Posted on 06/18/2020 10:36:20 AM PDT by Kaslin
This past week, the U.S. Supreme Court handed down its decision in Bostock v. Clayton County. Hailed as a landmark decision for LGBT Americans, the 6-3 opinion written by Associate Justice Neil Gorsuch concludes that the use of the word "sex" in Title VII of the 1964 Civil Rights Act protects gay and transgender people from workplace discrimination.
This seems like a straightforward question with an easy answer: Should gay and transgender people be discriminated against in hiring and firing decisions? Most would say no. Why should a bank teller be fired for being gay? Why shouldn't an accounting firm hire a qualified, competent CPA without regard to how he or she identifies?
But no sooner was the decision announced than the questions exploded: Does this ruling apply to schools? Bathrooms? Health clubs? Women's shelters? Prisons? What about churches, parochial schools and other religiously affiliated organizations? How does Bostock affect the Hosanna-Tabor case, a 2012 decision in which the Supreme Court unanimously held that religiously affiliated organizations are protected by a "ministerial exception" when making hiring and firing decisions? What about the cases being litigated under Title IX relating to women's participation in sports (among other issues)?
These questions -- and countless others -- are not answered in or by the Bostock case.
Critics of the Bostock decision -- including the three dissenting justices, Samuel Alito, Brett Kavanaugh and Clarence Thomas -- argue that it is not the court's job to rewrite legislation but only to interpret it. Gorsuch says that's precisely what the court did; it interpreted the meaning of the word "sex."
Even if you're inclined to agree with Gorsuch that the court interpreted what the statute means, there's still one important caveat: in this case. This should drive home a very important difference between case law and legislation.
It's not simply a constitutional debate over separation of powers, or a philosophical question about governance by elected representatives -- although those are important issues. There are also practical concerns with this method of crafting the laws that govern our daily lives.
When legislation is drafted by Congress or state legislatures, it goes through committee hearings, opportunities for public comment, countless drafts and even multiple versions introduced in the House and Senate (at least for those states with a bicameral legislature). Legislators take months -- often years -- to consider the implications and execution of the legislation they intend to pass. They ask questions of their constituents, of experts and thought leaders in the field. They put in explanations, conditions and exceptions in response to the input and feedback they have received as the legislation moves through the process of enactment.
What is passed is never perfect. But it is typically comprehensive. (This is why statutes can run hundreds or even thousands of pages.) While legislators cannot possibly anticipate every question or future application of the law, those that they or others have thought of will be incorporated into the statutory text.
Not so with case law.
In the Anglo-American system, judges may only decide issues that are present based upon the facts in the case before them. Judges at every level are constrained by their judicial duties and responsibilities from speaking to how their rulings may be applied in future cases. I am not suggesting that the judges and courts don't think about the future implications -- their decisions will have precedential effect, after all -- only that they may not issue opinions about different facts or issues that are not before them.
In other words, while the Supreme Court can decide whether or not the plaintiffs in the cases consolidated in Bostock were discriminated against, and whether such discrimination was prohibited by this particular language in that particular statute, the very questions already being asked that are not decided by the Bostock opinion will have to be decided in the future.
Case by case by case by case by case.
Like many Americans, I personally agree with the result in Bostock. But this method of establishing law is expensive and inefficient, to say the very least. The Supreme Court grants very few petitions for writs of certiorari -- almost 99 percent of petitions for appeal sent to the court during one term were denied.
Those that do make it to the Supreme Court will have cost the parties millions of dollars -- sometimes tens of millions -- in legal fees by the time the litigation is concluded. And yet, when a new dispute with different facts arises, we'll have to ask: Does the ruling in X case apply to these facts? Only one way to find out: Off to court we go again. Even those cases that don't go beyond the lower courts of appeals cost hundreds of thousands of dollars -- and are only binding law in the jurisdiction where they're decided.
The better way for these issues to be addressed would be for Congress to step in and do its job -- in this case, to amend the 1964 Civil Rights Act to state specifically that "sex" shall be interpreted to mean "sexual orientation" and "gender identity." In so doing, Congress could take into account the other factual circumstances that the Supreme Court cannot, including any necessary exceptions and exclusions, and craft comprehensive legislation accordingly.
Congress has failed to do this. It's certainly not too late for Congress to take up the issues left or created by the Bostock decision, and to provide some statutory specifics and much-needed clarity. But it needs to act. If we have to rely on the United States Supreme Court to write laws because Congress can't seem to, why bother having Congress at all?
The result will be that any small business will be very careful to not hire these folks if at all possible.
“Why have a Congress?”
So Liberals can play politics
If it’s all based on “sex” and not “gender”, then there’s a test to tell which one is.
nobody changes sexes with hormones and amputations/additions.
insanity
The Republic is doomed, long live the Republic.
We were already in a “Civil” Civil War.
At least we were until a Month ago. Now it’s “something else” and the recent actions of the SCOTUS is only helping it along.
And if I conduct business somewhere and I have to deal with a stunted freak, that will be the last time I ever patronize that business.
How can the Supreme Court make a decision about the definition of “sex”? They are all lawyers. Not a single one of them has a degree in anatomy, physiology, medicine, or even biology.
But it didn’t mean ‘sexual orientation’ in 1964 - the mentally ill were hospitalized back then, not allowed to roan the streets, halls of congress or halls of justice.
...and then those businesses will just be liable anyway under the “disparate impact” angle.
Reduce it to PART TIME. Reduce pay to 1/10th. NO BENEFITS. Have them get a real job doing something constructive. Who do these pompous, arrogant PSYCHOPATHS & PRICKS think they are?
FUCONgre$$
When, in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume, among the powers of the earth, the separate and equal station to which the laws of nature and of nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness. That, to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. That, whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness. - Declaration of INDEPENDENCE
C’mon Americans.
Just think of all the dough we would save, CONgre$$ is for the most part a money pit anyway.
Time to raze DC and go cheap for a change? dems are all for it., They have been working towards that goal for decades.
The Democrats have no reason to do so, thanks to Gorsuch.
They can just say "In ALL cases the LGBT Mafia wins. Religious schools, churches, private clubs, everywhere. You don't agree? Then spent $10 million to get it back to SCOTUS so they can reject your appeal."
Gorsuch reportedly loved a former clerk who is a homo and went to his wedding and sent a cringeworthy, gushing letter to them. Robert's sister is a lesbian. They just can't stand them to disapprove of them PERSONALLY, despite how they have to contort the law beyond recognition for 317 million others.
Well, we no longer have a budget. We just let the executive spend like a drunken sailor.
We are now over $26 trillion in debt and adding a trillion or more every few months.
How long will it be before a case comes before the Supreme Court where they will rule the exceptions to be unconstitutional?
Even if Congress did its job, the fine points of their legislation would always be open to cancellation by the Supremes.
The LEFT wants, desires, needs, begs, slobbers and foams at the mouth for only a court that makes up all the rules for us to live by. They pack the court with five or six more strict leftist, commie, socialist, & homo justices and they can rule by court rulings. They can lose congressional seats, but once you get the court packed, no losses again, EVER!!! They can lose the White House, but if they rule the court, they can overrule everything a president did. Don’t like his executive order, take it to the court where the commies will throw out the EO. Sadly this is what we are coming to in this nation. This nation is going down the hill, dying on the vine. We are going to lose this Republic in time. The Bible mentions no western power in the End Times. So, America has to fall at some point. This is probably the start of that downward spiral.
/sarc
I feel like this ruling offers a very easy solution now for everybody.
Stop using the word “male” and “female”. Start saying “this bathroom is for people with a penis, and that one is for a person without a penis”.
If anybody tries to claim that this is illegal discrimination on account of sex, point to this ruling and say “hey, there is no such thing as sex. Women can have penises, and men can have no penises, so clearly our rule does not discriminate on account of “sex”.
I’ve called for some kind of secession for over a decade. A few mainstream voices ever so slightly hinted at it earlier this week.
Like a scene from Office Space
“What is it you say you do here?”
Well, we no longer have a budget. We just let the executive spend like a drunken sailor.
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Meh...the legislative and judicial branches don’t mind spending either.
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