Tuesday, June 16, 2020


The Civil Rights Act of 1964 prohibits discrimination in the workplace on the basis of, inter alia, (among other things) sex or blogger affiliation. 

After enough electronic paper to deforest an electronic forest, pleadings, briefs, amicus briefs, appendixes, bench briefs, ad Infinium, the issue in Bostock v. Georgia boiled down to this simple question: when the law was drafted in 1963-64, and the term sex was used, did it just mean male/female, or sexual orientation? 

Most people think it applied to sexual orientation. Conservatives, limited to the strict interpretation of the text, argued that sex meant male versus female in the context of discrimination. 
One fun fact of the case: One plaintiff worked as a skydiving instructor, until it was learned he was gay, and then his ripcord was pulled and he was fired. 

Justice Gorsuch wrote the majority opinion. Legal conservatives now want to impeach him. 
Gorsuch concedes that the term sex, as used in 1964, other than the extramarital escapades of President Johnson, referred to the biological orientation of the individual. So then that should be it-right? Case closed- fire all the gay people you want. Hurray and MAGA and pass the Champagne and condoms. 

But wait- because of "because of" there is more. Huh?  Let us elucidate. Gorsuch writes that because Congress used the phrase "because of sex" courts must apply a "but for test" which he says means change one thing at a time and see if the outcome changes.  Now "but" has intruded into a gay sex case. Conservatives cannot be happy with this grim turn of events.
There is more to the majority opinion, but frankly although we like the results (our ox having been gored) we cannot abide by the reasoning. Justice Gorsuch must have found himself a hot-yoga studio in DC, because he twists and turns the language of the statute, conceding that  that although "sex" as used in the statute simply and solely prohibited discriminating against someone because they were a man or a woman, it now means today (without- lord forbid, the court legislating such an outcome) much much more. It now protects people who engage in homosexuality, pansexuality, abstinence, monks, and those who peruse websites like "girls gone wild" and "underneath their robes".   

Gorsuch correctly writes that "Title VII's message is simple but momentous: An individual employee's sex is not relevant to the selection, evaluation, or compensation of employees." Somehow Gorsuch finds in that phrase the additional prohibition again an employee's sexual activities. It is not there- but perhaps in the words of his ideological hero Justice Douglas, it exists in the "penumbra" of the words. See Grisworld v. Connecticut, in which Douglas, writing for a 7-2 majority, "finds" a right to privacy, not specifically written, but hiding in the penumbra  in the amendments to the Constitution. Perhaps all it takes to be a great justice is a really big magnifying glass, the better to espy words not written, but floating in the penumbra of things. 

The dissent says a lot of mean things about the majority opinion, but Justice Alito's argument comes down to this: sex and sexual orientation are two different things and if Congress wanted to prohibit discrimination based on sexual orientation it would have said so. Unfortunately, Alito is right (for once). 

If a statute prohibited discrimination against people who played sports, that does not mean it prohibits discrimination against people who support a particular sports team. You root for the Dolphins, that means you are used to enduring pain- you're hired. You root for the Buffalo Sabres, and nobody knows who they are- you're fired.  Such a statute would prohibit preferential treatment to bowlers and runners but would not prohibit the justifiable goal of firing all employees who are Patriot fans.

So now perhaps your ox is gored. You like the result. You love the result. You cannot understand how we are criticizing the result. We are not. Run for Congress on the platform of passing legislation prohibiting discrimination based on sexual orientation, and you have our vote.  But unless you are a member of Justice Goruch's hot yoga studio and like downward dog, his opinion is deeply flawed.


Anonymous said...

From the Easy E's "Holed up in Maine" blog, pandemic thread- circa March 8:

"This is not a respiratory illness but a circulatory illness. The issue is not the lungs, but inflammation. Therefore I am recommending the use of a common and safe steroid- dexamethasone - and not remdesivir- as a front line treatment. I an certain that in three months the medical data will support this."

One again the Big Easy E shows why he is tops.


Anonymous said...

Nobody in 1963 thought that "sex" meant orientation, and you must know it. You progressives are just nuts. The end justifies the means, but look at it this way, you are being successful in intimidating public officials, not so bad.

Silent Cal Clarence Thomas Booyha! said...

Love the blog. Love the analysis. Keep it up.

Anonymous said...

Gorsuch and Roberts were intimidated? Have you ever listened to them speak? Get off the looney train bro.

Fox News said...

Where do we contact you to sign you up for commentary? Seriously.


A few more snippets adding to the Alito Dissent that I posted in the Comments section yesterday:

Alito’s dissent focused on the ordinary meaning of the statute’s words in 1964. “If every single living American had been surveyed in 1964, it would have been hard to find any who thought that discrimination because of sex meant discrimination because of sexual orientation—not to mention gender identity, a concept that was essentially unknown at the time,”.

In 1964, Alito said, homosexuality was thought to be a mental disorder and homosexual conduct was considered worthy of punishment. Sex reassignment surgeries weren’t performed until 1966 and it was considered by some physicians as either “severely neurotic” or “psychotic,”


Alito called the majority’s argument “breathtaking” in its “arrogance.” He wrote: “Textualists do not read statutes as if they were messages picked up by a powerful radio telescope from a distant and utterly unknown civilization.”

Gorsuch's majority opinion is even more out of tune with his own historical writings. Gorsuch once wrote:

... that a textualist should “strive (if humanly and so imperfectly) to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be.” “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.”

Then, somehow, Gorsuch pulls one out of his arse by claiming that the words "because of" give the court the means by which to ultimately find that Title VII was in fact violated with the firing of the three plaintiffs in these cases.

One has to only ask, why has Congress been attempting for the past five years to annually add the words "sexual orientation" to the law. At one time or another, the House has passed the bill; the Senate has passed the bill; but never have the two chambers done so in the same year.

Now, it appears, that, if you do run for Congress, (per Rumpole's suggestion), you won't need to campaign on the platform that you will support a change/amendment to the Civil Rights Act of 1964 and add the words "sexual orientation" to the law. You won't have to as Justice Gorsuch saved you the time.

Rumpole is right on this one.

Captain Out .....

Anonymous said...

Do any of you conservatives or republicans' out there really think it is OK to fire someone for being gay? If we can get married then, are we not just like you straight people?

I'm 65 and been with my partner over 35 years. Yup, we have both been treated poorly for our lifestyle.

Lately, it's cool to be gay and I see it all around me but, I don't hang out with redneck Trump supporters.

Anonymous said...

I think your sports team analogy is faulty.
A better analogy would be if both players liked the same team.

Woman likes having sex with men.
Man likes having sex with men.
Man is fired for it.
Woman isn't fired for it but a man would be? Discrimantion based on sex.

Anonymous said...

Lawyers still don't get it. Splitting hairs and taking decades to solve problems with your stare decisive and case and controversy. Neglecting real problems and now the chickens have come. And now an entire summer of protest and intellectual justification for the death penalty for DUI. PS: Why let a drunk driver his car out of the line to a parking space? Is this not a signal by the cop that he would not be arrested for DUI triggering his resistance to handcuffing?

Anonymous said...

Decision is good result, bud bad law. As to "T", bad result and bad law.

Anonymous said...

Rumpole, you must feel sick to your stomach — you’re on the side of Alito and Captain. THE WORST.

Anonymous said...

Textual, schmextual.

Anonymous said...

From the Sixth Floor, an upcoming novel, fictional, perhaps, detailed events, perhaps.

Judge, in flaps her hands in frustration saying “Don't you quote the law to me.”
Defense Counsel, “But Judge, my client is innocent, look at the false testimony.”
Judge, “I don't care about false testimony.”
Tony Soprano of the legal community struts into the Courtroom, standing in the back.
Judge, seeing Tony, “we need a recess, one hour for lunch, be back bu 1:30.”

Later in a quite corner at Garcia’s, Tony speaks, “I called you here, 'cause I want to tell you something. You want to remain a judge, right? When you came to me for help to stay a judge, I told you how I would call upon you for a favor, remember?”
Judge, “yes.”
Tony, “Good you understand! Now, I did not like what happened in court, understand? Need I say anymore?”
Judge, “No Tony, I understand.”
Tony, “Good, you keeping up with the program?”
Judge, "I’ve done all the steps, except to report doing the program.”
Tony, “You taking the meds they gave at the laughing academy?”
Judge, “Yes Tony, not the Narcon anymore, but still taking Diazepam for my anxiety.”
Tony, “Good, things would change if people found out about your problems and your stay at the laughing academy?”
Judge, “I understand Tony.”
Tony, “Good, we understand each other.”

Working on the next scene.

Anonymous said...

Roberts textualist "the words mean what they mean regardless of what was actually intended by the drafters" was nowhere to be found in king v Burwell when "an Exchange established by the State" was found to mean an exchange established by the feds. We all know what is going on here. The justices are choosing outcomes and creating pretend reasoning to justify. Duh!