Justice Neil
Gorsuch was a student of John Finnis, foremost proponent of the “New Natural
Law Theory” (NNLT). Is that relevant to
understanding the Bostock decision? It might seem not, given that NNLT thinkers
like Robbie George (here
and here)
and Ryan
Anderson have strongly criticized Gorsuch’s reasoning.
On the other
hand, if you’re wondering: Where might someone learn a style of reasoning
so tortuous and sophistical that it can read an implicit reference to
sexual orientation and gender identity out of the word “sex” as it was
understood in 1964? And contradicting
his earlier position, into the bargain?
How about
from someone capable of reasoning
so tortuous and sophistical that it can read a condemnation of capital punishment as intrinsically evil out of a 2,000-year-old tradition that has consistently
affirmed capital punishment as intrinsically just? And despite having earlier
defended capital punishment himself?
Prof. Finnis
may in this case deplore the results, but he cannot disapprove of his pupil’s method:
jurisprudential chutzpah, weaponized in the service of overthrowing tradition.
The decision is correct. Sorry, Gorsuch is right. Scalia would’ve ruled exactly the same way. Point is simple - a man who engages in the same exact conduct with a woman as a man who does so with a man cannot be solely terminated due to that reason, while the latter can. It’s clearly related to sex. “Tradition” is not an excuse to poorly interpret the law.
ReplyDeleteAn unjust law is no law at all, Anonymous.
DeleteThe meaning of the text was that no one could be discriminated against because they are a man or because they are a woman. If a business discriminates against homosexual men *and* homosexual women, or if it discriminates against transgender people regardless of their biological sex, then that business is not treating men worse than women or vice versa.
DeleteIt's like the situation with marriage. The law didn't forbid marriage to homosexuals while allowing it for heterosexuals. Instead it allowed heterosexual marriage for everyone regardless of their sexual orientation, and it forbade homosexual marriage for everyone regardless of their sexual orientation. The law applied equally to homosexuals and heterosexuals.
Instead it allowed heterosexual marriage for everyone regardless of their sexual orientation, and it forbade homosexual marriage for everyone regardless of their sexual orientation. The law applied equally to homosexuals and heterosexuals.
DeleteExactly. And this just goes to show how vacuous the modern concept of equality is: you can use the concept to justify anything, depending on which features you deem relevant and which you deem irrelevant. But the principle of equality itself cannot determine which features should or should not be relevant.
Better to base our case on justice and natural law and forgo appeals to equality.
Agreed, Anon @ 7:56. Firing a topless female lifeguard or a man who consistently uses the female toilets would be unjust discrimination. I know which toilet I'm using from now on (with guaranteed impunity).
DeleteAnonymous,
DeleteAgreed, Anon @ 7:56. Firing a topless female lifeguard or a man who consistently uses the female toilets would be unjust discrimination. I know which toilet I'm using from now on (with guaranteed impunity).
So do I. It will be the same one you always have, because you're trying to spread baseless fears, not express freedom.
No, because Justice Scalia did not presume, as Gorsuch does, the new anthropology that denies that sex can be discerned as normal/natural or abnormal/unnatural. This is the flaw in your argument: one sort of attraction (opposite sex) is natural, the other is not, and the law does not prevent an employer from viewing the world through that lens.
DeleteFr Marin Fox, how can a particular sexual attraction be not "natural"?
DeleteSurly you realize that among other species in nature homosexual attraction occurs.
Why are you attracted to, say, vanilla, as opposed to chocolate, or whatever it is that you are attracted to? Is your particular attraction "natural", while a different attraction by some other is somehow "not natural"?
Isn't your attraction to X natural for you and another's attraction to Y also natural for that individual?
This strikes me as at heart more a right to work issue than a question of natural law. I don't see why it would even be relevant whether or not homosexuality or transgender identity is natural... it just seems like a modern day variation of firing a woman who had a child out of wedlock in the 19th century (my immediate thought was Fantine in Les Misérables). If everyone is already a sinner, why should any one individual's livelihood be tied to whether their personal circumstances are viewed as particularly problematic?
DeleteI understand questioning the reasoning of the opinion, since it is a bit strange, but I do not see why society should have the right to deny someone the ability to work for a living due to perceived unnaturalness.
@StardustyPsyche: I know you are sort of a querulant here, but what Fr means is that homosexuality (or really any kind of modern "orientation") is not ordered towards the natural purpose/end of sexuality, therefore it is unnatural. It doesn't mean that it can't be found in the natural world.
DeleteHowever, taking that something can be found among animals as an argument for human action, is a fallacy.
- John
John,
DeleteYes, I suspect you are likely right about Fr's meaning, and I surmised as much already, although I am no sure you are in a position to state what Fr means, certainly you can say what you would mean if you were to say what Fr said.
But how would either of you know that the natural purpose of sex is that it should only be engaged in for reproduction?
In natural selection homosexuality might serve other purposes that are beneficial to the overall survival of the species, such as bonding benefits or the strengthening of overall social coherence by diversification of social connections. Looking to other animals in nature is hardly a fallacy, it is a very informative process by which we can learn a great deal about ourselves because we are animals in nature just as all animals are.
Or, perhaps homosexuality is like mountain climbing, or playing chess, or deep sea diving, merely evolutionary spandrels, byproducts that were not specifically selected for but we find we are naturally capable of by virtue of our possessing traits that were selected for.
It is incoherent to state that an aspect of our nature is not natural. To do so states that N equals Not N, a clear example of self contradiction, and thus an incoherent assertion.
But how would either of you know that the natural purpose of sex is that it should only be engaged in for reproduction?
Delete1. If there is no need for reproduction, then there would be no sex. [Source: evolutionary biology]
2. The contrapositive is "if there is sex, then it is to fulfill the need for reproduction" [Source: definition of contrapositive]
3. If sex only exists to fulfill the need for reproduction, then sex is ordered to reproduction. [Source: modus ponens]
At least you didn't inform us of the gory details of sodomy snd how it's naturally oriented toward pleasure. See? You've grown! You animal.
and the law does not prevent an employer from viewing the world through that lens.
DeleteIf it is just to deny them work, then why don't you do what is humane and put them to death? Letting a group of sinners wallow around in homelessness until they die of natural causes is torture. And being a torturer is a sin.
1. If there is no need for reproduction, then there would be no sex. [Source: evolutionary biology]
Delete--Unfounded simplification. Sex can develop for multiple reasons.
2. The contrapositive is "if there is sex, then it is to fulfill the need for reproduction" [Source: definition of contrapositive]
--Because you have not justified your unidimensional analysis of sex the exclusiveness of your contrapositive is invalid.
3. If sex only exists to fulfill the need for reproduction, then sex is ordered to reproduction. [Source: modus ponens]
--Since your antecedent is false your consequent is false.
Sex can develop for multiple reasons.
DeleteWishful thinking. You want Evobio to tell you that sex can arise solely for the purpose of pleasure, but it can't.
BTO
Delete" You want Evobio to tell you that sex can arise solely"
You persist in your unidimensional thinking, therefore your attempt at argument remains invalid.
"Multiple reasons" need not be a choice of a single reason among many, nor need "multiple reasons" be multiple factors that were selected for simultaneously.
Human physiology is an aspect of human nature, which has developed from billions of years of biological evolution, including the complexities and spandrels of sexual reproduction.
It is incoherent to state that an aspect of human nature is not natural. That is the statement that N equals Not N, a clear self contradiction.
You need to find a way to make evobio sing that sex is really for emotional pairbonding not reproduction. Otherwise, we are correct in saying that it's not natural.
Delete"way to make evobio sing that sex is really for emotional pairbonding not reproduction. "
DeleteYou persist in single factor thinking, that sex must be X or Y, and cannot be both.
Sex is complicated with a number of factors acting in combination. Do you really need to have that explained to you?
Every aspect of sex that is a part of an individual's nature is necessarily natural, to claim otherwise is incoherent.
Every aspect of sex that is a part of an individual's nature is necessarily natural, to claim otherwise is incoherent.
DeleteWhat about paraphilia?
BalancedTryteOperators,
Delete1. If there is no need for reproduction, then there would be no sex. [Source: evolutionary biology]
Various bacteria and other one-celled animals engage in gene exchange procedures (their equivalent of sex) without needing it for reproduction. Thus, evolutionary biology declares your position to be false.
@One Brow
DeleteVarious bacteria and other one-celled animals engage in gene exchange procedures (their equivalent of sex)
Gene exchange procedures are not sex for the same reason a retrovirus who horizontally transferred gene elements into an ancestor of Homo sapiens sapiens isn't considered to have fucked your ancestor.
BalancedTryteOperators,
DeleteGene exchange procedures are not sex for the same reason a retrovirus who horizontally transferred gene elements into an ancestor of Homo sapiens sapiens isn't considered to have fucked your ancestor.
If you define exactly those acts that are for reproduction as "sex", then naturally "If there is no need for reproduction, then there would be no sex." becomes trivially true.
So, assuming you were not trying to make a trivially true statement, what sort of non-reproductive behaviors could potentially qualify as sex?
I have nothing to say for or against bacteria fucking, but that is just…not the contrapositive.
DeleteThe sentence was “If there is no need for reproduction, then there would be [sic] no sex.” The contrapositive has to be “If there would be sex, there is a need for reproduction.”
Or, written coherently: “If there is sex, there is a need for reproduction.” Right?
I have to say, that's pretty cold, but I do think the NNLT crowd will have to look in the mirror after this.
ReplyDelete"Reasonable people of goodwill can and do disagree about whether the logical and therefore foreseeable consequences of this piece of judicial legislation are good or bad, desirable or undesirable; but whether one favors or opposes legislation designed to produce those consequences, one should condemn the decision precisely because it is legislation."
ReplyDeletehttps://mirrorofjustice.blogs.com/mirrorofjustice/2020/06/the-bostock-case-and-the-rule-of-law.html
So, Robbie George is on record saying that reasonable people of good will can, apparently while remaining reasonable and of good will, regard the outcomes of this case as both good and desirable.
That is not what he is saying. Rather he is on record that it simply was not the "outcome of a case" at all but (usurped) legislation.
DeleteNo, you are wrong. It is what he is saying. Read his actual words:
Delete""Reasonable people of goodwill can and do disagree about whether the logical and therefore foreseeable consequences of this piece of judicial legislation are good or bad, desirable or undesirable."
He believes that some of the people who want the outcome (regardless of the means) are reasonable and of good will. Because good-willed, reasonable people can regard the erasure of sex as good and desirable, without thereby ceasing to be either good-willed or reasonable.
The quote is:
Delete"Reasonable people of goodwill can and do disagree about whether the logical and therefore foreseeable consequences of this piece of judicial legislation are good or bad, desirable or undesirable."
Highlights provided by me.
He continues:
"but whether one favors or opposes legislation designed to produce those consequences, one should condemn the decision precisely because it is legislation. The Court has not applied the law as written; it has re-written the law."
I wasn't saying you misquote, I was saying you misrepresent the meaning if you disregard the explicit appeal to condemn the decision whether one likes the content of the rule the Court created despite being a court and not the legislature.
The court has no excuse for its usurpation because it was not forced to deal with a lacuna in the law. In fact the legislature has considered to enact such a rule and it did reject to do so. Gorsuch and his accomplices have violated the separation of power that is the bedrock of the constitutional system of government.The Supreme Court has no authority to do so. There is a good reason that legislation is not done by the most unaccountable branch of government. Decisions like these will but delegitimize the Supreme Court and they are poison for the body politic.
No, really, you are not understanding me. I was not saying he supported the decision. I'm he doesn't. Procedure aside (legislation vs. judicial fiat), he thinks that good-willed, reasonable people disagree on the substantive issue that is at stake: whether the sex distinction should be obliterated in law and transgender and sexual identity should have the same protection as sex (male vs. female).
DeleteI'm saying that good-willed, reasonable people *don't* disagree on that. They *don't* desire the outcome here, and they don't seek that outcome by any means, legislative or otherwise. You're just missing my point. I am not speaking to whether he appeals to them to condemn the ruling on procedural grounds; that is *not* my point, which is why I'm not mentioning it.
Thanks for clearing that up, I obviously misunderstood what you said then.
DeleteUntil conservatives reject the legal positivist philosophy of 'originalism' as represented by Scalia, we should expect more of the same. Originalism is a mere 'procedural' conservatism, and as such it concedes the field to liberalism before the game has even begun.
ReplyDeleteI wish I could repeat this statement at every Federalist Society meeting into a 200m wide megaphone. Spot on!
DeleteIf the judiciary is all about interpreting law, not making law, what is wrong with originalism? I'm against legal positivism, but isn't that for the legislature? I would love some further reading on this! Its a topic I'm interested in.
DeleteThere's nothing wrong with originalism if it is subordinated to natural law and interpreted within such a framework. Unfortunately, the way it is typically formulated by its modern 'conservative' advocates is in a legal positivist manner. And Scalia was its most visible defender.
DeleteFor reading, I would suggest Zippy Catholic's blog. Just search for the relevant terms.
You deserve it for being ignorant enough to think voting D or R for prez matters one bit. There goes your last valid justification: "-b-b-b-b-ut the Dems might pack th-th-the supreme court!" It just sprouted wings and flew away!
ReplyDeleteFor once, we agree!
DeleteThe question is: what do conservatives do now that they know this? That's the real question.
1. Ban immigration. The easiest way for lobbyist to secure votes is to import slaves. Slaves have next-to-no free will so they'll do whatever their master thinks, because they're too lazy to think for themselves. Notice that the master doesn't even have to say anything: the slave by their free will will seek to conform to what they can infer to be the master's thoughts and wishes. This means that--even if they're Catholic--if their master is for gay marriage they'll eat every letter of the alphabet soup. They won't become logically consistent and become atheists because apostasy takes effort and we just covered the whole laziness bit. More generally speaking eliminate all forms of slave labor by a new and more expansive reading of the 13th amendment because slaves = saboteurs and instead train lazy Americans teenage men to get off their morbidly obease devans and do some work.
Delete2.a. Fibre optics + 5G in every home in order to...
2.b.... switch to liquid democracy, which forces voters to take responsibility for their bad legislation instead of sending a token to Washington D.C, New York, Hollywood, Palo Alto, or wherever it is legislation gets written these days.
3. Increased appreciation for the 2nd Amendment, by means of lucrative and lavish government handouts to all able-bodied men AND WOMEN citizens, because such implements are one of the few things God made equal to all genders. Good men and women with such implements everywhere will also solve the police problem and mentally ill assaulters problem (but I repeat myself...).
@Mister Geocon
DeleteRepentance. Sack cloth and ashes. Prayer, fasting and almsgiving. Those would all be good starts.
@BalancedTryteOperators
DeleteI think your solutions are either politically untenable or won't solve the problem.
On immigration, nobody is going to stop it. There's no principled reason that the conservatives can oppose it because, according to the new regime, nothing matters but Civil Rights. We need ever-increasing emancipation of everyone.
As for liquid democracy, I don't see how that'd make anyone responsible for anything. If anything, it'd make decision-making less responsible since there are even more people who are making decisions! The blame will be spread to everyone, so nobody will be punished. In a democracy, those who control public opinion control the voters, and they, in turn, control the democracy. The media, academia, HR departments, and the unelected government are the real forces behind this nonsense. How would liquid democracy punish them for this failure?
@Michael Humpherys
This is good advice. I will do so.
@BalancedTryteOperators
DeleteRegarding liquid democracy:. Interesting proposition that I have never heard of before. I would instantly invest my voting power in my Bishop, and never think of it again. That way, I'm absolved of all need to even think about voting, except perhaps when my Bishop changes.
@Unknown that is absolutely a valid option under liquid democracy. Your bishop could even make an electronic rubber stamp and vote uniformly for all delegates in his archdiocese.
Delete@BalancedTryreOperators:. Sure, but it does kinda counterbalance your claim that it "forces voters to take responsibility for their bad legislation".
Delete@Unknown perhaps it would be more accurate to say that it allows voters to take responsibility, because lobbying is contingent on the consent of the voters. If you delegate your votes to X, but X is getting schmoozed, the voters can take away their delegation and either vote for themselves or find a better person, even their best mate or their wife.
DeleteOne interesting fact is that even the dissents expressed the appropriateness of the decision in terms of results, and disagreed with it only in terms of derivation.
ReplyDeleteTry to keep your lies less obvious, please?
DeleteTitle VII of the Civil Rights Act of 1964 prohibits employment discrimination on any of five specified grounds: “race, color, religion, sex, [and] national origin.” 42 U. S. C. §2000e–2(a)(1). Neither “sexual orientation” nor “genderidentity” appears on that list. For the past 45 years, billshave been introduced in Congress to add “sexual orientation” to the list,1 and in recent years, bills have included“gender identity” as well.2 But to date, none has passed both Houses.
Last year, the House of Representatives passed a bill that would amend Title VII by defining sex discrimination to include both “sexual orientation” and “gender identity,” H. R. 5, 116th Cong., 1st Sess. (2019), but the bill has stalled in the Senate. An alternative bill, H. R. 5331, 116th Cong., 1st Sess. (2019), would add similar prohibitions but contains provisions to protect religious liberty.3 This bill remains before a House Subcommittee.
Because no such amendment of Title VII has been enacted in accordance with the requirements in the Constitution (passage in both Houses and presentment to the President, Art. I, §7, cl. 2), Title VII’s prohibition of discrimination because of “sex” still means what it has always meant. But the Court is not deterred by these constitutional niceties. Usurping the constitutional authority ofthe other branches, the Court has essentially taken H. R. 5’s provision on employment discrimination and issued it under the guise of statutory interpretation.4 A more brazen abuse of our authority to interpret statutes is hard to recall.
(Alito dissent p. 2-3)
Keep Calm and Carry On,
DeleteI am always hope that, one of these days, you will reply to a post with something that indicates you actually care about intelligent discussion and accurate information. Alas, today was not that day. Since you did manage to quote a part of Alito's dissent that focused on the derivation (since that's over 95% of the opinion, it would be hard to miss, even for you), I will fill in the part that expressed the appropriateness of the results for you.
From Alito's dissent, shortly after the part you quoted:
Many will applaud today’s decision because they agree on policy grounds with the Court’s updating of Title VII. But the question in these cases is not whether discrimination because of sexual orientation or gender identity should be outlawed. The question is whether Congress did that in 1964.
Near the end of the opinion:
The updating desire to which the Court succumbs no doubt arises from humane and generous impulses. Today, many Americans know individuals who are gay, lesbian, or transgender and want them to be treated with the dignity, consideration, and fairness that everyone deserves.
I apologize for implying you lied. Your reply made obvious that you simply are not well versed in jurisprudence. To assume malice was wrong.
DeleteYour conclusion that "even the dissents expressed the appropriateness of the decision in terms of results" however stays wrong.
Both quotes you present actually prove the opposite of your assertion:
As for the first quote please pay attention to the subject of the sentence:
"Many will applaud" (no doubt you are among their number) the decision "because they agree on policy grounds with the Court’s updating of Title VI"
I hope you will agree that it is not Alito and Thomas.
As for the second quote, acknowledging an "impulse" as not evil is not the same as saying to follow that impulse is worthy of applause.
For example, the impulse to give alms is humane and genereous. Yet robbing someone in order to get the means to do so is not. Asserting the first in no way implies that robbery is acceptable.
(Knowing you, you will now try and say how terrible it is to say robbery and being gay are the same. To avoid such a desperate sophistical maneuver let me be blunt and point out that it simply is a demonstration that your logic is fallacious because we have at least one counter example.)
Perhaps you meant to say that the neither dissent contains anything that implies a law that is enacted by the legislature to add "sexual orientation" would be null and void? Clearly that is not a decision that was before the court because that is not, expressly not, what the legislature did. In fact the legislature has deliberately not added "sexual orientation" as protected and judges should confine their opinion to the case at hand and avoid dicta. It would appear that "conservative" judges are much better at avoiding dicta than their "liberal" (or more appropriately "activist") colleagues.
Keep Calm and Carry On,
DeleteHonestly, you miss the point so regularly and predictably that one might suspect it was deliberate. How else could you possibly miss this sentence:
Today, many Americans know individuals who are gay, lesbian, or transgender and want them to be treated with the dignity, consideration, and fairness that everyone deserves.
While I would not speculate on the policy grounds Alito and Thomas would approve of, and I'm not very interested in your speculation, Alito penned (along with his other quoted words) that LGBTQ individuals deserve dignity, consideration, and fairness, and Thomas signed this opinion stating thus.
Even strict conservatives needn't disagree that those people deserve to be treated with dignity and fairness, they only disagree with what precisely that entails. Even if we assume that Alito meant this statement as anything more than an unobjectionable banality, asserting that these persons should be treated fairly and with dignity in no way implies that he agrees with the results of the legislation.
DeleteCantus,
DeleteIn what sort of world does fair and dignified treatment include being dismissed from a job because you love a person your boss has no connection with, but nevertheless does not want you to love?
That display of moving the goalposts is truly something to behold!
DeleteWhen you are done substituting "humans have to be treated with dignity" for "the policy legislated by the court" it is hard to tell whether the goalposts are still in the same galaxy.
But perhaps your main goal wasn't to move the goalposts but to poison the well by insinuating that everyone disagreeing with your policy prescription wants to deny people dignity?
Transparent sophisms whatever is the answer to that question. You are to be pitied.
Keep Calm and Carry On,
DeleteBut perhaps your main goal ...
I wash I had some expectation that you would honestly address what my original point was. It was certainly no that Alito supported "the policy legislated by the court", because I acknowledged he opposed how the court did, aka the 'legislation".
"One interesting fact is that even the dissents expressed the appropriateness of the decision in terms of results, and disagreed with it only in terms of derivation."
Nor do you seem to disagree. Alito supported the result of treatment with dignity, and opposed the derivation in the way the statute was interpreted.
In what sort of world does fair and dignified treatment include being dismissed from a job because you love a person your boss has no connection with, but nevertheless does not want you to love?
DeleteTranslating "you love" into the intended "have sex with": A world in which, for example, the job itself entails (and its official description states) teaching (in both word and example) conformity with the Catholic Church's belief that same-sex sexual behavior is intrinsically immoral and contradicts true sexual love.
Or a world in which, for example, an employer personally objects to non-married employees pretend to the rights to sexual intimacy that only married people have a right to, and doesn't want to surround himself with people whose immoral behavior that they talk about in the work-place he rightly and justly finds offensive. I.E. behavior in the work-place that causes him justifiably to not want them in his work-place.
Tony,
DeleteI guarantee you that, if you never have sex with said person, telling people you love someone homosexually will result in basically the same treatment you would received if you were physically involved; while having a homosexual partner that you were not romantically involved with, especially if you were in a heterosexual marriage, would be treated less harshly. I did indeed mean "love", not "have sex with".
That said, from the rest of your first paragraph, the SCOTUS ruling is not binding on organizations with specific religious purposes, in the same manner most non-discrimination statues don't apply to them.
From your second paragraph, forbidding people from sharing sexual details in the workplace is a goal I can support, as long as it is applied universally. AFAICT, it will go a long way to curbing sexual harassment generally.
One Brow,
Deleteyes, everyone agrees with your motte argument "humans are to be treated with dignity."
Which of course was not your original point.
You claimed that "the dissents expressed the appropriateness of the decision in terms of results" which is patently false.
It is false technically, because a dissent is not "concurring in the judgment" not even "concurring in the judgment in part" but simply dissenting which means they voted against the decision.
That is the opposite of expressing the appropriateness of the result.
The usurpation of the legislative function by the third branch is not a mere trifle. It compromises the constitutional Republic. And while the legislature may certainly enact a law that protects against unjust discrimination because of sexual orientation no other branch can legitimately do that.
Keep Calm and Carry On,
DeleteThat was precisely my original point. You must have quite the ego if you think you can successfully change my intentions when the words are certainly plain enough.
It is false technically, because a dissent is not "concurring in the judgment" not even "concurring in the judgment in part" but simply dissenting which means they voted against the decision.
Exactly. They disagreed with how the decision was arrived at, aka, the derivation of this decision. As we both agree, SCOTUS concerns itself at least as much with the method of arriving at a position as much as the correctness of the position.
That is the opposite of expressing the appropriateness of the result.
The result of this decision is to require that Americans be treated with "the dignity, consideration, and fairness that everyone deserves.".
I mean, do you think "result" is some sort of official legal term that means "opinion" or "judgement"? In legal parlance, it's a best a slang term that refers to the outcome of the case, not any of the particulars involved in the case. I didn't say Alito supported Gorsuch's opinion, nor did I say he supported the judgement of the court. I said he "expressed the appropriateness of the decision in terms of results", a position you state (incorrectly) that everyone agrees with.
If you really want to prove me wrong, find a sentence in Alito opinion that supports the moral correctness, as opposed to legality, of firing people for homosexuality.
"One Brow" and "Keep Calm and Carry On" (If you don't mind, I'll address you as OB and KCCO, for convenience's sake),
DeleteI was following (loosely) your conversation with some interest. I think I see where the two of you are coming from - the opposite side of the galaxy. :)
On the one hand, I agree with OB that all Justices share the impulse to treat "individuals who are gay, lesbian, or transgender" with "the dignity, consideration, and fairness that everyone deserves." On the other hand, I think Justice Alito is saying 1) the consequences of the Court's decision are unpredictable, and 2) even if they are, they do not justify the unconstitutional and undemocratic, as Justice Scalia would put it, means used by the Court. I think that was KCCO's point, if I understand it correctly.
Nemo,
DeleteI agree with your assessment.
@Nemo – yes.
DeleteAs Alito put it "Usurping the constitutional authority of the other branches, the Court has essentially taken H. R. 5’s provision on employment discrimination and issued it under the guise of statutory interpretation" - which means the Court robbed the Congress of its power to legislate and the President of his veto.
@One Brow - now you demand "to prove me wrong, find a sentence in Alito opinion that supports the moral correctness, as opposed to legality, of firing people for homosexuality." Indeed such a pronouncement would suffice to disprove your claim "the dissents expressed the appropriateness of the […] results", but it is not necessary. It is as if you claimed that "the audience applauded" and declare to prove that they did not one had to show that they hissed and booed.
I'm sure anyone interested will read and form their own opinion about this exchange.
Keep Calm and Carry On,
DeleteI made no demands of you, and find your analogy inapt and based on the false characterizations you have engaged in from the beginning.
Someone did read, form their own opinion about our exchange, and summarize it well.
KCCO and OB:
DeleteI guess I qualify as an "objective observer", knowing neither of you personally. I need some clarification and help from you to "form my own opinion about your exchange" (and satisfy my curiosity).
What do each of you think would be Justice Alito's "truth serum" answer, if he were asked these yes-no questions:
1. Does the firing of Bostock constitute discrimination based on sex?
2. Does the firing of Bostock constitute discrimination based on sexual orientation?
3. If you were a District Judge, would you decide in Bostock's favor?
What do each of you think would be Justice Alito's "truth serum" answer, if he were asked these yes-no questions:
Delete1. Does the firing of Bostock constitute discrimination based on sex?
Alito would answer "no".
From his dissent:
«But the question in these cases is not whether discrimination because of sexual orientation or gender identity should be outlawed. The question is whether Congress did that in 1964.
It indisputably did not.» (Alito p.4)
«the question (…) comes down to this: if an individual (…) shows that (…) sexual orientation or gender identity was a “motivating factor” (…) is that enough to establish that the employer discriminated “because of . . . sex”? (…) The answers to those questions must be no, unless discrimination because of sexual orientation or gender identity inherently constitutes discrimination because of sex. The Court attempts to prove that point, and it argues, not merely that the terms of Title VII can be interpreted that way but that they cannot reasonably be interpreted any other way. According to the Court, the text is unambiguous. (…)
The Court’s argument is not only arrogant, it is wrong. It fails on its own terms. “Sex,” “sexual orientation,” and “gender identity” are different concepts, as the Court concedes. » (Alito p. 6-7)
2. Does the firing of Bostock constitute discrimination based on sexual orientation?
Alito would answer "yes" (on the basis of the facts before the Supreme Court in the Bostock case).
3. If you were a District Judge, would you decide in Bostock's favor?
Alito would answer "no"(on the basis of the facts before the Supreme Court, the law as written, and applicable pre-Bostock precedent)
«until Title VII is amended to add sexual orientation as a prohibited ground, this is a view that an employer is permitted to implement. As noted, other than prohibiting discrimination on any of five specified grounds, “race, color, religion, sex, [and] national origin.” 42 U. S. C. §2000e–2(a)(1), Title VII allows employers to decide whether two employees are “materially identical.” Even idiosyncratic criteria are permitted; if an employer thinks that Scorpios make bad employees, the employer can refuse to hire Scorpios. Such a policy would be unfair and foolish, but under Title VII, it is permitted. And until Title VII is amended, so is a policy against employing gays, lesbians, or transgender individuals.» (Alito p. 15)
I agree with the answers of Keep Calm and Carry On here.
DeleteKCCO and OB,
DeleteThank you both for your response, and KCCO for the detailed explanation. In return, I'll give you my "opinion", FWIW. I mean it as a peacemaking effort, nothing more.
It seems to me you are in substantial agreement with one another. Your dispute results from the different ways you use and understand words, i.e. semantics. Speaking as one not good with words, I've had my share of frustration and failures trying to have constructive conversations in public forums like this one. I've learned that asking honest questions, instead of assuming the intent and meaning of another, goes a long way toward avoiding misunderstanding and having fruitful exchanges. This is also what "treating everyone with dignity" means in practice.
This mostly overlooks what the debate is about. That Hot Air article completely and entirely misses the point. This case turns on the method to be used in statutory interpretation.
ReplyDeleteYou may think to determine the meaning of a statute, you should appeal to the debates that occurred at the time, the intentions of legislators, and the particular applications legislators had in mind. But this is exactly what Scalia's textualism rules out. Scalia was clear that the intention of legislators when they pass laws is not what we should be governed by. And SCOTUS has adopted Scalia's methodology.
It is no objection to the textualist that a law be applied in ways legislators did not intend, or even that they would be horrified by. The statute sets forth a rule, which is determined by the text of the statute alone. Whether that rule may be applied beyond the intention of the legislators or is socially disruptive is not relevant, for the textualist.
The phrase being interpreted is "because of sex." Many commentators seem to think the ambiguous term here is "sex", but they are mistaken. For Gorsuch, "sex" refers to biological sex. The controversy is over the meaning of "because of". Gorsuch interprets this as "but-for" causation: given an individual, if their biological sex were different, would they have suffered the same negative consequences? If A is fired because he is married to B (a man), and A would not have been fired had he been biologically female, then A's sex is a but-for cause of his being fired.
To contest Bostock's argumentation requires a re-evaluation of the textualist method. And to regard the reasoning as tortured is simply to not have read or understood Gorsuch's decision. If it errs, it errs on the side of simplicity, and requires greater subtlety (as Anderson argues). But people should read the opinion first: Gorsuch anticipates and dispatches most of the objections people are raising.
But if you read Scalia's A Matter of Interpretation, textualism wasn't his only method; it was also original understanding. That is, what the general public can be reasonably held to have understood when the law was enacted. This is why Scalia strongly dissented in Obergefell. The text's literal meaning is further restricted by what it was understood to mean by the People.
Delete> But if you read Scalia's A Matter of Interpretation, textualism wasn't his only method; it was also original understanding.
Delete"Original understanding" is extremely vague. Textualism does not purport to interpret statutes in light of how legislators intend a statute to be used.
As Scalia put it:
> "A legal system that determines the meaning of laws on the basis of what was meant rather than what was said is similarly tyrannical. It is the law that governs, not the intent of the lawgiver."
Scalia emphatically rejects the idea that the legislators original intended meaning, which may have been expressed in floor debates or the legislative record, controls how a statute should be interpreted. He's been enormously influential in that respect.
The legal question, for the textualist, is emphatically not whether legislators intended to permit, say, transgender bathrooms. Courts are not tasked with establishing what situations legislators intended to change and being the agents of that change.
Rather, the question is what rule or test is promulgated by the text of the statute, and the criteria is not the factual intent of the legislators but the "plain meaning" of the words.
Textualism has the consequence that, once the rule is determined, it may be applied in ways legislators did not intend. That inconsistency that may arise between the originally envisaged effect of the law and the literal words on the page is the differentiating characteristics of textualism.
That sounds like the most classic definition of Lawful Stupid that I've ever seen. I admit that I know nothing about law, but the idea that we only need to implement the letter of the law and ignore the spirit of it smacks of rank idiocy. Similarly, the idea that later legislators can pull out of a law things that manifestly were never intended and are demonstrably foreign to the drafters of that law also seems ridiculous. It reminds me of "textual higher critics" who try to spin a belief in reincarnation into St. Paul even though St. Paul manifestly did not believe in reincarnation.
Delete@Thomas Cothran
ReplyDeleteI know what textualism is, do you know what original understanding is? Scalia explicates on it as much as he does on textualism, and he lays down principles on how one can determine the original understanding. In fact, if you read Obergefell you'll see how he applied those principles in his dissent. It isn't "vague" at all.
If you're going to cite Scalia, cite his whole hermeneutic. He was not one-dimensional.
Bill,
DeleteI've had my fair share of Scalia since law school. Originalism did not, for Scalia, mean letting the intent of the legislators determine the meaning of a statute or Constitutional provision. In fact, in the course of explaining originalism, Scalia said:
> What I look for in the Constitution is precisely what I look for in a statute: the original meaning of the text, not what the original draftsmen intended.
And:
> I reject intent of the legislature as the proper criterion of the law.
Scalia did not mean that the original intent of legislators determines what a statute means. What he means is that, in defining the rule or test promulgated by the statute, words should be construed in their common meaning at the time of the writing (e.g., "sex" meant "biological sex" in 1964, as Gorsuch argues). He could not have been more consistent or insistent on that point. He was not, like Robert Bork, an intentionalist.
When textualists talk about the meaning of a statute, they do not mean its anticipated usage or its social effect. It does not mean figuring out what kind of change lawmakers mean to effect. It does not require determining what situations the lawmakers imagined in drafting the law. It does not mean laws may not have effects contrary to what legislators would have wanted.
The meaning of a law is the rule or legal test it establishes. In this case, the test is whether one (i) suffers a negative consequence (ii) one would not have suffered if (iii) one had a different biological sex. Every term in that test (discrimination, "because of", "sex") is determined by its common usage in 1964. What was unanticipated is the consequences of that test.
@Thomas Cothran
DeleteYour reply makes it clear that you don't have a sweet clue what originalism is, even after it's explained to you. I NEVER said that it's determining the intent of the legislature and you know it.
Bill,
DeleteSed contra, you seem to think that originalism is about statutory interpretation, when it is not: it is a theory of Constitutional interpretation.
Scalia:
> The theory of originalism treats a constitution like a statute, and gives it the meaning that its words were understood to bear at the time they were promulgated.
This was, of course, not a case about the Constitution, so invoking originalism is a bit like carrying a tennis racket onto a basketball court.
But, were you to object that you meant "original meaning", compare my summary with Scalia's above:
> [I]n defining the rule or test promulgated by the statute, words should be construed in their common meaning at the time of the writing.
Thomas, are you serious?
DeleteTo say that "originalism treats a constitution like a statute, and gives it the meaning that its words were understood to bear at the time they were promulgated" clearly says that the method of interpreting a statute is the appropriate method of interpreting the constitution.
Using your image you could say that Scalia says interpreting a statute and interpreting the constitution are the same sport (only the constitution is on a higher level), and therefore (basically) the same rules apply.
(There are of course differences, for example: when a statute cannot be interpreted in a way that complies with the constitution it is unconstitutional and void, not the other way around.)
**Sigh**
DeleteThomas Cothran writes:
This was, of course, not a case about the Constitution, so invoking originalism is a bit like carrying a tennis racket onto a basketball court.
You said this after you quoted Justice Scalia:
The theory of originalism treats a constitution like a statute, and gives it the meaning that its words were understood to bear at the time they were promulgated.
In other words, method behind originalism is the method behind statutory interpretation. The originalist judge must determine how the text was understood at the time it was enacted. The personal intentions of the legislators are irrelevant, and yet you continued to affix legislative intent to originalism. Now, you add to your confusion by imagining a difference between statutory and constitutional interpretation.
If you really knew what you were talking about, you would see that Scalia would interpret the statute in question the same way he would interpret the Constitution. As a textualist, he would determine the definitions of the words, and as an originalist, he would determine how said words were understood upon enactment.
An illustration Judge Bork used was a 51-49 Senate vote banning the sale of automatic weapons. If two senators subsequently stated that they intended to ban the use of automatic weapons (thus theoretically overturning the Senate vote), their objections would be ignored. "Sale" they said and "sale" it is.
For more, check out Scalia's Reading Law: The Interpretation of Legal Texts.
Man alive!
I think I disagree with the reasonings of philosophers you cite and the hints of reasoning you gave. Gorsuch's reasoning is, I accept, not philosophically valid, but it is based on past precedents in the Bostock v. Clayton County Case.
ReplyDeletePast precedents that are based on bad logic should be voided by the Supreme Court by new decisions that are based on good logic. They should not defend past errors merely because some prior Court decision addressed the same issue. I allow that there is room for some nuance on this, such as leaving a de minimus error in place based on long-standing precedent, in order to address a more important issue. I allow also that there is room for a later Court to be informed about the meaning of the law (and the Constitution) by what a prior Court has said on the issue. But the meaning of law does not imply that a later Court is bound by the prior determinations of the earlier justices of that same Court even when they are in error. To insist on that they are is to hold legal positivism, which is bad philosophy.
DeleteI think you are oversimplifying the issue.
DeleteThe past rulings that forced a civil or criminal liability on people cannot be easily ethically overturned for that would be a gross injustice to the people who were charged under those rulings. An exception may be if the past ruling was controversial because it means that though people wanted it overturned, they just did not have political power. Otherwise, it is bad for liberals and conservatives to fight it out in the court where normal people become criminally liable or not based on which side has the majority.
But not only that, it is not just the job of judges to uphold law. It is the job of people too.
Bad logic in this blogpost. —All the heretics have read and interpreted the Bible! —So, the Author of the Bible is an heretic, or He inspired them.
ReplyDeleteWhere did you find that? I'm sorry, the only place I was able to find this "bad logic" was your comment. Can you quote what Feser said that you think is equivalent to your example of fallacious reasoning?
DeleteThen they interpreted the Bible badly. Like the law can be interpreted badly. That's the point.
DeleteAnd the "plain meaning" of "sex" was …? As determined by what definitional principles? This decision reflects nothing textual or original regarding the statute at issue, it reflects only the tiring deceit of someone who abandoned any idea of determining what the truth of the law was, as passed by the legislature, and applying that truthfully to the case at hand. The only originalist part is that the opinion, as drafted, originated in the mind of Gorsuch (I presume he actually penned it), not in the law. Gorsuch means toward his end betrayed his role as a judge, and he's tried to wordsmith his way to covering that deceit in order to impose his prudential judgment on the body politic, which is simply a judge Kennedy repeat. Gorsuch is laying his groundwork, like the precursor decisions to Obergefell. What comes next is going to be worse.
ReplyDeleteGorsuch:
Delete> we proceed on the assumption that “sex” [refers] only to biological distinctions between male and female.
"because nothing in our approach [to determining the meaning and application of the statute prohibiting discrimination on the basis of sex] turns on the outcome [of the parties dispute about what 'sex' means] we proceed on the assumption that 'sex' signified what the employers suggest, referring only to biological distinctions between male and female." I find this puzzling. In order to understand and apply the law we need not determine what a term in the law means, we will just assume it is what one of the parties says it means because ... textualism? I know Gorsuch's stated justifications, or rationalizations, for taking that approach (unnecessary because the employees conceded it as an alternative position for the sake of an argument and Gorsuch proposes that he can decide how the law applies without deciding what the law is on the conceded point). But what is the truth of the law regarding the meaning of "sex"? And why is Gorsuch avoiding deciding that question, particularly since the concession is only an alternative position? He could legitimately answer the question, but he exercises his discretion not to. Why? Is it too difficult to tell us what the meaning of "sex" is for purposes of deciding what sex-based discrimination is?
ReplyDeleteAs for the merits of Gorsuch's approach, Justice Alito addresses that, but of course he thinks it actually is necessary to opine what the word "sex" means for purposes of determining how the prohibition against discrimination of the basis of sex is to be understood and applied. Again, I am just puzzling over this. I understand that an intelligent ivy league trained lawyer like Gorsuch can perform the mental and lingual gymnastics necessary to convince himself and others that firing a male for having sexual intercourse with his wife at work presents no plausible case of sex discrimination because the male's sex is not involved but firing a male for having sexual intercourse with another male at work presents a plausible case of sex discrimination because the male's sex is involved. It's all about categories and controlling the question, as are most if not all equal protection cases. And clever lawyers can frame that question as much as necessary to make the favored answer virtually inevitable. But what is the truth of the law? Or perhaps I should stop looking for the truth of the law and just focus on winning positions and the rationale necessary to get there?
I really do not like questioning Gorsuch's motives; I just don't see his purported constitutional construction as a sufficient veneer to protect them from sticking out a bit, no matter how well executed the attempt.
I wish I could upvote your essay 100 times. So very rarely are these cases about the truth of the actual, or even common sense, but instead they are clever word games that everyone knows exist merely to give 'cover' for pre-determined goals.
Delete"...truth of the actual law..."
DeleteThanks. Not sure, but it certainly appears that Gorsuch avoided stating the truth because it made it easier for him to sneak the sex as choice concept into the meaning of sex under the statute. Once that was in, he could maintain the fog with examples. Which raises a question that occurred to me regarding Dr. Feser's article on the daughters of lust, including spiritual blindness, etc. I do not recall any discussion whether those consequences follow for someone who may not be engaged in or pursuing, but merely approving of or otherwise justifying, illicit sexual behavior. It's not difficult to imagine that spiritual blindness in such matters would spill over into one's reasoning on legal matters, even if not consciously so. I have no insight on Gorsuch there, I'm just wondering, which perhaps I should not.
Delete“Where might someone learn a style of reasoning so tortuous and sophistical that it can read an implicit reference to sexual orientation and gender identity out of the word “sex” as it was understood in 1964?”
ReplyDeleteThat is not what Gorsuch did. Read his majority opinion: “because the employees concede the point for argument’s sake, we proceed on the assumption that ‘sex‘ signified what the employers suggest, referring only to biological distinctions between male and female” (p. 5).
Gorsuch’s view is that Title VII and previous case history supply a straightforward test for whether an employer violates statutory law. When you apply the test to the case of an employer who fires someone for being gay or transgender, the answer is clearly “yes,” even when “sex” is understood in the limited way above.
Actually he did; he just hid it by misdirection, hence Dr. Feser's reference to "implicit reference." Also in play is the subtle separation between status and action in sexual matters, though it is a hidden issue. Compare Gorsuch's examples with Justice Alito's examples.
DeleteNo. There is not even an “implicit reference.” Show me otherwise.
DeleteNor does the difference between “status” and “action” play any role in the majority’s decision. Gorsuch argues that Title VII supplies a straightforward test for whether sex discrimination occurred: was sex a “but-for” cause of the employer’s decision? Nothing more to it. You may reasonably disagree about whether this is what Title VII really says; but don’t kid yourself that there are “hidden issue[s]” at play in Gorsuch’s straightforward argument.
Alito’s dissent is worthless. On p. 10 he declares the most important argument in the majority opinion “a mystery” – that is, he suggests he does not understand it. Then he proves he does not understand it in an inept attempt to knock it down.
The main point Alito, Anderston, et al. make is that a policy against, for example, hiring gay job applicants can be implemented without knowing the applicants’ sex, and therefore is not sex discrimination. But the inference is invalid: even if an employer’s hiring criterion can be implemented without knowing an applicants’ sex, the employer can be guilty of sex discrimination. Call, for example, a person “goy” who is “either a woman with children or lazy,” and suppose an employer refuses to hire “goy” applicants. That policy, like one against hiring gay people, can be implemented without knowing the applicants’ sex – but it is indisputably sex discrimination.
«Alito’s dissent is worthless. On p. 10 he declares the most important argument in the majority opinion “a mystery” – that is, he suggests he does not understand it.» (Anonymous at 11:05AM)
DeleteAt least you got the page reference correct. The rest, not so much. Let's look at what Alito actually said.
«How this hypothetical proves the Court’s point is a mystery.» (Alito p. 10)
The hypothetical - according to you "the most important argument in the majority opinion" - was this:
«"Suppose an employer’s application form offered a single box to check if the applicant is either black or Catholic. If the employer refuses to hire anyone who checks that box, would we conclude the employer has complied with Title VII, so long as it studiously avoids learning any particular applicant’s race or religion? Of course not." Ante, at 18.» (Alito p. 10 citing Gorsuch's majority opinion)
Alito proceeds to explain why it is not a valid argument (demonstrating that he does understand the argument)
«A person who checked that box would presumably be black, Catholic, or both, and refusing to hire an applicant because of race or religion is prohibited by Title VII. Rejecting applicants who checked a box indicating that they are homosexual is entirely different because it is impossible to tell from that answer whether an applicant is male or female.» (Alito p. 10)
Gorsuch's hypothetical box can truthfully only be left unchecked if the applicant is neither black or Catholic, which means that while we do not know which prohibited criterion underlies the decision to not hire the applicant checking the box we know it is at least one.
The policy behind that box is discriminatory because it treats blacks different from non-blacks and Catholics different from non-Catholics, and its implementation discriminates against those individuals affected by the policy because of at least one criterion in violation of Title VII.
Consider another hypothetical box. It is to be checked if the applicant is "black or non-black". That would produce no information at all about the race/color of the applicant, and if the only information about the applicant as to race/color the employer has is the checked box, it is impossible for that employer to discriminate against the applicant because of race/color.
That box would be analogous to the "homosexual" box because it enhances the information about the race/color of the applicant in the same way the "homosexual" box does enhance knowledge of the sex of the applicant.
Gorsuch's hypothetical would be strongest if the box to be checked inquires about being in an intimate relationship with a person of a different race, because basically everyone agrees that that is racial discrimination although people of every race are equally affected. Alito deals with this argument convincingly: «The answer is that this employer is discriminating on aground that history tells us is a core form of race discrimination.18 » (Alito p. 20) and explains in the footnote «18Notably, Title VII recognizes that in light of history distinctions on the basis of race are always disadvantageous, but it permits certain distinctions based on sex. Title 42 U. S. C. §2000e–2(e)(1) allows for “instances where religion, sex, or national origin is a bona fide occupationalqualification reasonably necessary to the normal operation of [a] particular business or enterprise.” Race is wholly absent from this list. » (Alito p. 20-21)
And let us not forget that this is not an argument the majority opinion makes.
Keep Calm and Carry On, I’ll take this piece by piece.
Delete> “Gorsuch's hypothetical box can truthfully only be left unchecked if the applicant is neither black or Catholic, which means that while we do not know which prohibited criterion underlies the decision to not hire the applicant checking the box we know it is at least one.”
Yes.
> “The policy behind that box is discriminatory because it treats blacks different from non-blacks and Catholics different from non-Catholics.”
Yes.
> “Consider another hypothetical box. It is to be checked if the applicant is ‘black or non-black.’ That would produce no information at all about the race/color of the applicant …”
Yes.
> “… and if the only information about the applicant as to race/color the employer has is the checked box, it is impossible for that employer to discriminate against the applicant because of race/color.”
Yes, the “black or non-black” box is not discriminatory. But you’re trying to set up the following invalid inference: “If the employer does not know the applicant’s race, then it is impossible for the employer to discriminate against the applicant because of race.” We’ve already seen why it’s invalid. Suppose that an application form consists only of the “black or Catholic” box, that a black applicant checks it, and that the employer therefore rejects the applicant. The hypothesis (“The employer does not know the applicant’s race”) is then true, but the conclusion (“it is impossible for the employer to discriminate against the applicant because of race”) is false.
> “That box would be analogous to the ‘homosexual‘ box because it enhances the information about the race/color of the applicant in the same way the ‘homosexual’ box does enhance knowledge of the sex of the applicant.”
The “homosexual” box and the “black or non-black” box are analogous insofar as they don’t tell the employer the sex/race of the applicant. They are also analogous to the discriminatory “black or Catholic” box, which doesn’t tell the employer the race/religion of the applicant. So what are you trying to say?
Thank you for your response. We agree on a lot, and I'm really thankful that you point out where you think I'm making a mistake.
DeleteI'm beginning to think that maybe the terms "knowledge" and "know" are responsible for some of our difficulties - while positive knowledge that an individual is black is sufficient to make discrimination against that individual on basis of color possible, it is also possible to discriminate on the basis of color with less specific knowledge.
I haven't the time to provide a better explanation now, but I'll try and explain what I'm trying to say later today.
Title VII prohibits certain actions if they are improperly motivated. That is not in dispute in any of the cases Gorsuch quotes. In University of Tex. Southwestern Medical Center v. Nassar Kennedy delivers the opinion of the court. He recapitulates
DeleteIn its 1989 decision in Price Waterhouse, the Court sought to explain the causation standard imposed by this language. It addressed in particular what it means for an action to be taken “because of ” an individual's race, religion, or nationality. Although no opinion in that case commanded a majority, six Justices did agree that a plaintiff could prevail on a claim of status-based discrimination if he or she could show that one of the prohibited traits was a “motivating” or “substantial” factor in the employer's decision. (…) If the plaintiff made that showing, the burden of persuasion would shift to the employer, which could escape liability if it could prove that it would have taken the same employment action in the absence of all discriminatory animus. (…) In other words, the employer had to show that a discriminatory motive was not the but-for cause of the adverse employment action. (p. 348, citations and emphases omitted, emphases added)
Justice Ginsburg, dissenting, writes that
(t)o establish discrimination, all agree, the complaining party need show only that race, color, religion, sex, or national origin was “a motivating factor” in an employer's adverse action; an employer's proof that “other factors also motivated the [action]” will not defeat the discrimination claim. § 2000e–2(m). But a retaliation claim, the Court insists, must meet a stricter standard: The claim will fail unless the complainant shows “but-for” causation, i. e., that the employer would not have taken the adverse employment action but for a design to retaliate. (Ginsburg p. 364 emphases added) .
(part 2 follows)
(part 2)
DeleteIn the simplest form of discrimination because of race/color an employer telling the truth would admit that he would have hired an individual employee if he were not, for example, black.
In this case, the color of the individual is clearly a motive for the decision to refuse to hire. As a matter of fact, in this hypothetical case it is the only motive.
Now let's assume this same racist employer wants to comply with the law, not because he ceases to be a racist but out of fear of consequences. Is that possible?
Yes, if - and only if - this hypothetical unreformed racist can make sure the decision to hire is not influenced by the applicant's race/color.
Our racist employer could follow the example of his idol Harvey Dent and always toss a coin. Because the result of the coin toss is independent of the race/color of the applicant, whatever the result of the coin toss is, any failure to hire was not "because of" race, but the coin toss.
But if the racist wants to hire qualified applicants and not be at the mercy of blind chance? How could he avoid to discriminate? By eliminating any information about the race or color of the applicant from consideration. If he has no idea whether the applicant is black or not the applicant's color cannot be a motive for his decision.
Now the question becomes: is it possible to discriminate because of race/color without this immediate knowledge?
Using the following rule (or a similar algorithm) to determine whether the applicant is hired or not would be discriminatory while artificially avoiding any immediate knowledge of the race of the applicant: Q is "1" if the applicant is qualified for the job and "0" when he is not. R is "0" if the applicant is black and "1" if he is not.
If Q x R is 0 the applicant shall not be hired.
A qualified black candidate would have been hired "but for" his race/color, and as long as the employer knows that the policy he instituted works that way, the only feasible reason to implement this policy in the first place is the intent to effect the discriminatory result. If, on the other hand, the employer does not know that if the applicant is black he will never be hired due to this policy, he would not violate the law. (The employer would have a very hard time convincing any court that he was indeed that oblivious).
To discriminate because of race one must know the race of the applicant, or artificially (and intentionally) avoid that knowledge while using the information all the same.
A similar argument would allow to conclude that the requisite knowledge does not need to be certain - for example, if the racist employer decides to not hire anyone from Detroit, Michigan because of the high percentage of blacks living there, the knowledge element for motivation "by race" would be satisfied.
(I realize I still need to explain why the black/Catholic box is not analogous to the homosexual and black/non-black boxes in the one respect relevant for discrimination)
DeleteIf we analyze the black/Catholic box the main problem seems to be that both parts of the disjunction refer to a trait of the applicant that may not adversly influence the decision to hire.
However, if we change our assumption about the employer using this box from "he is prejudiced against blacks and Catholics" to "he prefers blacks and hates Catholics" that particular box would cease to be problematic. (It would also cease to make any sense, of course, and that in a way demonstrates that the only reason to add just such a box to the form that makes any sense is to gain knowledge about the presence of at least one disqualifying criterion in order to be able to discriminate accordingly).
Sexual orientation is different from sex, as Gorsuch admits, and can be plainly seen by the fact that we can easily categorize men and women as homosexual without doing violence to the English language. If anything, the tortured way to substitute "either a man that is sexually attracted to other men or a woman that is sexually attracted to other women" for "homosexual" does violence to the English language. It certainly is not the ordinary way to express the concept.
But if one were to substitute this, as Gorsuch suggests, the instruction for the "homosexual box" would be "check this box if you are male and sexually attracted to males or if you are a female and sexually attracted to females" - The but for analysis would change one thing at a time.
In this case it is, according to the accepted meaning of "sex" as binary male/female or man/woman. However, you need to change all instances of "male" to "female" and vice versa, otherwise you would change the sex of the applicant and his or her sexual orientation at the same time (which the Court said are two different things/concepts).
So, either he changes two things at once – but that would violate the "change one thing at a time" rule of the "but for" test –
or he only changes one thing at a time and then the result does not change when the thing changed is the sex, and it does change when the thing changed is the sexual orientation.
That is what Alito's example (Alito, slip opinion p. 16-17) is about.
The discharged employees have one thing in common. It is not biological sex, attraction to men, or attraction to women. It is attraction to members of their own sex—in a word, sexual orientation. And that, we can infer, is the employer’s real motive."
And, for completeness sake, the black/non-black box is simply absurd as it serves no conceivable purpose under any circumstance - in thst respect it is different from the black/Catholic box that is only absurd if the one using it loves the one and hates the other property.
DeleteKeep Calm and Carry On,
DeleteSo, either he changes two things at once – but that would violate the "change one thing at a time" rule of the "but for" test –
or he only changes one thing at a time and then the result does not change when the thing changed is the sex, and it does change when the thing changed is the sexual orientation.
What if both the male and female are bisexual? There there is no change in orientation, just in sex.
One Brow,
DeleteTrue.
I'm not sure what you think that proves?
If we look at the "both employees are bisexual" one thing is clear: the employer cannot discriminate because of sexual orientation (between these two employees) because they are actually no differences there. Ergo the employer either does not discriminate at all (if he randomly picked one employee to fire) or the employer discriminated because of sex (if he picked because of the only difference between the employees that to his mind at least is relevant at all).
In any case this shows that there can be cases of discrimination because of sex ("S") that are not also cases of discrimination because of sexual orientation ("O"), it does not show that each case of O is a case of S.
Keep Calm and Carry On,
DeleteI'm not sure what you think that proves?
That it's not the orientation people are being fired for, but the action itself. Homosexual men who choose to marry women instead aren't in any more danger of being fired than heterosexual men who marry women.
In any case this shows that there can be cases of discrimination because of sex ("S") that are not also cases of discrimination because of sexual orientation ("O"), it does not show that each case of O is a case of S.
Is any case truly a case of O, or a response to an action that may or may not indicate O?
Textualism giveth and textualism taketh away. This why the dysfunctional Congress needs to legislate on disputed matters like this to avoid needless controversy in the Court.
ReplyDeleteJustice Gorsuch has restored my confidence that even the deeply conservative can arrive at a position that advances humanity's search for the truth underlying fairness, equity, justice and decency in the treatment of all in our community. 6-3 is a good outcome. It is a no-brainer that a 9-0 result would have been so much better. It simply means that 3 of the justices have predicated their decisions to uphold continued discrimination against those who had neither option nor choice for how their biological make-up was determined.
ReplyDeleteDecency and commonsense prevails. And that is a good thing.
As far as Ryan Anderson having anything of value to contribute to Gorsuch writing the majority decision, I say "Get over it". You lost.
ReplyDeleteAs a matter of fact, no one has contributed anyhtin gof value to Gorsuch's majority opinion. That is the reason why there is nothing of value in it.
DeleteHowever, the "You lost" is a nice touch, that leave no doubt about a typical deformity all leftist suffer from: they think there is no truth only power. They are mistaken. What they will find out, however, if they continue down that path, naked power will eventually be met with power. That is something nobody can wish for but nevertheless inevitable.
To the erudite Gorsuch "homosexual" is not Greek, it would seem, but rather Latin. This is the only explanation why he tries to translate "homosexual" for us rubes as meaning "attracted to man (homo" instead of "attracted to members of the same (ὅμοιος) sex".
ReplyDeleteThe only appropriate reaction to this insane majority opinion is impeachment and subsequent removal of the pseudo-judges undersigning this absurdist opinion.
DeleteOnly if the "ordinary public meaning" of "no" is "yes" can one come to Gorsuch's "conclusion". This a blatant attempt at a judicial coup, it is an attempt to overthrow the Constitution and the Republic as a whole.
Anonymous wrote, "Call, for example, a person “goy” who is “either a woman with children or lazy,” and suppose an employer refuses to hire “goy” applicants. That policy, like one against hiring gay people, can be implemented without knowing the applicants’ sex – but it is indisputably sex discrimination."
ReplyDeleteWe can divide your hypothetical policy into two parts, one that doesn't hire lazy people, and the other doesn't hire women with children. To implement the second part, i.e., the sex-based policy, the employer must know the sex of the applicant, there is no way around it.
To put it differently, the employer must know that every single individual applicant affected by the second part of the policy must be female, not male, although they might not know the sex of all the applicants affected by the policy.
By contrast, the employer can implement a policy of not hiring people with homosexual orientation without knowing the sex of any and all applicants affected by the policy, for example, if they only process forms with a box indicating sexual orientation, but not sex.
“To implement the second part, i.e., the sex-based policy, the employer must know the sex of the applicant, there is no way around it.”
DeleteNo. An employer can place a “goy” or “not goy” box on the form, but leave out a box indicating sex. Then they have implemented the discriminatory policy without learning the sex of applicants.
“To put it differently, the employer must know that every single individual applicant affected by the second part of the policy must be female…”
No. The employer does not need to know in the first place whether an applicant is affected by the first or the second part of the policy. They only need to know the applicant is “goy,” and therefore not to be hired.
The “no goys” hiring policy merely conceals discrimination under the guise of fairness. The employer only vainly protests, “Male and female applicants are subject to the same condition: they must not be goy.” A “no gays” hiring policy is just the same. You may say “Male and female applicants are subject to the same condition: they must not be gay,” but when you write out the policy in full, you clearly see it is a shorthand for two discriminatory policies:
(1) Men attracted to men are not hired (but women attracted to men are).
(2) Women attracted to women are not hired (but men attracted to women are).
“No gays” is just as illegal as “no goys” would be.
The point is whether the employer must know the protected trait of the individual affected by their discriminating policy. In your hypothetical case, the answer is yes; in the Bostock case, the answer is no.
DeleteOh really? Here, I’ve handed you an application form. The box “Yes, I am goy” has been ticked. Now tell me what the applicant’s sex is, Nemo.
DeleteYou can’t, of course. Nonetheless you can follow the “no goys” policy and reject the applicant. There is therefore no need to know the applicant’s sex in order to apply the discriminatory policy, and we can commit to flames this sophistical remark: “the employer must know the protected trait of the individual.”
I’ll repeat myself one more time: the “goys” example is concocted to show that an employer can discriminate against an individual on the basis of sex even without knowing that individual’s sex. It is therefore wrong, wrong, wrong to say that a policy against hiring gays isn’t sex discrimination because it doesn’t require knowledge of the applicants’ sex.
I hope you get it know, but if you don’t, I’ll keep trying to bore through that skull.
Let me provide anther hypothetical to make my point clear:
DeleteA misogynist terrorist organization invented a type of poisonous powder that affects women only, and managed so sell the powder online as nutrition supplements. They have no knowledge whatsoever who bought and ate the powder, but they can know for certain that only women are poisoned by their powder.
Similarly, the employer does not have to know the sex of all the applicants, but only the sex of the applicants affected by the discriminating policy, i.e., women.
The problem with the "goy" hypothetical is that it would be a discriminatory policy in the first place: it prohibits the hiring of women and lazy men and that disparate treatment is the violation of Title VII.
DeleteIt is completely different with the "homosexual" box. That policy is to not hire men and women that are homosexual and thus treats men and women equal (both as a group and as individual members of that group).
To make your "goy" box analogous to the "homosexual" box, you would have to define "goy" as "either having children or being lazy." And unreasonable as it (generally) is to discriminate against people with children that policy is not a violation of Title VII.
@Nemo:
DeleteExactly. It’s sufficient for the employer to have a policy that unfairly disadvantages applicants of one sex. Whether the employer must know applicants’ sex to implement the policy is irrelevant. Now let’s bring it home.
You object to the “goy” policy because, when written out in full, it clearly discriminates against women. You understand that it’s an empty trick when the employer says, “I apply the same standard to men and women: they must not be goy.”
Now suppose an employer has the following policy: “I don’t hire anyone who is a man attracted to men.” That is clearly sex discrimination, because it unfairly disadvantages men. The employer might say, “I don’t discriminate against men; I just don’t hire kay people,” where “kay” means “either a man attracted to men or lazy.” But that would be invalid for the same reason it’s invalid to say “I don’t discriminate against women; I just don’t hire goy people”.
By the same token, it is sex discrimination if an employer’s policy is, “I don’t hire anyone who is a woman attracted to women.”
Now what is the policy “I don’t hire anyone who is gay” written out in full? “I don’t hire anyone who is a man attracted to men or a woman attracted to women.” This is equivalent to a combination of the two discriminatory policies in the previous two paragraphs, and the law recognizes combinations of individual discriminatory policies as itself discrimination. It is once again irrelevant when the employer says “I apply the same standard to men and women: they must not be gay.” Work out what that means and it unfolds into a policy that discriminates unfairly on the basis of sex.
You may say this case is different, because the policy against hiring gay men and the policy against hiring gay women are parallel, and there is therefore no discrimination when they are applied in conjunction. You may say, “There is no discrimination in forbidding men from using the women’s restroom, and women from using the men’s restroom.” But that is not how the law sees it. The law doesn’t allow one discriminatory policy to be amended by another. Both have to go. If this weren’t so, we would still have separate restrooms for “white folk” and “colored folk.”
Anonymous (if I may, could you use a unique handle/name, so I know whom I"m conversing with?),
DeleteYou missed my point again. If we can't reach a consensus even on a very basic point like this one, I doubt this conversation would be productive.
In order to establish liability under Title VII, the employer's knowledge is not only relevant, but required. The protected trait must be a "motivating factor". It makes no sense to argue that the employer discriminated against the individual "because of" his/her sex, if the employer didn't even know the sex of the individual. Again, in your hypothetical, the employer knows the sex of the individuals affected by their discriminating policy, but not in the Bostock case.
I addressed Justice Gorsuch's double liability and other arguments in my post, and you've put forth nothing new.
Nemo, I understand your point. It is wrong.
Delete“In order to establish liability under Title VII, the employer’s knowledge is not only relevant, but required. The protected trait must be a ‘motivating factor.‘”
No. Title VII does not say: when an employment practice is illegal, a protected trait is a motivating factor. Title VII says: when a protected trait is a motivating factor, an employment practice is illegal. That means an employment practice can be illegal even when a protected trait is not a motivating factor.
Read 42 U.S.C. §2000e–2(m). There is no ambiguity on the point. It says a motivating factor is sufficient for establishing liability, not that a motivating factor is necessary for establishing liability. The section was added in 1991 to create a new way to demonstrate discrimination, not a new hurdle.
“Again, in your hypothetical, the employer knows the sex of the individuals affected by their discriminating policy, but not in the Bostock case.”
That is irrelevant. Take another example. Define “besbian” to mean “either a woman with children or a man with freckles,” and suppose an employer’s policy is “hire anyone but besbians.” He is guilty of sex discrimination, but he doesn’t know the sex of the individuals unfairly targeted by his policy. Nor could he, because his policy discriminates against both men and women.
The “no besbians” policy is illegal because half of it holds women to a standard men are not held to, and the other half holds men to a standard women are not held to. A “no gays” policy does just the same. The policy is “don’t hire women attracted to women and men attracted to men.” Half of it holds women to a standard men aren’t held to (“not attracted to women”) and the other half holds men to a standard women aren’t held to (“not attracted to men”).
You may insist men and women are held to just one standard (“not attracted to the same sex”). But that is not how the law sees it.
Anonymous,
DeleteAgain, I would appreciate it if you could give a name, so I can tell you apart from all the other "Anonymous" here, and maintain the flow of the conversation.
You wrote, "That means an employment practice can be illegal even when a protected trait is not a motivating factor."
Show me two cases in which the Supreme Court held as discrimination under Title VII where a protected trait is not a motivating factor. If you can do that, I'd happily concede your point. Otherwise, you will have proven yourself wrong.
Regarding the motivating factor, your "besbian" is no different from your "goy". The employer still knows the sex of the injured individuals.
Regarding your point about double liability, let me offer another hypothetical: One employer has a policy not to hire "either a man who uses woman's bathrooms, or a woman who uses man's bathrooms". Is that discrimination?
(Not Anonymous)
Delete1. What do you mean by “motivating factor”?
2. What’s the relationship between a motivating factor and knowing the protected trait?
3. Are you sure Clayton County didn’t know Gerald Bostock's sex? Or if you mean something else, what do you mean?
4. Is the anti-woman powder meant to be an example of sex discrimination, or a non-example?
5. Suppose there are no such Supreme Court cases. What would that prove?
You misread subsection (m) - the complaining party need only demonstrate that race, color, religion, sex, or national origin was a motivating factor - the complaining party need not demonstrate that it was the predominant motivating factor much less that is was the sole motivating factor.
DeleteMiranda,
DeleteThank you for your questions. If you expect a response from me in the future, please address me by name.
As I understand it, a motivating factor is a motive. So a person can have knowledge of the protected trait, without it being a motive for his/her discrimination, but a protective trait cannot be assigned as a motive, without the person's knowledge of it.
My comments related to your questions 3 to 5 were meant to explain/prove this basic point, more or less.
My 11:18 comment was a response to Anonymous @ 7:47 - I somehow missed the intervening comments, and since I didn't specify who "You" was meant to be I wanted to clarify that just in case there is any doubt.
DeleteNemo, I know you’re not willfully irrational. But your mind turns to irrationality as relentlessly as a needle to the pole. Because I cannot set you straight, I simply say goodbye.
DeleteAnonymous,
DeleteIn my last comment to you, I gave you two opportunities/challenges to prove that I am "irrational". I didn't expect that you would beat a retreat so fast.
Remember, repeatedly making an assertion is not the same as proving it, as Justice Alito writes in his opinion.
Thank you for the conversation. It has certainly helped sharpening my thinking on the issue. For that I'm grateful. If you (or anyone else for that matter) want to "set me straight", you can find me anytime at my blog.
Given the precedents set by the Court on discrimination cases, especially those concerning sexual stereotyping, I think Justice Gorsuch's opinion is reasonable. Even the dissenting justices would concede that it is discrimination, and if sexual stereotyping can be classified as discrimination based on sex, why not sexual orientation?
ReplyDeleteAlthough I disagree with Justice Gorsuch’s logic, I admire his philosophical temperament. In his two opinions that I’ve read, he has shown a willingness to understand dissenting opinions in every way possible, and address the substance of their arguments graciously. I wish people would respond in kind.
I wish more people of Dr. Feser's stature would write a detailed analysis of (or response to) Gorsuch's opinion. I find Justice Alito's opinion and Anderson's analysis helpful, but they haven't quite addressed all the key issues covered by Gorsuch.
"Come now, and let us reason together".
Who said anything about power? The search for truth to fairness, equity, justice and decency is not a leftist trope but an honest, morally correct and principled step in writing the egregious wrongs of the past. And it was very pleasing to see that that the substantial majority of the justices agreed. There are so many issues couched under the rubric of "tradition" that are now being forensically tested and found to be painfully wanting. Society is heading toward a more desirable and safer place in which the better angels of the human character can continue to flourish.
ReplyDeleteI've bookmarked this one. Going to come back to the discussion when the court makes the honest, morally correct, and principled step to rule you cannot fire a paedophile (absent some justification such as you are a daycare, if that would hold). It will all be about the search for truth to fairness, equity, justice and decency. And obviously, the court is the one to do that; it would definitely not be something requiring legislation.
DeleteJD,
DeleteBecause the the activities of adults is so much like the rape of a person who doesn't have the ability to consent?
We have special laws regarding child labor. Do you also feel those are in danger of being repealed or overturn?
I am not referencing the repeal of law, nor the passage of one by the body who is charged with making law in our constitutional republic. I am referencing a judge usurping the legislative function in a quest for what the judge perceives as honest, morally correct, principled, true, fair, equitable, just, or decent, regardless of the truth of the law itself.
DeleteIf you think consent will present some hard legal hurdle, you might want to consider the issue of sex reassignment surgery for children, which is supposedly based on parental consent for the good of the child. Also, if you do not think the paedophile community will be able to make a plausible legal argument that sex with a "consenting" child (whether by the child or the child's parents) is good for the child, and that at least certain children have, or should have, the right to "consent" to such interactions, you are not familiar with creative legal minds or the extent to which the sexual revolution or the obsession over the rights of children logically might extend. Just start with an "acceptable" scenario and walk it back bit by bit. A an 18-year old can consent to a sexual encounter with another 18-year old, why not a 17-year old? Oh, the law says ..., until a judge says not so fast you bigoted legislators, "We all know many 17-year olds who are more mature than some 18-year olds? Age is an arbitrary category, and besides, it was not too long ago that folks married at age 12." After that, if a 17-year old can consent with an adult, why not a mature 13-year old? A mature 8-year old? "I mean some really young kids can even go to college ..., and scientific studies have now shown that early sexual experience with children is ...." The legislator judge just needs the right cultural milieu and a good set of facts that make it fair, equitable, just, and decent so far as the judge is concerned, particularly if that judge does not have to worry about being elected; that, and important folks who will hang out with the judge at the cocktail parties. Something about an Epstein guy comes to mind.
Aside from that, I did not say it had to be an acting paedophile. Maybe he's just "born that way," but has not acted on it; it's like his "sex" or his "gender," the inherent kind not the chosen kind; I've lost track of what's in vogue on that. Why should someone be able to discriminate against someone just because he is "naturally" sexually attracted to children if he is not actually engaging in sex with children? Some might say that in and of itself is "sex" discrimination, though I am pretty sure we are a decision or two away from that working. That was all I was saying.
Look, if the legislature had done what Gorsuch did, I would not think it prudent, but that is their decision. I might gripe about it, I might change who I vote for about it, but I would have no argument other than I thought it imprudent to enact such a law. My problem with Gorsuch's decision, like Kennedy's in Obergefell, is that judges are not authorized to legislate, which has been going on for 70 plus years. I know why to some degree, but it is unconstitutional nevertheless. Needless to say, I do not think we are headed into the bright beautiful progressive future of better angels in America (I guess those are the one's who run the cancel culture, etc., like the one's who canceled a lesbian for being a transphobe because she would not date a "woman" who had the male part), at least not on the current path. I've read too much history for that.
JD,
DeleteI am not referencing the repeal of law, nor the passage of one by the body who is charged with making law in our constitutional republic. I am referencing a judge usurping the legislative function in a quest for what the judge perceives as honest, morally correct, principled, true, fair, equitable, just, or decent, regardless of the truth of the law itself.
I'm not going to argue with the legal appropriateness of the "but for" decision making process in this case; I am absolutely not qualified to do so. I respect your dissent on this.
If you think consent will present some hard legal hurdle, you might want to consider the issue of sex reassignment surgery for children, which is supposedly based on parental consent for the good of the child.
As far as I know, in the US, no one offers sexual reassignment surgeries on pre-teens or young teens, the minimum age seems to be 17.
Also, if you do not think the paedophile community will be able to make a plausible legal argument that sex with a "consenting" child ...
Plausible to laymen, or to judges? No, I don't think the latter will ever happen in the US.
Just start with an "acceptable" scenario and walk it back bit by bit.
According to the lawyers I have read, this never has been, and never will be, a valid legal argument.
Something about an Epstein guy comes to mind.
True, but even Epstein was arrested and denied bail.
Aside from that, I did not say it had to be an acting paedophile. Maybe he's just "born that way," but has not acted on it; it's like his "sex" or his "gender," the inherent kind not the chosen kind; I've lost track of what's in vogue on that. Why should someone be able to discriminate against someone just because he is "naturally" sexually attracted to children if he is not actually engaging in sex with children? Some might say that in and of itself is "sex" discrimination, though I am pretty sure we are a decision or two away from that working. That was all I was saying.
As long as the job itself does not involve children, why would you discriminate against a person doing the morally correct thing?
As I said, the main problem is the judge acting as lawmaker. As for the lawyers you know, I have worked with lawyers for almost 30 years and judges for 20, my experience is different. And I know of no law that prohibits discrimination against a person just because that person may be acting in a morally correct way, whatever the morality of that discrimination might be under a given set of circumstances.
DeleteJD,
DeleteWhich of those lawyers or judges have said that the type of walk down logic you used would be a valid form of legal argumentation?
I agree there is no law preventing the firing of a celibate pedophile; I was curious why would fire them.
Again, in my experience, many, maybe most, lawyers and judges like their favored result, regardless of the logic of the argument or whether it is a valid form; the form (laws, precedents, and how they are employed) merely reflects better or worse cover for the legitimacy or illegitimacy of the approach to the end. If you mean such an argument may be criticized as a matter of logic, that is true and that is occasionally done, but such criticism does not hinder a determined and unprincipled judge if he or she can get away with it. It's more about what such a judge can get away with in light of any risks they must consider (more of an issue for state judges than federal, which is actually perversely why federal judges are more of a problem if they go that way). I recall the walk down argument even being used in law school, and it is not uncommon for someone to attempt to start with a few legal principles to begin analogizing into a different area to get where they want to go. Been in the room for such discussions on more than one occasion, though I think it is deplorable, dangerous, and eventually ends or will end badly.
DeleteOn the firing thing, if you are asking whether, in a given case and as a moral matter, it might be imprudent for someone to fire a celibate pedophile simply because he or she was sexually attracted to children, I would agree.
JD,
DeleteYou wrote, "My problem with Gorsuch's decision, like Kennedy's in Obergefell, is that judges are not authorized to legislate, which has been going on for 70 plus years. I know why to some degree, but it is unconstitutional nevertheless."
Just out of curiosity, in your view, how and why did this start ~70 years ago?
It actually started before that, but the overt decisionmaking in the nature of legislation was more of an early to mid-century thing. The 1930's cases on substantive due process are one example; good policy, but nothing to do with the constitution, as Scalia and Thomas have noted. If you are interested, a good start, but by no means exhaustive, is Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment.
DeleteIt can be found online at oll.libertyfund.org/titles/berger-government-by-judiciary-the-transformation-of-the-fourteenth-amendment.
JD,
DeleteThank you for the reference. It looks like Berger was writing from a legal perspective. My question is more from a historical perspective: what happened before or around 1930 that caused the rise of "government by judiciary". I'm curious what your view is.
Had not thought about cause. Berger was a legal historian, but its been a while since I reviewed that work. What causes a person or institution to reach for a power that belongs to another? Could be complicated (fear of civil war or of appearing impotent?, hubris?, impatience with the legislative process? vanity? invitation/political compromise?). I'll have to give it some thought.
Delete"...... morally correct and principled step in writing the egregious wrongs. "
ReplyDeleteshould read: "....righting the egregious wrongs..."
Richard Carrier thinks this is brilliant, and that Supreme Court decisions contain better philosophy than traditional academic philosophy does!
ReplyDeletehttps://www.richardcarrier.info/archives/16844
Anonymous,
ReplyDeleteRichard Carrier thinks this is brilliant, and that Supreme Court decisions contain better philosophy than traditional academic philosophy does!
I'm sure my building's janitor also has an opinion, and likely a more accurate one, than Carrier.
Give it a break, JD. Who in their right mind thinks people need to be protected against a gay or transgender person in a manner as one would hope to be protected against a paedophile?
ReplyDeleteYour paedophile argument, vis-a-vis the right to fire a gay employee, is simply wrong if not equally risible.
Given the history of the illegality of homosexual activity, I am guessing the minds of most of our ancestors. I anticipate that we would disagree whether those ancestors had right minds though, whatever that may mean. But you have missed the point, of which the paedophile argument was but an illustration. I understand you may like it when a judge rules the way you want, we will just have to disagree that that makes the ruling right or rightly done, as a matter of law, or that such judges pose no serious threat in a democratic republic. But, I am glad you find some humor in the exchange.
DeleteTo JD
DeleteThen your paedophile illustration is as wayward as your argument.
Yes, I must out of necessity treat the views you express with a little hilarity. It is a way of mitigating the damage to my well-being when one enters into dialogue, crossing the event horizon and feeling the almost inexorable pull downward into the miasma of christian 'morality' and 'charity' as it relates to gays, same-sex marriage, transgender identification and gender dysphoria.
To intransigently hold to such primitive thinking, despite the great advances in knowledge and deeper understanding of the human condition and gender orientation that we now have at our disposal, through the sciences, biology, genetics, psychiatry, sociology, psychology, anthropology, is itself an interesting area of research under the broader rubric of Cognitive Neuropsychiatry.
It is pretty interesting stuff.
The illustration has actually done what I intended and what I did not. I had no intention of upsetting you, only to see how far you were willing to extend your position. I did intend to use a charged topic as an illustration for several reasons, including that such topics can help define lines in arguments and counterarguments (not that they always do). I will certainly mull over whether I should be more cautious in that regard, particularly given the type of forum Dr. Feser's blog provides and the lack of information we have about each other when posting, at least most of the time.
DeleteRegarding your comment on the argument, your position was focused on your belief in the moral uprightness of the result insofar as Gorsuch's decision was concerned; I am referring back to your post about fairness, etc. My response was coming from the position that in our constitutional democracy, a judge is to follow the law as passed by the legislature, not make the law something it is not, regardless whether he could achieve a morally upright result by making the law different. My responses have remained consistent with that position and it remains valid insofar as I can tell. The role of deciding about the morality of the law, in the sense we are discussing, is for the legislature and the legislature alone (it was a statute passed by Congress). In other words, any issue regarding the morality of the "sex" referred to in the sex-discrimination law or whether it would be more moral to extend the term "sex" to persons other than those covered by that term when the sex-discrimination law was passed, is for the legislature alone. Although a judge may have a limited authority to employ equitable principles (themselves governed by certain rules of application) to avoid some harsh application of the law, even those principles do not authorize the judge to change the law itself (though some higher law, such as the constitution, might authorize a judge to abrogate the law at issue). Even then, the judge, if he or she is conscious of what he or she is doing and is being honest, must acknowledge that the law is what it is, but equity for some reason both authorizes and justifies not applying that law in the given circumstance. That is not what Gorsuch did nor could he, in my opinion, he legislated, as Justice Alito states, though some in the forum strenuously disagree that Justice Alito is correct.
My argument is about legal means and legal ends, not moral vindication. As a general rule, I believe it is illegal (also likely immoral) to use an illegal means to achieve a legal end (whether the end is moral or immoral). That is why I stated in another response that, as much as I disagree with the result substantively, if the legislature had done what Gorsuch did, my only complaint would be it was imprudent, in my opinion. The legislature is authorized by the constitution to make those choices.
Woman A has sex with Man X. No problem with Woman A's job.
ReplyDeleteMan B has sex with Man X. Man B gets fired.
What is the difference between Woman A having sex with Man X versus Man B having sex with Man X? They both had sex with Man X.
Therefore Man B was fired for being a man. Obviously sex discrimination.
Pretty simple, kinda wonder what those 3 out of 9 didn't get about this.
StardustyPsyche,
DeleteJustice Alito explained in painstaking detail in his dissent (here).
Please point out specifically where Alito refutes the clear argument I made.
DeleteYes, I know that Alito wrote a blizzard of strawman words. But where specifically does he refute the specific argument I clearly stated above?
Can you refute the above argument yourself? It is pretty simple, A, B, X. Where exactly does the argument I have stated fail and specifically why?
StardustyPsyhe,
DeleteThe whole opinion is well worth the read, if only to "know your enemy".
Justice Alito's refutation of your argument can be re-presented using these formulae.
M + F = Y
M + M = X
F + M = Y
F + F = X
If one looks at the difference between 2 Xs and 2Ys, one can see that Ys are a combination of F and M, but Xs are a duplication of F or M.
Let's say F stand for woman, M for man, Y for OK, and X for firing, the difference between OK and firing is heterosexual (combination) and homosexual (duplication), not man nor woman.
By your math
DeleteM + M = X
F + F = X
therefore
M + M = F + F
2M = 2F
M = F
Since M does not equal F your math is invalid. Human interaction sometimes cannot be expressed with simple arithmetic.
Since you had a hard time following the reasoning of the majority of the court I will make the example a bit more graphic. If there are children watching you may wish to cover their eyes.
Suppose we consider 3 somewhat sexually unconventional individuals.
Man X puts his penis in the anus of Woman A.
Man X puts his penis in the anus of Man A.
What is the difference between those 2 statements? The only difference is that in the first sentence the word "Woman" appears in the position that the word "Man" appears in the second sentence.
The difference between those two sex acts is Man versus Woman. The difference is the sex of Person A.
If Man A gets fired it was sex discrimination.
Since you seem to have read the Alito minority opinion please point out where specifically Alito refutes this specific logic.
No, please do not tell me to read the whole thing, that is a vague and non-responsive request.
Where specifically in the Alito dissent does Alito specifically refute the above specific argument?
This comment has been removed by the author.
DeleteTo those who may be reading this, and wondering what I was doing with the formulae.
DeleteWhen Stardusty Psyche asked me to refute his/her "A, B, X" argument, I was reminded of the Pythogorean notion that all human relations, like everything else in the universe, can be represented by mathematical formulae. So I thought I would oblige Stardusty Psyche and respond in kind.
M + M = X
F + F = X
therefore
M + M = F + F
2M = 2F
M = F
The formula
M = F
may stand for the equality of man and female before the law, which is valid. (For an interesting introduction to Pythogorean notion of equality, I would recommend Aristotle's Nichomachean Ethics.)
I would agree with Stardusty Psyche that "Human interaction sometimes cannot be expressed with simple arithmetic", which is also why I think Gorsuch's "simple" substitution test is invalid.
However, it would be interesting to see to what extent math can be applied to the humanities.
The mental gymnastics being used by people in this thread to justify sex discrimination is absolutely gold.
DeleteLet sex with a man = Conduct A
All factors related to employment performance, timeliness, be absolutely and completely equal with the exception of Conduct A.
Woman who works for Company B does Conduct A. She is not fired. Man who works for Company B does Conduct A. He is fired.
All other factors are equal. The only difference is the sex of the two employees. One employee is fired for the same conduct that the other employee is permitted to do, and that is solely due to their sex.
Easy. Case closed.
If you want to make a natural law argument or contend that such conduct should be a fireable offense, then you can make the argument that the law should be changed. The law as it stands now prohibits firing an employee for homosexual conduct.
DeleteMike,
DeleteLet's say Conduct A = participating in woman's sports, going on maternity leave, using woman's bathroom, or taking part in any other woman-only activities.
A man does Conduct A, and is fired, but a woman does the same, and is not fired. Is that discrimination?
Is the argument not revolving around whether a person's desire/inclination to have sex with another person is the same as a person's desire/inclination to have sex with an opposite sex person? The issues is not the equality of the persons as such, but the equality of their desires and whether an employer may draw a distinction based on that. M=F is true or untrue, depending on the concept we are referring to; equal as persons, per se, not equal in capacity to bear children, etc. An employer firing someone for what the employer considers to be an inordinate desire can be equally applied to the employee's M and F without the firing being because the employee is an M or F. The argument to the contrary presumes the sexual preferences at issue are equal simply because the persons who have those preferences are equal. Just substitute "thinks marijuana should be legal" or "thinks bestiality is good." The issue is not whether the employee is male or female, but whether the employee has a preference/desire/inclination for a certain type of sexual partner? The tension appears to be whether "sex" is like "race" or like "religion," in light of what was understood of those terms when the law was passed.
DeleteNemo,
Delete"Is that discrimination?" (bathrooms etc.)
Yes, but it is legal because the law permits discrimination based on sex and race in certain cases that would otherwise violate other rights.
Rights are not absolute, rather, rights sometimes come into conflict, and when they do certain sorts of discrimination are legal lest other rights be violated.
For example, the right to free expression. The director of a play has the right to cast and pay, say, a black woman for a role. That is clearly both race and sex discrimination. A white man could rightly claim race and sex discrimination for not even being considered for that lucrative job.
But the director has a right to free expression, so in such a case reasonable people, and the law, allow for discrimination against a white man as his rights come into conflict with the free expression rights of the director.
That principle, the reasonable resolution when rights come into conflict, applies in those other cases you mentioned.
Nemo,
Delete"The formula
M = F
may stand for the equality of man and female before the law, which is valid."
In that case why bother writing M and F at all? Why not just write P?
No, you are the one who assumed a difference between M versus F by writing a number of arithmetic equations.
Then when your equations resolve to an invalid answer you try to claim M actually does equal F. Faced with a contradiction you contradict yourself. Your system of equations is simply invalid.
"which is also why I think Gorsuch's "simple" substitution test is invalid."
Yet you provide no refutation of it.
Worse, you cannot, apparently, point to the place in the Alito dissent that refutes the simple logic Mike and I have laid out.
Where specifically does Alito refute the simple sex discrimination argument?
Man X performs sex act Z on Woman A.
Man X performs sex act Z on Man A.
Both work, say, on a Ford assembly line. Woman A has no problem and retains her job. Man A is fired.
Obviously, Man A was fired for being a man, a clear case of sex discrimination.
Where specifically does Alito refute that specific argument?
JD wrote,
DeleteIs the argument not revolving around whether a person's desire/inclination to have sex with another person is the same as a person's desire/inclination to have sex with an opposite sex person?
I'm not sure if you're addressing me, but I'll respond since you quoted my formula (M=F) and example (child-bearing). In the future, please address me by name, so I'll be sure to read your comment and respond.
When you say "the argument", which one are you referring to specifically?
Although I understand your point, I'm not sure that the desire, not the action, of an employee has ever been treated as a motivating factor in a discrimination case under Title VII. I'll defer to your expertise and experience on this matter, has that ever happened in court?
StardustyPsyche,
DeleteYou wrote, "Nemo,
"Is that discrimination?" (bathrooms etc.)
Yes, but it is legal because the law permits discrimination based on sex and race in certain cases that would otherwise violate other rights."
Thank you for the thoughtful response regarding conflicts of rights, and helping me to see things from your point of vie, which is partly why I'm participating in the discussions here in the first place.
We disagree on what constitutes discrimination. I suspect we need a working definition of discrimination (in true Aristotelian fashion), otherwise, this discussion will most likely be unproductive.
StardustyPsyche,
DeleteYou wrote, "Yet you provide no refutation of it."
Not surprisingly, we don't agree on what is a "refutation".
There is no point in me keep explaining and demonstrating things, when you can simply keep asserting that it is not a refutation, without given any argument on your part to support your assertion.
Let me ask you this way: What would you accept as a refutation of Gorsuch's argument?
In other words, what are your criteria?
Can someone other than yourself apply the same criteria to judge for themselves whether something is a refutation?
Nemo
Delete"a working definition of discrimination"
In it's strictest sense discrimination is to detect and (typically) act upon a difference. In electronics there are circuits called discriminators that can, in some sense, pick out the desired signal from among other signals. There is the term "the discriminating eye", meaning the ability to see differences.
In common language the word "discrimination" has taken on a negative connotation because it has become a rhetorical shorthand for unjust or unlawful actions based on differences.
So we typically take the word, in conversation, to refer to unjust racial discrimination, or unjust discrimination based on sex or age or some other identifier.
But, in a more detailed conversation of philosophy and law it is important to expand the word into several word phrases to be clear in stating, say, unjust racial discrimination, or, justified discrimination based on sex.
So, unjust racial discrimination examples abound, whereas a justified discrimination based on sex can be such things as paying only a female adult to supervise group showers for girls.
Gorsuch clearly made a sound argument that terminating a person for same sex sexual acts is sex discrimination, and that because sex discrimination is against the law in most employment jobs it is therefore against the law to terminate an employee for same sex sexual acts.
Nemo,
Delete"Let me ask you this way: What would you accept as a refutation of Gorsuch's argument?"
The usual method is to accurately state the other's argument, then dissect key aspects of that argument grammatically and logically, and thus make plain exactly where the other's argument employs false premises or invalid logic.
So far I have yet to see any such refutation by anybody, including commenters here, Alito, First Things, or Dr. Feser.
If you think I have missed such a refutation please cite the source and quote at least 1 paragraph that specifically refutes the core of the majority's argument, summarized here:
Man X performs sex act Z on Woman A.
Man X performs sex act Z on Man A.
The difference between those two encounters is the sex of Person A.
If Woman A suffers no employment consequences, yet Man A does, clearly, Man A has been discriminated against based on his sex, the very definition of sex discrimination.
StardustyPsyche wrote,
DeleteIn that case why bother writing M and F at all? Why not just write P?
You've made some valuable feedbacks on my formulaic representation of the case. Thank you.
I did not use P because M and F are not the same, they are not identical. But, they are equal before the law.
Needless to say, the equation M + M = X does not mean that two men are literally equal to "firing". It is meant to represent the legal status of their relationship. Similarly, M=F means the legal status of male and female are equal.
As JD also pointed out, M = F could mean equality in many different senses.
I don't know the proper notations to capture all these complexities, though I believe it can be done to some extent, by someone with more knowledge in math/logic than I.
StardustyPsyche,
DeleteThank you again for the thoughtful response on "discrimination". I'll take it as a common ground for dialogue.
I think you would agree that there is an import difference between just and unjust discrimination.
In short, my point about Gorsuch's simple substitution test is that it only demonstrate different treatments, i.e, discrimination in the neutral sense, but the test says nothing about whether the different treatment constitutes *unjust* discrimination.
Note that I'm not arguing whether the treatments of the plaintiffs in the Bostock case constitute unjust or unlawful discrimination, but whether Gorsuch's "simple" test can be applied to determine the case.
Sorry Nemo. I was really just working on trying to narrow the question to see if there was consensus on what was at issue in the thread, without even worrying about the legality of it. I'll try to do better if I'm jumping in.
DeleteI don't know whether desire, per se, has been used as the deciding factor in a case. Part of what I'm playing with is the difference between 1. nature, status, genetics, of whatever we want to call that; 2. actions; and 3. desire, preference, or inclination or whatever we want to call that, whether on some biological basis or more as a matter of will/choice. (Please don't all you real philosophers jump in on me about whether will is real, or determinism, etc.; I'm just a dumb lawyerperson.) A person claims 1. he or she is born as a homosexual (naturally inclined) or 2. not, but chooses that inclination, and, 3. in either event, acts or does not act to fulfill that inclination. What are we concerned about insofar as sex discrimination is concerned, a natural characteristic like race? a choice like religion? just the inclination itself of whatever origin?
These discrimination categories (race, religion, etc.) all have there own special baggage, even in the decisions, as did or does sex. I just introduced the desire element because it added a wrinkle for consideration, I guess as pushing on the nature vs choice aspect, without necessarily requiring the resolution turn on deciding the origins of the desire issue. And maybe in the end that is not a distinction that will matter. I just know some say they have homosexual desire as a result of genetics, others as a matter of choice, and I was throwing out the idea of what if, rather than choosing between those, we just separate out desire in musing about it for a bit. Are we trying to be more protective of natural desire, choice, neither, both?
I live in an employment at will state; employers can fire employees for any reason or "no reason at all" they sometimes say, as long as it is not a legally prohibited reason. So an employer can fire a person because the employer no longer likes the employee's red hair, because the employee expressed a like for red hair, or because the employee dyes his hair red. So what is it the sex discrimination folks are worried about? And how does that match up with what sex meant in 1964? And has Gorsuch played it as straight up as some think, or are they just happy with the result and trying to make it easy? This is why, and I am not trying to offend, something like pedophilia or necrophilia or any number of sex-related philia's or ality's are in my mind on this. What of those are "natural," what of those are "choice," etc. Why is the employer's liberty (choice) being prohibited and what is it that is actually being prohibited, i.e., discrimination based on something natural, something chosen, something acted on, none, all?
Nemo and StardustyPsyche,
DeleteIf you want to use math notation, I think you’ll get somewhere with predicate logic. For example:
- F(x) = “x gets fired”
- M(x) = “x is a man”
- W(x) = “x is a woman”
- G(x) = “x is gay”
- S(x) = “x is straight”
You should understand each of these as a fill-in-the-blank sentence. So G(John) is “John is gay,” W(The president) is “The president is a woman,” and so on.
Now we can build a simple model of the kind of policy in question:
(G(x) → F(x)) & (S(x) → ~F(x)).
The arrow → is one-way implication (“if-then”), and the tilde ~ means “not.” The sentence literally reads as:
“If x is gay, x gets fired, and if x is straight, x doesn’t get fired.”
Does that make sense? I’m oversimplifying here, of course, and only looking at firing.
Next we can define sex discrimination. In this little model, a policy is sex discrimination when it implies either of these:
1. (M(x) → F(x)) & (W(x) → ~F(x))
2. (W(x) → F(x)) & (M(x) → ~F(x))
1 is “men get fired but women don't get fired.”
2 is “women get fired but men don't get fired.”
How about that?
Miranda,
DeleteI think functional and logical notation could be used to represent the logic of the majority.
But, the issue is not being fired for merely thinking homosexual thoughts, rather, for engaging in homosexual acts.
F(x) = “x gets fired”
M(x) = “man x”
W(x) = “woman x”
D = Unjust Sex Descrimination Occured
Let x = "has sex with a man", solve the below expression, then
Let x = "has sex with a woman", solve the below expresion.
D = ((M(x) → F(M)) & (W(x) → ~F(W))) | ((W(x) → F(W)) & (M(x) → ~F(M)))
D resolves to true in both instances of Let x =.
Nemo,
DeleteAfter thinking about it a little more,
MaM- Man attracted to man
MaW- Man attracted to woman
WaM- Woman attracted to man
WaW- Woman attracted to woman
If I am understanding Gorsuch, to fire MaM because he is aM is sex discrimination because you would not fire WaM. This assumes homosexuality and heterosexuality (both of which necessarily require determining the sex of the employee, but also the sex of the person to whom the employee is attracted) are equal; the unequal treatment can then be attributed to the status of M and W as such. Gorsuch sets up his approach by equalizing sexual orientation, at least implicitly and on a limited basis, and necessarily leaving M or W of the employee as the only basis for distinction. I say a limited basis because I suppose an employer could still fire all bisexuals.
Rewording. From the perspective of sexual orientation, which requires two sexual determinations of M and W, equalizing only one of the determinations (making the M or W of the object of the orientation irrelevant in relation to the employee), moves the locus for differentiation to the subject, the M or W of the employees being compared. Regarding the meaning of sex in 1964, it is the change in view on the equality of sexual orientation that has created the purported discrimination based on sex.
Miranda,
DeleteYour notation is definitely an improvement over mine. We're making progress. :)
As StardustyPsyche pointed out, the action, not the preference, of the person is what we're concerned with here.
The same action could mean different things in different context, and therefore have different consequences. So we also need to take context into consideration. In the Bostock case, the context of the sex action is heterosexual vs homosexual, per Alito's opinion.
(Allow to me use the same symbols for male, female and firing as in my original post, so readers won't get confused, if they aren't already.)
M(a) = a is male
F(a) = a is female
D(a) = a engages in homosexual action
C(a) = a engages in heterosexual action
X(a) = a is fired
M(a) + M(a) -> D(a) -> X(a)
M(a) + F(a) -> C(a) -> -X(a)
F(a) + F(a) -> D(a) -> X(a)
F(a) + M(a) -> C(a) -> -X(a)
JD wrote,
DeleteI live in an employment at will state; employers can fire employees for any reason or "no reason at all" they sometimes say, as long as it is not a legally prohibited reason.
That's a lesson I learned from reading about the Bostock case. Having never been an employer, I never looked at it from their perspective. So I've been mostly concerned about whether an employee is treated fairly. The idea of "at will employment" unnerves me a little (truth be told), but then, the employee can leave "at will" too.
I would agree with making distinctions between 1. nature/genetics, 2. desire/preference and 3. action.
As for Gorsuch's reasoning regarding sex vs sexual orientation, I think his questions regarding the motivating factor during the oral argument reveals his thought process. I addressed the specific question he raised in my blogpost (here). Pardon the shameless self-promotion again, but it is too long to post here, and I can't explain any better.)
Nemo,
DeleteFrom your referenced blog post
"For example, there is minimum age at which a person is allowed to drink, drive or marry. A person can be prohibited from engaging in these activities solely based on his age, but no court would rule that he is the victim of age-based discrimination"
Age based rules are discrimination, therefore the rest of your reasoning in that section of your argument is unsound, being based on a false premise.
Age based rules are discrimination because we are identifying differences based on age, but we consider such discrimination justified because of conflict with other rights we judge to take precedence.
If 8 year old children were allowed to drive that would violate the right to life and undamaged property of the rest of us, which takes precedence over the child's right not to be discriminated against. So some set of rules may be established that balances those competing rights, thus we generally allow 16 year olds to have restricted licenses and 18 year olds to have unrestricted licenses.
Even so, on average our youngest drivers and our oldest drivers have the most collisions per capita, but those are the balance points between the right to not be discriminated against based on age, versus the right to life and undamaged property for the rest of us, that we have arrived at by legal consensus.
You might want to reconsider your use of the term discrimination in light of justified discrimination versus unjustified discrimination and competing rights.
StardustyPsyche,
DeleteThanks for explaining "unjustified discrimination and competing rights" to me, as I haven't come across this line of reasoning before. I'm beginning to think it is one of the, if not the main difference between our two perspectives.
I'll explain my perspective below:
The age-based rules can be justified without any reference to "rights". It can be based entirely on the individual's ability to operate a vehicle, read and understand traffic rules and signs, perform sound judgments and actions under unexpected conditions, etc. If it can be proven (evidentially and statistically) that people of a certain age-range do not meet those specific requirements, then it is reasonable for the government to implement age-based rules.
Of course, there are (always) exceptions to the rules. For example, a child may be able to drive much better than many adults (on this forum), and meet all the above mentioned requirements. If he is denied a driver's licence only because of his age, it can be argued that he is being unjustly discriminated against. But, apart from these edge cases, the age-based rules are justified.
It is another application of the principle of Proportional Equality that I alluded to in my blogpost.
Nemo, thanks for the link. Look forward to reading more from you.
DeleteIt seems to me that everyone is overreacting to the Supreme Court's latest decision. What people have overlooked is that the Court does not ban ideological discrimination. No boss can fire an employee for being LGBT. Fine. But a Christian boss of an institution run by church X (e.g. a school) can still fire staff (be they heterosexual or LGBT) for publicly disagreeing with what church X happens to teach about LGBT sex. If church X is "liberal," that would mean that "conservative" teachers could be fired; and vice versa. My two cents.
ReplyDeleteThere is a thought-provoking article on Bostock at First Things.
DeleteIf I understand the author correctly, the latest Court decision is not an isolated event, but one in a long series of events, like a series of ever worsening symptoms, which suggest the development of a fatal disease.
Dr. Feser,
ReplyDeleteI did not find any refutation of the logic of the majority, as expressed by Gorsuch, in your post. Well, fair enough, you did not set out to refute the logic of the ruling yourself, you only sought to provide some links, and presumably in those links one will find a refutation of the logic of the ruling. Alas, I have found none so far, can you point out any source, First Things, Alito, elsewhere, and show specifically where that author actually refutes the specific logic that is core to the majority ruling?
Man X performs sex act Z on Woman A.
Man X performs sex act Z on Man A.
The difference between those two encounters is the sex of Person A.
If Woman A suffers no employment consequences, yet Man A does, clearly, Man A has been discriminated against based on his sex, the very definition of sex discrimination.
Again, what is the specific refutation to that argument and the specific location in a piece of writing where that refutation can be found?
We find this at one of your links (to First Things)
"New York law prohibits discrimination on the basis of marital status, as do many other states. By Gorsuch’s reasoning, it would therefore be illegal to discipline or dismiss an employee for committing adultery. Such an act would be acceptable if the person were not married, and thus to consider it cause for action amounts to discrimination on the basis of marital status."
Yes, and what is the problem with that application of logic? Is it right and just that an employee, say a construction worker, be fired solely for extramarital sex? I don't think so, do you?
First Things, rather than refuting the logic of the majority, instead, affirmed the correctness of the logic of the majority.
Again from First Things
"Were the consultant black, his identifying as black would be acceptable. It is the fact that he is white that makes the situation difficult for the employer, who wishes to encourage support groups and mentoring for black employees. Therefore, if disciplined, the white who identifies as black is being discriminated against on the basis of his race."
Indeed, support groups based on race, or sex, or age, or medical condition are in fact discriminatory. So again, First Things affirms the validity of the logic of the argument of the majority as expressed by Gorsuch.
The law permits, and reasonable people agree with, permissible exceptions that allow for discrimination based on race or sex or age when the right to equal treatment on those factors comes into conflict with other rights, and reasonable people agree that those other rights, under those particular circumstances, take precedence.
The rest of the First Things article is social commentary that one may or may not agree with, but nowhere does R. R. Reno refute the logic expressed by Gorsuch, rather, Reno unwittingly affirms it.
This comment has been removed by the author.
DeleteA reductio ad absurdum argument is not affirming the correctness of the logic of the majority, your claims to the contrary notwithstanding.
DeleteWhat you call "the logic of the majority, as expressed by Gorsuch"
Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. (Opinion of the Court p. 9-10)
is in fact refuted by Alito. He points out that clearly the assumption that the two hypothetical employees are to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman is false because in the mind of an employer who does not want to employ individuals who are attracted to members of the same sex, these two employees are not materially identical in every respect but sex. On the contrary, they differ in another way that the employer thinks is quite material. And until Title VII is amended to add sexual orientation as a prohibited ground, this is a view that an employer is permitted to implement. (Alito p. 14-15).
Because there are two ways the employees in Gorsuch's hypothetical differ (and not only to the mind of the employer but to a society in which "gay pride" is a thing and where progressives fight against "heteronormativity"), there are in fact four cases to consider, not only two.
Please reread Alito's dissent p. 14-17, and this time actually try to understand what is said.
If one looks at all four possible combinations of the two characteristics in play one can plainly see that the sex of the fired employee is not a motive at all. As Alito puts it:
The discharged employees have one thing in common. It is not biological sex, attraction to men, or attraction to women. It is attraction to members of their own sex — in a word, sexual orientation. And that, we can infer, is the employer’s real motive. (Alito, p. 17)
KC,
DeleteI appreciate the specific references.
"A reductio ad absurdum argument is not affirming the correctness of the logic of the majority, your claims to the contrary notwithstanding."
I agree that a sound reductio is not an affirmation. However, an unsound reductio can be an unwitting affirmation.
Reno at First Things attempts a reductio ad absurdum argument but that attempt is unsound, and in both cases only shows that the logic, rather than being reduced to an absurdity, in both cases reduces to a logical, reasonable, and just outcome.
Therefore the failed attempt by Reno at the use of a reductio ad absurdum argument constitutes an unwitting affirmation of the very thing Reno was attempting to show as absurd.
As for the Gorsuch and Alito opinions, again, I appreciate the time you took to extract those two highly comparable sections.
The Alito dissent fails because it is a distinction without a difference, therefore merely a logical re-arrangement of an illegal act.
Suppose I say "heads you win tails I lose", and it is somehow illegal for me to lose. There is no legal advantage gained by re-arranging the relationship as "heads you don't lose tails I don't win".
Stating "heads you don't lose tails I don't win" equals "heads you win tails I lose", and if for some hypothetical reason it is illegal for me to lose merely rewording the relationship does nothing to bring about its legality.
"attraction to members of their own sex" equals "he is attracted to men" or "she is attracted to women"
It is illegal to fire an employee based on sex, such as the sex of the employee that had sex with a person of a particular sex.
All Alito did was create a logically equivalent statement describing an illegal act in other words.
So you say The Alito dissent fails because it is a distinction without a difference, therefore merely a logical re-arrangement of an illegal act.
Delete"Distinction without a difference", really? Quite the obvious petitio principii as Alito precisely demonstrates why it is a distinction that very much makes a difference. Apparently you just don't like that it does.
If it truly is a distinction without a difference the terms "sex" and "sexual orientation" are synonyms and can be substituted for each other at will, right?
I'm not sure if we're talking about the same thing here, could you please define "sexual orientation" in a non-circular fashion, please, so that we may continue the discussion without confusion about the terms?
StardustyPsyche, Nemo, Miranda,
DeleteStill trying to make sure I'm catching it. In equalizing the various factors for the analysis, the Man and Woman factors are equal on each side of the sexual orientation equation; employee and paramour. The question is are same-sex sexual attraction and different-sex sexual attraction the same, or, more specifically, does the law prohibit an employer from drawing a distinction based on any difference in that criteria (setting aside the issue of the sexual disposition of the employee vs sexual action by the employee). Gorsuch answers by saying if he accepts that the types of sexual attraction at issue are not distinguishable or relevant in the eyes of the law, thereby equating them practically speaking, he is left with Man and Woman as the distinction. Thus, sex discrimination.
Assuming the foregoing description is correct, I note that when Congress passed the law at issue, it was constitutional for a state to draw distinctions based on sexual attraction; homosexual acts were criminal in some states, perhaps a majority. And I am fairly confident homosexual acts had been illegal in most states for most of American history. No employer would have been violating the civil rights act for firing an employee based on criteria that the state itself could use in its laws, at least as far as I am aware. It was the Supreme Court's shift regarding the law of homosexuality in Lawrence (a due process precedent if I recall) and its progeny, not that of Congress, that created the context for sex to subsume sexual attraction into the sex term. The Court is, in effect, now legislating the statutes to conform with its constitutional legislation, acknowledging more or less that it had run out of patience with the legislature because it would not come to heel regarding the court's opinion of what the law is (actually should be).
KC
Delete""Distinction without a difference", really?"
Yes, by focusing on those words from your quoted sections in the context of a blog post length argument.
In the sections your quoted:
Gorsuch wrote
"he is attracted to men"
Alito wrote
"attraction to members of their own sex"
Between those 2 statements Alito raises an distinction without a difference.
If a man is is attracted to members of his own sex then necessarily he is attracted to men.
I can start from either wording and necessarily arrive at the other wording. All Alito did was reword Gorsuch and make a distinction without a difference with respect to those words from the sections you quoted.
Gorsuch did not presuppose that same sex attraction must be legally equal to opposite sex attraction, he concluded it based on his reason from other premises and arguments.
If it is acceptable for a woman to be attracted to a man, but it is not acceptable for a man to be attracted to a man then a woman is allowed to do something a man is not allowed to do, be attracted to a man.
Since the difference is that the one who attracted to a man is in one case a man and in the other case a woman that is a sex difference, the difference in sex between the ones who are attracted to a man.
It is merely a change of wording to state that the issue is same sex attraction versus opposite sex attraction.
The majority reasoned that since termination based on the wording "he is attracted to men" versus "she is attracted to men" is sex discrimination, then termination based on the alternate wording of ""attraction to members of their own sex" must also be sex discrimination.
Therefore, since termination based on sex discrimination is unlawful, termination for attraction to the same sex is unlawful.
Again: that is faulty reasoning. Gorsuch claims that every single case of discrimination because of sexual orientation is and needs to be discrimination because of sex, and his argument hinges on that.
DeleteA single counter-example refutes his argument.
Here is one (of many possible) counter example:
An employer has exactly two employees, The two individuals are, to the employer’s mind, materially identical in all respects, including sex. He fires one of them.
One thing is for sure: the discharge cannot be due to discrimination because of sex as both employees are identical (also) in this respect.
Now let's assume one of them is homosexual and the other is heterosexual, and the employer fires the heterosexual employee emphatically because he is not homosexual.
Now this discharge still cannot be due to discrimination because of sex, because to the mind of the employer the employees are identical in that respect. However, it is discrimination because of sexual orientation.
We have found an example of discrimination because of sexual orientation that is not at the same time discrimination because of sex.
You call an argument "refuted", when it has been demonstrated that it employs at least one false premise (using the explanation of "refutation" in your comment of June 26, 2020 at 1:16 PM).
And let me try a reductio ad absurdum on the Gorsuch argument as well and show that it leads to contradiction:
DeleteOr are we mistaken assuming that there is discrimination because of sexual orientation when an employer of exactly two male employees fires one of them because of his sexual orientation (say being heterosexual)?
Maybe it isn't discrimination because of sexual orientation after all?
In fact, it cannot be. Why, you may ask?
Well it is obvious: it cannot be and therefore is not discrimination because of sex. Per Gorsuch and the Supreme Court majority, it cannot therefore be discrimination because of sexual orientation. That the employer intended to discriminate because of the sexual orientation is irrelevant and just goes to show that he hasn't thought things through. If he had, he would have known that he only can achieve his goal of discrimination because of sexual orientation by ensuring that he discriminates because of sex. He would have had to first hire a homosexual woman, and then fire the heterosexual man to achieve his goal of discriminating against the heterosexual man because of his heterosexual orientation. Then the employer would have discharged the heterosexual male for a trait (being attracted to women) that the employer tolerates in a woman.
There is a second reason, independent of the first: because to the mind of the employer saying one employee is homosexual and the other is heterosexual is just another way of saying both employees are materially identical in every aspect. Because sexual orientation is one aspect they are identical in that aspect as well. Therefore it is impossible to distinguish between these employees on account of their sexual orientation, which is another way of saying that the employer cannot discriminate against them because of their sexual orientation. That he claims to have done so shows not that he did so but that he is either a bad logician or delusional.
* * * * * * *
Gorsuch's reasoning leads to contradiction(s). Which is just another way of saying that it is refuted.
KC
DeleteA particular employer does not need to have more than one employee for unjust discrimination to occur against that employee.
The principle of when and how unjust or unlawful discrimination occurs is deduced by reasoning through alternatives that can be found in places of large employment, or by using carefully reasoned thought experiments to compare and contrast logical possibilities.
Once the principle of what is and is not unjust discrimination has been reasoned and decided that principle applies even if a particular employer has only one employee.
Say, a small business changes ownership; the new owner is a racist and terminates the single employee because of race. It is not necessary for that employer to have had additional employees of other races to compare and contrast outcomes based on race in order to rule that terminating that single employee on the basis of race was unjustified discrimination.
Title VII deals with actual discrimination not theoretically possible discrimination, which is why you are wrong.
DeleteYou are providing a textbook example of moving the goalposts. Deal with the argument at hand, if you think you can refute it by all means show me how. Until then, please, just quit the trolling.
KC
DeleteYes, the actual discrimination of terminating an employee on a discriminatory basis even if that employer only has one employee.
"Deal with the argument at hand"
I did, if you don't recognize that fact, well, OK.
I provided you with the race based termination example because in that case the discrimination is perhaps easier to recognize.
The unjust discrimination for a racist termination of a single employee is judged as unjustified by comparison to the population as a whole, not merely the employees that employer happens to have employed at that particular time.
The fact that there are no other employees at that place of business does not make a racist termination any less racist and therefore unjustified.
The majority held that termination for sexual orientation is intrinsically sex discrimination. Once that principle has been established, which the majority did in fact establish, then that principle is applicable irrespective of the number and makeup of employees at any particular place of employment.
Just a reminder: your first sentence here was "I did not find any refutation of the logic of the majority …" and see where you are now, after ample refutation of that "logic" has been provided (in the Alito dissent etc.)?
DeleteYou now claim "The majority held that termination for sexual orientation is intrinsically sex discrimination. Once that principle has been established, which the majority did in fact establish, then that principle is applicable".
I'm sure if you can see that the goal posts are not where they were at the outset. Who has moved them?
So again, stick to the discussion at hand. Then we can move on to another topic.
That should read: "I'm sure you can see that…"
DeleteKC
Delete"after ample refutation of that "logic" has been provided (in the Alito dissent etc.)?"
No sound refutation has been provided in the Alito dissent or any place else that I have seen here.
Alito merely asserted a distinction without a difference by a simple re-wording that does nothing to refute the logic of the majority, as I covered at some length in other posts.
"So again, stick to the discussion at hand. Then we can move on to another topic."
Every commenter is free to make points as desired and as they come up in conversation.
Is there a reason why you do studiously avoid the part about the magically moving goalposts?
Delete"I'm sure if you can see that the goal posts are not where they were at the outset. Who has moved them?
DeleteSo again, stick to the discussion at hand. Then we can move on to another topic."
Every commenter is free to make points as desired and as they come up in conversation.
I already addressed your goalpost point. You might have a single objective, or a primary subject of interest, or a single goalpost, and that is OK for you. If various points arise I remain free to address each of them in turn, and that is OK for me.
From J. Scalia's prophetic dissent in Lawrence v. Texas, 539 U.S. 558, 602–05, 123 S. Ct. 2472, 2496–98, 156 L. Ed. 2d 508 (2003), in which a majority of the court found protection of homosexual conduct in substantive due process (a court made category from the 1930's) and J. O'Conner concurred in the judgment, preferring to use the equal protection clause of 14th amendment. Scalia's response, in part:
ReplyDelete"One of the most revealing statements in today's opinion is the Court's grim warning that the criminalization of homosexual conduct is 'an invitation to subject homosexual persons to discrimination ... in the private sphere[].' Ante, at 2482. It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed. Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children's schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive. The Court views it as 'discrimination' which it is the function of our judgments to deter. So imbued is the Court with the law profession's anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that culture are not obviously 'mainstream'; that in most States what the Court calls 'discrimination' against those who engage in homosexual acts is perfectly legal; that proposals to ban such 'discrimination' under Title VII have repeatedly been rejected by Congress, see Employment Non–Discrimination Act of 1994, S. 2238, 103d Cong., 2d Sess. (1994); Civil Rights Amendments, H.R. 5452, 94th Cong., 1st Sess. (1975); that in some cases such 'discrimination' is mandated by federal statute, see 10 U.S.C. § 654(b)(1) (mandating discharge from the Armed Forces of any service member who engages in or intends to engage in homosexual acts); and that in some cases such 'discrimination' is a constitutional right, see Boy Scouts of America v. Dale, 530 U.S. 640, 120 S.Ct. 2446, 147 L.Ed.2d 554 (2000).
"Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one's fellow citizens is one thing, and imposing one's views in absence of democratic majority will is something else. I would no more require a State to criminalize homosexual acts—or, for that matter, display any moral disapprobation of them—than I would forbid it to do so. What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new 'constitutional right' by a Court that is impatient of democratic change. It is indeed true that 'later generations can see that laws once thought necessary and proper in fact serve only to oppress,' ante, at 2484; and when that happens, later generations can repeal those laws. But it is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best."
JD wrote (quoting Scalia),
ReplyDelete"But it is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best."
As Scalia put it in a different place,
"Persuade your fellow citizens it's a good idea and pass a law. That's what democracy is all about. It's not about nine superannuated judges who have been there too long, imposing these demands on society."
Nemo
DeleteScalia clearly did not understand that rights are endowed by our creator irrespective of majority opinion.
We Americans do not now live in a democracy, nor have we ever lived in a democracy, nor would any reasonable person ever wish us to live in a democracy, nor was our nation founded as a democracy.
Our nation was founded as, and remains, a democratic constitutional republic.
Scalia had the origins of rights back to front. The constitution does not grant rights. Our rights are granted to us by our creator. The constitution merely provides an incomplete enumeration of some of the more obvious rights we all enjoy.
Scalia, despite his obviously learned background, clearly lacked after all, a clue as to what democracy is all about.
What are you smoking? Please provide some citation to your disgusting and malicious misrepresentation of Scalia's position.
DeleteStardustyPsyche,
DeleteAFAIK, Scalia never said the Constitution "grant rights" or that the rights enumerated therein are complete. In fact, he made many statements to the contrary. So I'm curious where you got that idea.
I don't see any conflicts between "rights endowed by our creator" and upholding those rights through a democratic process, i.e., people reasoning with one another and passing laws via majority vote.
KC,
DeleteI was just responding to the quote provided by JD above, for example:
"What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new 'constitutional right' by a Court that is impatient of democratic change."
A right does not have to be enumerated in the constitution, sometimes it can be deduced from other principles. Nor does the court need to wait for legislation to enforce such rights, one reason being that the majority has been known to legislatively trample the rights of the minority, and in such cases it is justified that the court take action to protect the rights of the minority against the unjust legislation of the majority, or the unwillingness of the majority to enact protective legislation.
Nemo,
Delete"I don't see any conflicts between "rights endowed by our creator" and upholding those rights through a democratic process, i.e., people reasoning with one another and passing laws via majority vote."
There may or may not be a conflict between the two. That’s what the court often does, decide if there is or is not such a conflict, on a case by case basis.
The chief justice, John Roberts (who, of course, voted with the majority on this case), a Bush appointee, said at his confirmation hearing "It's my job to call balls and strikes, and not to pitch or bat." This case came up through the courts and he called a strike on employment discrimination based on sexual orientation. In this case it was 6 strikes, yer out.
Stardust, that sounds quite different from your comment that provoked my ire.
DeleteA few points: the Constitution does grant certain rights (for example the franchise) and it protects other rights that are God-given rights.
Scalia warned against the Court usurping the legislative power the Constitution's system of checks and balances reserves to the Article I and Article II branches.
Your vision of the Article III branch as superlegislature is antithetical to the system of checks and balances that protects the rights of individuals and the political freedoms of both minority and majority better than any other system of government throughout history.
And whatever it is, a judicial dictatorship certainly is not democratic, not constitutional, and hardly a republic.
StardustyPsyche,
DeleteLet's not forget that the Constitution itself is a (super) law adopted by the majority, i.e. "We the People". When the Court strikes down a particular law as unconstitutional, it is nevertheless acting with the authority given by the people.
According to Justice Scalia, what is interesting and remarkable about the Bill of Rights is that the majority imposed certain restrictions upon itself to protect the rights of the minorities. I take it that, since a majority today may very well become a minority tomorrow, and a majority in one state may be minority in another, it is prudent (not to mention just) to enact laws that would protect the rights of both.
If this understanding of the Bill of Rights is correct, then it follows that the Court has no authority to arbitrarily expand the scope of the constitutional restrictions, and impose more restrictions on the people which the people haven't agreed to impose upon themselves. In other words, the Court has no authority to usurp the power of legislation.
Of course, if one likes monarchy or oligarchy, this is not an issue at all, as long as justice is served in his view. But it is contrary to the principle of democracy.
Nemo
Delete"In other words, the Court has no authority to usurp the power of legislation."
If that were true the court would not be able to strike down legislation. Clearly your statement is not the case.
Further, the court does not make unsolicited rulings. The 9 justices do not simply make up rulings that nobody asked for and issue them as edicts, which is just what a dictator does.
All Supreme Court rulings are the product of cases that have been filed by persons who have standing to file such cases, and those cases make their way up through the courts until the competing sides are heard and a ruling is made.
The cases are of various sorts, sometimes seeking to overturn legislation, sometimes seeking relief from an injustice that has occurred due to a lack of legislation.
One party’s restriction can be the other party’s relief from injustice. The court does not in general rule on the vast body of legislation regarding how budgets are spent and which programs are funded or most of the things that are covered by legislation.
The court hears cases when one party claims some sort of injustice has occurred or some violation of the constitution has occurred, and in those cases the courts have the legal right and power to issue their rulings. Clearly, a case claiming that a sex based unjust discrimination has occurred is squarely within the domain of the court’s jurisdiction.
StardustyPsyche,
Delete"In other words, the Court has no authority to usurp the power of legislation."
If that were true the court would not be able to strike down legislation. Clearly your statement is not the case."
You are confusing jurisdiction and legislation.
When the Court strikes down a statute as unconstitutional, it is saying that the statute cannot be reconciled with the Constitution, and the super law (i.e., the Constitution) takes precedence. That is jurisdiction, the proper function of the Court. By contrast, when the Court changes the scope and meaning of the Constitution itself, it is making laws, i.e., legislation.
As Justice Scalia would say, the question is not what is justice, but *who* decides. That is the difference between monarchy, oligarchy and democracy.