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My Problem with Gorsuch’s Ruling
I posted this in Epstein’s post, but the thread is dead. So far, the assertion is that Gorsuch used the definition of “sex” in a manner that wasn’t appropriate. It occurred to me (and thank you, @saintaugustine — I wouldn’t have gotten here without you) is that he changed how “discriminate” is used.
[The reason why Gorsuch’s premises] are off is because it assumes that there is, in the nature of one’s sex, absolutely nothing that differentiates it from its opposite.
Gorsuch’s opinion is absolutely based on a wrongful (biologically) premise that there is no distinction between male and female.
He takes the CRA, that says you can’t discriminate, and effectively states that discrimination means telling the difference between two things.
Now that is a legitimate definition of the word “discriminate” but it should be quite clear that that was never the intended use of the word in the original law.
There is a reality that he is forcing the population to accept that is a bald faced lie: that there is absolutely no difference between a man and a woman.
It is not true. A man is different than a woman. A homosexual marriage is completely different from a heterosexual marriage. Gay couplings (sex) are fundamentally different from heterosexual couplings.
Nowhere in the law do we refuse to acknowledge that men and women are different. But Gorsuch’s ruling forces us to act as if they are not differentiated in the least.
That’s my case in a nutshell.
Published in General
No one is defending the CRA. What we are on about is the extension of it to the point the average citizen has no free association in organized relationships left.
The court had the ability to rule it unconstitutional. Instead of defending the employer’s rights to free association, Gorsuch’s ruling broadened the CRA protections without legislative action.
I agree with your summary. But it’s fairly obvious from the last 56 years that the statute is ambiguous to the extent that it protects those that Gorsuch claims it protects. There has been legislation pending in Congress for over 20 years to extend the reach of Title VII. During the Obama Administration, an Executive Order was issued extending protections to government workers that would have been wholly unnecessary had this interpretation of Title VII been evident. Court decisions really cannot be characterized as resolving the matter in either direction. Now, all of a sudden, Gorsuch has devined the Rosetta Stone of Title VII out of a sea of ambiguity evidenced by what I’ve noted above..
I have no doubt that he is playing some kind of textualist long game. For what purpose, I’m not sure. And we’ll see how the short game works out when the cases that his interpretation spawn start arriving.
My non-lawyerly opinion is the CRA is a disaster. It is a violation of, as it turns out, our natural right to discriminate — aka, freedom of association. I hate the Court and the Legislature for getting us to this absurd point.
Yes, that seems right.
But this seems wrong. I thought he was saying that discrimination against a person doing homosexual acts is discrimination against someone who would not be discriminated against if he or she were of a different sex but doing the same acts otherwise.
I.e., Jim and Jill above.
What about the risk of hiring someone who may not be able to perform their job adequately because of demands on their time by small children? That has nothing to do with who the woman “sleeps with.”
Is Phillips perhaps also an example of the fallacy employed by Gorsuch–the fallacy of presuming that the essential consideration of a decision is the basis of the decision?
Isn’t at least part of the problem, the difference between the terms “sex” and “gender?” The last I heard, “sex” is supposed to be the immutable physical characteristic, while “gender” is the one that can have dozens or even hundreds of “meanings.”
Although even the left doesn’t seem to be consistent on that. (I know! You could have knocked ME over with a feather!)
I thought that this was interesting insofar as it applies to this case. And this is not a product of my own expertise, but a product of others that I follow.
It goes to the precedent that Justice Gorsuch chose to cite and that which he omitted. This is the majority decision in U.S. Steelworkers v, Weber authored by Justice Brennan. It’s a “race” issue (affirmative action) which is exactly on the same plane as sex. It comes from the left, but it’s still precedent. [My italics below]
An originalist textualist does not consider that the intent of the legislature creates the meaning of the text.
But it still matters. At a minimum, it’s a clue to the meaning of the text. (Michael Paulsen explains.)
In originalist textualism, what determines the meaning is what a reasonable and informed reader at the time would think it means. (Gary Lawson explains.)
So legislative intent may sometimes be a bit more than just a clue to the meaning of the text–if the point of the bill is such-and-such and if everyone at the time knew it to be such-and-such!
Scalia was very skeptical about legislative history, but I’m not so sure that his views extended to discerning intent as general matter.
My point more goes to Gorsuch’ selective use of precedent, not whether I necessarily agree with that precedent.
Indeed.
What’s this with “indeed,” are you trying to be Teal’c?
https://www.youtube.com/watch?v=tm8FwzHUGCs
I have never been sure how to spell or pronounce that guy’s name.
His “Indeed” is inspiring.
Glad I could help. :-)
Sounds reasonable to me, but I’m not in charge and I didn’t write the law.
However, there’s perspective to consider. Is being gay a state of being? An emotional state? Biological? An action? A series of actions? Is it the same for a man and a woman? Could it be restated by describing the actions involved?
But the court doesn’t think it’s unconstitutional. None of the originalist judges have ever ruled that way. So we have to talk about the CRA otherwise we’re just talking about unfavorable outcomes, and I agree with you on that.
That’s where I’m at too.
It seems that most courts these days, including the Supreme one, don’t think freedom of association extends to any kind of commerce, however broadly interpreted.
I’d be very surprised if it ended at commerce. We are not free to NOT associate in our religious institutions, for example. Or we will soon be required to associate with every deviant and agitator because — “civil rights!”
It also has nothing to do with women. Unless it is only wrong when women do it.
I don’t think sex vs gender enters into the decision.
Selective use of precedent, isn’t that all cases? I wouldn’t have selected this one either because I disagree with the bit about the spirit of the law and relying on intent.
I think it is.
It wasn’t that they were women. The sex wasn’t the primary consideration.
It’s that women with preschool children are expensive to employ because they are unreliable as a group.
Men with preschool children are not unreliable.
So it isn’t that they are women. It’s that that particular group has characteristics that affected the employer’s calculations.
There’s a distinction that is hard to communicate.
I absolutely think that was wrongly decided.
I’ve referred to this book review before, but it’s worth quoting in this context. Emphasis added:
What if he’s right? Worse, what if Gorsuch is correctly, conservatively, interpreting the law as written? In that case, doesn’t it inexorably follow that conservatism, or originalism, or textualism—or whatever—not only has not but cannot conserve the Constitution?
What then?
There’s no going back. Can you imagine any politician/legislator being against the CRA today? We’re already racists for disagreeing with the Left/Marxists. Being against the CRA would be grounds for annihilation.
There’s nowhere to run, nowhere to hide. If the FUSA falls apart there may be a Constitutional rump state somewhere, but I can’t see the geography of it at this point and the process would be very bloody. A Constitutional secession from a nominally intact USA looks unworkable.
The question then becomes: Can anything be preserved? And how can it be done?
It’s not that they are men, it’s that teenage males think with their….. libidos.
Of course that is on the basis of sex even if there is some truth about that particular group that affects the employer’s calculation and being a man isn’t the primary reason.
What’s more, there was never a narrow application of the CRA as far as I can tell. You can call Philips a fallacy or say it was not the intent, and I might even agree to a large extent, but virtually no one has agreed with that legislatively or judicially. This is why I say that the law is bad, not Gorsuch’s ruling.
We can produce generalizations based on sex all day and many would even have some truth to them. Yet discrimination for these traits or actions as a supposed characteristic of a particular sex is what they are. Should employers be free to act on these truths as they see them? Yes, I think so. The CRA says otherwise, and the CRA is almost universally accepted legitimate law.
Suppose that’s true. But @westernchauvinist was right:
Here are three possibilities laid out. Does anyone see any others?
The author predicts a combination of scenarios two and three. I’d modify # 2 to read “The next Democrat is inaugurated President” rather than “Trump loses.”
For the CRA to apply, must there be a generalization about every member of a sex?