Majority opinion by Gorsuch, a Trump appointee!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. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.
I am truly surprised to hear this from Gorsuch. Maybe I don't understand him well enough? Anyone have thoughts on where to start to dive into him a bit? Especially considering, you know, I'm basically stuck with this guy for the rest of my life.
I would suggest the Neil Gorsuch Project, which was set up when he was nominated.
I think people misunderstand his ideology - it's not conservative the way Alito and Thomas are conservative. He's much more of an old-school conservative: generally hands-off when it comes to government action, which can be good (civil liberties) and not good (regulation). But IMO anyone surprised by this hasn't been paying a ton of attention. Gorsuch wrote a dissenting opinion when he was a circuit judge saying that he didn't think police should be able to apply the "plain sight" doctrine after they knocked on a guy's door despite a "no trespassing" sign on the property line.
I was just writing something very similar. This isn't the first time he's joined the liberals against perceived conservative orthodoxy; it's just the highest profile time. I think for most humans, of which Justices are obviously a subset, ideology stops at results. That is, whatever your ideological bent, you'll figure out a way to justify the desired outcome regardless of what you've said or indicated in the past. Gorsuch, on the other hand, appears to be extremely comfortable with his point of view, even in the times when it takes him to unexpected places. Although I rarely agree with him, I respect that a lot more than a flip flopper like the guy he replaced. You're the lawyer, so I'm sure you have a deeper perspective than me, but what I think is important to a functional rules based system is expectation of what the law is or ought to be given the body of rulings out there and the personalities likely to rule on future cases. When we have judges and justices who are willing to support and ends without regard to means it inhibits our ability to behave in a way that we can say with some certainty conforms to the law. Anyway, props to Gorsuch for going with his head on this one.
Indeed, and I think this is something that judges do more often than not. But it also goes to show how ridiculous the whole "original intent" argument is, because that is still a matter of interpretation.
I'm a casual Court watcher, so everything I read I read with a layman's eye. It is always striking to me how many cases are decided 9-0. Those are clearly not the cases that typically garner the headlines, but it's nice to know that our judiciary can come to broadly similar conclusions given a set of laws and facts. That would seem to be the way you would most often want it in a rules based system where the law is applied dispassionately. Of course, culture war type stuff is rarely if ever dispassionate for anyone, even lawyers who believe themselves to be so.
OK, now reinstate protections for LGBT folks in the realm of healthcare.
One thing that stands out in this decision is that it makes a plain textual argument that discriminating against someone because they are gay or transgender is discrimination based on biological sex. Given this precedent, it is hard to imagine anyone discriminating against LGBT folks being able to use HHS's rule as a defense.
It would have been nice if SCOTUS explicitly referenced the recent executive order in their ruling. Perhaps the timing of the order (three days ago) was deliberate.
The timing may have been deliberate, but either way as that EO wasn't the exact topic of this ruling, I'm fine with them having left it off. There are several issues this ruling leaves undecided, most critically the issue of sex-segregated locker rooms and bathrooms and the issue of how much protection the RFRA gives employers. But this ruling, I think, will mean that any exceptions are going to require a very strong argument.
I'd be content with a required gender-neutral third option and no god damn bathroom bills. Locker rooms especially need some kind of required more-private area; society has a long way to go before I'd be comfortable using the group shower in either of the locker rooms at my university's gym.