SCOTUS sez:Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin. Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex.One can consider the morality of the underlying matter - and I will at the end - but unlike gay cakes this was a matter of interpretation of (Federal) legislation, not the Constitution. And the text to be interpreted was "sex". The judgement spends quite some time noting that the discrimination, if it were illegal, would be illegal if "sex" was only a (possibly minor) part of the reason for the firing. But (as Alito points out) nobody disagreed with that, so it looks like squid ink. The crucial part, is does discriminating on the basis of being transgender, or homosexual (which includes being lesbian) intrinsically include discrimination on sex? The majority say it does; Alito (and Thomas and Kavanaugh) say it doesn't; I agree with the latter three.
The reason is tolerably obvious: I could be (as it happens I'm not, you'll be pleased to know) rampantly prejudiced about people attracted to their own sex; but equally prejudiced against queers of both sex. And therefore, my prejudice would have nothing to do with the sex of the person concerned; but be entirely a matter of their sexual orientation. The court even manages to consider pretty well exactly this case (p 18). The base of their argument (shorn of the irrelevant black / catholic element) appears to be discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second, but this is still iffy2: I think they're trying to say that, yes, you may not be biased against either sex, but nonetheless since homosexuality can't exist without distinctions-of-sex, it is therefore protected. This is certainly an interpretation, but I don't think it is the obvious one; or the one that the writers intended.
The majority correctly note that the mere fact that those who wrote this legislation did not intend this result (or so I would guess and everyone in this case seems to assume) is no bar to reaching it: Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result... 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 extra textual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit. The legislation is what is written (and how it is interpreted) and if there is a clear and unambiguous reading, then there is no issue. But of course there is not a clear and unambiguous reading - well, IMO there is one obvious reading and it's not the one they make -, and their attempt to assert one is mendacious.
In the case of ambiguous reading - which I think is the best they could assert in their cause in this instance, though since they're fully aware of what I'm about to say next they take care not to admit that - then it is natural to consider the intent of those who wrote the legislation, as Hobbes says. And, clearly they don't want to do that, because in 1964 discrimination against gays was all fine and dandy, as far as the law and those who wrote it was concerned1.
Yet another wrinkle on this - that I learn from Alito's dissent - is that there is legislation in Congress (or just failed? Not sure of the details) to specifically prohibit discrimination based on sexual orientation. Which would be pointless if the existing legislation was clearly in their favour. Perhaps ironically, it may now be dropped because the law now is in their favour.
Another aside: the pension-fund contribution precedent they cite on p 13 was I think correctly decided on the law, but nonetheless stupid, for the obvious reasons. Happily it only arises in defined-benefit schemes which are on the way out anyway, and that departure will be speeded by such rulings.
As something of an aside, both majority and dissent stress that words and phrases in legislation are to be interpreted "with their ordinary meaning" rather than absolutely literally. This sounds terribly public-friendly, and may even be a good idea, but I have a sense that it opens up avenues of interpretation better left closed. But then again, per Hobbes, law always requires interpretation. Alito stresses that the interpretation should be based on the common meaning at the time the law was written. This too seems correct; if the word "fish" were to shift it's common-place meaning to include - let us say - whales, the interpretation of "fish" in legislation pre-dating that change should continue to exclude whales.
The Court’s opinion is like a pirate ship
Aka, Alito's dissent. Can you tell that he's not happy? He really isn't happy. Since I'm in agreement with his view of the legislation, I don't need to say much more here.
Who decides?
Kavanaugh's dissent, as far as I can tell, introduces nothing new.
Morality
Having decisively dealt with the legislative aspect, there's the moral aspect to consider. Morality is not the same as law, and will not reach identical conclusions on all occasions (as a gentle hint that this is so, we have different words for the two concepts). Here we should acknowledge a conflict, and toss into the gutter the opinions if not the persons of anyone too stupid to accept that there is a conflict. The conflict is between the liberties of the employer, and the "rights" of the employee. This is similar to the conflict of the rights of seller and would-be purchaser in the gay cakes case. The liberty of the employer is infringed when he is obliged to employ someone he doesn't want to. The "rights" of the employee are somewhat more diffuse; they have no "right" to any particular jobs, they do have a "right" to decent treatment. Incidentally, this conflict only exists between private entities; the state, of course, is obliged to treat all equally under the law (I mean, in theory; in practice, gays were banned in the military for ages, as were women, and so on and so forth). My own personal preference would be to not discriminate pointlessly; if we follow the law-is-custom maxim, then in the West custom has definitely shifted against discrimination. However, rather than solving the problem this way it would have been better to amend Title VII itself.
Update: it woz the govt wot dun it
David Henderson points out that one of the discriminators was Clayton County. A govt entity. Which, as I said above, isn't allowed to discriminate. I'm astonished that the court didn't consider that matter. For them, there's no need to even consider title VII.
Economics
The economic view, of course, is that a company that fires people for their sexual orientation is, we must presume, losing access to valuable talent, and therefore likely to suffer a loss (we'll gloss over the possibility of having prejudiced customers for this purpose). Therefore, the pressures of the Free Market act to suppress discrimination. Isn't that nice to know?
Update
Textualism and Purposivism in Today's Supreme Court Decision on Discrimination Against Gays, Lesbians, and Transsexuals: The decision in Bostock v. Clayton County is well-justified from the standpoint of textualism (a theory associated with conservatives), but less clearly so from the standpoint of purposivism (often associated with liberals) - Ilya Somin, Volokh. Various commentaries now exist, but most simply repeat the judgement or the bits of it they like, or celebrate it; there's precious little analysis or thought. This is the best I've seen; it puts forward the interesting example of interracial prejudice: would this example be analogous to the homosexual one? It's a nice try but no cigar I think.
Notes
1. Hobbes explicitly says that if you're in doubt, you can go off and look at the speeches of the legislators, if you want to know what their intent was. And the custom of the SCOTUS to treat the Federalist Papers seriously means they know this. And yet the majority manage to say (in an effort to explain away subsequent Congress not adding explicit language) Maybe some in the later legislatures understood the impact Title VII’s broad language already promised for cases like ours and didn’t think a revision needed, without making any attempt to reference any of the debate. Alito bemoans why in these cases are congressional intent and the legislative history of Title VII totally ignored? Any assessment of congressional intent or legislative history seriously undermines the Court’s interpretation.
2. And apparently contradicted by evidence, as the dissent says: At oral argument, the attorney representing the employees, a prominent professor of constitutional law, was asked if there would be discrimination because of sex if an employer with a blanket policy against hiring gays, lesbians, and transgender individuals implemented that policy without knowing the biological sex of any job applicants. Her candid answer was that this would “not” be sex discrimination.10 And she was right.
Refs
* The Outrage Epidemic: How the New Information Landscape Fuels Tribalism by Russ Roberts
* SCOTUSblog: Ryan Anderson: Symposium: The simplistic logic of Justice Neil Gorsuch’s account of sex discrimination.
* US supreme court: Don't be fooled. The US supreme court hasn't suddenly become leftwing by Nathan Robinson. In which the Graun considers all possible motivations for the judges, other than that they were doing their best to interpret the law.
* An example of the courts simply interpreting the law, despite their clearly expressed wishes to do otherwise (Exxon).
* OPINION: The ‘villain’ in gay workers rights case has plenty to say.
* The Supreme Court is a follower, not a leader by Scott Sumner at Econlib.
"Becker’s point was not that therefore employers would not discriminate but rather that the free market makes them pay a cost for discriminating."
ReplyDeleteNot exactly what you said, it's more subtle, and people appear to be prepared to pay the cost.
But you, like Alito, are just being a professional right wing nutjob.
ReplyDeleteEvery element of the Constitution is interpreted in the light the modern common understanding, not necessarily in terms conceived by those of a more benighted era. Only in that way can it be a living document. Here everything turns on the definition of "sex" and the contemporary understanding of the term very reasonably includes sexual orientation. If every law ever passed needed a lengthy addendum specifying exactly what each person who voted for it understood by the term, the term "person" would only include white male landowners, and every law based on that assumption would need to be rewritten.
I suspect that your latter comment is more consequential - you desperately fear that the right of capital to oppress labor might be compromised.
> Should employers be entitled to refuse to hire bald people? People with (ahem) long beards?
ReplyDeleteApparently, yes: title VII only bars certain discrimination: from the dissent: "As noted, other than prohibiting discrimination on any of five specified grounds, “race, color, religion, sex, [and] national origin.” 42 U. S. C. §2000e–2(a)(1), Title VII allows employers to decide whether two employees are “materially identical.” Even idiosyncratic criteria are permitted; if an employer thinks that Scorpios make bad employees, the employer can refuse
to hire Scorpios. Such a policy would be unfair and foolish, but under Title VII, it is permitted."
As for the rest of your anguish: the law is there for when people cannot peacefully disagree.
> a professional right wing nutjob
ReplyDeleteAs a long-term commentator you get a one-time pass for that, but please don't get in the habit, as having comments deleted sometimes offends.
> the contemporary understanding of the term very reasonably includes sexual orientation
You need to try reading the judgement, or a useful paraphrase such as mine, before commenting. No, that isn't the argument, and the majority don't assert it. This is all covered in the first few pages so you have no excuse.
The economic view, of course, is that a company that fires people for their sexual orientation is, we must presume, losing access to valuable talent, and therefore likely to suffer a loss (we'll gloss over the possibility of having prejudiced customers for this purpose). Therefore, the pressures of the Free Market act to suppress discrimination.
ReplyDeleteThe link says discrimination is economically disadvantageous but that doesn't necessarily mean a free market would correct it. One issue is that a free market is agnostic about how you "gain access to valuable talent". Slavery was a pretty popular way to gain such access and didn't seem to result in non-discriminatory outcomes.
I think it's curious the way people resist within themselves the idea that FM's could tend to press against racism, and discrimination in general. There's a visceral dislike of FM's, despite everyone's desire for freedom for themselves. As to "the link says" - why do you even have to look? Is the underlying theory so hard to understand? It's like Darwinism; once you have the idea, evidence is pretty well superfluous.
ReplyDeleteWell, I was certainly out of line in accusing you of being a "professional etc. etc." My apologies.
ReplyDeleteI even agree that there is ambiguity in whether discrimination on the basis of sex only means "biological sex" whatever that may be, or includes "sexual orientation." To a large degree the Supreme Court exists to resolve textual conflicts and ambiguities, and has never been shy about resolving such ambiguities in favor of its ideological predilections and those of important constituencies, especially corporations and other wealthy interests - most radically in its decisions that corporations were "persons" and thus entitled to the protection of Amendments 13-15, decisions that Alito and Thomas have never challenged.
Given that history, it is more than a bit disingenuous of them to become strict textualists only when it suits their own prejudices.
I would think what happens in reality should have more weight than what theory says. The underlying economic theory is basically maximisation of talent, or "human capital stock" as some people put it. One means of achieving that could involve movement against discrimination, but there's no actual reason why the free market in any given context would choose that as a solution. For much of human history a large part of the free market solution to maximising human capital stock has been slavery. What put an end to that was legislation, not the free market. Though it could be argued that industrialisation also changed the context so that slavery became less advantageous from a human capital stock perspective.
ReplyDeleteYou've added a huge qualifier there with the word "could". Yes, sure, in some specific contexts the free market would tend towards alleviating discrimination. But then, almost anything could do that given the right environment.
On the power of the magical, mythical power of free markets (I guess that is what FM stands for). I call it largely mythical for reasons that were pointed out by Adam Smith. Nobody hates a free market as much as a capitalist, because what they really want to do is extract rents. They do this by conniving and occasionally conspiring to suppress competition. This has been amazingly successful in the US.
ReplyDeleteWhy does the US health care system, supposedly more "free" than those of other advanced countries, cost two or sometimes three times as much and yet deliver worse health outcomes? Because it is really good at extracting rents, and because the government, unlike the governments of other advanced countries does not inhibit rent extraction and in fact facilitates it.
Many years ago, Kenneth Arrow proved that markets are not capable of producing both quality and efficiency in health care. Those who ignore that claim to do so in the name of such allegedly free markets that are actually conspiracies in facilitation of rent extraction.
"we'll gloss over the possibility of having prejudiced customers for this purpose" is pretty key for FM's pressing against discrimination. Except it is not just customers - it is colleagues, it is collaborators, it is the education pipeline, etc. etc. I think most real world markets are almost more defined by their imperfections than the base theory (externalities being the least of them!).
ReplyDelete-MMM
I am not sure I understand your (and Alito's) reasoning here.
ReplyDeleteUnder your interpretation would it be legaly acceptable for an employer to insist that all employees must restrict their sexual liaisons to the same sex, and any person found in a physical relationship with a person of the opposite sex could legitimately be fired ?
Re WC and Paul S on whether free markets tend to eliminate invidious discrimination. One can find examples where they have done exactly this, especially in professional sports and entertainment industries, but I think Libertarians should think about how and why they haven't done this more effectively.
ReplyDeleteI think the answer is again in Adam Smith - capitalists hate free markets, because they depress rents. One of the ways rent extraction can be facilitated by creating depressed classes whose labor can be made very cheap. This was done after the US civil war by systematically depriving blacks of economic and political power.
Why does this work even though free market theory says it shouldn't? Because humans are very good at organizing into groups and competing against each other. Smith knew this but believed that the economic forces in the invisible hand would prevail, and as mentioned above, sometimes they do. But Smith lived before corporations and instantaneous global communications, and perhaps underestimated the power of ethnicity as an organizing principle, though I seem to recall that he did call out the East India Company and its conspiracy in restraint of trade.
So who gets the benefit of systematic demonization of a group? In the case of illegal immigrants in the US and elsewhere, the answer is both capital and consumer. Capital, because it gets the rent from employing cheap labor, and of course consumers, who get get cheaper food etc. Who suffers? The immigrant workers, who get paid below market wages, and domestic labor, which are forced to compete with them.
> resolve textual conflicts
ReplyDeleteAlthough that's irrelevant to this case; there is no textual conflict or ambiguity. Again, you need to try reading the judgement.
> slavery
I'm not sure why you think that's a good example. It's an example of "goods" exchanging hands, but since said goods are slaves it's not a free market.
> the US health care system
...is not a free market. Obvs. It has govt's sticky fingers all over it. "and in fact facilitates it" - see, you know it yourself. Why not try making a coherent argument rather than a self-contradictory one?
> most real world markets are almost more defined by their imperfections
I think it is reasonable to say that most if not all real-world FMs are imperfect. The question arises, what conclusions do you draw from this? Many people's unthinking reaction is govt intervention, but no govt is perfect either.
> Kenneth Arrow proved that...
Is that the one that's "an exploratory and tentative study" or di you have something else in mind? C'mon man you know what "proof" means, and you know what providing decent references means, too.
> would it be legaly acceptable for an employer to insist that all employees must restrict their sexual liaisons to the same sex
Upon the plain meaning of Title VII (rather than this judgment's reading of it) yes: being prejudiced against heterosexuals would be acceptable, since it would not infringe the "sex" clause, in just the same way that homosexuality doesn't.
> Why does this work even though free market theory says it shouldn't?
Not sure exactly what you mean there, but generally the answer is that the state intervenes to prop up the discrimination. For example, your Jim Crow laws. Which were, umm, laws. Geddit?
"FM's could tend to press against racism"
ReplyDeleteMaybe it does, but do we notice? Surely it's had the impact it's going to have already.
"Is the underlying theory so hard to understand? It's like Darwinism; once you have the idea, evidence is pretty well superfluous."
No the theory is easy, but the effect is not noticeable.
It's nothing like Darwinism. The rules of Darwinism can't be changed by Judges.
"the law is there for when people cannot peacefully disagree."
Is this supposed to make Law seem trivial?
...but since said goods are slaves it's not a free market.
ReplyDeleteNot completely sure what distinction you're making here. The slaves themselves weren't really market participants but that doesn't mean slavery wasn't a free market for the market participants. But that's besides my point anyway, which was about how slavery emerged as a free market solution to maximising labour potential. The fact that the free market solution involved removing people from being free market participants is an interesting point.
CapitalistImperialistPig,
One can find examples where they have done exactly this, especially in professional sports and entertainment industries
Those are interesting examples since in days gone far by those are industries which mostly involved slaves, so I don't think substantial employment of minorities can necessarily be assumed to be anti-discriminatory. If the American Civil War never happened and slavery was still happening in the South I suspect NFL and NBA teams in the South would still employ basically the same amount of black people as they do now (has anyone written that counterfactual?)
Likewise there was plenty of employment of black people in the South - basically 0% unemployment, remarkable - and their work was considered so vital to the economy that a war was fought to keep them. But that didn't result in any autonomy or treatment as equals.
The free market may push people to identify the best "human capital stocks" in a non-discriminatory way in order to maximise economic gains, but it doesn't then follow that the free market necessarily pushes people to properly reimburse those humans for their work or actually treat them in a non-discriminatory way if they can get away with it. Ensuring the free market doesn't result in people thinking they can get away with it requires legislation.
WmC -
ReplyDeleteArrow and proof: I trusted you to find his seminal paper and you did apparently read the first sentence at least. Proof in economics is not the same as proof in math, so we could perhaps quibble about whether the holes Arrow demonstrated in the optimality theorems constituted proof. But Arrow analysis has been confirmed by thousands of subsequent papers and blessed with a Nobel Memorial Prize. I took the word "proved" from a work by another Nobelist, Angus Deaton.
The dissent - Alito's dissent looked like blowing smoke to me. It turned on the notion that people didn't seem to think discrimination against homosexuals was bad back in the sixties so the law they passed couldn't possibly be construed to prohibit it. By contrast, the opinion of the court pointed out that essentially similar behavior (having sex with a male) by two persons of different sex was being punished in the cases decided. Clearly the majority of the distinguished legal scholars on the court had a different opinion of the text you and Alito found unambiguous. Alito's thinking has a clear basis, he and his religious partisans think anti-homosexuality is sanctioned by the Bible, and wish to preserve it.
You seem to think discrimination was just a matter of state intervention. This does not square with history. To go back to the sports example, major sports were segregated by agreement of the owners, without any state authority. Similar things happened in many other industries. Yes, many egregious examples of discrimination were reinforced by local and State laws, but that was only a component.
You might see a different world if you took off those Libertarian bl
inders.
Paul S. - I don't follow you. Black exclusion from professional sports was happening a century after the Civil War ended slavery.
ReplyDelete> Is this supposed to make Law seem trivial?
ReplyDeleteA strange question. I find it hard to fathom your thinking. The answer is no.
"Upon the plain meaning of Title VII (rather than this judgment's reading of it) yes: being prejudiced against heterosexuals would be acceptable, since it would not infringe the "sex" clause, in just the same way that homosexuality doesn't."
ReplyDeleteThat would seem to open up a whole field of possible legal discrimination that an employer could use to select and fire their employees.
Failure to provide evidence you have been unfaithful to your spouse in the last 3 months, inadequate proof you have refrained from self-pleasuring, practising abstinence on a Sunday...
At what point do all these possibilities cross from legitimate causes for discrimination and the termination of a contract of employment, to egregious infringement of the personal privacy and autonomy of the individual ?
> open up a whole field of possible legal discrimination
ReplyDeleteYes, and that's still there. And this is commonplace knowledge (read Alito's dissent if you're in doubt: "As noted, other than prohibiting discrimination on any of five specified grounds, race, color, religion, sex, [and] national origin.” 42 U. S. C. §2000e–2(a)(1), Title VII allows employers to decide whether two employees are “materially identical.” Even idiosyncratic criteria are permitted; if an employer thinks that Scorpios make bad employees, the employer can refuse to hire Scorpios. Such a policy would be unfair and foolish, but under Title VII, it is permitted. And until Title VII is amended, so is a policy against employing gays, lesbians, or transgender individuals.")
You seem to be confused by the distinction between what is morally correct, or what is sensible, and what the law permits.
Again, the hint is in the law: given that it writes down a list for which discrimination is forbidden (race, sex, whatever) then things not on that list are not forbidden (by that law). It isn't like the constitution, which specifically states that it is not restricted to things explicitly named.
CapitalistImperialistPig,
ReplyDeleteBlack exclusion from professional sports was happening a century after the Civil War ended slavery.
Clearly there was strong socialised racism which prevented black inclusion in sports. The question is what changed? You can say social attitudes changed, legislation changed, but also the amount of money involved changed, creating strong free market incentives to innovate.
Jackie Robinson was the first black person to break the exclusion, but it wasn't because social attitudes changed enough to allow in a black person who was just good enough to be in the team. It was because Robinson was clearly much better than the white players they had and gave the team an advantage.
I think the important thing was TV. That pushed more money into top level sports and continues to push in more and more money. That created the incentive to innovate and bring in black players to improve the team despite social attitudes. So in that sense the power of the free market overcame racism to some degree, allowing access to professional sport. The free market doesn't care if the labour force is white, black, brown - it just wants the best people for the job.
But my point is that the free market also doesn't care how that labour is obtained. The free market incentive is to employ the best person for the job, not necessarily to reward that person. West Africans were brought to the Americas because they were considered to be the best people for the job of working the land, but that didn't result in a good outcome for them.
It's a counterfactual so obviously I can't be sure, but if you had the amount of money in sports today in a hypothetical modern slave-owning confederacy I suspect the wealth incentives would override the sense of "good ol' boy gentlemanly conduct" which would otherwise exclude black slaves from being in sports teams.
West Africans were brought to the Americas because their labour was free, not productive.
ReplyDeleteWmC - "given that it writes down a list for which discrimination is forbidden (race, sex, whatever) then things not on that list are not forbidden (by that law). It isn't like the constitution, which specifically states that it is not restricted to things explicitly named."
ReplyDeleteIf you read, or reread, the actual decision, you would notice that it dealt exactly with that issue. It made clear that tradition and practice insist that a broad interpretation of the statute is appropriate. By contrast Alito's interpretation requires narrow construction and is explicitly contingent on the prejudices of more benighted eras.
> the actual decision
ReplyDeleteYou still haven't read it, have you? The relevant bit is "discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second" (which I've already quoted). They are *not* reading the word "sex" more broadly, indeed they explicitly disclaim doing so. they are deducing things that (in their opinion) necessarily follow.
If being a Scorpio in some weird way could be shown to depend on sex (if only women were dumb enough to believe in astrology) then it would now be forbidden to discriminate on that ground.
Here are the examples:
ReplyDeleteFor homosexuality:
"Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague."
And transgenderism:
"Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth."
Seem logically reasonable to me.
If being a Scorpio in some weird way could be shown to depend on sex (if only women were dumb enough to believe in astrology) then it would now be forbidden to discriminate on that ground.
I'm not sure how you've worded that makes sense. If someone were fired for being a scorpio it would be the employer who believes in astrology. If someone were fired, or not hired, on the grounds of believing in astrology and it could be shown that it's mostly women who believe in astrology that would be prima facie grounds for a case unless there is a clear reason why belief in astrology impairs job performance. That's standard sex discrimination law and always has been.
@-WC
ReplyDelete"You seem to be confused by the distinction between what is morally correct, or what is sensible, and what the law permits."
What is morally correct is always defined by a social context.
What is sensible uses reason to deduce the logical consequences of specific actions.
What the law permits only has a tangential relationship with either of those considerations.
Or do you find that confusing ?
> Should employers be entitled to refuse to hire bald people? People with (ahem) long beards?
ReplyDeleteApparently, yes
Well, except bald people and people with long beards are overwhelmingly men so it could be classed as sex discrimination. Of course, if they end up hiring a man for the role it wouldn't be an issue.
WmC - here is the relevant quote from the ruling: "But when Congress chooses not to include any exceptions to a broad rule, this Court applies the broad rule."
ReplyDeleteIt is obvious that homosexuality is all about sex. Take a look at letters 5-7 of the word. I think I know why Alito chooses such a narrow definition of sex - he has a religious prejudice to defend. I can't figure out your point. Maybe you could explain it.
I suppose I have it coming, but I find your claims that I haven't read the decision a bit tedious.
Apologies if this is posted multiple times. Providing name/url and then proving I'm not a robot, then previewing, then hitting Publish from the preview window still leaves the comment sitting in "leave your comment". User error.
ReplyDeleteWM "In the case of ambiguous reading - which I think is the best they could assert in their cause in this instance, though since they're fully aware of what I'm about to say next they take care not to admit that - then it is natural to consider the intent of those who wrote the legislation, as Hobbes says."
Of course, the interesting application of that, which our current-century crop of textualists and originalists failed, somehow, to see, was when District of Columbia v. Heller simply broadened the rights to gun ownership as applied to current technology, rather than carefully considering the meaning of "gun" in the 1790's. If the textualists did what you suggest, then any American would be permitted a black-powder weapon capable of firing maybe a ball a minute, and the long gun with a rifled barrel being the maximum edge in personally-owned lethality-at-a-distance. Add in that the same authors wrote and passed the Militia Acts in 1792, and our current broadening of gun laws clearly ignores abundant context as well as passed law as evidence. But I doubt you're arguing that today.
Textualists tend to put their opinions into their mind-reading just as much as those who openly say "Of course we have to interpret things for current reality".
But an interesting point about the attempts to keep "sex" as meaning -exactly- what was thought when everyone was watching the latest new episodes of Leave it to Beaver, is that the law - if interpreted in a binary manner - completely excludes the fraction of humans born intersex. Physical, external characteristics that cloud the issue, and that used to be "solved" in the hospital with some creative cutting and stitching to match what then got written on the birth certificate, and the child would be expected to grow to fit.
Since newborns aren't typically x-rayed to verify if internal and external plumbing are entirely unambiguous, this means using "what you were born as" or "what's on your birth certificate" is an insufficient way to determine how each person should be treated. If you can't say everyone is unequivocally in one of exactly two bins, application of laws can't stick with a strict binary anyway. Broad interpretation is necessary. Biology hasn't changed, and the law if viewed with the false view of an unambiguous birth "sex" classification must be interpreted to at least allow people born to reality to live without discrimination.
Ah, gunz. But the phrase is "bear arms", not "gun" and I see no reason to believe that those who wrote that clause intended it to apply to only arms of their day (that they would be surprised by the proliferation and cheapness and lethality of today's arms, and dismayed by aspects of today's society, doesn't help interpreting it). As to intersex or whatever, yes that's an issue that as far as I can see the judgement doesn't consider; it is discussed somewhat here, by someone who doesn't like the decision.
ReplyDelete"But the phrase is "bear arms", not "gun" and I see no reason to believe that those who wrote that clause intended it to apply to only arms of their day"
ReplyDeleteBut the phrase is simply a portion of a very short amendment to the Constitution, which begins by mentioning the need for well-ordered militias. The second of the Militia Acts of 1792 quite specifically laid out that the weapons were to be either a musket or a rifle, and specified the amount of ammunition each of the (free, white, able-bodied, male, 18-to-45) citizens needed to also provide. And they didn't lay out gun ownership as a right, it was a government mandate that these men were also conscripted into their state militia, under officers chosen by the state, and overall to be called to service at the direction of the President. Long guns for war, and specifically not handguns for the heck of it or the more recent concept of home protection.
Those militia acts passed when there was no federal standing army, and have through law become what's now our National Guard. Yet the Heller decision decided handguns for everyone was fine. Handguns have always tended to be the weapon of officers, not the foot soldier. Switzerland is a modern analog, and they do allow people in service to bring the weapon (long gun) home, but they no longer allow them to bring the ammunition home.
So the Court in Heller interpreted pretty freely, despite having available the evidence of intent that was right there in the laws enacted pretty much immediately after that strangely-phrased amendment was made official. Textualism might be what they said they follow, but it's not reflected in how they made a broad change in the law.
"What is morally correct is always defined by a social context."
ReplyDeleteWhat?
What is morally correct is always defined by a social context.
ReplyDeleteMoral precepts are always made in direct relation to the form of interaction that individuals form in a society. They often evolve on utilitarian lines, and from the basic underlying reality of tit-for-tat, or reciprocity.
While most morality is as a result very similar between different societies, including non-human social animals, the diversity of human societies and the moral codes that emerge from them indicates that while such morality may be granted the status of an ethos, an absolute from which deviance can be measured, they are in fact arbitrary. Evolved social constructs contingent on utility, historical tradition, and the prevailing ideology.
If you have an alternative view on the source and development of what has been considered morally correct within social groups I would be interested to read it.
Is morality really that plastic? What you are describing as moral precepts seem more like tribal custom and tradition.
ReplyDeleteI don't know if the pretzel twisting around the right to bear arms or the treatment of those attracted to others of the same sex is morality, custom, tradition or just old-fashioned American perversity. What it clearly is not is an exercise of common sense. I guess the book of that name has gone out of fashion, if not print.
William M. Connolley said...
ReplyDelete>> As for the rest of your anguish: the law is there for when people cannot peacefully disagree.
Honestly, I can't even tell what your position is, you're so wrapped up in word games.
Do you think employers should be allowed to discriminate against gays and trans, or not?
" if an employer thinks that Scorpios make bad employees, the employer can refuse to hire Scorpios. Such a policy would be unfair and foolish, but under Title VII, it is permitted. "
ReplyDelete1. There's no large scale discrimination against Scorpios so this is a moot point and irrelevant.
2. If there was large scale discrimination against Scorpios you can bet that there will be laws coming out to protect them once it became obvious.
Why do you protest against laws protecting individuals from unfair discrimination? And if your answer is 'Hobbes' then that's not really an answer
@-Tom
ReplyDelete"Is morality really that plastic? "
Historical evidence of the diversity of what societies considered morally correct would indicate this.
-"What it clearly is not is an exercise of common sense. I guess the book of that name has gone out of fashion, if not print."
It lost credibility from the frequent occasions when 'common sense' was used as a post-hoc justification for pre-existing dogma.
Common sense is readily available. Free on Kindle.
ReplyDelete> I can't even tell what your position is, you're so wrapped up in word games.
ReplyDeleteGood: because my position on this issue isn't interesting or important. I'm trying to talk about the law, not about morality.
> Do you think employers should be allowed to discriminate against gays and trans, or not?
I don't have a strong opinion. On the whole, I would be inclined to make no law in this area, on the grounds that it is not necessary.
> no large scale discrimination against Scorpios
You have missed the point. So I'll make it again: the point is that discrimination not forbidden by the law is permitted, even capricious discrimination.
> Why do you protest against laws protecting individuals from unfair discrimination?
Had you read my post you would know. It's in the "morality" section if you can't be bothered to read the whole thing.
Phil, you make the dubious assumption that male homosexuality has a significant genetic component.
ReplyDelete@-Phil
ReplyDelete"If you really wanted to get rid of male homosexuality, you would make it legal, fully accepted, and restrict the sisters of homosexuals from reproducing more than average."
Genetic inheritance is a minor effect compared to the epigentic effect of having older male siblings. Third sons are significantly more likely to be homosexual than the first male offspring. Probably a maternal immune response to certain sex-determining hormones during embryonic development. So modify your advice with a proposal to abort all subsequent male fetuses after the first-born.
Update: I've just realised (thanks DH) that one of the defendants was Clayton County (yes, the clue is in the title, I know), a govt entity. That makes a huge difference: see "Update: it woz the govt wot dun it".
ReplyDelete"So I'll make it again: the point is that discrimination not forbidden by the law is permitted, even capricious discrimination."
ReplyDeleteYes, but as discrimination is revealed, typically the law will change to prevent it.
It doesn't happen on it's own. Free Markets don't prevent discrimination.
@-WC
ReplyDelete"it puts forward the interesting example of interracial prejudice: would this example be analogous to the homosexual one? It's a nice try but no cigar I think."
After educational segregation was made illegal a number of states, and prominent Universities resisted for a number of years. Religious colleges were especially active in resisting enrolling black students, as with Bob Jones University.
The same pattern may develop with this judgement. Franklin Graham of Liberty(sic) University has already made his position clear.
Izen asks what Dr. C really thinks. He isn't big about laying his cards on the table but this time he has.
ReplyDelete>> The conflict is between the liberties of the employer, and the "rights" of the employee.
The quotation marks are significant. Dr. C. doesn't really think employees have any inherent rights.
> Free Markets don't prevent discrimination.
ReplyDeleteI don't think that true. Unless you mean "prevent *all* discrimination *completely*. In which case the answer is "duh". But neither does law.
> Because it doesn't happen enough to warrant a law?
Mostly that; but also the fewer laws the better, in general; and resolving conflict without the formal law is better if possible; and failing to realise that this is a conflict of liberties (when between employee and private employer), not a one-sided matter, is bad.
Which reminds me: I notice no-one has anything to say about the titular discriminator in the case being the govt, not free enterprise at all.
> Religious
Yes, the religious folk seem worried about their privileges. I'm baffled that they're allowed any, given the constitution.
> "rights"
Well done, not in your dotage yet, you've belatedly spotted my quotes. But you've misinterpreted them. They were intended to mean that the word "rights" is a tricky one; that not everyone means the same or even close to the same things by it. I don't think I've yet written my magnum opus on rights yet; perhaps Equal rights for others does not mean fewer rights for you? is the closest I have so far.
Discrimination and fists have a lot in common.
ReplyDeleteYour liberty to swing them without penalty ends at the tip of another persons nose.
The difference with employers and employees is that the unequal distribution of power leaves the employee unable to punch back.
Therefore a socially defined rule, or law, is required to correct the ability of one party to cause damage to another with impunity. The FM is unable to do this.
Religions often arrogate to themselves a 'right' to punch others for theological reasons.
@DBB Identical twin studies, family tree of Greek nobility...
ReplyDeleteFirst Google Scholar hit was this:
https://link.springer.com/article/10.1007/s10508-016-0742-2
This is not a binary subject. Lots of complications, including birth order.
I'm not seriously proposing eugenics. Just pointing out the absurdity.
Oh, and how can asexuality persist when it also seems to have at least some genetic roots?
ReplyDeletehttps://repository.arizona.edu/handle/10150/625011
Interesting, yes?
And religious belief/disbelief, fire fighters, ... and other traits of personality that seem to have some genetic basis?
Some of these traits are valuable to the rest of society, so we hope that they are preserved. Some might be valuable, others are at least colorful, some might not be valuable, but the side effects might be valuable.
@izen, your suggestion has little effect on future generations.
William wrote:
ReplyDeleteI don't have a strong opinion. On the whole, I would be inclined to make no law in this area, on the grounds that it is not necessary.
So those who brought their case before the Supreme Court, and all those who have been fired for being LGBTQ, should just accept it and suffer quietly?
Because it doesn't happen enough to warrant a law?
ReplyDeleteMostly that; but also the fewer laws the better, in general; and resolving conflict without the formal law is better if possible; and failing to realise that this is a conflict of liberties (when between employee and private employer), not a one-sided matter, is bad.
The consequences for the person being discriminated against are often severe. The idea that it doesn't happen often enough to warrant a law strikes me as ridiculous.
Of course it is not a one-sided but someone's right to fair treatment trumps someone else's right to discriminate, especially when that 'person' is a company, corporation or institution. It is rarely a conflict between equal partners.
Sorry but I can't come close to buying this argument.
@-Phil
ReplyDelete"@izen, your suggestion has little effect on future generations."
That is rather the point.
As you admit, you are pointing out the absurdity of eugenics.
Twin studies and studies claiming to find some heritable aspect of human character are notoriously dubious.
The study you link to that finds increased fecundity in the sisters of male homosexuals is based at least in part IIRC on an Italian study.
Of Italian Catholics. With large families.
It is unclear whether the researchers allowed for, or even were aware of the confounding factor of birth order.
Studies in non-human mammal and avian social animals often detect a range of sexual preference and activity.
Trying to find a 'Just So' story to give them some evolutionary advantage is making the rookie mistake of thinking that all traits, and the variance within them is always and by necessity shaped by reproductive advantage.
Sometimes in genetics, shtuff happens.
> Discrimination and fists have a lot in common.
ReplyDelete> So those who...
You, like it would seem so many others, appear to view this one-sidedly: from the viewpoint of the employees only. You have no sympathy for the problems of the employers. I think that's a defect in your worldview. Progressives often claim to be good at understanding other people's view but that seems in practice to be rather restricted.
The idea that it is possible to arrange the law so that no-one suffers is wrong.
> someone's right to fair treatment trumps someone else's right to discriminate
I disagree that it automatically trumps other rights.
@-WC
ReplyDelete"Which reminds me: I notice no-one has anything to say about the titular discriminator in the case being the govt, not free enterprise at all."
Okay, the State of Georgia had no law against discrimination on the basis of sexual preference. It relied on previous judgements that section VII did not apply. The govt of Clayton County is a State entity so not subject to Federal rules on anti-discrimination.
The political, religious and cultural tradition of the State favours discrimination on the basis of sexual preference.
Just as it has long favoured discrimination on the basis of ethnicity.
Both are now illegitimate by federal dictact. It is unlikely however that the State of Geogia will look to secede.
Should the employer be allowed to fire a black or disabled person because they make some of their customers uncomfortable? If not, what's the difference between the funeral home trans case that was just before the Supreme Court?
ReplyDelete@-WC
ReplyDelete"The idea that it is possible to arrange the law so that no-one suffers is wrong."
Agreed.
The aim is to arrange the law to minimise suffering.
@-"You have no sympathy for the problems of the employers."
If the two employees are effectively equal in competence, what problem does the sexual preference of either pose ?
Unless it 'offends' against their deeply held belief in a religious injunction ?
However most seem to have overcome such a belief in the much stronger religious injunction against divorce.
>>>> "rights"
ReplyDeleteI think you mischaracterize my point. No quotes on the -liberties- of employers. Quotes on the -rights- of employees. I don't see how you can deny that this implies a different status of the respective rights of employers and employees. I think that your history makes it clear that you prize rights or liberties of capital over those of labor - you have argued elsewhere that money deserves its own vote.
I take the opposite point of view. I think that any rights adhering to capital should be subordinate to and subject to its benefits for all individuals in a society, not merely those of the rich.
PS - Not in my >>dotage<< yet? Let's just admit that I'm well on my way, but I can still sometimes recognize bullshit when I see it.
ReplyDeleteRights and liberties are different words. If I had chosen to speak of the "rights" of employers I'd have used quotes there too. Liberty is a simpler word.
ReplyDelete> Should the employer be allowed to fire a black or disabled person...
ReplyDeleteWhat do you mean "should"? Morally, or legally? Legally the racial one is clear, since title VII already covers that. Morally, I think it makes you a "bad person" if you do that, but the state doesn't intervene in every instance of poor moral character, as you'd hope.
> If the two employees are effectively equal in competence, what problem
You reinforce my point. You refuse to see that their could even be a problem, so blinkered are you. To you, there is no problem. To other people, some. You want to substitute your judgement for theirs.
@-WC
ReplyDelete"To you, there is no problem. To other people, some. You want to substitute your judgement for theirs."
When I was an employer my criteria were for a person who would turn up on time and perform the required task in an adequate manner for most of the time. (we all have our 'off' days)
If their job involved interactions with the public (which it often did) I also expected them to behave in a responsible and respectful manner.
If they matched those expectations but a member of the public did not show them a reciprocal respect for some reason, most commonly ethnicity, I refused service to the person.
@-"You refuse to see that their could even be a problem, so blinkered are you."
No, I have direct experience that long ago removed my blinkers. But if the problem was the discrimination on the part of the public when the employee was effective, responsible, and reliable, then I imposed my own judgement and discriminated against that member of the public.
"> Free Markets don't prevent discrimination.
ReplyDeleteI don't think that true. Unless you mean "prevent *all* discrimination *completely*. In which case the answer is "duh". But neither does law."
So how will you test your hypothesis? How much discrimination prevention does the Free Market give Trans people? How much more Free does the market need to be so that there doesn't need to be laws protecting Trans people?
What it looks like is you're starting with a philosophical/ideological position without actually testing it.
I think you're also underplaying the effects of discrimination.
>> Rights and liberties are different words.
ReplyDeleteA distinction without a lot of difference. Liberty in this case implies the right to take certain actions without sanction. Rights include the liberty to live your life away from the job without punishment.
>> someone's right to fair treatment trumps someone else's right to discriminate
ReplyDelete>I disagree that it automatically trumps other rights.
What? Does this sentence mean: someone's right to fair treatment does not trump someone else's right to discriminate?
Not sure what automatically is doing there. Are you saying sometimes you do have a right to discriminate?
@ izen "As you admit, you are pointing out the absurdity of eugenics."
ReplyDeleteI'm pointing out some other absurdities as well.
"Of Italian Catholics. With large families."
Oddly, the same has been found in other studies. Like in Greece, before Christianity.
"the confounding factor of birth order."
Birth order of brothers doesn't have any impact on the reproduction of sisters.
"Trying to find a 'Just So' story to give them some evolutionary advantage is making the rookie mistake of thinking that all traits, and the variance within them is always and by necessity shaped by reproductive advantage.
Sometimes in genetics, shtuff happens."
So rookies think that natural selection works.
@-Phil
ReplyDelete"So rookies think that natural selection works."
Rookies tend to think, and look for, narrative involving natural selection for EVERY phenotype variation, even when they are not even established as genotypes.
@izen: In this specific case, there is lots of evidence.
ReplyDelete@-Phil
ReplyDeleteThe best evidence is that inheritable genotype accounts for less than 1% of the sexual behaviour of individuals.
(Brendan Zietsch, Fah Sathirapongsasuti)
@izen
ReplyDeleteSearch for Brendan Zietsch, Fah Sathirapongsasuti
first hit is: DOI: 10.1126/science.aat7693
"all tested genetic variants accounted for 8 to 25% of variation in male and female same-sex sexual behavior"