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.

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  1. Saint Augustine Member
    Saint Augustine
    @SaintAugustine

    Stina (View Comment):

    Saint Augustine (View Comment):

    Step 2 is to identify the pattern of the argument. I believe it’s this:

    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.

    Step 3 would be to analyze the pattern.

    But it’s high time I shut up for a bit!

    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.

    Sorry, I’m not quite following.

    You’re plugging in an example of an argument using the form, right?

    Who is Person C in this argument?

    • #91
  2. Ed G. Member
    Ed G.
    @EdG

    Saint Augustine (View Comment):

    Ed G. (View Comment):

    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.

    For the CRA to apply, must there be a generalization about every member of a sex?

    I don’t know

    • #92
  3. Stina Member
    Stina
    @CM

    Ed G. (View Comment):
    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?

    I also accepted a premise that I didn’t need to when stating that. Drew made me realize I missed something.

    • #93
  4. Stina Member
    Stina
    @CM

    Saint Augustine (View Comment):

    Stina (View Comment):

    Saint Augustine (View Comment):

    Step 2 is to identify the pattern of the argument. I believe it’s this:

    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.

    Step 3 would be to analyze the pattern.

    But it’s high time I shut up for a bit!

    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.

    Sorry, I’m not quite following.

    You’re plugging in an example of an argument using the form, right?

    Who is Person C in this argument?

    I was being tongue in cheek. The court is person C. It’s not perfect. I was just mocking the Phillip’s case some more.

    • #94
  5. Ed G. Member
    Ed G.
    @EdG

    Stina (View Comment):

    Saint Augustine (View Comment):

    Stina (View Comment):

    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.

    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.

    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.

    It’s not that the sexes are interchangeable. It’s that sex was part of the basis for the decision (i.e. a violation of the CRA) whereas the professions in Augustine’s example were not. Even if they had been, though, it’s not illegal under the CRA to discriminate based on profession or on the appropriateness of punching.

    • #95
  6. Western Chauvinist Member
    Western Chauvinist
    @WesternChauvinist

    Ed G. (View Comment):

    Stina (View Comment):
    Penalizing people for noticing that men and women are different is not in the spirit of the law.

    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.

    Exactly. The Catholic church is in violation of the CRA for not ordaining women. And if we think there won’t be a lawsuit coming from the “social justice” Catholics, just wait. 

    • #96
  7. Saint Augustine Member
    Saint Augustine
    @SaintAugustine

    Ed G. (View Comment):

    Saint Augustine (View Comment):

    Ed G. (View Comment):

    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.

    For the CRA to apply, must there be a generalization about every member of a sex?

    I don’t know

    Always a good answer!  Yay Socrates!

    I’m wondering this: If there must be a generalization about every member of a sex for the CRA to apply, what actually is said generalization in the behavior that falls under CRA according to Bostock and Phillips?

    But if not, then how is discrimination supposed to be categorized as being on the basis of sex?

    • #97
  8. kedavis Coolidge
    kedavis
    @kedavis

    Ed G. (View Comment):
    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.

    The biggest issue when you have a “broad” law might be refusing to recognize other realities.  A lot of which comes from various theories such as if 50% of a college math department is not women, then ipso facto the college must be guilty of illegal discrimination.  If you then show them a math test for hiring in which men score much higher than women, they say the test is guilty of illegal discrimination.  And so forth.  No one is allowed to be rational or to perceive reality any more.

    • #98
  9. Saint Augustine Member
    Saint Augustine
    @SaintAugustine

    Ed G. (View Comment):

    It’s not that the sexes are interchangeable. It’s that sex was part of the basis for the decision (i.e. a violation of the CRA) . . .

    According to what argument was that the case?

    . . . whereas the professions in Augustine’s example were not.

    So either you think a premise was wrong, or else the argument was not formulated precisely enough for you.

    Even if they had been, though, it’s not illegal under the CRA to discriminate based on profession or on the appropriateness of punching.

    That is entirely irrelevant. No one imagined the Al and Bob argument to have anything to do with CRA.

    It was just an argument fitting a pattern of reasoning.

    • #99
  10. Western Chauvinist Member
    Western Chauvinist
    @WesternChauvinist

    kedavis (View Comment):

    Ed G. (View Comment):
    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.

    The biggest issue when you have a “broad” law might be refusing to recognize other realities. A lot of which comes from various theories such as if 50% of a college math department is not women, then ipso facto the college must be guilty of illegal discrimination. If you then show them a math test for hiring in which men score much higher than women, they say the test is guilty of illegal discrimination. And so forth. No one is allowed to be rational or to perceive reality any more.

    I think that’s basically right. We’re not allowed to notice that men and women are different. Dennis Prager has been warning about the elimination of the sexes for as long as I’ve been listening. The CRA started this and Gorsuch put the last nail in the coffin.

    • #100
  11. Ed G. Member
    Ed G.
    @EdG

    Stina (View Comment):

    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.

    Yes and if a woman with young kids is applying, then she’s interested in doing the job too. The employer might be skeptical just as he might be skeptical that a woman likes or is good at math.

    • #101
  12. Ed G. Member
    Ed G.
    @EdG

    Stina (View Comment):

    Ed G. (View Comment):
    Women don’t like math

    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.

    I’m not sure what you mean by “soft tossed”, but I didn’t say it was true. I said it was a generalization. Besides, you don’t speak for women. I’ve known some women you themselves have said that women don’t like math.

    Also, I think it was way more common to believe that (and worse) back in 1964. So should that be allowed by the CRA unless Congress specifies?

    • #102
  13. Western Chauvinist Member
    Western Chauvinist
    @WesternChauvinist

    Stina (View Comment):
    Women are fine with math.

    Off topic, but would you be surprised to learn that girls’ poorer comparative math performance appears related to low ferritin levels due to menstruation? Little Miss Antrhope’s (female) integrative medical doctor and (male) hematologist have both noted it.

    Turns out biological differences affect cognitive function. Huh, whodathunk?

    • #103
  14. Ed G. Member
    Ed G.
    @EdG

    Stina (View Comment):
    That isn’t the same assumed risk as “women with preschool kids”.

    Says you. I wish there were a law we could consult instead of your (or some judge’s risk assessment).*

     

    * That’s only for sake of this discussion – in practice I’d probably be ok with you making these decisions. Mostly anyway. ;D

    • #104
  15. Ed G. Member
    Ed G.
    @EdG

    Stina (View Comment):

    Saint Augustine (View Comment):

    Step 2 is to identify the pattern of the argument. I believe it’s this:

    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.

    Step 3 would be to analyze the pattern.

    But it’s high time I shut up for a bit!

    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.

    I don’t think that is correct. There might be a bona fide physical requirement for the garbage job*, but to the extent that a woman can satisfy them then discrimination is a violation if a woman applies. Your notions of what women prefer do not enter into it according to the CRA.

     

    *Since I’ve been working from home, I see from my home office window the garbage truck go down the street collecting the trash. There is a woman on the crew and lemme tell you that she doesn’t do much; in fairness neither does he male partner. Wheel the can to the truck, get it on the lift, press the button, wheel the can back to the curb once it’s empty.

    • #105
  16. Stina Member
    Stina
    @CM

    Western Chauvinist (View Comment):

    Stina (View Comment):
    Women are fine with math.

    Off topic, but would you be surprised to learn that girls’ poorer comparative math performance appears related to low ferritin levels due to menstruation? Little Miss Antrhope’s (female) integrative medical doctor and (male) hematologist have both noted it.

    Turns out biological differences affect cognitive function. Huh, whodathunk?

    Oh that’s not surprising. I have a degree in math and my reasoning skills tank severely during pms and early cycle.

    It’s like my brain is fractured and I can’t follow one thought to the next.

    • #106
  17. Ed G. Member
    Ed G.
    @EdG

    Stina (View Comment):

    Ed G. (View Comment):
    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?

    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 agree there are real differences! You don’t have to justify your preferences, certainly not to me. I share most of you’re preferences I’d bet. However, you do have to justify according to the CRA if you’re basing employment decision on your preferences. Your preference doesn’t matter as much as it should – which is a problem with the CRA itself and not with me or Gorsuch or category errors.

    • #107
  18. Ed G. Member
    Ed G.
    @EdG

    Western Chauvinist (View Comment):

    Ed G. (View Comment):

    Stina (View Comment):
    Penalizing people for noticing that men and women are different is not in the spirit of the law.

    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.

    Exactly. The Catholic church is in violation of the CRA for not ordaining women. And if we think there won’t be a lawsuit coming from the “social justice” Catholics, just wait.

    Indeed. How long will the first amendment protect religious exemptions?

    • #108
  19. Ed G. Member
    Ed G.
    @EdG

    Saint Augustine (View Comment):

    Ed G. (View Comment):

    Saint Augustine (View Comment):

    Ed G. (View Comment):

    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.

    For the CRA to apply, must there be a generalization about every member of a sex?

    I don’t know

    Always a good answer! Yay Socrates!

    I’m wondering this: If there must be a generalization about every member of a sex for the CRA to apply, what actually is said generalization in the behavior that falls under CRA according to Bostock and Phillips?

    But if not, then how is discrimination supposed to be categorized as being on the basis of sex?

    I’ll stick with “I don’t know” as my official answer. My guess is that applying generalization to an individual is only one flavor of CRA violation.

    • #109
  20. Ed G. Member
    Ed G.
    @EdG

    kedavis (View Comment):

    Ed G. (View Comment):
    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.

    The biggest issue when you have a “broad” law might be refusing to recognize other realities. A lot of which comes from various theories such as if 50% of a college math department is not women, then ipso facto the college must be guilty of illegal discrimination. If you then show them a math test for hiring in which men score much higher than women, they say the test is guilty of illegal discrimination. And so forth. No one is allowed to be rational or to perceive reality any more.

    I’m not sure application of CRA goes that far, but I agree that we’re in that range. And we shouldn’t be.

    • #110
  21. Ed G. Member
    Ed G.
    @EdG

    Saint Augustine (View Comment):

    Ed G. (View Comment):

    It’s not that the sexes are interchangeable. It’s that sex was part of the basis for the decision (i.e. a violation of the CRA) . . .

    According to what argument was that the case?

    Seems obvious to me, but I’m not sure how to answer.

    • #111
  22. Ed G. Member
    Ed G.
    @EdG

    Saint Augustine (View Comment):

    . . . whereas the professions in Augustine’s example were not.

    So either you think a premise was wrong, or else the argument was not formulated precisely enough for you.

    Oy vey, with the precision again!

    Something was wrong with your example. I don’t particularly care which part. I do know that I’m not looking for additional precision.

    • #112
  23. Ed G. Member
    Ed G.
    @EdG

    Western Chauvinist (View Comment):

    Stina (View Comment):
    Women are fine with math.

    Off topic, but would you be surprised to learn that girls’ poorer comparative math performance appears related to low ferritin levels due to menstruation? Little Miss Antrhope’s (female) integrative medical doctor and (male) hematologist have both noted it.

    Turns out biological differences affect cognitive function. Huh, whodathunk?

    Just we misogynists! Who knows what strange mysteries science will uncover related to high levels of testosterone in teenaged boys. ;D

    • #113
  24. Ed G. Member
    Ed G.
    @EdG

    Stina (View Comment):

    Western Chauvinist (View Comment):

    Stina (View Comment):
    Women are fine with math.

    Off topic, but would you be surprised to learn that girls’ poorer comparative math performance appears related to low ferritin levels due to menstruation? Little Miss Antrhope’s (female) integrative medical doctor and (male) hematologist have both noted it.

    Turns out biological differences affect cognitive function. Huh, whodathunk?

    Oh that’s not surprising. I have a degree in math and my reasoning skills tank severely during pms and early cycle.

    It’s like my brain is fractured and I can’t follow one thought to the next.

    Oh geez! I didn’t know you were a math major. I swear I didn’t pick that particular generalization to push your buttons.

    • #114
  25. Saint Augustine Member
    Saint Augustine
    @SaintAugustine

    Ed G. (View Comment):

    Saint Augustine (View Comment):

    Ed G. (View Comment):

    It’s not that the sexes are interchangeable. It’s that sex was part of the basis for the decision (i.e. a violation of the CRA) . . .

    According to what argument was that the case?

    Seems obvious to me, but I’m not sure how to answer.

    Well, from what everyone says, it seems to be the same sort of argument as Jim and Jill.

    But it’s a bad argument.

    Ed G. (View Comment):

    Saint Augustine (View Comment):

    . . . whereas the professions in Augustine’s example were not.

    So either you think a premise was wrong, or else the argument was not formulated precisely enough for you.

    Oy vey, with the precision again!

    Something was wrong with your example. I don’t particularly care which part. I do know that I’m not looking for additional precision.

    Do you at least think that the Jim and Jill argument is a fairly good approximation of Gorsuch’s reasoning?

    And do you think that # 84 captures the pattern of reasoning?

    • #115
  26. kedavis Coolidge
    kedavis
    @kedavis

    Ed G. (View Comment):

    Stina (View Comment):

    Saint Augustine (View Comment):

    Step 2 is to identify the pattern of the argument. I believe it’s this:

    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.

    Step 3 would be to analyze the pattern.

    But it’s high time I shut up for a bit!

    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.

    I don’t think that is correct. There might be a bona fide physical requirement for the garbage job*, but to the extent that a woman can satisfy them then discrimination is a violation if a woman applies. Your notions of what women prefer do not enter into it according to the CRA.

     

    *Since I’ve been working from home, I see from my home office window the garbage truck go down the street collecting the trash. There is a woman on the crew and lemme tell you that she doesn’t do much; in fairness neither does he male partner. Wheel the can to the truck, get it on the lift, press the button, wheel the can back to the curb once it’s empty.

    There could be more to jobs like that, such as even wheeling the container over requires strength that many women don’t have, and they may also be more subject to injuries – including, but not limited to, repetitive-stress injuries – meaning loss of work days which could cost the employer both for paid time off and paying someone else to fill in, perhaps at overtime rates.

    • #116
  27. Stina Member
    Stina
    @CM

    Ed G. (View Comment):
    I’m not sure application of CRA goes that far, but I agree that we’re in that range. And we shouldn’t be.

    If this decision is sound, as you believe it is, then it does go that far.

    If we can’t acknowledge reality, then the law is useless.

    • #117
  28. Western Chauvinist Member
    Western Chauvinist
    @WesternChauvinist

    Stina (View Comment):

    Western Chauvinist (View Comment):

    Stina (View Comment):
    Women are fine with math.

    Off topic, but would you be surprised to learn that girls’ poorer comparative math performance appears related to low ferritin levels due to menstruation? Little Miss Antrhope’s (female) integrative medical doctor and (male) hematologist have both noted it.

    Turns out biological differences affect cognitive function. Huh, whodathunk?

    Oh that’s not surprising. I have a degree in math and my reasoning skills tank severely during pms and early cycle.

    It’s like my brain is fractured and I can’t follow one thought to the next.

    But, it’s actually a bigger effect than just when girls are on their period. Girls’ math performance starts to drop off (on average) at the age they begin menses. Ferritin levels measure iron stores, not just blood levels, and while your iron blood level may drop when you’re menstruating, your ferritin level is probably less affected over spans of time than in other women, making your (and my engineering brain) relatively “male” in comparison to most women.

    In other words, if we’re generalizing, women are less competent than men in math. You’re on the end of the female spectrum and it’s not just society imposing limits on women. It’s biology.

    Of note, chemotherapy also adversely affects math ability, but in both men and women, boys and girls.

    • #118
  29. Stina Member
    Stina
    @CM

    Ed G. (View Comment):

    Stina (View Comment):

    Western Chauvinist (View Comment):

    Stina (View Comment):
    Women are fine with math.

    Off topic, but would you be surprised to learn that girls’ poorer comparative math performance appears related to low ferritin levels due to menstruation? Little Miss Antrhope’s (female) integrative medical doctor and (male) hematologist have both noted it.

    Turns out biological differences affect cognitive function. Huh, whodathunk?

    Oh that’s not surprising. I have a degree in math and my reasoning skills tank severely during pms and early cycle.

    It’s like my brain is fractured and I can’t follow one thought to the next.

    Oh geez! I didn’t know you were a math major. I swear I didn’t pick that particular generalization to push your buttons.

    One of the odd observations in my admittedly small school was that a majority of the math majors were girls. To cap that, a lot of them were blonde.

    I thought it was funny at the time, and your comment reminded me of that.

    • #119
  30. Stina Member
    Stina
    @CM

    kedavis (View Comment):
    meaning loss of work days which could cost the employer both for paid time off and paying someone else to fill in, perhaps at overtime rates.

    But if you over generalize in streamlining applicants, you run amok with the CRA… but only if a woman notices and complains.

    • #120
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