The "good" that comes out of issues such as this is that we are reminded how many people are ill-educated, unkind, even cruel—and seething with rage over imagined insults to their "identity" as "normal" Americans. We must never put these narrow-minded people on "mute"; last time we did, we ended up with the worst president ever. So don't look away; listen to them, and learn who the real enemies of America are.
4
I feel like we are back in 1964.
4
All human beings have two things in common: they breathe
and have blood in their veins. Treat them that way.
8
"We’re not asking you to change the country. That’s already happened without any court’s permission. We’re asking you to protect the right of the country to change."
-RBG
9
Crazy stuff. Wake up everybody who are hung up on LGBTQ rights. LGBTQs aren’t a separate part of society. They are part of society. They are US citizens.
Some attend the same schools as your children. Some are your work colleagues. Some attend your places of worship. And a gay man happens to be running for President of the United States. And if you don’t think a trans might be president one day, then you are not in lock step with reality.
7
Ok Roberts, what about my “religious” convictions that anyone with religious convictions should apply them only to their selves, and let live. The manifest idea from “religious” conservatives is that the mere presence of anybody GLBT does them some imaginary harm. Flipping’ snowflakes!
17
This case is based on a lie. Funeral director is a sales position and you can’t argue that a transgender employee can sell funeral services to people who are spending $20k on their spouses funeral and are in their 80s and 90s. The funeral home’s customers are the ones discriminating Whole the business is just trying to make a profit. It’s not fair for one transgender person to tank a whole business. If a business pays you money to present as a man while in a sales position because that brings it revenue, you do what you are paid for. If the transgender worker worked in the back office and did not have to sell to the general public, then yes it would be discrimination on the part of the business. In this case it’s just the public that is discriminatory in how they spend their money and have a right to do so.
9
@Ivan this isn’t how anti-discrimination law works. Could the same company deny employment to a black man simply because they expect to be patronized by racist customers? Maybe in your convoluted idea of America, but that kind of reasoning would never stand in court.
29
@Ivan it is illegal to capitulate to customer prejudices.
4
@Ivan I agree. Although I think dress codes are often problematic, they are currently legal. Requiring someone with a male body and XY chromosomes to dress as a man is not sex discrimination.
8
I have a really brilliant idea! Let's just start counting trans people as 3/5 of a normal human being on the census and elsewhere. It would be so much simpler. I think it must be in the constitution somewhere, but you know how old that document is, and I understand the ink is fading.
13
@Larry Sanderson
Oh Larry! I’m sure we could work you in as a plantation guide and Justice of the peace.
3
@Larry Sanderson good sarcasm - and that is indeed what a negative ruling would do - make many of my friends less than fully citizens. IF we didn't realize how fragile our progressive society was before we can see it clearly now
9
@Larry Sanderson
Trans people are normal human beings, just not typical.
They're now being treated the way we have treated Blacks in this free country for 300 years.
Biggest economy; biggest military; oldest Constitution; massive land mass; huge population; wealthiest nation on Earth - yet fearful of a helpless minority. Don't know whether to laugh at the US or pity it.
1
We wouldn’t be having these arguments if the Congresspersons and Congressional aides of the time had been smart enough to word Title VII correctly. It should have been made unlawful to discriminate against any individual “because of such individual’s race, color, religion [GENDER, SEXUAL ORIENTATION] or national origin.”
Use of the term “sex” in this context was just plain stupid, since sex is about sexual interaction between or among the sexes rather than about gender orientation and should never be used to reference the difference between males and females. The issue here actually involves two different categories of discrimination.
Since it seems clear what was intended, the Supreme Court should take that into consideration. But current and future aides should use their brains and/or hire an editor in order to avoid this kind of egregious blunder in the future.
4
It is so depressing reading the comments which are so full of hate, many fine examples of the new hysteria and denunciation rhetoric that has made public life so sickening. I read this piece by Liptak and Peters and felt so proud of our country for having so many thoughtful justices on the court. Indeed, I felt stimulated and thrilled by the breadth of discussion and the sense that here in our Supreme Court we have a serious discussion without name-calling and tantrum-throwing. How wonderful to think that these wonderful, bright experts on the law can debate with decorum and decency. I didn't even notice the so-called two sides. There clearly is only one side and all the justices are on it. They are on the side of the law and trying their best to understand which was intended in 1964 which they know very well could not have been what is wanted now. Their discussion shows how desperately they care and are clearly dedicated to getting it right.
7
This shouldn't be a big surprise, the conservatives, who claim textualism and the wording of the law, when faced with social change bring up the 'social consequences' of decisions like these. When Brown vs Board of ed made segregation illegal, conservatives howled that it would 'disrupt the social order'. When inter racial marriage bans were thrown out, they proclaimed the end of civilization. When same sex marriage was made legal, they predicted it would cause society to fall apart, and while we certainly have any number of issues, these were going on long before same sex marriage was made legal. The conservatives are still claiming that the civil rights acts of 1964 should not have happened, that 'folks would have eventually worked things out themselves', as if Jim Crow was an argument over the color of the courthouse siding. And being worried how people will react if they extend title IV to include gays? This is a Supreme Court that declared a corporation is a person, has thrown out a lot of long standing law, and they are worried about this suddenly?
The reality is that the conservatives likely will vote it doesn't cover LGBT people because the conservatives on the Supreme Court either are bigots, or they are owned by the GOP which is the party of bigotry and religious extremism. Doesn't help that 4 of the conservative judges are ardent Catholics, a church that describes LGBT people as disordered but thought molesting children was no big deal.
16
It's issues like this that make the Republican Party utterly repugnant to the younger generation.
423
@Alec Also repugnant to a good slice of the older generations as well!
69
The decision to deny benefits, fire, or disadvantage employees because of their sexual orientation is "because of sex"- and that is a pure textual reading of Title VII. There is only one answer and the Second Circuit got it right finding in favor of the employee in Zarda. The Supreme Court cannot break away from prior precedent of Oncale, wherein the conservative wing of the Court said male on male sex harassment on an oil rig is sex discrimination because of sex. The Court will do the right thing and hold sexual orientation is sex discrimination, supported by our rich history that began with one man's "I have a dream". If not, then you will have unrest.....
I can't even believe that this is a story in 2019. That the SCOTUS could be "struggling" to decide whether discrimination based on ANY PHYSICAL CHARACTERISTIC is legal or not? It's insanity. And it goes to show how the corruption, moral and otherwise, of the President, affects the government and the nation.
1
"Justice Alito, himself a master of the telling hypothetical question, at one point declared himself lost. “They will make your head spin,” he said of the comparisons, “if you try to figure them all out.”"
This is rich. Justice Alito, you think your head is spinning?! How do you think LGBTQ+ people feel? This is their life. This is how they live every day. Every day is a battle in the war that is their life. This case will determine their fate. Their livelihood is on the line here. Without proper employment, they cannot survive. They cannot live a full life. They cannot contribute to society.
I am a South-Asian gay man living in a swing state. I will not tell my co-workers how I identify because I might lose my job. I cannot afford that now (or ever). Even if I don't lose my job, people's perception of me would change and I would be subject to disrespect.
"But he added that he was worried about “the massive social upheaval” that would follow from a Supreme Court ruling saying so.""
Justice Gorsuch, people said the same things about interracial marriage after Loving v. Virginia. Its been several decades since that decision and there was no "massive social upheaval".
LGBTQ+ people just want to live life. They want the same things that straight and cis people have. We are tired of fighting life, instead of living it.
Equality and justice for all.
7
Why DON'T they have rights? The government does not grant rights. The government is supposed to protect "inalienable rights" from our Creator to self determination.
4
Some of the arguments for discriminating are ridiculous, as in the one that said “that a women’s overnight shelter must hire a man who identifies as a woman to serve as a counselor to women who have been raped, trafficked and abused, and also share restroom, shower and locker room facilities with them.” Probably wouldn't happen on a realistic basis in the first place, but transgenders are just as qualified as anyone else. I truly doubt that a man who identifies as a woman would want to be the object of everyone's curiosity if they still were physically male. Discretion is appropriate, but denying work is not. A person who is under 4 ft. tall is probably not going to be able to do a job stocking high shelves. A person who cannot walk is probably not going to get a job that requires walking. I am 72 and probably am not going to get a job as a bicycle delivery person.
But we really especially those who purport a Christian belief, stop deciding who gets to work and who does not. I seem to remember repeatedly hearing from my childhood in Sunday School about how God loved all his children and man was created in "God's image"...and if one believes that, one cannot refuse "God" an opportunity to work and provide for themselves and their families.
4
So the question is will the court protect people from discrimination or protect discriminators claiming to have a moral-religious objection and a right to discriminate against certain people? Which is the greater good, to protect all people against all discrimination, or to protect the discriminators right to discriminate?
Are we all still members of a democracy in which all citizens are considered equal by being members of that democratic society, or are we all now individuals only, members of a neo-liberal, market driven, evangelistic, familial, tradition bound culture in which members are free to discriminate, because the right of citizens to discriminate is more precious than the right of citizens to be free from discrimination?
7
This case highlights the true underpinnings of the Supreme Court, both today and throughout history. Read the deplorable slave ownership or Black rights cases of the past, or analyze Roe v. Wade. There is but one conclusion- Justices will find precedent, or legislative intent, or a constitutional basis to support their preconceived positions. Being a Supreme Court Justice is not about analyzing the facts of a case in light of the law and then rendering a just result. It is, and always has been (on both sides of the political spectrum) about fashioning a desired result. True, that is how the law evolves. But most importantly, the process affirms the magnitude of the presidential power to appoint Justices. Watch SCOTUS this term and see how it rules on guns, abortion, homosexuality and other monumental cases. Observe how the political leanings of Justices produce opinions and results. And then, please, vote in 2020 recognizing that the next President will appoint new Justices for life.
5
So many absurd arguments! The resolutions of these issues, such as gender neutral facilities with privacy and security, are already in place and functioning. Just not everywhere.
In 20+ years our children’s generation will be leading this country. This Supreme Court and the restrictive laws of many states will be relegated to the historical trash pile of failed political/ideological battles.
2
@JRT From your lips to God's ears!
Only those defined as humans if the Republicans on the court want it their way. Why oh why do people hate so much?
The point of both the constitution and the law is to have a nation in which people are treated equally and not discriminated against because of who they are.
We can only move forward if this is true for LGBT populations as well.
5
Amicus curae: The question to consider is how should a persons sex be defined. Is it defined by just the physical manifestation of ones anatomy and physiology or by also the genetic, bio chemical and hormonal mechanisms that lead a person to feel, behave and develop In a certain way.
The argument needs to better framed so that the justices are left with no choice but to rule in favor of lgbtq.
3
When Alito say that “If the court takes this up and interprets this 1964 statute to prohibit discrimination based on sexual orientation, we will be acting exactly like a legislature,” I want to tell him that's exactly what he did in Heller (2nd Amend.) and Citizens United. The American people want to know why he gets to decide when to be a legislature and when not. By all appearances, it's whenever his hate and fear obscure his integrity and honor.
9
@Paul S. Thank you! Absolutely the most insightful comment! You hit the nail on the head: sometimes he legislates, sometimes he does not, based on his political views. Conservatives used to complain about "activist courts." No longer. Apparently, it depends on whether the court is activist for liberal values or conservative values.
6
The central problem is that Title VII enunciated a clear principle that cannot presently be applied fairly because it is subject to widespread disputes over meanings that are not justified by a simple reading of the law.
Every law is balanced against exceptions that are litigated or legislated to protect competing civil liberties. The presence of so many state laws addressing those exceptions demonstrates how well this case validates the Roberts Court's reliance upon using the laboratory of the States to resolve such conflicts over time.
I would expect the Court to uphold the stated principle, to reject the invitation to ascertain an allegedly-intended set of limitations to the plain words, and to refrain from meddling in the ongoing legal and social processes by which lower courts and legislatures elaborate necessary exceptions.
1
That's another thing I do not understand about Americans at all (other than the fetish about guns).
What has other people's sexuality got to do with you?
12
"Justice Alito suggested that it would be absurd to conclude that when Congress passed Title VII, it intended to protect gay people. 'You’re trying to change the meaning of what Congress understood sex to mean and what everybody understood.'”
While this might come as a shock to Alito's closed mind, there were gay people in America and gay people in congress in 1964. Weren't those gay people and those gay congressmen part of "everybody"? Doesn't it matter what they "understood" discrimination on the basis of sex to mean? In Alito's bitter little world, evidently not.
If it were up to Alito it would be "absurd" to think interracial couples have the right to marry, because in 1868 when the Fourteenth Amendment was ratified "everybody understood" blacks and whites had no right to intermarry.
7
If scotus rules against LGBT firings then we Americans truly have something to be ashamed of.
Apparently one of the justices may join the minority vote and save the day!
4
The justices are not saying that LGBT people do not deserve rights. What they are saying is that the law written by Congress in 1964 was not written to include the LGBT community. That is simply factual.
If we are at the point in our society where we believe that LGBT people deserve their rights, then we as a nation must ask our legislators to act. Alternatively, the case should have been brought under the 14th Amendment which states that no citizen can be abridged of rights afforded to others. Don't blame the justices for bad lawyering on the part of the LGBT plaintiffs. This case should have never been brought under the 1964 act because it can not be factually won under that act. There is no way one can honestly argue that Congress at the time it wrote the act was including the LGBT community.
3
Remembe case this when you put your ballot in the box next November, our fearless leader gets to put in the next Supreme Court judge.
Do want a justice who thinks only white, married to women, land owning men have rights? God knows what throw back would Trump nominate.
I threw the condition married in there, because I know too many people who think your Godly duty on Earth is to marry and have a litter of children. You don't exist otherwise.
4
When a certain group of citizens takes an old book of myths as LAW it creates this type of obscurantism.
The blatant discrimination against some citizen due to dogmatic beliefs is widespread in almost all Muslim Countries now but used to be a fait accompli before the enlightenment in Europe.
We will not let America go back to the dark ages of the reign of Christian dogmas and values. Our Constitution is supposed to protect us ALL.
5
50 years from now, society will consider us “backwards” for how obsessed we were with gender and sexual orientation.
Not to devalue how people identify, I just think we will reach a point at which these concepts are taken for granted.
5
There goes John Roberts again normalizing and institutionalizing discrimination by expressing worry about the impact a ruling for the plaintiffs would have on employers who object to LGBTQ people on religious grounds. He always seems more concerned about the "rights" of the oppressor in his rulings than the oppressed. Little wonder why Roberts demonstrates concern about how his Court is viewed and the erosion of their legitimacy as a respected arm of our government.
13
Having been harassed on the job for being a trans person. Being forced to stay silent about my identity or past experiences. Having to shut off from coworkers and being yelled at by my superiors. I have not taken a job since. I worked at a fortune 50 in a very important department high on the organizational chart. My hr department didnt know how to handle my harrassment. Ive heard of many other stories. Whats with america for not giving people enough benefits to live a dignified life nor a decent job where i can be myself in.
10
Conservative Justices, who consider themselves to be " textualists" , have this insurmountable mountain to climb. Unless they are being disingenuous, or trying to disguise their homophobia, they have to admit that the reason for Title VII's existence was to stop " discrimination based on sex ". Discrimination against Gay or Transgender Americans is based on their sexual orientation or sexual preference. The fundamental issue in both cases involves "sex". It's a textual " slam dunk". Those who assert that when Congress wrote the law it wasn't referencing Gays or Transgender people are negated by the issue of sexual harassment. It was originally not part of Title VII, but has since been expanded by SCOTUS precedent to be included.
1
This shouldn't be before the court.
It should be discussed in Congress.
Well, if Congress were to do it's job and quit trying to win an election from 2016....
6
When we protect someone in the workplace who has a physical disability, that protection is not contingent on which disability is involved. We would not think it necessary to specify which disability is covered and which is not. I am not suggesting gender identity is a disability but the two have one very important characteristic in common; neither of them is determined by choice. How can we protect one group while ignoring the other? All are without fault and until our society becomes more enlightened, all are in need of our protection.
4
@sjpbpp
Gender Dysphoria is in the DSM and its treatment often involves transition. It should be protected by ADA.
3
It's not up to the courts or Congress to decide whether or not the people should accept this redefinition of sex to mean sexual orientation (behavior) rather than biological sex (which was the original intent of Tittle IX). It's up to the people via constitutional amendment.
5
The intent was to protect people from sexual discrimination.
Society has awakened to the fact that sexual orientation is in both the mind and behavior of a gay or transgender person no different from biological sex.
And that some people would be denied rights that are available to others simply because if who they are is shameful.
5
These justices should be watching television. Shows like euphoria and the politician portray teens with every sort of sexuality, including trans women and men playing trans women and men.
The youth of today expect lives with sort of sexual diversity. It is no big deal and desirable. The court will permanently taint itself for 50 years if it rules the wrong way.
7
If the court rules for the plaintiffs, it will elevate into the constitution the idea that discrimination against women, against gays and lesbians, and against transgenders springs from a single source. For now, that primordial bigotry is named patriarchy or male supremacy. This may be an accurate description of the workings of human societies now and in the past, but this claim is nowhere near proven by its advocates, nor sufficiently well understood or widely accepted by most Americans to be awarded constitutional protection. And it certainly isn't up to the court to do it one fell swoop. That women and LGBTs sometimes suffer similar types of discrimination does not make discrimination against the latter sex discrimination. Gay men before coming out or trans women before transitioning may have benefited from their cis presentations and not been discriminated against at all. To extend the meaning of sex in the civil rights act to include sexual orientation or gender might dilute its power as a weapon against discrimination aimed at women. Certainly, if the civil rights act were written today, it would include protections for LGBTs. I hope congress, and not the court, will add those protections soon.
5
There is no reason for this to be before the Supreme Court. It is as obvious as the nose on everyone’s face. All citizens are deserving of all rights. No religious or personal beliefs need apply.
6
I strongly believe that this should not even be up for argument, especially because the persons sexual identity has no correlation towards their working abilities! I have grown up with many smart, respectable LGBTQ+ figures, and such discriminations towards this community must be stopped. No one should have the capability to determine a person's life simply due to their identity. These injustices should be muted, and this energy and focus used to exclude communities and groups of people from the government and important figures should instead be directed toward REAL problems that concern the future and actually need to be up for argumentation. All humans have rights, and their identity should never stand in the way of their free will.
5
Its always curious for me to see “along party lines” and “surpreme court” in the same context. Seriously? This is US great justice system? The highest court in the country seems to be nothing more than a gut feeling majority vote along party lines that is predictable. Why they not just put “Farmer Joe” in there is beyond me. I would immediately remove any judge who shows consistent party allegiance. This should be the highest court of law, not some bad political joke.
4
Don’t buy all the crazy hypotheticals that are offered up by conservatives. There are always nefarious types who take advantage of the system, and we always figure out how to deal with them when the time comes— it’s why we have to sign a three-inch stack of papers to buy a car. Surely the extension and preservation of human dignity deserves at least as much effort and commitment as the exchange of goods and services.
1
Gorsuch doesn't belong on the court. He got his job unethically. Does he know that? And he's a judge on the Supreme Court? Really?
4
"Our goal is not the victory of might, but the vindication of right-not peace at the expense of freedom, but both peace and freedom, here in this hemisphere, and, we hope, around the world. God willing, that goal will be achieved." - President John F. Kennedy
4
Like Confucious, who famously reduced the complexity of life to truthful universally understood ideas, I too recognize an overindulgence in complexity and excessive exercise of words and meaning in this issue.
What is our nation that we lost sight of the simple truth that we are a nation of people in which the wisdom of the masses are codified to assure our freedom and human rights? You can't parse words in regard to this one's or that one's rights. You can't say that a tall guy has more rights than a shorter one. We all have equal rights clearly stated in intellectual terms by our well read intellectual founders of an older time when thought was revered above all else. That tradition of thoughtfulness has now been diluted by centuries of lawmaking that has obscured the original meaning of equal rights. All Americans have equal rights. LBGT are no different from blacks or disabled, women or transexuals. We are a nation of the people and the Constitution helps assure our brotherhood and tranquility.
Reduce the complexity. The only decision to be made is that LBGT people,.......are people. Their civil rights are just as precious as mine which have been denied as well.
As for who is LGBT; I'm a man who admires women and if I can be humorous, I would like to hold a "Straight Parade" of people who walk in unison, or "Straight", because you guys and girls are always all over the road. I love you just the same.
3
"But he added that he was worried about “the massive social upheaval” that would follow from a Supreme Court ruling saying so."
Is Gorsuch from the stone age?
Social upheaval?
Not a chance.
7
When you are presented with a question, why do you give a hundred answers derived from a thousand?
All people are equal. Any civil rights Act applies to all people.
Good night.
7
We will find out whether Gorsuch is a principled textualist or a Republican hack. Nobody should hold her breath.
7
LGBT persons are absolutely second class citizens and a majority of court firmly believes LGBT persons have no right to exist, let alone have the right to work. We will fall over ourselves fretting about the decision they will make, but America has only one freedom: the freedom of corporations and powerful people to do what they want while the rest pick up crumbs and get shot by mass murderers.
11
How about we swap roles for the next 60 years, and all the straight people can be discriminated on for their sexual orientation while the gays go on their way? Oh, that doesn't work for you? Didn't think so.
12
Hopefully, the Supreme Court will rule in favor of sex discrimination. Allowing sex discrimination would make it so much easier to fire that man or woman you just don’t like but can’t really can up with a solid reason for firing. Or maybe you don’t like their religion but firing them for religious reasons would put you in jail.
Just think you can finally tell that Christian guy he is fired for having sex with his wife. Or better yet, tell that black Jewish woman she’s let go because you don’t approve of her being married to her husband.
What a grand place this country will be!!
6
I don't see why this is lumped into one case.
Homosexuals and transgender people are two totally different groups.
1. Firing a man because he wants to be with a man is ridiculous and discriminatory.
2. Firing a man who now wants to be a woman may not be because of the circumstances of the job.
3. Gender is a scientific fact and decided at birth. You cannot change it just by saying you do. Science must prevail on that one.
4. And no, men should not play in women's sporting events. The idea is moronic. Society has to get a grip.
14
@d I agree that the two claims of the two groups should be evaluated separately, but not with your inflexible statement on "scientific fact". Intersexuality, which used to be called hermaphroditism, has been a recognized phenomenon for many centuries; this includes recognition by scientists and doctors. People in this category aren't without civil rights because they're the members of a small minority, nor do they automatically present the kind of threat to social order that some try to claim.
8
@d I thank you for your views on gay people in #1. But I respectfully suggest you have some things to learn about transgender people. I produce OutCasting, public radio's LGBTQ youth program. We have done significant work on transgender issues. You can it at
http://mfpg.org/index.php/listen
There are programs on transgender identity, transition, and (regarding #4) issues faced by trans people in sports.
5
@d,
You lag behind an earlier generation that was more enlightened about sports participation.
Rene Richards was a transgender woman who had a successful career as a female tennis player.
3
Just substitute black, asian, jewish, catholic, irish, latino, italian, polish or female for lgbt and then see how much you agree with this idea that it's ok to fire someone for it.
If it's "conservative" to allow bigotry against lgbt citizens then it's "conservative" to allow bigotry against all those other groups, since the WASP men used to do just that for centuries.
This is all about having someone it's ok to hate. One last scapegoat. Just be aware that if they have one, they will then look for another. The radical republican agenda which is in no way christian or conservative is seeking to preserve bigotry with an eye to expand it as and when they see fit, not just target this one group on this one issue.
Everything about this is duplicitous and reeks of fascism.
8
This is ridiculous. To have a “sex” is to be male or female. Title VII and Title IX are about being A SEX, not about sex-drive or gender identity. This is a legislative issue. Not a judicial one. Otherwise, SCOTUS doesn’t just interpret law, it also changes the meaning of words.
10
Those laws, were meant to protect the vulnerable social class, that reproduces the human species, formerly known as, Woman, now an opt-in category for those with the “feeling”.
5
@Step,
Discrimination against anyone because of who they are is wrong.
There is no logical reason to differentiate between biological sex and sexual orientation in the protection of civil rights.
The only reason is irrational: bigotry.
2
People will live in progressive states and the haters will live in the backward states
The SupremeCourt is an arm of the religious right who insist that America stay in the dark ages
The only way to be sane is to live in a progressive state where people think and care about exact other.
4
I have simply no patience with people who think that some people deserve to have rights and others do not. This is America, and if a person has not broken the law, there is no reason to deprive them of their rights. Why would anyone think it is ok to tell someone they must be homeless or penniless --that is, to refuse to rent apartments to them or to fire them from jobs--because they are LGBTQ or + ? Do gay people not deserve to eat? Do trans people not deserve to have a place to live? What strange values one must have to believe this sort of thing!!
180
This is America circa 2019: American workers have no rights.
10
@Barbara
It pains me to say but it must be said, THESE are the "values" of "Christian Republicans".
4
This is a nation of equal rights for all, not just some. An egalitarian decision is required here.
6
I find the "reasoning" of the contextualists cynical and counter to legal history. The 14th Amendment has underpinned massive advances in protecting rights despite its more narrow legislative history following the Civil War.
4
I think the court needs to be revamped. The political nature of the appointments are becoming less and less “quaint” in a more polarized society. Obama and Merrick Garland was an abomination and a clear indication of back room dealing in Washington that he should have been above even as a lame duck. Buttigieg’s idea of a 15 member court with five members appointed only by unanimous decision of the other justices sounds promising.
4
This case shows how misguided and unprincipled our judicial branch has become. No citizen of these United States should be discriminated against at work based on group characteristics, full stop. Endlessly parsing and discussing the fine details of what constitutes a group misses the larger point: employers have no rights over workers beyond fairly evaluating their qualifications and performance.
343
@KBronson
then those "creeped out" customers should either go somewhere else or stay home. If anything, they should be refused service for acting like bigots and for having hateful views towards someone just trying to do their job.
17
@KBronson, I think the issue is how much discretion private enterprises are allowed to have. Court just ruled Harvard, as a private university, is allowed to set its admissions criteria that discriminate against Asians. Perhaps they could have grouped the lawsuits in ways that deal with broader and deeper issues than lifestyle choices.
5
“Lifestyle choices”....and there is the problem.
12
I do not get why "textualism" is a valid viewpoint. It makes the law subject to any kind of interpretation because words do not have absolute meanings, worse with phrases. clauses, sentences, and paragraphs.
I am not a lawyer, so someone help me out. I believe when the Preamble of the Constitution says "...secure the Blessing of Liberty to ourselves and our Posterity..," they expect the laws to be interpreted for the long term benefit of society. The effects of the laws mattered to them. Bad grammar should not result in brutal results.
6
When Chief Justice Roberts pondered whether a ruling for the plaintiffs would adequately protect the religious objections of their employers, his mask slipped. I wonder if anyone saw it.
19
@Julio,
Yes.
It is pretty shocking to hear a judge, much less the Chief Justice of the Supreme Court, publicly declare support for bigotry.
But nothing Republicans do or say should surprise us.
5
This point I need to make, since I was around and already "out" in 1964: In those dark days, LGBT was not considered a minority group, but a group of mentally ill people. Even the American Psychiatric and Psychological Associations saw us as nothing more than people who needed "fixing." Is it any wonder that we were not included in the Civil Rights Act? We have learned and grown a lot since those days, and the Act now needs to be reinterpreted based upon today's realities.
14
The Supreme Court has already moved far past what the 1964 Congress had in mind when it enacted Title VII. Griggs (disparate impact); Vinson (sexual harassment); Hopkins (sex stereotyping); Oncale (same-sex sex discrimination).
If Congress meant to lock T7 into a 1964 understanding of "because of sex" and "discrimination," why didn't it amend T7 to prevent further outcomes like Griggs, Oncale, et. al.? That happens sometimes, for example Ledbetter.
Congress has impliedly blessed an approach to T7 that evolves with society, by NOT undoing earlier SC opinions that gave T7 an expansive reading. Remedial statutes are supposed to be interpreted broadly after all.
Example: in 1925, Congress didn't intend the FAA to force workers and consumers to lose the right to jury trial with fine-print form arbitration contracts. They thought they were encouraging commercial arbitration among merchants. But a slew of 5-4 opinions by the Chamber of Commerce majority has metastasized the FAA into the neoplasm it is now.
Scalia, et. al. never stopped to ask, "Hey, the 1925 Congress never considered whether the FAA bars class arbitration. We better wait for Congress to act." No, they blaze ahead with a pro-business ideology in the arbitration cases until Congress stops them.
So, why not the same here? Reading "because of sex" to protect LGBT workers is consistent with the broad T7 reading Congress has already impliedly approved, by not undoing Griggs, Vinson, Hopkins, Oncale, et. al.
6
Because it is a ruse. LGBT people are abhorrent to a minority in power and therefore must be eliminated.
1
Although I'm in favor of anti-discrimination statutes protecting the rights of gay and lesbian people, it doesn't seem that the statute in question does that. It certainly doesn't protect the rights of someone who wants to dress as a member of the opposite sex.
5
@Anne,
You’re referring not to sexual orientation, but transvestism.
Transgender people go a lot farther than just “dressing up” as the opposite sex. They ARE the opposite sex.
2
I am a gay male and a lawyer, one who has for several years drafted state-level statutory language, sometimes with respect to LGBT issues. Much as I would love for the Supreme Court to rule in favor of the plaintiffs in these cases, springing from my sense of justice and equity, I also have deep respect for the text of statutes and the scope and intent for their application at the time the statutes were passed and enacted. I have spent so many hours writing committee reports to clarify intent and scope! I find it very hard to believe that in 1964 "sex" was intended to include sexual orientation or gender expression or identity. I was alive then, and people simply did not imagine gender-based affectional preference or gender expression as something to even be debated, much less intended for inclusion. I really really want to support the plaintiffs, but I really find it a stretch for a court to make these definitional changes that are rightly the purview of a legislature. I would be thrilled if the court ruled in favor of the plaintiffs, but, despite the excellent arguments and examples put forward by the plaintiffs' counsel, would not be surprised and could understand from a legal basis an opinion that comes down against them, and punts to Congress (which will do nothing, of course). Sad and conflicted am I.
11
@bengoshi2b Agreed. And these cases could be argued via alternative routes, such as right to privacy or ADA (as dysphoria is a diagnosis). The definition of “sex” should remain male/female. Otherwise the courts are Orwellian in adding to the definition’s coattails. And the legislature is therefore deemed powerless by SCOTUS.
7
Sigh. And, “gay,” once meant, “happy and carefree,” so does that mean you can’t use the word as you did?
There’s a list as long as you arm of discriminations that those statutes weren’t strictly meant to address, and now quite properly do.
5
The definitions have not changed. Recognition has.
Sexual preferences have always existed. But they were not acknowledged.
Now that they have come out, it’s obvious that they merit the same protections afforded to biological sex.
The problem is that many people refuse to understand that what a person feels and how they act are what they are.
1
Title VII only applies to employers with 15 or more employees, so a large portion of the workforce would not be covered even if Title VII is interpreted to forbid sexual orientation or gender identity discrimination. That is why we need state and local laws, which in many cases apply to smaller businesses not covered by the federal law. A win for LGBT rights under Title VII does not solve the problem for all LGBT workers living in states or localities that lack such laws.
5
In a country founded upon human freedom as the perfect expression of the Age of Enlightenment what type of democratic government comes down on the side of arguing that certain citizens should be disenfranchised from public life and be discriminated against as its desired public policy? What has America become?
As Donald Trump said to LGBT voters in 2016: "What do you have to lose voting for me?"
Everything.
Log Cabin Republicans are our nation's Uncle Tom's.
15
What has happened to us as a country when we cannot look beyond our differences to unite in support of each other?
8
Justice Roberts says he was concerned that a ruling for the plaintiffs would not adequately protect employers with religious objections to same-sex-marriage. He ignores the fact that the Constitution was written to protect us from religion as much as it was to protect the right to worship as one chooses. Sexual behavior is not the same as sexual orientation, which is congenital, inherent, and inborn. Any discrimination based on an individual's sexual preferences is sex discrimination, as included in Title VII.
12
Sex is not binary. it is a complicated amalgam of biology, affective preference, identity. and social custom. We know so much more about this today than even a decade ago. Alito, Roberts and the other conservative justices are displaying their rank ignorance, not to say their prejudices in refusing to abandon their antediluvian views on this aspect of humanity. If the SCOTUS refuses to ratify this very correct interpretation of "sex" in this statute, their decision will live in infamy as one of the worst decisions in history.
12
@William O, Beeman
Sex is binary, with a tiny proportion of people with genetic abnormalities that make their maleness or femaleness ambiguous. One's biological sex is not changeable.
"Gender roles" are the social customs surrounding sex. They are relatively fluid. Some people with very binary male and female bodies have, in various cultures, including our own, chosen to identify and present in ways that are either more "gender neutral" or not consistent with the usual customs for their biological sex. There is nothing wrong with this.
That does not change their sex or demonstrate sex to be "non-binary;" it means that gender roles and superficial aspects of gender presentation - such as how someone dresses - have some fluidity and flexibility.
I think the trans movement will find a lot more acceptance if they use accurate, precise language.
3
Isn't it sad that the Supreme Court is to decide whether a group of people is equal to everyone else or an abomination?
19
Roberts is concerned with the rights of businesses. Corporations do not have rights. Corporations are legal entities and do not have religious rights to be protected regardless of who is the CEO. The CEO is not the Corporation. To prove my point when was the last time a CEO was held accountable for actions of a corporation? We the people, Mr Chief Justice, We the people. Remember that.
12
Again, a Supreme Court judgment is irrelevant if the constitution is obliterated by the executive branch prevailing over the constitutional powers of the legislative branch, which include impeachment.
5
@Les
In other words, the constitution is meaningless unless the process Produces your desired political result. Got it.
3
@GmooG,
That’s a popular rightwing meme, and it’s meaningless.
We all favor one side in an important issue, and we all believe that it’s the correct one and hope that our viewpoint prevails.
Pretending that you have no preference and castigating those who admit to having one is hypocritical.
3
The Vietnam War draft dodger and the neutered Republican Party are determined to see the Supreme Court rule against LGBTQ+, based upon the self serving, simplistic, legally deficient argument that the Civil Rights Act of 1964 does not extend comparable protection to these individuals. Nothing can be further from the truth. The ridiculous, myopically biased contentions advanced by the GOP influenced attorneys, a lot of mumbo jumbo, sleight of hand, and semantically obfuscation illustrates the extreme credulity exhibited by the holier than thou camp. arguing religious freedoms as a bulwark to sustain their objections, those contentions fall short. Race is the significant outcome determinative factor figuring into the equation to defeat. Review the 12 June 1967 Supreme Court decision of Loving v. Virginia, the landmark ruling finding interracial marriage protected by the XIV Amendment. The Court noted the speciously, narrowly subscribed reasoning of the trial court finding the Lovings guilty of contravening Virginia law:
"Almighty God created the races white, black, yellow, malay, and red, and he placed them on separate continents. And but for the interference with his arrangements there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix. "
This racially motivated, religiously influenced expression was as patently absent of rational justification in 1967 as the strained arguments today. Race matters.
4
They are people,right? All people have the right to work. It is rediculous ,in the twenty-first century, that this still goes on.
21
@Tim Lynch I was trying to find the words to express how exasperated I am to read that anyone wants to prevent their fellow human from living a good life and making a good living because of whom they love or how they express their own persona and desires. I know I spent a lot of time in the EU and Canada in my life but I find this almost unbelievable - that any court would believe that some humans are less than others, in this day and age
11
I have a feeling our Federalist Society-connected justices (that's five of them, right?) are being guided to carefully make decisions based on the wishes of their conservative big-money donors.
By careful, I mean that they want to make the Supreme Court seem legitimate (when it can't be with the influence groups like Fed Soc have on it) by conceding some cases to the left. So, it may have been Gorsuch's turn on this one.
Yes, it all sounds so very 2019 conspiracy theory. But considering the actual, successful, decades-long conspiracy to turn the courts conservative, why wouldn't they keep on with their game with the SC?
They know that conservative stances on things like gun control, abortion and gay rights go against what the majority of the public want. So, managing the perception of legitimacy is just a matter of giving the people what they want now and again.
However, when it comes to the issues with the biggest impact (Citizens United, VRA, etc.) you are going to see them decide in an expectedly partisan way. Give a little, take a lot.
Even if this exact chess game is not being played by the conservatives on the Supreme Court, I can guarantee you that some dark anti-democratic forces are at play behind the scenes.
It's sad that we can't trust this institution that needs to trusted.
10
@TonyRS I ride around with a vanity plate that says "FDRALST." When asked about it, I say that we are a group of Americans who care deeply about the Constitution and I hand them a copy from the stash I keep in the glove box. I don't what there is to fear from a group that seeks to preserve and honor our most important founding document.
2
@ AR Clayboy - As long as that group protects the parts you agree with, right? And by right, I am, of course, referring to literal correctness, not the kind one emblazons on a vanity plate or packs on a mule.
3
@AR Clayboy
The "edit function" must have clipped your last sentence.
I'm sure you meant" :... fear from a group that pretends to preserve and honor our most important founding document."
Preserve? No.
Honor? Absolutely not.
4
Anthony Kennedy advanced the case for equal rights for gay people and the country is a better place because of his decisions.There is a gay man running for President and he has a lot of respect and support.Surely, the SupremeCourt does not want to go back in time to a time of discrimination and exclusion.Do they realize that we are twenty years into the 21st Century?
19
@Sandra
I tend to doubt that the gay couples you refer to deliberately targeted a Christian bakery or florist for their cake or flowers. Few people planning a wedding (regardless of their sexual orientation) sit down and say, "lets make this very happy occasion a political attack on someone else". I am a strong Christian. I do not feel my rights are being diminished because someone who might be different from me wants equal rights.
8
@Sandra No, LGBTQ people are trying to have their own rights protected and enforced, as are women, African Americans, Jews, Hispanics and other groups. If you were really a Christian you would be more accepting of people who are different from you.
2
@Sandra Are you worried about your rights being protected, or your the erosion of your imaginary right to force others to live in a particular manner because of your own comfort zone? If you want to be Christian, be Christian. If you believe that homosexual relationships are wrong, do not engage in a homosexual partnership. If you believe that your children should be taught why your beliefs are the best ones, you may teach them that. What you may not do is interfere with the right of others to exist free from constant harassment and assault because you deem them abhorrent and want to erase their 'corrupting existence.' Christ said his Kingdom was no part of this world and yet Christians keep trying to help Christ get the job done here on earth. I guess Christians don't think Christ can take care of social issues himself, so they turn into the very people he would have excoriated in order to help out in a way he never asked. He ate with and taught the 'sinners.' I'll let you look up what he thought about the Pharisees.
Ah, Trump. The adulterous, lying, cruel, cursing man who brags about what he can do to women and about his disregard for every convention of his office. Yes, I am certain Christ needs him to win another term in order to preserve a clean and Godly America. I am thankful every day that our Founders took into account something you believe is of no account -- the right to have freedom from religion and the national theocracy you so desire.
2
Seriously, what is it with Americans and bathrooms? Do you not use unisex gas station bathrooms? Do people usually look over your stalls while you urinate? Are you uncomfortable washing and drying your hands next to someone of the opposite sex? Are you using restrooms buck naked? I'm shocked that a progressive judge would feed into this nonsense by considering it at all.
43
If the justices rule against the plaintiffs would that mean that I would need to prove that my genitals matched those of my appearance and would I also have to submit to some sort of scientific test to prove that I was genetically what I claimed to be.
Would I also have to have some intimate moment with someone who appears to be of the opposite sex (whatever that might mean)?
What a sad state of affairs when people feel that need to delve into someone's underwear or their non-work lives to determine whether they should be offered a job.
Discrimination is discrimination, and is wrong whatever the reason.
20
Any perspective on why homosexuals/lesbians are categorized into the same designation as transgender people?
8
@Richard J
Each transgresses accepted gender roles. Surely this is not hard to fathom, though so many gays and lesbians play the stooge here.
2
Nobody should be discriminated against on account of their gender or sexual orientation.
The issue seems to be whether or not a dress code, based on gender is permissible, or if an employee is free to dress in any way the employee desires, as long as the employee can somehow link the desired attire to the gender they chose to identify with that day.
3
I hate that this fight is labeled a "culture war". While that term may not be inherently wrong, I think it often seeks to strip these issues of their humanity. This is not one culture against another, debating which is better. This is the question of whether or not the courts are going to decide that we deserve just as much humanity as cisgender and straight people. I find it deeply concerning that someone valued to be intelligent and decisive and just, could say that because legislators in the 60s didn't want to protect queer and trans folks, we shouldn't be protected in the present day. Trans POC are being murdered every week, but Alito wants to debate semantics? It makes me feel sick, and exhausted, and afraid. I'm not surprised, but I am constantly disappointed by these people.
17
@Parker
Alito is the kind of intellect-judge who parses words like a scrivener and at the end of his work day doesn't care if actual justice has been done. Any lawyer can tell you chapter and verse about these kind of obtuse jurists: dime a dozen in law.
3
@Parker Real women are murdered every week, and some have been murdered by "transwomen."
4
@Anne,
That’s disingenuous.
Transgenders are murdered simply because of what they are.
That’s called “hate crime,” and it’s well defined by the law.
1
We are going too far as a society to protect someone’s religious freedoms and beliefs. If you don’t approve of gay marriage, fine, don’t do it. But you should not have protection to treat someone differently because their behavior is out of step with your own religion.
40
@MG Well said, civil rights, human rights have no need to protect anyone's religious freedoms & beliefs, just walk on by the things you don't agree with, but you disagreement gives you no right to stop anyone to live their life as they believe it should be lived; these are not competing rights, they are different, so don't treat on anyone else's life needs;its flat out ignorance not to know that LGBT is a Naturally and Randomly Occurring event throughout all of a Nature;anyone could be anyone of these situations that represented how you are wired at birth and is not a Life Style or a Choice, it is what they know themselves to be from when they are very young & they agonize over how to deal with it and explain it to themselves & their families;liz cheney is a lesbian, no one bothers her; no one has a right to discriminate against anyone, it is just Sharia law if you do;Both sexes use the same bathroom all over Europe, not a problem;I worked in a county law office where transgender people came to change their name & we all used the same restrooms & you cannot identify who is transgender. Just go to the restroom you identify with, everyone else should mind their own business, urinate & leave & leave other people alone. God didn't ask any of us for help, so don't be a Potty Patrol Person. Live & Let Live & mind your own business because in 19 years We Never Had One Problem.
9
@MG We also don't have to as a society accept the idea of transgenderism. Gender is a scientific fact from birth. You cannot just say it isn't. Facts.
6
“At the same time, they said, a ruling protecting transgender people would open a new front in the culture wars.” There is already a culture war raging, ending in unprecedented murders of transgendered people. Any movement to end discrimination against trans folks should be seized especially when, as here, as Gorsuch said, it is “really close.”
8
@lg What percentage of those transgendered people were murdered while participating in the very dangerous job of prostitution, in which women are murdered frequently? Have you been an activist about that? Curious.
4
@lg
Transwomen's murders have nothing to do with a culture war. They often have to do with being poor and engaged in prostitution or drugs.
Lets work on solving those problems rather than using their murders to score political points.
1
@A F I understand your points. However, culturally sanctioned discrimination contributes to the devaluation of transgendered people that facilitates and obscures crimes against them. The need for legal protection does not diminish the need to work on the problems you cite, and has nothing to do with scoring political points.
It is absolutely true -- as Justice Alito seemed to think -- that the word "sex" in the 1964 Civil Rights Act was never intended to include homosexuals and trans-sexuals.
It is equally, absolutely true that the Founders never intended the First Amendment to apply to the baking of cakes.
End of story. Judgement for plaintiff. :)
22
@Chip or the second amendment to apply to the kids of guns used in mass shootings today
3
I don't believe the legislators had in mind what is being argued for now. At the same time, what's the big deal about saying, "Sure. Fine. Big deal. Have a nice life."? Gay, Lesbian, Hetro, Trans, short, female people exist and walk around, work, pay taxes, write books. They don't seem to be doing anything but living their lives - or, living their lives and making noises about being left alone to do their work, walk around, pay taxes, etc. Get over it. Plenty of open position to be "Lawn Nazi's" if you need something petty and silly to spend your time on. Always cracks me up when some bigot winds up with a bi-racial grandchild, or, a gay son. "Told ya!"
11
Ok, this is the 21st century, folks!! Why is the most powerful court in the Land of the Free even hearing arguments that human beings of any stripe are not equal to other human beings? And why we're at it, why are we still fighting over whether the government can force a woman to bear children? That is bald-faced state power over an individual's personal life. American exceptionalism is rooted in our respect for freedom, equality and justice.
32
@Lily
Exactly!
2
As a gay man who has experienced discrimination both inside and outside of the workplace, I would like those Supreme Court justices who are straight, white males to walk a mile in my or my LGBTQ brothers' and sisters' shoes. No one should be fired simply because of who they are or whom they choose to love. A fair reading of Title VII should include sexual orientation as part of preventing discrimination based upon sex.
38
It seems to me , a non-lawyer, that constricting the meaning of the word sex to whether one has more x, y chromosomes is not a tenable position. Clearly, the legislature was not prohibiting discrimination against a class of people who could only be identified by genetic testing prior to the discriminatory acts.
Rather the legislators were trying to prohibit discrimination based on identifiable and observable behavioral characteristics or manifestations of an individuals sexual identity. Such characteristics are observable but as such are also susceptible to stereotyping and therefore discrimination.EG: Jones is a women who doesn't dress like most women and therefore can't do the job of fashionista. Smith is a women and therefore too weak to be a firefighter. Evans is a man who likes other men and therefore can't play professional football.
It mystifies me why people, apparently including several SCOTUS members, have difficulty widening the definition of sex.
This continues to be about the cult of "other" and the need for hapless deplorables to maintain their long list of "others" so that they can feel better about themselves.
20
@Brian Barrett
Really Brian? In the Civil Rights Act of 1968, Congress was trying to prohibit "identifiable and observable behavioral characteristic or manifestations of and individuals [sic] sexual identity?" And they did so without one single moment of debate about LBGT rights.
I would support properly enacted protections for LBGT people, but can we at least be honest in our arguments. There is NO WAY that Congress intended the definition you are advocating. Race, sex, national origin are immutable characteristics; not behaviors.
6
@AR Clayboy,
Sexual orientation is not “behavior.”
It is as inherent as race.
Defining it as “lifestyle” is a bigoted and ignorant argument.
The military does not discriminate against gay people. Why should employers be allowed to it? Keep in mind that the military was the first institution to de-segregate.
13
If they enshrine discrimination then there is no other recourse but civil disobedience. The discredited Supreme Court can be ignored.
15
The rule of law and the separation of powers are both dead in this country. The Supreme Court should feel no qualms about legislating from the bench. And that legislation should uphold LGBT rights, based on the extensive clinical research that proves LGBT people are normal.
7
@Some Tired Old Liberal
Congress had centuries to legislate effective laws stopping Black discrimination and didn't do it. Americans had centuries to vote for civil liberties for its Black citizens and didn't do it.
It took the US Supreme Ct to do it in the 50's with cases like Brown and Plessy which found these fundamental civil rights in the Constitution.
It is no major stretch to say sex in the '64 Act includes LGBT. And it is the right thing to do to boot, and particularly so for religionists who profess that we are all God's children.
4
In 2019, we’re still trying to decide if it’s OK to fire people because they’re gay?
This country is exceptional all right, and not in a good way.
32
The fact that this is a case even happening in 2019 is appalling. Human's rights are human's rights, no matter who that human is
25
congress should make a new law.
3
What if my religious beliefs are anti-Christian?
As Sir Issac Newton posed: To every action, there is an opposite and equal re-action.
5
Having just read both oral arguments, I do believe this will come down to Neil Gorsuch. He, at times, seemed to be making arguments on behalf of both EEOC, stating "textually" this is very close. And on behalf of Ms. Karlan (who could have done much better at arguing on behalf of Bostock.) Gorsuch tried numerous times to tie the word "sex" to "sexual orientation" in this case... yet, Ms. Karlan did not sufficiently connect the dots for the court. And at the end of oral arguments, Alito say "your argument falls flat because sexual orientation is different than sex." Ms. Karlan responded, "of course it is, nobody is saying sexual orientation is the same as sex." ugh. Yet Gorsuch stated twice, you can't have one with out the other, basically.
3
@JPP,
Excellent point.
To an LGBT person, sexual orientation IS the same as sex.
EMPATHY. We loose it and we loose what make us human.
All people are created equal. I read that someplace.....
13
Who could think an employer could fire a white male for deciding on Monday afternoon they want to show up for work dressed as Hindu female, and Tuesday morning as a struck Muslim Saudi female, based on how the employee elects to “self-identify” that day.
No problem at all developing customers’ confidence in your employee staff ...
5
@Rational Analysis it's unfortunate you did not educate yourself about gender identity before commenting on today's arguments case. Here you go.
https://www.glaad.org/transgender/transfaq
10
Trump tells the Department of Justice to go from defending a transgender person from being fired to opposing her.
But the "Log Cabin" Republicans are still on record in supporting Trump for Re-election for 2020.
"Judas Goats", anyone?.
9
The headline’s absurdity kind of says it all. Like asking your lungs if they would like to think about having some oxygen. Isn’t this stuff obvious!!!? Seems so remedial.
2
The bigger question to me is: how can any decent person even defend the idea that it might be okay to fire someone for being gay?
52
@Nicolas Benjamin
Corporate culture, for one. There's enough politically active gay people to make plenty of employers uncomfortable. If they don't want politics in their workplace, it's dicey to enforce that without being accused of being anti-gay.
And since it's perfectly legal to fire people for being sick (with illnesses that have nothing to do with their jobs), the issue of sexuality is rather moot.
People with poor credit ratings (often acquired through no fault of their own) aren't hired for jobs or allowed to rent apartments. That's hunky dory, and nobody is really fighting for their rights.
3
I guess America is free for some and not others.
23
Justice Alito
“If the court takes this up and interprets this 1964 statute to prohibit discrimination based on sexual orientation,” he said, “we will be acting exactly like a legislature.”
No Sir, you would be acting as a third branch of government as is your charge. You would be upholding your constitutional duty to interpret existing law. Please do not push this decision onto those who exist only for politics (our legislators). Do your job . Most of us know how you will vote, just don't push off your sad reasoning on those that voted for hope but got stiffed by the electoral college, gerrymandering, voter suppression etc.
39
@Frost
Strangely this ultra-religious jurist sounds like Pontius Pilate who wiped his hands of what was being done to Christ. Though he could've stopped it, it "wasn't his job".
4
An auspicious day to hear cases at the Supreme Court: the day before the Day of Atonement.
5
Fascinating legal question. Title VI is about as blanket a protection as may be discerned by the Act. It is very easy to contest discrimination in most venues, over most categories, if you have an advocate in law. It is not entirely a passive construct and has to be activated case by case. But there is another problem with the entire "LGBT" design, and that is over the "T" which is probably the most contentious (and politicized) category as it is a strict identity, and not a sexual preference and so effectively "piggybacking" illogically on sexual orientation policy. Canon law influence may also be more pronounced across all these categories; in fact it may be effectively primary doctrine, although the SC will not likely invoke it explicitly. Roman law tradition is also interesting (Lex Scantinia) in its interpretation of passive vs. dominant behavior rather than preference per se, but probably problematic as a criterion today.
4
@Matt,
There is no qualitative difference between transgender and sexual preference.
“Preference” does not mean “voluntary.” One does not choose to be gay. It is inherent.
I think most people at a funeral are “dealing with” their loss and just grateful for the professional service that staff at a funeral home might provide.
6
Separation of church and state is written for a reason, a reason the writers had already experienced, and wanted no more of. The cult of evangelical christians has wanted to destroy our Constitution since the minute they "became". Why does the GOP reach out to them? Fear. They cherish their fear.
We are paying the price for this awful cult-like bigotry, most especially when politicians prey on their fearful outlook & great need to control others.
There have been, and are, kids born with both sets of genitals. Trans is a same birth anomaly. Genitals don't "talk" to the brain. The UK found in research there IS a gender ID area in the brain. Trans has to do with fetal phase development. The genitals form in the first 8-12 weeks of pregnancy, affected by SO many different things. The brain of the fetus is fully formed by 24 weeks- ready to be born! USA has been using "pig fetal phase" for so very long. UK has done research & found the true human fetal phase development.
I realize I am not speaking to the SCOTUS. But, in a way I am.
I've taken care of thousands of patients, all ages. I am so very sick and tired of people's bigotry or demonizing those humans they do not know, who are human beings, trying to just live their life.
Discrimination of ANY sort has no place in our nation, nor in our laws determined by SCOTUS. It's just so very tragic.
15
I find it hard to believe that the Supreme Court will in any way countenance discrimination against gay people.
That said, positions which require extreme mental stability might be off limits to people who think that they are of the opposite gender.
13
@MIKEinNYC
I actually think people who are transitioning as part of treatment for Gender Dysphoria would be better off suing under the Americans With Disabilities Act.
A person being treated for Gender Dysphoria has as much right to be accommodated - including transition - without fear of being fired as someone with cancer, or someone in a wheelchair.
8
@A F
Er, people with cancer are fired every day or pushed out of their jobs. People with poor credit ratings as a result of medical bills are evicted from their rental accommodations every day.
2
@MIKEinNYC
Part of having a cogent informed opinion is reading some medical science in this. Start there.
1
Even though I am a gay man, I want to keep an open mind on understanding those who believe it is ok to fire someone who is gay or transgender. Religious beliefs should have no bearing on such decisions, because the Bible can not be our "universal" source of "authority." Not to mention those who use the Bible as their justification often "cherry pick" the passages about homosexuality while ignoring those referring to adultery. Would they fire an adulteress? However, I do understand the firing of Ms. Stephens. Although not stated in this article, Mr. Rost said part of his decision to fire Ms. Stephens was that those who are grieving should not have to deal with a man dressed as a woman. And I understand that. A funeral home is different than a coffee shop. If Ms. Stephens were fired from a coffee shop, I would not support the owner. There is a difference. And I wish there wasn't.
58
@Tom I am stunned by that response. What "dealing with" is going on at a funeral? Should I have to "deal with" a heterosexual at the funeral of my female wife? Should I have to deal with a person of another faith having a funeral in the next room? Are you serious?
257
@Tom Not long ago, it would not have been uncommon for a gay man to be fired for the same reason. Don't forget that as you casually toss transgender women under the bus.
216
@Tom | How would grieving customers know that Ms. Stephens was (is) "a man dressed as a woman?"
24
The question is why are some human beings so hell bent on wanting desperately to be able to discriminate against other human beings and having laws in place to "give them the right" to do it?
Reading some of the questions posed by some of the Justices leaves me with no respect for them because it is so obvious that some of them are perfectly fine with discrimination.
24
I couldn’t agree more. I felt the justices were asking questions to validate what was already decided in Title VII. It’s so sad that we cannot give every other human the respect they deserve.
6
@Amanda Bonner . The issue is when laws meant to protect women may infringe on women's abilities to have any rights. Look at sports. If women's teams can include individuals with male bodies, with zero modifications, then it is hard to believe that women's sports will survive for biological females.
14
@Amanda Bonner
Man and Woman are important categories sometimes, especially when it comes to protecting spaces for women, who are more physically vulnerable. Locker rooms, sports, and women's shelters are some examples of situations when "discrimination" against people with male bodies is necessary to protect the rights of women.
I do agree though that things like housing and employment are generally not situations where sex discrimination should be permitted, and requiring someone to dress in a stereotyped way according to their biological sex would seem to be discrimination to me. People have a right to work and have access to housing.
1
Sex is sex and gender is gender. I hope we can still make these dustinctions. New facts deserve new laws. That is the work of Congress, not the courts. I am for rights for all, but we should not stretch the meanings of words to the point of ignoring the botanical facts if life and the words which identify them for the sake of efficiency or preferred quick outcomes. Across the board progressives rely on such methods. Only confusion and discard can result. We need not forget or rewrite history to make a better future. Shortcuts backfire.
12
Clarence Thomas will have the opportunity to express his hypocrisy once again, even 'tho he should know better.
All the more shocking, given the rise of white supremacy under Trump.
5
@Step.
Ones blackness as nothing to do with this issue.
And as a black person our struggle as nothing and cannot be compared to this issue
Why single out Mr Thomas
6
You do realize there are gay and transgender people who are black, right?
2
@Sand. I beg to differ.
I single out Thomas because he's a token designed to create the appearance of inclusion. A sellout.
If a black person can't have a bit of empathy for a gay person, you inadvertently are justifying racism.
Homosexuality is just a part of this life. It is not a choice, sin, or moral failing as our enemies lie to justify hate.
2
We all know how this will end 5-4 with Republicans voting to enshrine discrimination against the LGBT community.
Let’s be honest next to African Americans, there isn’t a group that the bloated bigoted Evangelical Christians of the GOP hold more in contempt than the LGBT community.
Sadly, our highest court has been hijacked by Christian bigots.
50
Call them “evangelicals,” not “Christians.” There’s no hint of Christ consciousness there.
7
African Americans aren't keen on gay people either. In New York City -- New York City! -- wunderkind Jumaane Williams is against marriage equality.
(He is also against a woman's right to terminate a pregnancy. I just do not see why liberals continue to support him.)
8
@Sterling If what you predict occurs, the Congress can fix it, and they should. The current president might be an obstacle, or possibly not; either way, he will be replaced less than six years from now, and if the people concur, a veto proof congressional majority is attainable in two.
It might be well to kick this back to the Congress so they can fix their earlier and less than adequate efforts. My preference is that the law state explicitly what discrimination is permitted in economical activity that falls under the interstate commerce clause, and that other such discrimination is not permitted.
2
When the law has no meaning Supreme Court decisions are meaningless.
10
@Attorney Lance Weil
Just because you don’t understand the law doesn’t mean that it has no meaning
@Attorney Lance Weil
You hit the nail on the head with this comment. I could not agree more.
1
Individual pursuit of happiness... stop trying to control sexual choices between consenting adults, and imposing religious views on the citizenry.
9
Employers ought to be allowed to hire whomever they please.
10
It’s not about hiring. It’s about firing. A big difference my friend.
6
@KBronson
People shouldn't be fired for being gay. That's what this is about.
4
What if they don't want to hire you because of the color of your hair
2
The real question presented by these cases is whether textualism is a lie or not.
Conservative jurists have for a generation or two been insisting that we apply statutes based on their text, not based on judges' assessment of whether the outcomes are good or bad (or will result in "social upheaval"). If one takes that approach, this should be a 9-0 no-brainer victory for the plaintiffs. Of course sex is a "factor" (that's the standard in Title VII) in firing someone because they are gay or transgender.
So in a few months we'll find out whether judges are going to create an exception to Congress's law against considering sex - an exception that judges, not Congress, will have written into the law.
But we are also going to find out if textualism is a lie.
8
@Anonymous sex is either make or female. That being said the case should be dismissed. As the original law stated
3
I hope the textual argument carries. It’s easier to understand, apply, and defend. It also has the benefit of clarifying the general rule so people can read the law and understand that it’s illegal to discriminate on gender in all states, not just the ones that treat sexual minorities like people.
It’s easier to understand because it’s not just the rule in statutes, it’s the law in contracts and it’s part of common experience. Your intentions are important, but not as important as what you do or say. If the contract is vague, allow more than one meaning and give the parties a chance to renegotiate it. Terms of use and similar forms are absurdly long so that there is no ambiguity as to the meaning. If you use innuendo or double entendres with innocent intentions, you may need to apologize to avoid causing a misunderstanding that affects your working relationships.
It’s easier to apply, since it’s a simple test. Would the policy cause the same harm if the plaintiff’s gender were different? That kind of test doesn’t have to muddle through discriminatory intent, disparate impact, etc. it looks easy to use and easy to address for employers (maybe no lawyer required).
It’s easier to defend because it gives Congress a chance to change the law if it disagrees with the meaning it’s old words imply. Congress can still carve out an exception (sex, but not sexual orientation or gender identity) if they want sex to have a meaning that is narrower than in most dictionaries.
1
How many trans women of color have been murdered this year alone, just for being true to themselves and brave enough to express that truth to the world?
We humans have a funny way of compartmentalizing compassion and empathy, reserving it for other people “like us” and marginalizing, even vilifying, our brothers and sisters in the most vulnerable communities.
Trans people are people first.
Homeless people are people first.
Disabled people are people first.
Immigrants are people first.
Let us start treating each other like people first. Let us cast votes in 2020 for representatives who will use the full force of their power to pass laws ensuring all people are truly equal.
The vision of equality is already enshrined in our constitution. We have the chance to make it a reality, but only if we vote.
22
@Dabney
40% of transwomen of color have engaged in prostitution, and the majority have been incarcerated for committing crimes themselves.
Transwomen of color overwhelmingly do not undergo any medical transition, and remain biologically male, with all the aggression and tendency towards risk of men.
Most live in poor, high crime neighborhoods, and they often have co-morbid mental health and drug issues.
They are not being murdered for "who they are" but because they are low income, often mentally ill males who engage in extraordinarily risky behavior.
This absolutely does not excuse any of their murders - no murder is excusable in a law abiding society. And it does not minimize their personhood -particularly from a Christian standpoint, the most marginalized are the most beloved of God.
But these facts do give context to their situation, and reality is perhaps more helpful in trying to find real solutions for these vulnerable people, solutions that address the intersection of risk, poverty, and mental illness that make them so vulnerable in the first place.
Of course, that kind of complexity does not serve the interests of "activists" whose bread and butter is simplistic, self serving narratives and slogans.
15
@Dabney . Sadly, many of those people work in the sex industry. The issue of violence against sex workers is a side issue from a person who works in a funeral home.
6
@A F excellent points.
Also they have a tendency to not tell their male clients that they are male
Which leads to confrontation
3
It seems to me like Title VII's language does include us, but even so, I think the best solution is for Congress to pass a new law that explicitly bars employment discrimination against LGBT+ people. I'd like to see the optics of Republicans voting against that one.
9
Only 20 states and the District of Columbia have laws prohibiting discrimination against the LGBT community. 30 do not. So, it’s very unlikely that the US Congress could pass LGBT protections and get them signed by the President. There should be no need because existing civil rights laws should protect the LGBT community if the Supreme Court does its job here and reads the plain language of the statute. Unfortunately the court is packed with extreme conservatives and CJ Roberts will likely be the swing vote.
2
It is unbelievable that in 2019 gay people suffer legal discrimination. And are forced to attempt to shoehorn sexuality onto a law meant for gender. Why hasn't Congress passed a law and a President signed it already? It should have happened during the Obama years. Now the minority bigoted views of the Republicans will keep discrimination legal.
6
I couldn't give my church another nickel of my money, so I wrote a formal letter and resigned in 2005.
Regarding employment, in the US, you can be fired for no reason at all, although there is usually some paper trail to show how you were coming in 45 seconds late.
4
I don't understand why this should even be an issue. Don't our laws cover everyone? Why are there any limits to what sort of human being counts as a person under the law? Don't we all bleed red? Have dreams & aspirations for ourselves & loved ones? It shouldn't matter if one is straight or gay or any combination of sexual identities; or if one is white or black or any shade in between; or if one attends a church or temple or mosque or nothing at all! If a person can do the job, whether it be carry 60 pounds of gear in the military, or make touchdowns, or advise on weddings, or or or - just let them!!
None of us should have the right to legally foist our limiting beliefs on others. If you don't approve of same sex marriage, then don't marry someone of the same sex. If you don't approve of abortion rights, don't have an abortion. If you don't think women should be priests, join a religion that agrees with you, but don't try to force everyone else into your mold.
We should be expanding the circle, not contracting it. Contract too far and you end up all alone....
6
@Smashed The question at issue appears not to be about what is right or wrong, but about what the existing law requires. It has long been known and widely remarked that there often is a marked difference between what is morally acceptable and what is is legal. These cases may be such instances.
One of the legislators' often overlooked duties in a democratic regime is to adjust the laws to accord with what the majority generally understands to be morally acceptable. Another of their duties, in a republic, is to attempt to lead their constituents to a better understanding of right and wrong, rather than slavishly following poll results to support the alternative that offends the fewest among their constituents, even if it sometimes may cost them what is, by most reports, a highly desirable and pretty well-compensated job. Maybe the Congress should do its job.
1
Your country is so much in the stone age regarding these issues and how they are dealt with in many other western countries.
18
My advice is to stay in Canada and try to ignore us. On the plus side the traditional low esteem of Canadians is getting a boost by our hilarious antics.
2
The idea of separating ones sexual orientation from the word sex in Title VII is pretty much the same as firing a black man for having tight African hair then claiming you did not discriminate against him because he is black.
The idea is insulting and irrational. The word absurd has been used by folks trying to support the idea that it is not, I think that is absurd.
11
The total reactionary hypocrisy of “textualism”/“originalism” is laid bare here. Alito, a mind of staggering mediocrity, is, what, an originalist until he isn’t? All of a sudden congressional intent of “sex” is important? Well then, why not the congressional intent that the so-called liberals would consider: the intent to not discriminate against somebody for a characteristic having absolutely nothing to do whatsoever with the job or activity in question? Is that too broad a concept for a mind of such narrow parameters?
Roberts is scantly better - oh yes, the precious religious bigotry must be top of mind - but it’s a fitting conclusion to the article that Alito is literally feeling like his head is spinning off his shoulders. It’s no surprise this guy was the runner-up to Bush’s Secretary. O’Connor on the court with full-on dementia would have been a better choice.
8
@HH If the (previous) Congress had meant to outlaw "discrimination against somebody for a characteristic having absolutely nothing to do whatsoever with the job or activity in question" it should have been easy enough for them to write the law that way. Yet they did not do so, and it is reasonable to ask why. It also is reasonable, if one grants that the representatives and senators who passed the existing law, and the president who signed the act, were intelligent, educated, and articulate beyond the population average, to presume that they meant the word "sex" as it was then understood generally and in the law of the time.
That contemporary meaning probably was something very near observed sex at the time of birth. It almost surely had little or nothing to do with either sexual preference by adults or gender based on introspection and self understanding. General opinion has changed over the last half century or so, but the 1964 law stands much as written. Similar to the case of prior federal review of voting rules and districts in some states, but not others, it is time for the Congress to review its previous work and update it as necessary.
The real question presented by these cases is whether textualism is a lie or not. Conservative jurists have for a generation or two been insisting that we apply statutes based on their text, not based on judges' assessment of whether the outcomes are good or bad (or will result is "social upheaval"). If one takes that approach this should be a 9-0 victory for the plaintiffs. of course sex is a "factor" (that's the standard in Title VII) in firing someone because they are gay or transgender.
So in a few months we'll find out whether judges are going to create an exception to Congress's rule against considering sex - an exception that jidges, not Congress, will have written into the law.
But we are also going to find out if textualism is a lie.
4
Its the 21st Century for heaven sakes. And these ‘Christian sages’ are denying the existence of humans? How atavistic.
I guess soon you will be dancing around the cauldron ready to boil Senator Professor Warren!
6
Legally there isn't a good argument as to why LGBT wouldn't be covered under sex. "Sex" simply means "my assumption of what your genitals look like," and the Framers/Supreme Court decided that wasn't an allowable basis for discrimination.
An individual's assumption of which sexes are allowed to have intimate contact with which other sexes and what clothes you should wear based on someone else's assumption of your sex are all discrimination based on sex.
4
"Sex" in 1964 meant pretty much what it means today, i.e., sexual activity or either of the primary biological categories. What has changed is that people today accept that one can straddle or elect to jump biological categories, and can act openly on same-sex desires and even marry in same-sex pairs. But people still pretty much mean the same thing about the main social and biological categories (excluding rare biological anomalies like hermaphrodites). In short, sex meant then, as it means today, male or female. The adjective "same-sex", which is a contemporary term, confirms this general continuing point.
That doesn't necessarily decide the cases, though. The statute was very blankly drafted, so that its application arguably outlaws discrimination based on how the discriminator views whatever way an individual exhibits or plays on the meaning of sex. Sex is biological, but the legislators were not approaching this is a biological matter, rather a legal one about acceptable zones for discrimination.
Consider that Congress included the word "race" at the same time in the same statute, knowing full well that the very concept of race is far more shaky than the biology of sex. If varying shades of people from miscellaneous backgrounds can rely on the "race" term, then I see a serious precedent for a loose meaning of "sex" in the same statute. That doesn't mean that the Court can change biology any more than a doctor can. But law is not biology.
3
Trump has played his cards very carefully and deliberately. He has trashed the House Democrats, rolled over the Mueller investigation, and now stuck it to Senate Republicans on Syria, who roll over in short order. He has undone environmental restrictions going back decades and insulted most of our key allies in some ugly way as well as our enemies and competitors. He has the full support of 30-40% of America who will stick with him through thick and thin.... even some like the farmers who have suffered financial damage but who will not veer from Trump.
Now we have the issues of abortion and LGBT workers... and women's rights generally and all LGBTQ/IA rights. It's time to roll right over them. The courts have been stocked with Trump appointments not just at the top but down through the whole Court system. Once the top... the Supreme Court... takes its first 1-2 major decisions favoring what Trump supporters "seem to want" (most of them have no understanding of the issues and their complexity), the ripple effect will be massive throughout the entire legal system.
It is all well calculated. Trump has the military behind him and a core of professional soldiers through Erik Prince and others. If we "take to the streets" like so many Liberals are threatening, it will be the opportunity for Trump to declare martial law, and there go our Constitutional rights and freedoms... and very possibly a firm date for the next election.
Some very smart people are advising Trump.
How sad that in the “land of the free and home of the brave” bigots are even given public space to challenge the very definition of whom, exactly, is equal in the Constitution’s promise of equal justice under law—let alone that they have fellow bigots cheering them on while crowing about how much they “love” America.
6
@John-Manuel Andriote
Freedom means the freedom to be a bigot and to oppose equality, which afterall is incompatible with freedom.
2
All sorts of possibilities and pitfalls, what if we have to do away with mens' or womens' sports altogether based on the ruling? Will that be ok?
6
Don’t need kid yourself. None of the Conservative votes are “in play.”
But they gotta do the song and dance first. They can’t just come out and say that they think anyone who isn’t straight and white is less than human. They’ve got to say a bunch of things that they can later point to as evidence of their non-discriminatory beliefs first. It’s a brilliant inoculation strategy because it works so well.
First, ask a bunch of questions and make a bunch of statements that make it seem like you’re having a thoughtful debate. Then vote to strip all of the rights of the people you hate as you planned to do from the onset. Then point to the statements you made at the beginning as evidence to discredit the completely accurate accusations of discrimination that follow.
10
Intolerance towards LGBTQ is a choice.
Homophobia, transphobia, etc. is a choice.
I often read that intolerance towards LGBTQ people is justified because their LGBTQ identity is a choice (according to them).
How in the world do these bigots not see their hypocrisy?
10
Really. Something that a fifth grader would easily understand is so mentally taxing for this . Supreme . Court . Justice . that it's making his "head spin".
10
I don’t mean this facetiously: if you can’t abide equal human rights because of “religious objections,” you might want to seriously think about what sort of religion it is to which you adhere. Maybe find another. Or do without.
31
Did God make LGBTQ in his own image or not?
Are LGBTQ divinely naturally created equal persons with certain unalienable rights of life, liberty and the pursuit of happiness or not?
8
@Blackmamba
Did God make people who are repulsed by transgender persons in his own image are not? Do they have the right to life, liberty and the pursuit of happiness or not?
LGBTQ people don't impede bigots' life nor their liberty, and if the mere existence of people you don't like--who are literally not harming you or trying to take away your rights--impedes your pursuit of happiness, well, you have other problems.
1
@KBronson
America has freedom of religion or not. But America has no religion nor is it agnostic or atheist.
Repulsion resides in the hearts and minds of persons who can avoid the source of their anathema. Repulsion has no impact on your life, liberty and pursuit of happiness.
White European American Judeo-Christians were repulsed by black African Americans living and breathing. And the idea of black men treating white women like white men treated black women during enslavement and Jim Crow was the rationale for lynching.
Biology tells us that gender identity is determined in the womb at fertilization then development of genitalia then secondary sex characteristics then the brain. While they tend to match that is not always true. But either way it is natural. There is no mistake nor choice.
See Matthew 7:2; 25: 21-36
3
Republicans don't actually think anybody they don't like is protected by any law or sense of humanity.
7
@Ghost Dansing
No. If they thought that, they would advocate harvesting their organs.
3
@KBronson
Wait for it. They're already advocating for compulsory pregnancy and birth for women of childbearing age.
The very notion that BK or NG's votes are in play underscores the perception that without hearing the facts they already have their minds made up ... which begs the question I often ask:
How can anyone expect a fair shake in a court composed of political appointees who have clearly defined ideological views?
What is the point of organizing a judicial system in this manner?
9
If a woman can wear a dress, then a man should be able to wear a dress. If a woman can marry a man, then a man should be able to marry a man.
The only distinction in these cases is the sex of the person doing the action.
On the other hand, it seems that SCOTUS can rule in favor of the transgender employee while also avoiding enshrining a vague concept of "gender identity" as a protected category. Since the argument here is that a man should be able to present however a woman presents, the assumption is that the person wearing the dress is a man. Such a ruling protects people who choose to present with the superficial characteristics and dress of the opposite sex (often as part of treatment for gender dysphoria, which is real and painful), while avoiding any endorsement of a particular belief system or academic philosophical theory.
These leaves transgender people free to express themselves how they want, with protection from discrimination, same as anyone else, without legally changing the meaning of "sex" from biology to "self identity" or a philosophical construct. Such a ruling actually DEPENDS on a a definition of sex as biological.
I think this is a good way to legally handle this issue. We can, and should, keep debating the philosophy.
People cannot change their biological sex, but in a free society, people should be able express their gender how they choose. If a man wears a dress and wants to be called "she", that is their chosen way of being a man.
11
@A F This is such an important clarification. I wish I could bump it up to the top of the readers' picks!
2
@A F
You’re the only commenter who gets it! I’ll add one wrinkle: the funeral home has separate dress codes for men and women. The plaintiff sought to abide by the latter. For her to succeed, then, SCOTUS has two options: rule sex-based dress codes are a form of sex discrimination and ban them; or rule that sex is not a biological reality (large gametes vs. small gametes) but a subjective “feeling.” I don’t see either happening.
2
With the on-going gridlock in Congress, the executive and judicial branches are being pressed to take on the duties of the legislature. That is why presidential elections and Supreme Court openings have become overly important. We must turn back the clock and force Congress to resume its responsibilities. A impotent Congress brought the rise of a populist, Trump, who promised to do the very things that Congress has refused to do. Congress has known the pressing need for a new immigration policy for 20 years and they have done nothing. The Court does not write words into laws passed by Congress, nor should it. That is a legislative duty. Forget the blame game, it is meaningless and divisive. Mr. Trump's removal, as welcome as it may be, does nothing to solve the problem of a do-nothing Congress. Unless Congress resumes its primary branch duties, expect more problems. Does anyone in Congress really care about this country? We need a Constitutional Convention for one thing only, term limits.
5
Honestly, I'd prefer a bill be passed that makes it indisputable that gay and trans people are protected in the workplace. Whether we can twist Title VII to fit us or not, I think it's pretty obvious that our community was not intended to be included as a protected class. I hate to say it, but I think Alito is right on this one.
Unfortunately, my preferences probably don't make for a realistic path forward for quite some time, so I'd still like to see the Supreme Court rule in favor of the plaintiffs. But I do think from a legal standpoint that the employers were within their rights, no matter how awful that is.
5
Civil rights either exist for everyone, or they end up existing for nobody in the end.
Civil rights is all about freedom to be who you are and express yourself accordingly... without worry of being persecuted for it as long as you are a lawful citizen living with in applicable law.
That this is even going to the supreme court is a sad indictment on US society as a whole.
This countries religious zealots need to get in line here and stop all the hating on any group or demographic that their local religious leaders tell them they must be against.
6
A conservative Justice worried about “massive upheaval” if a group is given equal rights- something that is enshrined in our Constitution- is a testament to how deeply ingrained bigotry is in the Republican Party.
10
@Sterling Exactly. I’m guessing that some of these justices would have voted to keep what were Jim Crow laws legal because of ‘massive upheaval’ that might ensue, including one justice who would have been relegated to riding in the back of the bus.
Wait for congress to change the law to protect all LGBTQ people from discrimination in housing and employment? Congress won’t protect schoolchildren from guns in schools....the only “rights” congress looks at are “rights” for people to discriminate against those who aren’t the right kind of Christians.
We need a Supreme Court to lead and protect people who are forced to conform to a minority of American’s ideas of how they must behave according to what genitals with which they were born.
3
Listening to these conservative justices, one can only hope that in an alternate universe, gay and trans people of color are determining the fate of straight white men.
19
Are they citizens in good standing, that is, able to vote, law abiding, tax paying people? Then they're protected from discrimination by the Constitution. Or should be.
8
By that logic, the POTUS should be disqualified since he doesn’t pay any taxes.
3
@JP Discriminating against someone based on physical/mental characteristics is critical for a functioning society and is completely constitutional. For example, as a professor I am tasked with the job of discriminating between smart and not so smart students. A coach is tasked with discriminating between good and bad athletes. Furthermore, both of these characteristics are determined on the basis of both genetics and environment. Additionally, you can be fired if you are not smart enough or a good enough athlete if you work for a company or sports team, respectively.
The question that society has to answer is on what characteristics one can discriminate. And that, it seems, should be up to our representatives and/or the people in states that allow the voters to vote on initiatives.
5
@Justin
So you've seen his tax returns then?
I can’t believe that 9 people will soon decide whether I can be legally fired from my job because in states where gay folks have no protections I might make people uncomfortable. How is this different from racism or sexism? After Obama’s election, I thought I lived in the country we could be. That was clearly a dream.
39
If Justice Thomas actually spoke from the bench, he might be able to answer this question: "If a black man were to experience employment discrimination strictly on account of his race would you rule in favor of the company that refused to employ him?"
8
@stu freeman, knowing Clarence Thomas, he'd vote against his own interests. We've seen him do it before.
1
@stu freeman If that is what his Republican president wanted that is the way he would rule.
@stu freeman: well, no, because race is plainly a Constitutionally-protected category. Sexual orientation and gender identification, conversely, aren't.
2
Justice Alito is a homophobic, misogynist, bigoted, prejudiced man interpreting law based on his personal beliefs, not on his professional responsibility, not on justice, not on humanity or integrity, no even on legal precedent. That is reprehensible behavior. Our courts have been turned over to "supreme" conservative, republican, self-righteous "Christians" whom Jesus himself would find reprehensible. How sad that term-limits should be the answer, turning our highest court into another political weapon to be used by whomever is in power. Watch out women and other prochoice folks. Here they come.
12
Why are Gay men grouped with Trans? I doesn't make any sense. They were not out fighting for ACT UP rights. Let them start their own movement.
3
@Steven Pettinga, you said "I doesn't make any sense."
I agree. You don't make any sense.
4
@Steven Pettinga
You are flat-out wrong about this. I knew many trans people who were out in the front lines fighting alongside ACT Up and other AIDS groups in the 1980s and 90s.
Plus, your reference to "ACT UP rights" is nonsensical. If you don't know what ACT UP was fighting against (and for), then you really don't know enough to make a statement about whether or not gay men and trans people should or shouldn't be "grouped" together.
FGinally, your comment of "let them start their own movement" is not only uninformed, it also undermines the point of every civil rights movement throughout history. Battles for civil rights can only progress when different groups of people work together to find commonality in shared humanity. Enlightened men worked with women to secure the right for women to vote. White people were important to the Black Civil Rights movement. Trans people started the Stonewall Riots. People of color fight together against discrimination, even if Blacks and Hispanics check off different boxes on census forms. Etc, etc.
Your comment is both uninformed and mean-spirited.
7
@Steven Pettinga Are you serious? Please read the history of the Stonewall Riots and then check back with us. We all owe the rights we have to trans folks who fought for them on the front lines.
Maybe if there was a major corporation that decided to only hire gay people and started summarily firing all their straight employees this supreme Court might see the point.
13
@Bruce At first I read this comment thinking that you were using humor to prove a point. Then I read it again and thought about something. Suppose that RuPaul fired a contestant on RuPaul’s Drag Race and made it clear that he would not allow a person who openly identified as a straight male to compete on his show. RuPaul as a producer should have the power to do the firing. I’m guessing that the firing would have to take in another state as I believe California protects people who identify as LGBTQ in regards to housing and employment. Hmmmm...put that high heel on another foot and let’s find out how the Supremes let them stand.
I read the long testimony of Altitude Express Inc. v. Zarda a few weeks ago. It was appalling. A straight couple went skydiving on a Friday for her birthday, both first timers. Even though they saw the mandatory video on how to prepare for a jump, the female's body language displayed discomfort being harnessed so closely to a male instructor, Zarda. He tried to make her feel better by saying "Don't worry, I'm gay." Some of the other instructors joked around to her boyfriend on the plane like "How do you feel with your girlfriend so close to another guy?" They all jumped safely and it should have been the end, but the following Monday her boyfriend called the owner and complained... He mentioned that it was inappropriate that Zarda talked about his "personal life," eg: being gay. He got a refund and Zarda was fired. Zarda spiraled, couldn't get work in the profession he loved, and ended up gravitating toward base jumping, where he later died. His estate (his sister and his partner) are continuing the case. All because he was trying to make someone feel better.
16
Sunday, I bought fund-raiser popcorn from an adorable, freckle-faced, curly-haired little girl wearing her "Boy Scout" uniform full of merit badges. Loved it.
The bathroom issue is just plain silly. Many public places, now, (such as my gym), have a third bathroom option with no label on the door - just "restroom."
5
@MD
The problem is that in the US public bathrooms don't have floor to ceiling walls and doors and so people can see in.
In Europe public bathrooms have floor to ceiling walls and doors and all sexes/genders come out to wash their hands.
@MD The bathroom issue is also the changing room issue, the hospital ward issue, the shelter issue, and prison issue. It may seem silly if you are not a woman who has been subject to sexual or other violence at the hands of males, but it is not at all silly to the women who are now being forced to share intimate spaces where they are vulnerable with males. And to be clear, many people claiming trans status have made no medical transition at all.
8
@MD: neutral bathroom doesn't address the issue of men encroaching on women's spaces. Men who identify as women are, ergo, women (we're to accept this deeply illogical premise without question), so they'll use the women's bathroom. I suppose the neutral bathroom permits a refuge for women uncomfortable with males in their space, but that doesn't sit well with me. This is far from "silly."
4
Justice Gorsuch might vote for the plaintiffs. And pigs might fly, and Donald J. Trump might decide to tell the truth. Just don't bet on it.
2
Chief Justice Roberts says he is worried about religious exemptions. But the Civil Rights Act of 1964 under which the plaintiffs are suing has valid religious objections already written into it. The idea that LGBT people are discriminated based on sex is not a novel legal concept. Case law on this has been building for 20 years. Time for the Supreme Court to affirm those precedents for the whole nation.
Let's be clear - there's no such thing as "sexual orientation." It's not orientation when that's how a person is born, any more than color is an orientation. It's just how people are. If I had known that "orientation" was a choice, or voluntary, I would certainly have made other "orientation" choices and saved myself a lot of heartbreak and discrimination.
6
The LGBT community very deliberately chose gay marriage as their signature cause, and since achieving it a relatively small, relatively wealthy number of gays have gotten married. If they had pursued job rights, instead, more would have benefited across a broader spectrum of poor, middle class and wealthy. I have always thought that the wrong cause was given priority.
3
@michjas
Actually, you're incorrect in stating that the "LGBT community very deliberately chose gay marriage as their signature cause."
The reason why gay marriage came before the Supreme Court was because after a number of states allowed civil unions and marriages for LGBT people, a number of other states enacted laws stating that that state could never enact gay marriage, and would never accept gay marriages that had been legally sanctioned by other states. This created a conflict with a number of other federal laws, which require that states accept things like "contracts" and "licenses" from other states. There was also a conflict between taxation of LGBT couples at the state and federal level.
Those conflicts led to a series of 25+ court decisions striking down anti-marriage laws, with a few others upholding them.
Thus, it was felt both within and outside the LGBT community that the contradictions in marriage laws between the states needed to be decided by the Supreme Court. There was as much (or more) momentum building from outside the LGBT community as there was from within it.
In fact, many of us in the LGBT community were astounded (and somewhat concerned) that the marriage issue was going to be addressed before the more basic issues of discrimination in employment, housing, etc.
Furthermore, your comment that "a relatively small, relatively wealthy number of gays have gotten married" is both totally wrong and bigoted.
2
@Paul-A. According to Gallup, 10.2% of LGBT’s are married. According to Brookings, LGBT couples are significantly younger and wealthier than the general population. What’s bigoted about that?
1
@Paul-A
I’ll add that gays invested significant resources in jobs protection. It was called the Employment Non-Discrimination Act. Gay organizations helped draft it, and Democrats had tried, for years, to put it to a vote. In 2007, they finally had the numbers.
The bill had only ever covered sexual orientation, but that year, transgender activists accused the gay organizations of “abandoning” transgender people and demanded ENDA include gender identity. Lawmakers told them there was no way they could support it—they only had the votes for sexual orientation—but the gay organizations capitulated, withdrew their support, and the bill collapsed.
So we tried. Had it not been for those transgender activists, gays and lesbians would already be protected by federal law. The person you’re responding to knows nothing about the gay rights movement, gay history, politics, or ordinary gay people. Indeed, he or she is a bigot.
4
I suppose the simplest solution would be for Congress to pass legislation prohibiting this kind of discrimination.
Oh, wait...
10
Call me naive but why should someone who is LGBTQ be fired from a job, if they are doing their job? I could care less what gender someone identifies with! I just want great service and a job well done.
Justice Sonia Sotomayor asked ' “You have a transgender person who rightly is identifying as a woman and wants to use the women’s bathroom,” she said. “But there are other women who are made uncomfortable, and not merely uncomfortable, but who would feel intruded upon if someone who still had male characteristics walked into their bathroom. That’s why we have different bathrooms. So the hard question is how do we deal with that?”
How would I even know the woman is transgender? What about heterosexual women, lesbians who dislike using a women's restroom or shower area at the fitness center that isn't completely private because they are more modest, shy, reserved?
Am also reminded of when in certain areas of the country allowing blacks to use the same restrooms as whites was illegal. Yet when it was rule unconstitutional and women of all races used the same rest room, nothing adverse happened.
Let's grow up!
8
@Beth Grant DeRoos Many transwomen have had minimal --and often even no-- medical transition and are clearly male, yet they claim to be women who deserve full access to all women's spaces and services. Google Danielle Muscato, Alex Drummond, Jessica Yaniv for a few examples. Or the "it's ma'am" transwoman caught on video flipping out in a video store. Yes, some women feel intimidated and unsafe around males. Lucky for you if you do not.
6
So I've lived with men and women. I've shared bathrooms. What's the big deal with bathrooms? Everyone poops. The real issue that women feel uncomfortable is not the bathroom per se, it's the risk of being raped because it's a secluded space. So the issue is not a trans or gay one.
1
@Beth Grant DeRoos
Transwomen rarely pass very well. They are, for the most part, very obviously male. Even medical transition doesn't eliminate the male bone structure or deep voice, and around 80% have not undergone ANY kind of medical transition.
Many transwomen are heterosexual men who are attracted to women and have a very male sense of entitlement towards women (such as Julia Serano). Actual lesbians have female bodies, female levels of strength and testosterone, and generally have a female respect of women's boundaries. I do not feel threatened by lesbians in locker rooms.
Bathrooms honestly don't really bother me. Most public bathrooms are pretty, well, public, and no one exposes themselves or undresses in any public way. Many women have ducked in and used a men's room at some point, because lines. Most little boys have been in a ladies room with their moms, and my husband takes our young daughters in the mens room with him ALL the time. If access to bathrooms makes life easier for people with Gender Dysphoria, then I have no problem with it.
Locker rooms where people publically undress, shelters, and women's sports, however, are crossing a line and violating the rights of women and girls. We need to find a way to accommodate people with Gender Dysphoria while also protecting the rights of women and girls, such as perhaps a gender neutral locker room, trans shelters, and an "open" division in sports where anyone can compete.
6
It seems like these justices love to give a free pass to anyone claiming their religious liberties are under assault - but apparently the liberty to be who you are and work at a job....just might be against the law.
6
The purpose of Title VII of the Civil Rights Act of 1964 was to protect women against employment discrimination because of their gender. It specifically references “pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions.” It makes no mention of sexual stereotypes or homosexuality, as it surely would have if the intent had been to protect homosexuals from discrimination. The Civil Rights Act, after all, was enacted nearly four decades before the Supreme Court ruled that last outlawing homosexual activity between consenting adults were unconstitutional.
Today, most Americans think homosexuals should be protected against discrimination in the workplace. Congress should revise the Civil Rights Act and Title VII accordingly.
Transgender individuals suffer from “gender dysphoria,” a condition listed in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders. Transgender persons should be protected from housing and employment discrimination under the American Disabilities Act. Employers and coworkers should not be required to pretend men are women or women are men, but transgender persons should not be denied employment because of their medical condition.
8
When black people were granted equal rights, the racist feelings of some people were rejected.
The equal rights of LGBT people should not be dependent upon the homophobic feelings of some people.
3
Hmmmm, homosexual and bisexual and transexual all have 'sex' in them and were in use when the Civil Rights act was written. Hence, I would of thought, that "sex" could have a very broad meaning. On a side note, conservative justices on the Supreme Court have ruled that "bear arms" in the second amendment includes weapons never envisioned by James Madison and his fellow congressmen debating what became know as the Bill of Rights. Perhaps conservative originalists and textualists in the Supreme Court ought to imply the same principle to the word 'sex' in the Civil Rights act. Just a thought.
3
Notice to Christians:
If the court allows discrimination based on religious beliefs, you will not be permitted within my establishment, or serve me in anyone else's.
11
Religion is a private affair and has no business in a public setting. We are getting dangerously close to being a full out religious state. Woman are being deprived their right to choose because we wouldn't want to offend someone religious beliefs. Now we are facing the legalization of discrimination for the same reason. And that sir is legislating. Leave on to Caesar what belongs to Caesar.
6
If it’s OK for people to discriminate against people because they happen to be gay, then would it be Ok for kosher merchants to refuse to serve people whose breathe smells like bacon? Or what about refusing service to the funeral parlor owner because it’s against your beliefs to serve bigots? Why are the Christian fundamentalists only ones who get to deny service or employment based on their personal beliefs?
Besides where does it say in the Bible that one should refuse to serve homosexuals? I do know, however, that one of the 10 commandments is: Thy shall not commit adultery. Yet these same people who claim their religious sensibility would be compromised by hiring a gay or transgender person, almost universally support thrice married adulterer Donald Trump. How convenient that their hypocrisy allows them the pick and choose what offends them so they can freely discriminate at will. For the Supreme Court to condone this is an outrage.
15
I liked the first picture better.
If the SCOTUS really wanted to serve the Republican party (which is its normal game plan), it would rule in favor of protections for LGBT folks.
If, as is likely, it rules against such protections, then the matter will be - and should be - pushed vigorously in Congress. The Republican party will oppose such efforts, or at least Moscow Mitch will preclude this from ever coming to a vote in the Senate. This will outrage the vast majority of Americans, leading to adverse political consequences for the Republicans. They will further entrench themselves as the party of the Old, the Angry, the Thanksgiving-ruiners, and the Aggrieved Whiners. Not where, I would think, they want to be.
2
How predictable but disappointing that Robert's concern was with allowing religious employers to discriminate against people based on sex the same way they discriminated against minorities or divorced women.
6
If you are a man who wants to act and dress like a woman, you already have the freedom to. This ruling opens the door to coercion, whether it be forced deference to an unscientific and non-empirical mysticism known as "gender identity" or the obliteration of protections for women in sport and other domains. It is not discrimination to recognize the objective reality of biological sex.
13
@James UH what?
Gender and sex is not the same thing at all and this has been extensively studied by scientists of varying fields by professionals in academia. On top of it there are loads of empirical evidence from anthropological fields that multiple genders exist among indigenous tribes across the world.
I implore you if you'd like to grow as a person, is to listen to a radiolab podcast episode; "Why Isn't the Sky Blue". I suggest this episode because it talks about the color blue, and how the color itself did not exist in language until we as humans could create that color. While its not exactly the same concept, it can be applied to gender, and the idea that until we as a society have a "word" for something we as people cannot see it; because language expands over time we tend to understand things better. Its messy, but we are humans afterall.
@Ty
An individual human being is a miraculous bundle of infinite permutations of stereotypically masculine and feminine traits, not to mention the traits that have no clear linkage to evolutionary psychology or sexual selection. If you want to call each of these permutations its own "gender" be my guest, but like the nonsense of ze/zir/etc. this will only catch on amongst the Woke fringe.
Your sex is an empirical reality. Gender is a social phenomenon that grapples with the implications of that empirical reality. Sometimes these customs are constricting, outdated, or tyrannical. Sometimes they are wise and a valid "default" setting or heuristic for social interaction. To the extent they become an individualized expression of feeling, they lose their social utility, and become effectively meaningless.
Great Radiolab podcast! If we discover another human sex like the Egyptians discovered the color blue, I will certainly revisit my views.
7
@Ty
Transgenderism and Gender Identity has nothing to do with "science". It is entirely a philosophical concept. Philosophical concepts come and go and are very much up for debate.
Sociology and psychology - the "soft" sciences - also has a role in understanding the phenomena - sociology by trying to understand the incidence and social nature of gender expression, and psychology with trying to understand Gender Dysphoria, its treatment, and conditions, such as depression, PTSD, and personality disorders, that research shows are often co-morbid.
It should also be noted that trans activists are very, very aggressive at intimidating academics, particularly in the social sciences, such as Lisa Littman, whose research does not neatly fit their narrative.
5
Even Scalia would support a ruling that prohibited employment discrimination based on sexual orientation.
1
@Dr. Mike
Sorry, no. He would support a ruling that prohibited employment discrimination based on sexual orientation only if such a proscription was contained in (a) the Constitution, or (b) a law passed by Congress. Scalia was very cognizant that the SCOTUS is not a back door legislature.
1
What people do in their private intimate lives outside of the workplace is not the employer's business.
However an employer has the right to require reasonable standards of dress inside the workplace.
9
@david
What, exactly, is a reasonable standard of dress? If a female who identifies as male come to work in an Armani suit, is that unreasonable?
@david, really? Does that mean that a company can require women to wear dresses, deeming pants "too masculine" for women? Because that's exactly where this issue was first raised. PriceWaterhouseCoopers fired a female employee for being "too masculine." That's sex discrimination.
What are "reasonable standards of dress"? Men wear suits and women wear dresses, heels, and panty hose? This is not about clothing. It's about who we are.
Plenty of people have been fired for being gay, regardless of the kinds of clothing they wear.
An employer does not have the right to discriminate against anyone on the basis of sex. If you tell me that I am too "butch" for the workplace, you are telling me that I don't fit your self-defined, arbitrary stereotype of what a woman should look like, or how she should behave.
Think this through. You are asking people to closet themselves at work. Is that fair? Is that just?
1
I admit it is hard to define what appropriate dress is.
I hope the Court rules for the three complainants.
If a trans female to male wants to wear to wear company required business attire fine.
Same if a trans male to female wants to wear a skirt or dress fine.
I think a company may ask a female to male trans not to wear lipstick or heavy makeup etc.
The Supreme Court is another body of our government that no one trusts to uphold the law or our constitution. The justices were award their lifetime appointments, because of their political position not because of their great legal minds. Their decisions seem to be biased and based on self-interest, rather than principles. These decisions are just an expedient way to accomplish and push their personal and political beliefs. The Supreme Court is tainted and most people view their decisions as tainted. To regain that trust, we need term limits and a non-partisan committee, who submits a nominee for consideration, based on their qualifications, rather than the political party in power, nominating justices who align with their agenda. Right now we have to suffer through decades of "the court leans to the right" or "the court leans to the left" until there is another opportunity for the Senate to "stack the court", and we get another political appointment.
1
Turn the tables: Could a gay business owner fire an employee for no other reason than being straight? Could a transgender business owner fire an employee for no other reason than being cisgender? It seems that Title VII would, and should, protect straight and cisgender persons, just as the discrimination in the cases before the court so clearly demonstrate that protection for gay and transgender employees is warranted.
7
If 'discrimination based on sexual orientation and transgender status' isn't discrimination on the basis of sex, what kind of discrimination is it? And "if Congress had meant to cover L.G.B.T. people, there would have been no need for states to address the question in their own laws, which some two dozen have done." -- There should have been no need for the states to do that. Because according to conservative philosophy, it doesn't matter what Congress intended; the only thing that matters is what they said in the law they passed.
1
In every progressive university, legions of gender studies and other social science students are taught that there is a distinction between sex and gender. By that "woke" standard, the solution here is to change the law, and not shoehorn language into something that it is not by judicial fiat.
5
On the transgender front, the washrooms issue is a problem even if it's the product of cultural conditioning.
It's not the same kind of issue as discrimination against trans and gay people simply for being who they are. That's a justice issue, the other is not.
2
How can anyone buy any argument from Trump that he is supportive of the Gay community?
Unless you see the wealthy as victims of repression, no group hoping it's voice will be heard should look to him for help.
1
My inalienable rights are not up for debate. I was born in this country and I am protected by the constitution. Period. End of story.
1
@Richard O
Wow. Very persuasive. I can't believe that the lawyers who argued this before SCOTUS didn't just say "Period. End of story." It's so convincing!
3
“Chief Justice John G. Roberts Jr. said he was concerned that a ruling from the Supreme Court in favor of the plaintiffs would not adequately protect employers with religious objections to same-sex relationship and transgender status.”
My feeling is that Roberts would have a hard time saying this is if was a Muslim employer firing only female employees for not wearing a headscarf at an accounting firm. Seems that religious freedom only exists if you have certain “religious” beliefs.
5
I, in my infinite wisdom, declare that "sex" means physical characteristics at birth and current sexual orientation. Therefore, you may not fire an employee who is male, female, gay, or bisexual. Persons who are changing their physical characteristics are not protected.
1
@Bob K.
I think you may be conflating genetic gender with sexual identity. There are some people whose genetic gender does not align with the rest of their being and many such people do seek reassignment of sexual identity.
I do not understand how laws can support firing on religious grounds. There are religious sects that don’t believe in hiring women but they are not allowed to discriminate in that way. That pretty much shows that religious exemptions should not be grounds for any sort of discrimination.
@Alexandra Hamilton
It works much better if you just take a Muslim employer. Somehow than it is suddenly clear to everyone that they should not discriminate based on their religious beliefs. It's funny how well it works.
The question before the court is really quite simple - does the 1964 law refer just to sex, a biological question, or sexual preference, a mental question. Certainly when written, it did not refer to sexual preference. If this is the case, then for the Supreme Court to rule in favor of the plaintiffs would amount to the court taking on the role of legislature. For me, I certainly do not want the court to become a legislature.
Perhaps more telling, if the 1964 law does include sexual preference, then why has Congress on multiple occasions tried to add "sexual preference" to the list of protected category? This indicates that even Congress does not think the 1964 law includes sexual preference as a protected class.
3
Like it or not, there are some jobs that will need exceptions.
A strip club employing dancers expects a certain sex. If the employee changes sex should he/ she still expect employment even though their services might be liked by a certain population?
Janitors responsible for female locker rooms?
I can think of many more. The question here is whether the justices should interpret Law differently than when it was written (exceptions are always provided based on the interpretation by Congress - which would be missing if the justices legislate from the bench). The outcome would be a legal mess leading to only further legislating from the bench to resolve the exceptions.
I don't understand why Congress can't simply get their act together and compromise on the Equality Act. The cost of all this legal drama is unnecessary when we all know we would not like to be discriminated against when it comes to ourselves.
4
@Kumar
Any act or ruling needs to protect jobs that reasonably require a person to be of a certain sex, for example people waxing intimate parts in a salon, rape crisis counselors, women's shelter employees, and obviously anything related to women's sports.
I think we can both affirm the right of transgender people to present with the superficial "gender role" or stereotype they feel most comfortable with, including using their chosen pronouns and the bathroom of their choice, while also legally acknowledging that biological sex does not change, the definition of "man" and "woman" does not change, and the few spaces that are meant only for women, for very good reasons related to our biological vulnerability and, for women in certain religious and ethnic traditions, modesty, remain female only.
2
In 1920, when the 19th Amendment was passed, the language used to guarantee the right to vote was to prohibit discrimination on account of sex. Here, the intent was to give women the right to vote, but gay and transgender people were neither denied the right to vote nor were specifically included. Title VII uses different language that states "on the basis of" sex. The word "account" derives from "counting" which is appropriate in terms of voting. The word "basis" derives from "foundation", which transcends appearance, biology or genetics.
1
The justices have a point when they suggest the House should come up with a clear legislative solution. The 1964 law was good for its time but it needs updating that only the legislature can really do.
24
@Alexandra Hamilton
It's not like the Senate has any responsibility...
There is a transgender woman who exercises at the same facility where I cycle. Do I feel threatened by her presence? Not one bit, even when we shower in adjacent stalls. People flatter themselves to think someone is interested in them when all they want to do is live their lives the way so-called "normal" people do. The majority of US citizens are not ultra religious so we should not have laws that reflect their sensibilities.
63
@Julie As someone who was sexually assaulted in a public bathroom, I am not comfortable with biological males being able to enter locker rooms and other spaces where women are vulnerable simply by claiming to be trans. I am not religious. I do know that predators will use any excuse they can find to gain access to vulnerable females.
15
@Erin Brewer Did the man who assaulted you pretend to be a woman in order to enter the bathroom? I'm sorry that you experienced something so awful, but it has nothing to do with trans people, which bathrooms they use or whether or not they can be fired for their identity. Predators don't need an excuse.
8
@Erin Brewer I lived in Europe where unisex public bathrooms are common, and I felt perfectly fine with being in the same space with biological males. I am sorry about your experience but you can’t dictate to the rest of the world on the basis of your personal trauma. Some women may feel vulnerable going out in the street or wearing revealing clothing but this does not mean we should all stay indoors or cover up.
3
Americans need to get used to the fact that the Supreme Court is now run by five extremely right-wing, activist, and very political Justices. They will be there for at least a generation. I want to again thank the Bernie or busters, Jill Stein voters, and "progressives" who just couldn't vote for Hillary Clinton because she was not sufficiently pure, for helping to elect Donald Trump at a critical time in our history. Hopefully, Trump won't be President much longer, a Democrat will be elected President in 2020, and Democrats may even take over the Senate, but those five Justices will be doing what they can to stop any progress for a long time.
140
There are many people, myself included, who agree with the opinions outlined in your post. But we need more if we are going to beat back this administration, its supporters and a deeply biased SCOTUS.
2
@jas2200
I feel your frustration. Totally. The day after the election I also heard proper say they "just couldn't" vote for Clinton. All these people thought of themselves as political savvy. Ha!
12
@jas2200
Questions: Did not Hillary win your popular-beauty contest vote but not the real college one? Isn't that why you have Trump?
4
People keep losing sight of the fact that these cases aren’t about what’s right or wrong and have nothing to do with Constitution (yet). They are solely about whether the term “sex” in a particular federal statute encompasses sexual orientation and sexual identity, rather than only sex as biologically determined at birth.
I absolutely believe LGBT people should be protected from discrimination, but as a lawyer, I think the plaintiffs have the weaker argument in the context of this specific statute.
The only question before the Supreme Court is whether congress intended to include LGBT people when it referred to “sex” when it passed this law in 1964. I think it’s pretty hard to say that the word “sex” was understood to include LGBT folks back then.
Luckily, there are alternatives: Congress can amend the statute (or pass a separate one) anytime or, if the SC rules against the plaintiffs, they will then simply file a case saying that, due to that ruling, TITLE VII is itself unconstitutional.
22
@L. Hoberman I disagree with your assessment. The word "sex" doesn't include LGBT folks, but when an LGBT person is fired for their sexual orientation, there is a discrimination against that person due to their sex. Because, as one justice put it, if that same person loved an opposite sex partner, they would not be discriminated against because they are the "right" sex/gender (in the employer's mind) in that situation. It's all about discriminating against the sex of a person in that context.
2
@L. Hoberman Thank you for this cogent comment. (not sarcasm.)
4
@L. Hoberman If it were that simple (and I am not saying that it should not be) than transgender issue would easily go the other way. A man that transitioned to a woman would be protected by that law. You are firing the person because they messed with their sex. In this context it is irrelevant whether you make a distinction between gender and sex. The only thing the person did is related to sex and you should have no right to fire them. But here suddenly it is not that simple. No the question becomes what about religious freedom of the employer and the moral fabric of the society, and the bathrooms, and the sports and everything else.
1
The Supreme Court conservatives need to think long and hard about the legacy of their branch and the decisions they make here and with regards to the upcoming abortion rights case. Trying to drag us back to the nineteenth century will motivate people in a way that I don't think we've seen in this country in a long time. Americans are generally less inclined to take to the streets, but a one-two takedown of civil rights protections for our LGBTQ community and giving states carte blanche to make abortions effectively unavailable, will surely change that. If the Dems take the White House, Senate and keep their majority in the House, we can expect that they might look to eliminate lifetime appointments for the Supreme Court, which is an idea that members of BOTH parties have supported.
8
What is interesting about the quotes in this article is that many seem to be talking about the social or political upheaval that might result from a Court decision. That is not the Court's business. If the decision is informed by questions of social upheaval that might result, then perhaps the Court should let our elected representatives make the laws about LGBTQ rights. The Court is supposed to interpret the law. Not issue decisions informed by predictions of social upheaval.
23
@Syliva : That's a slightly naive view, given how complex laws are and how subjective interpretation is.
For one thing, there is no consensus on why laws -- every law in a given society -- exist. Are they to protect the rights of property owners? Are they to protect the vulnerable from the unscrupulous? Are they to ensure the greatest good for the maximum number of people? In the US, some of all of the above, plus other motivations.
And, every time a judge denies, or grants, rights to some group, upheaval ensues -- no such thing as a decision that pleases both the right and the left.
In addition, ideas -- not facts, but ideas -- that are expressed in language are inherently imprecise to at least a small degree. Which is why many very bright people have such radically different views of whether LQBTQ persons can legally be discriminated against.
6
@Syliva
Of course the court has to consider the impact of its rulings. Consider that if the court hands down a ruling that creates all sorts of problems, including additional legal fallout, those issues eventually come back to the court in need of additional rulings. The court needs to be practical in that respect. In this case, if the court rules it is legally permissible to discriminate against gay citizens, it's going to open up a can of worms with regard to equal protection not to mention a lot of potential legal headaches
1
more importantly, what kind of "upheaval" do people think will happen? numerous countries already fully protect LGBTQ citizens with precisely zero upheaval.
2
If you don't define the word sex to include sexual acts (which is what truly bothers conservatives- they deplore sexual conduct between members of the same sex) but find that the Constitution prevents only discrimination based upon the sex you were born with (another problem with the transgender cases) then laws banning sexual acts between members of the same sex would not be unconstitutional? I guess making America great again means making America straight again. LGBTQ'S back to the closet. Unbelievable!
8
@Disillusioned But this seems to be not true. At the time the law was written many states had laws criminalizing adultery. Twenty-one states still do as does the US military. If the intent of the Law in question was meant to include acts of a sexual nature then surely it would have been used to overturn many of these.
Like it or not, it seems quite clear that the law was meant to protect people from being discriminated against because of who they are and not because of how they act.
That, then, opens the question as to what "who they are" means. Is it an obvious biological difference, akin to say skin color, or does it extend to attraction and feeling.
1
@Disillusioned
These cases aren't about constitutional rights but the meaning of Title VII of the Civil Rights Act. "Sex" doesn't appear in the Constitution, as far as I recall.
1
What does it mean that gay people have a right to marry, but can be fired if they do?
101
@Srinivu Many people have rights for which they can be fired.
Someone who publicly rants against persons of a certain race, who demands that they return to the country from whence they came (even if born here) have a legal right to say that. But should their employer decide that that public display of hatred would not be tolerated and fire that person they have no recourse to the Constitution
@Srinivu
It means never turn your back on the religious underbelly in America, including SCOTUS.
Watch out for the evangelical and Vatican's unseen but unceasing efforts to erode gay and lesbian rights despite legal protections, including the right to marry. Geez, where've we seen this before? The same ancient desert peasant cults and their endless efforts to repeal the constitutional right to an abortion since 1973.
4
@Bill You have a right to be lazy, but you can be fired for that. That's why we have protected categories (gender, religion, ethnicity, age). The argument really is about whether gay should be a protected category.
2
Who in the USA have not seen a L.G.B.T. person? The court needs ponder this fact!
10
The Justices' argument that sexual orientation is not about sex is ludicrous. If a man is fired because he has sex with a man, he is being fired because he is a MAN. The WOMAN in the next cubicle would not be fired for having sex with a man. (And vice versa, of course.) But then again, bigots rarely see anything logically.
80
@C Kelly The person is not being fired because he is a man, but because he is engaged in a same sex relationship. A woman engaged in a same sex relationship would also be fired. The prejudice here is not against males or females, but against people, whether they be male or female, in same sex relationships.
it's true that you have to "notice" whether someone is a man or a woman in order to tell whether or not he or she is engaged in same sex relationship, but the law does not prohibit noticing that someone has a protected characteristic. Title IX of the same law could hardly be enforced if we couldn't notice whether people on a particular sports team are male or female, for instance.
4
For pity's sake this is 2019, not 1919.
If this court legalises open discrimination against its American LGBT citizens, those citizens should seriously consider leaving the United States for saner countries. The hated and anger down there only seems to be getting worse and does not appear to be going away anytime soon.
Those LGBT Americans that feel unsafe and are considering Canada as a safer and saner country of choice should contact the Rainbow Railroad in Toronto, Ont. for information. We would welcome you here. We embrace productive and creative citizens, and those in between.
Unlike the States, Canada is not a melting pot, we are a mosaic. We rather like our mosaic as that is where the learning is.
If you do move to Canada we would expect you to become good citizens, taxpayers, respectful to your neighbours, regardless of their political, religious or non-religious views or their skin colour, and respect our laws. You receive bonus points in you can speak French. Not all francophones here live in Quebec. Oh, and do please leave the guns behind.
Bonne chance and good luck to you. Stay safe.
25
@On a Small Island Did you read the article? It clearly states the fact that it is presently legal to discriminate against individuals that might identify with one of the letters LGBT. And since it presently legal, the justices would not be "legalizing it." Can we please have some perspective?
@On a Small Island I'm a proud lefty-liberal who hates our conservative court but why are Canadian commentators always so insufferably smug?
And if I have to hear about the Canadian "mosaic" one more time and how it is sooo superior to a melting pot (bangs head against table)... Hey, in a melting pot everyone mixes and absorbs each other's culture. There's learning there too.
1
As the most religious advanced nation in the world, the United States is made up of people who are obsessed with interfering with the ability of others to live a free and fulfilled sex life. They all and we all need to heed the words of Hillary Clinton in the 2016 presidential campaign: "What difference, at this point, does it make?" Truly, whether it's man and man, woman and woman, a man becoming a woman, a woman becoming a man, what difference does it make? Make it easy on yourself---just accept everything and stop being judgmental.
29
@baldinoc
What if my religious convictions are such that I would have to fire someone if I learned they owned handguns or semi-automatic weapons? After all, my religious teaches pacifism, and those weapons are designed to kill or injure people.
1
@baldinoc hmmm, "stop being judgmental" you say. And yet you yourself are judging all those who disagree with you. Can we please stop pretending that the left is "tolerant" or humanist?
2
@Syliva
Then you can fire them. Gun owners, like LGBTQ people, are not protected under the statute
So-called "conservatives" will exploit the second amendment, which was written when muskets were the most advanced gun, to defend 21st century automatic weapons capable of killing dozens in seconds, but they'll strongly argue, with (ahem) straight faces, that the 1964 idea of "sex" must remain as it was intended at the time no matter how much progress has been made in understanding gay people. Once again they disingenuously bend the law to whatever is ideologically convenient.
106
It is shameful that this is even a subject of legal debate. How can it be reasonable to fire somebody because of what they do in the bedroom? If your employee is doing a good job, what difference does it make whether they are gay, straight, celibate, or into sex robots? And unless your job description involves modeling underwear, how does being transgender change your performance? It is a sign of the profound conservatism of American society that these cases are before the S.C. instead of being resolved by appropriate legislation that would prohibit discrimination on the basis of any feature unrelated to the job itself.
20
@Mor
To be fair, those aren't the questions the court is tasked with answering. The question to the court is whether THIS law prohibits discrimination on that basis. It's perfectly plausible to say "there ought to be a law ... but this isn't it".
1
What if two straight men got married? Could they be fired even though they are straight, just because they got married? Would that be considered discrimination based on sex? Even though what they did was entirely legal?
6
Clearly Justice Gorsuch already knew what he thought about the subject and didn't want any examples that might contradict his predetermined views. To Gorsuch, Pamela Karlin's hypothetical "Bill" could only have married a woman; to think otherwise was "absurd" - despite the Court's own ruling on same sex marriage. Let's hope that at least in this case precedent will not be at the mercy of identity politics.
2
So if we are to be officially stamped by SCOTUS as disenfranchised ONCE AGAIN, do we get some sort of break on the taxes we pay? Why should we support the salaries of 5 religious zealots that do not see it is right and just that we are fully enfranchised? And if we are so tainted - in their eyes - wouldn't they refuse our tax dollars as tainted too?
13
Having no idea why the US doesn't protect LGBT rights but protects religious rights?
33
@nh
Insult to injury, gays and lesbians pay taxes.
Religious corporations and groups are tax exempt and pay none - local, state and federal.
4
@nh Answer: Religious freedom is assured by the First Amendment. You were supposed to have learned that in Civics class, nh.
1
@nh
A good question best addressed to the Congress-monkeys who wrote this law.
Why isn't it illegal for anyone to be fired for their private, personal activity if it doesn't impact their job? Why even split hairs about whether gay or transgender people are a protected class? They are people with inherent rights that shouldn't have to be protected by any specific law.
34
@Robert Levine
Clear and Simple logic, why can't our Supreme Court recognize simple logic. Inherent rights are guaranteed and should not need to be qualified by some court.
1
Alito said, "Discriminating against someone because they are a man or a woman, he said, is not the same as discriminating against someone for being gay or lesbian." Alito is correct in the first part of his argument. Indeed, conservatives argue that men and women have no choice in choosing their gender. As they would argue, "This is how God created them". But the same holds for being gay or lesbian; they have no choice - this is how God created them. Thus, they have a right not to be discriminated against. But Alito holds a false and archaic view, i.e., being gay or lesbian is their personal choice. Presumably, he would go further by advocating conversion therapy "to make them normal".
11
@JerryV If it is a choice it would be fairly easy for Alito to prove the point, he would just have to choose to be gay for a day or two.
1
I'm wondering if, remarkably, the justices are going to see a clearer link between Ms. Stephen's case and established law on sex discrimination.
The legal argument is stronger for transgender folks: Ms. Stephens was fired explicitly for gender-based reasons, unlike the two gay plaintiffs who were fired because of their sexual orientation. (Of course, discrimination of any kind is morally unacceptable.)
I hope that any and all protections for LGBTQ folks are bolstered by these cases, but on both the legal merits and the real life circumstances, it is more important to protect transgender folks.
10
@Cousy The civil rights statute doesn't address "gender": it addresses "sex". As was pointed out by several justices today, Congress couldn't possibly have intended the legislation to mean when it was passed in 1964 what today's plaintiffs contend it means, as homosexuality - leave aside "trans-gendered" (which wasn't even a word in 1964) - was then considered a mental illness by the American Psychological Association.
Thus, as was also noted by several justices, the plaintiffs are asking the Court to legislate from the bench by ascribing to the law something Congress clearly couldn't have intended in 1964, but which it COULD have ascribed at any time since then simply by amending the law. Congress is free to amend the law tomorrow if it wishes.
6
@Stratman Congress in 1964 did not ascribe heterosexuals as a protected class either. If the conservatives have their way, it will come back to bite them, because it will then be perfectly legal for a gay employer to fire someone simply because they are heterosexual. Then watch them back pedal!
@Stratman I'm sorry but the idea that "Congress couldn't have intended" this reading of the law is just a red herring. As has been pointed out numerous times, sexual orientation *requires* consideration of biological sex. A man who loves men is fired because he is a *man* who loves men, not because he loves men. Read the law literally, as written, and you must find for the LGBTQ plaintiffs.
I'm looking forward to reading the transcript and listening to the recording of the oral arguments, but don't be surprised if Roberts is the swing vote. The arguments made by the plaintiff about a gay man losing his job for marrying Bill simply because he is a man and not a woman is a logical reading of sex discrimination. The sex based stereotypes argument is also persuasive. Ultimately, the Court needs a legal hook to hang its hat on so that it doesn't appear to be legislating from the bench. Plaintiffs' may have provided them that hook.
15
@Lj : "The arguments made by the plaintiff about a gay man losing his job for marrying Bill simply because he is a man and not a woman is a logical reading of sex discrimination. " Not if Sally would also lose her job for being married to a woman.
Firing for "sexual orientation" requires (bigoted) employers to know the biological sex of the employees before they can consider in which ways the employees "orient" themselves. It would be ridiculous to imagine a (bigoted) employer who fires any employee who loves men, regardless of the sex of the employee. It follows that the gay male employee is being fired because he is male *and* because he loves men, not just because he loves men. Thus the (bigoted) employer is discriminating at least in part based on sex, and the gender assumptions that come with sexual categories. The conservative justices are smart enough to understand this. If they vote against the LGBT complaint, it is clearly a willful misunderstanding, and they will have confirmed that for them politics and religion comes before logical application of the law as written.
35
Surely, there must be someone who owns a company that, just for fun, refuses to hire straight, cis people and would fire anyone who belonged to that community. Let's see how quickly law suits about discrimination against straight people would be filed.
26
@riley523
The Court will of course rule against extending civil rights to an entire class of Americans. Our history is doing precisely that, until we are confronted with the repugnant odor of what we've done, like the Blacks for example. The country will see what Republicans do here- violate a whole class of people's rights to exist equally, and vote them to the dustbin of history. As a queer, I elect to be your next societal scapegoat if it means waking citizens up to vote these bigots out of power.
5
@AG The trans person, Amiee Stevens could have decided to argue that sexual stereotypes are toxic and that she was fired because of the toxic streotypes inherent in her bosses demand that she adhere to his dress code. She didn't. She said she is eager to adhere to the women's dress code. Women established in the courts long ago that sexual stereotypes in the workplace were wrong. So Stevens does women no favor by arguing in favor of toxic sexual stereotypes.
4
For God's sake, if the intent of the law actually mattered to Conservatives they wouldn't be falling all over one another to let the NRA use the Second Amendment to defend the right to bear unregulated semi-automatic assault rifles!
The logical inconsistencies these people eruct are simply laughable.
116
People forget that gay marriage was a 5-4 decision in 2015 (Obergefell v Hodges)... and Kennedy has been replaced by Kavanaugh since.
It would’ve failed in this court today.
12
Why should one persons right be more valuable than another's if I am religious person and do want to hire or do work for a lgbtq person that is my right why should it be violated. Should a Muslim or Jewish restaurant be forced to serve pork because I only eat bacon of course not allow each their own.
3
@EAH It is not that the customer can tell the business what to sell, it is once a business decides to sell a particular service or product it should not be able to discriminate among customers. Religion has been used to discriminate against Catholics, Jews, Muslims, blacks, ... the list goes on. Religion is a poor excuse for any discrimination.
1
Alito said, "Discriminating against someone because they are a man or a woman, he said, is not the same as discriminating against someone for being gay or lesbian." That is the dumbest statement I have read in a log time. Further, Karlan gave excellent, real examples. They were not absurd.
55
I don't understand why Justice Gorsuch denigrated Ms. Karlan's example as absurd. When the law was passed, same-sex marriage wasn't the law of the land. Now it is. Therefore, a same-sex married couple that isn't given the same time-off privileges as other married couples is discriminatory.
124
@HKGuy
Harken back to those golden years when hard right gay-baiting Dick Cheney's daughter came out as a queer and he went... silent on his usual anti-queer quips. When it hits close to home, imposing discrimination ain't that important is it Mr. VP?
We don't allow discrimination against women but we do against queers because we like some discrimination? For a Court doing things in Jesus' name, it is oddly God forsaken.
15
@HKGuy The exact same reasoning was used at my work by my co-supervisor to NOT hire a woman into the IT department: He "didn't understand what she was talking about".
She was smart, spoke clearly, and answered the technical questions relevant to the job with no problem.
He just didn't want to hire a woman - and he resented the heck out of me because he didn't want to deal with women in the IT department at all. Fortune 500 company of about 18,000 employees.
Gorsuch was just coming up with an excuse to dismiss the lawyer's arguments, and it is even easier to do so when the lawyer is female because denigration is an acceptable way to dismiss what women say.
43
@HKGuy Does your employer provide Wedding Time Off? I think that is why the hypothetical situation was absurd, personally. People (if they are lucky) get PTO to use when they want to, assuming 2 weeks notice was provided. No? I have, at least, never heard of time off given for a wedding specifically.
3
That Congress did mean to include a non-biological definition of sex in Title VII could also be argued because the law did not specifically define a person's sex as only biologically determined. In addition, there is a subtle definitional difference between how "sex" is used in the 19th amendment, where "the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on 'account of' sex" and Title VII, where discrimination is prohibited on 'the basis of' sex. 'Account of' is used to introduce the reason for something, but 'basis of' is the underlying reason - or assumption. This inclusion of 'assumption' underpins Title VII's applicability to non-biological sex in that sex is not necessarily determined by the appearance of gender. So the plain meaning of these statutes does not necessarily hinge upon what we think was Congress' understanding of the meaning of sex when they wrote these laws, but in how the sex is defined by simply reading and understanding how the word sex is used in context of the sentence in which it appears.
4
The key issue on these types rulings is that the Supreme Court in the recent past has ruled in way that resembles more like "legislation" vs. "rulings." They were put into this position because Congress is not doing its job!
The court should remand all of these cases back to Congress and force correct and unambiguous language to be put in place by legislators, not judges. I thought Congress was occupied by a majority of lawyers who should be most able to craft proper language. Maybe they are failed lawyers?
7
Society moved forward but there is a minority of people given outsized voting rights. So as the country and world has moved forward the minority voters with their outsized representation make it impossible to actually legislate. So what happens is the states moved forward, the legislature failed to represent the people and instead represented the minority and we are stuck with the courts indirectly legislating or cherry picking based on their belief of what was compared to what is.
Top that with donors using such issues that don’t affect the wealthy as tools to control politics on the sly and here we are.
And saying they didn’t mean it in that time period isn’t legitimate to me. Show me were they directly said otherwise or defer towards the one that best protects all people. It’s not that hard and hand it back to congress.
We either stand for the proposition that EVERYONE in the U.S. has the same inalienable rights to fully participate in all aspects of our society, or we don't. If this Court fails to protect the LGBTQ community against discrimination, then EVERYONE who is not a white, male, fundamentalist christian needs to consider when this Court will allow THEIR fundamental rights to be circumscribed and constrained.
16
Seriously this should be a no-brainer.
1
Personally I have some sympathy for those on the Court who hold the position that it isn't the Court's job to read additional interpretations into a law that doesn't clearly include them. If Title VII is really supposed to include sexual orientation, it's the legislature's job to amend it so that it clearly does.
However, here in the real world, the legislature hasn't done anything since basically 1990, and McConnell's Senate doesn't seem likely to suddenly start doing their job anytime soon. Someone has to continue governing the country, and right now, the Court is the only body with the ability to do so. The lesson for those (like me) who feel strongly that all people should have basic civil rights is: VOTE for representatives (including senators) that share your opinion. DO NOT throw your vote away as a "protest" or a "symbolic position". VOTE.
And in the meantime, yes, the Court is going to have to do some legislating from the bench, until the actual legislature starts doing their job once more.
12
Stolen elections and similarly stolen supreme court seats do indeed have consequences.
In all likelihood, our activist conservative justices cannot wait to curtail the civil rights of LGBT persons. It pains me, just as it will to continue to hear them beat the drum of "originalism," as they continue to tear at the fabric of the nation--from abortion to voting rights, to the illegal imprisonment of the undocumented, the list goes on.
Every time the nation seems unhinged, just remember: the acidic influence of big business being able to create "alternative facts," and sink its fingers into the GOP in earnest came after the Citizens United ruling, when John Roberts came to the sensible conclusion that Google is as much a human as you or I, and has the same free speech rights...conservative jurisprudence has created this moment, and without a check on it, we will see the end of our constitutional system of government. It's just plain Orwellian as it stands.
9
If I were to follow the flawed logic of the justices, I should be able to fire a heterosexual male or female employee not because of their gender, but simply because they are straight. I would argue that the firing was solely based on the employee’s orientation and not their gender, which would therefore make it legal.
The court’s conservatives are doing their very best to ask questions meant to justify the inevitable ruling NOT to protect a citizen’s rights of equal protection. Surely they will also bring up the rational of freedom of religion, whereas I would prefer if they focused on freedom from religion. I’ve had my fill of religious zealots forcing their hypocritical morals on others.
31
Alito, stepping deftly into the Scalia Memorial Bizarro World Jurisprudence Spot begins by parsing kinds of discrimination, divining which ones are the good kind based on residual Originalist clairvoyance. And Conservative fairy dust.
We're off to a good start.
8
Ms. Karlan’s reliance on hypothetical situations seemed to irritate Justice Gorsuch, who said she was not helping her case by pointing to “absurd examples.”
I see: The real circumstances of non-hetero people are "absurd". Thanks, Justice Gorsuch, for your unbiased opinion.
40
@Timothy Samara Just what you'd expect from the son of Anne Gorsuch, who Reagan named to wreck the EPA. "Conservativism" is a big con--in both the New York and French vernaculars.
1
" Chief Justice Roberts seemed cautious about the prospect that the court would be extending new legal protections by expanding the definition of sex as it was written into the law. “How do we address that?” he asked."
It's not rocket science, but Roberts seems mystified. Roberts down the rabbit hole.
3
You wait and wait some more for equal protection and during the wait , you learn that far too many people fear that they might lose their places in the social pecking order ,no matter how low, if you are given access to protections which they feel are theirs alone. How pitiful.
4
The idea that the law was not meant to protect everyone from sex discrimination is what is absurd.
7
i would be very surprised if this discrimination is not due to religion.
4
McConnell stacked the Supreme Court when he refused to hold hearings on Merrick Garland. The Dems must return the favor post-2020.
12
@Stephen - I'd prefer we rein in the Senate's too-big latitude to make rules on a whim on responsibilities like voting on all Supreme Court nominations.
I'd like Mitch behind bars, but I don't want any Senate leader to pull this awful stunt again. He prevented the Senate from carrying out one of their Constitutional duties.
And if I thought we had the luxury of time, I would advocate for a more cautious approach as well. Sadly, we do not. That was squandered by the Supreme Court back in 2000 when they placed George W. Bush in the presidency. Now, we have a handful of years to turn the entire world economy around. Business as usual = the end of humanity.
I wonder if the absurd answer to this issue is to create a new religion that demands homosexuality or alt genders in order to be an adherent.
Surely employers can not discriminate based upon religious beliefs of individuals.
Then again, it is only Christianity that gets preferential treatment in the SCOTUS.
3
My goodness. These justices can sure be literally minded when it works in Republicans’ favor. When talking about the the Second Amendment and who’s considered a “person” for purposes of campaign donations.... not so much.
43
@JSD - aw, now you've gone and hurt ExxonMobil's feelings!
1
Deciding in favor of the employers, it would then automatically follow that LGBTQ employers could fire their straight employees solely on the basis of their heterosexuality, right?
Find the unintended consequences in this scene.
12
There is an utterly simple solution here. Why hasn’t anybody tried it?
Nancy Pelosi brings to the floor a motion to amend the relevant law(s) to include “sexual orientation” and “gender identification.”
Have a vote in the House. Naturally it’s passed, right?
Then move it to the Senate. It fails. Commence TV campaign against senators who voted it down.
Seems simple enough to me. So why haven’t I seen this happen in all the years since the Civil Rights era?
11
@Yeah - Her Emails Because I would be long dead before we would have a Senate and POTUS that would pass it.
False. For the first two years of Obama’s term, he had a Democrat majority in both houses of Congress.
And still no amendments to those laws.
Obama did everything by executive fiat, using regulations and presidential orders. That was a failure.
8
@Yeah - Her Emails
Because the outsized weight of the power of Republican Senators would ensure the issue never came to floor of the Senate. Do you really think the constituents of conservative Republican Senators would support the passage of such an amendment and try to pressure them to do so??
1
I'm old enough to remember Bowers v. Hardwick (1986), where the SC upheld the right of states to prohibit "sodomy" between consenting adults of the same sex. The decision was generally regarded by all as wrong both morally and legally. Seventeen years later, the court reversed itself with the Lawrence v. Texas case. Even the SC eventually catches up to how society moves. I expect something similar to unfold with this case.
4
@RS
As a queer, I'm fine with waiting and waiting and waiting while straight America debates and delays and decides I can live here too with equal rights. Take your time, please, and do feel free to call when you've decided what crumbs you'll throw this go 'round.
Bowers made the Court a laughing stock and cemented its reputation as a political institution uninterested in actual justice.
2
I'm the father of a wonderful trans son and have lived through the ups and downs of his coming to understand his identify. This can be difficult for others to understand - it was for me at first - but I've come to learn that it is very real and natural. I could not envision him another way now.
It pains me to think that the Justices could now deny my son some very basic rights. I hope before they make a decision that they get to meet a few trans people and that they endeavor to keep their minds and hearts open.
54
If my boss would never fire anyone because they were Catholic or Jewish - but would fire someone who converted between faiths ... how is the firing not "because of religion?"
10
@the dogfather
1. It would be firing "because of religion.
2. That has absolutely nothing to do with this case or discussion.
3
Certainly Justice Alito is well versed in the court's history, which is one of broadening the interpretation of laws made in the past to bring them up to present conditions and attitudes in society.
1
Canada doesn’t gave any problems protecting LGBT people in its laws.
4
A note to Justice Alito, who thinks the fathers (in 1964) passing a discrimination law weren't thinking of a future with people not acting in the Leave it to Beaver series -- did you think the Founding Fathers (all kneel) were thinking of women in Congress or a black man as President? Do you disapprove of such people clearly violating what YOU IMAGINE was the intent of the originators of the laws here, too?
18
@b fagan
But tis isn't about what the Founding Fathers thought. The issue is what was intended by the Civil Rights Act
1
If the despicable Trump Christians win this argument, all LGBT Americans should go on the government dole and allow the taxes of Trump's hate mongers to pay for their lifestyles. Much like Trump's farmers, but without the fear and hate.
2
You can rejigger the wording as much as you like it does not change the fact that discrimination against LGBTQ people for being LGBTQ is sex discrimination plain and simple.
Using grammar to make it seem like it is something else is just a grift.
16
@magicisnotreal
Title VII was created to protect all Americans. It does not break down to specify any particular group because of that obvious assumption.
The invention of a sub group so they can be denied this protection is an act of discrimination itself.
3
@magicisnotreal
The plain language of Title VII specifies particular groups. Further, to take just one example, "all Americans" includes people of various educational levels. Should we therefore have a problem with an employer specifying that it is looking for college graduates? (And don't tell me that a college degree is a "legitimate" requirement for the job in question, because that is just a subjective judgment by the employer that reasonable people might dispute in many cases, and it is often easy to find examples of qualified candidates who don't have that particular credential.)
3
@rella
If I cannot tell you what is obvious what can I tell you? You seem to already realize you are wrong.
The discrimination against a gay person because they are gay is sex discrimination. Calling it orientation does not change this fact.
Your opinion on the matter of who somebody else loves, simply should not affect anyone's career. Mind you own business and let people do the work that they have dedicated their lives to. Be kind. You never know, you might have a gay or bisexual child some day and your bigotry might make their life much harder in the future.
18
The US appears to be a special case vis-a-vis other western democracies. It's the only one which is trying to decide whether a basic human right can be discarded because it's not written into a specific law. But that same SOC in past has found obscure ways to interpret laws in favour of certain groups, like religions, despite the Constitution's Establishment clause. It's truly ironic that we in Canada, with no Establishment clause, don't have a problem keeping religion out of human right's decisions. Over half of our Prime Ministers have been practicing Catholics who don't try to impose their personal views on society at large. And the last Protestant one told his fellow Conservatives to not bring any of these controversial policies up in Parliament.
38
If you treat a woman who is in a relationship with another woman differently than a man who is in a relationship with a woman, that is discrimination based on someone’s gender. Technically speaking it is a pretty open and shut case that discrimination based on the gender of someone’s partner is sex discrimination. However, sexual orientation is clearly not what the government had in mind when it passed the Civil Rights Act. That is to say, the “spirit” of the law is decisively against applying Title VII to LGTB people.
A common refrain on the Left when arguing for sane gun laws is that the founders believed in the right to bear muskets, not modern assault rifles. Democrats argue that the spirit of the Second Amendment is being violated when used to justify wide access to modern weaponry. As a gay man I would love to have the Supreme Court rule in favor of LGBT protection in this case, but we can’t argue for the letter of the law in one instance and the spirit of the law in another, or we risk undermining both arguments.
13
@Thad
Hi Thad. Just one friendly counter point. The letter of the law of the 2nd amendment says 'A well regulated Militia, being necessary to the security of a free State...'.
So any weapons that are not fit/needed to be part of a 'well -regulated Militia' could well be argued to be excluded.
It's always driven me crazy that self-professed 'originalists' or 'textualists' have been happy to simply ignore half of what the 2nd amendment says in plain language.
That said, the entire history of the supreme court and it's rulings have been a push and pull between 'letter' and 'spirit' of law, and the meaning of the original text, and the acknowledgement that the world changes in ways the founders could never have imagined or anticipated.
And both sides have every issue have picked the side of those lines that best suited their purpose.
That's not necessarily a bad thing, just the fact that laws are made and interpreted by human beings. Maybe that unavoidable friction actually helps find a way towards a balance and some sort of 'truth'?
7
@Thad We don’t allow machine guns to be sold? Where’s your line?
2
@Thad
If you discriminate against this invented category of "orientation" is just as open and shut sex discrimination. To discriminate against someone for being gay is to discriminate against someone for whatever sex they were born as.
Take a look at the Archived version of the bill of rights. the fifth amendment seems to define the Militia as the Army, or if you like a version of the National Guard to me which removes this ridiculous assertion that it means any citizen who wants to own a gun.
Does the word "sex" mean "sexuality?" Does it mean "gender identity?" Does it mean "sexual orientation?"
The problem is there are now many terms, and the plantiffs here want to conflate the meaning of several of these terms. The best argument here is for "sex" and "gender identity," since they practically mean very similar things.
But for the other words, no, Title VII does not protect employment discrimination in that manner.
3
@Dave
But all issues about sexuality and gender intrinsically derive from suppositions based on physical biological) sex. Hence, whatever the words/terms now currently used, they all relate to "discrimination on the basis of sex".
2
Does the person's sexual orientation have any bearing on their job? I can MAYBE see the argument in the case of the funeral home employee, but it's a stretch.
I'll never understand how the party of individual freedoms and privacy rights (or so they say) can be so intrusive when it comes to perspectives they disagree with.
14
@Sally How do you maybe see the argument in the funeral home situation? I can't figure out why it would make a difference how my funeral director presented themselves.
4
“Congress had had the opportunity to write sexual orientation into the country’s nondiscrimination statutes ... such legislation is stalled in Congress now. If the court indeed found that sexual orientation was covered under the 1964 law, he said, it would open itself up to the criticism that it was “acting exactly like a legislature.””
Exactly.
We have one branch that writes laws and it’s not the Supreme Court. Nothing to do with intolerance towards lgbt people. You shouldn’t destroy the normal rules of government when you like the outcome - you have no idea what unintended consequences that may bring.
4
@Peter We now have a president that ignores laws and counts on SCOTUS to back his blatant attempt at turning this country into a dictatorship. The SC has already violated their boundaries when they 'elected' Bush to power. Your comments would mean more if in fact SCOTUS and the other two branches were doing their jobs, but it appears we are moving more toward anarchy than democracy or republic.
3
Discrimination based upon sexual orientation or gender identity is wrong and inconsistent with freedom. The best way to fix the problem might be for those in the states/cities where it is permitted to lobby their state legislatures/city councils. These federal Title VII cases do not seem likely to succeed.
2
As a gay man, with friends who are lesbian and transgender, I am sick to death of having to fight every few years against revanchist conservatives to justify our humanity and equality under the law, and the opportunities and protections that affords.
600
@Dominic It's not about whether discrimination against LBGT persons should be legal or not. The question is whether it's in the current statute, and whether Congress intended to outlaw such discrimination. The Court is not a super-legislature and should not be deciding issues better left to democratic processes.
20
@Dominic
You’ve missed the whole point as have many commenters here. The court doesn’t write laws, legislatures do.
15
@Peter
Legislatures write laws, but that does not imply that they are just laws. A read of US history shows the problems that result when legislatures write laws based not on logic, evidence, and a humanistic understanding of history, but on politics, superstition, ignorance, and hate.
It is appropriate for the courts to weigh-in on these issues, just as they would in other matters. When justice is denied under highly-partisan legislatures such as the one we have now, one that actively seeks to roll-back civil rights that are considered settled law, the courts offer an avenue for redress, and a check and balance between unrestrained political power.
27
Discrimination is discrimination. Period. Discussing all the different legal nuances misses the point. When you tell someone that they can’t do something because of who they are, it’s wrong. People might be offended by the fact that someone is gay. There’s nothing that can be done about that. But it’s their problem. They should not be allowed to make that another person’s problem, just like a religion can’t enforce its rules on the larger society.
126
@MsB Unfortunately there are many who disagree with your last sentence....a large segment of America believes that we are a "Christian nation" and disregard all others. Unfortunately also is the fact that religion has not been kept separated from our legislation and politics, and the party in power, the GOP, has bowed to the religious ideals of those who have the money and congregations to keep them in office.
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A quote by Samuel Alito about the pain experienced by those opposed to gay marriage, “I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools,” You wouldn't know that Alito is one of the most powerful people in the country whose one vote has often been used to help unleash (or justify and maintain) intense misery on some of the most vulnerable people in the society. Being labeled a bigot doesn't mean you aren't one.
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Why can't we just say no discrimination against human beings, period? Or is all men (women/people) created equal just a guideline?
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Trump diverts our attention with the impeachment bait while civil rights are under attack. When will we Dems ever focus?
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On the scene at the Supreme Court is Playwright/Theater Foundation Director / activist, Dr. Larry Myers. He is awaiting the ending of his new play. He interviews, observes, investigates & processes real life & history as it unfolds Since retirement from 40 years of university professor, Myers has confronted crises creatively via poetry & theater. He shares an informed sensibility inspiring & mentoring newer & younger writers here in Manhattan, in LA & San Francisco. Recently named playwright in residence for the Bay area's Lavender Lane environmental & elders concerns coalition , his work at the Pershing Square Climate conference is continued with a model work "hurricane hiccups/hemisphere hemorrhage& as well as the LGBTQIA stage play "....Living in Ellipses..." No retiring stay at home this dramatist/mentor is actively engaged & resonately responsive.
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LGBTQ have to endure grave injustices, yet SCOTUS is worried about offending antiquated religious belief. Jesus was a decent guy. He sat among the poor, thieves and prostitutes. The message has always been ALL are welcome at his table. Religious zealots defile this legacy. If God is telling them discrimination and hatred are the order of the day, perhaps we need to look elsewhere for a moral code.
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Interesting. My religion states that people are either man or woman and that sex outside of a heterosexual marriage is wrong. I don’t think I’m perfect or anything like that.
I believe in the American dream - all of us come together to share our values and together we respect our different opinions and values in an effort to have a functioning and diverse society. And because I am an American, who loves America, I bring my religious values to the discussion and ask that you consider them.
@Simple Your religious values sound wonderful and perfect... for you. The rest of us ask that you consider ours. Our values are that we should not judge others, that we should not stick our nose in others' private lives, that I should not get my nose out of joint because someone else has a relationship I can't understand that has nothing to do with me, and that we should all live and let live, loving all our neighbors as equals. At my church we worship this guy who taught us all this long ago... his name was Jesus.
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Still it's kind of like punishing people for how they were born.
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@SBJim Ain't no kind'a about it. That is exactly what it is.
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