Breaking Down The LGBTQ Decision: It's A Conservative-On-Conservative Cage Match!
God Bless Justice Neil Gorsuch! Not words we ever thought we'd be typing on this here heathen recipeblog. This morning's decision in Bostock v. Clayton County, Georgia is a HUGE win for gay and trans rights and we will take it!
But getting down into the nitty-gritty of this decision, which includes two lengthy dissents to the majority opinion, what you really got was 172 pages of conservatives arguing with each other about how to wield the power of the court as the Republican party gets further and further out of step with the rest of the country. Well, really 124 pages, plus a 48-page appendix to Alito's dissent to prove that actually everyone hated gays in 1964. Because he's a real sweetheart!
Should they tamp down on all this originalist stuff that will lead them to decisions that will look like Dred Scott fifty years from now? Should they stick to their guns and destroy the court's legitimacy? Or should they try to find some technical wheeze to justify retrograde decisions on social policy that hurt thousands of Americans? The answer is, yes, they should. And they should do it while tattooing the image of Justice Antonin Scalia all over their faces and accusing each other of pissing on the great man's corpse.
The majority opinion, authored by Justice Gorsuch and joined by Chief Justice John Roberts and the four liberal Justices, purports to interpret the plain meaning of the statute when it says that discrimination "on the basis of sex" includes discrimination based on sexual orientation or gender identity.
An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.
And while you and I might agree with that, from the standpoint of a purported textual originalist, it's a whopper. These are the same people who have insisted that you have to look at the INTENT of the people who drafted the laws, not interpret them using modern definitions. Gorsuch can say that he's just interpreting the longstanding meaning of the word "sex," but pretending that the drafters of the law in 1964 should have envisioned protections for transgender Americans as a natural consequence of passing this bill is a massive fudge.
Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren't thinking about many of the Act's consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters' imagination supply no reason to ignore the law's demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it's no contest. Only the written word is the law, and all persons are entitled to its benefit.
Justice Alito May Be A Raging Dick, But ...
Well, he may be a raging dick, but he ain't wrong when he says that "Discrimination 'because of sex' was not understood as having anything to do with discrimination because of sexual orientation or transgender status. Any such notion would have clashed in spectacular fashion with the societal norms of the day." Antonin Scalia, the OG textual originalist, embraced "the framers' intent" as a convenient way to repackage his rejection of civil rights decisions as high principle, and the histrionics over desecrating his sacred grave are a bit much.
The Court attempts to pass off its decision as the inevitable product of the textualist school of statutory interpretation championed by our late colleague Justice Scalia, but no one should be fooled. The Court's opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated––the theory that courts should "update" old statutes so that they better reflect the current values of society.
But Alito does have a point that they all agreed to worship the God of originalism, and now Gorsuch and Roberts are going all squishy about the plain meaning of the text. From a purely intellectual standpoint, Alito's right. Not that he's above a little intellectual fuckery himself. Check out this attempt to differentiate interracial marriage from gay marriage because, ummm, African Americans have suffered longstanding discrimination, unlike gay people?
So if an employer is happy to employ whites and blacks but will not employ any employee in an interracial relationship, how can it be said that the employer is discriminating against either whites or blacks "because of such individual's race"? This employer would be applying the same rule to all its employees regardless of their race. The answer is that this employer is discriminating on a ground that history tells us is a core form of race discrimination. "It would require absolute blindness to the history of racial discrimination in this country not to understand what is at stake in such cases . . . . A prohibition on 'racemixing' was . . . grounded in bigotry against a particular race and was an integral part of preserving the rigid hierarchical distinction that denominated members of the black race as inferior to whites." 883 F. 3d, at 158–159 (Lynch, J., dissenting). Discrimination because of sexual orientation is different. It cannot be regarded as a form of sex discrimination on the ground that applies in race cases since discrimination because of sexual orientation is not historically tied to a project that aims to subjugate either men or women. An employer who discriminates on this ground might be called "homophobic" or "transphobic," but not sexist.
Also, Justice Alito has thoughts on "necking," courtesy of the 1964 Random House Dictionary's alternate definitions of sex.
One definition, "to neck passionately," Random House Dictionary 1307 (def. 8), refers to sexual conduct that is not necessarily heterosexual. But can it be seriously argued that one of the aims of Title VII is to outlaw employment discrimination against employees, whether heterosexual or homosexual, who engage in necking?
His Honor is also AWARE OF THE GOOGLE.
It is curious to see this argument in an opinion that purports to apply the purest and highest form of textualism because the argument effectively amends the statutory text. Title VII prohibits discrimination because of sex itself, not everything that is related to, based on, or defined with reference to, "sex." Many things are related to sex. Think of all the nouns other than "orientation" that are commonly modified by the adjective "sexual." Some examples yielded by a quick computer search are "sexual harassment," "sexual assault, "sexual violence," "sexual intercourse," and "sexual content."
From which he infers that the majority opinion makes it illegal to refuse to hire someone as a babysitter who served time for rape. Because obviously gay Americans are the same as people convicted of sex crimes in Justice Alito's mind.
In fact, with the obligatory addition of several pages of fearmongering about bathroom bills and Catholic priests forced to officiate at gay weddings, Alito's and Thomas's whole dissent is an antique throwback to a time when homosexuality and transgenderism were seen as deviant, dangerous, and probably illegal. For which they make no apology, since they see the court as having no role in modernizing the common law.
Thus, when textualism is properly understood, it calls for an examination of the social context in which a statute was enacted because this may have an important bearing on what its words were understood to mean at the time of enactment. Textualists do not read statutes as if they were messages picked up by a powerful radio telescope from a distant and utterly unknown civilization. Statutes consist of communications between members of a particular linguistic community, one that existed in a particular place and at a particular time, and these communications must therefore be interpreted as they were understood by that community at that time.
It's gross. And also, it's the logical extension of what they all claimed to believe when they were bumping bits at those Federalist Society dinners. Never mind that the logical extension will have their statues pulled down fifty years from now as their own grandchildren shrink in horror from decisions which would have consigned gay and trans people to the status of second class citizens. This is what they all agreed in the Conservative Club House, dammit, and now Gorsuch and Roberts are welching on the deal!
Justice Kavanaugh May Also Be A Raging Dick, But ...
But Justice Alito is 70, and Justice Brett Kavanaugh is 55. He knows damn well that invocations to the golden olden days of institutionalized bigotry are not going to cut it. So he tries to split the baby in a totally different way. While expressing his own personal distaste for discrimination against gays and transgender persons, he claims his hands are tied due to that darned separation of powers.
"The policy arguments for amending Title VII are very weighty," Justice Kegstand acknowledges. "The Court has previously stated, and I fully agree, that gay and lesbian Americans 'cannot be treated as social outcasts or as inferior in dignity and worth.' Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm'n, 584 U. S. ___, ___ (2018) (slip op., at 9). But we are judges, not Members of Congress. And in Alexander Hamilton's words, federal judges exercise 'neither Force nor Will, but merely judgment.'"
He'd really like to help you all, but, he's pretty sure Congress will take care of that any minute now, so don't you worry your pretty little gay head about it.
For several decades, Congress has considered numerous bills to prohibit employment discrimination based on sexual orientation. But as noted above, although Congress has come close, it has not yet shouldered a bill over the legislative finish line.
Never mind that we still don't have an Equal Rights Amendment and that the GOP still has conversion therapy as part of its national platform. Surely a congressional fix is coming!
This little nugget is also HOOBOY.
Seneca Falls was not Stonewall. The women's rights movement was not (and is not) the gay rights movement, although many people obviously support or participate in both. So to think that sexual orientation discrimination is just a form of sex discrimination is not just a mistake of language and psychology, but also a mistake of history and sociology.
Indelible in the hippocampus is a man credibly accused of sexual assault delivering an impromptu lecture on WHAT IS WOMEN'S RIGHTS.
Whatever! This is a great day, and we're not letting that nasty bastard steal it from us. But amid the celebration, don't let the broader implications get lost. This is a generational fracturing of the conservative movement, between the absolutists who don't give a shit that their positions are jeopardizing the legitimacy of the court, and the younger, more rational figures who see that backwardass bigotry will be the death of the conservative movement. Conservatives in disarray, if you will!
Okay, that's a lot of words. HAPPY PRIDE, Y'ALL, and enjoy those conservative tears. Do you think it was a coincidence that Justice Ruth Bader Ginsburg, who can write circles around Justice Gorsuch, let him blarp out this awkward opinion during the BUT GORSUCH election season?
[Bostock v. Clayton County, Georgia]
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Liz Dye lives in Baltimore with her wonderful husband and a houseful of teenagers. When she isn't being mad about a thing on the internet, she's hiding in plain sight in the carpool line. She's the one wearing yoga pants glaring at her phone.