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Gorsuch, the USSC and the rights of LGBTQ Employment Rights

FJAG

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So did anyone have any money on Gorsuch joining Roberts and the "Liberals" on the US Supreme Court in holding that "sex" in Title VII of the U.S. Civil Rights Act also applies to LGBTQ individuals?

Why Trump's Supreme Court appointee Neil Gorsuch just protected LGBTQ rights

By Ariane de Vogue, CNN Supreme Court Reporter - Updated 5:31 PM ET, Mon June 15, 2020

(CNN)Justice Neil Gorsuch, President Donald Trump's first nominee to the Supreme Court, delivered an opinion Monday that will change how more than 7 million LGBTQ individuals will live and work in the United States.

It is a watershed moment from an unlikely author that means gay, lesbian and transgender workers are protected by federal civil rights law. It is a stunning defeat for judicial conservatives who worked to ensure Gorsuch's nomination and Republicans, including Donald Trump, who stymied President Barack Obama's nominee for the Supreme Court, liberal Merrick Garland in 2016.
The ruling puts Gorsuch in the history books.
Title VII of the Civil Rights Act, Gorsuch wrote, which bars discrimination "because of sex," also covers claims based on sexual orientation and gender identity

...

https://www.cnn.com/2020/06/15/politics/neil-gorsuch-supreme-court-lgbtq-rights/index.html

Good on ya', mate!

I'm waiting for Trump's tweet on this.

:cheers:
 

Good2Golf

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It shouldn’t be crazy, he’s already commented.

Trump called the decision "very powerful" and acknowledged it was surprising to some. “They've ruled and we live with the decision," Trump said. "We live with the decision of the Supreme Court."
 

FJAG

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Good2Golf said:
It shouldn’t be crazy, he’s already commented.

Trump called the decision "very powerful" and acknowledged it was surprising to some. “They've ruled and we live with the decision," Trump said. "We live with the decision of the Supreme Court."

I see that. It's very interesting and almost hearkens back to when he was a Democrat.

Let's wait for a few more days for his base to tell him how dissatisfied they are with the decision.

Some commentators argued that the ruling may serve to destabilize the shaky coalition between Trump and his evangelical voters, based largely on the promise of conservative judges like Gorsuch delivering socially conservative rulings. “The whole point of the Federalist Society judicial project, the whole point of electing Trump to implement it, was to deliver Supreme Court victories to social conservatives,” tweeted National Review contributor and Arc Digital columnist Varad Mehta. “If they can't deliver anything that basic, there's no point for either. The damage is incalculable.”

https://www.forbes.com/sites/andrewsolender/2020/06/15/they-ruled-and-we-can-live-with-their-decision-trump-reacts-to-very-powerful-supreme-court-decision-protecting-lgbtq-workers/#3011e1735cf3

:cheers:
 

brihard

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Sometimes people in positions of power simply do the right thing, regardless of the expectations of the masses or perhaps of those who orchestrated their appointment. Good on Gorsuch for being on the right side of history.

EDIT: Aaaaand, I should have known better than to go glance at it, but a bunch of the American right wing commentariat on Twitter are predictably unhinged over this. It's amusing but also frightening.
 

Xylric

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I'm amused because it is entirely a no-nonsense decision, just going by the cases used to evaluate and render it. It's perfectly reasonable, so I am baffled as to why it is even considered a shock.
 

brihard

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Xylric said:
I'm amused because it is entirely a no-nonsense decision, just going by the cases used to evaluate and render it. It's perfectly reasonable, so I am baffled as to why it is even considered a shock.

Because Gorsuch was basically pushed by a social conservative movement. He was expected to deliver consistently socially conservative decisions. Stuff like this will significantly undermine Trump's USSC appointments in the eyes of, and may disenchant, a lot of evangelicals.
 

FJAG

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I like this line Gorsuch wrote.

Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.

:cheers:
 

MilEME09

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Makes me like him more that he seems to separate his beliefs from his job, atleast in this instance
 

Xylric

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Brihard said:
Because Gorsuch was basically pushed by a social conservative movement. He was expected to deliver consistently socially conservative decisions. Stuff like this will significantly undermine Trump's USSC appointments in the eyes of, and may disenchant, a lot of evangelicals.

I disagree, because it seems to me that this was indeed a socially conservative decision, just as much as it is a socially liberal one. From what I've been able to determine, what Gorsuch did was exactly what he said he would do - sticking with the actual text as the paramount consideration, which is an exceedingly impartial approach. I think by the end of his career, he will be as equally liked by both sides as he will be disliked. That just means his role is beyond critical.
 

brihard

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Xylric said:
I disagree, because it seems to me that this was indeed a socially conservative decision, just as much as it is a socially liberal one. From what I've been able to determine, what Gorsuch did was exactly what he said he would do - sticking with the actual text as the paramount consideration, which is an exceedingly impartial approach. I think by the end of his career, he will be as equally liked by both sides as he will be disliked. That just means his role is beyond critical.

With respect, I'm not sure you're grasping what 'social conservative' means in the context of American judicial appointees.
 

FJAG

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Xylric said:
I disagree, because it seems to me that this was indeed a socially conservative decision, just as much as it is a socially liberal one. From what I've been able to determine, what Gorsuch did was exactly what he said he would do - sticking with the actual text as the paramount consideration, which is an exceedingly impartial approach. I think by the end of his career, he will be as equally liked by both sides as he will be disliked. That just means his role is beyond critical.

True enough as to what Gorsuch did, but you have to remember that the minority in this case is saying that they too are using literal interpretation: it's the text that matters and "sex" doesn't equal "sexual orientation". Alito must have put about a dozen dictionary definitions into his Appendix to establish that.

The way to "literally interpret the actual text" is a very subtle thing. I personally think the majority were right, and not just because I like the decision, but because interpreting "because of sex" is actually a simpler thing than the social conservatives would have us believe.

I don't think that "literal interpretation" is a social conservative thing; it's a facet of statutory interpretation. While social conservatives may like to say they are dealing with "literal interpretation" what they are really doing is trying to freeze the interpretation of laws in the context of a biblically oriented eighteenth or 19th century society. That's essentially what the employers were arguing in this case; that the court should interpret the use of the word "sex" as it would have been understood by the 1964 Congress.

:cheers:
 

Xylric

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FJAG said:
True enough as to what Gorsuch did, but you have to remember that the minority in this case is saying that they too are using literal interpretation: it's the text that matters and "sex" doesn't equal "sexual orientation". Alito must have put about a dozen dictionary definitions into his Appendix to establish that.

The way to "literally interpret the actual text" is a very subtle thing. I personally think the majority were right, and not just because I like the decision, but because interpreting "because of sex" is actually a simpler thing than the social conservatives would have us believe.

I don't think that "literal interpretation" is a social conservative thing; it's a facet of statutory interpretation. While social conservatives may like to say they are dealing with "literal interpretation" what they are really doing is trying to freeze the interpretation of laws in the context of a biblically oriented eighteenth or 19th century society. That's essentially what the employers were arguing in this case; that the court should interpret the use of the word "sex" as it would have been understood by the 1964 Congress.

:cheers:

Most of the American conservatives I know are pleased with this decision, so I suspect those who are upset about it are less 'social conservative' and more 'traditionalist.' But I am not going to change definitions midstream. Absolutely, it's a subtle thing to literally interpret the actual text, I deal with it regularly when translating classical documents (currently working on a few pages of Hippocrates). To translate is to interpret, and to interpret is to translate. The trick is to do exactly as what has been done here - limit oneself to definitions which would have been understood by the original authors *except* where alternate definitions can be identified within the society that existed at the time of the authoring. The more permissive reading of 'sex' in this case would be a clear example - even without it, Transgender individuals should have clearly been protected.

I hate to tell this to those who want to lock interpretations into the context you mention, but the Bible itself warns against doing such things!  :not-again:
 

QV

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Good2Golf said:
It shouldn’t be crazy, he’s already commented.

Trump called the decision "very powerful" and acknowledged it was surprising to some. “They've ruled and we live with the decision," Trump said. "We live with the decision of the Supreme Court."

Appointments like Gorsuch and decisions like this are exactly why people voted for Trump and will again.

"But regardless of who got the better of the lawyering, Bostock shows that those who group all the “conservative” justices together are missing the boat. Gorsuch and Kavanaugh are both committed textualists, and both were appointed not just by a Republican president but by the same one (Trump). Progressive critics who discount their independence or claim they’re just result-oriented reactionaries have egg on their face."  https://www.nationalreview.com/2020/06/supreme-court-decision-bostock-v-clayton-county-we-are-all-textualists-now/

Trump's reaction is as expected.  Never mind the extreme right and extreme left the MSM give far too much air time to, for... reasons. 
 

Kirkhill

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If I gather Gorsuch's opinion correctly he seems to be saying the following:

A man is a man. 

A woman is a woman.

Society accepts men acting as men.  The actions are acceptable to society.

Society accepts women acting as women.  The actions are acceptable to society

The actions should be no less acceptable to society just because they are done by a man or a woman.

If a woman chooses to act like a man that is her concern.  Her actions are no less acceptable simply because she is a woman.

If a man chooses to act like a woman that is his concern. His actions are no less acceptable simply because he is a man.

To accept the act but no the actor would be to discriminate against the actor solely on the basis of whether they are man or woman - their sex.

And that is illegal.

Meanwhile the intrinsic difference between XX and XY is preserved.

 

FJAG

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According to Alito what Gorsuch did was:

"The Court's opinion is like a pirate ship," Alito said. "It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated -- the theory that courts should 'update' old statutes so that they better reflect the current values of society. "

;D
 

Kirkhill

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Is it of any importance to note that we are still only talking about an "opinion"?
 

brihard

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Chris Pook said:
Is it of any importance to note that we are still only talking about an "opinion"?

Since ‘opinion’ in this context means a judicial decision on a major case in the highest court of the land, which settled a contentious and important law affecting the equal rights of millions... I guess not?
 

FJAG

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Chris Pook said:
Is it of any importance to note that we are still only talking about an "opinion"?

The ultimate paragraph of the majority's "opinion" makes it both a judicial decision and final order:

The judgments of the Second and Sixth Circuits in Nos.
17–1623 and 18–107 are affirmed. The judgment of the
Eleventh Circuit in No. 17–1618 is reversed, and the case
is remanded for further proceedings consistent with this
opinion.
It is so ordered.

While the US judiciary uses the phrase "opinion" we in Canada use the term "reasons" or "reasons for decision". In either case it merely means "this is why we have made the decision we have".

:cheers:
 

Kirkhill

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I am happy to accept the ref's opinion as the final word.  It was an honest debate before an honest ref. I am not really bothered if there was truth or right involved.  See you at the next match.  Who's buying? 
 

Colin Parkinson

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While the findings will annoy traditionalists and social conservatives, they at least know and can understand why he did what he did. So they can bet on roughly 50% of the cases going the way they would like. With a more left wing "activist" judge, likley they would get 15-20% of the cases going their way.
 
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