RE: Petitioner, R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission.
The presenting issue in this case of the privately held funeral home is this: Should the owner be compelled by the U.S. government to continue employing a funeral director in Michigan, with skills suited for the job as the owner attests, who looks like a man but now wants to wear a (gender appropriate) women's skirt-suit on the job to align with their gender transition?
Missing from almost all the comments below are the preferences, indeed, the freedom and "rights" of the grieving families. Many of them are conservatively religious. Must the intimate setting of a funeral home be the place where they are to be schooled about gender transitions? Must the owner be forced allow a potentially extraneous conversation topic into the event? Is it bigoted to ask that this “conversation” be scheduled for another occasion, with attendance as OPTIONAL?
The grandchildren of the deceased will learn about it soon enough in the public schools; but the siblings of the deceased don’t need to have this question raised in this time and place for the sake of someone else’s view of political correctness.
(PS: the four amicus briefs on the SCOTUSblog of Aug. 23, 2018 all side with the funeral home/Petitioner; there are no amicus briefs on any other date, hence none from the other side. Why?)
PS: I'm not a lawyer, just a lay reader trying to use common-sense vocabulary.
3
This is a dark shadow over civil rights of all Americans.
What might it do to Pete Buttigieg's bid for POTUS?
1
Judge Lynch, despite the unfortunate nature of his name, is completely correct. It would be a wonderful thing if Congress had included sexual orientation in the Civil Rights Act; it would be a wonderful thing if Congress were to amend the act to include sexual orientation; but unfortunately the did not nor have they made any effort to do so in the years since its passage.
This is another case of the Court stretching the law in order to accomplish a desirable end without going through the legislative process. The problem with allowing that is that it also gives precedent for the Court to accomplish undesirable ends while bypassing the legislature.
3
This will be a 5-4 decision. Which way it goes depends entirely on whether John Roberts has friends and family who are gay or transgendered.
12
It’s 99 per cent sure what will happen-the Supreme Court will rule that discrimination against gay and transgender folks is legal. The court could save us all a lot of time and effort by issuing a one sentence ruling tomorrow saying just that and we could move on to Congress to fix the law. We don’t need to waste any more time talking about these phony courtroom dramas the Supreme Court brings us these days or the specious reasoning in their opinions. Everyone knows the plays’ ending before the curtain goes up with this cast of characters.
6
@Paul
I agree with you. It is so much pomp and circumstance, so hypocritical, so ultimately primitive, despite the robes and gavels and solemn proceedings, such a charade ... Civilization is a thin veneer.
3
Never forget that Clarence Thomas was named to head the EEOC in order to weaken/destroy it--then got kicked upstairs to the Supreme Court. This pattern was repeated with Anne Gorsuch, who was named to head the EPA under Reagan for the same reason; her son is now on the Supreme Court.
Also never forgot that some Repubs stated that "AIDS is God's judgment on gays" back at the beginning of the epidermic.
Can we really trust these people to apply the thrust of the law rather than their old prejudices and partisanship?
15
Are we as a nation going to allow people to be fired because of what happens in their bedrooms? How can Republicans advocate for less government intrusion and be supportive of this? If everyone is equal under the law, then discrimination for any reason should be illegal.
271
@Donna
You're missing the point. The case is not about whether these groups should be protected. Instead, the case is about whether those protections should be imposed by SCOTUS or Congress.
The existing law, by any honest reading, does not protect gays & transgender people. Those who, like me, think that those people ought to be protected should be very leery of relying on SCOTUS to grant those protections. After all, what SCOTUS grants today can be taken away next year when the composition of the Court changes.
The better solution here is to have Congress amend the law. That way, the protection cannot be undone by SCOTUS.
22
@Donna
You make the assumption that the Republicans want less government.
They only say they want less government but in practice they revel in more government to control and overthrow societal norms
15
@GMooG "The existing law, by any honest reading, does not protect gays & transgender people" That is dishonest right there. The law states
" It shall be an unlawful employment practice for an employer"
"to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin."
Key to this disucussion "limit, segregate or CLASSIFY" "because of.... race, color, religion, SEX, or national origin."
You cannot have a policy on sexual orientation without first classifying people on their sex, something that is strictly prohibited. Without that classifying people on sex your whole argument falls apart.
14
Why isn’t it by now a foregone conclusion that such discrimination is not only illegal, but immoral and inhumane as well? I feel like we’re all being regressed to the dark ages before minds and attitudes became enlightened. And for what purpose? Living in this country in my seventh decade I am starting to perceive a recurrent nightmare where we continually recycle the same conflicts after they were seemingly settled. This negative feedback loop is depressing at best and seems hopeless at worst. Why do I think that this Supreme Court will be all too happy to keep us there?
348
@Vivien Hessel
Ultimately if the SC keeps creating division that the country does not support with it will have to go or the country will have to split. The more the GOP does the more it seems logical that in due time your country will split.
It all depends how soon. The states that wish bias are doomed to economic decay. The other states need to split from them before they too find it is too late for thier own survival.
18
Forget about what's moral. Evangelicals are running the country now.
44
It is a fallacy to think that attitudes are consistent within state lines. It is not so much a matter of red state versus blue state, but roughly speaking, more a matter of blue urban areas versus red rural ones. Even that division is not at all consistent. A split such as you suggest is not so easily accomplished.
1
It is too bad that we need a law that says "Don't discriminate against people." however those who are arguing against this are just saying "We want to discriminate against people. And we want it to be legal."
There is no other interpretation. They are arguing for their rights to openly bigoted and to discriminate based on their personal likes and dislikes.
Regardless of what the antediluvian Supreme Court does (and the fact that *this* court accepted the case is a pretty good indication where *this* court is going) or what Congress does, many American companies are actually out in front in regards to discrimination.
122
this yr. marks the 50th anniversary of the Stonewall uprising, yet still, there is discrimination in all services toward LGBTQ people. i thought it odd that the marriage bill was passed before an anti-discrimination law was. being kick out of your job, Apt. refused services based on your sexual orientation can have grave consequences, especially to the Trans community. with assaults and hate crimes going up since Trump was elected this law must be put into place in no uncertain terms.
here is a Ted talk not about discrimination but about a gay man's contribution to the family unit and why one child is gay. very heartwarming. i fit into both reasons why i am gay :)
https://www.youtube.com/watch?v=4Khn_z9FPmU&ab_channel=TEDxTalks
if one reader sees this and doesn't kick their LGBT child out of the house when they come out, i would be happy!
Pretty clear these are not covered by the text of the law and it is not up to the Supreme Court to make new law. The responsibility lies with Congress plain and simple.
Should these be protected? Yes. Should that protection come from an activist court ruling? No.
3
Human nature being what it is, nobody who gets terminated from a job ever thinks “They needed to make cutbacks and I was the poorest performer”. No, they understandably grasp for some ego-protecting explanation that shows they were treated unfairly. “The boss doesn’t like blacks”, “I’m better than Mary but she’s the VP’s daughter”. “John is less competent but has a degree”
Because of profound discrimination based upon certain specific criteria, various protections against such discrimination were enacted. But one side effect is that even in the cases where an employee is fairly terminated their coincidental/unrelated membership in a protected class along with their erroneous ego-protecting denial (facilitated by opportunistic trail attorneys) is a compelling motivation to sue for discrimination.
When we are done creating the ever expanding plethora of protected classes, employers will be left with the reality that the only employees they can terminate without high likelihood of a discrimination lawsuit are white/heterosexual/non-disabled/Christian/males under age 50. While I expect that there are many woke individuals who will not shed a tear for what will in effect be discrimination against members of the ever-shrinking non-protected group, I do not view such to be any more acceptable than historic forms of discrimination.
I also am concerned about the huge adverse economic impact upon society resulting from the countless unfounded lawsuits alleging discrimination.
5
Discrimination based upon sexual orientation or identity is entirely the same as discrimination based upon sex.
I understood this as a child in the 1970s when I first became aware of the concept of homosexuality. Simply put, if a man has the right to fall in love with a woman, then a woman has that same right.
It doesn't matter what you think of her (or his) feelings. They are none of your business. Your idea of how members of each sex should think, feel, act, dress, or behave is your issue, not mine. It's no different than if you had a sincerely held belief that women should not be engineers. You are free to have that opinion, but you are not free to discriminate on the basis of it.
13
@AG: "I understood this.... Simply put, if a man has the right to fall in love with a woman, then a woman has that same right."
I bet that that is not the way you understood it at all. What you understood, I would suggest, is that if someone has the right to fall in love with someone of the opposite sex, then they have the right to fall in love with someone of the same sex.
When you put it the way you just did, you are setting the reader up for a sophistical argument for applying Title VII to sexual orientation. But it is a logical trick. Nobody in the 1970s thought of equal rights for gays as meaning that women were being discriminated against because men were allowed to love women but women weren't, and therefore women were being treated unequally with men; or because women were allowed to love men but men weren't, and therefore men were being treated unequally with women. No, that sophistry is a product of the current debate. The thought was that people who want to love those of the same sex were not being treated equally with those who want to love the opposite sex. It's not a matter of men having any relevant rights that women don't have, or women having any relevant rights that men don't have. *That* would be sex discrimination.
Title VII of the Civil Rights Act prohibits discrimination on the basis of sex. That could be taken either in a narrow sense, meaning male or female, or in a wide sense, meaning having anything to do with sex, sexual activity, sexual preference, changes in one's sex or gender, etc.
If it is taken in the wide sense then why isn't a history of adultery included? It has to do with sex. If I am hiring for a position that requires good moral character, may I not discriminate against an adulterer? It would seem that, if the law is interpreted in the wide sense that would extend it to gays and transgender, then I may not. But isn't that absurd? How could the reach or meaning of the law be so broad?
If the law is interpreted in the wide sense then this means that if people mock President Trump for alleged infidelities, that's bigotry. It means that if we look askance at a man who marries his 13-year-old cousin, as Jerry Lee Lewis did, then that's bigotry. If I am hiring for a day care center, and I discriminate against someone like Lewis, then I have violated the law. Yes?
This should show that the wide interpretation is incorrect, and that the law means male and female.
1
Let's see. If we look at the 40's, 50's, 60's, 70's, 80's - why were so many gays and lesbians and transgendered people in the closet? One of the biggest reasons was fear of losing one's job. Fear of not getting a job. What does it mean to not have a job or the ability to get one? Poverty.
During many of those years, if you were arrested at a gay bar, your name would be published in the paper and you would lose your job the next day. Ancient history, you say? Think it couldn't happen again?
When Title VII was written, it is safe to assume that GLBT people were not included because of the bias of the society at the time. Arguing to maintain the literal interpretation means arguing to maintain that bias, and also means arguing for a very literal interpretation of the what law itself, of what justice itself, really means.
Through all this parsing of intent and and words, we are talking about people's lives being destroyed. This is not just an academic debate, and the movement of laws in the US until recently has been to expand the promise in the Constitution to extend to all. Most of the Supreme Court justices cannot imagine the pain, humiliation, and poverty many GLBT people have struggled against, and most have no idea of what older GLBT people have faced and endured.
3
@Barbara: You could just as well argue that laws that grant certain rights or freedoms to citizens reflect a certain bias in favor of citizens over non-citizens, and that if we continue to understand them to apply only to citizens, we are perpetuating that bias. If we think that the Constitution is biased in favor of citizens, should we interpret it to apply to everybody around the world?
An animal rights activist could argue that the interpretation of laws against murder as applying only to people reflects a bias toward them over animals (sorry for the example, but I hope it does make the logical point). In the meantime, millions of animals' lives are being destroyed. Does that really justify anything but a "very literal interpretation" of what those laws mean? Actual laws and "justice itself" need not be identified with one another. To some extent, a principle of charity applies: it is a consideration in favor of the interpretation of a law that it is more just on that interpretation. But there are limits.
3
Thank you, Barbara, for pointing out what, sadly, should be obvious but apparently is not—that until recently, it seemed as if we were progressing in the direction of equality and enlightenment, no matter how difficult the path. Now it seems as if we are moving in the opposite direction, without even the appearance of striving for justice. It’s baffling that so many are proud of being ignorant, backward, unjust—and striving to enshrine that attitude into law.
2
We will not be better until we are able to live without discrimination for whatever reason. It is unfortunate that we have to actually have laws written and enforced to avoid becoming socially acceptable the worst humans can do. But until we are able to arrive at a state of real love and freedom of course we must.
5
Once again our government argues for the ability to allow discrimination against its own citizens. The Supreme Court might agree that the law allows this despicable behavior but that will never make it right. It is becoming increasingly difficult for me to support a country as willfully backward as the US is today.
5
Of course no one thinks that their doctor should be allowed to sell their personal information and medical condition to drug companies as a new revenue stream so that drug companies can market new drugs directly to the doctor's patients, but they did. Or thinks that an employer should be permitted to obtain information regarding their employees' use of the employer sponsored medical plan so that the employer can fire those employees that use the plan and drive up premiums, but they did.
And what did we get for it? HIPAA, a law that prevents doctors and employers from doing what they did.
You can perform the same analysis on all major congressional legislation - Civil Rights Act,Voting Rights Act, Equal Employment Act, Sarbanes-Oxley, Dodd-Frank. The list goes on and on.
Everyone "knows" you shouldn't do what you are doing, but then someone does it anyway. Selling PII, creating SPEs, packaging worthless loans as blue chip investments, discriminating against LGBTQ individuals, etc.
Common Sense tells the average individual that what is happening is not right. And then one of our slowest walkers says to himself or herself, but usually himself, "why not!" And they do it and we wonder what has happened.
And then what do we get? Congress has to come in and legislate COMMON SENSE. And because they have to write the law to cover our worst actor, people complain. Its too draconian. This is Congressional overreach. Etc.
Look in the mirror; it is not Congress's fault.
2
Justice Brett M. Kavanaugh another good case for impeachment.
2
EQUAL JUSTICE UNDER LAW
In 1891 in the case of Caldwell v. Texas, Chief Justice Melville Fuller wrote on behalf of a unanimous Court: "no State can deprive particular persons or classes of persons of equal and impartial justice under the law."
The Court liked this concept so much that they had the phrase emblazoned across the front of the Supreme Court Building.
3
The question before the Supreme Court is whether the Constitution applies to some of the people all of the time, all of the people some of the time, or all of the people all of the time. Congress has already weighed in on that score.
Written in 1892 and formally adopted by Congress as the pledge in 1942, (and altered on Flag Day in 1954, when the words "under God" were added,) every morning elementary school children across the country recite the Pledge of Allegiance: “... to the flag of the United States of America, and to the republic for which it stands, one nation under God, indivisible, with Liberty and Justice for All.”
The Supreme Court has a chance to uphold that pledge’s basic principles of national unity and equality under the law, or to alter that pledge, by dividing our country, once again, into a nation that stands for Liberty and Justice for Some but not All of its people.
3
Why would it be legal
To discriminate against anyone for any reason?
6
The fact that anyone has to give this issue any thought, much less legal intervention, is outrageous! A persons sexual orientation should play no role in their ability to perform their job.
10
Since homosexuality is a result of genetics, like being born left handed, civil rights should be totally granted. I would also grant civil rights to transgenders, treating it as freedom of expression. The US was created as a secular nation, so religion doesn't get a say.
7
Dear Congressional Democrats,
While you draft the articles of impeachment, please draft an amendment to Civil Rights Act of 1964 striking the word “sex”. Discrimination for ANY reason should be prohibited.
Yours truly
ABermant
PS. Let the Trump and the Republicans oppose the amendment - it will show their true colors
5
A lot of sentiment but little law in these comments.
3
@ Edward: "A lot of sentiment but little law in these comments." Um, okay - how about the four words chiseled across the front of the SCOTUS building? "Equal Justice Under Law" Is that enough legalese for you?
4
I am shocked that the Supreme Court is to argue whether The Civil Rights Act of 1964 includes Americans who are LGBTQ. The legislation clearly outlaws discrimination based on race, religion, national origin and sex.
“Sex” does not refer only to straight males and straight females. "Sex" is an umbrella term that covers all variants of human sexuality. LGBTQ people have been around since the beginning of time; they were here in 1064, in 1964, and they are here today.
According to the Merriam-Webster Dictionary, “sex” refers to “the sum of the structural, functional, and sometimes behavioral characteristics of organisms that distinguish males and females”.
Within the subset of “males and females”, there are additional subsets that more precisely describe a person’s sex. One can be a male who is straight or gay or bi-sexual or trans. One can be biologically male, but identify female. One can be intersex (some combination of male and female) or asexual. And so on. The same kind of diversity applies to being female. All orientation is defined by its relationship to the concept of sex—to maleness or femaleness—in all of its infinite variety and degree.
Imagine if there was a law that one cannot discriminate against apples. Would the Trump administration argue that a Red Delicious apple is an apple, but a Fuji Apple is not? Does a law need to list every single variety of apple that exists or may yet exist in the future for us to know that we are talking about apples?
7
"Justice Neil M. Gorsuch wrote that courts should ordinarily interpret statutes as they were understood at the time of their enactment."
So militias and gun rights are clearly an outdated way of thinking. Great - let's get rid of all guns in the USA!
7
How is this ever a question that needs to be decided? Of course they should have their rights protected. Everyone's rights should be protected, period.
6
To believe that gender identifications and sex discrimination is still an ongoing issue in modern day Congress is the most unbelievable part about this article. Title VII and public accommodation protections absolutely must be extended to all and cannot logically or morally exclude LGBT people. To refuse employment or service to someone based on their real or perceived sexual orientation/ gender identity is plainly an excuse to ostracize another marginalized community or group of people to fit social norms. These "constitutional" claims do not adequately protect certain individuals and therefore, more equal rights legislations should be enforced.
3
I started and stopped writing a comment on this story three times. I am so tired of ages of misery and untold lives ruined because one group thinks that they have such a grand insight into the Almighty's plan for us that everybody else must think and act their way. These people should start trying to love their own lives instead of telling others how to live theirs. It may be hard at first; especially if their lives are defined by primitive notions of righteousness. But, if we have any hope of having our heterogeneous society survive, this has got to happen. Live and let live.
17
You can be sure that if there’s an opportunity to be cruel, mean-spirited and narrow-minded, the current Administration won’t miss it. Finding ways to make people miserable because of who they are should not be any government’s priority now, or ever.
Addressing climate change, income inequality, infrastructure, public health — the current regime is MIA, and between McConnell’s obstruction and Trump’s veto Congress is powerless to do the job. Abortion, guns, immigration, workers’ rights — if there’s a dystopian option and a way to further divide the American people and make them angry, they’re all over it. Trump and Co. have already destroyed trillions in social capital. Way to go Vladimir!
12
Those in power, and those who have held widely prevailing majority opinions, are not willing to give up easily. This, I think, is especially true of the definitions of who is 'acceptable' and who is not.
It is important to us as members of the human race to keep pushing the envelope, understanding that change can sometimes come too slowly but also understanding that change does come. If you doubt this, think back a century and two to how humanity in this country once defined itself.
3
With the "right" court now . . .
Having had and having several of the "right" Presidents . . .
And always having the "right" Congress . . .
Recognizing human rights the public says should have happened decades ago, could go on for decades more.
1
Why can't religious people be satisfied living a life according to their beliefs and leave the rest of us alone? Freedom of Religion implies and includes Freedom From Religion! This is where religions make the wrong turn and burn their bridges behind them!
13
Right on, Glenn. Toleration of choice of religion does not mandate respect. Science demands verification. Religion relies on faith.
3
Can't wait for 'merica to weigh in as the Senate refuses to hear and pass a bill to protect the LGBTQ community from workplace discrimination after the illegitimate supreme Court rules the law doesn't protect the community as written. The Dems will ease back in their chairs and let fox news own that one. Lets see how far it gets the GOP in 2020.
3
Two hundred and fifty years after the founding of our country, the supreme court deliberates at length over whether civil rights law applies to non anglo saxon protestants. Seriously, our country is a joke.
10
I doubt that I will live to see the day when such an obscene question can still be considered valid to put forth to the Supreme Court. The idea that Gay and Transgender workers could still be subjected to discrimination and fired based on their orientation repulses me. The first day I was ever proud to be an American was the day I saw the White House bathed in the colors of the rainbow - the first day my FEELINGS as an American who was Gay were going to be respected, under law, by the United States and my federal rights passed along to my husband. Don't think I don't know how tenuous these rights which should have been mine at birth, still are in this country. Just read the headline, ladies and gentlemen, and tell me that I should be proud to be an American on April 22, 2019.
13
So if you place an ad to hire a personal trainer and a gay transgender applies for the job, you're not allowed to refuse to hire them?
If you place an ad for a nanny to take care of your child and a gay transgender applies, you're not allowed to refuse to hire them?
2
You really need to understand that your personal life and decisions on who you associate with and how you conduct yourself in business are two different things.
What if someone hates religious people of any faith and discriminates against you and them? Would that be fair for you?
12
You clearly don’t know the law in question. The anti-discrimination provisions of Title VII only apply to employers with 15 or more employees. The two examples you bring up, in an obvious attempt to tap into biases against gay and transgender people, would NOT fall under the jurisdiction of Title VII.
13
5-4, No.
I don’t really care what excuses they make after-the-fact to try to justify a partisan political decision with legalese mumbo jumbo.
5
@B Brain If this is another 5-4 decision, there will be a citizens’ mobilization such as we have not seen since the days of Viet Nam. Congress will be cowed into drafting protective legislation. The veto of the Great Tangerine will be overridden. And we will all live happily ever after.
I have never understood why extremist Christian's get so concerned about issues that have no direct impact on them. A person's sexual orientation has no impact upon me hence there is no need to have laws to protect me from it. Frankly it is not my nor anyone else's business.
12
"One nation, indivisible, with liberty and justice for ALL."
Just what part of this don't bigots understand?
15
Leslie, I am glad you omitted the "under god" which clearly violates our Constitution. We are a secular nation, because our founders respected reason and rationality.
2
Gorsuch is correct and quite frankly Ginsberg reasoning is quite scary. You could just make up laws on a whim.
3
@Ed....Ever here of equal protection?
7
It will be a very sad day in this country if the Supreme Court decides to allow legal discrimination against some of our citizens. We all have a right to the pursuit of happiness which means very different things to different people. To allow one group's so called beliefs to oppress others would be against the American values I believe in.
22
No one has given any thought to the biological facts regarding transgenders and gays: they are not born that way. Their characteristics are not immutable; they are changeable. There is no gene that bears a gay person or a transgender person. Why would this class of people, or any class of persons that could change their"oppressed group" at will, deserve to be granted any special rights, other than those human rights that are allowed for immutable and non changeable populations: male and female; black and white. etc.
3
I’m not sure you can say with certainty that “there is no gene” —the scientific investigations are ongoing. Nor is it accurate to say it’s a choice.
But the real issue is how we treat our fellow citizens: institutionalized discrimination against 1 or 2 groups can easily be extended to 3 and 4. On principal, we cannot allow that to happen.
18
No one is asking for “special” rights. Just rights. To not be discriminated against. That’s just plain old rights.
17
@Girl
"Special Rights" is a Right wing lie.
Same rights as you is what everyone wants, and what bigots want to deny.
8
There is no Equal Rights Amendment for women. I’m not sure everyone is aware of that because it seems like an obvious point.
8
The Civil Rights Act should be amended by Congress, or interpreted by the Supreme Court, to include protections for 'Lawful Sexual Activity,' which would include all consensual straight/gay/bisexual behavior, lawful sex work, people who are swingers, polyamorous, into the BDSM lifestyle or nude photography, and other sexual minorities or sexually-marginalized groups, as is currently the law in many other developed countries (mostly in Western Europe) and even certain states in Australia (Queensland, Victoria, Tasmania).
It appears our society is keen to protect sexual 'breadth' (e.g., going from straight to bisexual to gay, or from a man to a woman), so long as those people have a single sex partner; but, protections for sexual 'depth' (e.g., A person who is a straight woman and wants many different partners, attained via sex websites, swinger clubs, or lawful sex work) are lacking.
Like being attracted to men, women, or some combination of both, a person's desire for one or many sex partners can be part of their sexual orientation and, thus, should be protected.
How many countless times have teachers, police officers, firefighters, and other people who have engaged in lawful sexual behavior, on their own time, lost their jobs or been otherwise discriminated against? (e.g., see Scott Janke, Tonya White, David Mech, Olivia Sprauer, Mike Verdugo, etc.).
2
@Ben Liotta: OK, so someone hiring for a job that requires good moral character may not discriminate against someone with a long history of cheating on their spouse(s)?
Publicity of Trump's infidelity is now a product of bigotry?
2
@Mark
Your comment is about not hiring a specific person. Discrimination is about ANY person who is black, female, a Buddhist, or a LBGTG.
Can you see the difference?
@Mark: Morality is subjective, which is why we have the rule of law to serve as an 'objective' type of morality. For example, murder and rape are both immoral and also illegal because pretty much everyone agrees that those acts are wrong. However, firing a teacher because she was a former Playboy model is no different from firing a teacher because she eats meat, depending on whether you are taking the moral perspective of a Christian conservative or a PETA member, respectively. Eating meat and posing for Playboy are bothy lawful; thus, both should not be reasons for being terminated from a position, especially from a public employer which is supported by everyone's tax dollars.
2
The United State was was founded on the principle - We hold these truths to be self evident, that all men are created equal, and they are endowed by their creator with certain inalienable rights, and among these are life, liberty, and the pursuit of happiness. You either believe in that principle, and strive toward that goal, or you are not a real American. And if you don't like that too bad, because it happens to be the truth.
5
@W.A. Spitzer
Yeah, well, it was founded on the principle of slavery, too.
And that women were not worthy to vote.
And a good part of our country would like to return to that "original intent".
4
Our Constitution is a living document that can be changed or be reinterpreted. It is not perfect, as is shown by the 2nd Amendment and "Citizens United".
3
Do you remember when separation of church and state was actually a thing?
10
@Julie R
During John F. Kennedy’s Presidency.
2
Read the dissent in the second circuit case. It gives a wonderful history of Title VII and explains why even the most flexible of statutory interpreters cannot conclude that Title VII protects against sexual orientation discrimination.
3
@Andrew
And yet, the dissenters lost. Perhaps their argument is simply wrong, despite the fact that you agree with it.
7
@Andrew
Yes, good excuses to not consider these people worthy of equal rights under the Constitution. Just because one can put together some words does not mean it is right.
4
Gender identification is based on sex stereotypes, not biology. It is not a sexual orientation. It has nothing to do with homosexuality which is physical attraction to people of the same biological sex (not to people of the same socially constructed "gender").
So why are the two interest groups being lumped together?
10
No, they aren’t the same, but from the standpoint of equality under the law, they’re close enough—just as race, creed, national origin, and sex are not the same, though they were all ruled on together in the Civil Rights Act of 1964. The nature of equality makes them equivalent statuses.
1
Straight people of course will decide.
11
My personal rules for a happy, satisfying Life :
What any consenting adults do in private, none of my business.
What Women do with their own bodies, and reproduction, none of my business.
What any " religious " folk believe, none of my business, UNTIL they attempt to force their beliefs upon others.
In short : Mind your own business. Any questions ???
22
It will be interesting to watch the contortions the court will have to make in an attempt to divorce being a homosexual from sexual act or identity, something akin to separating water from wetness.
7
Don't worry, they WILL find a way. Perhaps " dry " water ?
Seriously.
6
We’ll now see if McConnell’s shenanigans with Garland and the Kavenaugh mess was worth it.
4
Gay men are still men so there should be no discrimination. The problem with the transgender issue is that it is possible to go back and forth. One might hire a male who is currently a female but who later decides to go back to being a man. That would cause some confusion in the workplace.
6
So what rights is that person not entitled to? If men and women have equal rights, then it doesn’t matter.
3
We don’t, in fact have equal rights, Eric.
The Equal Rights Amendment has not been ratified.
Women are not yet equal.
3
What can sex mean in this context? Surely the correct term is gender. Otherwise, the law might be interpreted to mean that there shall be no discrimination based on people "having sex."
2
It seems to me that the case for transgender rights should actually be even more obvious than the case for gay rights. Why? Because one important class of transgender individuals consists of people who are genetically intersexual, who have been assigned a gender at birth or at an early age. While there may indeed be discoverable genetic characteristics at play in homosexuality, there is no question at all about it with respect to intersexuality. Even if there is no available underlying genetic explanation for other transgender individuals, the very existence of intersexuality demonstrates that human sexuality can indeed be socially defined and ambiguous at a very low level in the organism. A just and scientifically informed legal system would necessarily recognize that fact.
2
".....discrimination against gay men and lesbians is a form of sex discrimination." It is not a form of.... It IS discrimination. Sexual orientation is not a choice
15
Why is it that it's always an issue when it's LGBTQ people or African Americans, or women, that we need a court decision to ensure our rights? It should be a foregone conclusion that as human beings all of us, regardless of our skin color, gender, sexual orientation, HIV status, or religion should be able to have and exercise those rights guaranteed by the Bill of Rights in our constitution. That it's not is a disgrace to our country and our claims of being a place where all are welcome, respected, and free.
4/22/2019 7:38pm
26
@hen3ry
I'll answer the question, even though I know it is a rhetorical one.
Discrimination is baked into the American constitutional cake. It is what allows for slavery, it is what allowed for no slavery but discrimination, it is what allows to this very day for voting for some and not others, and on down the list of slights.
It is also what is allowed this nation to descend into oligarchy. If a Democrat wins in 2020, and if there is a majority in both houses, they will need to work on a constitutional reboot. Failing that, in a hundred years, Americans will fight the same fight we are fighting today.
8
Slavery was in the constitution. No alcoholic beverages was also in the constitution. Just being in the constitution does not make it right.
1
It is clear that there should be no discrimination against gay and transgender workers. However, using an old law on the books that clearly did not contemplate protecting these groups specifically is not the right way to go. It is much better to enact a new law that would address the equality of gay and transgender groups, just like Title VII did for men and women at the time. One would expect that such a law would have a bi-partisan support and would easily pass.
Generally, courts should avoid overinterpreting and stretching the Constitution and old laws to address new situations. It is much less divisive if new laws are enacted, and then the courts can just confirm the constitutionality of those new laws. Otherwise, there is a danger of judicial overreach.
17
@Henry K. You are right but problem with that is you could not get a law like that through the Senate.
2
@Henry K.
"Judicial overreach", as in Citizens United and similar decisions?
5
Well said. We are a country of laws. If we start stretching old laws to fit new situations, where will it end? We can start making stuff up. Banana republic type stuff.
1
Why in the world does this case need to go to the SC? Clearly this is discrimination. Clearly this is a violation of Civil Rights.
14
All citizens are entitled to all protections under the Constitution and Civil Rights laws. If you sit on the Court and disagree then you should not be on the Court. The question of equal rights should not need to be litigated ever again..
11
This will be interesting if Mayor Pete becomes President, which I hope for.
6
This is one of the weird statutory instances where the statutory text dictates one answer (sexual orientation discrimination is obviously sex discrimination) but congressional intent was equally obviously not to protect homosexuals.
6
@Big Cow
Affirmative Action never originally meaning white women.
3
Rule of Law will prevail here (finally). Read the language of Title VII of the Civil Rights Act of 1964. The language defines "sex" as a biological issue. Should Congress wish to amend Title VII to include gay and transgender workers, they may do so at their own political risk. The notion that the courts can legislate won't play in this SCOTUS. The days of Eric Holder's twisted legal logic are over.
15
@Mike. Your argument hinges on the apparent belief that sexual orientation - perhaps except for heterosexuals - is a choice and not biological. Millions of people in the LBGTQ community would have trouble accepting this premise.
8
One step forward, two steps back. That is the state of our civilization right now.
7
Fifteen states and Washington, D.C. have passed laws that protect against workplace discrimination based on sexual orientation and gender identity. Even if the SCOTUS interprets Title VII as not covering discrimination against gay and gender non-conforming individuals, these state laws would still be in effect, creating a contradictory legal landscape.
Adding to the confusion, individual employers with staff in multiple states have their own policies prohibiting discrimination against gay and gender nonconforming employees.
And what impact would this ruling have on Title IX (sex discrimination in education institutions receiving federal funds), which was modeled after Title VII of the Civil Rights Act?
7
Federal law overrides state law. That is why gay people can now have legal marriages in states that would otherwise prefer to invalidate them.
1
Why any human being would discriminate against someone of different sexual orientation or preference is beyond understanding
As Nelson Mandela said, hate is a learned behavior
12
@Chicago Paul
But it’s ok to discriminate based upon political affiliation? Why?
5
@Shamrock
Depends what you mean by "discriminate." For one thing, political affiliation is a choice, unlike sex or sexual orientation or gender identity.
8
@Shamrock....Because political affiliation is not an accident of birth over which you have no control. It is a choice.
7
well then, I guess that'll open the door for discrimination between male and female, not to mention that transgender and gay people will have no standing in society. This in light of scientific findings that people have no choice in their sexuality any more than zebras can pick their stripes. We're all just human beings the way we're born.
7
The use of the word 'sex' to signify gender, non binaries, and sexual orientations was probably not intended anymore than the use of the word 'equal' and concept of equality intended to include the African slaves and the women. Once liberty is given, it is impossible to take back. It would unmanageable to return the nation to the days before racial and gender equality, even if that's what the law's writers had in mind. There's no way back, even if it's what they thought they meant in the old days.
3
Gosh, I can't wait to hear how the far-right Republican controlled SCOTUS will decide this case..
5
Before I make my comment, I’d like to preface it by saying I am an Ivy League educated lawyer and am well versed in this particular line of cases and decisions. That being said, it doesn’t matter. If we want to fix broken roads and bridges, make sure people have healthcare, focus on prioritizing domestic and international security in actual and meaningful ways, and you know, run America, this expensive, hateful nonsense needs to stop. These aren’t political issues. They are personal issues. They don’t belong in a court house. The biggest mistake this country ever made was conflating a line that should never have been crossed to begin with. Read the constitution (it’s the preface so you don’t have to read much). Other countries don’t struggle with these issues. Why are we?
20
@Sam
Other countries are not bound by Puritan ideals and their citizens are not raised to vilify government, discriminate, be contemptuous of the poor or deny the fundamentals of science.
Americans struggle with those issues because they see any mutual agreement as abdicating to a sworn enemy.
Americans see every issue in terms of winning and losing (even basic win/win such as infrastructure) and if there is a winner, there must be a loser.
If Liberals support LBGT rights, Conservatives are dutifully against them.
14
That last question was meant as a hypothetical one but you’ve answered it for me. Sad but true. There was a time when things could get done in government despite differences in opinion. I know! I read about it. Somewhere a breakdown of civility occurred so decisions are now made out of spite even though it is blatantly obvious those decisions will have a negative impact in the immediate term for everyone. Rome will burn. Fire will be the great equalizer.
7
“Other countries don’t struggle with these issues. Why are we?”
By “other countries,” I assume you mean countries like most of Europe. The reason we struggle with them is because we have allowed religion to play an increasing role in politics and public discourse since Reagan enabled the Religious Right in the ‘80s.
Until religion is relegated to its appropriate place, we will continue to struggle with this and other absurd arguments that have no standing in more enlightened countries than ours.
4
The same body that allowed gay people to marry might now say it's ok to discriminate against them in a job. Inconsistent.
8
I have a hard time believing lawmakers even knew what homosexuals or trans people were in 1964, and even as a gay man I can’t see how that law can be seen to protect me or transgendered people. Homosexuality and transgender are different things from basic gender and that’s what we fought for. And continue to fight for.
Folks, you can’t attack our lying President for denying facts and then deny facts yourselves because it’s convenient to our side. Or stretch wording so far that it won’t stand up to continued attack (see Roe v Wade). Band-Aids don’t last and come off at the worst times.
Obviously, we need a law that says, “You can’t discriminate against people for just any old stupidass reason.” That would pretty much cover it.
12
Again liberal know it all readers of the NY Times weighting in on legal matters concerning laws that were pass to stop racial and sex discrimination. These laws should be reviewed by SCOTUS to see if they are textually being violated.
5
A woman dates a man, and the company does not fire her.
A man dates a man, and the company fires him.
A person assigned female at birth dresses as a female and is not fired.
A person assigned male at birth dresses as a female and is fired.
Seems like discrimination based on sex to me!
20
It would appear that a prohibition on discrimination based upon sex would also apply to sexual orientation but then sexual orientation isn’t specifically noted in this law, as it is noted in others. However, that being said doesn’t mean that every aspect of the law that applies to women must naturally apply equally to men. The Selective Service requires males to register but not women yet it is not discrimination. Approximately sixty percent of those getting degrees in commencements next month will be female, an outsize number against the total female population yet that is not discrimination. Every place from bars and restaurants to car washes can offer ladies nights yet such isn’t discriminatory. Sone of this is due to the overall horrendous treatment women receive in society and some of it is due to societal norms, like the obligation to serve one’s country.
3
@From Where I Sit I personally think that one could make the argument that selective service requiring men but women to register for the draft IS sex discrimination (but that's a whole other can of worms). As for females getting degrees and ladies' nights, I would argue those aren't quite relevant because these women aren't employees of the institution in question. The fundamental argument I'm making in my (admittedly simplified) example scenarios above is that discrimination based on sexual or gender orientation is precisely discrimination based on sex and sex alone. After all, a woman who is fired for being lesbian is not being fired simply for having intimate relations with women; after all, men do that too. She is being fired entirely because she is a WOMAN having relations with women.
6
@A
I was born a male. No one assigned me. Also, i can dress however I want.
2
First they came for the Gay and transgender workers. . .
8
To me, as a lawyer, I do not view the term "sex" in the statute ("race, color, religion, sex, or national origin") to include sexual orientation; I think transgender status is a closer call.
Oddly, Title VII does not include a definition for the term "sex"; it does however include a definition for the terms “because of sex” or “on the basis of sex” and it is clear from that definition that "sex" in that context was intended to protect women from discrimination.
Of course, I think discrimination on the basis of sexual orientation and transgender status should be prohibited, but the way to do that is to amend the law, not to distort the statutory language past its reasonable interpretation.
Lay people hate this inconvenience of the law, but it's often the case, particularly with statutory law. The question isn't just what seems right or fair to us now, but rather what the law actually says and is meant to cover. If the culture changes to such a degree that a legal provision hasn't kept up with the times, we amend the law; we don't pretend it says something just because we wish it were so.
With Title VII, Congress could simply add a definition of "sex" that includes sexual orientation and transgender status.
18
I definitely would never out law heterosexual marriage.
I would not want Gorsich and Kavenaugh or Alito or Thomas thrown out of their jobs because they identify as compulsive heterosexuals. Though maybe they should recuse themselves any time any case involving people's well being is brought up to be decided on.
7
It will be another 5-4 decision.
2
Whether Congress intended to include LGBTQ individuals in Title VII is irrelevant - or at least ought to be if you're a conservative justice on the Supreme Court. For conservative judges on the Supreme Court, Congress is held to what it "says" not what it "intended to say." But, I suspect, that the conservatives in employing their favorite interpretative tool, "judicial relativism," will say "sex" doesn't mean "sex" when it comes to LGBTQ folks. And if the Federalist Society is against it - and it is - then the conservative judges are against it too.
5
Jon, you’ve nailed it with your comment. IF they were consistent with their “interpretive framework,” then the answer is clear. Alas, they are not; they’re hypocrites.
2
To everyone who stayed home in 2016-this is on you.
Lobby cleanly and enthusiastically for your candidate through the primaries, and in 2020, No Matter Who - Vote Blue. The balance of the Supreme Court for generations is in your hands.
31
I don't think the law protects based on gender or sexual orientation. Perhaps it should be updated by Congress to protect these groups of people. But the law clearly refers to sex.
Gender is a social construct; sex is biological in most people. The question of whether intersex people change our understanding of these terms is something the Court should absolutely consider. But based on the clear language of the law, the 'original meaning' and Thomas with his quirky 'original intent' (which is not something you can figure out years later with any reliability) is how a majority of the present justices will approach this question. They will leave it to Congress to update the law.
6
In the case of the skydiving instructor I thought it was because he told the skydiving woman’s husband it was okay for him to wrap his arms around her chest because he was gay. I don’t see how getting fired for saying stupid things factors into sexual discrimination?
2
The fact that lawmakers didn't have the LGBTQ community in mind when writing the Civil Rights Act is not an argument for blocking its potential to protect gays and lesbians. The Supreme Court must apply judgement based on the climate of this era, and conclude that discrimination based on sexual orientation or gender identity is akin to discrimination on the basis of sex. Yes, it would be preferred if Congress were to pass federal protections, but the court, now faced with this decision, must interpret the existing law as the country needs.
12
This is a very important social issue that needs to be talked about from people of all sides but no discussion is ever allowed. Much could be advanced if discussion were allowed. Currently in our society there is no forum where you can speak (twitter) without being immediately slammed and penalized for your beliefs so everyone holds back. We need our government and our society to be more colorblind and more gender blind.
3
Only 20 or 21 states provide protection from employment discrimination for GLBT people. If you think John Roberts has an open mind about GLBT people, just read his dissent in the case legalizing gay marriage in 2015.
For people who think progress always moves in a forward trajectory, history is instructive. After the Roman Empire collapsed, Europe lived in the Dark Ages for around 500 years, and it took nearly 1,000 to reach the Enlightenment. Or look at what happened in Germany after the Nazis took over - nearly a million murdered gays and lesbians in the concentration camps.
We are talking about the ability of people to be able to work and earn a wage to support themselves. If the Supreme Court rules against including GLBT as part of Title VII of the Civil Rights Act, you can expect a more open firing of some GLBT people in those 29 or 30 states that have no such protections, and an environment of fear for those who keep their jobs.
12
@Barbara - Talking about moving backward: My state, KS, had a law that protected LGBTs who worked for the state. Then we got a rightwing legislature and extreme rightwing governor, and those protections were rescinded.
If the courts don't stop writing and imposing law, the credibility of our democracy is going to disappear. A handful of unelected commissars are not supposed to write laws. Elected representatives are. The left continually supports this violation. They want what they want, and they don't care how they get it. The country will collapse as a result.
6
Ha! Really?! You have got to be kidding me.
This is like the pot calling the kettle black don’t you think?!
Hhhmmm I wonder why the Republicans are stacking the courts and why did they block President Obama from Appointing a supreme court justice. Why did they not allow him to put judges on the bench during the eight years he was in office and now they are stacking the courts with extreme right wing unqualified judges.
Give me a break.
23
Interpreting the constitution and law is what judges and justices do. Judges and justices have been making these determinations for their time or era for as long as we have had them. Do not misconstrue interpretation with law writing.
14
Does this include the second amendment, whose text clearly states “well regulated “, no matter what the NRA says means, it means the same now as in the 18th Century?
Alas, all of us chose when we want the courts to be “textual” vs “Current”. This is the reason the court was to be non-political. The political system is broken, this was foresaw 250 years ago and is why we don’t elect federal judges, they moderate us. When politics is slow (or backwards) or faster than we’re ready for.
5
The United States of America, trudging at least 40 years behind the rest of the modern world in even basic terms of infrastructure and social norms, clutches its history of bigotry and discrimination.
It is a forgone conclusion that the USA, with the endorsement of a partisan SCOTUS, will continue to use “freedom” as a cudgel with which to bludgeon what it deems queer and intolerable. In that regard, America is irredeemable, morally bankrupt and resigned to living by hopelessly medieval concepts.
20
Depressing. How can we expect to make progress as a society if we need to continually relitigate the same old things?
12
@Tamara
America is not a progressive society. In 2019, Americans are curiously debating the virtues of healthcare, the science of climate change, the merits of paid family leave and have all but given up on modernizing their infrastructure.
America ebbs between static and regression, barely breaking the surface of what is otherwise considered accepted law/science/social standards.
21
Shouldn't Congress decide what its legislation does or does not cover? I would not be surprised if the SC kicked the issue to Congress or ruled in a manner that fails to state clearly whether the law covers gays/transgenders or not. This type of ruling would be similar to the "wedding cake decision" that was reported by the media as a decision in favor of the baker but actually the ruling only stated that the Colorado Civil Rights Commission acted improperly.
1
The gay marriage case was treated as seminal. Much planning and much money went into its success. But not that many gays get married and most who do are relatively well off.
This work discrimination case is relatively obscure. It started with one working gay man and didn't get a lot of private support. But countless gays are discriminated against on the job, with the largest number being ordinary working people.
The attention given to these two cases seems to me to be in reverse proportion to their importance to the average gay person.
2
@michjas Your comments are thoughtful and meant to be helpful, in theory, thank you. However, please don’t refer to be people as “gays” , that is impolite to both ordinary and well off people who are gay. That word separates all of us humans. When we feel separated, it is easier to discriminate against the “other”.
6
How does an employer prove in a court of law that I am gay and that that is the reason for dismissal?
2
@tom harrison
The employer will deny that the reason was for sexual orientation and claim that the employee was “at will” and can be fired for a multitude of reasons, valid or fabricated.
6
@tom harrison
I thought the burden was on the employee to prove he/she was terminated for being gay or transgender. Still a valid question - how does one prove the reason for termination
What's there to decide, it doesn't. Sex and Gender meant exactly what was intended.
You don't get to go back and reinterpret what people already decided.
This was silly case to test on a Conservative bench.
My prediction: 5-4 ruling gays/trans don't apply.
4
This is insane. Congress should have headed this off before it got to the Supreme Court.
3
But that would require a functional congress, which we haven’t seen since 2008 at best, but really since Clinton and probably before that (LBJ maybe?)
@Jim - We haven't had a functional Congress since Newt Gingrich and Tom DeLay decided politics was from thenceforth going to be all out warfare.
How could the same court that in 2015 ruled to make same-sex marriage legal , rule in 2019 to make employment discrimination against gay people legal?
12
@Chaks That's because it is a different court of course.
Just like the same Executive Branch in 2015 that supported Trans in the military, isn't the same one in 2019.
6
It comes down to how the law is worded and original intent. Even if a judge agrees with protection for LGBT people in the workplace the ruling is on the reach of this particular law. If they find it doesn't cover them then it's Congress' job to craft a bill that does. That's unlikely, but that's how it works. I'm gay, by the way.
1
LGBT is what one does or believes about him or herself. Has nothing to do with X or Y chromosome or genitalia at birth.
Christo-fascists are trying to hang on to the last remaining avenues for faith based discrimination. Its shameful and contrary to our values as a nation. Title VII and public accommodation protections absolutely must be extended to all and cannot logically or morally exclude LGBT people. To refuse employment or service to someone based on their real or perceived sexual orientation/ gender identity is simply wrong.
232
@Eaglearts I love "Christo-fascists!" (The term, not the Christo-fascists)
Thanks for a great contribution to my vocabulary henceforth.
34
I do know some angry anti-LGTBQ folks who are not Christian, however. Just like I know some soulful, compassionate Christians who themselves are gay (and are leaders in some churches). We ALL need to be careful in how we group people, please.
11
@Eaglearts whether it’s moral or not has nothing to do what’s enshrined in the Constitution.
4
What language in the 14th amendment gave congress the authority to prohibit any kind of discrimination by private individuals who are not acting under state authority? As an individual acting as a consumer or seller of goods or of labor, I have the natural unalienable right to decline to deal with whom ever I wish for whatever reason, regardless of what the law says.
7
@KBronson Not when you are licensed by the state to conduct business within the state. If you operate a business that serves the public, you are subject to all the same employment laws and anti-discrimination laws that every other licensed operator is subject to. Most commonly, this falls under public accommodation laws. If you don't want to operate a business that is open to the general public because it precludes you from discriminating against people, then run the establishment as a private club that charges dues or admissions or has some other exclusionary process. Even then, if you employ people, you are _still_ subject to employment law in your state that dictates you cannot discriminate in hiring practices.
Contrary to your belief, you do not "...have the natural unalienable right to decline to deal with whom ever I wish for whatever reason, regardless of what the law says." You may have a personal right to refuse to deal with specific individuals for your specific reasons, but the State also has the right to refuse you a license to operate, or penalize you for operating outside the laws of your state. When you accept that business license, you are entering into a contract with the State that licensed you, and all the authority granted the state to regulate commerce. If you truly believe otherwise, I humbly suggest you shouldn't be operating a business in the first place
24
Title VII is based on the power of Congress to regulate interstate commerce. Has nothing to do with the 14th Amendment, which applies only to the states. Indeed, for the anti-discrimination provisions of Title VII to apply, the employer has to be in a business that affects interstate commerce and must employ at least 15 persons.
5
@KBronson
That’s a decidedly extreme view. Legal precedent is, thankfully, not on your side.
8
Even if they do side with lgbt on this issue enforcement will be difficult, just as it is for other groups now. The United States is not a labor friendly country.
6
@Tim Phillips
Fascinating that religious people believe they have to take away from very civil liberties to assure theirs, and make us all, everyone one of us, live under their creed.
As a person born transgender, I will support this horror show of an imminent anti-queer Supreme Court ruling if those businesses and places which support it are required to post a proportionate-sized public sign in their store or other window stating in large letters NO QUEERS ALLOWED. In this way, we can see who they are and what they openly support, and only then will America be shamed into giving us all equal rights.
7
I think your optimism is admirable. Personally, I feel that if such discrimination is deemed acceptable, those who want to discriminate are eventually going to want LGBT people to identify themselves, perhaps by wearing insignia of some sort … and we’ve seen how that scenario went down.
The law can be interpreted to include LGBT, and should be of course, There is overwhelming scientific and medical evidence in support. But this court accepted this issue knowing it can set a different precedent and it most likely will. I know this as a lawyer and I regret it being transgender.
It will bring disgrace to the very concept of the Supreme Court, just as it was publicly and pathetically disgraced when it overruled its own anti-gay Bowers v Hardwick decision within a short 17 years. The decision will be impossible to justify to our young people and with it the Court.
Congress will not step forward and safeguard different Americans now, just as it failed Black Americans in the 1950's, leaving it to the Supreme Court.
Separate but equal was ugly and wrong then and is wrong now. It was graceless and immoral, and a failure of enlightened self-rule.
Is this the legacy and is this the America John Roberts shall leave behind?
6
We'll see how the five Roman Catholic men on the court vote, the five 16th Century men on a 21st Century court.
Not hard to imagine though - sick, frighted by and confused as their theology makes them about human sexuality.
There will be no law in their opinions, rather purely sexually primitive theology disguised as law.
The United States is a democracy except that by 5-to-4, and greater perhaps in the next 18 months, it is a theocracy -- not a court of law but a theological tribunal.
11
I am not in favor of being mean to anybody. However, interpreting the prohibition of discrimination on the basis of sex as including discrimination on the basis of sexual orientation is nonsense.
One just doesn't imply, is not contained in the thought of, the other. And to try to base this on what the discrimination is "motivated" by, as the muddle-brained explanation from the Second Circuit goes, is sophistical. One could just as well argue that prohibiting the sexual abuse of children by adults is age discrimination, because it is "motivated" by age.
Where our society wants to prohibit discrimination on the basis of sexual orientation, it should do that, but it's intellectually dishonest to claim that words or speech acts mean things that they don't.
6
Without having read the exact wording of the law or of various court opinions, it would seem that laws against discrimination on the basis of sex apply even if the person in question has changed sex along the way.
It is less clear that these laws would apply to people attracted to the same sex, although it would be fine with me if they did.
1
As the great orator, philosopher and comedian Emo Philips asked, “Why do we hate each other because of race, creed, sex, religion or national origin, when there are so many really good reasons to hate each other?”
9
"...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."
--Antonin Scalia, writing for the majority in Oncale vs. Sundowner Offshore Services
In this case, the majority found that the prohibitions of Title VII were sufficiently broad to forbid male on male sexual harassment.
Note that language of Title VII prohibits discrimination with respect to "compensation, terms, conditions, or privileges of employment" so its a few steps from that language to forbidding sexual harassment. Yet, prohibitions on sexual harassment in the workplace are based on Title VII -- in other words, a comparable evil.
Note, as well, that Scalia specifically states that the text of the statute is the deciding factor -- not the intent of the legislators. The argument that it was not the intent of legislators who passed the Civil Rights Act of 1964 to outlaw discrimination against LGBTQ workers does not hold water. Moreover, even were the reverse true, the legislators passed a broad prohibition rather than a narrow prohibition confined to one or two motivations for discrimination.
Discrimination against LGBTQ workers is surely a comparable evil to any other form or discrimination in the workplace.
5
I have some good news for everyone who says that it’s deplorable that we are still debating whether to allow discrimination on the basis of sexual orientation and gender identity.
In many states the debate is long over and the good guys won. Many State level laws forbid such discrimination.
I don’t have the states in front of me, but look it up and you’ll see that the Supreme Court decision is whether the usual suspects of states will join the 21st century in employment law.
2
@Yeah - that's about 20 states who have laws protection GLBT workers, leaving GLBT workers in 29 or 30 states with no defense or protection against discrimination.
1
Equivocation is when a word means more than one thing. Equivocation creates confusion. Language is full of this sort of confusion.
There is equivocation in the word, "sex" which could mean being male/female or a pleasure inducing physical activity between people.
Many people in this thread are assuming that just because a word has two meanings, any law that uses the word must encompass both meanings. But that is simply not true. The various meanings of the word "sex" solve nothing here.
2
People often conflate gender, sexual orientation, and body image to this day. It is reasonable to assume that the legislature that wrote Title VII did also.
We still gender far too many things. The ability of a person to work should not be hindered by other people's bias on how people of a particular gender should conduct themselves.
3
In 2015, a Supreme court ruling made same-sex marriage legal.
In 2019, the same Supreme Court is considering whether law against employment discrimination covers LGBT people?
I'm not a lawyer, but how could the court rule against LGBT people?
How could the same court gives LGBT people the right to marry and allow employment discrimination against them?
6
Obviously because it’s not the same court. The players are the longer the same as they were in 2015.
Would it not be so perfectly fitting for RBG to write the majority opinion in these cases?
2
@Mr. Mark
On the Basis of Sex, of course!
The Supreme Court is assuming jurisdiction over these cases partly because of the wildly overreaching proposed Equality Act currently in the Senate Judiciary Committee. IMO the proposed Equality Act will die in the committee, and there will be no need to re-introduce it. Thhe Supreme Court is the appropriate branch to work out the issue of how trans and sexual orientation rights should be handled.
2
If certain employers are seeking the right to discriminate against people I can almost guarantee that those companies would not be good places to work for most people for other reasons as well. Companies that are ready and willing to treat any group poorly will find reasons to treat other employees poorly as well.
18
How you define "sex" in "sex discrimination" when a case involves transgenders?
1
The transgender individual decides it.
1
@areader May I suggest that the word "transgenders" you used is as ridiculous (and offensive) as "lesbianers" or "gayers".
If feel compelled to offer your learned opinion about us, may I suggest you might want to call us transgender people.
@Rachael,
Sorry, why "lesbianers" or "gayers"and not gay and lesbians? What the difference between the "gay people and gays" and " transgender people and transgenders"? Isn't it just the letter "s" signifying plural form?
2
Years ago, a new colleague at my office put a picture on his desk of himself with another man. Many people assumed our new colleague was gay. As it turned out, the two men were brothers.
The point I'm getting at is that discrimination on the basis of sexual orientation needn't be based in fact. Imagine being fired because a boss makes an incorrect assumption about your gender identification or your sexual orientation.
18
Just have it cover everything, including every choice anyone makes or has ever made.
3
Is it 2019? Can’t believe this is a thing.
14
Interpreting Title VII, which was enacted 55 years ago, to include discrimination based on sexual orientation is a classic example of evaluating old legislation based on modern notions of fairness. Obviously, employers should not be permitted to discriminate on the basis of sexual orientation. But claiming that Title VII actually prohibits such discrimination is the equivalent of trying to fit a square peg into a round hole and runs afoul of the constitutional prohibition against legislation by the courts.
38
@Jay Orchard
Interpreting any law or political document based upon when it was written is ridiculous. Are legislatures supposed to constantly update documents on an annual basis to stay current? Tweak? Certainly not.
Laws are purposely written broadly so that laws may be interpreted broadly. So that they will apply to future generations. It's a legal concept that has been around since the 16th Amendment.
We are a democratically liberal society whose values evolve and these attitudes have changed. Apply the law to be relevant.
33
@Jay Orchard
By that logic Jay please explain how the court allows people to own anything more than the muskets and pistols that were all that were known when the Bill of Rights were ratified?
40
Jay, perhaps this country should pass a Constitutional Amendment prohibiting the Courts from interpreting statutes and the Constitution. It would sure save a lot of taxpayer dollars.
5
As an academic who has followed this line of cases and as a transgender woman myself, it's disappointing that this was the case chosen to decide this question. It seems to me that it's reasonable to expect that funeral director be someone who can be almost invisible so as not to be distracting to the bereaved. Depending on the specifics of the case, this could be mixed up with the other issues in a way that doesn't apply to most jobs.
In crafting a ruling that that will have broad applicability, I'd like to think that the court is capable of separating out these issues and immune to being influenced by prejudice. But the degree to which we've been used as a wedge issue by the political right and an increasingly partisan politics over the court don't inspire a lot of confidence.
2
I find it extremely disturbing and troubling when I read opinions arguing for the "right" to discriminate against people because of a real or perceived sexual identity difference. If it doesn't harm anyone or myself, what does it matter? I refuse to entertain any malarkey about any, "deeply held beliefs." That's nothing more than a code word for someone to discriminate based on religious beliefs to somehow discriminate against people that they don't approve of or, even, hate.
41
It is not the job of the Supreme Court to determine what legislation really ought to say. Title 8 is clear; it bars discrimination based on "race, color, religion, sex, or national origin". It does so 21 times, in fact. It does not mention gender or sexual orientation.
https://www.eeoc.gov/laws/statutes/titlevii.cfm
On its face, then, it doesn't address bias against gay or transgender people. The solution is simple: legislation.
4
@Mike
Yeah that's just not how legislation works. At all. Nor is it realistic or desirable to have legislation work.
Do you actually think that we can have congress lay out each and every thing we can or cannot do? You think that's a simple solution?
Just no.
Courts *interpret* what legislation means. That's what's happening here. That's what's always happened. That's what always will happen.
God, I hate listening to lay people talk about statutory interpretation. It's painful.
1
Of course the current administration would oppose anything dealing with sexual orientation. Mike Pence probably considers homosexuality to be a crime. It really doesn't matter because one court can always undo another court; see Plessey vs. Ferguson and Brown vs. Board of Education. One country with liberty and justice for all, in case the SCOTUS forgets.
6
Trump backs the forces of Pence anti gay agenda and follows the white nationalist program most dictators do. Perhaps AG Barr will require gays to wear pink triangles to allow employers to judge them accordingly. Back to 1950 make America white and straight again like the good old days when straight old white men like Trump and Barr ruled without question.
10
Orientation or personal identity usually have nothing to do with the business objectives of an employee's position. If employers are arbitrarily demanding a specific demeanor or lifestyle based solely on an employee's gender, it would be reasonable to assume that the policy has run afoul of Title VII of the Civil Rights Act.
2
Rulings in favor of the gay and transgender parties would not eliminate discrimination, in fact, they would increase the likelihood of discrimination against non-gays and non-transgenders.
Consider a business with an underperforming LGBTQ employee. An employer would be loathe to terminate the employee for fear of being slapped with a discrimination lawsuit. The business would not have a similar fear were it to fire a straight white male. Unequal treatment.
Now consider a business that needs to cut costs by laying off an employee for no reason other than the need to cut payroll to keep the business afloat. Again, given the choice between laying off the LGBTQ worker and the straight white male, the business may fear a lawsuit, a boycott, an online smear campaign and other retaliatory actions if the laid off individual projects a narrative that s/he was fired for being LGBTQ. Therefore the straight white male is more likely to be laid off. Unequal treatment.
A free economic system can only function when all transactions and agreements take place between two willing participants, without government coercion.
6
@Charles Straight white men are also protected by Title VII. If they were fired just *because* of that identity, they could also sue the employer. You are equating the reason for firing (poor performance) with their identity (sexual orientation, sex, and interestingly you include race as well, for no apparent reason). Whether or not if you are LGBTQ or not, you should be fired if you are not performing well. This just extends the protections straight white men already have if they are fired for their identities.
9
@Charles - "in fact, they would increase the likelihood of discrimination against non-gays and non-transgenders."
I read that as utter nonsense.
Just say it, "I want to discriminate against people. It makes me feel better when I can treat other people as poorly as I'd like to."
12
@Charles
Oh good gracious. This is already a "fear" of every business every time they fire someone who ostensibly fits into a protected class. That's why HR departments exist- to build paper trails before you fire someone so you can ward off the lawsuit. It's been happening for decades, I assure you, HR departments across the country are prepared.
This is hardly a revolutionary, novel, or even interesting argument. It's not even logical, because, as stated above, the company will simply fire the undeserving employee and keep the paper trail. It won't hire someone else good just because of fear of lawsuits. You present a false dichotomy. But hey, that's libertarian reasoning for you.
Only a person who knows that non-legislative social, economic, and political structures will protect him will advocate against laws prohibiting discrimination.
2
What about your ability to perform a job the best indication of hiring/ firing practices? What consenting adult lawful behavior occurs behind closed doors is not our business.
Sometimes a heterosexual male has qualities that our society considers effeminate. Or a woman who in my day would have been called a “tomboy”. Sometimes two same sex individuals share an apartment to save money. Will they suddenly become suspect?
All of these issues are a slippery slope. If sexual orientation becomes an OK reason to fire someone, our society will lose. Because all around us there are people of great skill who are not heterosexual. We need to deal with it, not shun it.
If you have a heart attack, call the police to help you or need a car fixed, do you even consider the sexual orientation of whomever helps you?
Another very sad setback for our society that this issue is being debated yet again.
10
I predict the same justices who think the 2nd amendment covers muskets and assault weapons (because the Founding Fathers saw the future?) so use a "wide stance" 2nd amendment interpretation, will take a "narrow stance" position and rule that Congress never mentioned the LGBT community when it passed the anti-sex discrimination law so rule the law doesn't apply.
4
It's simply unfathomable that this is what our country is grappling with. How can this possibly be a focus given the many other critical issues - like global warming, our dysfunctional government, our perverted wealth inequities, the surge of racism and nationalism, horrible gun violence...???
6
Because the LGBT serve as such useful misdirection away from real problems such as those you mention, and they are too small a voting minority to matter much. So it would seem to these people, anyway.
1
I have a feeling the Court will reject the transgender claim but uphold the sex stereotype claim for Ms. Stephens. By the way, her dismissal seems pretty ridiculous when you consider the fact that she is an embalmer; I don't think the corpses much care how she is dressed.
3
So, our “Supreme Court” is made up of people, not interested in justice, but in fulfilling the ideologies of their benefactors.
This defeats its purpose.
We need a better way of appointing members than through corruption if we want America to be truly great.
5
The example Gay rights groups have told us for the last few years is very real "Married on Sunday...Fired on Monday". Also important as we saw with the marriage debate: rights that change when you cross state lines is bad for all: the gay community, business, families and society as a whole
6
I've never been convinced that sexual orientation discrimination is what was intended to be outlawed as discrimination based on sex. Nor is sexual orientation commonly understood to be included in meaning of the term "sex" (or was it understood to have such a meaning in 1964).
A hypo: an anti-gay bigot is happy to hire both men and women in his fast food restaurant and pays them equally. But he doesn't hire gay people of either gender.
Is he violating Title VII?
It's my opinion that if you are open to hiring both men and women then you aren't discriminating based on sex.
So I think another new law is needed to prohibit anti-gay discrimination. Would I support such a law? Only in the context of a general reform of our anti-discrimination laws, which result in tens of thousands of frivolous lawsuits each year, wasted legal expenses and overly cautious HR decisions that hamper economic efficiency.
29
@Mmm I've never been convinced that an amendment aimed at allowing people to have MUSKETS was never intended to allow people to have ASSAULT WEAPONS. And you?
35
@Mmm
Sadly, you are probably correct on legal grounds. Yes there needs to be a new law or an amplified version of Title VII.
A "general revision" for "frivolous lawsuits" sounds like an autocratic move backwards.
All law suits are "frivolous" to those who feel rights have been wrongfully extended.
The Supreme Court will likely apply the same strict interpretaion as you say here.
But just think about all the "wasted legal expenses" that will be incurred as a result. Better that the USSC decide that the right of the individual to choose, adopt, or otherwise asumme the sexual identity most fiting for that person is a right that cannot be legally denied or decriminated against in our society.
Is that where we are in reality and our day to day lives? And what about intersex people as mentioned by the mother of such a person here in commentary?
Now that's where a "strict" interpretation of Title VII falls apart. Right?
So there.
1
@Mmm sorry about the double negative. Couldn't edit the original comment. The second "never" should be omitted.
3
Oh good. As a seventy-year, my right to be treated as an American citizen, equal under the law, is once again in question.
5
What about people who self-identify as one race or another or who self-identify as some inter-gender or non-gender category? How does anti-discrimination law fit these categories?
3
@Mon Ray
If I recall correctly, Rachel Dolezal sued Howard University for discriminating against her as a white woman. The other 99% of the time, she was "black."
2
And....we're off! The vast majority of the people posting comments want to make this about transgender rights or gay rights or Human Rights. About "discrimination is bad/wrong." Because, of course, who is *for* discrimination? But this is about Title VII of the Civil Rights Act of 1964, which forbids employment discrimination based on SEX. No one can claim that congress intended to protect gay or transgender rights with Title VII. Don't make banning discrimination dependent on who is in the White House or who sits on the Supreme Court. This needs to be fixed legislatively. Congress should pass new laws or amend existing laws.
9
Your view of what constitutes a "sex" or gender issue is extremely narrow and your argument about the "intention" of the lawmakers stands on shaky ground. Why would anyone care to see a right for anyone to discriminate against certain people people in the public arena? In your personal life, you are pretty free to discriminate, but in business and government you should be restrained.
2
@Joan - If someone is discriminated against for being gay, it's a case of the employer saying, "You're a male, and you're only allowed to be attracted to females." That's discrimination on the basis of sex.
trumps court will allow people to discriminate it will overturn roe and will eventually overturn gay marriage that's the religious platform of the Republican party I can see the firings coming . we are turning into the middle east where religion and govt are one. look how well that's going.
5
I would honestly like someone to explain to me how discriminating against someone because of who they have sex with, is not a case of sex discrimination.
If you fire a man for sleeping with a man, that is discrimination based on gender, because presumably a woman would not be fired for sleeping with a man.
11
@Thad
I am not clear on how an employer would know the details of an employee's sleeping arrangements or sex life .
@Lynn in DC - People in the workplace generally know enough about their co-workers to know if they're dating or married to someone of the same or oppoiste sex. I remember years ago a co-worker commented that she and her husband were going to see a particular movie that weekend. Ann spoke up and assured the co-worker that she and Susie, known to be her partner, had loved that movie when they saw it the previous week. Another co-worker told me later that was the problem with gays/lesbians. They insist on "shoving it in your face." In this case, he meant that Ann's mentioning seeing a movie with Susie as an example of "shoving it in our faces."
Anyone else think that the Supreme Court accepted this case specifically as a distraction for the left? Ooohh, look at this shiny object! (And as meat for the right to be outraged?)
1
One thing to keep in mind: the Civil Rights Act of 1964 does not protect people with disabilities. If a company feels a person with a disability is too much of a financial burden to the company, and can demonstrate the decision is "rational", the person with a disability can be fired.
Protections for gay, transgender, and disabled people can be assured by amending the Civil Rights Act to include these three groups. Civil rights are for everybody, and until the Act reflects this, it will make a sham out of any notion of equal protection.
6
@Muddlerminnow, There is already a statute that protects persons with disabilities: the Americans with Disabilities Act (ADA) and it's federal complement, the Rehabilitation Act.
5
@Muddlerminnow: It’s my understanding that the Americans with Disabilities Act protects disabled people from employment discrimination.
1
The rule of law? Can we just treat each other like we're all human beings who need the same things to survive and to live?
9
@Cindy Lutz-Spidle
I'm not an evangelical, but I cannot see how your insulting term "talibangelicals" serves your purpose at all, except to make you seem as beyond the pale as those you criticize.
1
@Good Reason I’m guessing you replied to the wrong comment.
Another commentator called it protecting our "judicial firewall," but this case is the perfect example of judicial activism meriting the kinds of judges President Trump is appointing. The Civil Rights Act deals with "sex." There is no plausible foundation to believe that the Congress that passed that law and thought there were men and women and nothing else had "fifty shades of gender" in mind. It is none of the business of the courts to legislate on this issue by effectively amending the law, without Congressional action, to encompass gender theory. Those who want to make a claim of "gender" as a protected civil rights category are welcome to go back to Congress and make their case in the democratic process; they are not free to have the courts do their work for them by acting as revisionist legislatures.
9
@JOHN My rebuttal is simple: If the person is in good standing and qualified at work, why does it matter if they are a man, or a woman, and why should it matter if their spouse is a man or a woman? These people already had jobs and the jobs were taken from them for no legitimate business reason, and instead only because of busybody idiocy.
3
@JOHN wrote:
It is none of the business of the courts to legislate on this issue by effectively amending the law, without Congressional action, to encompass gender theory.
Unfortunately, congress doesn't seem to agree or get much done, which is why the courts continue to step in on civil rights issues. And of course, the courts can turn whatever they want into 'their business.' Unfortunately, the (leftist) judicial activism meriting the kinds of judges Trump is appointing, as you claim, produces nothing but right judges who engage in their own sort of activism - Citizens United, anyone? But you know this, John, as does everyone else reading this piece - so why post such a transparently dubious claim about so-called left wing judicial activism when you know the right wing is no better?
The solution is for Congress to amend the language of Title VII. On its face, it doesn't prohibit discrimination on the basis of sexual orientation, or how one chooses to dress.
4
Let's face it. This Republican court (and will probably grow into a Trump directed mouthpiece), is going to be rolling back decades of rulings giving minorities equal rights equal to the majority rulers, mostly white men. I am white and an over privileged
due to my 'whiteness,' but little else.
That's all over. Prepare for a court that will probably take non-white minorities back to the 50's. It will take time, but it's already happening. This court only represents some of the people now and has two angry jurists intent on doing just that.
For thirty years of American progress in bringing marginalized minorities equal rights as the majority whites will soon enjoy be falling by the wayside. It's probably why a rating agency downgraded the U.S. to "Less Free" form "Free."
Maybe I'll suddenly die before the hammer starts coming down by this rigged Supreme Court. Just one more institution to fall to the chaos in the Age of Trump.
6
@Mark Please feel free to beat your own breast about your "whiteness" and "privilege," but I feel neither guilty abotu the former nor in any way believe in the illusions of the latter.
5
I one is saying you should feel guilty about being white. You should, at minimum, say “I don’t know” when it comes to white privilege. As a white man, not interested in a so called illusion, how would you know the the disadvantages and built in societal road blocks minorities in the US have faced through the decades?
@Telesmar Mitchell I am not going to feign ignorance about the latest intellectual fad to justify reverse discrimination. I hear lots of things about "making X look like America" and "diversity," but I don't see a lot of Slavic Americans getting the choicest slots, the Harvard networks, or the recognition I believe they deserve.
1
My comment from an earlier article in the Times about the lesbian couple.
It's long overdue for LGBT Americans to have protection against discrimination in their lives. It means people remain in the closet and don't enjoy the freedom to live their lives as openly as they should be able to.
In Canada, we've had that kind of protection in place since the 1980"s. 35 years later and no one cares about this as an issue. Taxpaying gay Americans are second class citizens in their own country.
Life, Liberty and the pursuit of happiness....some conditions apply.
11
@Ron Brown now you know how black people have, and still feel, but great point.
3
One more thought--in order to flesh out his argument that the Federal courts are not making decisions on the fact that they are Republicans or Democrats, all to preserve the confidence of the public that Scotus is not a political organization, Chief Justice Roberts might just rule in favor of protection.
1
@Ironmike
Oh boy. You don't understand a thing about Roberts or law.
I’m afraid, as many are I think, of what the Kangaroo Court will decide. We should prepare for a long winter on the issue of discrimination.
7
My money says there may be some fine tuning. Otherwise I predict Justice Roberts will side with the four more liberally-inclined Justices and against the four more conservatively-inclined Justices. The country could do worse.
2
I read a book once where the ultra-government (no political distinction was made) decided that social strife was caused by diversity. Indeed, many today believe that to be true, shamefully. In this Orwellian-style book, citizens were required to interbreed and were genetically modified, without saying so, to be multi-sexual. The result - gray-skinned, emotionless people who did the State's bidding. Society was stagnant. This book, like the story by Kurt Vonegut (Harrison Bergeron) and 1984, foretold the ultimate decline of mankind by erasing all that makes us unique. That's not a road we want to take. Let's get used to our wondrous differences and "humanly" and humainly work through our difficulties. Don't try to legislate or decree what is right for your neighbor.
2
The conservatives on the Supreme Court are happy to put the onus on Congress when they know that Congressional paralysis will lead to their desired outcome. Hence, they went out of their way with Heller to throw out a century of precedence by ruling that the second amendment allows for the right of all individuals to own guns, but suggested with a wink that states are free to put in “reasonable” restrictions. They similarly went beyond prudent ruling in Citizens United to say that money is speech and corporations are people with a smirking aside that Congress was free to implement transparency laws. They will similarly rule in this case that the law does not protect gay or transgender citizens from discrimination, but Congress could certainly make such a law. And, (as long as Republicans benefit) they will rule that the Constitution does not prevent gerrymandering from subverting democracy, only the legislative branch has that power. The outcome is determined. The pretext is their art.
24
@syfredrick
Congress, however, will never do the right thing until, if ever, after the 2020 election. Here in Colorado we have Cory "Trump" Gardner who regularly sacrifices whatever good sense he might have to worship at the Trump Alter. He would never vote for any protections for GLBT folks. So, until folks like him who vote to save their own cushy jobs are voted out along with, of course, our Liar In Chief himself, MAG + for the rich, those who are white, those who say they are Christian [although most of those saying that do not follow Christ's own words] and those born of two U.S. citizens.
4
A Court widely considered to contain a number of biased Justices is going to decide whether bias is allowed?
That is likely to work out well.
47
@Hooj. So, a liberal bias by Kagan, Ginsburg, Sotomeyer is okay ?
2
I rather doubt that transgender individuals were on the radar in 1964. Were the operations even done back then? And homosexuality was stigmatized to a much greater degree than it is today. So I would not have expected legislators and others at that time, 55 years ago, to intend or perceive the Title VII prohibitions to be so broad, or to be fully aware of how many people were struggling with confused and closeted identities. With the knowledge we have now, there's no excuse not to extend the protections, however it's to be done.
13
@Barbara Pines The question is not whether legal protections should be extended to transgendered individuals but whether the Supreme Court should take it upon itself to do so without explicit legislative consent or intent. This, I believe the Court should not do. The issue should be referred to Congress for legislative enactment. This is not a question of knowledge - as that question can be cut into many pieces and a choice made depending on one's preference - but is a question of the proper role of the Court and the Congress.
10
@Barbara Pines If you accept that our Constitution trumps all laws, then you must consider that all citizens are to treated equally under the 14th amendment. For the Court rule otherwise, then they, as a Constitutionally stipulated branch of government, to rule otherwise would be an act of the Federal Government to promote discrimination against citizens.
Yes, it took women and the blacks many decades to approach equality, we are now in an age where we will hopefully eliminate all discrimination against any inherent biologic status of any citizen.
10
@octavian Actually, the question is whether there's anything in the legislation that clearly DOESN'T extend this to LGBT people.
We know that sex discrimination is banned. You might say sex discrimination is clearly defined to refer to the person's gender - I, on the other hand, find the argument that sex and sexuality are inexorably linked very persuasive.
Think about it: If I'm attracted to men and you fire me for that, something you presumably wouldn't do if I was attracted to women, you're ultimately discriminating based on sex - in this case, the sex of the people I'm attracted to.
Bottom line: The court gets to say what the law is. Their job isn't just to tell Congress what other issues they need to address.
44
It obviously does cover it, so this will be a telling moment for just how corrupt and political the new Supreme Court is.
17
@HH
Yes, of course. "Obvious" because HH says so. That is some stellar legal reasoning there. Tell us again why "sex" means "transgender" AND "sexual orientation."
Be careful. Like most liberals, you seem very willing to give SCOTUS the power to rewrite legislation when you think it will help you. But these things do tend to boomerang.
7
I tell my employer my sexual preference is men. if I’m a woman, no problem. If I’m a man, there’s a problem. Get it? That’s discrimination based SOLELY on sex, not partially.
140
@JYoung And why would you be discussing this with your employer?
9
@Jackson OK, my employer finds out my sexual preference is men. If I am a woman, no problem. If I am a man, I am fired. Get it?
3
Because I should be able to be open about who I’m dating or married to, just like any hetero person, instead of having to hide it and avoid mentioning it and being careful to change my pronouns in conversation. When my wife is having dental surgery and I need to tell my boss why I need a day off, I shouldn’t have to lie. When there’s a company party where spouses are invited, I shouldn’t have to leave her at home. Because I should be able to wear my wedding ring and keep her photo on my desk like everyone else.
*That’s* among the day-to-day millions of reasons my employer might become aware that I’m gay. Straight people never seem to understand that staying in the closet involves so very much more than not talking about your sex life. It means avoiding talking about yourself almost altogether, and it is esspecially soul-killing.
6
I resent the lumping in of transgendered people with gay people. They are not at all the same thing. Will the Supreme Court differentiate or keep seeing a group that is not really group? The issues are not the same. And what about transvestites, who apparently now call themselves transfemme and other bizarre labels? I am all for men wearing skirts, but not women's clothing. Or vice-versa. Clothing needs to be tailored to one's body. Or do we all have to wear one-piece Star Trek uniforms?
3
@Grittenhouse What is considered "men's" and "women's" clothing is completely arbitrary. Study history and see how fashions have changed. Many of "Men's" clothing of the past would be considered "Women's" clothing now.
5
The correct term is transgender, not transgendered.
What earthly difference is there between skirts and women’s clothing? Gender identity is not the same as sexual preference. It isn’t an employer’s business how an employee identifies oneself.
5
@Grittenhouse thankfully, that is not a valid legal opinion.
2
Congress should amend Title VII to protect gay and transgender individuals against discrimination in employment. However, the Supreme Court should not rule that the prohibition against employment discrimination based on sex applies to to gay or transgender individuals. It doesn't.
Women are frequently victims of workplace discrimination because of their sex; men are infrequently subjected to workplace discrimination because of their sex.
Gays are not discriminated because of their sex but because of their sexual proclivities, which does not affect job performance.
Transgender individuals are not discriminated against because of their sex but because they gender identify as female while they are male or as male while they are female, an incongruity that in most cases does not affect job performance.
8
@William Case but think about it - as a heterosexual man, the idea that I'll be fired just for being attracted to women is unthinkable. (And no, we're not talking about me hypothetically harassing a woman at work.)
But if I was gay, and attracted to men, I could be fired for that, at least if the Supreme Court rules the way I think we all suspect they will.
What's the one difference in those two situations? A person's gender. That's discrimination on the basis of sex. It may not be what the authors intended to focus on, but it clearly is.
4
@Zach
I think you have misread my comment. I begin by saying "Congress should amend Title VII to protect gay and transgender individuals against discrimination in employment."
Being gay or transgender does not adversely affect job performance.
The issue is whether Title VII protecst gay and transgender person from job discrimination. It doesn't. It protects persons from discrimination for being male or female, not for their sexual sexual proclivities.
1
“Most federal appeals courts have interpreted the law to exclude sexual orientation discrimination. But two of them, in New York and Chicago, recently issued decisions ruling that discrimination against gay men and lesbians is a form of sex discrimination.”
Are bisexuals excluded from this ruling? Or were they just omitted from this article?
1
Whatever applies to gays and lesbians will apply to bisexuals whenever they are in a same-sex relationship. When they’re in an opposite-sex relationship, it’s a moot point.
"Land of the free..."
Or, freedom to discriminate. Is the U.S. really going to bar employment based on gender and sexuality? Amazing how freedom is so much easier to come by in other Western nations.
15
@GR in America we have a process outlined in our constitution for creating our laws. Our best hope as a country is to follow our constitution and not subvert it.
3
Title VII states, "It shall be an unlawful employment practice for an employer … to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” My daughter is intersex due to androgen insensitivity - she is a woman with XY chromosomes. Gender is not binary. She exists, as do millions of others who are intersex given a host of genetic make-ups (the percent of intersex people in the population is about the same as the percent born with red hair).
It is an unalienable right to define who you are and to not have others define you. To discriminate because of how someone defines him/her/themselves denies that person's unalienable right to life, liberty and the pursuit of happiness. But, beyond that, if the Supreme Court rules in favor of gendered discrimination, it will render a decision that does not acknowledge reality. How would any such ruling apply to the millions of intersex Americans?
196
@Char - I get your point, but like many people posting here you fail to account for the individual on the other side of an interaction with your child. Does that person not also deserve the same opportunity for life, liberty and pursuit of happiness however he/she/us defines it? We’re not going to solve this using law. We have to change the culture.
7
@Doug, Who is the "individual on the other side of an interaction"? Someone who wants the freedom to discriminate against @Char's child?
By your reasoning, as a straight White cis woman, I should be free to discriminate against anyone who is gay, Black, transgender, or a man.
And to answer your question, no, that person does not deserve the opportunity for life, liberty, and the pursuit of happiness where the definition of such includes the government-sanctioned ability to discriminate against others.
40
Doug,
Are you saying that people derive life, liberty and the pursuit of happiness by discriminating against others?
Sorry, but if discrimination makes you happy you're the one with the problem.
30
Once again comments are not going to be focused on "what does the law say?" (and "can we change the law if it doesn't say what we want it to say") but "what do we want the courts to say the law says even if it doesn't say it?" Extremely unlikely that in 1964 Congress intended for this law to cover homosexuals and almost totally certain that it wasn't intended to cover transgendered persons, which at that point most of the country weren't even aware existed. If Congress feels that these groups should be designated as protected classes under civil rights laws, they should pass a law that does so. But let's not pretend that it's already happened.
13
@JerseyGirl Yeah, and for the longest time people argued that We the People didn’t include African Americans and women of any race. Congress has been miserably failing the People for a long time now so the courts are the last recourse for those seeking justice. It’s called equal treatment.
7
That would explain why J. Edgar and his “aide” Clyde chose to wear women’s clothing in secret and not in public.
@AJBF
No, THINK deeper AJBF. If you rely on SCOTUS granting these protections based on an aspirational view of the existing law, you are exposing yourself to the very real possibility that another, more conservative court will take them away. Better to have Congress amend title VII.
2
I'm also a civil rights litigator and agree that it is impossible to analyze sex discrimination from sexual orientation discrimination, and applaud the Sixth Circuit's acknowledgment of that issue. But I do wonder about the practical difficulties of litigating claims arising from an individual's wish to appear or behave in a manner that contradicts an employer's perception of how he or she should behave or appear based on his or her birth or reoriented sex. Aside from relative straightforward examples of juxtaposition, re: appearance--like skirts vs. slacks--it seems to me nearly impossible to fashion a rule of law re: gendered behavior. Leaving out the difficulty stemming from a spectrum of behavior once we divorce ourselves from archetypes (not an easy task), aren't we necessarily talking about subjective standards? Who gets to decide what informs those standards? Congress? Brett Kavanagh and Clarence Thomas? The danger of trying to assemble an objective standard is ironically creating a new orthodoxy which, by definition, will be both political and subject to accusations that it is obsolete before the ink is dry.
8
@J Young If you'd looked at photos of Bruce Jenner and Caitlyn Jenner, or Bradley Manning and Chelsea Manning, you wouldn't have had to ask that question.
Once again, elections have consequences. For all those wondering why we’re still having this conversation in 2019, it’s because we have an otherwise flailing President stacking our courts with right wing judges. I shudder when I read comments from people who plan to “sit it out” next year if the Democratic nominee is not pure enough for them. Sorry folks, non participation ensures another four years of eroding our judicial firewall.
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@AndyS Yes, fortunately Roberts has been trending more liberal since Trump has started making appointments to the Court. But our civil liberties can't afford for Trump to replace a liberal justice with another conservative. We all need to vote for the Democratic candidate whoever it is. No third party protest votes this next election, please - those are only votes for Trump to remain in office.
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@AndyS
Well said. However, the bottom line is that people who say they will sit it out ( Sanders followers?) can afford to absorb the consequences of a conservative federal bench-even if they call themselves progressives.
7
@Oliver The real question is - will former Hillary voters “sit it out” if the Democratic candidate is not centrist enough, much like when a number of them refused to vote for Obama?
6
In 2019? Really?
14
Why didn't Congress clear this up?
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@AACNY
Why Congress?
Can't YOU, as a citizen, put forth your views to your elected members, your friends, your family, those with whom you *choose* to do business with make this clear?
When there is continued to support for bigotry and hatred in the streets, in the boardrooms and in our every day interactions, this vile habit will continue to fester and undermine our society.
3
@AACNY Congress hasn’t “cleared this up” because, as Pete Buttigieg has repeatedly pointed out, our democracy is damaged. Gerrymandering, Citizens United, Electoral College, voter suppression, etc., have made Congress and the highly politicized SCOTUS out of sync with the wishes and will of the majority of citizens. Exhibit #1: an unqualified, mendacious, ignorant, narcissistic bigot got in the White House. Exhibit#2: the overwhelming majority of citizens, Republicans and gun owners included, want universal background checks but Congress won’t deliver this. Forget about affordable healthcare and education.
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@AACNY Because it wouldn't pass ENDA (Employment Non-Discrimation Act) when it included transsexuals.
1
Taking a position that discrimination against gays purely or indeed solely for the reason the person is gay, would blow up with a lot of the country. It would be a difficult position for President and his Attorney General to take and hold -- as it gets increased visibility. You could really back the President into a corner in a summer 2020 presidential debate. VP Pence had a very, very hard time (looked terrible) trying to defend a brief Indiana law that allowed gay discrimination solely if the discriminator briefly asserted he/she was motivated by religion. It puts you in a very hard position during interviews or debates.
16
The very fact that we in America are debating this is "deplorable." Every citizen and resident of the United States of America cannot be discriminated against. To have to depend on the SCOTUS to rule whether a particular Title, or a lower court ruling that prevents a citizen or resident of the United States from obtaining "equal treatment under the law" is within the bounds of our Constitution is totally incorrect. In fact no court should have even taken these cases, as it's unwarranted in the values of our Constitutional. Religious conservatives are allowed to hold onto their opinion, as well as religious progressives and atheists holding on to theirs, however their opinions cannot override what our values must hold, namely, that all people are created equal under the eyes of the law, and therefore there is no doubt, LGBTQI+ individuals who are citizens and/or residents in our nation, are part of "We The People," in the same manner as are all minority individuals and groups. This fact needs to be verified by the Courts, and if it takes them to use a certain Title to include all people, then they must rule that this Title, or another, does in fact apply, or take this opportunity to make it totally clear that other standing Federal laws and decisions already cover the "unalienable" human and civil rights for all citizens and those that reside here, in the sense written into our nation's documents that these rights are held "to be self-evident."
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@Ben Testa You have no understanding of the law. There is zero "inalienable" right not to be fired. The vast majority of states have "at will" employment. You can be fired because your boss doesn't like the color of your tie. Then there are "protected classes" so designated by Congress. These individuals cannot be fired on the basis of their membership in this class. This is not a debate about whether gays and transgendered people *should* be protected classes, it's a question of whether they 'are* under 1964 legislation.
14
@JerseyGirl No where in the Civil Rights Act does it mention "protected classes". In fact it does the opposite and says that employers cannot classify employees "because of such individual's race, color, religion, sex, or national origin". This has nothing to do with protected classes and everything to do with discrimination.
4
I hear what everyone is saying. Discrimination based on gender is unfair. We've spent 40+ years fighting for equal pay for equal work.
This is a different gender matter.
It would not work if one of the men at the office suddenly announced that he was going to start coming to work attired as a woman, and wanted to be called she/ her.
It would damage unit cohesion as the army says. I imagine that a number of employees would move on rather than deal with it.
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@DickeyFuller Even without behavioral challenges as you describe, gay men as a class earn less than women or straight men. That needs to be addressed.
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@DickeyFuller
I know that there would be no such damage to "unit cohesion" in my laboratory if one of my colleagues came in tomorrow and made such an announcement. We would simply adjust as necessary and continue with our work. End of discussion. We would have no reason to do otherwise.
PS - My uncle, who was gay, volunteered, served in the the US Army from 1967-70, and received an honorable discharge while our president was getting repeated deferments. I'm guessing there was no issue with unit cohesion if you're a good soldier, which he was.
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@DickeyFuller Actually, it hasn't and wouldn't. Almost all Fortune 500 companies have educated employees on this, which has circumvented problems. Read up on it, please!
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Extending rights is one thing. Protecting those rights is another. If gays and transgender are protected by Title VII, the EEOC will either have to greatly expend or cut the number of existing cases it handles.
3
The only question before the court should be if it's constitutional to discriminate - against anyone. Can employers decide to deny employment to someone because they are LBGTQ - or anything else you can come up with.
We shouldn't need a law for this, but since there is one, fix it to clarify its intention. Force the Supreme Court to decide on the elephant in the room, and what's wanted by the right wing. The right to discriminate because of religious beliefs.
Will this country allow discrimination?
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@Martin Your country already does allow discrimination, in practice if not in law.
3
@Hooj - But we don't legislate it, and we were trying to improve. How are things over in London?
2
don't you get tired of it? this progression is an inevitability. if a few straight men on the supreme court disagree, they will be bowled over by the tide, if not this year, then soon.
6
@Occupy Government
Soon??? Some of these recent appointments will be on the Supreme Court for the next 30 years.
4
I hope that the Supreme Court does not once again step in to do the hard work of Congress whose members would like there to be a law prohibiting discrimination on the basis of sexual orientation but who are too lazy or cowardly to enact such a law. How is Congress ever going to learn to make the tough but correct decisions if the Supreme Court is going to make those decisions for it? Time to stop the enabling.
7
Might as well rule the 5 to 4 today and get it over with. Relying on Roberts as the swing vote, his only conviction a balanced court. That's a pretty thin basis to hang our hopes for humanity on. Thinner even than Kennedy or O'Connor.
1
I appreciate that the courts are tied by the words used in laws, which isn’t explicit enough in this very case. But that the Trump administration is advocating in favor or discrimination is a real shame. Should they instead be pushing for a re-writing or clarification of the written laws to reflect their refusal of any discrimination based on sexual orientation or gender identification?!?
3
@Étienne Guérin
Are you seriously saying private individuals/companies cannot discriminate? So, let's say I don't want to have sex with men. I should be jailed because I am discriminating? Employment is the same thing. It's between two private individuals or a private individual and a private company. What language in the 14th amendment gave congress the authority to prohibit any kind of discrimination by private individuals who are not acting under state authority? As an individual acting as a consumer or seller of goods or of labor, I have the natural unalienable right to decline to deal with whom ever I wish for whatever reason, regardless of what the law says.
3
@Étienne Guérin The Trump administration will always advocate in favour of increasing discrimination.
Your president loves discrimination, discrimination is etched into whatever masquerades as his soul.
3
Well the law already states that you can’t actually discriminate on the basis of gender, race, religion or sex. Do you suggest we should throw that part of the 1964 written law as well?!?
“Oh you are _______, it’s my right as a private citizen to fire you or to not employ you in the first place.” Come on, Al, is that really the country you want to live in????
1
Well the President already is discriminating against transgenders in the military, and the Supreme Court has upheld his decision so far. So what to expect?
I have no confidence in the Supreme Court protecting the rights of the LGBT community.
34
I encourage everyone to educate themselves on the phenomena of those human beings born as intersex persons. Just search “intersex” on the web. It is eye opening and proves that sex and gender are fluid. I wish the plaintiffs Godspeed.
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@Blue in Texas Thank you for educating us on all the wonderful ways we can be human!
@Blue in Texas it actually proves the opposite, that outside of these individuals, others are born with a normal set of genes structured around one of two sexes.
5
@Eric Your statement is subjective and does not discount anything Blue in Texas has said. The law specifies sex, not "normal sex".
3
We know what 8 of the Justices will do. Justice Roberts: this is another opportunity for you to insure Justice will be done for minorities who, thanks to their Maker, are a bit different from those in the mainstream. Do not allow the Right-Wing 4 to permit bigotry to prevail. Think: civil rights cases of the 1960's and 1970's and follow the motto over the Supreme Court's building entrance.
12
It is untenable to argue that the ordinary meaning/understanding of "sex" in 1964 included sexual orientation or gender identity. That doesn't mean that federal or state legislation shouldn't provide such protection--it only means that courts' jobs aren't to reinterpret words in wholly different ways 50+ years after the fact. You can apply the same rationale to the president's current efforts to avoid complying with federal legislation regarding Congressional committees' access to income tax returns. That legislation seems clear, so you can't argue that interpretations 100 years later affect what Congress meant by its plain language in the 1920s.
10
This argument is analogous to saying the second amendment only applies to weapons that existed in 1789. Think about that for a minute.
9
This is yet another test for this increasingly conservative Supreme Court. And it is with trepidation that I await its decision. How our justices vote on this issue will determine whether their final and majority conclusion either reflects the discrimination and prejudice within the Trump administration or adheres to the democratic principle that all men, and women, are created equally. It will also reveal whether this highest court in the land's trajectory is either toward a theocracy or continuance of the separation of Church and State. We will have this group for years to come. I shudder from that reality. Think not only the rights of our gay and transgender communities, but also a woman's choice over what is hers alone as well as our neighbors of different races and ethnicities.
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I’m a lawyer, and have been practicing law a long time. Regardless of your political and religious views, it is logically impossible to separate discrimination on the basis of sexual orientation and transgender from sex discrimination. They are intrinsically tied together.
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@Todd
The plaintiffs were not fired for their sex, i.e. being a man or a woman.
12
@James - Uh, yes they were. Because they didn't conform to their physical sex or characteristics traditionally contributed to their physical sex in the eyes of their employer. They were fired for being gay / lesbian. Which is all about (wait for it...) sex. Both their physical sex, and their sexual preference in a partner.
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@James
if not gender...what? Identifying a gay person involves interpreting the gender of the person in question and their desire to be with another of the same gender.
5
Title VII needs to be amended by the Congress to include an express prohibition of employment discrimination based on sexual orientation. It does not expressly prohibit it now. There is a split in lower courts now as to whether gender discrimination can be interpreted as including a ban on sexual orientation discrimination. This is why the Supreme Court accepted these cases; that is, to address and settle the split, for uniformity. My prediction is that Court will hold that Title VII doesn't prohibit sexual orientation in employment because the statute does not expressly prohibit it based on the plain and ordinary meaning of the words used in the statue; it expressly prohibits discrimination now based on gender, race, national origin, disability, religion. In other words, the Court will likely hold that this is an issue for the Congress to address and not the courts. Our courts are not in the legislating business. That's the Congress's job. Interpreting the statute to include the prohibition now is a stretch. The Congress should have amended the statute to include the ban eons ago. It's their fault, not the courts.
45
@JDB How about Meritor v. Vinson? Wasn't that a stretch of the "plain meaning" of the text?
2
@JDB No argument there. Congress should do a lot more with the existing laws to tweak them. However, Congress passes ideas as laws and dumps the fine tuning of the language to the Executive Branch agencies. This allows for each new administration to impose their beliefs through policy changes.
Congress needs to get back in the business of passing laws that spell out the entire law.
9
@WillWho Actually, the courts cannot tweak or fine tune statutes. They can only interpret the statutes to fit or not fit specific fact situations. They do that by examining legislative intent and the plain and ordinary meaning of words used in a given statute. There's more to it than just that, but that's generally how it works. And, they often get things wrong.
2
The law should never allow discrimination on the basis of race, gender, age, or sexual orientation. What is this? A theocracy?
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@DershI
We are definitely moving in that direction.
12
@Dersh Yes it is a theocracy, or at least some would have it that way .... and they control the White House, Senate, and possibly the Supreme Court.
10
@Dersh a theocracy? No, the opposite of that. Private indoviduals should be allowed to discriminate against anyone they want for whatever reason they want. It's my money, my business. If you don't like it, go elsewhere. Do you never discriminate against people in your private life? I for example don't want to have sex with other men. That is discrimination on the basis of sex, and according to you should be illegal...
3
legal to discriminate......so who next?
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@tom people with disabilities.
2
Why can't supreme court justices be fired for just cause.
23
@Ellen F. Dobson - or perhaps they just need to rule ‘fairly’ rather than correctly? Our founding fathers knew the justices had to be influenced by but not accountable to the baying mob when making constitutional decisions.
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@Ellen F. Dobson
Dear Ellen,
The court has not even rendered a verdict and yet you are already enraged. That is not rational. Let's see what the court says. In my opinion they will rule for a broad reading of sexual discrimination; but even if they don't, this issue should be decided by Congress. That is their job...to make laws.
2
@gpickard
Your prediction is wrong. SCOTUS will rule that (a) Title VII does not protect gay & transgender people, and (b) it is up to Congress to pass legislation to protect them, just like it did in in 1964 for those groups covered by the Civil Rights Act.
3
It's hard to believe in 2019 we are still having this discussion. People are people no matter their orientation. I certainly hope Justice Roberts rules with the progressive side of the court, as he has done, at times, in the past.
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@Sue Salvesen
People are people. And people have the freedom to associate themselves with who they want. If I don't want to hire gays or women or whoever, how is that the government's business? It's my right as a private individual. You are not entitled to be employed by me anymorw than you are entitled to have sex with me.
2
@Sue Salvesen
I totally agree. And the fact that the fate of so many Americans is in the hands of one man terrifies me, regardless of that man's politics.
5
Al, you are mistaken. When a person enters into business, they are required to follow the rules for conducting business in their state, including employment laws. It is not the case that a business owner can choose not to serve or employ black people, or women, or Muslims, etc. The alternative is to open a private “club” where you can set your own rules for who you serve. However, you still have to follow laws regarding employment.
8
Given the conservative composition of the Supreme Court the decision is a foregone conclusion. We already know how this will go down. It will be a sad day for LBGTQ.
11
@Greg, not so fast. There was more than a little surprise when this Court found protections for gay/lesbian people in the 14th Amendment. Keep the faith.
4
@Greg don't be so sure. A plain read of Title VII allows our argument. If the Court rules otherwise, it will put more pressure on Congress.
1
Chief Justice Roberts will be the swing vote here, and he is always aware of the reputation of the Court. I'm sure he painfully remembers Bowers v. Hardwick, the 1986 case in which the Court ruled that criminalizing gay sex was perfectly fine because there could be no possible "right" to commit sodomy. That case was overruled in Lawrence v Texas in 2003 after being almost universally deplored and ridiculed.
Society is rapidly changing in the direction of LGBT rights, and I'm sure Roberts doesn't want the same thing to happen again under his watch.
2
I don't hold out much hope for this Supreme Court. Some of the members would've voted with the majority in Plessy v. Ferguson.
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@Martha Shelley And the one empirically most likely to based off his voting record is black! Sad times we live in.
5
Really?! This language excuse in unbearable! There should be no question regarding sexual discrimination... including orientation or status!
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@Luisa
Read the plain language of the statute. It doesn't. Congress needs to update the law so there is no question what it covers.
29
@James - and right now the Senate won't even take up this issue ~ vote, people, it really, really matters. Get rid of those (Republican) luddites pulling this country back to the 1950's.
11
@James The statute says "sex." That includes sexual harassment, but those words are not in the statute. If you discriminate against someone because of his or her sexual orientation, you necessarily take into account the sex of the person discriminated against.
13