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.
Kavanaugh's dissent, as far as I can tell, introduces nothing new.
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.
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?
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.
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.
* 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.
* Jim Crow: More Racist than the Railroads by Pierre Lemieux