In A 6-3 Vote, SCOTUS Holds That Workplace Discrimination Against Gay and Transgender Employees Violates Existing Federal Law

Back in October I wrote about these cases, including the case involving whether businesses requiring employees to dress in traditional gender-specific garb discriminated against transgender workers without violating federal civil rights law.  Solicitor General Noel Francisco and other Justice Department attorneys argued just that , claiming that Congress didn’t intend to include transgender status when it passed Title VII of the 1964 Civil Rights Act (I think that’s obvious), so the law’s ban on discrimination because of “sex” referred only to unequal treatment of men and women in the workplace.  In  R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission, the Justice Department opposed the position of the Equal Employment Opportunity Commission that the firing of  former funeral home director Aimee Stephens after she announced she would transition from male to female violated the Act, arguing that redefining sex discrimination was a job for Congress, not the courts. I wrote at the time,

It seems clear that giving LGBTQ Americans the same protection against discrimination as other minorities is the ethical course. This seems to be a technical dispute over whether the Courts or Congress should  fix the problem. That argument is worth having, and I would not be shocked in a SCOTUS majority said that the omission in the law was unjust, but it was not the Court’s job to fix it. In the long run, it will be illegal to discriminate against LGBTQ citizens in the workplace, as it should be. The only question is how drawn out, angry and divisive the process will be to get there.

Well, we have our answer. The Supreme Court’s ruling in three cases announced today holds that the civil rights law as written currently protects gay and transgender workers from workplace discrimination.  The cases were consolidated, and vote was 6-3, with Roberts and Gorsuch joining the liberal bloc. You can download the decision here. [Kudos and thanks to valkygrrl, who sent me the opinion before it was widely available online.]

Here is simple summary of Justice Gorsuch’s opinion for the majority: It’s obvious that discrimination against gay or transgender employees is to some extent based on sex.

Here is a simple summary of Justice Kavanaugh’s dissent: Courts are obligated to interpret statutory language according to its “ordinary” meaning and not its “literal” meaning, otherwise the courts are interpreting laws as they should be or how the courts wish they were rather than what they are.

The conservative justices who dissented, Alito ( who likens Gorsuch’s majority opinion to a pirate ship: “It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated––the theory that courts should “update” old statutes so that they better reflect the current values of society.”), Thomas and Kavanaugh, are not wrong that the Court is applying a law that wasn’t intended to apply to the issue at hand in the interests of justice but to the detriment of conservative judicial principles. As I read Gorsuch’s opinion, I was thinking, “Boy, would Scalia have hated this!” However, the decision is pretty obviously the right and fair one, and on that basis it is difficult to argue too vigorously against the majority opinion.

Not impossible, however. Over at the National Review, Ed Whelen writes,

[T]he longstanding acceptance of sex-specific restrooms, locker rooms, shower facilities, and dress codes, all of which require taking account of an employee’s sex,severely complicates Gorsuch’s claim that any employer policy that requires taking account of an employee’s sex clearly discriminates on the basis of sex under Title VII….Gorsuch’s ruling will almost surely have extreme consequences. Those consequences wouldn’t provide a reason to misread the text of the law. But they ought to have induced more humility about whether Gorsuch’s reading is in fact right.

As Alito spells out, those consequences extend to whether bathrooms and locker rooms may be sex-specific, whether women’s sports and girls’ sports may be reserved for females, and whether colleges may assign dormitory rooms by sex. Gorsuch doesn’t dispute that such consequences will ensue; he says only that these “are questions for future cases.”

And future legislation.

I see the argument that the decision raises valid legal objections. However, the majority’s ruling was unquestionably the ethical one.

37 thoughts on “In A 6-3 Vote, SCOTUS Holds That Workplace Discrimination Against Gay and Transgender Employees Violates Existing Federal Law

  1. Jack wrote:
    I was thinking, “Boy, would Scalia have hated this!”

    And his dissent would have been withering and darkly hilarious.

    Boy, do I ever miss him.

  2. I see the argument that the decision raises valid legal objections. However, the majority’s ruling was unquestionably the ethical one.

    Do I really have to go first here? 😉

    Your definition of ethics — the most good for the most people — has no anchor in principle. Or, to put it another way, its anchor will constantly move as the ‘most people’ (the population) changes, shifts, gets a hare-brained notion, wants to have sex with their pets, wants to burn all the fast food restaurants to the ground and dance African dances in the streets . . .

    Who gets to define what is ‘unquestionable’? That is an absolute statement. And it explains ‘progressive absolutism’.

    • I think in this case, “ethical” refers to the interpretation of the law with respect to how the law is written.

      I have to agree to a certain extent. My conclusion wouldn’t be “therefore we should apply this law as it is written” but rather “therefore this law is absurd and can not be legally enforced”. I’m no lawyer though.

  3. I’m sure I’m not the only pro LGBTQ rights person who finds it deeply disturbing that the supreme court routinely acts as a branch of legislature. If a law was poorly written it is not and cannot be the courts job to fix the law for the legislature. Not only is it a clear violation of the separation of powers, it puts real legislative power in the hands of a group who is not elected by the people and who are not accountable to the people. Increasingly, the justices have failed to resist the temptation to become life long dictators of law.

    To be clear the letter of the law matters more than the intent. The intent, however, is clearly the correct way of resolving ambiguities that arise from the letter of the law. The court seized on what I don’t think can credibly be called an ambiguity (sex doesn’t really mean gender identity), somehow determined it to be an ambiguity, and then ruled in a manner inconsistent with the original intent which was to protect women (and to a lesser but equally valid extent) men from discrimination based on the fact that they were men or women. The law doesn’t relate to men who want to identify as women (or vice versa) and as such the law has no bearing on their situation. The correct resolution is for the legislature to update the law not for the Supreme Court to change it’s intent by judicial fiat.

    The danger is clear and extends well beyond the myopic issue of the day. If we allow this, where does it stop? What part of the law is safe from judicial rewrite? What protection, what benefit, what cherished right cannot be overwritten by a sufficiently sympathetic court?

    • 1. It’s just not that slippery a slope.
      2. Would you take the same position on Brown v. Board of Education?
      3. Gender isn’t the basis of anti-gay discrimination, sex is, specifically, who those people are presumed to have sex with. The 1964 law said “sex”, not gender. If it had said gender, these cases might have turned out the other way.
      4. The Dred Scott decision was an example of refusing to interpret a law in such a way that it comported with basic values.
      5. I find the dissenters’ arguments a bit disingenuous. The 1964 law didn’t cover gays and trans individuals because of ignorance: gays were considered perverts, and sex wasn’t the issue. In the case of trans individuals, they weren’t on the radar. Transvestitism was regarded as conduct, not sex.
      6. The extension of your argument would be to claim that the internet, or recordings, or films, are not protected by the First Amendment, because the founders couldn’t imagine such things, so they weren’t protecting them. What a waste of time. The Court, as in this case, is within its discretion to decide that the Constitution covers developments that didn’t exist then.
      7. Or are you in agreement with the Second Amendment foes who say that only muskets and the era’s militias were protected?
      8. In general, the Court’s limited forays into reasonable extrapolation have been wise and beneficial.

      • Furthermore (Have you actually read the majority opinion?), I find Gorsuch persuasive on this point:

        By discriminating against homosexuals, the employer intentionally penalizes men for being attracted to men and women for being attracted to women. By discriminating against transgender persons, the employer unavoidably discriminates against persons with one sex identified at birth and another today. Any way you slice it, the employer intentionally refuses to hire applicants in part because of the affected individuals’ sex, even if it never learns any applicant’s sex….

        We agree that homosexuality and transgender status are distinct concepts from sex. But, as we’ve seen, discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second. Nor is there any such thing as a “canon of donut holes,” in which Congress’s failure to speak directly to a specific case that falls within a more general statutory rule creates a tacit exception. Instead, when Congress chooses not to include any exceptions to a broad rule, courts apply the broad rule. And that is exactly how this Court has always approached Title VII. “Sexual harassment” is conceptually distinct from sex discrimination, but it can fall within Title VII’s sweep. Oncale, 523 U. S., at 79–80. Same with “motherhood discrimination.” See Phillips, 400 U. S., at 544. Would the employers have us reverse those cases on the theory that Congress could have spoken to those problems more specifically? Of course not. As enacted, Title VII prohibits all forms of discrimination because of sex, however they may manifest themselves or whatever other labels might attach to them.

        • I’ve only thought about it from the transgender angle, but to be frank I dont find the majority’s opinion compelling. I find it self serving. They know that the law doesn’t cover the category they’re describing but they really want it to because it’s the right result. And to be fair it is. But that’s not the job of the court. Firing someone because they’re a woman is materially different from firing someone because they’re a woman trying to be a man. The first discriminates based on what they physically are, the second discriminates based on what they desire to be. I think both should be protected but it’s pretty plain to me, and I’d argue any non-biased reading of the law, that the 1940s law only protects one and not the other. The court deliberately conflated gender identity with sex in order legislate from the bench. I, personally, prefer my legislation to come from elected legislators.

          • Firing someone because they’re a woman is materially different from firing someone because they’re a woman trying to be a man.

            No, it’s really not, which was the point of the portion of the opinion Jack quoted. Male behavior/dress/genitalia only becomes a cause to fire a woman because it does not fit a culturally created stereotype of what a woman is. As such, the core of this sentiment is that “they’re not behaving how I think they should based on X charcateristic”. If a character is one that has been declared protected, you can neither force someone to conform to your notions of it, nor penalize them for deviating from those preconceived notions.

            Otherwise, you could say “Firing someone because they’re a woman is materially different from firing someone because they’re a woman who won’t wear dresses” or “firing someone because they’re a woman is materially different from firing someone because they’re a woman who dares to voice her opinion in a meeting.”

            • What contrived hell is this? Not everything downstream of being a man or woman is protected, only the things that are inseparable from having the sex organs of that sex. Firing a woman because she has periods? Unconstitutional. If you have those sex organs you cannot reasonably be expected to not have a period. Clothes? Obviously separable. You can be transgender and still wear the clothes your employer requires. Case in point: you can be a man in a dress and still have the functioning sex organs of a man. The Scottish did it all the time. These things are obviously separable. Likewise if youre a man fired because you refuse to wear the work appointed dress (maybe it wasn;t your preferred shade of pink or the ruffles in the skirt made you look too square idk) then your firing is constitutional because…. your not being fired due to something that is inseparable from your sex organs – just put on the damn dress you manly man you.

              All of which clearly proves a simple fact: Firing someone because they’re a woman is materially different from firing someone because they’re a woman trying to be a man. You can turn the cultural stereotypes on their head (man meet dress) and that statement is still true.

              • Yes, the clothes are obviously separable from the gender, and if you had a dress code that said ALL EMPLOYEES MUST WEAR A DRESS, you could certainly fire someone for not wearing a dress and not worry about what their gender was.

                What you can’t do is separate some employees from the others, and say “this set of employees must wear a dress because they are female, but all others may not” without discriminating between the employees on the basis of being female. Even more so, you can not penalize one employee for failing to do a thing you’ve used a characteristic to say they must, without additionally discriminating against them for not accepting your discrimination. If you decide to fire a woman or a man for a reason that includes the reasoning “they’re a woman (or a man) doing X”, you are clearly making a decision based, at least in part, on your identification of them being a woman or a man, even if the thing is not something intrinsic to them being a woman or a man.

                As the Ruling explains on page 2:… An employer violates Title VII when it intentionally fires an individual employee based in part on sex. It makes no difference if other factors besides the plaintiff’s sex contributed to the decision or that the employer treated women as a group the same when compared to men as a group. A statutory violation occurs if an employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee.

                • “What you can’t do is separate some employees from the others, and say “this set of employees must wear a dress because they are female, but all others may not” without discriminating between the employees on the basis of being female.”

                  Well that just not true. There are many examples of legal and constitutional male female differences in law. The legal definition of nudity, conscription, physical fitness test for government positions that require physical fitness, etc. The list goes on and on. Telling women they can wear one thing and men another is pretty solid legal ground.

      • 1. Except that it is. The Supreme has routinely overwritten constitutionally guaranteed rights.
        2. Separate but equal clearly failed the equality test and was therefore unconstitutional under a fair interpretation of constitutional law.
        3. I don’t really see how it’s relevant. Sex is the bits that you were born with and the law clearly turns on sex.
        4. I disagree, Dred Scott is another example of the Court finding a sympathetic result instead of the one ordained by law. The dissenting opinion notes as much and mentioned black citizens who were clearly covered by the constitution.
        5. Why it didn’t cover a group of people is entirely irrelevant to the simple fact that it doesn’t cover a group of people. The ‘why’ is nice to know but it doesn’t somehow change the fact.
        6. Hardly. If you say speech is free then the medium, regardless of whether or not it can be imagined at the time of writing is irrelevant. The founder said that speech was free and if you consider the word speech ambiguous then you need only look at their intent to resolve it. In this case the intent is abundantly clear – the government cannot act against you for good faith expressions of your beliefs no matter how unpopular they may be with those in power.
        7. This is a pretty classic and weak example of anti-originalism sentiment and it isn’t super relevant to my position. I’ll address it though. The letter of the law is the determining factor and where ambiguity exists the intent is the only ethical way to resolve it. I.e. the right o bear arms is the right to bear arms and if you find ambiguity in the word arms then you need only look at the intent. The intent was to preserve the right of the people for self defense against bad actors from civilians to governments not to limit the people to specific firearms. Point of objective historical fact: repeating rifles were not unknown to the people of the late 1700s. If they wanted to limit it to specific classes of firearms they could have. The founder did not specify the categories of firearms. The legislature of the 1940s did specify categories. For that reason alone the firearms point is, to me, a nonsensical rebuttal.
        8. See point 1 and 4. When the supreme ventures away from the letter of the law and resolution of ambiguity through intent they have mistepped with shocking frequency. Just ask Dred Scott or
        Schenck or Korematsu or many of the other people who have had their constitutional rights trampled by a flexible court.

        • 1. Except that it is. The Supreme has routinely overwritten constitutionally guaranteed rights.
          I don’t know what you mean by “overwritten.”

          2. Separate but equal clearly failed the equality test and was therefore unconstitutional under a fair interpretation of constitutional law.
          A previous case reasoned otherwise, and the Court made up “Separate is inherently unequal.”

          3. I don’t really see how it’s relevant. Sex is the bits that you were born with and the law clearly turns on sex.
          Sex is also the activity one uses those bits for, by “literal” or “common” usage. Ambiguous language allows broad interpretation, which is what Gorsuch said.

          4. I disagree, Dred Scott is another example of the Court finding a sympathetic result instead of the one ordained by law. The dissenting opinion notes as much and mentioned black citizens who were clearly covered by the constitution.

          Clearly, they were NOT, or we would not have needed two amendments to make it so.

          5. Why it didn’t cover a group of people is entirely irrelevant to the simple fact that it doesn’t cover a group of people. The ‘why’ is nice to know but it doesn’t somehow change the fact.

          Why is always relevant when one is examining the purpose of an ambiguous law.

          6. Hardly. If you say speech is free then the medium, regardless of whether or not it can be imagined at the time of writing is irrelevant. The founder said that speech was free and if you consider the word speech ambiguous then you need only look at their intent to resolve it. In this case the intent is abundantly clear – the government cannot act against you for good faith expressions of your beliefs no matter how unpopular they may be with those in power.

          Now you’re cheating. The Amendment says “press,” and subsequent forms of publication are not “press.” In expanding the meaning logically to include what was not anticipated in the original language, the Court did exactly what was done in today’s opinion.

          7. This is a pretty classic and weak example of anti-originalism sentiment and it isn’t super relevant to my position. I’ll address it though. The letter of the law is the determining factor and where ambiguity exists the intent is the only ethical way to resolve it. I.e. the right o bear arms is the right to bear arms and if you find ambiguity in the word arms then you need only look at the intent. The intent was to preserve the right of the people for self defense against bad actors from civilians to governments not to limit the people to specific firearms. Point of objective historical fact: repeating rifles were not unknown to the people of the late 1700s. If they wanted to limit it to specific classes of firearms they could have. The founder did not specify the categories of firearms. The legislature of the 1940s did specify categories. For that reason alone the firearms point is, to me, a nonsensical rebuttal.

          Only because you are, again, arguing against yourself. The Founders weren’t considering future weapons just as Congress wasn’t considering transexuals, but the principles they were articulating and intending to articulate covers what they couldn’t imagine.

          8. See point 1 and 4. When the supreme ventures away from the letter of the law and resolution of ambiguity through intent they have mistepped with shocking frequency. Just ask Dred Scott or Schenck or Korematsu or many of the other people who have had their constitutional rights trampled by a flexible court.

          Thus trampling on obvious rights by an inflexible court is preferable? I think the objective is “not trampling on rights.”

          • 1. Overwritten to write over. To replace something with other writing. I.e. in this context to, replace a law with a new judicially mandated one.
            2. Doesn’t really refute me. Unequal is unequal and unequal was unconstitutional. If separate proved unequal that’s fair game.
            3. In cases of ambiguity refer to original intent. The 1940s law clearly wasn’t referring to the act of sexual intercourse. This is borderline silly.
            4. Who says we needed those amendments? As far as I’m concerned they just reaffirmed pre-existing constitutional rights. Thought experiment: In a functional legal sense, what would happen if the 14th amendment were partially repealed tomorrow? Certainly no one today would say that blacks dont have a constitutional right to citizenship without that amendment.
            5. It’s only ambiguous in a contrived sense.
            6. Now youre cheating. The text affirms both speech and press. “…or abridging the freedom of speech, or of the press” if it only said press then you’d be right but it pretty clearly says speech my friend.
            7. I’m arguing against you and I’m starting to think that your arguing from ignorance on the firearms point. Saying that the founders didn’t consider future weapons is just wrong. They were aware of and actively trying to introduce the weapons of the future. Benjamin Franklin himself undertook many attempts to introduce rapid fire weapons. In 1777, a year before the constitution was even signed, he was advocating that American leaders should expedite the development and production of rapid fire weapons. The founder were not ignorant of the concept of technological advances and unsurprisingly the text of the constitution ages very well because of their careful language.
            8. This is more a case of siding with caution in the face of unclear rights and it is preferable to giving uncollected individuals life long dictatorial powers.

            • 1. Overwritten to write over. To replace something with other writing. I.e. in this context to, replace a law with a new judicially mandated one.

              That’s what I thought. It’s pejorative description of the Court’s legitimate and core function of clarifying ambiguous provisions.

              2. Doesn’t really refute me. Unequal is unequal and unequal was unconstitutional. If separate proved unequal that’s fair game.

              A tautology. That separate is inherently unequal is a supposition, not a fact. Obviously we don’t believe that separate is inherently unequal in many cases.

              3. In cases of ambiguity refer to original intent. The 1940s law clearly wasn’t referring to the act of sexual intercourse. This is borderline silly.

              I assume you mean the 1964 law. Original intent was to forbid sex as a basis for discrimination. Sex is a more complex concept than race or religion. Sex is based on sex organs that have purposes. Using “sex’ is broad. Conmcluding that if the intent was to forbid discrimination on the basis of sex was based on the concept that sex, broadly stated, was not a just basis for abridging rights, it is legitimate for the courts to say, that principle applies to gays and transexuals even though Congress didn’t realize it.

              4. Who says we needed those amendments? As far as I’m concerned they just reaffirmed pre-existing constitutional rights. Thought experiment: In a functional legal sense, what would happen if the 14th amendment were partially repealed tomorrow? Certainly no one today would say that blacks don’t have a constitutional right to citizenship without that amendment.

              That’s a treatise-worthy contention! The Constitution excluded blacks from civil rights and full citizenship. Now, the Declaration did seem to require black rights, but not the Constitution.

              5. It’s only ambiguous in a contrived sense.

              It’s ambiguous because it easily could have been unambiguous, and isn’t

              6. Now youre cheating. The text affirms both speech and press. “…or abridging the freedom of speech, or of the press” if it only said press then you’d be right but it pretty clearly says speech my friend.

              Nice try. “Speech” is oral communication and the written word, “Press” is mass communication via publication. Assembly is conduct. From that, SCOTUS has added everything from flag burning and draft card burning to pornography and political contributions to speech, and radio and TV broadcasts, blogs and more to “Press” because these unimagined extensions were obviously within the intended concept—just like discrimination against gays is well-within the concepts of the 1964 law.

              7. I’m arguing against you and I’m starting to think that your arguing from ignorance on the firearms point. Saying that the founders didn’t consider future weapons is just wrong. They were aware of and actively trying to introduce the weapons of the future. Benjamin Franklin himself undertook many attempts to introduce rapid fire weapons. In 1777, a year before the constitution was even signed, he was advocating that American leaders should expedite the development and production of rapid fire weapons. The founder were not ignorant of the concept of technological advances and unsurprisingly the text of the constitution ages very well because of their careful language.

              You can’t possibly call the absurdly convoluted language of the Second Amendment careful! And Franklin had nothing to do with the Second amendment. Because of the weird 2nd language, foes of the Second Amendment argue that it has no application today, since it was specific to volunteer militia of the times. I don’t believe that at all, but, again, keeping the 2nd strong requires applying it to technology the Founders were not imagining.

              8. This is more a case of siding with caution in the face of unclear rights and it is preferable to giving uncollected individuals life long dictatorial powers.

              But the rights here are NOT unclear. They are obvious. Since they are obvious, the Court enabled them.

              • 1. An accurate description of many of their historical rulings. The fact that it’s their job doesn’t shield them even pejorative labels when they make egregious and clearly unconstitutional mistakes. We’ve already talked about many of such mistakes.
                2. Separate but unequal was demonstrable fact. Black public services were fewer in number and lesser in quality demonstrably so.
                3. That is shockingly reductive of race and religion. Sex is clearly less complicated than race or religion. Do you have a penis, yes or no? With that simple yes/no questions sex is resolved something like 99+% of the time. Find me one yes or no question that can solve what race someone is or what’s a real religion with 99+% confidence and then we’ll talk about sex being more complicated.
                4. I’ve already said that I disagree that the constitution excluded blacks and that the Supreme Court did as a matter sympathetic interpretation. There were voting black citizens before that case.
                5. Circles. At least more clearly so than other points.
                6. That’s, plainly, not a complete definition of the meaning of the word speech, and to be clear any ambiguity about the definition is resolved by the considering the original intent. When they considered that intent they got it right, when they didn’t they had to bend over backwards to justify and it roll it back when subsequent courts were too embarrassed by it. Schenk is the classic example – you yourself have linked to a Popehat article explaining Holme’s later regret over this case.
                7. Franklin is a clear example of how early American legislatures were aware of repeating firearms. The idea that they weren’t aware of them and didn’t consider them is absurd given the fact that they were aware of them and had clear implications on the law at hand. It’s be like saying congress today would pass an act regarding digital currency without thinking about bitcoin – preposterous. The language of the constitution in general is careful and in this amendment the lack of qualifier is careful even if the rest of the amendment isn’t.
                8. They’re only obvious if you adopt the position that sex extends to gender identity. I would say at least half of America if not more than half would disagree with that. Even in popular leftist discourse sex and gender identity are not used interchangeably. You’re stating as fact something that is not – it’s clearly not obvious. Even in a fantasy land where America wasn’t hotly debating this right now because the issue was already resolved (maybe the court has a crystal ball I don’t about) the fact still remains that the court is unellected, serves for life, and has irrefutable practical legislative power that they have shown a willingness to use in the past and in the present. Under that context it is wiser to say that the court should err on the side of caution so as to not dangerously usurp the power of the legislature and in doing so create more Dred Scotts and Korematsus. At least that way if the US government did perpetrate more constitutional injustices we could at least fire the people who did it.

                • If you do not do what the perverse factions who are now beginning to assert greater control pan-culturally want . . . they will burn your world down.

                  Have you by any remote chance glanced out your window?!?

                  …the fact still remains that the court is unelected, serves for life, and has irrefutable practical legislative power that they have shown a willingness to use in the past and in the present.

                  Someone has got to take up the heavy responsibility for making the unquestionably ethical choices.

                  This is necessary activism and it serves a higher ethical purpose. The health of the nation obviously.

    • First, in the thread below the law you’re referring to is from 1964 not the 1940s. But I digress.

      What struck me about this decision and your comment was the following:
      “The correct resolution is for the legislature to update the law”

      Wasn’t that exactly the reasoning the Court used in striking down parts of the 1965(64?) Civil Rights Act? That is, the specific states and cities Congress had written into the law had obviously changed over 50 years, but Congress hadn’t updated them. The Court said, as I understood it, that it was for Congress to keep their laws up to date (more or less).

      So in essence the Congress was restricting the right of self-government for specific states and cities, and I think the Court said that they could do that, but they couldn’t specify who the transgressors were forever and ever without revisiting the issue. Is that kind of a correct interpretation? I actually ask this as well for Jack and the constitutional experts here.

      Is that totally different from this case?

  4. Is it just me, or does Ruth seem to be thinking “Oh PLEASE God; just let me die already!” in the above picture?

    • Hehe…..seriously what did strike me about that picture is how old some of the other justices look.

      Let’s hope they are all practicing their social distancing, if not living in a hermetically sealed bubble.

      Can you imagine the uproar if 4 or 5 of them were to kick off because of the coronavirus? It’d make Kavanaugh look tame.

  5. I think this was probably better than creating a costly political fight in the legislature. I could throw out some crack about the “brown, stinky tide,” but I’ll skip.

  6. Very impressed with the quality of debate, in the original post, in the comments here, and within the opinion and dissents.

    A few points

    -:all the justices admitted that the discrimination was wrong in some sense, even as they disagreed about its legality. That is the biggest win, long term.

    – had the 1964 act been passed word for word in 2014, the plain text and everyday meaning as is would have prohibited discrimination. That’s the problem – how would one change the existing legislation so it disallows discrimination when the wording as is already does so under current usage?

    – conversely, original intent is what the law was supposed to mean. Again, blame Congress for not updating the law as meanings have changed over time, if allowing discrimination is what they meant to do. (They did mean to). But are we to completely ignore what original intent was? That seems very dangerous.

    – Congress is wholly dysfunctional. Explicit bills implementing the Court’s interpretation have passed in the House, but not the Senate, or passed in the Senate, but not the House, in various Congressional terms over the last 4 decades. The legendary and infamous Bella Abzug introduced the first in the 70s. One of the main arguments against even considering such bills is that they were not necessary, the Civil Rights Act 1964 already provided such protection, as the court has just found. Not that the opponents of the bills believed that…

    Finally, I would recuse myself from this case as lacking objectivity.

  7. Jack wrote: I don’t believe that at all, but, again, keeping the 2nd strong requires applying it to technology the Founders were not imagining.

    Keeping the 2nd Amendment strong has value on its face.

    Turning the people of a nation into a nation of perverts; allowing and encouraging bizarre sexual *identifications* and polluting the necessary and natural binary categories that define human life . . . is perverse progressivism. It is an entirely different category. Non-comparable to the ‘intent’ of the 2nd amendment.

    Deviations and novelty should be discouraged, and all strange and perverse form fo sexual expression should be reigned in.

    That is the *proper ethic*. Any other declaration is ‘perverse ethics’.

    OK. I win! 🙂

    • The NYTs Hyper-Progressive opinionators brought up the same things:

      In a lengthy dissent that sounded like it was written in 1964, Justice Samuel Alito, joined by Justices Clarence Thomas, argued that the court’s job is to interpret statutes to “mean what they conveyed to reasonable people at the time they were written.” It’s hard to imagine these justices applying the same logic to the meaning of the Second Amendment, which reasonable people at the time understood to apply to bayonets and muskets. But we digress.

  8. Justice Kavanaugh’s dissent was far from trivial, as it was the unanimous holding of all federal courts of appeals from 1964 to 2017.

    I wonder what this means for employers who make special accommodations for trannies. If trannies are allowed to use locker rooms reserved for the opposite sex, but normal people are not, is this forbidden by the 1964 Civil Rights Act per the Court’s interpretation in Bostock?

    • “Trannies”, like “Niggers” is deprecated.

      The past erudition shown in your comments earns you a pass though. No deliberate malice was meant, so no offence was committed.

      Normal people.. like Albert de Salvo, Charles Manson, and yourself, you mean? I’d put the first two in one category, yourself in another.

      As for special accommodation – women (be they Latina, Black,Trans, Jewish..) in one category, men (be they French, Intersex, Catholic…) in another. No special accommodation needed, no “ladies”, “gentlemen”, “colored” as was the case in the US in my early childhood.

      • Well let’s work this one a little. First, the word ‘nigger’ has no negative connotation at all. It did at one time I guess. I watched a David Chappelle monologue on the death of George Floyd and he used the word nigger dozens of times. He referred to Don Lemon as a nigger. I think he referred to Obama as a nigger as well. So, while it is not a word that I use or have any reason to use, I wanted to make it clear that it is not a bad word obviously. Feel free to use it.

        The issue, the larger issue, the meta-issue here is not in the minutia of the names assigned to transsexuals or any aspect of terminology for homosexuals, nor for the widening lexicon for a vast stream of sexual perversions that are being normalized, but simply that they are being normalized. Eventually, they will be abnormalized again.

        What is happening today is that people and institutions who desire to normalize perverse behaviors stand back from the issue and, scientifically, discuss how they might go about normalizing what is not seen as normal. Years ago I referred to the campaign waged in America by PR experts and psychologists with the intention of normalizing homosexual behavior. To make it seem just like a meaningless choice, say between two different flavors of icecream. Non-different. Along with that effort there was a concomitant effort to portray anyone who thought of homosexual perversion, and sexual deviation generally, in the ‘old way’ as themselves having the pathology. “Oh, you have a problem with someone’s choice of icecream flavor? Wow! You really are messed-up!” It is called ‘transvaluation of values’. There is a great illustrative video by Taylor Swift that nicely illustrates the combination of psychological PR with social shaming combined into a … what is it exactly? What are these *texts*? They are vehicles for social modification received by DRUNK PEOPLE. That is to say people who have been anesthetized, or stunned, or seduced, and with their moral and ethical guard down, all sort of perverse material can be streamed in. It fills the mind and the imagination that, in the best of circumstances, should be directed to Higher Things.

        So you, Jack, and many other people who write on this blog miss the point. You can’t even see the point. And you do not care about the point! You do not WANT to see the point.

        This leads of course to the more important question: Why Is This? For those of us who can *see*, and do *see*, and resolve not to be tricked & seduced, we watch you become ADVOCATES FOR PERVERSION. You do this blindly because you do not see. But you do it willfully when, as I have done and others do, you turn against the higher ethical imperative to serve processes that result in perverse diminishment.

        Now here is another aspect of this, of *all of this*. Your nation is now going up in flames. And you stand there, immobilized, and you simply catalog and ‘document’ the vast destruction going on. You cannot make any connection between the negroes (it is better than the other word no? or is it worse?) burn down the world. Ever read the Kafka story An Old Manuscript? Well, they have invaded the central plaza and are setting up camp. There are connections — causal chains I call them — between everything going on today and choices made in the past. I write about this extensively. The use of sexual perversion and sexual seduction has a definite place in the processes through which a free people is rendered unfree. E Michael Jones has written extensively on this topic and there are tens fo thousands, maybe even millions, of people who are beginning to pay attention.

        The destructions that we notice now, the blind willful tearing down of things of value by those who have been possessed by lower order appetites is what we are concerned with. And what you — my elders — should be concerned with. But you are not! Because you are DRUNK. Stoned or stunned or simply confused.

        The world that you allowed to fall apart is the world that you will leave behind to US to remediate.

        So here I have given you the *proper organization* of the necessary understanding requires to see, more clearly, what is going on. You either will pay attention . . . or I guess you won’t.

        • Alizia,
          I do read and attempt to understand your comments here on EA, and a lot of the time I find myself in agreement with what seem to be many of your key points, if I am correctly perceiving what I read. For example, many of your comments above. I read Wilmot Robertson when I was in graduate school in the 1980s. This was at a time when “diversity” was becoming a big thing in organizational development, and the obvious lie that “diversity is strength” really struck me as an idea that should be refuted. (My professor did not appreciate my efforts to do so.) I have seen Robertson’s predictions come true and recent events seem to be accelerating the process of dispossession.
          Admittedly, my experiential background is rather limited. I grew up in and now again live in a rural county that has only 8% minority population. I have lived only in the mid-south US and have never traveled outside North America. I attended state universities. I retired from a long law enforcement career and now do independent part-time consulting, training and technical assistance for criminal justice agencies.
          So, my question is: Where do we Americans go from here, if we are “paying attention,” as you say. How do we constructively channel our concern? What specifically do you suggest as a solution to the current situation?

          • Thank you very much for your comment. When I get some response it helps to calm my polemical nature. In my own case I am not a political activist but a researcher with philosophical leanings. Obviously, I am a precocious and rather pretentious sort but I think it fair to say that I am trying to *do my homework*.

            So the questions I always ask — What is going on? What is the meaning of this? — are the questions I try to answer. It takes a lot of research.

            If it has taken us a minimum of 50-60 years to get into this mess, it will take a similar amount of time to reverse it. If we really do begin to think in meta-political terms, which I have come to see as necessary, I think we have to begin to think in terms of European civilization and not just America or the American experiment. What I can say with certainty is that in Europe, in all of the former English colonies, in South Africa, and also to some degree in the Southern Cone of South America, there is a developing sense of solidarity among people with a genuine interest in protecting them self. And a developing sense of ‘common interests’.

            In my own way of seeing things this [cultural renovation] can happen and should only happen through a renovation of a Christian spirit but that is a problematical assertion since, as it happens, the conservative ideas I have are associated with darker currents. But renovation can only be spiritual.

            I do not think that there is, yet, an ‘answer’ to the question you ask. Any action is precipitous. One cannot act until one is fully cognizant of the depth and extent of the problem.

            Right now it seems crucial to pay attention to how the forces that surround us, whether as *enemy* or as *adversary* (there is a difference), engages in actions to limit the conversation; to shut certain people out of it; to exclude them. I cannot help but see the recent events in the US as an extension of this: ramping up of the oppositional current; encouraging and inciting outrageous levels of illegality! The contradiction is absurd. We are no allowed to ‘peacefully gather’ but they give them self the right to burn 50 cities.

            The only option that I see now is that of education and conversation. What else can be done? The opposition is very powerful.

            What I can say — and you can verify this — is that Wilmot Robertson’s book is predicated on ideas and perceptions that are not allowed, in any degree, within any mainstream conversation. But there are 10 titles that should be read that are in the same category. I began with Richard Weaver’s Ideas Have Consequences and Robert Bork’s Slouching Toward Gomorrah. Ideationally, I am still dealing with those.

            Where do we Americans go from here. . .

            There is of course the problem of which America you are speaking about. There are numerous and they are not united in will.

          • One of the reasons why the question you asked is a tough one is because there is no good reason to imagine that things are going to turn out very well. Not just for a *white demographic* of the *dispossessed* (as I tiresomely refer to) but for everyone. We are in a time of immense danger. The systems that have been set up are unstable. The world may be headed for significant readjustments. It is far more complex than I am able to process (and I have a rather limited area of interest and reading experience — and next to no practical experience).

            I listen to a wide assortment of people. Oddly enough (though many might think not) it turns out that I have a certain admiration for Richard Spencer. I first heard of him long before he became known or famous (quote/unquote) because he had a podcast and did many interviews with Jonathan Bowden, one of the most interesting speakers I have ever listened to (and a Nietzschean proto-fascist: full disclosure!). For odd reasons I was tuned-in to the so-called Alt-Right before it was ‘alt’. This was right around the time I was reading Weaver and Bork.

            You might, and others might, be interested in keeping your ear to the wall (or whatever the proper metaphor is) to understand what has happened to the Alt-Right. The Dissident Right is not in a strong position. All other players from BLM to the Islamist groups have far more general popular support, and far more State support, than the dissident right. There is still a steady increase of visits to the websites that are famous for the dissemination of Dissident Right perspectives, and so despite efforts they still have apparent reach and influence. But virtually no in-roads toward the political center.

            In any case, to understand a little better the perspectives of these unusual and quixotic players on the Dissident Right the following video (Keith Woods (Irish) and Richard Spencer just talking) might be of interest. Anyway I found it interesting.

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