Tuesday, October 8, 2019
Posted in
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Politics
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A case is coming before the Supreme Court this term to decide whether Title VII of the Civil Rights Act of 1964, the law that forbids discrimination based on race, religion and gender, also covers sexual orientation. This article is a discussion of what I think the Supreme Court will do.
Despite the fact that the Supreme Court is presently a very conservative Court, I think there's a chance that they will rule that Title VII protects sexual orientation. Certainly, when the law was passed, Congress used the term "sex" to mean "gender". The five conservative justices on the Court are "originalists"; they generally feel that laws should be interpreted according to the original intentions of Congress when the law was passed. However, even conservative justices will sometimes conclude that a law must be interpreted according to its language as used in the present moment.
We know that Congress meant "gender" when they made "sex" a protected status back in 1964. However, the implications of the word "sex" have evolved. Consider this: If an employee prefers to have sex with men, an employer would consider that objectionable only if the employee was a man -- thus, discrimination against that employee relates directly back to his gender. I see that as being such a strong argument that one of the conservative justices may be swayed by it. In other words, homosexuality exists because gender exists, so homosexuality must be protected just as gender is. If human beings didn't have genders, then homosexuality couldn't exist.
I think there's a chance that the Court will decide this case on politics and not on the precise meaning of the word "sex". With gay marriage having been legalized in 2015, the justices will see that giving gays the right to marry did not resulted in an upheaval in our society. Furthermore, it makes no sense that the government should protect gay people when it comes to marriage, but not protect them when it comes to employment. There is an expression in the gay community -- "married on Sunday, fired on Monday" -- that illustrates the inherent wrongness of the situation. What good is the right to marry if getting married causes you to lose your job? These are powerful arguments, and I think that even conservative justices will be swayed by them.
There is one other possibility. Just as Anthony Kennedy did, there may be one conservative justice who feels some sympathy for gay people, perhaps one whose family has a gay member. If not that, then it is possible that Chief Justice Roberts may feel that another 5-4 decision, with the conservatives ruling as a block, looks too partisan; and since ruling in favor of gays won't hurt anyone in society, he may decide to do that.
But conservatives can be very prejudiced and reactionary, so my hope for a good outcome may be just a pipe dream.
Despite the fact that the Supreme Court is presently a very conservative Court, I think there's a chance that they will rule that Title VII protects sexual orientation. Certainly, when the law was passed, Congress used the term "sex" to mean "gender". The five conservative justices on the Court are "originalists"; they generally feel that laws should be interpreted according to the original intentions of Congress when the law was passed. However, even conservative justices will sometimes conclude that a law must be interpreted according to its language as used in the present moment.
We know that Congress meant "gender" when they made "sex" a protected status back in 1964. However, the implications of the word "sex" have evolved. Consider this: If an employee prefers to have sex with men, an employer would consider that objectionable only if the employee was a man -- thus, discrimination against that employee relates directly back to his gender. I see that as being such a strong argument that one of the conservative justices may be swayed by it. In other words, homosexuality exists because gender exists, so homosexuality must be protected just as gender is. If human beings didn't have genders, then homosexuality couldn't exist.
I think there's a chance that the Court will decide this case on politics and not on the precise meaning of the word "sex". With gay marriage having been legalized in 2015, the justices will see that giving gays the right to marry did not resulted in an upheaval in our society. Furthermore, it makes no sense that the government should protect gay people when it comes to marriage, but not protect them when it comes to employment. There is an expression in the gay community -- "married on Sunday, fired on Monday" -- that illustrates the inherent wrongness of the situation. What good is the right to marry if getting married causes you to lose your job? These are powerful arguments, and I think that even conservative justices will be swayed by them.
There is one other possibility. Just as Anthony Kennedy did, there may be one conservative justice who feels some sympathy for gay people, perhaps one whose family has a gay member. If not that, then it is possible that Chief Justice Roberts may feel that another 5-4 decision, with the conservatives ruling as a block, looks too partisan; and since ruling in favor of gays won't hurt anyone in society, he may decide to do that.
But conservatives can be very prejudiced and reactionary, so my hope for a good outcome may be just a pipe dream.
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