The Trump Admin Asked The Supreme Court To Legalize Firing Workers For Being Gay

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3 thoughts on “The Trump Admin Asked The Supreme Court To Legalize Firing Workers For Being Gay

  1. I did say it was a quibble. When I read that headline: “The Trump Admin Asked The Supreme Court To Legalize Firing Workers For Being Gay,” I think it implies the Trump Administration is seeking a change in the law, as if they want the Court to strike down a law that makes sexual orientation discrimination illegal. But in reality, they are asking the Court not to change the law. The outcome, of course, if successful, would be the same. Sexual orientation discrimination would not violate federal law, though it is prohibited by many (if not most) states.

  2. I agree with your interpretation, and I agree that the law was never meant to cover sexual ORIENTATION, but the impact of what they want is correctly suggested by the headline.

  3. I have to quibble with the headline a bit. The Justice Department isn’t asking the Supreme Court to make it legal to fire someone because of sexual orientation. They are arguing that Title VII of the 1964 Civil Rights Act, which bans discrimination on the basis of sex, should not be read to ban discrimination on the basis of sexual orientation. I think the justice department is correct, but not because I support sexual orientation discrimination (I don’t). The plain meaning of “on the basis of sex,” particularly as was understood in 1964, is on the basis of being biologically male or female.

    I think most people don’t get very deep into the weeds when it comes to Supreme Court decisions. They aren’t so much looking to the Supreme Court to reach the “correct” decision as they are wanting the Court to reach the outcome they support. To them that is the “correct” decision regardless of what the law actually says. There are two ways a judge can attempt to decide cases like these. One way is to read the text of the law, regulation, or Constitutional provision, as well as precedents to try and come up with a plausible interpretation that supports the policy outcome they desire. The other is to ignore their policy preferences (as best they can) and following rules of statutory interpretation try to find the meaning in the text as informed by precedent.

    The problem with supporting decisions that depart from the plain meaning of the text because you are happy with the outcome is that you are giving license to judges and Justices to substitute their own preferences for the law. Unfortunately it seems that the political left and right in this country each believe it is the other side doing the substitution.

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