Based on the Civil Rights Act of 1964, the Supreme Court Rules for Gay and Transgender Rights.
Conservative Justice Neil Gorsuch wrote the opinion, which was joined by Chief Justice John Roberts in addition to the four more-liberal members of the court. “An employer who fires an individual merely for being gay or transgender defies the law,” the opinion said.
For all its cultural and political controversy, Monday’s case was simple, Justice Gorsuch found. He focused on the text of the statute Congress passed in 1964, forbidding workplace discrimination against an individual “because of…sex.”
There was no getting around it, he said: “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it wouldn’t have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
In dissent, however, Justice Samuel Alito, joined by Justice Clarence Thomas, called the majority’s reasoning “preposterous.” Rather than strictly reading the statute, he wrote, “there is only one word for what the Court has done today: legislation.”
Preposterous?
Yes, of course.
The minority opinion was preposterous.
Gorsuch upheld the spirit and the letter of the 1964 law, no more no less.
Trump Disagrees
The Trump administration argued that the 1964 law doesn’t cover LGBT workers. That position ran counter to the views of the U.S. Equal Employment Opportunity Commission, which argued that Title VII forbids any employment discrimination based on gender identity or sexual orientation.
Once again Trump appeals to his base for the nth time.
Activist Court
Republicans and Democrats alike want the law to be upheld (except when they don’t).
Today, Trump and the Republicans want an activist court to rule on something other than the law says. Most of the time Republicans bitch about the activist court.
This is a losing issue for Trump. Those who agree with him will never vote for anyone other Trump, ever.
Mish
Right up there among the worst decisions in Supreme Court history. The Court just can’t help itself; it demands the right to legislate from the bench. What is astounding is that Gorsuch represented himself as an originalist and now we find he has no more judicial restraint than Ginsberg. Since it is so much easier for 5 Justices to push forward major legislative initiatives, we might as well abolish the House and the Senate. And, since the lower courts are determined to over-rule the decisions of the Executive Branch, we might as well abolish it as well. From now on the courts can do it all!
Case study – my gay-hating boss says he’s going to fire me because I am a man married to a man. So… I tell him My husband just had a sex change yesterday so now I’m married to a woman so I’m not a gay man anymore. Can my boss still fire me for being gay? So now he says my spouse is still a man because he was born that way. Ok. New case study. I am a woman married to a woman who was born a man but changed her sex to a woman. The SAME BOSS says he’s going to fire me for being gay. I say – no you can’t because I’m married to someone who was born as a man, so if you only accept someone’s birth sex then I am a woman married to a man. It doesn’t matter that his penis was removed – right? So…. dear horrible evil boss. Which one can you fire and which one do you have to keep? You can’t have it both ways. New case study – I was born with a uterus and a penis. My parents made a mistake and removed my uterus but I know that I’m a woman. The SAME BOSS says he will fire me for being gay but I’m not gay. I was born a heterosexual woman and I am still a woman but my uterus was removed without my consent and I didn’t have my penis removed but I don’t use it. Can he still fire me? IN 27 Republican States he can fire me, until today when everything changed. By the way – in every case I am a top performer in my job which my boss does not deny. I’m the best employee he ever had but he hates gay people.
I’m a little confused.
If you’re gay (or whatever else), and your boss hates gay (or whatever else) people…
Why would you want to work for him, and in the process help him be successful?
And if the company you work for refuses to address his “hate” – why would you want to work for them and help them be successful?
That makes ZERO sense.
Who you choose to work for is just as much a choice as who they choose to hire or not – or fire for that matter.
If you as an individual are free to work for whomever you choose, and quit working for someone whenever you choose for whatever reasons you choose – which you do NOT have to disclose, then shouldn’t they enjoy the same freedom of choice? Or do they lose that freedom simply by choosing to employ you?
If you reply, please don’t quote the laws to me – this isn’t about that. This is a question about principles and philosophy notwithstanding whatever the law says.
This is a great victory for workers and humans. Most Americans didn’t realize that in 27 Republican states, you can fire someone just for being gay. I don’t think the Republican voters are as anti-gay as Trump thinks they are – the party leaders got stuck in the 90s.
Government meddling in the lives of people, is always a great victory. The more they meddle, the great-victor’ier it all gets. Just imagine the great-victoriness of having to ask one of those great, victorious ambulance chasers what you are allowed to eat for breakfast in the morning; in order to make sure you don’t commit the horror of choosing to eat something which a non-black, non-gay, non-woman, non-native, non-PC blah, blah produced!
Employers should be able to hire and fire for any reason or none.
What part of freedom of association are you incapable of understanding?
Corporations are legal fictions. When it’s a sole owner or partnership with unlimited liability I would concede your point. For modern corporations with liability shields would absolutely reject your point.
Corporations don’t make hire/fire decisions. Nor any other decision. Only rational individuals do. So you are still left banning people, not gobladygooks, from choosing freely who to associate with.
“Liability shield,” as originally intended, only applied to debts incurred by the corporate entity. In any legitimate society and legal system, if some dude decides to shoot, rape or defraud someone, it’s irrelevant whether he does it during some arbitrarily cooked up “work hours,” or not. It’s his decision to act, and he bears full responsibility. Meaning, noone else bears any.
Legitimate corporate “liability shields” have nothing to do with hiring and firing, misconduct nor anything else. Of course, like all else in Dystopia, where all and everything is explicitly arranged solely to facilitate maximal access for ambulance chasers and other dregs to insert themselves extractively into value chains built and operated by their in-all-ways-but-junta-connectedness superiors, this is no longer practiced case. It’s a lot more remunerative for ambulance chasers and other leeches and thieves to have arbitrary access to as many resrouces as possible, after all.
But that only means abuse of corporate liability shields is the issue to be resolved. Which you specifically don’t do, by continuing to make corporations even more “special” and superordinate to individuals by arbitrary fiat.
The way real world relations actually work, anywhere and everywhere, from insects to aliens; an individual, as in a rational, thinking being, is always who decides whether to hire or fire some other individual. Or, even more fundamentally: an individual decides which other individuals to invite over to help raise a barn. Even “hire” and “fire” is merely shorthand for deciding who to invite over fr some reason known only to the one who does the inviting. Whether that reason is to drive some nails, have your children, fight your war, have a drink or whatnot, is utterly irrelevant. Ditto whether you hand the one you invite over a buck, a wedding ring or nothing at all while he’s there.
Any attempt at pretending things are somehow different from that, by exalting arbitrarily cooked up aggregating institutions and rituals to first class status, is always and everywhere done solely to excuse meddling by totalitarian juntas in the lives of others, by covering up the fundamental fact that all acts are done by individuals. Not strange, invented beings and entities lying in ponds and distributing swords and whatnot.
Men are “usually, physically stronger than women”, as I have proven it, several times, during 2000-2004, on the streets, homeless. If a person is gay, LGBT, trans, Then, if your stronger than me, your going to have a gun in your hands, & defend Americans, the widowed, disabled, blind, elderly, from foreign enemies. End of discussion!
Glad to see Merrick Garland made it to the court after all.
I am as shocked as anyone, but it does also seem that Roberts is mellowing into a swing type vote as well. I expect black males to be pissed off about this, when they see the ease with which gay people are having rights addressed and recognized, but missing the point that the Civil Rights movement addressed racial unequal justice in the past even as it was not equally applied, while we were passed over entirely, and how our rights are only getting applied piecemeal.
There is a story from world war duece about when the camps were liberated that the surviving Jews and Gypsies and others imprisoned we immediately allowed freedom but the gay people were kept in prison because in German law they were real convicted criminals. So it has been with the application of US rights laws. Sixteen states still have laws on the books making certain crimes out of the homosexual life, activities, and applied only to gay men, such as sodomy. Mostly unenforceable now, but still on the books for that day they hope for, when the court overturns these rulings.
Blacks have been denied rights and no argument, but it was never actually illegal to BE black. And they have said to my face in years past that gay men had no leg to stand upon by comparing our struggles for rights when we could hide and pretend to be straight while they are going to obviously be black (Tell that to Michael Jackson who transformed himself into a white version of Diana Ross). Am I the only person that sees the flaw in this argument? Put the shoe on the other foot, if a black man could “hide” being a black man so he was acceptable to larger society would he be satisfied with that? Even if it meant never having sex again? Then would he be happy? And the sheer inescapable result is that by judging gay men on the basis of who they have sex with and putting them in prison for it, well that should scare anyone when it comes to the power of government in our lives.
I don’t know why we bother with electing 435 members of the House and 100 members of the Senate, when 5 Supreme Court justices can write veto-proof law in a matter of days, or perhaps even just hours. And, since the lower courts are determined to over-rule everything the Executive Branch does, why do we need a President. From here on out, the courts can do it all!
Fat Donnie™—bigot—will be having a bad day. So sad.
But, hey, at least we are not talking about what a stumblebum he is.
On the same day SCOTUS ruled that we are protected by the 1964 civil rights act in employment Trump announces this: https://www.vox.com/identities/2020/4/24/21234532/trump-administration-health-care-discriminate-lgbtq
And do not tell me that nobody in the White House knew the SCOTUS was set to announce their ruling that same afternoon. This was no accident, he did it to feed his base raw meat telling them “That activist court handed down a bad ruling but we are taking care of you by allowing new discrimination against them in other areas. “
It woud be as if the SCOTUS handed down a ruling saying blacks had the right to vote without having to take a literacy test first at the polling station, and the president the same day signed a new rule that they culd not get access to healthcare if doctors did not feel like treating them.
In the words of HRC, deplorable!
You can’t fire teachers and Hollywood people for diddling kids now because the left has declared Pedophiles and Hebophiles protected sexual classifications.
BS. Not in the spirit of the law. Nobody in 1964 was thinking about LQBT.
It’s a democracy. Nothing impedes passing a law or amendment to make this explicit. As with so many issues, what apparently is impossible to simply state as a matter of law is instead introduced by way of not democratically accountable judicial semantic creep engaged in scholastic exegesis and hermeneutical acrobatics.
Seems reasonable:
JUSTICE KAVANAUGH, dissenting.
Like many cases in this Court, this case boils down to one
fundamental question: Who decides? Title VII of the Civil
Rights Act of 1964 prohibits employment discrimination
“because of ” an individual’s “race, color, religion, sex, or national origin.”
The question here is whether Title VII
should be expanded to prohibit employment discrimination
because of sexual orientation. Under the Constitution’s
separation of powers, the responsibility to amend Title VII
belongs to Congress and the President in the legislative process, not to this Court.
The political branches are well aware of this issue. In
2007, the U. S. House of Representatives voted 235 to 184
to prohibit employment discrimination on the basis of sexual orientation.
In 2013, the U. S. Senate voted 64 to 32 in
favor of a similar ban. In 2019, the House again voted 236
to 173 to outlaw employment discrimination on the basis of
sexual orientation. Although both the House and Senate
have voted at different times to prohibit sexual orientation
discrimination, the two Houses have not yet come together
with the President to enact a bill into law.
…….
In the face of the unsuccessful legislative efforts (so far)
to prohibit sexual orientation discrimination, judges may
not rewrite the law simply because of their own policy
views. Judges may not update the law merely because they
think that Congress does not have the votes or the fortitude.
Judges may not predictively amend the law just because
they believe that Congress is likely to do it soon anyway.
If judges could rewrite laws based on their own policy
views, or based on their own assessments of likely future
legislative action, the critical distinction between legislative
authority and judicial authority that undergirds the
Constitution’s separation of powers would collapse, thereby
threatening the impartial rule of law and individual liberty.
As James Madison stated: “Were the power of judging
joined with the legislative, the life and liberty of the subject
would be exposed to arbitrary controul, for the judge would
then be the legislator.” The Federalist No. 47, at 326 (citing
Montesquieu).
You did not read the majority opinion at all. Title V!! of the 1964 Civil Rights Act never allowed discrimination against a minority based upon sex in the first place. It has just been treated as if it did by state and federal officials, as well as employers across the country. It would be IMPOSSIBLE for the congress to enact a law that covers every possible situation and interpretation so such laws as the 1964 CRA must be written broadly and had they intended to make it apply to everyone BUT gay people then they easily could have written in an exclusion for them, but say you hate Jews and were pissed that the 1964 CRA allowed Jews to sue you for firing them when you found out an employee was Jewish. (keeping in mind that Jews make up 1.5% of the population while gay people make up 8% of the population). You know that it was the SPIRIT of the law that no American should ever be faced with hiding who they are even if that is possible in order to have the same rights as you do. The spirit of the law is really the same as the constitution, that we are all created equal and all have the same damned rights. You cannot carve out little pockets of the population and say to them based on who you are employers are exempt and can discriminate against you.
This is why the right “conservatives” are always going to fail, if you have to deny rights to a minority in order to feel good about yourself then you are basically evil, it takes time to fight back but in the end YOU lose not me.
But sexual orientation is a little more complicated than the color of your skin or hair. Sexual orientation is a concept that applies to certain forms of sexual behavior. But we do discriminate all the time on the basis of sexual behavior (even legally), to begin with (statutory) rape, pedofiles, pornography (in the past), etc. Sexual behavior is a much more complex and a greater challenge to formulate a legal framework. And attitudes to it proves to shift far more than elementary prohibitions on things like theft or murder.
So disabled people didn’t need the Supreme Court to make law for them, they got Congress to do it.
Title VII makes it unlawful for employers to discriminate
because of “race, color, religion, sex, or national origin.” 42
U. S. C. §2000e–2(a)(1).2 As enacted in 1964, Title VII did
not prohibit other forms of employment discrimination,
such as age discrimination, disability discrimination, or
sexual orientation discrimination.
Over time, Congress has enacted new employment discrimination laws.
In 1967, Congress passed and President
Johnson signed the Age Discrimination in Employment Act.
81 Stat. 602. In 1973, Congress passed and President
Nixon signed the Rehabilitation Act, which in substance
prohibited disability discrimination against federal and certain
other employees. 87 Stat. 355. In 1990, Congress
passed and President George H. W. Bush signed the
comprehensive Americans with Disabilities Act. 104 Stat. 327.
To prohibit age discrimination and disability discrimination,
this Court did not unilaterally rewrite or update the
law. Rather, Congress and the President enacted new legislation,
as prescribed by the Constitution’s separation of
powers.
WRONG, as the court pointed out in Obergefell v. Hodges that ended the ban on marriage EQUALITY the majority ruled that those are not NEW or SPECIAL rights, and the court was NOT granting those rights to gay people. They ruled that gay people were already covered by the laws and the constitution and simply said that those rights were systematically being denied because of discrimination that is already illegal. They just did the same thing with employment discrimination and right on cue the right is bleating about special rights and original intent.
One can be against Trump and still want to uphold the rule of law and separation of powers between the parts of the federal government.
Seems those opposing this decision are citing the same Federalism that caused opposition from another group to Trump’s threat to deploy active military on domestic US civilians. It looks like politics has spilled from each of the three branches into the others. Is it like mixing soil and sand, i.e. can this not be undone at this point? I think that’s a legit concern.
How may I ask did this ruling or for that matter Obergefell v. Hodges breech the speration of powers? The court was doing its damned job FINALLY in ruling that employers cannot discriminate based on sex. That is law even if the filthy pigs on the right piss and moan about it.
Well, the final opinion belongs to the USSC. And it was a 2/3 majority opinion. So I would say anyone else’s opinion is quite irrelevant.
You are begging the question that arises, which is if such things should be left to the opinion of the judiciary, or whether they are discrediting themselves by usurping the power of the legislature.
Marbury vs. Madison was like 200 years ago. That ship circumnavigated the globe like 100 times already.
Through that decision, the Supreme Court usurped authority that does not belong to them. That decision should be revisited and reversed.
I encourage you to figure out a way to bring suit and have your case heard by the court. Or maybe you could persuade Congress to legislate the Court’s authority away. Or you could persuade 38 states to back an amendment.
That should keep you busy for the remainder of your days.
Or you could muse for a while on why the status quo has lasted 204 years and accept that Marbury v. Madison is settled constitutional law.
Congress can act against this ruling if it disagrees.
It actually cannot, the court has ruled that the law applies to LGBQT people the same as everyone else and any such new law the congress could pass would be DOA as unconstitutional. For that matter the entire Civil Rights Act of 1964 with all its subsections did nothing more than ENFORCE existing constitutional rights and lay down punishments for violating them, it did not create any new rights. The courts have simply said that the rights always existed in the constitution and were being institutionally and illegally denied to certain classes of people. The problem with that was that the law never recogognized the LGBT COMMUNITY as a class of the population. What makes them a separate class is the discrimination and denial of rights they already had. The court is simply saying in recent rulings that the LGBTQT COMMUNITY is a protected class after all, as witnessed by the fact that so many individuals, businesses, and governments are denying these citizens their rights. Just as they denied immigrants their rights, women their rights, blacks their rights, Jews their rights, etc.
Right, as long as it is just homos we can go out of our way to deny them the SAME rights as you enjoy. While we are at it though why don’t we also finally get justice for the MAJORITY and make it illegal for blue eyed people to vote. Because after all it is exactly the same thing.
Clearly you did NOT bother to read the majority opinion. And why should you when you know in advance it is going to make a reasonable and rational argument that destroys your own stupidity and hate?
As a gay man I was fired from a job in Florida for no other reason than I was gay, and it is true they would not come right out and fire me because the state had a policy against that, but they passed me over for promotion six times when the state also had a policy of promoting from within in casaes of internal openings, and when confronted they simply said Florida has no law protecting gay people from discrimination. My boss said to me I may have had to hire you because you are disabled vet but I never have to promote you. Happily the bastard died of a heart attack six months later. Unfortunately that killed my best witness against the state too.
But not everybody is fair. This kind of stuff cannot always be addressed by the legal system. Lots of companies treat employees unfairly for a host of reasons, such as medical history, most of which are not practical to state as a category of law. You can’t force people to be fair, you can only draw a few lines in the sand. In terms of things such as promotion, it is generally very hard to prove that some decisions were taken on unfair or even illegal grounds, even if everybody kind of knows it.
That is true and it is the reason we say 3 steps forward and 2 steps back. Progress is so very slow.
Marbury v Madison was wrong. 200 years of wrong does not make it right, never will either. For that matter Calder v Bull was also wrong at every level. To permit retroactively, even if for government “civil” matters should require an amendment to the Constitution.
Thank you for the laugh of the day.
Did you know that the Articles of Confederation were illegally usurped by the Constitution! True fact.
Still waiting for that 232-year wrong to be righted.
Funny thing:
In the majority opinion, Gorsuch writes:
“An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in the opposite sex. Sex plays a necessary and undisguisable role in the decision…”
Put simply: If you can’t fire a woman for having sex with men, you can’t fire men for having sex with men – and vice versa. If you can’t fire a woman for dressing and acting like a woman, you can’t fire a man for dressing and acting like a woman – and vice versa.
This is, in fact, a plain reading of the law.
Which means that the court delivered it’s decision to protect LGBT rights based solely on the existence of biological sex regardless of the “traits or actions” in which any member of either sex chooses to engage.
No, it means that the employer has no business in determining the sexuality of the individual.
Did you actually read the opinion?
Definitely sexism to rule on whether someone can or cannot be fired for their gender. It is hypocritical to rule that no attention should be paid to gender, because they are doing just that.
“
“An employer who fires an individual merely for being gay or transgender defies the law,” the opinion said.
“
Of course what it didn’t say, is that anyone forbidden from hiring and firing whomever he pleases, on account of whatever weirdo superstitions he may or may not hold, no longer enjoys even the remotest trappings of anything even resembling freedom. No even possibly legitimate law, of any kind, takes it upon itself to have any idea whatsoever, about neither what “sexual orientation” some individual has; nor who is, or is not, “hired” nor “fired” by whom. Insetad, inserting itself into entirely private matters, is the sole and exclusive domain of the totalitarian juntas running entirely totalitarian hellholes.
This sort of nonsense is, unsurprisingly, par for the course in a totalitarian dystopia where the overriding, and largely only, goal; is to ensure every single action, from drinking a glass of milk on upwards must, at the point of all of the juntas guns, cut ambulance chasers, apparatchiks and other negative-value-add rabble in, to the greatest extent possible, of course.
So you are saying it is more than okay for an employer like the state of California to fire an empoyee and use the excuse that they were fired for being heterosexual.
It’s not OK for any part of any government, to have even the remotest idea, nor concern for, why dude A chose to ask dude B instead of dude C to do a job he wanted done.
What is important, is that government is limited. Which implies, as a necessity, that they don’t have the power to barge into every single human relation, just because some nosy, busybody taxfeeder may feel it isn’t his idea of “OK.”
Correct. None of these so-called “rights” have anything to do with the proper role of government, but the 99.9% are now assuming (you can’t call it thinking) that there’s GOT to be a government gun stuck in every back if we’re going to have a society of freedom and justice. You can’t make this stuff up, unless your name is Orwell.
So what ever happened with the trump tax return case they took up a few weeks back?
By the way the other case that the court refused to take up today was protection for cops, and other public officials who have laws protecting them in the coarse of doing their jobs. Only Sotomayor and Clarence Thomas (the two obvious non-caucasian members of the court), voted to take up this case. It is telling the others did not because it means they are in favor of protections for all public employees.
Did Sotomayor dissent on one or more of the QI cases? The news stories make it seem like Thomas was the only dissenting voice. However, there were multiple cases – perhaps he was alone on just the Baxter case – which most stories seem to focus on.
Regardless, his dissent was strong…
He lays it out clearly and succinctly: The original legislation, passed in 1871 had no “clearly established law” test and no legal treatises from that time period all the way until 1981, when the USSC established the doctrine, ever discussed anything of the kind. The entire “established law” doctrine was created out of whole cloth…
Furthermore, his dissent on the court’s refusal to take up the 2A case from New Jersey was just as strong, if not stronger.
Wish the rest of them had as much spine for these cases as they do for the clearly open-and-shut but politically popular ones like the one Mish is writing about.
Having said that, I think Thomas was wrong on this case. The law couldn’t be more clear… Which just goes to show that having a spine doesn’t mean one is always correct. But if he truly believes the law doesn’t confer that protection, then I would rather have him argue it than simply go along with the crowd because it is either popular or easy – or both.
This goes to show that the Republicans nominate whomever they want but even social conservatives like Gorsuch have no choice when it comes to actual rights for all human beings in America.
What is so difficult about “A human is a person, is a soul, and ALL should have basic inalienable rights”? What is the need to discriminate against ANYONE’s human rights?? Other than selfish ignorance of course.