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.

Published in Law
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  1. Ed G. Member
    Ed G.
    @EdG

    Saint Augustine (View Comment):

    Ed G. (View Comment):

    . . . Lets discuss Bostock and Philips instead. We don’t have to keep filling in blanks there.

    Ed G. (View Comment):

    You said you’re unfamiliar with the Philips case: I encourage you to read at least the summary ion this OP.

    Maybe someday. It’s doubtful I’d have the time; there are still thousands of pages of Augustine I haven’t even read.

    I’m talking about the logic of what I understand to be Gorsuch’s reasoning. That’s it. The logic is all I know at this time.

    If you don’t want to talk about that, best talk to someone else.

    I’m talking about the logic too. The actual opinion of Bostock is not long, a few pages. And the relevant description of Philips is both in the Bostock opinion and roughly laid out in the OP above. I’d rather talk about the actual scenarios than artificially constructed ones. Gorsuch’s reasoning is laid out in the opinion – his own words are surely better than mine for your understanding. 

    • #61
  2. Saint Augustine Member
    Saint Augustine
    @SaintAugustine

    Ed G. (View Comment):

    The problem with #34 is that you’re still not describing it properly. The profession was not any part of the pastor’s decision. . . .

    Yes, in the # 34 example the profession was part of the pastor’s decision.  That was in the premises of the argument; it’s why the pastor disapproved of Bob but not Al.  (But if you don’t see that, try the latest Al and Bob illustration in the previous comment!)

    • #62
  3. Saint Augustine Member
    Saint Augustine
    @SaintAugustine

    Ed G. (View Comment):

    Saint Augustine (View Comment):

    Moreover, you said it was not the same argument because there was an extra difference. That just means you disagreed with the premise about the “only relevant difference” in the second argument. But then–why can’t we disagree with the “only relevant difference” premise in the first argument? Isn’t that Stina’s point?

    You’ve lost me.

    Which first argument are you talking about? Jim and Jill? Either way, I don’t know.

    Yes, Jim and Jill.

    You objected to my use of the Al and Bob argument in comment # 2 because, you said, there is a difference of legality.

    In addition to giving you an argument in # 52 that avoids that objection, I also pointed out that your objection amounts to disagreeing with the “only relevant difference” premise in the initial Al and Bob argument.

    But if you can disagree with a premise, why can’t Stina and the rest of us?  Stina (#s 21, 24, and 27) was objecting to the premise in the Gorsuch line of thinking which was represented in the Jim and Jill argument by the “only relevant difference” premise.

    (But, again, if you think I’m not understanding Gorsuch correctly–great!  That would be a terrific objection–or at least a darned effective one.)

    • #63
  4. Saint Augustine Member
    Saint Augustine
    @SaintAugustine

    Ed G. (View Comment):

    I’m talking about the logic too. The actual opinion of Bostock is not long, a few pages. And the relevant description of Philips is both in the Bostock opinion and roughly laid out in the OP above. I’d rather talk about the actual scenarios than artificially constructed ones. Gorsuch’s reasoning is laid out in the opinion – his own words are surely better than mine for your understanding.

    I’m happy to take into consideration a recommendation that I should read some primary source Gorsuch material.

    But as far as this conversation is concerned, I fail to see the relevance–unless you’re going to tell me that you think I was misunderstanding Gorsuch in comment # 2.

    • #64
  5. Ed G. Member
    Ed G.
    @EdG

    Saint Augustine (View Comment):

    Ed G. (View Comment):

    Saint Augustine (View Comment):

    Or is your point that the second argument in # 2 did not have the same pattern of reasoning as the first argument in # 2?

    It did, but if you think it didn’t you are welcome to explain why you think so.

    Sex (intercourse) isn’t illegal as a baseline. Punching is. Bob was arrested for punching illegally, Al was not arrested because his punching was not illegal.

    Jim and Jill on the other hand, is a different pattern. In that case, there was discrimination on the basis of sex. In your second scenario you are simply incorrect that there was discrimination based on profession. There was discrimination based on legality.

    The pattern is the same:

    Person A and person B both do X.

    Person C makes decision Y with respect to B, but not with respect to A.

    The only relevant difference between A and B is Z.

    So the basis of decision Y was Z.

    In the case of Jill and Jim the conclusion is that there was discrimination on the basis of sex, but the conclusion depends on this argument pattern.

    I’ve given you three examples of arguments using the same pattern which are bad arguments.

    Even if you don’t like all three, one should be enough. That’s how logic works. I can even give you a fourth that goes in the opposite direction:

    Al punches people every day at work, and so does Bob. The local pastor thinks Bob’s workplace behavior is bad, and thinks Al’s workplace behavior is ok. The only relevant difference is that Bob is a kindergarten teacher, Al a boxer. So the pastor approves of Al for being a boxer.

    Augustine, I’ve already said how your pattern and the specifics you fill in are wrong. I know how logic works, thanks. In the punching example, being a boxer or being a teacher is not the relevant difference let alone the only one. It could be one of several differences even without adding any facts; the relevant difference is legality and morality of the action in the context in which it takes place, not the specific profession. Or, the profession could be described as an approximation for the underlying legality/morality/context consideration. Otherwise, what works in your Jim and Jill hypothetical falls apart into silliness in your Al and Bob hypothetical. 

    • #65
  6. Saint Augustine Member
    Saint Augustine
    @SaintAugustine

    Ed G. (View Comment):
    Augustine, I’ve already said how your pattern and the specifics you fill in are wrong.

    What now? What’s wrong with the pattern?

    In the punching example, being a boxer or being a teacher is not the relevant difference let alone the only one. It could be one of several differences even without adding any facts; the relevant difference is legality and morality of the action in the context in which it takes place, not the specific profession. Or, the profession could be described as an approximation for the underlying legality/morality/context consideration. Otherwise, what works in your Jim and Jill hypothetical falls apart into silliness in your Al and Bob hypothetical. 

    You say all that about Al and Bob but not about Jim and Jill?

    Anyway, you’re still just disagreeing with a premise.

    Pretend the premises are all true: Are the Al and Bob arguments not all terrible arguments?

    • #66
  7. Ed G. Member
    Ed G.
    @EdG

    Saint Augustine (View Comment):

    Ed G. (View Comment):

    The problem with #34 is that you’re still not describing it properly. The profession was not any part of the pastor’s decision. . . .

    Yes, in the # 34 example the profession was part of the pastor’s decision. That was in the premises of the argument; it’s why the pastor disapproved of Bob but not Al. (But if you don’t see that, try the latest Al and Bob illustration in the previous comment!)

    If you mean #35, then you’re just wrong. Or, you’re rigging your hypothetical so that the pastor is a weird irrational guy. Here’s your hypothetical:

    Al punches his coworkers every weekday, and the local pastor thinks Al is a great guy. Bob punches his coworkers every weekday, and that’s why the pastor thinks Bob is a dirty rotten sinner. The only relevant difference is that Al is a professional boxer, and Bob is a kindergarden teacher. So the pastor disrespects Bob for being a kindergarten teacher.

    If the premise is the part where you just assert that profession is the only relevant difference then that is just wrong, or, as I said, profession disguises or is a proxy for the true difference which is: when it is or is not acceptable to punch coworkers every day. Either that or your made up pastor just hates some guys who punch and likes other guys who punch and his only basis for deciding is the profession of the person. That’s silly. Of course the unstated premise is that the relevant difference is the appropriateness of punching in a particular context. 

    But again, I’m not sure the point of all this. As I feared, we’re spending so much time going back and forth about made up scenarios when we have real ones we can use without having to dial in on shortcomings and implications of made up fact patterns.

    • #67
  8. Ed G. Member
    Ed G.
    @EdG

    Saint Augustine (View Comment):

    In addition to giving you an argument in # 52 that avoids that objection, I also pointed out that your objection amounts to disagreeing with the “only relevant difference” premise in the initial Al and Bob argument.

    But if you can disagree with a premise, why can’t Stina and the rest of us? Stina (#s 21, 24, and 27) was objecting to the premise in the Gorsuch line of thinking which was represented in the Jim and Jill argument by the “only relevant difference” premise.

    (But, again, if you think I’m not understanding Gorsuch correctly–great! That would be a terrific objection–or at least a darned effective one.)

    Yes, I disagree with your “only relevant difference” premise in the Al and Bob example.

    Yes, you and anyone else are free to disagree with whatever you want. 

    Jim and Jill might be a reasonable understanding of the argument Gorsuch is making, but Al and Bob are just flawed. What, briefly, is the objection to the premise in Jim and Jill? 

    • #68
  9. Ed G. Member
    Ed G.
    @EdG

    Saint Augustine (View Comment):

    Ed G. (View Comment):

    I’m talking about the logic too. The actual opinion of Bostock is not long, a few pages. And the relevant description of Philips is both in the Bostock opinion and roughly laid out in the OP above. I’d rather talk about the actual scenarios than artificially constructed ones. Gorsuch’s reasoning is laid out in the opinion – his own words are surely better than mine for your understanding.

    I’m happy to take into consideration a recommendation that I should read some primary source Gorsuch material.

    But as far as this conversation is concerned, I fail to see the relevance–unless you’re going to tell me that you think I was misunderstanding Gorsuch in comment # 2.

    I think that the actual facts, words, and reasoning of the decision under discussion are relevant. More relevant than our current quibbling over unstated premises and facts not in evidence in made up scenarios.  You might be misunderstanding Gorsuch; I might be misunderstanding Gorsuch. Who knows? Read the few pages and find out. I think it would be a more fruitful discussion if you do. You wouldn’t have to try to understand Gorsuch through any filters.

    • #69
  10. Saint Augustine Member
    Saint Augustine
    @SaintAugustine

    Ed G. (View Comment):

    But again, I’m not sure the point of all this. . . .

    Logic.

    Specifically, the logic of the reasoning about Jim and Jill, which I understand to be a distillation of Gorsuch’s reasoning.  (Also, it’s the only thing I have anything to say about in this topic, since it’s the only thing I know anything about.)

    • #70
  11. Ed G. Member
    Ed G.
    @EdG

    Saint Augustine (View Comment):

    Ed G. (View Comment):
    Augustine, I’ve already said how your pattern and the specifics you fill in are wrong.

    What now? What’s wrong with the pattern?

    In the punching example, being a boxer or being a teacher is not the relevant difference let alone the only one. It could be one of several differences even without adding any facts; the relevant difference is legality and morality of the action in the context in which it takes place, not the specific profession. Or, the profession could be described as an approximation for the underlying legality/morality/context consideration. Otherwise, what works in your Jim and Jill hypothetical falls apart into silliness in your Al and Bob hypothetical.

    You say all that about Al and Bob but not about Jim and Jill?

    Anyway, you’re still just disagreeing with a premise.

    Pretend the premises are all true: Are the Al and Bob arguments not all terrible arguments?

    Yes, disagreeing with a premise. Ok. 

    I say “all that” about Al and Bob because that example is flawed. 

    We might have comments crossing in the air, but I already said what I think if I were to pretend that the Al and Bob premise about profession being the only relevant profession were true. That would make the pastor a really weird and irrational guy to disrespect based on the profession of a puncher instead of on the appropriateness of punching withing a specific context, as if he’d have to weigh this decision anew for every new profession where he encounters a person punching coworkers where none of them are boxers. So, rather than wasting time thinking about such a pastor, we can skip ahead to the actual premise involved. 

    • #71
  12. Saint Augustine Member
    Saint Augustine
    @SaintAugustine

    Ed G. (View Comment):

    Saint Augustine (View Comment):

    Ed G. (View Comment):

    The problem with #34 is that you’re still not describing it properly. The profession was not any part of the pastor’s decision. . . .

    Yes, in the # 34 example the profession was part of the pastor’s decision. That was in the premises of the argument; it’s why the pastor disapproved of Bob but not Al. (But if you don’t see that, try the latest Al and Bob illustration in the previous comment!)

    If you mean #35, then you’re just wrong.

    Ah!  Sorry.  Yes, # 35.

    Or, you’re rigging your hypothetical so that the pastor is a weird irrational guy.

    I’m rigging the argument, because that is how one gives counterexamples to a bad argument form. Maybe the pastor is weird and irrational, but so what?

    If the premise is the part where you just assert that profession is the only relevant difference then that is just wrong, or, as I said, profession disguises or is a proxy for the true difference which is: when it is or is not acceptable to punch coworkers every day. Either that or your made up pastor just hates some guys who punch and likes other guys who punch and his only basis for deciding is the profession of the person. That’s silly. Of course the unstated premise is that the relevant difference is the appropriateness of punching in a particular context.

    No, there is no unstated premise, because the argument matches the pattern.  (See # 60 for a more direct rendering of the pattern.)

    But of course the argument is ridiculous. That’s the point. So was the Jim and Jill argument.

    • #72
  13. Saint Augustine Member
    Saint Augustine
    @SaintAugustine

    But it’s fine to object to the premises! That gets us where we need to go.

    You may, if you like, presume that the pastor is very sensible and that the argument gets the pastor wrong, employing a false premise in the process.

    You may say that the professional nature of Al’s behavior exempts him from the usual moral and legal problems of punching, and that all these factors are present in the pastor’s judgment.

    You may even suggest that the real basis of the pastor’s views are the moral and legal status of the punching.

    You may suggest that the argument fails because it looks at the respective professions of Al and Bob–which are merely necessary considerations in the pastor’s very proper moral judgment–and does not look at the true basis of the pastor’s views.

    If that’s your critique of the argument–great!

    And if this is your view, then very good!  You have identified the very fallacy I mentioned in # 2.  Now all that remains is to apply the same standards to the argument about Jim and Jill.

    • #73
  14. Saint Augustine Member
    Saint Augustine
    @SaintAugustine

    Ed G. (View Comment):

    Jim and Jill might be a reasonable understanding of the argument Gorsuch is making, but Al and Bob are just flawed. What, briefly, is the objection to the premise in Jim and Jill? 

    Stina’s objection was that the real basis of the boss’s decision was the difference in Jill’s and Jim’s behavior–a difference which, as it happens, can only be understood by taking into consideration their sex.  The argument mistakes that necessary consideration for the basis of the boss’s decision.

    It’s the fallacy mentioned in # 2.

    I do believe it’s the same fallacy you are pointing out in your critique of the arguments about Al and Bob. The real basis of the difference in the treatment of Al and Bob is the moral and legal difference in their behavior.  The argument makes the mistake of ignoring those differences and focusing on the difference in their professions–a necessary consideration for understanding the differences that really matter, and yet not the basis of the pastor’s views.

    • #74
  15. Ed G. Member
    Ed G.
    @EdG

    Saint Augustine (View Comment):
    You may suggest that the argument fails because it looks at the respective professions of Al and Bob–which are merely necessary considerations in the pastor’s very proper moral judgment–and does not look at the true basis of the pastor’s views.

    The profession is not even a necessary condition. Al could be a boxer and punch the janitors every day. Your’re reasoning says that the disrespect from the pastor comes because Bob is a teacher. That’s either a flawed premise or a dumb hypothetical. 

    That is not the same as in Jim and Jill. There, firing a woman for having sex with a woman and not firing a man for having sex with a woman is not a disguise for some other premise like profession is in your Al/Bob hypothetical. You might be able to give a synonym for it – e.g. homosexual acts – but it’s the same thing stated differently.

    • #75
  16. Ed G. Member
    Ed G.
    @EdG

    Saint Augustine (View Comment):
    You may suggest that the argument fails because it looks at the respective professions of Al and Bob–which are merely necessary considerations in the pastor’s very proper moral judgment–and does not look at the true basis of the pastor’s views.

    No, Al/Bob’s profession is not a necessary condition for the pastor’s moral judgement. Al could be a boxer and yet go around punching the janitor every day; Bob can be a teacher and can punch a colleague starting a mass shooting. The profession is entirely incidental to the judgement. The acceptability of the action of sex with a woman is judged entirely based on the sex of the person doing it. Here again I beg you to at least skim the references to Philips.

    • #76
  17. Saint Augustine Member
    Saint Augustine
    @SaintAugustine

    I think you’re still asking for more precision, so here’s a bit more for you:

    Al punches his law-abiding coworkers every weekday. Bob punches his law-abiding coworkers every weekday. On these grounds, the local pastor thinks Al is an ok guy but thinks Bob is a dirty rotten sinner. The only relevant difference is that Al is a professional boxer, and Bob is a kindergarten teacher. So the pastor disrespects Bob for being a kindergarten teacher.

    • #77
  18. Saint Augustine Member
    Saint Augustine
    @SaintAugustine

    Yes, the difference in Jim’s and Jill’s actions depends entirely on sex. That difference is the basis of the difference in treatment of Jim and Jill.

    That doesn’t make sex the basis of the judgment.

    A relevant difference in actions may be the basis of a judgment while itself depending on differences which are not the basis.

    Al and Bob are good examples, and here’s another: The basis of a judgment against punching your wife and in favor of punching a burglar in self-defense is the difference between those two acts. That difference itself might depend entirely on which direction one swings one’s fist, yet in no way is the direction of fist-swinging the basis of the judgment.

    • #78
  19. Ed G. Member
    Ed G.
    @EdG

    Saint Augustine (View Comment):

    I think you’re still asking for more precision, so here’s a bit more for you:

    Al punches his law-abiding coworkers every weekday. Bob punches his law-abiding coworkers every weekday. On these grounds, the local pastor thinks Al is an ok guy but thinks Bob is a dirty rotten sinner. The only relevant difference is that Al is a professional boxer, and Bob is a kindergarten teacher. So the pastor disrespects Bob for being a kindergarten teacher.

    Good luck Augustine. I’m out. I really have no desire to keep discussing Al and Bob. Your change here doesn’t help. No matter how many times you insist that I accept or ask that I pretend it to be true, no matter how much more precision you think I’m asking for, the profession is obviously not the only relevant difference or even any relevant difference in the pastor’s decision, IMO. The relevant difference is the appropriateness of punching coworkers which both men do. One is engaging in appropriate behavior, the other is engaging in inappropriate behavior. Why is one inappropriate and the other appropriate? Not based on the sex of the person doing it or being done to, not based on the profession of the person doing it or it being done to, but on the specific circumstances – one is assault and the other is consensual sport. 

    With Jim and Jill, presumably having sex with a woman can either be appropriate or inappropriate. What makes it inappropriate? Sex. That’s the differentiator. 

    Anyway, I’ll bow out now. I really think you’d get more out of reading the short opinion. 

    • #79
  20. Saint Augustine Member
    Saint Augustine
    @SaintAugustine

    Ed G. (View Comment):

    Why is one inappropriate and the other appropriate? Not based on the sex of the person doing it or being done to, not based on the profession of the person doing it or it being done to, but on the specific circumstances – one is assault and the other is consensual sport. 

    Yes.

    An observation on the context is shorthand for all that. It’s no less a simplification than the argument about Jill and Jim. (Still, it should be possible to keep making it more precise until there’s nothing left hanging on a premise about the “only relevant difference.”)

    With Jim and Jill, presumably having sex with a woman can either be appropriate or inappropriate. What makes it inappropriate? Sex. That’s the differentiator. 

    Indeed. Sex is a differentiator making possible a moral judgment. The moral judgment is the basis of the decision. The argument about Jim and Jill does not establish that the differentiator is itself the basis of the decision.

    • #80
  21. Saint Augustine Member
    Saint Augustine
    @SaintAugustine

    Oh, I left out the most important bit.

    Ed G. (View Comment):
    Good luck Augustine. I’m out.

    Ok. So long, I guess. Live long and prosper!

    • #81
  22. Ed G. Member
    Ed G.
    @EdG

    Saint Augustine (View Comment):

    With Jim and Jill, presumably having sex with a woman can either be appropriate or inappropriate. What makes it inappropriate? Sex. That’s the differentiator. 

    Indeed. Sex is a differentiator making possible a moral judgment. The moral judgment is the basis of the decision. The argument about Jim and Jill does not establish that the differentiator is itself the basis of the decision.

    This is why I’ve been trying to get you to look at Philips case. In that case, an employer would not take applications from women with preschool-aged children. It did take applications from men with pre-school aged children. Similarly to Jim and Jill, sex was the differentiator but was not itself the basis of the decision (the actual basis I speculate to be something along the lines of fears about missed work and added benefits expense or something like that). Yet, that Philips case seems to be a clear cut uncontroversial case of sex discrimination under Title VII.

    • #82
  23. Saint Augustine Member
    Saint Augustine
    @SaintAugustine

    Ed G. (View Comment):

    Saint Augustine (View Comment):

    With Jim and Jill, presumably having sex with a woman can either be appropriate or inappropriate. What makes it inappropriate? Sex. That’s the differentiator.

    Indeed. Sex is a differentiator making possible a moral judgment. The moral judgment is the basis of the decision. The argument about Jim and Jill does not establish that the differentiator is itself the basis of the decision.

    This is why I’ve been trying to get you to look at Philips case. In that case, an employer would not take applications from women with preschool-aged children. It did take applications from men with pre-school aged children. Similarly to Jim and Jill, sex was the differentiator but was not itself the basis of the decision (the actual basis I speculate to be something along the lines of fears about missed work and added benefits expense or something like that). Yet, that Philips case seems to be a clear cut uncontroversial case of sex discrimination under Title VII.

    If that’s the case then you must surely think that there is something wrong with my understanding of Gorsuch. You must think the Jim and Jill argument is not a fair distillation of Gorsuch. Why not just say that?

    • #83
  24. Ed G. Member
    Ed G.
    @EdG

    Saint Augustine (View Comment):

    Ed G. (View Comment):

    Saint Augustine (View Comment):

    With Jim and Jill, presumably having sex with a woman can either be appropriate or inappropriate. What makes it inappropriate? Sex. That’s the differentiator.

    Indeed. Sex is a differentiator making possible a moral judgment. The moral judgment is the basis of the decision. The argument about Jim and Jill does not establish that the differentiator is itself the basis of the decision.

    This is why I’ve been trying to get you to look at Philips case. In that case, an employer would not take applications from women with preschool-aged children. It did take applications from men with pre-school aged children. Similarly to Jim and Jill, sex was the differentiator but was not itself the basis of the decision (the actual basis I speculate to be something along the lines of fears about missed work and added benefits expense or something like that). Yet, that Philips case seems to be a clear cut uncontroversial case of sex discrimination under Title VII.

    If that’s the case then you must surely think that there is something wrong with my understanding of Gorsuch. You must think the Jim and Jill argument is not a fair distillation of Gorsuch. Why not just say that?

    Jim and Jill sounds like a reasonable distillation to me. Jim and Jill sounds like Philips to me. 

    • #84
  25. Saint Augustine Member
    Saint Augustine
    @SaintAugustine

    Ed G. (View Comment):

    Saint Augustine (View Comment):

    Ed G. (View Comment):

    Saint Augustine (View Comment):

    With Jim and Jill, presumably having sex with a woman can either be appropriate or inappropriate. What makes it inappropriate? Sex. That’s the differentiator.

    Indeed. Sex is a differentiator making possible a moral judgment. The moral judgment is the basis of the decision. The argument about Jim and Jill does not establish that the differentiator is itself the basis of the decision.

    This is why I’ve been trying to get you to look at Philips case. In that case, an employer would not take applications from women with preschool-aged children. It did take applications from men with pre-school aged children. Similarly to Jim and Jill, sex was the differentiator but was not itself the basis of the decision (the actual basis I speculate to be something along the lines of fears about missed work and added benefits expense or something like that). Yet, that Philips case seems to be a clear cut uncontroversial case of sex discrimination under Title VII.

    If that’s the case then you must surely think that there is something wrong with my understanding of Gorsuch. You must think the Jim and Jill argument is not a fair distillation of Gorsuch. Why not just say that?

    Jim and Jill sounds like a reasonable distillation to me. Jim and Jill sounds like Philips to me.

    Sex is expliticly the basis of the boss’s decision according to the conclusion to the Jim and Jill argument.

    • #85
  26. Ed G. Member
    Ed G.
    @EdG

    Saint Augustine (View Comment):

    Ed G. (View Comment):

    Saint Augustine (View Comment):

    Ed G. (View Comment):

    Saint Augustine (View Comment):

    With Jim and Jill, presumably having sex with a woman can either be appropriate or inappropriate. What makes it inappropriate? Sex. That’s the differentiator.

    Indeed. Sex is a differentiator making possible a moral judgment. The moral judgment is the basis of the decision. The argument about Jim and Jill does not establish that the differentiator is itself the basis of the decision.

    This is why I’ve been trying to get you to look at Philips case. In that case, an employer would not take applications from women with preschool-aged children. It did take applications from men with pre-school aged children. Similarly to Jim and Jill, sex was the differentiator but was not itself the basis of the decision (the actual basis I speculate to be something along the lines of fears about missed work and added benefits expense or something like that). Yet, that Philips case seems to be a clear cut uncontroversial case of sex discrimination under Title VII.

    If that’s the case then you must surely think that there is something wrong with my understanding of Gorsuch. You must think the Jim and Jill argument is not a fair distillation of Gorsuch. Why not just say that?

    Jim and Jill sounds like a reasonable distillation to me. Jim and Jill sounds like Philips to me.

    Sex is explicitly the basis of the boss’s decision according to the conclusion to the Jim and Jill argument.

    ok…..so you agree with Gorsuch then?

    I don’t know what kind of weight or distinctions you’re trying to make by using the word “explicitly”. I’ve said earlier somewhere that “on the basis of sex” has been widely read to be more than simply a case of “I won’t hire men, period”. If that were the standard then this law would have already been forgotten or would be so obscure because there is always a co-condition (ok not really always as there are usually exceptions). In Philips the explicit reason was condition X AND condition F together. Applicants with young children AND who are female. Acts or traits that are treated differently because of the sex of the person. And Philips seems to be treated rather uncontroversially as discrimination on the basis of sex.

    • #86
  27. Saint Augustine Member
    Saint Augustine
    @SaintAugustine

    Ed G. (View Comment):

    Saint Augustine (View Comment):

    Ed G. (View Comment):

    Saint Augustine (View Comment):

    Ed G. (View Comment):

    Saint Augustine (View Comment):

    With Jim and Jill, presumably having sex with a woman can either be appropriate or inappropriate. What makes it inappropriate? Sex. That’s the differentiator.

    Indeed. Sex is a differentiator making possible a moral judgment. The moral judgment is the basis of the decision. The argument about Jim and Jill does not establish that the differentiator is itself the basis of the decision.

    This is why I’ve been trying to get you to look at Philips case. In that case, an employer would not take applications from women with preschool-aged children. It did take applications from men with pre-school aged children. Similarly to Jim and Jill, sex was the differentiator but was not itself the basis of the decision (the actual basis I speculate to be something along the lines of fears about missed work and added benefits expense or something like that). Yet, that Philips case seems to be a clear cut uncontroversial case of sex discrimination under Title VII.

    If that’s the case then you must surely think that there is something wrong with my understanding of Gorsuch. You must think the Jim and Jill argument is not a fair distillation of Gorsuch. Why not just say that?

    Jim and Jill sounds like a reasonable distillation to me. Jim and Jill sounds like Philips to me.

    Sex is explicitly the basis of the boss’s decision according to the conclusion to the Jim and Jill argument.

    ok…..so you agree with Gorsuch then?

    No.

    I don’t know what kind of weight or distinctions you’re trying to make by using the word “explicitly”.

    Only to emphasize that your reading of the Jim and Jill argument was unambiguously mistaken.

    • #87
  28. Ed G. Member
    Ed G.
    @EdG

    Saint Augustine (View Comment):

    Ed G. (View Comment):

    Saint Augustine (View Comment):

    Ed G. (View Comment):

    Saint Augustine (View Comment):

    Ed G. (View Comment):

    Saint Augustine (View Comment):

    With Jim and Jill, presumably having sex with a woman can either be appropriate or inappropriate. What makes it inappropriate? Sex. That’s the differentiator.

    Indeed. Sex is a differentiator making possible a moral judgment. The moral judgment is the basis of the decision. The argument about Jim and Jill does not establish that the differentiator is itself the basis of the decision.

    This is why I’ve been trying to get you to look at Philips case. In that case, an employer would not take applications from women with preschool-aged children. It did take applications from men with pre-school aged children. Similarly to Jim and Jill, sex was the differentiator but was not itself the basis of the decision (the actual basis I speculate to be something along the lines of fears about missed work and added benefits expense or something like that). Yet, that Philips case seems to be a clear cut uncontroversial case of sex discrimination under Title VII.

    If that’s the case then you must surely think that there is something wrong with my understanding of Gorsuch. You must think the Jim and Jill argument is not a fair distillation of Gorsuch. Why not just say that?

    Jim and Jill sounds like a reasonable distillation to me. Jim and Jill sounds like Philips to me.

    Sex is explicitly the basis of the boss’s decision according to the conclusion to the Jim and Jill argument.

    ok…..so you agree with Gorsuch then?

    No.

    I don’t know what kind of weight or distinctions you’re trying to make by using the word “explicitly”.

    Only to emphasize that your reading of the Jim and Jill argument was unambiguously mistaken.

    Ok, we’re back to assertions. I’m signing off for real this time. See you all in the next thread.

    • #88
  29. Stina Inactive
    Stina
    @CM

    Ed G. (View Comment):
    Ok, we’re back to assertions. I’m signing off for real this time. See you all in the next thread.

    The reason why your premises are off is because it assumes that there is, in the nature of ones sex, absolutely nothing that differentiates the two.

    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 “descriminate”, 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.

    No where 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.

    @edg

    • #89
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