Some Supreme Court cases seem to turn on mind-numbing legal technicalities; some turn on sterner stuff. Earlier this week, justices heard argument on whether employment discrimination on the basis of sexual orientation should be barred under federal law that prohibits discrimination on the basis of sex – and were reminded of why this case should be decided on basic principles.

Here is how Pamela Karlan, attorney for a man who was fired because his employer discovered he was gay, began:

“When an employer fires a male employee for dating men but does not fire female employees who date men, he violates Title VII.” (That’s the part of federal Civil Rights Law that covers employment discrimination.) “The employer has … discriminated against the man because he treats that man worse than women who want to do the same thing.

“And that discrimination is because of sex … because the adverse employment action is based on the male employee’s failure to conform to a particular expectation about how men should behave; namely, that men should be attracted only to women and not to men.

“There is no analytic difference between this kind of discrimination and forms of discrimination that have been already recognized by every court to have addressed them. For example, discrimination against men who are effeminate rather than macho. Like the discrimination here, that discrimination is because of non-conformity with an expectation about how men should behave.”

As Karlan put it differently a few minutes later: “And when you tell two employees who come in, both of whom tell you they married their partner Bill last weekend, when you fire the male employee who married Bill and you give the female employee who married Bill a couple of days off so she can celebrate the joyous event, that’s discrimination because of sex.”

Just so.


(1) comment


NO! In R.G. & G.R. HARRIS FUNERAL HOMES, INC., PETITIONER v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, ET AL the Supreme Court must decide the case based on what the law is, not what it could be, should be, or might be; the Court’s job is to interpret the actual law on the basis of what the Congress passed and the President signed in 1964. The Act failed to include a definition of the meaning of ‘sex.” As a result, the Court makes a determination that is informed and required through a long recognized practice using the Canons of Statuary Construction including the actual language, what it meant in 1964, the Legislative History and contemporary expressions of legislators. Here is the relevant language of Title VII:

(a) Employer practices: It shall be an unlawful employment practice for an employer—

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.

If the Court determines the Legislature intended to prohibit discrimination based on something other than being male or female and intended to cover the many flavors of gender confusion encountered today, it should hold for Obama’s EEOC.

If the Court finds that the Legislature intended to limit the meaning to discrimination based on being a male or female, as supported by the science, it should hold for the Petitioner and let the transgender lobbyists convince the Legislators to amend Title VII to include the LGBTTQQIAAP definition of sex. The Act has been amended at least four times and they have convinced legislators in 22 States to protect transgender workers.

That process is what the Constitution demands – to do otherwise would give the Legislative Powers to 9 unelected judges over whom we the people have no control (unless we follow Pelosi law and impeach them in secret, without a vote of the House, depriving them of all due process rights – hmmm – to whom would they appeal?) It would permit these unelected Judges to control the activities of 300+ million citizens on behalf of less than 5% of them

To do otherwise, as the editorial suggests, would place us under the Rule of Feelings rather than the Rule of Law. Feelings are notoriously fleeting, transitory and subjective – they are a millionaire Barbra Streisand hit recording, not a basis for legal decision-making.

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