Decisions, and Lack Thereof


Welcome back to the scuttlebutt.

Well pull up a chair, Mr. and MS Supreme Court Justices, grab a drink, and we’ll talk.  I had intended to do a review of Artemis Fowl… But the best-laid plans of mice and men gang aft a-gley.


The Supreme Court made a ruling and refused to hear another case, and I want to talk about them both. Fair warning I may slip into sailor speak, if dirty words damage your “Wah”, you may want to skip this one.


First, let’s talk about the decision in Bostock v Clayton County Georgia.  They tied two other similar cases in as well, but it goes on record with this name so that’s what I’ll call it.


This decision has the conservative papers and Blogs panties in a huge knot, as well as having the dissenting Judges (Alito, Thomas, and Kavanaugh) riled up. So riled up that the dissenting opinions (Kavanaugh wrote a separate one) went 82 pages, and the decision itself went 33.  


You can read the whole thing here:   But I’ll save you the effort and give you the high points.


All of this revolves around Title VII of the Civil Rights Act of 1964.  This title outlaws discrimination in the workplace on the basis of race, color, religion, sex, or national origin.  Note that “sexual orientation” isn’t mentioned here.  It’s been brought up a couple of times in congress, but always failed to make it to the president’s desk.  That is the bone of contention here.  


The three plaintiffs were all fired for being gay or transgender.  The dissenting opinions are on the position that since Congress didn’t specify “sexual orientation”, that firing for being gay was not against the law.  They make a good case for that position.  But NOT good enough in my opinion.  Let me expound. (like you could stop me)


All three of the cases wound up before the SCOTUS because the appellate courts split on their ruling, meaning some ruled one way, and some the other… This is usually how something winds up before the nine.  (more on that later) 


Here are some key excerpts from the decision: “only the words on the page constitute the law adopted by Congress and approved by the President.  If judges could add to, remodel, update, or detract from old statutory terms inspired only by extratextual sources and our own imaginations, we would risk amending statutes outside the legislative process reserved for the people’s representatives.”  Of course, this is exactly what the dissenting opinions accuse the six in the majority of doing.


Next quotes: “The only statutorily protected characteristic at issue in today’s cases is “sex”—and that is also the primary term in Title VII whose meaning the parties dispute.  Appealing to roughly contemporaneous dictionaries, the employers say that, as used here, the term “sex” in 1964 referred to “status as either male or female [as] determined by reproductive biology.” 


Now here’s a super important part: “But because nothing in our approach to these cases turns on the outcome of the parties’ debate, and because the employees concede the point for argument’s sake, we proceed on the assumption that “sex” signified what the employers suggest, referring only to biological distinctions between male and female.”


And then there’s:the statute prohibits employers from taking certain actions “because of” sex. And, as this Court has previously explained, “the ordinary meaning of ‘because of’ is ‘by reason of’ or ‘on account of.’”  There’s a lot of discussion about what “because of” means, but that’s because lawyers love to hear themselves talk, and spend great amounts of time talking about what the meaning of “is” is.  


The short form of all of the bla-bla is: If an action would have taken place differently if a variable was changed, that fits the definition of “because of”.


They point out in great detail that there are other words used in the law if you want to say “you can’t do this if the ONLY reason you’re doing it is X” (I summarized a page and a half right there). They spend another couple pages talking about some more esoteric arguments the employers threw at the case, and most of them the plaintiffs ceded to for argument’s sake, because of the one big hammer they had.  


I’m going to cut to the chase here. The big hammer is “did you fire this person for something that would have been OK if someone of the other sex had done it?”  One of the cases was a transsexual as I mentioned… If she had been born a woman and wore a dress to work, would you have fired her? 


No, I didn’t think so.


So, you fired this person that had been working for you for a long time, because they had once been a he, and now, post-surgery was a she and dressing like a she, which you say “made your customers uncomfortable.” Let us say, for sake of argument that we still consider this person a male, in spite of the fact that they’ve had a dick-ectomy. That would still be firing a man for something that it would be ok for a woman to do.


The other two were fired strictly and solely (by the admission of the employers) because they came out of the closet and admitted they were gay.  


Here’s the thing: What about being gay is a fire-able offense? Were they doing something against company policy as written down? No, I didn’t think so.  Well, mister employer, what do you have to say in justification? 


“He lies with another man carnally?”  That’s your reason?  Tell me, do you fire women for sodomy or fellatio?  No, I didn’t think so. So, it’s the fact that he’s a man, not a woman, and giving a blow job.  


Look the concept hits my ick factor too, BUT, if you don’t fire a woman for something that if done by a man is a termination offense, you crossed the “sexual discrimination” line, and of course, vice versa. 


They spend most of the rest of the document exploring variations on why this is so and slapping down dissenting red herrings.  Those fish are things like:


“what’s this going to do to bathrooms and locker rooms?”  We’re not trying that case here, this is about people getting fired for being male and having sex with a man when you don’t fire women for having sex with a man.  When a case comes before us about locker rooms, we’ll try that case. 


What about religion? There’s a religious exemption for religious affiliation in the law. And so on…


As I said, this was an unpopular decision with the conservative side of the nation.  Of course, I’m not, strictly speaking, a conservative, I’m a minarchist, what used to be called, in a more learned time a “Jeffersonian liberal”.  I believe that the government governs best that governs least, it’s task is to ensure a level playing field, do those things which the constitution says it should do (you know, things like provide for the common defense…) and adhere to the letter of the law.  I see this as part of that level playing field piece and the letter of the law.  If you don’t like it, amend, or get rid of, the Civil Rights Act… Good luck with that.


Now, let us talk about the one they screwed up.


They declined to hear a case by several people against the State of New Jersey and the dissenting opinion (saying “We need to hear this case”) went 19 pages.  The raw data is

And starts on page 33 of 57, if you want to go look for yourself.  This was a Second Amendment case. 


It’s a case that should be a slam dunk, once you look at “Heller” and “McDonald”.  A guy who services ATMs in high crime areas wanted to get a Pistol permit.  In N.J. that requires a standard of proof of need that is ridiculous on the face of it. To: “specify in detail the urgent necessity for self-protection, as evidenced by specific threats or previous attacks which demonstrate a special danger to the applicant’s life that cannot be avoided by means other than by issuance of a permit to carry a handgun.” “Generalized fears for personal safety are inadequate.”


The dissent basically states that “we need to take this case, and make sure the lower courts understand: “only the words on the page constitute the law adopted by Congress and approved by the President.”  


In SHORT, what part of “THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS, SHALL NOT BE INFRINGED” do you fuckers not understand?  


The key word is BEAR in this case.  The second doesn’t say “Keep locked up at home”, it doesn’t say “within the people’s dwelling, or on a shooting range,” it says KEEP and BEAR.  “As this Court explained in Heller, “[a]t the time of the founding, as now, to ‘bear’ meant to ‘carry.’” 554 U. S., at 584. “When used with ‘arms,’ . . . the term has a meaning that refers to carrying for a particular purpose-confrontation.” Ibid. Thus, the right to “bear arms” refers to the right to “‘wear, bear, or carry upon the person or in the clothing or in a pocket, for the purpose of being armed and ready for offensive or defensive action in a case of conflict with another person.’”


In Bostock above, the same judges that refuse to here this case said “The people are entitled to rely on the law as written, without fearing that courts might disregard its plain terms based on some extratextual consideration.” Yet here they refused.  It seems that they only feel that way about some animals and that those animals are more equal than others.  


It’s also worth noting that different appellate courts are making different decisions, on basically the same situation, which is normally (again, as mentioned in Bostock) a reason for SCOTUS to weigh in. 


Quotes from the dissenting opinion: “While some Circuits have recognized that the Second Amendment extends outside the home,” (many cases omitted from the quote) 

“many have declined to define the scope of the right, simply assuming that the right to public carry exists for purposes of applying a scrutiny-based analysis,” (more cases omitted) 

“Other courts have specifically indicated that they would not interpret the Second Amendment to apply outside the home without further instruction from this Court.” (still more cases omitted.)


Look, if you’re going to make sure that rights aren’t violated, that means all the rights, not just the ones you like.  Looking at you RGB, Sotomayor, Kagan, and Gorsuch!  


The job of the SCOTUS is to ensure that the government doesn’t get too big for its britches, and not just in the places that you feel the pinch!  


That goes for BOTH sides of the court, the conservative side screwed the pooch with their interpretation of Bostock.  I understand why they made the arguments they made, but they were WRONG.  You folks are supposed to be the best of us, start fucking acting like it!


Until next time I remain,

Yours in service.

William Lehman.


1 Comment

Leave a Reply

Your email address will not be published. Required fields are marked *

clear formPost comment