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My Problem with Gorsuch’s Ruling
I posted this in Epstein’s post, but the thread is dead. So far, the assertion is that Gorsuch used the definition of “sex” in a manner that wasn’t appropriate. It occurred to me (and thank you, @saintaugustine — I wouldn’t have gotten here without you) is that he changed how “discriminate” is used.
[The reason why Gorsuch’s premises] are off is because it assumes that there is, in the nature of one’s sex, absolutely nothing that differentiates it from its opposite.
Gorsuch’s opinion is absolutely based on a wrongful (biologically) premise that there is no distinction between male and female.
He takes the CRA, that says you can’t discriminate, and effectively states that discrimination means telling the difference between two things.
Now that is a legitimate definition of the word “discriminate” but it should be quite clear that that was never the intended use of the word in the original law.
There is a reality that he is forcing the population to accept that is a bald faced lie: that there is absolutely no difference between a man and a woman.
It is not true. A man is different than a woman. A homosexual marriage is completely different from a heterosexual marriage. Gay couplings (sex) are fundamentally different from heterosexual couplings.
Nowhere in the law do we refuse to acknowledge that men and women are different. But Gorsuch’s ruling forces us to act as if they are not differentiated in the least.
That’s my case in a nutshell.
Published in General
It would be the same for men too, except that’s far less common a situation that men encounter.
It’s only an issue if men and women are affected differently by having small children – and they are.
The burden of caring for young children, even in dual income homes, still falls predominately on women (except in rare cases). For the most part, women are fine with it. Sharing that burden causes both careers to suffer, so there’s no point in tanking both careers if you only need one primary and most women would rather be with their kids than working.
So, having young children does not affect men and women the same.
Penalizing people for noticing that men and women are different is not in the spirit of the law.
If I were in such a position (having been a woman with preschool aged kids for the last 11 years), I would at least want the ability to bargain a reduced salary if hired. But that is also a liability for employers because of women’s wages lawfare.
Like men have penises and women have vaginas.
And heterosexual relationships produce more kids than homosexual ones do.
That’s relevant to whether it should be legal to prefer men with small kids to women with small kids in hiring.
It doesn’t seem relevant to whether it is legal by the CRA.
Which is where it sticks, right?
I think freedom ended in 1964.
Maybe.
But weren’t you the one saying that the argument that the CRA applies here is a bad argument?
I think it is. Its outside the bounds of what the legislators intended, anyway.
I get Ed’s argument, but Hoyacon is right – there was enough ambiguity that has existed for the last 56 years that it was within Gorsuch’s (and the court’s) rights to limit the CRA in favor of more freedom and protecting the First Ammendment.
I thought one of the aims of the USSC was to determine the constitutionality of legislative law and to protect the citizenry from bad law.
It seems Gorsuch went in the opposite direction, which is why I find it a bad ruling – it should have resulted in protecting our 1A rights.
But even so, I think he fails in the intent because his argument acts like the original intent intended to see no differences at all between male and female. But in 1964, we had far more robust acknowledgement that men and women were different. So to treat men and women as perfectly interchangeable violates the spirit in which that law was written.
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In a nut shell, even if the logic is good, there’s something wrong in his premises… but his premises have been tortured by logic for years – if we can’t even reason out in law that men and women are different, then there is nothing left for us here. We could use reason and logic perfectly and make a world completely at odds with reality just by altering a foundational truth just a tiny bit. But those foundations have been under attack for generations now.
Jolly good, jolly good!
A few concerns. (And I’m probably repeating myself.)
First, I think the best version(s) of originalism will not recognize original intent as creating meaning, but will recognize it as a useful clue to original meaning. Moreover, an interpretation incomprehensible to original readers is sure to be wrong (Alito’s point).
Second, I’m still not sure that no-differences-between-men-and-women is in any of these arguments’ premises. Just, maybe, in their conclusions. But if the logic is good, then that just means the law was bad. (Ed’s position, I believe.)
Third, I have no position on the logic in Phillips. I don’t even know what argument is used there. I only know that the argument I understand to be used by Gorsuch is pretty lousy.
I don’t think it is. I think Gorsuch’s argument is the CRA prohibits discriminating against a woman for doing what a man might do (sleep with a woman) and against a man for doing what a woman might do (sleep with a man). There’s a certain logic to it, if the project of the CRA was to impose non-discrimination based on sex.
It may be a lousy decision, but only because the CRA is a lousy law that allows for Gorsuch’s take, while also violating a fundamental (natural) right to discriminate based on sex.
This is the part where I think he basically asserts the sexes are interchangeable.
DrewInWisconsin is right, that the action should have been “has sex with someone of the same sex.”
That act is distinguishable from having sex with someone of a different sex. That is observable and measurable reality, logic be damned.
But Gorsuch’s logic can’t distinguish between them.
In Philips it didn’t apply to men. Only to women with young children, and not to men with young children.
In a nut shell: reason and logic are useless if they lead away from truth.
Reason and logic are tools meant to discern truth. So if logical conclusions do not comport with readily observable reality, then the syllogism is wrong.
Not that I think the spirit of the law should govern any of this, but I think that is very much the spirit of the law – penalizing for noticing and treating men and women differently.
And if the syllogism uses a good argument pattern, a premise is wrong.
The problem, as I see it, is in the Gorsuch argument pattern.
ok.
Or that women are more emotional than men. Men are better leaders. Women don’t like math. There can be more or less truth to any number of these kinds of things. The CRA is meant to reverse that. Maybe “Women” don’t like math, but that’s no reason to discriminate against a particular woman. At least that’s what the CRA says. That applies to the generalization about women with young children too. Seems to me that that is exactly the kind of thing the CRA was intended to correct.
Leaving aside the matter of violating a fundamental right to discriminate, I disagree that Title VII is a poor law only because those who authored it in 1964 failed to foresee the rise of societal movements that would give Gorsuch the opportunity to expand its reach in the name of textualism. I understand that Ed G does not see it this way, but I want to reiterate my perspective since I’ve been wandering around in other threads for awhile. Even if Gorsuch’ reading is considered “correct,” it is ideosyncratic. I can’t fault the drafters for that, particularly since women’s rights advocates had been lobbying for the inclusion of “sex” in the traditional sense.
I can be convinced of that. I just haven’t seen where the logic breaks down. I think it’s a premise. But I’m not wedded to it. You and I agree, the conclusion is off. We just disagree on premise vs form.
In all your counters, I didn’t see anything wrong with the logic, it’s the assumptions the logic was built on that were erroneous.
Treating the punchers the same doesn’t work because their professions are not the same… treating the professions as the same is a faulty assumption.
Likewise, treating the sexes as interchangeable is a faulty assumption.
For the CRA to apply, must there be a generalization about every member of a sex?
Or at least that was the beginning of this whole regime of discrimination law that has caused much trouble and expense.
Yeah, that’s why it’s a bad argument pattern.
And yet–as I recall–you yourself in your critique of Phillips were critiquing the same argument pattern.
Touche
Step 1 is to figure out what sort of logic Gorsuch is using. Near as I can tell, this argument approximates his thinking:
(But if I’m getting Gorsuch wrong, please stop me here! Every subsequent step, if I get Step 1 wrong, is pointless.)
Step 2 is to identify the pattern of the argument. I believe it’s this:
Step 3 would be to analyze the pattern.
But it’s high time I shut up for a bit!
Generalizations should be generally true and it should be based on more than preference.
You soft tossed “women can’t do math” and completely altered it.
Women are fine with math. They just prefer professions with more human interactions than numerical professions typically have.
But that’s a preference that has little to do with a woman applying for a numeracy job. If she’s applying, she’s interested in doing the job.
That isn’t the same assumed risk as “women with preschool kids”. Again, add in the lawfare concerning equal pay for women. It is a high risk for an employer to enter a contract employment for lower wages even under such conditions. I don’t think the courts would honor such contracts if the ACLU led a civil rights class action against the employer.
In the end, more than sex was the consideration there.
Wasn’t it you who said that the specific actions themselves were different? You were referring to gay men vs a straight man and a straight woman, but doesn’t the same apply to the difference between lesbians and gay men? It’s not the same act. Or is the discrimination based on something else? State of being? Attractions? Kissing? What about an obviously gay person who doesn’t act on it? What is left? Personality traits that don’t fit common ideas of masculinity or femininity?
White Collar Martin and Garbage Man Tuck don’t hire women with preschool aged children.
USSC says White Collare Martin is violating rights but Garbage Man Tuck is fine.
The only relevant difference is that women prefer white collar jobs over garbage disposal.
So the basis of of the USSC’s ruling was that women want white collar jobs.
That may be true for you, but test scores don’t back that up. Or perhaps the better point would be that women may be “fine” with math but they aren’t as GOOD AT IT in general. And generalizations are supposed to be GENERALLY true, not necessarily true for you or for me. If women are just as good at math, but prefer not to have that be the focus of their employment, why are math test scores for women consistently lower? If they’re “fine” with it, but just prefer not to do it as their work, shouldn’t the test scores show it?
If I were an employer, I would be looking for someone who is GOOD at what I need done, not someone who just doesn’t mind doing it, but isn’t as good.
There’s a functional reality to couplings that have the potential for breeding vs those that don’t.
I should not have to justify why I prefer one over the other. It could be for religious reasons, it simply doesn’t matter.
But you or the court failing to recognize the category error is you or the court being at odds with reality.
I can fault them. the CRA has caused loss of fundamental freedoms, induced great expense, and led to severe overreach for decades if not since the moment it was signed. They could have included a sunset clause. They could have been exceedingly specific instead of broad and general. If they thought – as surely most would have back in 1964 – that discrimination actually was justified in many circumstances then they could have listed some or done the opposite and listed specific circumstances in which discrimination was not justified.