Contributor Post Created with Sketch. The Gorsuch Legal Alchemy

 

The United States Supreme Court has sent shockwaves through much of the nation with its decision in Bostock v. Clayton County. By a six-to-three vote, the Court held in no uncertain terms that the prohibition against sex discrimination in Title VII of the Civil Rights Act of 1964 makes it illegal to fire a person “simply” due to their sexual orientation or gender identity.

The basic statutory text of Title VII provides that it is “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”

Writing for the majority, Justice Neil Gorsuch argued that his textualist approach compelled the novel conclusion that the term “sex” includes not only biological sex, but also sexual orientation and gender identity. “In the context of an unambiguous statutory text,” he wrote, “whether or not a specific application was anticipated by Congress is irrelevant.” His argument is misguided. It holds that the meaning of the term “sex” necessarily bears no relation whatsoever to the intentions of the Congress that passed the legislation or the public who endorsed it.

The dissent of Justice Samuel Alito rightly branded Gorsuch’s opinion as pure “legislation.” Congress, he pointed out, has repeatedly refused to pass legislation to ban discrimination on the basis of sexual orientation or gender identity. It is wholly implausible, then, that a sound textualist reading of the highly contentious term “sex” in the Civil Rights Act could conclude that both categories were covered by the statutory language, especially as these modern categories were well beyond Congress’ intent in 1964. Under a textualist approach, it is the original public meaning of a disputed term that carries the weight of the day—and volumes of evidence demonstrate that biological sex alone was the target of Title VII.

Gorsuch’s explicit use of textualism represents a quiet revolution in statutory construction. The 2017 decision in G. G. v. Gloucester County School Board involved an effort by the Office of Civil Rights in the Department of Education to require all high schools to treat gender identity as a covered form of discrimination under Title IX of the Civil Rights Act, which forbids educational programs receiving federal financial assistance from subjecting any person to discrimination on the basis of sex.

The Fourth Circuit upheld that decision by taking the then-fashionable view that the Supreme Court’s 1997 case of Auer v. Robbins required courts to give extreme deference to a federal agency’s interpretation of its own regulation. Ultimately, that court found that there were manifold ambiguities in the term “sex,” and accordingly supported the OCR’s determination that a school “generally must treat transgender students consistent with their gender identity.” The court mentioned intersex persons, those born with X-X-Y chromosomes, and those who lost external genitalia through accident to defend its conclusion. Thus, the Fourth Circuit used low probability events to recast the traditional binary definition of sex.

As most recently demonstrated in Kisor v. Wilkie (2019), Justice Gorsuch has long been a fierce opponent of Auer deference on the simple and powerful ground that courts should not allow an administrative agency the power to rewrite laws when the agency’s “interpretation doesn’t represent the best and fairest reading.” How ironic it is that Gorsuch’s textualist approach perpetuates, through different means, the same error in Bostock by treating his improbable rendition of the 1964 Act as its best and fairest reading.

The first error in the Gorsuch approach lies in his failure to identify a case that everyone agrees involves illegal discrimination on the basis of either sexual orientation or gender identity and violates Title VII. That situation would arise if either men or women, but not both, were excluded from employment because of either sexual orientation or gender identity—whether or not either of these categories was known in 1964.

This view should be uncontroversial because it applies traditional notions banning rules that apply to one sex but not the other to these modern cases. Justice Gorsuch seeks to do just this by looking at cases that he thinks bolster his view. But none of them achieve that goal.

Justice Gorsuch first points to Phillips v. Martin Marietta Corp. (1971), a short per curiam opinion in which the Supreme Court held that an employer violated Title VII when it refused to accept job applications “from women with pre-school-age children.” The obvious source of discrimination was that the employer would accept such applications from men with pre-school-age children. Title VII created a statutory exception to its basic rule prohibiting discrimination on the basis of sex, which allowed for sex-based discrimination (but not race-based discrimination) where the former was regarded as a “bona fide occupational qualification” (BFOQ).

In 1971, the Court remanded to the lower court to see whether or not having a special rule for women with pre-school-age children fell into that exception. This shows that Phillips was regarded as a garden variety case of sex-discrimination. Admittedly, the BFOQ claim was uncertain in 1971, but within years, as Justice Alito noted, the BFOQ was read “very narrowly” in Dothard v. Rawlinson (1977).

The same analysis also applies to Justice Gorsuch’s reliance on Oncale v. Sundowner Offshore Services (1998), which also involved a conventional case where prohibitions were placed on one sex but not the other. There the Court unanimously held that sexual harassment claims under Title VII included cases of same-sex harassment. Oncale involved a man who was sexually harassed by another man. The case clearly falls under Title VII if the assailant never chose to harass women. But if he were a person who harassed both men and women to the same degree, then there is no discrimination because of sex. But even if Title VII does not apply, the state law of assault or intentional infliction of emotional distress would cover both cases, because both turn on some illicit threat or use of force, in which any element of discrimination is wholly irrelevant.

Justice Gorsuch offers a highly novel proposition in connecting his mistaken readings of Phillips and Oncale to Bostock. “An employer who fires an individual for being homosexual or transgender,” he writes, “fires that person for traits or actions it would not have questioned in members of a different sex.” On his view, if it is fine for men to choose women as partners, then it should be fine for women to choose other women as partners as well.

In response, the employer in Bostock argued that there was no sex discrimination here because it imposed the same restrictions on men as it did on women—it would not hire either homosexuals or transgender people of either sex. That should in fact be a conclusive answer to Justice Gorsuch’s exotic claim that Bostock follows in the footsteps of Phillips and Oncale: A sex discrimination case could be made out if those prohibitions based on gender identity or sexual orientation applied either to men or women, but not both.

Justice Gorsuch offers the example where a man is fired for being insufficiently masculine and a woman is fired for being insufficiently feminine: “in both cases,” he writes, “the employer fires an individual in part because of sex. Instead of avoiding Title VII exposure, this employer doubles it.” That would be true if men could be fired for being insufficiently masculine or women for being insufficiently feminine. But once the same rule is applied to people of both sexes, the element of discrimination drops out of the case.

Justice Gorsuch’s answer to this question is wholly obscure. He starts with this premise: “In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee.” At this point, what drives the analysis is not the initial X-Y, X-X chromosomal difference, it is that the 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” (my emphasis)—an odd circumlocution given that there are only two sexes. But these fancy moves do not explain why the term “sex” should not be given its ordinary understanding that is closely tethered to proof of discrimination in the treatment of the two sexes, rather than differences of two people of the same sex.

To make his case, Gorsuch wanders off into an extended disquisition of “but for causation” from tort law to say that if two or more actions combined to cause a particular injury, then each actor may be held fully responsible for the injury. But he gets the tort law wrong. The very notion of “but for” causation, as I argued long ago, is hopelessly overbroad. The “but for” cause must, under the conventional legal approach, also be a substantial factor in bringing about the loss.

Gorsuch gives an example of one car running a red light and the other failing to signal, which results in an accident that would not have occurred if either had obeyed the law. But that hypothetical is a case of joint causation because both drivers are in violation of the rules of the road. No one would say that the plaintiff who complied with the rules of the road was responsible for the loss because “but for” his presence on the road the accident never would have happened.

At this point, it becomes otiose to say that the sex of every person who is the victim of some employment action makes that element a “but for” cause of the overall harm, so that on purely textual grounds the dismissal was “because of” or “on account of” sex. Sex is just a background condition of no causal significance once the element of discrimination between the sexes drops out of the equation.

Nor can this so-called textual result be justified on the supposed ground that “a rule that appears evenhanded at the group level can prove discriminatory at the level of individuals,” as Gorsuch claims. For this proposition, Gorsuch invoked Los Angeles Dept. of Water and Power v. Manhart (1978), in which Justice John Paul Stevens held that there was sex discrimination in the-then common practice of requiring larger pension fund contributions from women than from men for the same set of annual benefits—a practice which was based on the actuarially correct grounds that women, as a whole, live longer than men.

Manhart made the common fallacy that since some women had shorter lifespans than some men, this differentiation based on aggregates was impermissible. On that view, the only way to avoid liability was to give what amounted to an inefficient cross subsidy to women. Curiously, Justice Stevens noted that Title VII would not be violated if the employer instead gave employees of both sexes the same amount of cash which they could then use to purchase insurance within the open market. Of course, at that point the standard insurance risk of adverse selection would mean that both men and women would have to pay more for any given coverage than they would under the efficient practices in use everywhere before they were invalidated under Manhart.

Clearly, there is no “evenhandedness between groups” by forcing cross-subsidies in insurance coverage. It is also clear that Manhart has absolutely nothing to do with Bostock’s strained definition of sex. The one case is about sex discrimination in financial markets under conditions of uncertainty, and the other is about the correct meaning of the term “sex.”

In all, the lesson to learn from this episode is that even the deepest commitment to textualism cannot insulate the most eminent judges who work within that tradition from major blunders.

© 2020 by the Board of Trustees of Leland Stanford Junior University.

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  1. Saint Augustine Member

    Richard Epstein: In all, the lesson to learn from this episode is that even the deepest commitment to textualism cannot insulate the most eminent judges who work within that tradition from major blunders.

    Excellent.

    Thank you.

    • #1
    • June 22, 2020, at 3:45 PM PDT
    • 4 likes
  2. Saint Augustine Member

    I have not read the case, so anyone should feel very free to correct me if you think I’m not getting Gorsuch quite right.

    It looks like he’s thinking along these lines:

    Jim is having sex with a woman on the weekends. The boss doesn’t care. Jill is having sex with a woman on the weekends, and the boss fires her for it. The only relevant difference is that Jim is male, and Jill is female. Therefore the boss discriminated on the basis of sex.

    This looks to me like one of those fallacies that doesn’t get a name in the logic textbooks, other than the generic non sequitur name, for “It does not follow.”

    This is the fallacy of confusing an essential consideration of a decision with the basis of the decision.

    Here is an argument using the same pattern of reasoning:

    Al punches people at work, and the cops don’t care. Bob punches people at work, and the cops arrest him for it. The only relevant difference is that Al is a professional boxer, and Bob is a kindergarden teacher. So Bob was arrested for being a kindergarten teacher.

    • #2
    • June 22, 2020, at 3:56 PM PDT
    • 5 likes
  3. Hoyacon Member

    This is a student speaking to a master, but I didn’t find the prose in this particularly easy to follow.

    One overlooked point–Justice Gorsuch’ reasoning only “works” if one concedes that a male “transitioning” in dress to a female remains a male. That is in direct contrast to much of the ideology we hear today. Think about it. 

    • #3
    • June 22, 2020, at 5:05 PM PDT
    • 4 likes
  4. Saint Augustine Member

    Hoyacon (View Comment):
    One overlooked point–Justice Gorsuch’ reasoning only “works” if one concedes that a male “transitioning” in dress to a female remains a male. That is in direct contrast to much of the ideology we hear today. Think about it. 

    Someone covered that topic at NRO. Probably Ed Whelan. Probably on the Bench Memos blog.

    Fun insight.

    • #4
    • June 22, 2020, at 5:29 PM PDT
    • 1 like
  5. Stina Member

    Saint Augustine (View Comment):

    This looks to me like one of those fallacies that doesn’t get a name in the logic textbooks, other than the generic non sequitur name, for “It does not follow.”

    This is the fallacy of confusing an essential consideration of a decision with the basis of the decision.

    It’s not a fallacy if you’ve rejected some foundational truth.

    There is no foundational truth in modern American culture in which we distinguish between a man having sex with a woman and a woman having sex with a woman.

    We rejected that… at least the courts did.

    You see it as absurd. I see it as absurd. But the legal logic (Almighty Reason) does not see a distinction between the two.

    I don’t think we’re coming back from this. We are fully and completely enslaved to Reason and there is no protection from the constitution for innocents in the face of barely legal mob justice.

    We are done.

    • #5
    • June 22, 2020, at 8:19 PM PDT
    • 2 likes
  6. HeavyWater Coolidge

    Stina (View Comment):

    Saint Augustine (View Comment):

    This looks to me like one of those fallacies that doesn’t get a name in the logic textbooks, other than the generic non sequitur name, for “It does not follow.”

    This is the fallacy of confusing an essential consideration of a decision with the basis of the decision.

    It’s not a fallacy if you’ve rejected some foundational truth.

    There is no foundational truth in modern American culture in which we distinguish between a man having sex with a woman and a woman having sex with a woman.

    We rejected that… at least the courts did.

    You see it as absurd. I see it as absurd. But the legal logic (Almighty Reason) does not see a distinction between the two.

    I don’t think we’re coming back from this. We are fully and completely enslaved to Reason and there is no protection from the constitution for innocents in the face of barely legal mob justice.

    I suppose Congress does have the authority to modify the Civil Rights Act of 1964 so as to clarify that they intend for anti-discrimination law to apply to sex but not sexual orientation (although given Gorsuch’s contortions, I wonder how the legislation would need to be worded). But the votes aren’t there. So, essentially anti-discrimination law has been updated by the courts, not the legislative branch.

    • #6
    • June 23, 2020, at 2:26 AM PDT
    • 1 like
    • This comment has been edited.
  7. Stina Member

    HeavyWater (View Comment):
    But the votes aren’t there. So, essentially anti-discrimination law has been updated by the courts, not the legislative branch.

    Or how about the burden away from traditional understanding of sex be on those trying to modernize and not those wanting it to stay what it is?

    Stop using the courts to run roughshod over a populace that would remove its congress if they voted to make it more liberal?

    • #7
    • June 23, 2020, at 4:27 AM PDT
    • 2 likes
  8. HeavyWater Coolidge

    Stina (View Comment):

    HeavyWater (View Comment):
    But the votes aren’t there. So, essentially anti-discrimination law has been updated by the courts, not the legislative branch.

    Or how about the burden away from traditional understanding of sex be on those trying to modernize and not those wanting it to stay what it is?

    Stop using the courts to run roughshod over a populace that would remove its congress if they voted to make it more liberal?

    That’s what the court did. Congress has not changed anti-discrimination law but now that it has been changed by the courts, the votes do not exist to reverse the decision because the Congress is divided with the Democrats in control of the House and the GOP in control of the Senate.

    If the Democrats win the presidency and the Senate this November, they could pass anti-discrimination legislation that includes protections based on sexual orientation and transgenderism. But why would they bother to do this if the court has already done this?

    • #8
    • June 23, 2020, at 5:33 AM PDT
    • Like
  9. Miffed White Male Member
    Miffed White MaleJoined in the first year of Ricochet Ricochet Charter Member

    HeavyWater (View Comment):

    Stina (View Comment):

    HeavyWater (View Comment):
    But the votes aren’t there. So, essentially anti-discrimination law has been updated by the courts, not the legislative branch.

    Or how about the burden away from traditional understanding of sex be on those trying to modernize and not those wanting it to stay what it is?

    Stop using the courts to run roughshod over a populace that would remove its congress if they voted to make it more liberal?

    That’s what the court did. Congress has not changed anti-discrimination law but now that it has been changed by the courts, the votes do not exist to reverse the decision because the Congress is divided with the Democrats in control of the House and the GOP in control of the Senate.

    If the Democrats win the presidency and the Senate this November, they could pass anti-discrimination legislation that includes protections based on sexual orientation and transgenderism. But why would they bother to do this if the court has already done this?

    One of the dissents point out that Congress had on several occasions considered legislation to do just that, and it failed to pass. Why would Congress need to consider making such a change if existing legislation already covered it?

    • #9
    • June 23, 2020, at 5:56 AM PDT
    • 1 like
  10. Stina Member

    HeavyWater (View Comment):

    Stina (View Comment):

    HeavyWater (View Comment):
    But the votes aren’t there. So, essentially anti-discrimination law has been updated by the courts, not the legislative branch.

    Or how about the burden away from traditional understanding of sex be on those trying to modernize and not those wanting it to stay what it is?

    Stop using the courts to run roughshod over a populace that would remove its congress if they voted to make it more liberal?

    That’s what the court did. Congress has not changed anti-discrimination law but now that it has been changed by the courts, the votes do not exist to reverse the decision because the Congress is divided with the Democrats in control of the House and the GOP in control of the Senate.

    If the Democrats win the presidency and the Senate this November, they could pass anti-discrimination legislation that includes protections based on sexual orientation and transgenderism. But why would they bother to do this if the court has already done this?

    If you think this was ok, you are a part of the problem.

    • #10
    • June 23, 2020, at 6:11 AM PDT
    • 1 like
  11. James Gawron Thatcher
    James GawronJoined in the first year of Ricochet Ricochet Charter Member

    Richard,

    How simple for Gorsuch. The 1964 Civil Rights Act from the textualist/originalist point of view can in no way be construed to include the asexual neo-genderisms now in vogue. If that’s what you want, go back to the legislature and pass a bill that amends the 1964 Civil Rights Act the way you want it.

    Legal Alchemy indeed. He has turned constitutional gold into straw.

    Regards,

    Jim

    • #11
    • June 23, 2020, at 7:55 AM PDT
    • 3 likes
  12. HeavyWater Coolidge

    Stina (View Comment):

    HeavyWater (View Comment):

    Stina (View Comment):

    HeavyWater (View Comment):
    But the votes aren’t there. So, essentially anti-discrimination law has been updated by the courts, not the legislative branch.

    Or how about the burden away from traditional understanding of sex be on those trying to modernize and not those wanting it to stay what it is?

    Stop using the courts to run roughshod over a populace that would remove its congress if they voted to make it more liberal?

    That’s what the court did. Congress has not changed anti-discrimination law but now that it has been changed by the courts, the votes do not exist to reverse the decision because the Congress is divided with the Democrats in control of the House and the GOP in control of the Senate.

    If the Democrats win the presidency and the Senate this November, they could pass anti-discrimination legislation that includes protections based on sexual orientation and transgenderism. But why would they bother to do this if the court has already done this?

    If you think this was ok, you are a part of the problem.

    I think Gorsuch and Roberts were wrong. It’s just that the Supreme Court decision was one of statutory interpretation, not US Constitutional interpretation. So, Congress could, in theory, pass legislation to reverse the impact of the Supreme Court decision.

    • #12
    • June 23, 2020, at 8:12 AM PDT
    • 1 like
  13. SkipSul Coolidge
    SkipSulJoined in the first year of Ricochet Ricochet Charter Member

    Saint Augustine (View Comment):

    I have not read the case, so anyone should feel very free to correct me if you think I’m not getting Gorsuch quite right.

    It looks like he’s thinking along these lines:

    Jim is having sex with a woman on the weekends. The boss doesn’t care. Jill is having sex with a woman on the weekends, and the boss fires her for it. The only relevant difference is that Jim is male, and Jill is female. Therefore the boss discriminated on the basis of sex.

    This looks to me like one of those fallacies that doesn’t get a name in the logic textbooks, other than the generic non sequitur name, for “It does not follow.”

    This is the fallacy of confusing an essential consideration of a decision with the basis of the decision.

    Here is an argument using the same pattern of reasoning:

    Al punches people at work, and the cops don’t care. Bob punches people at work, and the cops arrest him for it. The only relevant difference is that Al is a professional boxer, and Bob is a kindergarden teacher. So Bob was arrested for being a kindergarten teacher.

    Quoting for extra emphasis – you nailed it here.

    • #13
    • June 23, 2020, at 10:39 AM PDT
    • 1 like
  14. Ed G. Member
    Ed G.Joined in the first year of Ricochet Ricochet Charter Member

    Richard Epstein:

    Writing for the majority, Justice Neil Gorsuch argued that his textualist approach compelled the novel conclusion that the term “sex” includes not only biological sex, but also sexual orientation and gender identity. “In the context of an unambiguous statutory text,” he wrote, “whether or not a specific application was anticipated by Congress is irrelevant.” His argument is misguided. It holds that the meaning of the term “sex” necessarily bears no relation whatsoever to the intentions of the Congress that passed the legislation or the public who endorsed it.

    ….. Under a textualist approach, it is the original public meaning of a disputed term that carries the weight of the day—and volumes of evidence demonstrate that biological sex alone was the target of Title VII.

    I still haven’t seen where Gorsuch concluded that “the term “sex” includes not only biological sex, but also sexual orientation and gender identity.” Nor have I seen where he held “that the meaning of the term “sex” necessarily bears no relation whatsoever to the intentions of the Congress that passed the legislation or the public who endorsed it.” Rather, I take it that Gorsuch fully accepts the 1964 understanding of the term “sex”. Gorsuch’s reasoning applies even assuming that, maybe only if we assume that.

    The problem isn’t with his reasoning or the claimed reliance on a strained definition of sex, it’s with the law itself. Conservatives have always complained about this law, arguing that at best it was a needed temporary and limited corrective, and at worst it was an unconstitutional infringement on association, speech, and religion. Gorsuch is correct that the language in the law is broad; he’s also correct that it’s irrelevant if a particular application was unintended – as conservatives that is one reason we oppose broad federal laws like this. Why it it suddenly sacrosanct? Why are we suddenly looking at intentions when we have eschewed that in the past in favor of text and meaning?

    • #14
    • June 24, 2020, at 6:21 AM PDT
    • 1 like
  15. Stina Member

    Ed G. (View Comment):
    Why it it suddenly sacrosanct? Why are we suddenly looking at intentions when we have eschewed that in the past in favor of text and meaning?

    It isn’t sacrosanct. He obliterated whatever last vestiges of freedom that existed under the law by fiat.

    If it actually gave us the ammo to finally destroy it, fine. But it completely obliterated what was left of free association. And I don’t think its enough to make it collapse.

    • #15
    • June 24, 2020, at 6:45 AM PDT
    • 1 like
  16. Ed G. Member
    Ed G.Joined in the first year of Ricochet Ricochet Charter Member

    Of the two reference cases the OP Gorsuch highlighted, both quite nicely show how Gorsuch is correct. In the first case, Phillips v. Martin Marietta Corp. (1971), the OP claims that “Phillips was regarded as a garden variety case of sex-discrimination.” Except that in that case the employer wasn’t discriminating based on sex directly (they presumably took applications from women, just not those women), the employer was discriminating based on parent status. They were not discriminating against Women broadly (as seems to be what the OP and other Gorsuch critics are requiring). The OP then goes on to say that Justice Gorsuch is offering a highly novel proposition, except that the Phillips case is also dependent on Gorsuch’s proposition! Let’s try it, only substituting in pre-school-aged kids.

    An employer who doesn’t hire a woman with pre-school-aged children doesn’t hire that person for traits or actions it would not have questioned in members of a different sex. Status: true!

    An employer who fires a man for sexual intercourse with other men fires that person for traits or actions it would not have questioned in members of a different sex. Status: true!

    In both of these cases the action is based not directly on sex, but still qualifies as “on the basis of”, and qualifies quite regardless of the definition of sex used. Either both formulations work or neither works, in which case only narrow cases along the lines of “I don’t hire men period” would ever qualify for remedy under the statute.

    • #16
    • June 24, 2020, at 6:56 AM PDT
    • 1 like
  17. Ed G. Member
    Ed G.Joined in the first year of Ricochet Ricochet Charter Member

    Stina (View Comment):

    Ed G. (View Comment):
    Why it it suddenly sacrosanct? Why are we suddenly looking at intentions when we have eschewed that in the past in favor of text and meaning?

    It isn’t sacrosanct. He obliterated whatever last vestiges of freedom that existed under the law by fiat.

    If it actually gave us the ammo to finally destroy it, fine. But it completely obliterated what was left of free association. And I don’t think its enough to make it collapse.

    I don’t see how he did that. I doubt the last vestiges of freedom are obliterated. Even if they are, though, they are obliterated by the Congress and president who passed and signed the law which was always problematic.

    If Gorsuch had ruled that this wasn’t a violation of the statute would have been fiat (because he’s right that the statute was so broad). At least Kavanaugh and the dissent can rest easy that they were pushing the matter back to Congress for clarification rather than issuing a counter fiat.

    It’s bad for freedom of association you say? I agree! I’ve agreed with that for a few decades since I joined the professional world and had some experience in HR. Gorsuch didn’t make this law problematic – the law was problematic all along.

    • #17
    • June 24, 2020, at 7:06 AM PDT
    • 1 like
  18. Ed G. Member
    Ed G.Joined in the first year of Ricochet Ricochet Charter Member

    Hoyacon (View Comment):

    This is a student speaking to a master, but I didn’t find the prose in this particularly easy to follow.

    One overlooked point–Justice Gorsuch’ reasoning only “works” if one concedes that a male “transitioning” in dress to a female remains a male. That is in direct contrast to much of the ideology we hear today. Think about it.

    If one were to accept that strain of modern gender theory (of which there are a few and all of them contradictory to the others, as far as I can tell) then presumably one wouldn’t fire this person for doing normal woman things and there wouldn’t be a court case.

    • #18
    • June 24, 2020, at 7:11 AM PDT
    • 1 like
  19. Ed G. Member
    Ed G.Joined in the first year of Ricochet Ricochet Charter Member

    Saint Augustine (View Comment):

    I have not read the case, so anyone should feel very free to correct me if you think I’m not getting Gorsuch quite right.

    It looks like he’s thinking along these lines:

    Jim is having sex with a woman on the weekends. The boss doesn’t care. Jill is having sex with a woman on the weekends, and the boss fires her for it. The only relevant difference is that Jim is male, and Jill is female. Therefore the boss discriminated on the basis of sex.

    This looks to me like one of those fallacies that doesn’t get a name in the logic textbooks, other than the generic non sequitur name, for “It does not follow.”

    This is the fallacy of confusing an essential consideration of a decision with the basis of the decision.

    Here is an argument using the same pattern of reasoning:

    Al punches people at work, and the cops don’t care. Bob punches people at work, and the cops arrest him for it. The only relevant difference is that Al is a professional boxer, and Bob is a kindergarden teacher. So Bob was arrested for being a kindergarten teacher.

    I don’t think this works. In the first example, sex is the essential consideration. It’s not intercourse per se. In the second example, illegality is the essential consideration (I assume, since these are just hypotheticals). If Al went around punching the arena staff or the gym janitor (all at work too) then he’d be arrested too. If Bob punched an intruder at work to prevent a mass shooting, it’s unlikely that Bob would be arrested.

    Let’s review the Philips case again from the OP. No applications were accepted from women with preschool aged children, but men in the same condition were accepted. The essential condition here is women with preschool aged children. Not women in a broad sense, only some women; so teh discrimination wasn’t against” women, plain and simple” but against a subset. I’m sure the employer had a reasonable reason for doing so (in fact I know the reason is reasonable and not hateful). SO couldn’t the employer in this case say: I’m not discriminating against women, I’m discriminating against people who are highly likely to to miss a lot of work and who likely can’t come in early and stay late. That this is women is incidental. Would that fly? Well, it didn’t fly.

    So “traits or actions” that are unquestioned in one sex can be questioned in the other sex. That is “on the basis of sex” according to that Philips case.

    • #19
    • June 24, 2020, at 7:26 AM PDT
    • 1 like
  20. Hoyacon Member

    Ed G. (View Comment):

    Hoyacon (View Comment):

    This is a student speaking to a master, but I didn’t find the prose in this particularly easy to follow.

    One overlooked point–Justice Gorsuch’ reasoning only “works” if one concedes that a male “transitioning” in dress to a female remains a male. That is in direct contrast to much of the ideology we hear today. Think about it.

    If one were to accept that strain of modern gender theory (of which there are a few and all of them contradictory to the others, as far as I can tell) then presumably one wouldn’t fire this person for doing normal woman things and there wouldn’t be a court case.

    I don’t fully understand, but, if you’re agreeing with me, we’re good!

    • #20
    • June 24, 2020, at 7:37 AM PDT
    • 1 like
    • This comment has been edited.
  21. Stina Member

    Ed G. (View Comment):
    An employer who fires a man for sexual intercourse with other men fires that person for traits or actions it would not have questioned in members of a different sex. Status: true!

    Except it occurs to me that the act is fundamentally different between the two sets…

    • #21
    • June 24, 2020, at 8:29 AM PDT
    • 1 like
  22. Ed G. Member
    Ed G.Joined in the first year of Ricochet Ricochet Charter Member

    Stina (View Comment):

    Ed G. (View Comment):
    An employer who fires a man for sexual intercourse with other men fires that person for traits or actions it would not have questioned in members of a different sex. Status: true!

    Except it occurs to me that the act is fundamentally different between the two sets…

    Different how? Because of the sex of one of the partners?

    • #22
    • June 24, 2020, at 8:48 AM PDT
    • 1 like
  23. Hoyacon Member

    The best deconstruction of the opinion that I’ve read.

    • #23
    • June 24, 2020, at 8:59 AM PDT
    • 1 like
  24. Stina Member

    Ed G. (View Comment):

    Stina (View Comment):

    Ed G. (View Comment):
    An employer who fires a man for sexual intercourse with other men fires that person for traits or actions it would not have questioned in members of a different sex. Status: true!

    Except it occurs to me that the act is fundamentally different between the two sets…

    Different how? Because of the sex of one of the partners?

    The act itself is completely different. Let’s just say, if I knew a man was doing to his wife what a gay man does to his partner, I’d discriminate (if it was legal). The acts are not the same.

    • #24
    • June 24, 2020, at 9:14 AM PDT
    • 1 like
  25. Ed G. Member
    Ed G.Joined in the first year of Ricochet Ricochet Charter Member

    Hoyacon (View Comment):

    The best deconstruction of the opinion that I’ve read.

    It is heavy on the disdain. It is light on actual quotes from Gorsuch. Seems like evaluating Gorsuch’s actual words (as opposed to whatever interpretations the author provides) should be front and center.

    Like Epstein and the rest of the criticism I’ve read, it asserts that Gorsuch changed the meaning of something, but it never shows how or where. It also never grapples with the fact that Gorsuch’s reasoning works even if all definitions from 1964 are accepted!

    I’m beginning to form something of a conclusion that critics like Epstein and Ascik are failing to distinguish between unintended meanings versus unintended consequences. Indeed, much criticism I’ve read focuses very much on the consequences of Gorsuch’s decision and reasoning, followed by bluster about how that can’t be right leading to assertions that Gorsuch must’ve relied on changed definitions. Dwelling so much on the consequences of the reasoning or on the intentions of the legislators should give pause to otherwise conservative originalists/textualists. So far many seem to be ditching the aversion to intentions and consequences consideration in judicial decision making.

    The other conclusion I’m beginning to form is that prominent conservative legal writers are boxed in. The obvious way this circle gets squared is to reaffirm what conservative world has always thought and said about the civil rights act: it is flawed and has led to many adverse unintended (probably) consequences, even if some kind of major corrective was morally called for. The problem is that criticizing the civil rights act, criticizing the legal regime of discrimination law could get one cancelled nowadays. Seems obvious to me that this ruling is just one more adverse unintended consequence. I could be wrong – I’m not a legal expert or even a particulary bright guy. However, I still haven’t seen anyone show where Gorsuch’s reasoning relies on changed definitions which I don’t think it does. I’ve seen it asserted (with disdain and/or bluster), but not shown.

    • #25
    • June 24, 2020, at 9:57 AM PDT
    • Like
  26. Ed G. Member
    Ed G.Joined in the first year of Ricochet Ricochet Charter Member

    Stina (View Comment):

    Ed G. (View Comment):

    Stina (View Comment):

    Ed G. (View Comment):
    An employer who fires a man for sexual intercourse with other men fires that person for traits or actions it would not have questioned in members of a different sex. Status: true!

    Except it occurs to me that the act is fundamentally different between the two sets…

    Different how? Because of the sex of one of the partners?

    The act itself is completely different. Let’s just say, if I knew a man was doing to his wife what a gay man does to his partner, I’d discriminate (if it was legal). The acts are not the same.

    Which acts? Not to be gross or provocative, but I don’t think you’re correct. Kissing? If you fire a man for kissing a man but not for kissing a woman then firing the man/man is very much on the basis of sex (and not kissing) in the same way that you only fire parents with preschool aged children if they are women.

    • #26
    • June 24, 2020, at 10:07 AM PDT
    • 1 like
  27. Stina Member

    Ed G. (View Comment):
    Which acts? Not to be gross or provocative, but I don’t think you’re correct. Kissing? If you fire a man for kissing a man but not for kissing a woman then firing the man/man is very much on the basis of sex (and not kissing) in the same way that you only fire parents with preschool aged children if they are women.

    Sodomy. Why did you go to kissing? Sodomy is not the same as intercourse.

    • #27
    • June 24, 2020, at 10:12 AM PDT
    • 1 like
  28. Hoyacon Member

    Ed G. (View Comment):

    Hoyacon (View Comment):

    The best deconstruction of the opinion that I’ve read.

    It is heavy on the disdain. It is light on actual quotes from Gorsuch. Seems like evaluating Gorsuch’s actual words (as opposed to whatever interpretations the author provides) should be front and center.

    Part of the author’s point is that Gorsuch actual words are circumlocutions and that the “reasoning” is easily summarized. Where needed, he quotes Gorsuch, and bases his analysis at least in part on the single most important sentence in the opinion.

    Like Epstein and the rest of the criticism I’ve read, it asserts that Gorsuch changed the meaning of something, but it never shows how or where. It also never grapples with the fact that Gorsuch’s reasoning works even if all definitions from 1964 are accepted!

    This almost makes me think we’ve read two different articles.

    I’m beginning to form something of a conclusion that critics like Epstein and Ascik are failing to distinguish between unintended meanings versus unintended consequences. Indeed, much criticism I’ve read focuses very much on the consequences of Gorsuch’s decision and reasoning, followed by bluster about how that can’t be right leading to assertions that Gorsuch must’ve relied on changed definitions. Dwelling so much on the consequences of the reasoning or on the intentions of the legislators should give pause to otherwise conservative originalists/textualists. So far many seem to be ditching the aversion to intentions and consequences consideration in judicial decision making.

    The other conclusion I’m beginning to form is that prominent conservative legal writers are boxed in. The obvious way this circle gets squared is to reaffirm what conservative world has always thought and said about the civil rights act: it is flawed and has led to many adverse unintended (probably) consequences, even if some kind of major corrective was morally called for. The problem is that criticizing the civil rights act, criticizing the legal regime of discrimination law could get one cancelled nowadays. Seems obvious to me that this ruling is just one more adverse unintended consequence. I could be wrong – I’m not a legal expert or even a particulary bright guy. However, I still haven’t seen anyone show where Gorsuch’s reasoning relies on changed definitions which I don’t think it does. I’ve seen it asserted (with disdain and/or bluster), but not shown.

    If prominent conservative writers are boxed in, it may be because they realize that a jurist who really must be viewed as a conservative–and for whom most have quite a bit of respect– has found his way to this decision.

    When someone writes that textualism “tasks judges with discerning (only) what an ordinary English speaker familiar with the law’s usages would have understood the statutory text to mean at the time of its enactment,” and rules as Gorsuch did, it has to be baffling to those writers.

     

    • #28
    • June 24, 2020, at 10:25 AM PDT
    • 2 likes
  29. Ed G. Member
    Ed G.Joined in the first year of Ricochet Ricochet Charter Member

    Hoyacon (View Comment):

    Ed G. (View Comment):

    Hoyacon (View Comment):

    The best deconstruction of the opinion that I’ve read.

    It is heavy on the disdain. It is light on actual quotes from Gorsuch. Seems like evaluating Gorsuch’s actual words (as opposed to whatever interpretations the author provides) should be front and center.

    Part of the author’s point is that Gorsuch actual words are circumlocutions and that the “reasoning” is easily summarized. Where needed, he quotes Gorsuch, and bases his analysis at least in part on the single most important sentence in the opinion.

    I had to look up “circumlocution”. OK, I’ve looked it up: it doesn’t mean to change the existing definition of a word. Maybe I’m missing it, but which is the single most important sentence in the opinion? I thought it could be these:

    “[o]nly the written word is the law.” The “legal terms” here, Gorsuch says, have “plain and settled meanings.” What we have here is an “unambiguous statutory text.”

    • #29
    • June 24, 2020, at 10:37 AM PDT
    • Like
  30. Ed G. Member
    Ed G.Joined in the first year of Ricochet Ricochet Charter Member

    Hoyacon (View Comment):

    Like Epstein and the rest of the criticism I’ve read, it asserts that Gorsuch changed the meaning of something, but it never shows how or where. It also never grapples with the fact that Gorsuch’s reasoning works even if all definitions from 1964 are accepted!

    This almost makes me think we’ve read two different articles.

    I think most criticism I’ve seen muddies the water unnecessarily. Here’s some key language from Gorsuch:

    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 forbids.

    This is the key assumption. None of this relies on changing definitions from what they were in 1964. That is a rabbit hole. Also, discussing the large implications of the decision is a rabbit hole.

    I think there’s real things to argue about with Gorsuch’s basis above, but I haven’t seen it. I’ve seen arguing about rabbit holes so far.

    • #30
    • June 24, 2020, at 11:17 AM PDT
    • Like