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Old 06-16-2020, 02:25 PM   #1
Flint
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Gorsuch Decision, Explained (I read it)

Basically Neil Gorsuch in the majority (6-3) opinion read the Civil Rights Act of 1964 as follows: (Title VII) you can't discriminate against an individual based on their sex, and sex is a but-for cause, meaning no other factors matter in the decision, if sex is included it's the basis of a discrimination that you're not allowed to make. (A but-for cause can be tested by removing factors one at a time and observing the results.)

Next he points out that you can't discriminate against someone for being gay or transgender without including sex as a part of the basis of your discrimination, and you're not allowed to do that. Meaning that if you have two employees that are sexually attracted to men, and one of them is a man and one of them is a woman, you can't form the basis of a discrimination against the man for being gay without including their sex, and you you're not allowed do that. If you have an employee that was assigned female at birth and an employee that was assigned male at birth, and they currently are presenting and identify as male, you can't discriminate against the employee that was assigned female at birth because you can't form the basis of that discrimination without including their sex and you're not allowed to do that.

This is a textualist interpretation-- legally Conservative, which is distinct from politically Conservative. Gorsuch states that the intent of the authors in 1964 doesn't matter because any interpretation of the law that goes outside what he calls the "plain reading" requires "extra-textual" reasoning, and if the court were to engage in that process, it would violate the law-making powers of a representative Congress. He states the court will continue to "reject" that type of reasoning. Among the many reasons that this is a monumental decision is that Gorsuch explicitly signals which of the two core principles of legal conservative thinking weighs more heavily-- "plain reading" always wins against author's intent.

This article has a PDF of the decision that you can download: https://www.law.com/nationallawjourn...gainst-firing/
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Old 06-16-2020, 03:54 PM   #2
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Moral of the story, write good laws.

On the other hand...
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Old 06-16-2020, 09:44 PM   #3
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They accidentially did.
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Old 06-17-2020, 12:45 PM   #4
Flint
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Quote:
Originally Posted by BigV View Post
Moral of the story, write good laws.
Quote:
Originally Posted by Happy Monkey View Post
They accidentially did.
The way Gorsuch explains it, it's air-tight and irrefutable--
and this is upon "plain reading" which he reiterates cannot be second-guessed without usurping the powers of Congress.
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There's a level of facility that everyone needs to accomplish, and from there
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. . . . . . . . . . . . . . . . . . . . . . . . . . Terry Bozzio
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Old 06-17-2020, 02:51 PM   #5
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Scalia's objection was that men and women were equally allowed to be heterosexual, so where's the discrimination?
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Old 06-17-2020, 03:02 PM   #6
Flint
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Quote:
Originally Posted by Happy Monkey View Post
Scalia's objection was that men and women were equally allowed to be heterosexual, so where's the discrimination?
Title VII doesn't define the limits of discrimination between classes of people, it only refers to the individual in each case. To define an individual as having hetero- or homo- sexuality, you necessarily have to include their "sex" in that determination. And because "sex" is a "but-for" cause (but-for "sex" the outcome would be different), you can't discriminate based on that. This is a law that has been on the books for 56 years.
__________________
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There's a level of facility that everyone needs to accomplish, and from there
it's a matter of deciding for yourself how important ultra-facility is to your
expression. ... I found, like Joseph Campbell said, if you just follow whatever
gives you a little joy or excitement or awe, then you're on the right track.

. . . . . . . . . . . . . . . . . . . . . . . . . . Terry Bozzio
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