Title VII: Originalism vs. Textualism
| David French and Sarah Isgur | Jun 15, 2020 | 30 | 71 |
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| 0:00 | -1:19:15 |
The Supreme Court declined to take up new cases dealing with gun rights and qualified immunity. The court ruled that federal anti-discrimination laws protect gay and transgender employees. Lines are drawn on originalism vs. textualism. David and Sarah have thoughts.
Show Notes:
-Supreme Court Bostock opinion
-Sarah's guide to the top 10 cases
See omnystudio.com/listener for privacy information.
| 30 | 71 |
Sarah if you’re curious about how one person can hold off two people trying to control them, just wait till the brisket doesn’t want to be snapped into his car seat.
Gorsuch's opinion is puzzling to me. I'm fine with the outcome of the decision but I'm not sure I understand the logic that led to this decision. So maybe the forum here can help me out :)
It seems to me that the majority opinion didn't really change the original meaning of the text...it's really the same interpretation as in 1964. That is, the opinion says that sex (male/female) is the protection that was violated here...NOT being gay/transgender. Being gay/transgender is simply the 'action' that triggered the protection under Title VII since this 'action' would be treated differently based on sex. For example. a man is allowed to marry a woman but a woman is fired for that same action of marrying a woman. Therefore, the opinion goes, it's discrimination based on sex because the woman is treated differently than the man.
But my question is: wouldn't the fact that the 'action' (being gay/transgender) is applied to BOTH sexes make the firing of those employees not based on sex (male/female)? But rather the firing would be based on the action (being gay/transgender), which is still not a protected class?
So for example, if an employer says in their job description "employees must adhere to traditional definition of marriage", to me that doesn't discriminate on sex, that discriminates based on sexual orientation regardless of sex. So then, that logic leads me to the conclusion that you can't say that someone is discriminated based on sex in this situation, and therefore it isn't protected under Title VII.
Would love to hear other's thoughts on this.