Supreme Court Rules LGBT Discrimination Illegal

The 6-3 opinion written by Justice Gorsuch and joined by Chief Justice Roberts defies conventional wisdom.

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A rather stunning ruling today by a conservative-leaning high court vastly expanding the rights of gay and transgender individuals.

WaPo (“Supreme Court says gay, transgender workers are protected by federal law forbidding discrimination on the basis of sex“):

The Supreme Court ruled Monday that federal anti-discrimination laws protect gay and transgender employees, a major gay rights ruling written by one of the court’s most conservative justices.

Justice Neil M. Gorsuch and Chief Justice John G. Roberts Jr. joined the court’s liberals in the 6 to 3 ruling. They said Title VII of the Civil Rights Act of 1964, which prohibits discrimination “because of sex,” includes LGBTQ employees.

“Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear,” Gorsuch wrote. “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

Gorsuch and Roberts were joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.

“This is a huge victory for LGBTQ equality,” said James Esseks of the American Civil Liberties Union. He added: “The Supreme Court’s clarification that it’s unlawful to fire people because they’re LGBTQ is the result of decades of advocates fighting for our rights. The court has caught up to the majority of our country, which already knows that discriminating against LGBTQ people is both unfair and against the law.”

For 50 years, courts interpreted Title VII’s prohibition on discrimination because of sex to mean only that women could not be treated worse than men, and vice versa, not that discrimination on the basis of sex included LGBTQ people.

The dissenting justices — Clarence Thomas, Samuel A. Alito Jr. and Brett M. Kavanaugh — agreed with that view.

“If every single living American had been surveyed in 1964, it would have been hard to find any who thought that discrimination because of sex meant discrimination because of sexual orientation — not to mention gender identity, a concept that was essentially unknown at the time,” wrote Alito, who was joined by Thomas in his dissent.

The dissenters said their colleagues were amending the law, not interpreting it.

“The court has previously stated, and I fully agree, that gay and lesbian Americans ‘cannot be treated as social outcasts or as inferior in dignity and worth,’ ” Kavanaugh wrote, quoting a previous case.

But he added: “Our role is not to make or amend the law. As written, Title VII does not prohibit employment discrimination because of sexual orientation.”

Gorsuch, President Trump’s first nominee to the court, said that was wrong. The text of the law makes clear that gay and transgender workers who are fired are fired because of sex, he wrote.

“It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex,” Gorsuch wrote. “Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.”

Gorsuch acknowledged that lawmakers in 1964 were probably not protecting gay and transgender workers. But the words of the statute they wrote do that, he said.

“Likely, they weren’t thinking about many of the act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees,” he wrote. “But the limits of the drafters’ imagination supply no reason to ignore the law’s demands.”

SCOTUSBlog’s Amy Howe notes that, “Because fewer than half of the 50 states currently ban employment discrimination based on gender identity or sexual orientation, today’s decision is a major victory for LGBT employees.”

She also pointed to the reasoning offered by the dissenters:

Justice Samuel Alito filed a sharp dissent that was joined by Justice Clarence Thomas. Alito wrote that there “is only one word for what the Court has done today: legislation.” He noted that last year the House of Representatives passed a bill that would make clear that Title VII’s ban on sex discrimination includes discrimination based on sexual orientation and gender identity, but that the bill stalled in the Senate.

Today, Alito contended, his colleagues in the majority have “essentially taken” that bill “and issued it under the guise of statutory interpretation. A more brazen abuse of our authority,” Alito suggested, “is hard to recall.” The real question before the court, Alito stressed, is “not whether discrimination because of sexual orientation or gender identity should be outlawed. The question is whether Congress did that in 1964. It indisputably did not,” Alito argued.

Justice Brett Kavanaugh filed his own dissenting opinion. He framed the question before the court as “whether Title VII should be expanded to prohibit employment discrimination because of sexual orientation.” In his view, “the responsibility to amend Title VII belongs to Congress and the President in the legislative process, not to this Court.” And, he added, “when this Court usurps the role of Congress, as it does today, the public understandably becomes confused about who the policymakers really are in our system of separated powers, and inevitably becomes cynical” about the idea that judges make their decisions based on the law, rather than on their personal preferences. “The best way for judges to demonstrate that we are deciding cases based on the ordinary meaning of the law is to walk the walk, even in the hard cases when we might prefer a different policy outcome.”

Kavanaugh concluded by acknowledging “the important victory achieved today by gay and lesbian Americans. Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result.” But Kavanaugh reiterated his belief that Congress, rather the Supreme Court, should have been the source of that result.

Ordinarily, I would side with Alito and Kavanaugh on this. While my instinct is to interpret the Constitution according to how the text would have been reasonably interpreted at the time, I’m sympathetic to the notion that, since it’s nearly impossible to amend, it has to be treated in some sense as a living document informed by changing norms. It’s much harder, though, to argue for such an expansive view of legislation. If Congress doesn’t like how the courts rule on a statute, they can simply change it.

While I agree—and it seems that Alito and Kavanaugh do as well—with the policy outcome of this ruling, I find Gorsuch’s reasoning bizarre. If future courts can interpret laws in ways that were not only clearly not intended but would have frankly been considered bizarre by those who wrote them, then they should all come with sunset provisions. And, make no mistake, in 1964 it likely occurred to literally no one on Capitol Hill that prohibiting discrimination on account of sex could be used in this fashion.

In my ideal world, then, the Justices would have ruled that, as much as it dismayed them from a public policy standpoint, nothing in federal law precludes discrimination on account of sexual orientation or gender dysphoria. And, recoiling in horror that this was the case, Congress would promptly change that.

There’s an argument that Gorsuch and company could have arrived at the ruling they wanted without torturing the Civil Rights Act of 1964. Recent precedents, most notably United States v. Windsor (2013) and Obergefell v. Hodges (2015), have rendered sexual orientation a protected class under the due process clauses of the 5th and 14th Amendments. That wouldn’t directly implicate actions by private employers, which was at stake in this case, but could conceivably change the interpretation of sex discrimination law.

FILED UNDER: Gender Issues, Law and the Courts, Supreme Court
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. SKI says:

    Here is where we especially miss Doug who came around on the legal arguments that James is completely whiffing on.

    See if you can wrap your mid around this, James…

    Company has two employees, Joe and Sally. Both come to the Holiday party with their spouse, Jennifer. Company fires Sally. They fired her because she is female and they don’t think females should have female spouses. They didn’t fire Joe because he is male and they think males should have female spouses.

    That is 100% within the explicit statutory language. There is no “torturing” the language. It is precisely what Price Waterhouse stands for.

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  2. Kathy says:

    1) What renders the law free from the effect of unintended consequences?

    2) I’m reminded of something Robert Heinlein said about paymasters in one of his late novels. He explained a bad one would hold up the book, and explain why they couldn’t do as the payee needed. A good one would keep looking in the book until they found a means to do as requested.

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  3. @James:

    I find Gorsuch’s reasoning bizarre.

    Recognizing that we have long disagreed on some of these interpretive issues before, I am going to say that I don’t find it bizarre at all while agreeing that “in 1964 it likely occurred to literally no one on Capitol Hill that prohibiting discrimination on account of sex could be used in this fashion.”

    The fact that no one could conceive it at the time doesn’t change the prohibition on not discriminating because of sex. (Any more than Madison could not have conceived of the internet, and yet the First Amendment press protecting accrue to publications there).

    I would even go further and argue that the spirit of the 1964 law, even if not intended at that time, is in concert with this ruling.

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  4. Sleeping Dog says:

    Perhaps for the majority it simply comes down to that absent injury to others, an individual is entitle to live their lives as they see fit. A same sex spouse or a person whose emotional make up doesn’t match their physical appearance, who chooses to be true to their emotional self, doesn’t hurt anyone else. The justifications are legal window dressing.

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  5. @Kathy:

    What renders the law free from the effect of unintended consequences?

    Indeed.

    In fact, I suspect that a host of laws are applied in ways and under conditions never conceived of by their authors.

    Indeed, I find the whole notion of “original intent” highly, highly flawed.

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  6. Jen says:

    And, recoiling in horror that this was the case, Congress would promptly change that.

    I don’t see Congress “promptly” changing this. The House, yes. The Senate, nope. And Trump would not sign it.

    I understand what you’re saying, but I’m glad the court ruled in this way. Perhaps they are taking the ineptitude of the current Senate into consideration, I don’t know. But treating people the right way, and fairly, isn’t something we can expect from some employers–or from many members of Congress.

    Depending on the Senate, in particular, to do the right thing is an exercise in futility.

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  7. James Joyner says:

    @Steven L. Taylor:

    The fact that no one could conceive it at the time doesn’t change the prohibition on not discriminating because of sex. (Any more than Madison could not have conceived of the internet, and yet the First Amendment press protecting accrue to publications there).

    As noted in the post, I think an ever-expanding reading of Constitutional rights easier to justify than for statutory interpretation. In the former, it’s perfectly reasonable to assume that any new technical means of spreading ideas is “the press,” while judging attempts to regulate them (spectrum concerns, decency, copyright concerns, etc.) on reasonableness. But homosexuality was a well-known phenomenon in 1964. If Congress had intended to provide hiring protection on the basis of sexual orientation, it would have explicitly done so. Transgender issues were likely not on Congress’ radar screen but it would have been patently absurd to have interpreted the language in this way then.

    And, again, Kavanaugh is right: Congress can just change the law to expand protections if that’s what society demands. Here, the courts are literally re-writing the law.

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  8. SKI says:

    @Sleeping Dog: While that would be nice, that is very much not what the Majority did. They determined, accurately in the minds of most legal experts, that the statutory language “on account of sex” did in fact bar discriminating in the cases before them.

    Their reasoning tracks pretty much identically to the reasoning in Price Waterhouse where the Court found that it was a violation to discriminate against an employee because she wore pants, not skirts. That discriminating against her because she didn’t fit expected gender stereotypes did violate the statute’s prohibitions.

    In these cases, the Court did the same exact thing. Employers can’t discriminate against someone who doesn’t conform to gendered stereotypes in how they present or who they choose/reject as partners.

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  9. James Joyner says:

    @Jen:

    Depending on the Senate, in particular, to do the right thing is an exercise in futility.

    I don’t dispute that. But, alas, that’s supposed to be how we write laws in this country.

    Not that precedent matters much in the grand scheme of things, because Justices can always torture their way to justifying doing what they want to do. But it’s much more likely that future courts will, at least in the 10-15 year run, subvert laws in ways we dislike that in ways we like.

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  10. SKI says:

    @James Joyner:

    Here, the courts are literally re-writing the law.

    No, they aren’t.
    You, or Brett Kavanaugh saying that doesn’t make it true.

    Explain how this doesn’t fit the PWC model. Just try.

    That a law has consequences the drafter didn’t intend isn’t new. The plain language is what it is.

    And to turn your whine on its head, if Congress *didn’t* intend this result, they can promptly change the law.

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  11. Stormy Dragon says:

    @James Joyner:

    I think an ever-expanding reading of Constitutional rights easier to justify than for statutory interpretation

    Isn’t this kind of backwards from the normal idea that rulings should be based on a statutory basis instead of a constitutional basis whenever possible?

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  12. @James Joyner:

    the courts are literally re-writing the law.

    Unless I am missing something, they are not adding to the words on the page.

    If you fire a person for being gay, is that not because of sex? (In this case the person not conforming to the employer’s view of how a person of a given sex ought to behave).

    If the law says you can’t discriminate on the basis of sex, then I don’t see the Court’s rulling as rewriting the law.

    And yes, Congress could do a lot of things, and it isn’t going to (unfortunately).

    I will agree that if we had a more representative legislative body, we might get an issue like this addressed legislatively.

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  13. Stormy Dragon says:

    One other thing to note: even if we buy the “the law is ambiguous, but congress probably never intended to address this issue, so we must wait until they do” argument, why is the waiting state “discrimination is legal until congress decides otherwise” and not “discrimination is illegal until congress decides otherwise”?

    There’s an implicit assumption here that anti-LGBT discrimination is the natural state and must be explicitly overridden.

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  14. James Joyner says:

    @SKI: Price-Waterhouse is a hot mess of overlapping opinions, none of which constitute a majority (even though it adds up to a 6-3 ruling), so it’s really hard to make much of it.

  15. @James Joyner:

    But it’s much more likely that future courts will, at least in the 10-15 year run, subvert laws in ways we dislike that in ways we like.

    This is a real problem–but it is the problem of having a constitutional court in the first place. (The notion that we were once bound by “original intent” and then have entered an era of it loosening isn’t actually true–it is a story told to us back in the 1980s by conservative activists and it is still told today).

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  16. @SKI:

    if Congress *didn’t* intend this result, they can promptly change the law.

    A worthwhile reply. If this is really in contradiction to what Congress wants, it can fix it.

    I guess my overall bias here is for more expansive interpretations of rights than the opposite.

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  17. Jen says:

    @James Joyner:

    But it’s much more likely that future courts will, at least in the 10-15 year run, subvert laws in ways we dislike that in ways we like.

    Oh, I know. I just keep going back to what today would have looked like had the Court ruled differently. To call it insult heaped on injury would be putting it mildly. I know they aren’t supposed to think like that, but…these Justices are human beings. I do wonder what impact the current climate has on their mindset, and the willingness to approach a problem differently. Are they interested in justice? If so, this is the right ruling.

    Put another way, you’re sitting there in your robe, and not only is it within your power to make certain that people subject to discrimination will be treated equally going forward. Furthermore, you note, (not incorrectly, I might add) that it’s likely not going to be done otherwise.

    I’ve seen it argued that Roe wouldn’t have needed to be decided by the Supreme Court, if it had just been given a bit more time it would have passed by Congress, and thus muted this push for ever-more conservative justices (and the loathsome bunch at Judicial Watch). I’m not sure that’s accurate, and we will never know for sure. Same holds true here.

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  18. James Joyner says:

    @Stormy Dragon: Completely different issue. Because the Constitution is deliberately short and vague, there’s a better argument to be made for an expansive interpretation of rights. While I would have preferred, for example, gay marriage to have been affected by statute rather than judicial fiat, I think Oberfell was a reasonable interpretation of the 14th Amendment as most understood it in 2015. Statutes, on the other hand, are much more abundant and much easier to change. So I oppose judges writing their intent into them.

    @Steven L. Taylor: The law was written 56 years ago. Homosexuality was a thing at the time and has been since. So, it seems bizarre to me that, suddenly, that law bans employment discrimination on the basis of homosexuality.

    @Stormy Dragon:

    There’s an implicit assumption here that anti-LGBT discrimination is the natural state and must be explicitly overridden.

    In terms of statute, I’d say yes. It was very much the norm in 1964.

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  19. @James Joyner:

    The law was written 56 years ago. Homosexuality was a thing at the time and has been since. So, it seems bizarre to me that, suddenly, that law bans employment discrimination on the basis of homosexuality.

    I understand what you are saying. But you really aren’t addressing what I (and, Gorsuch, I think) is saying. The variable is sex. The law says you can’t fire someone on the basis of sex. When someone is fired for being gay, it is about their sex. Is it really that bizarre to say that the law applies here?

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  20. Pylon says:

    “The law was written 56 years ago. Homosexuality was a thing at the time and has been since. So, it seems bizarre to me that, suddenly, that law bans employment discrimination on the basis of homosexuality.”

    It’s not the law that suddenly bans it. It’s that the courts have suddenly recognized that this is what the law does.

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  21. MarkedMan says:

    @James Joyner: Put another way, the rights of the minority must be protected not by the courts and the law, but by the whims of the majority.

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  22. Jen says:

    @Pylon:

    It’s not the law that suddenly bans it. It’s that the courts have suddenly recognized that this is what the law does.

    This is a very succinct way of articulating this, which I will reference going forward. Thank you.

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  23. sam says:

    A must-read article on this: The Three-Letter Word That Triggered a Revolution. The word ‘sex’ was inserted in the 1964 Civil Rights Act by arch-segregationist Howard Smith (D. Virginia) who hoped it would kill the act. Writing in advance (2019) of the cases just decided yesterday, the author of the article (Todd Purdam) wrote:

    …[G]ay-rights advocates have at least some reason for hope in precedent, and in the words of one of the Supreme Court’s most conservative modern-era members, Antonin Scalia, who wrote the majority opinion in a 1998 case involving a claim of sexual harassment by a male oil-platform worker who contended that other men on the rig had harassed him: “Male-on-male sexual harassment was assuredly not the principal evil Congress was concerned with. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed[my emphasis].”

    The legislative climate that produced the 1964 Civil Rights Act is as distant from our own day as candlelight and clipper ships. The final bill passed the Senate 73–27, with 27 Republican votes. But the debate over its passage was every bit as bitter and divisive as any contemporary argument. At the height of his fight against it, Howard Smith complained that the bill was “as full of booby traps as a dog is of fleas.” How fitting, then, that all these years later, Smith’s own little flea-bitten booby trap might just yet again produce a once-unanticipated but salutary result.

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  24. Kathy says:

    @James Joyner:

    But it’s much more likely that future courts will, at least in the 10-15 year run, subvert laws in ways we dislike that in ways we like.

    Didn’t they already do this with the Kelo decision?

    I’m not clear they considered the “well regulated militia” clause of the 2nd amendment, either.

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  25. Kit says:

    @James Joyner:

    The law was written 56 years ago. Homosexuality was a thing at the time and has been since. So, it seems bizarre to me that, suddenly, that law bans employment discrimination on the basis of homosexuality.

    56 years ago, people were likely to think of homosexuality as a perversion or disease. While some still do, that’s now far outside the mainstream. Once we started waking up to the fact that homosexuality was not only natural but quite common, the spirit of these anti-discrimination laws couldn’t help but be extended. And at some point, one just grows sick at having to see each marginalized group having to fight for the dignity of being considered as equals.

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  26. MarkedMan says:

    @SKI:

    And to turn your whine on its head, if Congress *didn’t* intend this result, they can promptly change the law.

    Exactly. Congress wrote a law. They didn’t mean it to apply in certain cases. Literally, couldn’t even conceive that the it would. This happens all the time. Every discovered loophole in the tax laws, every tortured legal interpretation allowing companies to import something like the Subaru Brat as a four seater, and a hundred thousand other twists and turns of legislation comes back to the same thing: If congress didn’t mean to do that they must rewrite the law. Why, in this case, should we put the burden on the courts to second guess the language?

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  27. Teve says:

    @MonicaHesse

    Still wading through the Supreme Court dissent. It’s amazing how some Justices know for certain that “discrimination by sex” only referred to straight people in 1964, but are also certain that “right to bear arms” in 1789 referred to bazookas, flamethrowers, AR15s and whatnot.

    12:42 PM · Jun 15, 2020·Twitter Web App

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  28. CSK says:

    Ironic, given that trans people lost their health care protections on Friday, June 12, 2020. That ruling was based on interpretation of sex as biological sex.

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  29. Jon says:

    @sam: Thanks, very interesting indeed!

  30. Han says:

    @Pylon:

    It’s not the law that suddenly bans it. It’s that the courts have suddenly recognized that this is what the law does.

    Yes, this exactly.

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  31. Kathy says:

    @CSK:

    I expect given today’s SCOTUS ruling, the lawsuits against El PITO’s executive order should succeed in erasing its effect.

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  32. CSK says:

    @Kathy:
    That was my thought.

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  33. James Joyner says:

    @Pylon

    : It’s not the law that suddenly bans it. It’s that the courts have suddenly recognized that this is what the law does.

    Again, I’m more sympathetic for that argument applied to Constitutional rights than statutory ones.

    @SKI:

    if Congress *didn’t* intend this result, they can promptly change the law.

    Sure. But it’s weird, indeed, for Congress to have to pass a new law so that the law is applied the way it was intended to—and was—for 56 years.

    @MarkedMan:

    Put another way, the rights of the minority must be protected not by the courts and the law, but by the whims of the majority.

    Ultimately, yes. But the Constitution provides a whole lot of broad protections and statute provides oodles more. It’s not up to the courts to gin up new rights, especially by torturing statutory law to suit the policy ends they prefer.

    @Kit:

    56 years ago, people were likely to think of homosexuality as a perversion or disease.

    Right. And that’s why I’m much more sympathetic to SCOTUS rulings saying that, as of 2012 and 2015, the equal protection clauses applied to gays even though they clearly weren’t intended to in 1791 and 1867.

    @MarkedMan:

    Every discovered loophole in the tax laws, every tortured legal interpretation allowing companies to import something like the Subaru Brat as a four seater, and a hundred thousand other twists and turns of legislation comes back to the same thing:

    But I presume this is a matter than Congress delegated to regulatory agencies, yes?

  34. James Joyner says:

    @Teve: That’s a cute tweet but not factually correct. The courts have long upheld restrictions against the likes of bazookas and, indeed, machine guns and other automatic-fire weapons. It’s harder to argue that ordinary small arms of the day aren’t “arms” under the 2nd Amendment.

  35. Kit says:

    @MarkedMan:

    If congress didn’t mean to do that they must rewrite the law. Why, in this case, should we put the burden on the courts to second guess the language?

    If this had been thrown back to the legislature the very first time this argument was made, then we’d likely have a 40-year-old law stating that it was legal to discriminate against homosexuals. It’s not difficult to then imagine a world where the only recourse would then be to get the SC to declare that new law unconstitutional, which sort of brings us back to square one.

    The law is only a shadow of justice, written in a language that is constantly churning. And society itself keeps evolving its own idea of justice. Judges can only apply the law as best they can, and cannot expect the world to stop each time they find some ambiguity that would ideally be properly codified in a new, improved law.

    There’s no changing the nature of law. And we will never change our sclerotic government. No, the only way to play this game is to appoint the judges. Republicans are way ahead of us. While we talk about just where to draw the line between the judiciary and the legislature, they get busy putting asses on benches. They’re the minority; they try harder.

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  36. Stormy Dragon says:

    @James Joyner:
    Considering back at the time privately owned canons were a thing (one quick way for a wealthy person to get an officer’s commission was paying to start their own artillery unit), I’d argue the bazooka has a better claim to second amendment status than an AR-15.

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  37. Michael Reynolds says:

    The Senate has failed to do its duty. The executive branch departments, DoJ, DoE and others, and of course the White House, all failed. Legislative and Executive have failed in their basic duties. When you’re sitting on a three-legged stool and two of the legs collapse, you have no choice but to hope the last leg holds. On this issue, at least, the last leg held.

    If RBG lasts another six months the Constitution will be saved.

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  38. KM says:

    @MarkedMan :

    Why, in this case, should we put the burden on the courts to second guess the language?

    Because there’s an implicit understanding that Congress can’t do what they want so they expect the Courts to back them up. If Congress could easily solve their problem, no one would be wasting time with the long road to the SC. Loopholes are easy to close if there’s a political will to do so but then you ask the risk-shy Congresscritter to take a stand with all it’s consequences. They like to *sound* tough, not actually do anything.

    Congress keeps punting and expecting the SC to turn it into a field goal. Fans that don’t care so long as their team wins won’t understand why that’s impossible – you can’t score points like this and are likely to lose ground for attempting it. They’ll get mad at the rules instead of the people not playing the game correctly.

  39. Kathy says:

    @James Joyner:

    I don’t know.

    Using percussion caps and paper cartridge ammo, by the 1860 a trained soldier could get off two aimed shots in one minute. In the 1770s, technology wasn’t quite so far advanced. Rifled barrels were rare, flintlocks carried the day, and General Washington adviced his troops to load buck and ball.

    Today a cheap hand gun can fire off six to 10 shots in under one minute easily.

    I’d say there’s a world of difference.

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  40. DA says:

    If you don’t buy the logic here, consider this hypothetical: you own a company and have strong views about gender roles. You think that certain activities are for men only, such as fixing cars and going fishing. You employ a number of men and a number of women, and you know that many of the men you employ enjoy fixing cars and going fishing. One day you find out one of your female employees also enjoys fixing cars and going fishing; since you don’t want that kind of woman working for you, you fire her. You fired her solely for engaging in actions which the men in your employ are not fired for. Wouldn’t this discrimination clearly be against the law? Then, replace “fixing cars and going fishing” with certain other actions, and you get the majority opinion.

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  41. Jon says:

    Long quote from the opinion itself here:

    Sometimes small gestures can have unexpected consequences. Major initiatives practically guarantee them. In our time, few pieces of federal legislation rank in significance with the Civil Rights Act of 1964. There, in Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin. Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.

    Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.

    Sure sounds like that supports Dr. Taylor’s point.

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  42. KM says:

    @James Joyner:

    It’s harder to argue that ordinary small arms of the day aren’t “arms” under the 2nd Amendment.

    I disagree. “Arms” as a term has been steadily and intentionally redefined to favor the gun community. The Founding Father would have considered something that can do in seconds what a whole unit couldn’t in hours to be on par with cannons. The idea that they are not weapons of war but for civilians to use against each other in peacetime would have been seen as madness. The current “logic” that they are used for defensive purposes would baffle the writers of the Bill of Rights as these types of guns are clearly meant to kill a lot of people in a short period of time and thus would be classified as the nukes of their day.

    We don’t let people have nukes because it’s madness to let that kind of killing power be held by any ole’ idiot or hot-head. That we allow for small scale handheld massacre machines doesn’t make that logic any less sound – it means people have twisted Constitutional logic to justify having their fav boom makers en masse. Self-serving logic is specious and changing the meaning of a word or category fits well with it. If we’re going by original intent and standards, modern guns are more heavy-duty weaponry then the traditional understanding of “arms”.

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  43. An Interested Party says:

    The word ‘sex’ was inserted in the 1964 Civil Rights Act by arch-segregationist Howard Smith (D. Virginia) who hoped it would kill the act.

    How delicious that a bigot’s attempts to stop an anti-discrimination law led to today’s ruling stopping even more discrimination…thank you, Mr. Smith…

    11
  44. Beth says:

    In my ideal world, then, the Justices would have ruled that, as much as it dismayed them from a public policy standpoint, nothing in federal law precludes discrimination on account of sexual orientation or gender dysphoria. And, recoiling in horror that this was the case, Congress would promptly change that.

    James, you know this isn’t true at all.

    1. Just last week, in order to give a win to the Religious Right, the Trump administration attempted to remove legal protections from Trans People. This was one more step towards greater suffering and erasure of Trans people. I, a Trans woman, have had to have several discussions with my wife over the last couple of months to make it clear that if I have to be hospitalized, I need her to fight to ensure that I get the proper treatment. The Trump Administration is trying to make it easier for hospitals and drs. to mistreat and ignore me. This is such a huge problem in the Trans community that we maintain lists of Drs that won’t mistreat us. Also, google “Trans Broken Arm Syndrome”.

    2. How many Trans people have to suffer and die before Congress, and particularly the Republican Party recoils in horror from our suffering instead of us. This suffering literally killed Aimee Stephens. This suffering results in hundreds of unsolved murders and missing persons cases of Trans People. Layleen Polanco was laughed at as she lay dying. Exactly when should we suspect Congress to recoil in horror?

    14
  45. Just nutha ignint cracker says:

    @James Joyner: How about just this one time we test drive the other alternative to your claim?

    If Congress had intended to refuse to provide hiring protection on the basis of sexual orientation, it would have explicitly done so.

    I’m sure that you can find a playbook exception for this line of reasoning because… well… reasons! That’s why! But doesn’t the revised sentence make the same sort of argument?

    4
  46. Kathy says:

    @KM:

    there’s a so-so novel called The Guns of the South by Harry Turtledove. The gist is people form the 21st century travel back in time to the USCW and furnish Confederate armies with AK-47s. Lee proceeds to rout the North.

    IMO, they could have accomplished much the same furnishing them with regular semi-automatic handguns, hunting rifles, and shotguns. In real life, some officers, on both sides, carried revolvers, and a few soldiers had repeating rifles. But, see above, most could not get off more than two shots in one minute.

    It’s easy to see that if arms had evolved from flintlock, muzzle-loading, smooth-bore guns to semiautomatic handguns within a few years, the latter might have been banned from civilian use. As it is, they evolved slowly. By the time they were too deadly, people were used to them.

    2
  47. James Joyner says:

    @Beth: I prefaced the paragraph with “In my ideal world.” That Congress is unlikely to amend the law to provide the desired end state does not justify the courts rewriting it through interpretation.

  48. James Joyner says:

    @Just nutha ignint cracker: It’s a silly game. We know damn well that Congress, which continued to pass anti-gay legislation well into the 1990s, was not trying, in 1964, to mandate discrimination against gays. The Majority fully acknowledges that and says, essentially, “sucks to be them.”

  49. Teve says:

    @James Joyner: you think the founders envisioned millions of Americans casually owning semiautomatic rifles?

    1
  50. MarkedMan says:

    @James Joyner:

    But I presume this is a matter th[e]n Congress delegated to regulatory agencies, yes?

    I’m not sure this has any relevance. When these cases go to court, even the Supreme Court, they look to whether the company complies with the language of the law. If the company wins (as they frequently do) then whatever ruling the regulatory agency made must be overturned and a new one written in compliance with the language of the law. So in the case of the famed Subaru BRAT, Congress passed a law with clear intent: it should impose a tariff of 25% on pickup trucks so as to protect American manufacturers (hard to believe it now, but pickup trucks used to be exclusively two seaters.) Subaru tack welded in a ridiculous pair of seats in the bed of the pickup, easily removed and claimed that since it had four seats it was a passenger car and only subject to 2.5% tariff. Did Congress intend this? Without question, no! But did the shenanigans work? Yes, because of the wording of the actual law. This is repeated many times every year. Congress passes a law. People figure out unexpected interpretations of various clauses that are diametrically opposed to the intent of the Congress when they passed the law. Nonetheless, the courts frequently uphold the interpretation based on a literal reading of the language.

    You seem to be saying this should be reversed when it comes to discrimination. If the members of Congress assumed a law did not apply to a particular class when written, then the courts must take that into account, regardless of the letter of the law.

    James, it’s like you just stumbled across this centuries old characteristic of courts and laws, one that has literally been litigated hundreds of thousands of times, and are shocked, SHOCKED, to discover gambling going on.

    6
  51. Beth says:

    @James Joyner:

    So we are just stuck with discrimination and therefore, suffering (and death) because, well, what? You cannot discuss my “Transgender status” (god I hate that phrasing) without discussing sex. It is quite literally impossible. Especially, in my case, because I am intensely binary person. Could we discuss my history or understanding of my body without discussing sex? Or are you saying that I’m not a woman? I’m a confused biological male?

    At that point, your are still discussing my sex. My being Trans is quite literally the most boring part of my life, but there is no way to discuss it without discussing sex.

    The statute says its “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.” 42 U. S. C. §2000e–2(a)(1) It doesn’t have to say that Trans or Non-Binary people are specifically included, it says right there, in plain English, we are protected because of our sex.

    7
  52. James Joyner says:

    @Teve:

    you think the founders envisioned millions of Americans casually owning semiautomatic rifles?

    I don’t think the founders envisioned a continental superpower of 330 million that could put people on the moon and obliterate the planet in minutes. We shouldn’t be running off a document written to solve the problems of 1787. But here we are.

    I’m happier with how the courts have ruled on the 1st Amendment than I am with how they’ve ruled on the 2nd and 4th. But they’re all rather vague concepts and we’ve ceded the job of interpreting to the courts.

    1
  53. James Joyner says:

    @MarkedMan: I honestly don’t understand the analogy here. Gaming a regulatory regime and re-interpreting rather clear legislation 56 years after the fact aren’t comparable. Gay people weren’t invented in 1966 as a way to get around the provisions of the 1964 Civil Rights Act. The courts simply re-interpreted the law in a way that would have been considered laughable even a decade ago.

  54. MarkedMan says:

    A sidebar on my comment above. The unintended consequences of legislation is the reason why seasoned and smart legislators are important to any cause. As Hillary Clinton once said, “Forget hearts and minds. Laws change lives.” Years ago I read a book about a single piece of legislation. I think it was called “The Bill” and it was about the attempt to reform the college loan program during the Clinton years. Fascinating book for many reasons but germane to this discussion is that no-one involved had any illusion that intent mattered one bit. They knew that every clause, every sentence, every word was going to be scoured for loopholes and that when the lawsuits came, the courts would rule on the words, not the intent.

    2
  55. MarkedMan says:

    @James Joyner:

    I honestly don’t understand the analogy here.

    And I don’t understand your objection. The US courts have ruled for hundreds of years that the intent of legislation doesn’t matter, only the language.

    Gaming a regulatory regime

    You’re trying to create a distinction here that doesn’t exist. Almost all laws end up in regulatory regimes. And as I pointed out above, the courts look to the language of the laws to determine if the regulations comply. They don’t look at the intent. In the BRAT case, the intent was clear, and the courts didn’t care. You seem to be saying that’s ok in commercial law but not in civil rights legislation.

  56. CSK says:

    @Kathy:
    I read that. My recollection is that the guys from the future were white South Africans who wanted to aid the south in keeping black people enslaved.

    2
  57. Kathy says:

    @CSK:

    I was trying to keep the spoilers to a minimum. The AK-47 shows up right at the beginning.

    We may as well bitch about the whitewashing of Robert E. Lee, too.

    1
  58. CSK says:

    @Kathy:
    Oh, sorry. At the time Guns was published, Harry and I had the same publisher, Villard/Random House. I recall the publicity people took us to lunch in Nashville, where we were for a conference. He seemed like a pleasant guy. I didn’t read Guns till years afterward. I haven’t read any of his other books.

    1
  59. SKI says:

    @James Joyner: Not to those of us with any familiarity or training with employment law or reading opinions.

    The plurality in PWC related to the standard for the employer claiming that the discrimination wasn’t the real reason she had been terminated, not whether or not the discrimination was covered by the statute.

    You are really off-base and way out of your lane here, James.

    Statutory interpretation, as opposed to Constitutional Interpretation, doesn’t care about intent if the plain meaning is clear – even if it results in things the drafters didn’t intend or contemplate. If Congress doesn’t want that result, they can pass a law clarifying that. It happens.

    As Oliver Wendell Holmes wrote oh so long ago: “We do not inquire what the legislature meant; we ask only what the statute means.”

    You can’t explain how the discrimination forbidden today isn’t “on account of sex”. You just keep waving your arms and staying the legislators didn’t mean to do that! That doesn’t matter.

    Stop digging…

    6
  60. SKI says:

    @James Joyner:

    I honestly don’t understand

    You should have stopped your comment here…

    3
  61. JKB says:

    To contrast, there is the other SCOTUS made law under discussion right not. That is the immunities they extended to government employees back in the 1980s. Qualified for police officers and other rank and file government employees who can claim ignorance and Absolute for prosecutors and judges who act corruptly in any manner in their duties.

  62. Kathy says:

    @CSK:

    I’ve read some of his other works (too many). he has the annoying habit of repeating lots of things over and over and over and over and over again. In his series about WWI, the interwar period, and WWII featuring the US versus the Confederacy, he pretty much redoes the European theater in North America, with the US as the USSR and the CSA as Germany.

    and he uses too many nukes when he has them available…

    I don’t regret reading them, but I won’t re-read them. Perhaps his best work are the Agent of Byzantium stories, posing a Byzantine Empire that never has to contend with a rising Islam. Instead they square off over and over against a steady, pagan Persia.

  63. Just nutha ignint cracker says:

    @James Joyner: Of course it’s a silly game. All the more reason for Republican/Evangelical/XYZ-phobes to come right out and say what they mean. Personally, I’m tired of the whole *legislature’s intent*/*what does the text say* depending on what point you want to support thing altogether. The court got it right, the conservatives got their ass handed to them on the basis that words mean things (funny thing, there’s a guy on the radio who used to say that, hmmm…), and GOP Senators will now fulminate about how someone else is doing their job.

    Don’t what that to happen, Mitch? Do the fwking job yourself, then. It’s your big chance to be in whatever is going to pass for the conservative version of Profiles in Courage. Don’t have any? Sad. Pathetic. Low energy.

    2
  64. Michael Cain says:

    @SKI:

    As Oliver Wendell Holmes wrote oh so long ago: “We do not inquire what the legislature meant; we ask only what the statute means.”

    Yep. When I was a legislative staffer, I used to say, “There’s the statute, and there’s what the legislators thought they were saying, but show me the case law where the courts have decided what the legislators were actually saying.” From a practical perspective I learned that commas are subject to parsing errors; when in doubt use semicolons :^)

    I was a legislative staffer after a tech career doing some fairly peculiar programming. State statute has to be treated as an organic whole, spaghetti code beyond most programmers’ worst nightmares, from time to time the legislature adds or removes things to or from the instruction set, and sometimes the court changes what the instructions do.

    2
  65. Kathy says:

    @Stormy Dragon:

    One other thing to note: even if we buy the “the law is ambiguous, but congress probably never intended to address this issue, so we must wait until they do” argument, why is the waiting state “discrimination is legal until congress decides otherwise” and not “discrimination is illegal until congress decides otherwise”?

    There’s an implicit assumption here that anti-LGBT discrimination is the natural state and must be explicitly overridden.

    This bears repeating. it need to be repeated.

    Why should all minorities have to beg the majority for their human rights?

    It’s the big problem that arises when enumerating people, rights, categories, products, etc. That’s why laws tend to be more expansive, to cover anything and anyone, whether people are aware of them now or not.

    4
  66. R.Dave says:

    @MarkedMan: The US courts have ruled for hundreds of years that the intent of legislation doesn’t matter, only the language.

    @SKI: Statutory interpretation, as opposed to Constitutional Interpretation, doesn’t care about intent if the plain meaning is clear – even if it results in things the drafters didn’t intend or contemplate.

    I think you guys are overstating the dominance of a plain meaning / Textualist approach to statutory interpretation. It’s been a long time since I studied this stuff, but I believe there’s long been a running debate between mischief rule / Purposivist and plain meaning / Textualist approaches. And even the plain meaning rule and the Textualist interpretive approach have softer and harder forms, so there’s room for debate within that tradition itself. Beyond all that, there’s also a prudential argument that courts should be very reluctant to upend a long-established and far-reaching statutory application on the basis of a formalistic interpretive point, however correct that formalistic read may be.

    Anyway, my point isn’t necessarily that the majority got it wrong, but simply that there’s a live and legitimate debate about judicial philosophy here, so it’s silly to act like Gorsuch’s argument is obviously and unassailably correct.

    1
  67. An Interested Party says:

    By the way, it is so perfect that this is happening in June…Happy LGBT Pride Month…

    6
  68. MarkedMan says:

    @R.Dave: Your points are good and you seem much more knowledgable about it then me. But even your interpretation is a far cry from James’ “since the legislators in 1960 were anti-gay we have to ignore the text and go with what they would have wanted.” (Ok, a bit of an exaggeration, but not all that much.)

    Serious question though: I’ve only ever heard such an intent argument made to deny people basic human dignity. Has anyone ever successfully made an intent argument to keep a court from ruling in favor of a commercial enterprise?

    1
  69. SKI says:

    @R.Dave: I think you missed my qualifier: “if the plain meaning is clear”. You never get past that when there isn’t ambiguity.

    Btw, Ilya from Volkh had a good summary of the different approaches as they might apply in this case and why Alito was basically using the same discredited arguments that the racists used in Loving.

  70. KM says:

    @Kathy:

    Why should all minorities have to beg the majority for their human rights?

    It’s the big problem that arises when enumerating people, rights, categories, products, etc. That’s why laws tend to be more expansive, to cover anything and anyone, whether people are aware of them now or not.

    Sadly, the answer they will give you is that in theory laws are given to “the most freedom”. Since minorities are by definition *not* the majority of the populace, they don’t get priority in the lesser of two evil debate. This is why repubs would still side with religion over LBGT even if they didn’t have to kiss fundie ass; they would tell you it’s more important to protect the theoretical right to religious freedom (to discriminate) for hundreds of millions over the practical protections millions of LBGT individuals need.

    What we need to be asking ourselves is why we assume the vast majority would *want* the freedom to discriminate protected as a theoretical right rather then insist on practical protections for their fellow citizens. Remember, when democracy first started out in Athens only about 20% of the populace could vote because they were the only ones considered citizens. When America was founded, white land-owning males were the target demographic for “liberty” with the rest of us getting the vote within the last hundred plus years. We can’t just assume the majority understands that asking for basic human rights shouldn’t have happen in a decent world. The default, unconscious position of the majority is and always will be “protect what I have even if it does me no harm to lose it” rather than “lets extend protections to all even if it interferes slightly with my godgiven right to be an asshat.”

    3
  71. R. Dave says:

    @MarkedMan: I can’t recall specific cases off the top of my head, to be honest, but I believe Brennan, who was solidly liberal, was a strong proponent of purposivism, and purposivist arguments were generally used to advocate for expansive interpretations of various civil rights and other progressive statutes.

  72. R. Dave says:

    @SKI: Thanks, SKI. Been looking forward to seeing what the VC guys have to say. Was too busy today to dig in though.

  73. Kathy says:

    @KM:

    You know, a lot of people like to compare Rome and the US, as the preeminent empires of their time. In this regard, first the Plebeians, then the Italians had to struggle for their rights under the rule of the Roman nobility.

    So this seems familiar. And yet, under the rule of Caracalla, a pretty terrible emperor, citizenship was extended to all inhabitants of the sprawling empire. He did this largely in order to require taxation at the levels citizens had to pay, but it came along with rights.

    Perhaps as America becomes a nations where minorities are the majority, things may change.

    2
  74. Gustopher says:

    @Kathy:

    Perhaps as America becomes a nations where minorities are the majority, things may change.

    Oh, we will never ben majority-minority. We’re way too committed to racism. We will decide that Asians are White before we let that happen.

  75. Dan C. says:

    I agree with a lot of your general ideas, but you honestly have a confused view of what this is about in some cases.

    Your point about the Constitution being difficult to amend is completely out of place in this analysis, since this wasn’t a constitutional case, and didn’t involve constitutional rights. The provision that Gorsuch and company decided to rewrite was in an ordinary act of Congress. That is to say, it just had to be passed by the house, passed by the Senate, and signed by the President. Even if the Supreme Court could convince itself that it had a right to act when a constitutional amendment was sorely needed but couldn’t pass (which of course even then would be a dereliction of their duties), that excuse would not be available here.

    I also fail to see how protected class status would have any role in this case since, again, it wasn’t a constitutional inquiry, nor how it would change interpretation of federal discrimination law as relates to this, since as you pointed out, there is no government action involved and, to the extent it changed the interpretation of sex in title VII or any similar provision of statute, it would involve reasoning which would be equally bizarre, if not identical.

    Didn’t see Anything in your bio to suggest you are a lawyer, so I thought I would give you my professional perspective on those weaknesses in your analysis.