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Showdown Coming over Antidiscrimination Law

A recent prediction in this space turned out to be premature. In my post about the Seventh Circuit’s en banc decision in Hively v. Ivy Tech Community College[1]—which held that the word “sex” in Title VII of the Civil Rights Act of 1964 [2] includes “sexual orientation”—I forecast that the U.S. Supreme Court would grant cert and reverse the Seventh Circuit. For unknown reasons, the defendant-employer in Hively decided not to seek appellate review of the controversial ruling, foiling my prophesy. Instead, Ivy Tech Community College in Indiana will defend Hively’s employment-discrimination lawsuit on the merits.  Commentators on Hively have noted that “The Seventh Circuit is the highest court in the United States to advance such a holding, although the EEOC has been advancing such a position for some time.”

More precisely, since July 15, 2015—not such a long time ago, really—the Equal Employment Opportunity Commission has blatantly misinterpreted the text of Title VII in this way. That was when, in defiance of prevailing judicial decisions, and reversing its own longstanding position, the commission  issued a decision conflating “sex” with “sexual orientation,” despite the fact that Congress has repeatedly declined to amend Title VII to add “sexual orientation” as a protected characteristic, even as it has enacted other statutes separately covering both sex and sexual orientation.[3]

From a textualist perspective, it is simply absurd to construe Title VII as banning discrimination on the basis of sexual orientation. Under President Obama, a Democratic-dominated EEOC had begun this doctrinal somersault in 2012, when it issued a decision holding that Title VII’s reference to “sex” covers transgender status.

The community college’s decision to forgo a cert petition is not the end of the issue. Indeed, the activist position advanced by the EEOC (and now shared by the Seventh Circuit in Hively) is now on a collision course with the Trump Justice Department, which maintains that the unambiguous text of Title VII covers only “sex” and “does not reach discrimination based on sexual orientation.” This showdown, in a case pending before the Second Circuit[4], promises to be particularly dramatic because the EEOC and Justice have filed dueling amicus briefs taking diametrically opposed positions regarding the correct interpretation of Title VII. As in Hively, the panel decision in Zarda correctly ruled that Title VII does not cover discrimination on account of sexual orientation. However, inspired by the Seventh Circuit’s en banc hijinks, the Second Circuit granted rehearing en banc in Zarda.

The Justice Department’s brief pointedly rebukes the EEOC, reminding the Zarda court that the EEOC “is not speaking for the United States and its position about the scope of Title VII is entitled to no deference beyond its power to persuade.” The full Second Circuit will have to choose sides, in either event making review by the Supreme Court more likely. When the issue eventually reaches the High Court, either in Zarda or another case, I remain confident that the tortured “reasoning” used by the EEOC and the Hively majority will be rejected.

In the meantime, the Left—blindly pursuing the LGBT agenda—is apoplectic that the Attorney General appointed by a duly elected President of the United States would dare to contradict a cadre of unelected agency bureaucrats regarding the interpretation of a federal statute, even if the agency is abandoning a position it held for 40 years. The issue isn’t—or at least shouldn’t be—whether workplace discrimination on the basis of sexual orientation ought to be prohibited as a policy matter, but rather how such a change in the law should be effected: which branch of government legislates policy. The Justice Department’s brief argues that:

The sole question here is whether, as a matter of law, Title VII reaches sexual orientation discrimination. It does not, as has been settled for decades. Any efforts to amend Title VII’s scope should be directed to Congress rather than the courts.

On the other hand, proponents of gay rights have become impatient—tired of the pesky politics that prevent them from securing the policy outcomes they have long sought. As Ken Klukowski reports,

In recent years, lawyers for liberal activist groups shifted from their perennial efforts to amend federal civil rights laws to declare sexual orientation and gender identity to be specially protected categories like race, arguing now that legislative changes are not needed, because current laws against sex discrimination already cover those newer social disputes. Under President Barack Obama and Attorneys General Eric Holder and Loretta Lynch, the U.S. Department of Justice  adopted those positions over the past several years. [Emphasis added.]

It is sobering to realize that Progressives no longer take the concept of law—honestly ascertaining the meaning of a text—seriously. Likewise for the basic premise of the Constitution that power emanates from the people. Only results matter; as long as the desired objectives are realized, the Left is indifferent to whether the rules were legitimately enacted.

We expect such crude nihilism from diehard political activists, and the obdurate ideologues who control the media, but shouldn’t the judiciary and legal academia be more committed to the integrity of lawmaking? Apparently not. Group Think is a powerful thing, and prevailing intellectual fashions strongly favor recognition of gay rights, with or without congressional assent. So the judicial oligarchy, cheered on by Progressive media, find clever ways to subvert the plain meaning of Title VII. Judges and law professors are nothing if not clever, and the sophistry they exhibit in distorting the plain meaning of the word “sex” is truly astonishing.

The legal columnist at Reuters, Alison Frankel, praises the en banc opinion in Hively as “a really shrewd majority opinion, relying on Supreme Court decisions by Justice Antonin Scalia.” Frankel is apparently referring to the unfortunate—and unanimous!—opinion Scalia authored in the 1988 case of in Oncale v. Sundowner Offshore Services[5], recognizing a claim under Title VII for “same-sex” harassment, even though the term “harassment” is not even mentioned in the statute. The legal concept of “sexual harassment” is explicitly derived from sex discrimination, and arose in the context of male-female predation[6], which conferred the required nexus to “sex.” “Same-sex” harassment is an oxymoron under Title VII—which is not concerned with boorish behavior, only discrimination based on sex.

Sadly, the Supreme Court’s confused Title VII “jurisprudence” contains many fatuous decisions, including authorizing claims based on disparate impact analysis (Griggs v. Duke Power, 1971) and “sex-stereotyping” (Price Waterhouse v. Hopkins, 1989). Most of these misguided theories were instigated by the EEOC, illustrating why that agency’s tendentious interpretation of Title VII should be taken with a grain of salt. And the Supreme Court further muddied the doctrinal waters in 2015 when it concocted a constitutional right to same-sex marriage in Obergefell v. Hodges. Errant High Court decisions can provide cover to activist lower court judges, who eagerly extrapolate flawed precedents to new frontiers.

That gambit won’t work in Zarda. When it comes to discrimination in the workplace based on sexual orientation, the meaning of Title VII is crystal clear: It is not covered. “Sex” and “sexual orientation” are not the same thing. From 1974 to the present, every Congress has declined to amend Title VII to include sexual orientation as a protected category, rejecting over 50 different proposals. The EEOC and Progressive judges think they have an effective work-around, and think they can get away with it—as they did in Hively.

More is at stake here than mere semantics and casuistry by result-oriented judges and EEOC bureaucrats. The issue is whether the nation is still a republic governed by its elected representatives, or a feudal fiefdom in which citizens have been reduced to serfs, with the Deep State acting as lords of the manor. The only legitimate way to expand Title VII to include sexual orientation is by statutory amendment, not judicial edict. As Ed Whelan has noted in National Review, “It’s the ordinary legislative process in Congress, not the bureaucratic machinations of EEOC ideologues, that ought to decide this issue.”

[1] 853 F.3d 339 (7th Cir. 2017).

[2] 42 U.S.C. section 2000e-2(a).

[3] The panel decision in Hively pointed out that “Congress has repeatedly rejected legislation that would have extended Title VII to cover sexual orientation,” and provided relevant citations in footnote 2.

[4] Zarda v. Altitude Express, 855 F.3d 76 (2d Cir. 2017).

[5] 523 U.S. 75 (1998).

[6] Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986).

Reader Discussion

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on August 15, 2017 at 09:22:25 am

Mark:

Good piece!
Quite right - Black robes of a certain political persuasion are quite clever combining a presumptive moral authority akin to the Philosopher Kings with all the cleverness of a Jesuitical exigesis.

Clever, indeed!!!!

But yes, those who seek change ought to use the constitutionally designated means / methods for doing so - the LEGISLATIVE - not the Executive nor the Judiciary (where they may generally find things more to their liking).

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gabe
on August 15, 2017 at 10:26:13 am

Mark: "Only results matter; as long as the desired objectives are realized, the Left is indifferent to whether the rules were legitimately enacted.

We expect such crude nihilism from diehard political activists, and the obdurate ideologues who control the media, but shouldn’t the judiciary and legal academia be more committed to the integrity of lawmaking?"

As l am new here, l have to ask: Were you as apoplectic when Shelby County was handed down? Bruesewitz v Wyeth? lqbal? Twombley? Seminole Tribe? Alden v. Maine? Conservative judicial activism is FAR more common than liberal activism these days . . . but the Right seems every bit as indifferent to the rule of law as they accuse the Left of being. Outcome-driven jurisprudence is ubiquitous these days, but only Posner and Kozinski are candid enough to admit it.

Let's revisit Alden. The question: Can a citizen sue a State for its violation of 14Am rights and if so, where can he sue?

“In all Cases … in which a State shall be Party, the supreme Court shall have original Jurisdiction. U.S. Const. art. II, § 2, cl. 2. And no State shall “deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. As that legal duty is owed to the citizenry by the States, they are proper party defendants, which may be sued in the Court. And many states have acknowledged that they don't enjoy sovereign immunity. Evans v. Board of County Com'rs, 482 P.2d 968 (Colo. 1971) (collecting cases). (The 11Am is jurisdictional, and by its terms, does not preclude a citizen from suing his own state. John Paul Stevens, “Two Questions About Justice,” 2003 Ill. L. Rev. 821, 824 (detailed historical analysis of 11Am)).

So, where do we find state sovereign immunity in COTUS? We don't. According to no less of an authority than Antonin Scalia, we can't even find it in penumbrae and emanations! "At the time of Marbury v. Madison there was no doctrine of domestic sovereign immunity, as there never had been in English law." Antonin Scalia, Historical Anomalies in Administrative Law, Y.B. Supreme Court Hist. Soc’y. 103, 104 (1985). And remember, COTUS trumps the common law.

So, how did Alden come out? Do you really need slides?

In recent years, your supposedly non-activist right wing of the Court has read sovereign immunity in the Saddam Hussein sense, concluding that, because he was (they were) elected President of Iraq (appointed to the federal bench), any act he (they) takes is "an act of the people of Iraq" (the United States), heedless of whether the act in question was within the scope of their employment or, even expressly against the law. In essence, they claimed the jus summi imperii -- the absolute sovereignty of the despot. The trial court in Stump had a word for it: "tyranny." Sparkman v. McFarlin, 552 F.2d 172, 176 (7th Cir. 1977).

This is the vision of "federalism," in the mind ofSaddam Hussein, the RATS Wing of the Court and the Great Stalin: While every State is "bound" by the Constitution, the only cord which "binds" them is their own "good faith":

"The States and their officers are bound by obligations imposed by the Constitution and by federal statutes that comport with the constitutional design. We are unwilling to assume the States will refuse to honor the Constitution or obey the binding laws of the United States. The good faith of the States thus provides an important assurance that '[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof ... shall be the supreme Law of the Land.'"

Alden v. Maine, 527 U.S. 706, 755 (1999) (emphasis added). Truly, a more elastic cord never has been devised. And to these honorable gentlemen, only three words need be offered in rebuttal:

"ARBEIT MACHT FREI"

When you stroll through the gates of Dachau on your way to the ovens, you are assaulted by that slogan, reminding you of the inherent goodness of Man. That five Justices would sign off on such a stultifying statement staggers the imagination. And that Clarence Thomas, descendant of slaves, would knowingly ascribe to it, eclipses all possible concepts of self-satire.

Scalia knew better. So, why was he the fifth vote? Because it would have meant that he would have had to work for a living, and the resulting caseload would ruin his ambitious vacation/public speaking schedule. "Only results matter..."

When you start taking your side to task for activism, wake me up. Or at least, admit that this is all about your animus toward "those icky gays"!

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LawDog
on August 15, 2017 at 10:41:26 am

Argle-bargle, gabe! Herr Rehnquist and King John l of Roberts make Earl Warren seem like a rank amateur.

Did you read the Obergefell dissents? Scalia liked ruling us so much that he did it for free, but when he wasn't one of the five lawyers doing the ruling, he whined so loud that you could hear him in Sydney.

Kagan's problem of Platonic Guardians is bipartisan, and the Right is by FAR the worst offender. (See my separate post below on Alden.) Why? Because THEY are in the majority. And as Justice Scalia openly confessed, the Court is often tempted “toward[] systematically eliminating checks upon its own power; and it succumbs.” Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833, 981 (1992) (Scalia, J., dissenting).

Why did McConnell block the centrist Merrick Garland? Because he wanted HlS Platonic Guardian in that seat. Even Congress has acquiesced.

With respect, you seem too blinded by extreme partisanship to see that this is a Bl-partisan problem.

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LawDog
on August 15, 2017 at 12:30:19 pm

Preach! Thank you for this.

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RickyM
on August 15, 2017 at 15:05:53 pm

"When you start taking your side to task for activism, wake me up. Or at least, admit that this is all about your animus toward “those icky gays”!"

That's all I needed to read to have this guy completely figured out. Kook #1,237, welcome to the comment section of this forum. Jeesh!

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Scott Amorian
on August 15, 2017 at 15:09:10 pm

What kind of conservative website would this be without a few leftwing trolls?

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djf
on August 15, 2017 at 15:58:55 pm

Dawg:

Get a hold of yourself here! I suspect that your "divining rod" has gotten just a tad bit bent as it now determines that I am an extreme partisan.

A "colorable" ( as you like to say) case may be made that it was ideological / political partisanship that found resort in the penumbras and emanations of COTUS to discover a heretofore unknown *right* to gay marriage or to a *right* to welfare payments, whereas, Alden may reflect as you yourself argue, a simple case of laziness on the part of the Black Robes. Quite different wouldn't you say?

As for Dachau, a bit extreme as absent what a prominent Democrat did some 70 years ago, I know of no GOP type desirous of "interning' the citizenry.
Goodness gracious - talk about *extremes* - you begin to remind me of a comment Russell Kirk made regarding libertarianism as an empty ideology reflective of an unabashed glorification of individual liberty (license).

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gabe
on August 15, 2017 at 16:07:12 pm

Very odd post! It's loaded with expressions of contempt and ridicule toward those with an opposing views, but it doesn't even *attempt* to engage with their main *legal* arguments. Consider this example: If an employer fires a female employee, Sarah, for placing a picture of her wife Sally on her desk, but it does not take any action against an identically situated male employee, Jack, for placing a picture of his wife (who also happens to be named Sally) on his desk, then the employer has treated Sarah less favorably because of her sex, plain and simple. This is consistent with the basic standards established by the Supreme Court many decades ago (like in Manhart), but the post author doesn't bother to engage with this reasoning. In other words, if an employer fires Sarah based on conduct that would be unobjectionable when done by Jack, then the employer has quite plainly taken negative action against Sarah based on her "sex." This violates the plain language of Title VII. Maybe you have a response to this, but it's quite telling that you didn't even bother to engage with this simple legal argument in your post. It seems like the legal arguments aren't what interests you, though you are certainly interested in policy (ironically).

The fact that you could *also* call the above example "antigay" discrimination isn't legally relevant: That is, it doesn't matter whether you can come up with a way to describe the discrimination with words that are not in the statute -- you can almost always do that for all kinds of discrimination -- because the relevant legal question is whether the discrimination fits within the words that ARE in the statute. It also doesn't matter if employers discriminate against both gay men and lesbians; that doesn't make it sex-neutral. For starters, the statute focuses on how individuals are treated, not how groups are treated, so discrimination against a man based on his attraction to men can't be excused by discrimination against a woman based on her attraction to women. Plus, it's well settled that an employer would be engaged in race discrimination if it fired everyone in an interracial relationship. The fact that the employer applies such a policy to both white people and black people would not make it race-neutral or otherwise permissible under Title VII. (This is, again, well settled, but you'd never guess it fro the author's post.) The same logic compels the conclusion that it is sex discrimination to fire someone based on the sex of their partner/spouse. (The Supreme Court has said many times that courts should use the same standards under Title VII to define discrimination based on race and discrimination based on sex.)
But of course, the author has not expressed any interest in engaging with these arguments. The author says they are textually absurd, but without any argument grounded in the text. The author (like the DOJ) pretends that those with a differing view are making a policy argument, and then the author insists that this debate shouldn't be resolved by policy preferences. Ha! Nice try! This entirely misses the point. The EEOC and Hively and their supporters are making *legal* arguments that the author chooses to ignore. The author should perhaps read those legal arguments rather than pretend that they are mere policy preferences.
Finally, lest anyone miss how radical the author's post is, the author would reject rulings like Oncale, Griggs, and Price Waterhouse that have represented well-settled, congressionally accepted Title VII law for DECADES. These are not considered controversial rulings in mainstream legal opinion -- not even among conservatives! After all, as the author notes, it was Justice Scalia who wrote the unanimous decision in Oncale on same-sex sexual harassment. Justice Thomas also joined that opinion, as did all the other conservatives on the Court at the time. As for Price Waterhouse, consider this: After the Price Waterhouse decision, Congress amended Title VII to reject part of the Price Waterhouse ruling that was related to "mixed motive" cases (unrelated to the present dispute), but Congress's amendment to Title VII at that time did NOT reject the part of Price Waterhouse regarding sex stereotypes. So it's pretty clear that Congress had no problem with the part of Price Waterhouse that the post's author flippantly rejects. He also doesn't seem to care that Congress endorsed Griggs's reasoning by codifying its core holding into the explicit words of Title VII. Why doesn't the author respect Congress's judgment on all this?

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Blava S
on August 15, 2017 at 17:44:51 pm

As I said, "the sophistry they exhibit in distorting the plain meaning of the word 'sex' is truly astonishing." As it turns out, the late Mr. Zarda was not fired for having a picture (of Sally or anyone else) on his desk, but (allegedly) for announcing to his sky-diving students that he was gay. If the "silver bullet" theory advanced by Blava S is sound, then the EEOC, the courts of appeal, and the gay rights groups who have unsuccessfully introduced 50 different amendments to Title VII over the years have all been wrong. Since the day of its enactment, Title VII has always protected against sexual orientation discrimination, and we didn't know it until now. Re Oncale, even Homer nodded. "Sex" does not equal "sexual orientation," and no amount of casuistry can change that.

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Mark Pulliam
on August 15, 2017 at 18:50:32 pm

gabe: "I suspect that your “divining rod” has gotten just a tad bit bent"

l am willing to entertain argument that the problem is not bi-partisan, especially in the context of Alden. Justice Scalia disagreed with Constitutional Scholar Scalia, for cry-iy! lf Alden were an anomaly, l'd pass it off . . . but it is one data point in a large body of evidence. And as Justice Scalia counsels, judges have to have the courage and modesty to persist when the Constitution “produces results that go against [their] policy preferences.” Michigan v. Bryant, 562 U.S. 344, 394-95 (2011) (Scalia, J., dissenting).

Justice Scalia was about as faithful to his originalism as Tiger Woods was to his ex-wife Elin. See, Randy Barnett, Scalia's Infidelity: A Critique of Faint-Hearted Originalism, 75 U. Cin. L. Rev. 7, 13 (2006) (collecting examples). Alden was all about his putting his fat arse on the scales of justice, betraying the principles of originalism he had championed his entire professional life.

l am fully cognizant of the internment of even nisei and sensei during WWll, and the abominable Korematsu decision. But the point of using Dachau is that it WAS extreme; when you have to rely on the goodness of Man, you are courting disaster.

As for SSM, l don't need to trundle through the penumbra closet to find it.

The right to contract is an essential corollary of the right to own property, as you must be able to acquire and dispose of it to actually own it. In a secular society, marriage is a mere contract, with default terms drafted by the State. Rights are retained by the individual unless ceded to the State; all that a State can do is abridge rights and then, only in accordance with the authority granted to it. As the right to marry is fundamental, Loving v. Virginia, 388 U.S. 1 (1967), the State has to show a compelling interest in preventing two persons from entering into that marriage contract. As the State cannot show that it is in any way harmed when Fred and Ted decide to wed, it has no colorable authority to prevent them from doing so. This must be so as long as ours is a constitutional Republic with limited government powers.

I express no opinion on the ultimate wisdom of same-sex marriage, pointing out only that are stuck with the constitutions we have.

The 9Am says what it means, and means what it says. And if there was any lingering doubt, James Madison laid it to rest, arguing that

"….by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution."

1 Annals of Congress 456 (1789) (remarks of Rep. Madison).

While testifying under penalty of perjury, every sitting Supreme Court Justice has agreed with this sentiment. Justice Sotomayor notes that the “intent of the founders was set forth in the Constitution. They created the words; they created the document. It is their words that is the most important aspect of judging.” Justice Thomas asserted that his job as a judge is “to interpret [lawmakers’] intent, not to second-guess” it. Chief Justice Roberts adds that “the Framers were willing to have the judges decide cases that required them to interpret the Constitution, because they were going to decide it according to the rule of law.”

Rights are not given to us by government; they can only be taken away. l don't understand this group's irrational antipathy to SSM, but our opinions are not germane. The only question that matters is whether the government has lawful authority to invalidate SSM--and ~100 courts have said that there isn't any.

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LawDog
on August 15, 2017 at 18:53:31 pm

Translated, l have forgotten more about COTUS than you will ever know, and you really can't argue with me.

Just out of curiosity, Scott and djf, how many LW originalists do you know?

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LawDog
on August 15, 2017 at 19:20:34 pm

Blava S / Lawdog:

What is so difficult to comprehend about the word *sex* and why attack the essayist who simply states the obvious:

sex does not equal sexual orientation!

Knowing the essayist ( a tad bit) I think his motive is to engage the readers in a resolving a simple question:

Who shall make policy / law? Is it to be the Legislative or is it to be our Black Robed keepers of the Oracle of Delphi?
A simple question with profound implications and all the surliness and disputatious wordsmithery does not change that basic question; nor does it make, as the Dawg alleges, extreme partisanship.

Clever jurists, along with clever lawyers (and self appointed COTUS experts) fail to understand that simple proposition. 9th & 10th aside, we are not dealing with a purely *State* matter, now that the Supreme Black Robes have issued their diktat. Should Hawaii provide SSM recognition but Alaska not do so - FINE!
May a State LIMIT the P&I of it's own citizens - ABSOTIVELY - Coryell notwithstanding. Or are we to be subject to a monolithic cultural / political / social ethos imposed from above or are we, as many "alleged" libertarians profess, to be a nation of (semi-) sovereign States. AS for the countering argument that goes like this: "Oh, yeah, well if that condition obtains, then why not have segregation, etc?"
Again simple answer: The People, vicariously through their elected Representatives have passed the Civil War Amendments to COTUS? I do like my wine, folks but i don;t believe that I slept through the LBGT amendments.

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gabe
on August 15, 2017 at 19:22:50 pm

Blava S, as they used to say in law school, "if you change the facts of the case, the dog limps." l'm just going on the facts asserted in Hively. Per Judge Flaum: "l find the issue before us is simply whether discriminating against an employee for being homosexual violates Title VII’s prohibition against discriminating against that employee because of their sex." Nothing else is on the table.

Change the facts, and you might change my opinion.

Words have meaning. The object of constitutional interpretation is to give proper effect to the expressed intent of the Framers, Lake County v. Rollins, 130 U.S. 662, 670 (1889), and the authors of a statute are presumed to have said what they meant and actually meant what they said. Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253-54 (1992) (Thomas, J.; collecting 200 years' worth of caselaw). More to the point, when the words of a statute are unambiguous, “judicial inquiry is complete.” Id. at 254. And if you won't take it from me or the Court, perhaps you will take it from Justice Stevens. John Paul Stevens, The Shakespearean Canon of Statutory Construction, 140 U.Penn. L. Rev. 1373 (1992). There is no contrary authority, if you don't count Richard Posner and Aharon Barak.

Whereas there is no shortage of evidence of animus toward gays around here (they get mad at me for pointing it out :) ), Professor Pulliam has a point. There is no way one can credibly argue that the word "sex" in Title Vll also meant "sexual orientation." As much as you might want them to, Article lll judges have no warrant to rewrite the law under the guise of interpreting it.

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LawDog
on August 15, 2017 at 19:41:27 pm

l should be preaching to the choir; after all, this is Originalism 101. Looks like l got 'em mad, and quoting Neil Gorsuch will probably only make them madder:

"But tonight I want to touch on a more thematic point and suggest that perhaps the great project of Justice Scalia’s career was to remind us of the differences between judges and legislators. To remind us that legislators may appeal to their own moral convictions and to claims about social utility to reshape the law as they think it should be in the future. But that judges should do none of these things in a democratic society. That judges should instead strive (if humanly and so imperfectly) to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be—not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best. As Justice Scalia put it, “[i]f you’re going to be a good and faithful judge, you have to resign yourself to the fact that you’re not always going to like the conclusions you reach. If you like them all the time, you’re probably doing something wrong.”"

Neil M. Gorsuch, 2016 Sumner Canary Memorial Lecture: Of Lions and Bears, Judges and Legislators, and the Legacy of Justice Scalia, 66 Case Western L. Rev. 905, 906 (2016).

To me, COTUS is an elaborate logic puzzle. To solve it, you don't have to like every conclusion you reach. No one of that day even imagined things like safe therapeutic abortions, SSM, and machines capable of inventing their own language. But they are presumed to have said what they meant and meant what they said, and their words control.

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LawDog
on August 15, 2017 at 19:44:07 pm

Dawg:

"l have *FORGOTTEN* more about COTUS than you will ever know, and you really can’t argue with me."

Yep - that seems readily apparent.
Perhaps, it is that forgetfulness that leads to the conclusory postulate = "ya can't argue with me." Ha!

C'mon Dawg, don't be evil - be nice instead

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gabe
on August 15, 2017 at 20:19:41 pm

Did you read what l wrote, gabe? To wit: "There is no way one can credibly argue that the word “sex” in Title Vll also meant “sexual orientation.” As much as you might want them to, Article lll judges have no warrant to rewrite the law under the guise of interpreting it."

gabe: "Who shall make policy / law? Is it to be the Legislative or is it to be our Black Robed keepers of the Oracle of Delphi?"

False dilemma. As you should know by now, my view is that my personal view is irrelevant. The Framers maintained that the office of the judge was jus dicere—the power to declare the law only, as opposed to writing it. Francis Bacon, Essays LVI (Of Judicature) (1620). Lord Coke wrote, "[i]t is the function of a judge not to make, but to declare the law, according to the golden mete-wand of the law and not by the crooked cord of discretion." 1 E. Coke, Institutes of the Laws of England 51 (1642). Blackstone adds that a judge is "sworn to determine, not according to his own judgments, but according to the known laws." 4 Wm. Blackstone, Commentaries on the Laws of England *379 (1765). In the Federalist, Alexander Hamilton argued that to "avoid an arbitrary discretion in the courts, it is indispensable that [our judges] should be bound by strict rules and precedents, which serve to define and point out their duty in every particular case before them." The Federalist No. 78, at 470 (Alexander Hamilton) (I. Kramnick ed. 1987). Historian Charles Gibbon adds that the discretion of the judge "is the first engine of tyranny," 4 Gibbon, The History of the Decline and Fall of the Roman Empire 153 (6th Am. Ed. 1830) (1780), and Thomas Jefferson saw the judge as “a mere machine,” expecting that the law would “be dispensed equally & impartially to every description of men.” Thomas Jefferson, Letter (to Edmund Pendleton), Aug. 26, 1776. There is no contrary authority. Ergo, they can't--and l DO mean you, Justice Gorsuch!

Similarly, our legislators' (fed and state) power to legislate is constrained by the Bill of Rights. As much as you might want to persecute and/or vent your spleen on those godless gays, legislating SSM away is not within their legitimate authority. COTUS locuta est, causa finita est.

Where l take issue with Mark is where l take issue with you: your common failure to acknowledge that judicial activism is a bi-partisan problem, with the Right being the most prolific offenders.

gabe: "and all the surliness and disputatious wordsmithery does not change that basic question"

Or casuistry. l love dickering with a literate crowd. :)

The question here is fundamental: Did the Framers' generation, by virtue of adopting our legal Decalogue, protect certain rights from the ill-temper of transitory majorities? lf the answer is yes, and you concur that the office of the judge is jus dicere, the question becomes one of whether legislatures have authority to impair those rights.

gabe: "Clever jurists, along with clever lawyers (and self appointed COTUS experts) fail to understand that simple proposition."

lt is not that l don't understand it but rather, that the argument does not even rise to the level of sophistry. The notion that there are some rights that cannot be legislated away seems to totally escape you. "When men enter into a state of society, they surrender up some of their natural rights to that society, in order to ensure the protection of others." N.H. Const. art. 3. Those rights are retained, and out of the reach of transitory majorities.

gabe: "May a State LIMIT the P&I of it’s own citizens[?]"

ln a word, no. "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." U.S. Const. amend. XlV, sec. 1. COTUS must be read in pari materia, which means that you can't reduce the 9Am to an "inkblot" (Bork), or pretend the CWAs didn't happen.

gabe: "The People, vicariously through their elected Representatives have passed the Civil War Amendments to COTUS? I do like my wine, folks but i don;t believe that I slept through the LBGT amendments."

No, you just slept through Madison's explanation of the 9/10Am. For good or ill, the States ceded a substantial portion of their sovereignty to the suzerain. We have to interpret the COTUS we have, not the one you wish for.

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LawDog
on August 15, 2017 at 20:31:04 pm

Just returning the snark. lt appears on the face of it that Scott is our resident Sgt. Schultz. After all, he didn't bring ANY game. l back up my arguments with copious citations.

The problem with your argument is that you fail to account for Madison's design of the 9/10Am. He spelled it out for you. Legislatures are not omnipotent.

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LawDog
on August 16, 2017 at 12:16:47 pm

Funny, you seem to blame only Republicans and then claim with your very last line that it's bipartisan. You too seem to only think one party is to blame...

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Grant
on August 16, 2017 at 14:09:23 pm

Game? I don't waste time playing troll games with trolls. I've always found that it's best to just call them out as trolls and leave it at that.

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Scott Amorian
on August 16, 2017 at 17:12:09 pm

This is a conservative audience. They already believe that all liberal judges are activists; there is no need to rehash that proposition--but you need travel no further than Hively to find a florid example.

My goal is to convince them of what they don't want to believe. Hence, the effort.

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LawDog
on August 16, 2017 at 21:04:33 pm

Dawg:

Belated comments here as I was unable to post for 2 days.
Just so you know - I did NOT read your comments prior to my post as it appears that as I was typing my comments WHILE your comment was being posted.

Now: It appears that we agree on a number of things:

1) Stick to the text as best one can
2) It is the role of the Legislative to *infuse* the *spirit* of the DOI into Legislation - NOT the Judicial. (I have argued this frequently here and elsewhere).
3) We are stuck with the COTUS that we do have. The rub is how to interpret it - however, it is done it must not be done with a mind / view to "legislate"
4) And yep! sometimes we are compelled by the text and the statutes to reach a conclusion that we do not like. Tough luck - but there it is - and it shopuld be there for both the left and the right.

We do not agree on the 9th. I also agree that it is not an inkblot - but it is arguable that ALL sovereignty was yielded by the States to the central government AND Madison himself never made such an argument - to the contrary he argued that this was to be a limited central government and so structured the mechanisms / branches of government to yield such a result.

You appear to conflate the P&I of "Citizens of the United States" with P&I of "citizens of the several states. In so doing you trample / diminish the "police powers" of the States. We may argue re: "licensing for marriages" but clearly, it was never intended to be a Federal fucntion; nor were the Federales to be involved in licensing "hair-braiders" - Yep, egregiously stupid policy (in Louisiana, etc) but there you have it. Not for the Federasles to interfere - but rather for the people (whoever, or better yet, WHEREVER they may be hiding) to demand reasonable requirements - not sops to the industry big boys / girls.

seeya

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gabe
on August 17, 2017 at 08:30:47 am

[…] are turning out not to be about what consenting adults do privately. They are the spear tip of a wholesale shift in law that is already negatively affecting children, because at its heart is the principle that sexuality […]

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Image of Trans Juggernaut Wants Your Kids. Public Schools Are Just The Beginning - The Right Side of News
Trans Juggernaut Wants Your Kids. Public Schools Are Just The Beginning - The Right Side of News
on August 17, 2017 at 09:00:22 am

[…] are turning out not to be about what consenting adults do privately. They are the spear tip of a wholesale shift in law that is already negatively affecting children, because at its heart is the principle that sexuality […]

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Image of The Trans Juggernaut Wants Your Kids, And Public Schools Are Just The Beginning – Liberty REDUX
The Trans Juggernaut Wants Your Kids, And Public Schools Are Just The Beginning – Liberty REDUX
on August 21, 2017 at 11:59:19 am

Sorry to arrive late to the party. Just a side question:

"if you change the facts of the case, the dog limps."

I don't know that phrase. Does the phrase mean to suggest that an argument is "lame" or not "running on all fours"? See http://itre.cis.upenn.edu/~myl/languagelog/archives/003944.html

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nobody.really
on August 21, 2017 at 16:18:56 pm

[…] are turning out not to be aboutwhat consenting adults do privately. They are the spear tip of a wholesale shift in law that is already negatively affecting children, because at its heart is the principle that […]

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Image of Trans revolution: Public schools are only the beginning | Uncommon Sense
Trans revolution: Public schools are only the beginning | Uncommon Sense
on September 09, 2017 at 20:04:30 pm

[…] are turning out not to be about what consenting adults do privately. They are the spear tip of a wholesale shift in law that is already negatively affecting children, because at its heart is the principle that […]

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Image of VIDEO Trans Juggernaut Wants Your Kids, Public Schools Beginning – DNA Sets Sex – Banned From Entering Military | Reclaim Our Republic
VIDEO Trans Juggernaut Wants Your Kids, Public Schools Beginning – DNA Sets Sex – Banned From Entering Military | Reclaim Our Republic
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on September 17, 2020 at 15:29:58 pm

[…] unsparing. Even if the reader disagrees with Scalia concerning the end result of a selected case (as I do), one has to admire the forcefulness and rigor of Scalia’s evaluation. Even Homer nodded, in any […]

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