Thoughts on SCOTUS and the Sex Discrimination Decision

Note: Thanks to Andria Jensen and Tiffany Graves for providing valuable feedback on my drafts.

I love the Supreme Court. Over the years, this love garners either praise or ridicule, depending on the latest decision posted by the Court and the beliefs held by the individual issuing judgment. To be clear though, my love stems not from the agreeableness of the Court’s opinions to my core internal beliefs, but rather the manner and the language that the Court expresses in their written opinions. (For those looking for the tl;dr in this particular case, I concur with the majority opinion in Bostock v. Clayton County)

In this 172 page decision (the PDF at this link is the one I refer to in my citations), I bookmarked passages on 37 pages. I love to see how the majority lays out why it chose to rule as it did (even calling out where the dissenters dissent), then reading why the dissents believe the majority are wrong. In this particular case, it’s also funny to read the Junior Justice (Kavanaugh) do some eye rolling mansplaining to the majority (including Chief Justice Roberts) and pull a “Bless their heart” to the majority Justices.

I wasn’t sure how to break down my thoughts: along the lines of language nuances discussed, along the lines of points/counterpoints made or some other loftier breakdown. For simplicity sake though, I think I’ll just construct them based on the 3 sections: the syllabus/majority opinion, the dissenting opinion by Justice Alito (joined by Justice Thomas) and finally the dissenting opinion by Junior Justice Kavanaugh.

Basically, the discussion before the court was whether or not it’s against the law to discriminate against sexual orientation, gender identity or being transgender. The statute in question is in Title VII of the Civil Rights Act:

[Section 703]
(a) It shall be an unlawful employment practice for an employer –
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.

The majority found that indeed it is illegal to discriminate upon such grounds.

The Majority Opinion

Justice Gorsuch wrote the opinion for the majority, which included Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor and Kagan. It should be noted, because that general public will wonder, that Gorsuch was the first judge appointed by President Trump to fill the vacancy of Justice Scalia. (This fact is not lost on Justice Kavanaugh as he calls upon the ghost of Justice Scalia in his dissent, ignoring that the majority also calls upon the same ghost.)

All 3 employees in the cases presented before the Court were dismissed after revealing they were gay, lesbian or transgender. All 3 employers acknowledge that this was the sole reason for their dismissal.

The employers also stress that homosexuality and transgender status are distinct concepts from sex, and that if Congress wanted to address these matters in Title VII, it would have referenced them specifically.

Syllabus, page 4, page 4 of PDF

The court immediately follows that with a dissent to the employers opinions:

But when Congress chooses not to include any exceptions to a broad rule, this Court applies the broad rule.

Syllabus, page 4, page 4 of PDF

The conclusion of the syllabus speaks to the very heart of what people accuse the Court of doing too often.

Finally, the employers turn to naked policy appeals, suggesting that the Court proceed without the law’s guidance to do what it thinks is best. That is an invitation no court should ever take up.

Syllabus, final sentence, page 4, page 4 of PDF

The majority clearly state upfront. “They wanted us to make crap up, but instead we chose to stick to what was written in the law.” By denying that request from the employers, the two dissenting Justices accuse the majority of doing that exact thing anyways. ¯\_(ツ)_/¯

The employers’ and dissents’ claim is there’s no way when a member of Congress added “sex” to the discrimination list as a poison pill to stall the Rights Act’s passage, that he meant sexual orientation too. However, I love the wording here:

Sometimes small gestures can have unexpected consequences…But the limits of the drafter’s imagination supply no reason to ignore the law’s demands.

Opinion, Page 2, page 6 of PDF

Just because said lawmaker couldn’t imagine a reason to fire someone that would fall under the broad jurisdiction of the law doesn’t mean that reason is excused. Many in the public would call this karma. The very step made by injecting language at the last minute to try and stop the Civil Rights Act from happening (so that hate could continue) is now the very language used to destroy another round of hate.

Justice Gorsuch references the wording of the Price Waterhouse v Hopkins ruling of 1989 with:

Title VII’s message is “simple but momentous”: An individual employee’s sex is “not relevant to the selection, evaluation, or compensation of employees.” The statutes message for our cases is equally simple and momentous: An individuals homosexuality or transgender status is not relevant to employment decisions.

Opinion, Page 9, page 13 of PDF

To understand how the majority comes to this conclusion, Justice Gorsuch writes:

At bottom, these cases involve no more than the straightforward application of legal terms with plain and settled meanings. For an employer to discriminate against employees for being homosexual or transgender, the employer must intentionally discriminate against individual men and women in part because of sex. That has always been prohibited by Title VII’s plain terms⏤and that “should be the end of analysis.”

Opinion, Page 12, page 16 of PDF

One of my favorite parts of opinions is the jokes. In Los Angeles Dept. of Water and Power v. Manhart ruling of 1978, the Court found it was discrimination to ask women to contribute more to pension funds than men because women tend to live longer.

An employer’s intentional discrimination on the basis of sex is no more permissible when it is prompted by some further intention (or motivation), even one as prosaic as seeking to account for actuarial tables.

Opinion, Page 13, page 17 of PDF

😂 Oh Justice, you crack me up!

The majority asserts that sexual orientation or gender identity is tied directly to the sex of the employee. In other words, you can’t be a gay man if you’re not a man. You can’t be a lesbian if you’re not a woman. In other words, sexual orientation is a result of a “but for” cause. “Liking men would be fine, but for the reason that you’re a man makes it not okay.” This is the sticking point between the majority and the dissents.

Sex wasn’t the only factor, or maybe even the main factor, but it was one but-for cause⏤and that was enough. You can call the statute’s but-for causation test what you will⏤expansive, legalistic, the dissents even dismiss it as wooden or literal. But it is the law.

Opinion, Page 17, Page 21 of PDF

One point that the employers and the dissents try to employ is that legislators have specifically added sexual orientation into later legislature. They use it as a “See! If you mean sexual orientation, you call out sexual orientation vs just sex.” I have my own reasons as to why that thinking is erroneous, but let’s read what the majority says first.

Maybe some in later legislatures understood the impact of Title VII’s broad language already promised for cases like ours and didn’t think a revision needed. Maybe others knew about its impact but hoped no one else would notice. Maybe still others, occupied by other concerns, didn’t consider the issue at all. (Scalia, J., concurring on cited cases) (“Arguments based on subsequent legislative history … should not be taken seriously, not even for a footnote”)

Opinion, Page 20, Page 24 of PDF

A sticking point for me is that the dissents would have us go back and amend every single law for something that the broad wording already covers. They insist that’s the right way because legislators have been doing it already. We can barely pass new legislation, yet the dissents would have us go back and rewrite old laws time and time again vs saying “Hey, we can stop adding that because it’s already covered.”

I love how when the courts watch out for the under represented, they have no qualms about it. Even when the haterz hate, I.e. the dissents.

As Yeskey and today’s cases exemplify, applying protective laws to groups that were politically unpopular at the time of the law’s passage⏤whether prisoners in the 1990s or homosexuals and transgender employees in the 1960s⏤often may be seen as unexpected. But to refuse enforcement just because of that, because the parties before us happened to be unpopular at the law’s passage, would not only require us to abandon our role as interpreters of statutes: it would tilt the scales of just in favor of the strong or popular and neglect the promise that all persons are entitled to the benefit of the law’s terms.

Opinions, Pages 27-28, Pages 31-32 of the PDF

Like the majority, I feel the benefits of broad laws are self-evident. In science, in human knowledge, and even in self study, we become more aware of things over time. Imagine trying to explain the internet or smart phones to someone in the 1960s. How well would that go? The world is constantly changing, thus broad language is necessary and a blessing to insure that we don’t have to rewrite laws every 5 to 10 years as society advances.

Justice Alito’s Dissent (with Justice Thomas joining)

The arrogance of this argument is breath taking. As I will show…

Just Alito’s Dissent, Page 6, Page 43 of PDF

Oh there’s some arrogance here alright. Although, it may be on the part of one of the three dissents. Perhaps the one who arrogantly assumes he will singlehandedly prove that the opinion of 6 majority Justices is somehow wrong.

The first dissent is interesting because his approach is based on societal norms. Which I find strange for a Justice whose job it is to prove that laws are timeless and written by smart people who know what they’re doing. However, it is not surprising for a Justice who takes each case on its own merit. As opposed to trying to see what the Court has held over time as a collective whole.

His first argument is a hypothetical survey among every American in 1964.

If every single living American had been surveyed in 1964, it would have been hard to find any who thought that discrimination of sex meant discrimination because of sexual orientation⏤not to mention gender identity, a concept that was essentially unknown at the time.

Justice Alito’s Dissent, Page 3, Page 40 of PDF

Justice Alito is taking the wrong approach to try to make his case. He’s saying, “If you said ‘sexual orientation or gender identity’ in ’64, no one would think it was linked to sex.” I agree that the majority of the population would look at you and say, “Gender what?” However, taking the same stance, as ridiculous a stance as it is, if you were to ask every single American in 1964: “Can a female be a homosexual man?” They would have said, “No, by definition a homosexual man has to be a man.” And if you asked every American in 1964, “Can a male be a lesbian?” Most would’ve answered “What’s a lesbian?” since that term didn’t come into popular usage until the 70s. Though I’m sure a handful of forward thinkers would’ve answered, “No, silly. A lesbian has to be a woman.” Does that change the fact that gay men are men and lesbians are women? No. It doesn’t, but Justice Alito would like you to pretend it does. If you don’t name it, it can’t exist! However, I’m sure all the women loving women and men loving men in 1964 would disagree with that.

His next tactic is to say that the sexual orientation couldn’t have been covered by the broad reach of Title VII because it was against the law to be in a same-sex relationship and have certain jobs.

We must ask therefore ask whether ordinary Americans in 1964 would have thought that discrimination because of “sex” carried some exotic meaning under which private-sector employers would be prohibited from engaging in a practice that represented official policy of the Federal Government with respect to its own employees. We must ask whether Americans at that time would have thought that Title VII banned discrimination against an employee for engaging in conduct that Congress made a felony and ground for civil commitment.

Justice Alito’s Dissent, Page 33, Page 70 of PDF

I like how the wrongs of our country and even our own government at the time are justification for continuing to do wrong and ignore the written law today. Simply because someone doesn’t find a hidden treasure chest full of gold until years later, doesn’t mean it wasn’t a treasure chest full of gold for the duration it was hidden. Simply because no one asked the Supreme Court to clarify the law in the years immediately after its passing doesn’t mean the underlying opinion that the majority found was somehow not there this whole time.

Justice Alito’s next point is even more convoluted on the scales of the hypothetical.

On this theory, Representative Smith thought that prohibiting employment discrimination against women would be unacceptable to Members who might have otherwise voted in favor of the bill and that the addition of this prohibition might bring about the bill’s defeat. But if Representative Smith had been looking for a poison pill, prohibiting discrimination on the basis of sexual orientation or gender identity should have been far more potent.

Justice Alito’s Dissent, Page 41, Page 78 of the PDF

So let’s agree with Justice Alito’s earlier hypothetical that no one we surveyed understood gender identity. It’s an absurd assumption, but let’s go with it for the sake of argument, but we can’t. Why not? Because he just pointed out that if Representative Smith really wanted to put out a poison pill, he would’ve done so on “the basis of sexual orientation or gender identity.” In one breath, it “would have been hard to find” someone who knew about gender identity but in the next breath we found not only a person who knew about it, but that person happened to be in the room where it happened! “It” being the writing of the law, that is. Again, if we’re going with this hypothetical, then either Smith knew but didn’t call it out (his bad, not ours) or he didn’t know because he didn’t think it through. In either case, the law stayed broad and that we know is NOT hypothetical conjecture, because thankfully we have the written law that proves it’s broad.

Justice Alito then diverges off into more hypotheticals in pages 45 (82 of the PDF) to 54 (91 of the PDF) of his dissent.

I will briefly note some of the potential consequences of the Court’s decision, but I do not claim to provide a comprehensive survey or to suggest how any of these issues should play out under the Court’s reasoning. (Editor’s note: Footnote added for clarity) Footnote: Contrary to the implication of the Court’s opinion, I do not label these potential consequences “undesirable”. I mention them only as possible implications of the Court’s reasoning.

Justice Alito’s Dissent, Page 45, Page 82 of the PDF

First off, now all of a sudden his hypotheticals surveys are not comprehensive, when the previous ones involved EVERY American in 1964.

Second, he basically goes down a list of other areas where discrimination currently happens that might have to change. The ones I found interesting and questioned were those regarding bathrooms, women’s sports, housing, employment by religious organizations, and healthcare. However, I’ll not cover those in this writeup because of how Justice Alito ends this list.

Although the Court does not want to think about the consequences of its decision, we will not be able to avoid those issues for long. The entire Federal Judiciary will be mired for years in disputes about the reach of the Court’s reasoning.

Justice Alito’s Dissent, Page 54, Page 91 of the PDF

In other words, the majority should rethink its position because it might generate more work for the Court. Or you know, it might not because he started off by saying these were merely “potential consequences”. However, whether they do or do not, he wants us to know one thing for sure that he doesn’t think they’re “undesirable” consequences…unless you don’t want extra work for the Court, then they could be. LOL

Kavanaugh’s Dissent

Whereas Justice Alito’s dissent could be known as “dissent by hypothetical”, Justice Kavanaugh’s dissent could be known as “dissent by hypocritical”.

It would appear that the Junior Justice isn’t quite certain how SCOTUS works just yet. He’s also not sure we know either, so he’s gonna give us a run down refresher.

In the face of 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, for example, rewrite or update securities laws or healthcare laws or gun laws or environmental laws simply based on their own policy views, the Judiciary would become a democratically illegitimate super-legislature⏤unelected, and hijacking the important policy decisions reserved by the Constitution to the people’s elected representatives.

Justice Kavanaugh’s Dissent, Page 4, Page 148 of the PDF

The first part makes it sound like the court just picks laws out of thin air to express opinions on. That is clearly not how the Supreme Court works. Americans, through the justice system, bring to light cases in which they feel they are wronged or have been accused of wrong doing. This is how cases come before the Court. Yes, there are many cases before the Court and the Court chooses which to hear, but they don’t wake up one morning and say to themselves, “I wanna issue a judgment on sexual orientation discrimination today.” To insinuate that the court operates otherwise would lend credence to the very accusations many lob against the Junior Justice himself and his desire to retry Roe v Wade. Those who accuse the Junior Justice of desiring to do the first paragraph, also accuse him of desiring to do the second with regards to abortion law. I find it interesting that he doesn’t take the opportunity to put those rumors to rest by adding abortion to his list of laws that justices shouldn’t rewrite. For a man who knows the power of not listing a particular item, the very act of which is the center of this entire opinion, it is very telling that he purposely (make no mistake, it was purposely) left abortion off that list.

The reason both of these paragraphs are hypocritical is because the majority’s opinion was not to rewrite or update the law at all. It was the opposite. It was to leave the wording of the law as is and apply it as broadly as can be applied by the original writers. If anything, the majority did the opposite or in their words:

When it comes to statutory interpretation, our role is limited to applying the law’s demands as faithfully as we can in the cases that come before us. As judges we posses no special expertise or authority to declare for ourselves what a self-governing people should consider just or wise. And the same judicial humility that requires us to refrain from adding to statutes requires us to refrain from diminishing them.

Opinion, Page 31, Page 35 of PDF (Emphasis added)

While they cannot add to law, it is equally as important the majority points out that they do not diminish what is in the law.

Justice Kavanaugh then quotes W. Eskridge from his book “Interpeting Law”,

The “prime directive in statutory interpretation is to apply the meaning that a reasonable reader would derive from the text of the law,” so that “for hard cases as well as easy ones, the ordinary meaning (to the ‘everyday meaning’ or the ‘commonsense’ reading) of the relevant statutory text is the anchor for statutory interpretation.”

Justice Kavanaugh’s Dissent, Page 6, Page 150 of the PDF

In the Civil Rights Act, in the part that says, “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin,” I think the commonsense reading would say: If it has to do with any of those things, you can’t fire them because of it. If their skin is dark because of color, then you can’t fire them. If they have an accent because of their national origin, you can’t fire them. If they like men and are a man, you can’t fire them. Commonsense, just like Eskridge says.

Yet despite this commonsense logic (which is derived from the majority opinion), Kavanaugh continues to dig himself deeper into this hole.

In other words, this Court’s precedents and longstanding principles of statutory interpretation teach a clear lesson: Do not simply split the statutory phrases into their component words, look them up in a dictionary, and then mechanically put them together again, as the majority opinion today mistakenly does. To reiterate Justice Scalia’s caution, that approach misses the forest for the trees.

Justice Kavanaugh’s Dissent, Page 11, Page 155 of the PDF

The majority looked up the meaning of sex to simply clarify that it means man or woman, because being a man or a woman is a key component to being gay or lesbian respectively. What I find hilarious is that Kavanaugh wants them to look at the trees of sex, but he doesn’t want to see the forest full of branches connected to those trees.

Kavanaugh proves over and over that he simply does not understand the case presented before him. As an argument to his dissent, he provides the following scenario:

Consider the employer who has four employees but must fire two of them for financial reasons. Suppose the four employees are a straight man, a straight woman, a gay man and a lesbian. The employer with animosity against women (animosity based on sex) will fire the two women. The employer with animosity against gays (animosity based on sexual orientation) will fire the gay man and lesbian. Those are two distinct harms caused by two distinct biases that have two different outcomes. To treat one as a form of the other⏤as the majority opinion does⏤misapprehends common language, human psychology and real life.

Justice Kavanaugh’s Dissent, Pages 12-13, Pages 156-157 of the PDF

First of all, if you can’t afford people and have to lay them off, the considerations of who you choose to let go have to do with economics and performance. Discrimination would’ve come into play long before this. The 3 cases before the Court explicitly stated that the employees were star employees and were only fired due to the fact that they were attracted to people of the same sex or were transgender. However, let’s go ahead and give Justice Kavanaugh the courtesy of hearing him out.

Secondly, look at how Justice Kavanaugh describes the four people. “Suppose the four employees are a straight man, a straight woman, a gay man and a lesbian.” Note that in the first three, he adds “man” or “woman” to denote sex. Yet, with lesbian, he opts to forego the addition of the word “woman”. Why? Because being a lesbian is inextricably tied to being a woman. You can’t be a lesbian if you’re not a woman. Therefore, why add woman when it is understood? Why indeed, Justice Kavanaugh. It is for this exact same reason that the majority held that firing a lesbian is the same as firing an individual woman, one who happens to be attracted to women. Kavanaugh upholds the argument of the majority in his dissent and somehow misses that fact. Perhaps that’s why none of the other dissents joined him.

Lastly, the Junior Justice refers to the outcomes of his scenario with “To treat one as a form of the other⏤as the majority opinion does⏤misapprehends common language, human psychology and real life.” I’m not sure what “real life” means to Justice Kavanaugh, but discrimination on sex using one formula or the other is still discrimination on the basis of sex. Let’s say we have 4 mixed race individuals: a dark skinned male with an afro, a light skinned male with straight hair, a dark skinned woman with straight hair, and a light skinned woman with an afro. If you use actual skin color (for two that are dark vs two that are light) or use hair type (for two with afros vs two with straight) as your preferences for discrimination on color: they’re both still discrimination of color. Why Justice Kavanaugh thinks discrimination can only come in one flavor is beyond me, but perhaps it has to do with his upbringing which hasn’t let him experience discrimination in “real life” as he likes to call it.

So it is here. As demonstrated by all of the statutes covering sexual orientation discrimination, Congress knows how to prohibit sexual orientation discrimination. So courts should not read that specific concept into the general words “discriminate because of sex.” We cannot close our eyes to the indisputable fact that Congress⏤for several decades in a large number of statutes⏤has identified sex discrimination and sexual orientation discrimination as two distinct categories.

Justice Kavanaugh’s Dissent, Page 15, Page 159 of PDF

Justice Kavanaugh seems to not understand how the written word works. In “real life”, parents say, “I love my son. Kids are great.” after their first child is born, “I love my boys. The kids are fun.” after the second child is born, and “I love my kids. The oldest loves sports. The middle one loves reading. The last one loves to smile.” after their third child is born. For Justice Kavanaugh, that first statement means that only the first child is great and the other two children are not. “Look! Just read the parents comments. Over time, they knew how to distinguish between the three. They explicitly called each one out in that last sentiment. Since they never explicitly said all three children are great, only the first one is great. Since they never explicitly stated all three were fun, only the first two are. No one should read that all three are those two words because we ‘cannot close our eyes to the indisputable fact’ that they never went back to clarify their initial statement.” We as humans use broad wording because we mean broad coverage. We know life, real life, changes as we grow. Law makers are quite often parents and understand this train of thought. Justice Kavanaugh is a parent to two daughters in “real life” so he should understand this thinking.

Over the last several decades, the Court has also decided many cases involving sexual orientation. But in those cases, the Court never suggested that sexual orientation discrimination is just a form of sex discrimination. All of the Court’s cases from Bowers to Romer to Lawrence to Windsor to Obergefell would have been far easier to analyze and decide if sexual orientation discrimination were just a form of sex discrimination and therefore received the same heightened scrutiny as sex discrimination under the Equal Protection Clause.

Justice Kavanaugh’s Dissent, Page 20, Page 164 of the PDF

In the first quote from Justice Kavanaugh’s dissent, he says (and I paraphrase) “The courts should never over reach. Just answer the question at hand, no more, no less.” Never has the court been asked as clearly as it has with these 3 cases if good employees can be discriminated and fired simply because of their sexual orientation. Justice Kavanaugh can’t seem to make up his mind if the Court should show restraint or go ahead and overstep whenever it wants to. It frightens me to think how he may apply such logic to cases near and dear to his heart in the future. Again, this could be another reason no one joined his dissent.

Bedrock principles of statutory interpretation dictate that we look to ordinary meaning, not literal meaning, and that we likewise adhere to the ordinary meaning of phrases, not just the meaning of words in a phrase.

Justice Kavanaugh’s Dissent, Page 23, Page 167 of the PDF

By Justice Kavanaugh’s logic, there’s no way Citizens United should have been decided as it was. To the average person, ordinary meaning regarding freedom of speech by individuals wouldn’t apply to corporations. “Is a corporation a citizen? Does it have the rights inherent to citizens of flesh and blood?” No ordinary meaning would dictate such an interpretation, but the court’s majority believed it did. Therefore, I would disagree with Justice Kavanaugh’s statement that “bedrock principles…dictate that we look to ordinary meaning”, because momentous decisions by the Court have looked beyond “ordinary meaning”. Therefore, the Justice’s point is moot here.

There are two excerpts that make me 🙄. The first is Justice Kavanaugh, the Junior Justice, mansplaining to the majority, including the Chief Justice, on the history of Title VII.

But in my respectful view, the majority opinion makes a fundamental mistake by confusing ordinary meaning with subjective intentions. To briefly explain: In there early years after Title VII was enacted….”

Judge Kavanaugh’s Dissent, Page 23, Page 167 of the PDF

This behavior while unbecoming should not come as a surprise from the Junior Justice. In his confirmation hearing, he showed contempt for the historical process and procedures of his hearing. Therefore, it’s no shocker that this Junior Justice believes he’s entitled to school the other Justices on what they clearly (to his mind) don’t understand about Title VII history.

The majority opinion insists that it is not rewriting or updating Title VII, but instead is just humbly reading the text of the statute as written. But that assertion is tough to accept. Most everyone familiar with the use of the English language in America understands that the ordinary meaning of sexual orientation discrimination is distinct from the ordinary meaning of sex discrimination. Federal law distinguishes the two. State law distinguishes to two. This Court’s cases distinguish the two. History distinguishes the two. Psychology distinguishes the two. Human resource departments all over America distinguish the two. Sports leagues distinguish the two. Advocacy groups distinguish the two. Political groups distinguish the two. Common parlance distinguish the two. Common sense distinguishes the two.

Justice Kavanaugh’s Dissent, Page 25, Page 169 of the PDF

Again, like his confirmation trial, Justice Kavanaugh likes to drill the same point over and over. He believes that if he says something many times over, it makes it “common sense”. He does it here for what he considers to be two separate forms of discrimination. He forgets that all of those things once applied to segregation laws of blacks and whites. Everyone distinguished the two. Did that make it right? No, it did not then and it does not now. No matter how many times one says it. And he neglects to add one important group to his list that does NOT distinguish the two: the victims. Those who experience sexual orientation discrimination know that it is the same as sex based discrimination. Just like the mother who was let go because she had children, while a father was not, knew it was because she was female. (see Philips v Martin Marietta Corp.) In the exhaustive list of examples he cites, Justice Kavanaugh fails to include the victims. This, again, is not a surprise. The Junior Justice’s confirmation hearing proves he has a history of ignoring and forgetting victims.

Many will no doubt believe that the Court has unilaterally rewritten American vocabulary and American law…

Justice Kavanaugh’s Dissent, Page 25, Page 169 of the PDF

What Justice Kavanaugh fails to notice with his choice of words is that he leaves open the reality that many others, including the majority, will no doubt believe that the Court has unilaterally upheld the law as it was written.

The next part once again shows why Justice Kavanaugh is the Junior Justice. He offers in his dissent a Justice’s equivalent of “Bless their hearts” or “I don’t mean to be rude”.

I have the greatest, and unyielding, respect for my colleagues and for their good faith. But when this Court usurps the role of Congress…(nicely worded insult)…The best way for judges to demonstrate that we are deciding cases based on the ordinary meaning of the law is to walk the walk, even in the hard cases when we might prefer a different policy outcome.

Justice Kavanaugh’s Dissent, Page 26, Page 170 of the PDF

The majority did walk that walk together. The did the hard work of applying the law as it stood, in its broadest sense. They walked the tough path of standing up for the underrepresented whose voices are often overshadowed and drowned out by the masses. They majority didn’t cower in the frothy anger that will surely come their way for adhering to the law as written. The majority walked the walk and walked it proudly doing the job they knew they were appointed to do. Perhaps the Junior Justice is still in the crawling phase of his tenure. Someday, by watching the other Justices, let’s hope he too learns how to “walk the walk”.

I love how Justice Kavanaugh offhandedly and carelessly predicts that President Trump will not be winning his bid for a second term while positing his melodramatic alternate future.

In judicially rewriting Title VII, the Court today cashiers an ongoing legislative process, at a time when a new law to prohibit sexual orientation discrimination was probably close at hand…It was therefore easy to envision a day, likely just in the next few years, when the House and Senate took historic votes on a bill that would prohibit employment discrimination on the basis of sexual orientation. It was easy to picture a massive and celebratory Presidential signing ceremony in the East Room or on the South Lawn.

Justice Kavanaugh’s Dissent, Page 26, Page 170 of the PDF

Justice Kavanaugh seems to have forgotten, or chooses to ignore, the fact that such a celebration already happened in 1964 with the Civil Rights Act was passed by Congress. However, we know that the Junior Justice has issues with remembering the past. He must’ve simply forgot to write the celebration on his calendar to help him remember.

The most bizarre portion of Justice Kavanaugh’s dissent is his final paragraph:

Notwithstanding my concern about the Court’s transgression of the Constitution’s separation of powers, it is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans. Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law.

(An equal treatment already owed to them by Section VII, but one that would’ve been withheld even longer if up to the dissent.)

They have exhibited extraordinary vision, tenacity, and grit⏤battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s results. Under the Constitution’s separation of powers, however, I believe it was Congress’s role, not this Court’s, to amend Title VII. I therefore must respectfully dissent from the Court’s judgment.

Justice Kavanaugh’s Dissent, Page 27, Page 171 of the PDF

“Let’s party, even though y’all shouldn’t be partying today because you don’t have the rights yet, but believe me, they were coming!”, says the man who thinks that the Court shouldn’t pretend to know what the lawmakers are intending to do and believes that the rights discussed in today’s decision by the majority should still not exist by a law that clearly states they do as of 1964.

Final Thoughts

I hope you enjoyed my little trip through the Court’s decision on Bostock v Clayton County. While I hope it was entertaining, I hope it was thought provoking enough to make you want to read the decision. In this day and age of quick snippets from pundits on social media, it is vitally important that we read what is going on in our nation, in our government and in our systems. We must read to gather information to make our OWN opinion of the facts and not rely on someone else’s perspective, including the perspective of yours truly.

As a citizen, I am proud of the Court’s decision to clarify a right to a minority that has belonged to them since 1964. As a business owner, I’m glad there is no more ambiguity and that other businesses will no longer be able to discriminate against good people. As a person, I’m glad to see hate, that has been tolerated for too long, is no longer legally allowed so that those who have been hurt in the past can now start to heal.

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