaneously appeal a law through the appellate court system while also trying to circumvent that process through the legislature. If the appeal were to eventually pass judicial review before Congress were to finally enact the clarification of the law itself, does that render the judicial opinion inaccurate? Put another way: if Congress had tried (and failed) to pass a law that clarifies the interpretation of the First Amendment per Citizens United before the Citizens United decision happened, does that make CU any less "correct"?

notahacker 6y ago

I think his argument is more of the form 'people are trying to pass legislation to [explicitly] add these protections, therefore the existing legislation does not afford these protections' than trying to derive any principle from the current legislature's [un]willingness to pass it. That argument has its limitations as legislation is often drafted intended to further clarify stuff which already exists (e.g. the Seventh Amendment affirmed a right to trial by jury already mentioned in the original constitution) but it's using the fact some legislators think the Bill is necessary to pass rather than the assumption some object to it to justify his interpretation of the existing law. Ultimately constitutional law is always the status quo, plus things the legislature or sometimes the judiciary are willing and able to follow the procedures to change, and not just in the United States)