Author Topic: SCOTUS protects LGBTQ workers  (Read 1517 times)

DonaldD

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SCOTUS protects LGBTQ workers
« on: June 15, 2020, 11:01:01 AM »
Supreme Court rules that LGBTQ workers are protected from job discrimination

Interesting - the conservative court has ruled 6-3 in support of LGBTQ workers rights.

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The Supreme Court handed a big win to the LGBT community Monday, ruling in a 6-3 decision that an employer who fires a worker for being gay or transgender violates Title VII of the Civil Rights Act -- which already protected people from employer sex discrimination, as well as discrimination based on race, color, religion or national origin.

Aris Katsaris

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Re: SCOTUS protects LGBTQ workers
« Reply #1 on: June 15, 2020, 01:36:17 PM »
The reasoning for the decision makes absolute sense.

Imagine if the opposite ruling had been issued, and what it would have then meant for the existing protections about race or religion:

The opposite decision where LGBT individuals aren't protected would have also meant:
- You wouldn't be allowed to fire someone for being black themselves, but you'd be allowed to fire them for being in an interracial relationship. Or, for that matter, for NOT being in an interracial relationship.
- You wouldn't be allowed to fire a person for being Christian, or Jewish, or Muslim, or atheist -- but you'd be allowed to fire them for dating or marrying a Christian person, or a Jewish person, or a Muslim person -- or for NOT dating/marrying such.

So basically a hypothetical opposite judicial decision would have completely invalidated the point of the law.

Seriati

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Re: SCOTUS protects LGBTQ workers
« Reply #2 on: June 15, 2020, 06:31:28 PM »
I don't agree that the reasoning makes sense.  The Supreme Court literally said that "sex" as used in the 1964 statute could have never been interpreted in any other way but to prohibit discrimination based on homosexual status or gender identity.  That even in 1964 that would have been plainly understood from the terms.  That effectively, the past 60 years just reflect every Court of Appeals (through 2017), Congress (currently has pending amendments to add those provisions), and the EEOC (for 45 years), apparently being just too stupid to read the sentence correctly.

It's the most bizarre resort to textualism I've ever seen, effectively goes all the way through and out the other side as activism.

I don't think the SC's read today is legitimate.  They passed a new law in the guise of interpreting a statute.

My best guess is that the consequences of this are going to have more impact than any judicial interpretation since Roe v. Wade, and very likely it will ultimately be seen as a poorly decided results orientated decision.  Like for example, this would seem to settle all debates about whether transgender athletes can compete in professional women's sports (and maybe college given that getting paid seems to be on the horizon) and eliminate any and all chemical tests that relate to hormone levels or requirements.  It would seem to eliminate any right to separate bathrooms or locker rooms based on sex in a number of contexts as well.  It may eliminate any right to create women's groups in the office, or to have programs for gender based mentoring that support women - it's hard to see how they would survive. 

That said, it's hard to imagine anything being done about it.  Culturally the issue has long been settled.  Firing someone because of their homosexual status is repugnant.  Even gender identity, though less settled, was heading the same way.  Can't imagine anyone amending Title VII to remove the newly discovered rights (that were so obvious that no other possible interpretation could have been made in1964 and all times forward).

Aris Katsaris

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Re: SCOTUS protects LGBTQ workers
« Reply #3 on: June 15, 2020, 06:46:58 PM »
I don't agree that the reasoning makes sense.  The Supreme Court literally said that "sex" as used in the 1964 statute could have never been interpreted in any other way but to prohibit discrimination based on homosexual status or gender identity.  That even in 1964 that would have been plainly understood from the terms.

Is that what they 'literally' said, did the judges actually base their argument on the intent of the original legislators -- or are you assuming this to be the case? Perhaps they based it on the simple meaning of the words in the law instead? (I've not read the reasoning itself myself, only read a summary of it, so perhaps I'm missing something)

Well, if the current legislators actually disagree, they can clarify the law and use more precise language this time.

TheDeamon

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Re: SCOTUS protects LGBTQ workers
« Reply #4 on: June 15, 2020, 06:49:17 PM »
I don't agree that the reasoning makes sense.  The Supreme Court literally said that "sex" as used in the 1964 statute could have never been interpreted in any other way but to prohibit discrimination based on homosexual status or gender identity.  That even in 1964 that would have been plainly understood from the terms.  That effectively, the past 60 years just reflect every Court of Appeals (through 2017), Congress (currently has pending amendments to add those provisions), and the EEOC (for 45 years), apparently being just too stupid to read the sentence correctly.

It's the most bizarre resort to textualism I've ever seen, effectively goes all the way through and out the other side as activism.

I'm more pragmatic on this one. This is more likely to be one of those cases where you have to admit the court isn't entirely apolitical, but then, I don't think anyone has been claiming that recently anyway. A ruling against that interpretation would have gone down in the history books alongside the Dred Scott decision. It may have been "a legally sound" ruling, but everything else about it was a problem.

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I don't think the SC's read today is legitimate.  They passed a new law in the guise of interpreting a statute.

At the same time, it is a change to statutory law that was coming down the pike all the same, the writing was on the wall for this one. Anyone who claims otherwise has their head in the sand. In terms of judicial activism this one barely registers in a lot of ways.

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My best guess is that the consequences of this are going to have more impact than any judicial interpretation since Roe v. Wade, and very likely it will ultimately be seen as a poorly decided results orientated decision.  Like for example, this would seem to settle all debates about whether transgender athletes can compete in professional women's sports (and maybe college given that getting paid seems to be on the horizon) and eliminate any and all chemical tests that relate to hormone levels or requirements.  It would seem to eliminate any right to separate bathrooms or locker rooms based on sex in a number of contexts as well.  It may eliminate any right to create women's groups in the office, or to have programs for gender based mentoring that support women - it's hard to see how they would survive.

This is a more interesting side of things in terms of "unintended consequences" but luckily the ruling was made on statutory grounds rather than Constitutional ones, so Congress can act to change things if the political will can be mustered to do so.

I doubt it will have any meaningful impact on women's groups much like title VII doesn't seem to be stopping race based mentorship programs and groups from being formed for other minority groups.

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That said, it's hard to imagine anything being done about it.  Culturally the issue has long been settled.  Firing someone because of their homosexual status is repugnant.  Even gender identity, though less settled, was heading the same way.  Can't imagine anyone amending Title VII to remove the newly discovered rights (that were so obvious that no other possible interpretation could have been made in 1964 and all times forward).

Not going to disagree too strongly on this, but as you seem to be acknowledging here, the writing was on the wall on this one. And as I also mentioned, it was determined as an interpretation of statutory law, which is a LOT easier to change than constitutional interpretations.

I think in this case, the 2 conservative Justices were looking for a way to avoid handing down a  Dred Scot ruling during a presidential election year where Trump is the conservative candidate; and the Democrats have been actively revisiting the idea of packing the Supreme Court.

If you want to really motivate Democrats to vote, and also encourage more moderate voters to turn up to vote for Democrats-- rule in the opposite direction of what they just did. Any lower court that decides to take the new interpretation "too far" can be reigned in by SCotUS whenever that should happen. But in the meantime, they've neutralized a huge political threat to the court.

Fenring

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Re: SCOTUS protects LGBTQ workers
« Reply #5 on: June 15, 2020, 07:08:20 PM »
I can see this more likely escalating conflicts with right-wing or religious organizations in how they want to build their internal staffing. In the example given in the article, a gay man was fired for joining a gay softball team, which would now be prohibited, and which makes sense to me all things being equal. But now let's say the guy is working for some church that advocates against whatever his lifestyle entails. Would they be entitled under religious freedom to argue he violates the job requirements and literally cannot perform the job adequately, or would that now be in violation because he's protected no matter what?

Seriati

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Re: SCOTUS protects LGBTQ workers
« Reply #6 on: June 15, 2020, 07:15:46 PM »
I think TheDeamon, this actually is another strong signal that the SC can be intimidated.  The decision is nonsensical.  It literally does things, like assuming that "sex" is defined solely to have a gender based meaning, and then determines that it's inescapable that discrimination against homosexuality and transgenderism is prohibited by the word "sex".  The logic is effectively, that if you wouldn't discriminate against a man that likes women, it is solely the gender of the woman that women that you are discriminating on.  The dissent points out that if you include all four cases, you end up with firing decisions based on sexual orientation without regard to sex. 

Moreover, interpretation of a statute requires that it be interpreted as it was understood by reasonable people at the time it was passed.  At the time it was passed, 49 states and DC outlawed homosexuality and the concept of gender dsyphoria was unheard of, the Federal government investigated people for acts of homosexuality and fired them for them (for more than a decade after the law), and homosexuality was still in the DSM as a mental health condition.  Nonetheless, the Court says that at that time, the understanding of the word "sex" in this statute should have been understood by reasonable people to include discrimination against homosexual and transgendered individuals.

That's beyond straining the credibility of the language.

The reason this is important, is that judicial made law is arbitrary and necessarily a blunt hammer.  They can't expound without openly exceeding their Constitutional authority, therefore they have to be vague.  Congress on the other hand, if it fixes a law, can create hundreds of related provisions, or thousands, or zero as it deems prudent, and we wouldn't be left with not having any clue what this means.

Does this reopen every single case that was apparently erroneously dismissed?  Does this mean that biological women now lose out on any ability to resist transgender women in sport?  Does this mean that your health insurance costs have increased because your policy will now be required to protect you both for your own pregnancy and your own testicular cancer?

And I think, gender based mentoring is absolutely low hanging fruit.  There's no consistent way to read the SC's opinion and retain it.  It's trivially easy that the particular job benefit is available to one identical candidate versus the other with the only factor differentiating the two being gender.  The only thing that will save it is if no one get's litigious.  Honestly, this interpretation calls into question the existing jurisprudence on all of this.

Seriati

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Re: SCOTUS protects LGBTQ workers
« Reply #7 on: June 15, 2020, 07:17:37 PM »
I can see this more likely escalating conflicts with right-wing or religious organizations in how they want to build their internal staffing. In the example given in the article, a gay man was fired for joining a gay softball team, which would now be prohibited, and which makes sense to me all things being equal. But now let's say the guy is working for some church that advocates against whatever his lifestyle entails. Would they be entitled under religious freedom to argue he violates the job requirements and literally cannot perform the job adequately, or would that now be in violation because he's protected no matter what?

The court went into religious freedoms, and expressly cited that the defense of religion act is "supra legislation" that overrules other statutes including Title VII in certain circumstances.  I don't find that comforting, what that is, is an invitation to sue the living crap out of religious institutions to define the limit and scope of that right.

Aris Katsaris

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Re: SCOTUS protects LGBTQ workers
« Reply #8 on: June 15, 2020, 07:21:22 PM »
I think TheDeamon, this actually is another strong signal that the SC can be intimidated.  The decision is nonsensical.  It literally does things, like assuming that "sex" is defined solely to have a gender based meaning, and then determines that it's inescapable that discrimination against homosexuality and transgenderism is prohibited by the word "sex".  The logic is effectively, that if you wouldn't discriminate against a man that likes women, it is solely the gender of the woman that women that you are discriminating on.  The dissent points out that if you include all four cases, you end up with firing decisions based on sexual orientation without regard to sex.

May I ask how interracial marriages would work based on your interpretation? According to your own interpretation of the law, are you allowed to fire someone for being in an interracial relationship, or for not being in one?

If one's allowed to fire someone because of the gender of the person they're attracted to, why wouldn't you be able to fire them for the race of the person they're attracted to?

Seriati

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Re: SCOTUS protects LGBTQ workers
« Reply #9 on: June 15, 2020, 07:22:04 PM »
Is that what they 'literally' said, did the judges actually base their argument on the intent of the original legislators -- or are you assuming this to be the case?

Read the opinion.  I did.  Understand how law, and statutory interpretation works.  The Court stated that they didn't need to delve into the intent (which is a bizarre interpretation) because the word "sex" is so clear that NO ONE (Notwithstanding 60 years of history) could ever have plausibly read the provision in any way that doesn't prohibit discrimination based on homosexuality and gender identity.

It's a truly stunning bit of revisionist 'splaining.

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Perhaps they based it on the simple meaning of the words in the law instead? (I've not read the reasoning itself myself, only read a summary of it, so perhaps I'm missing something)

Given that they "accepted" sex to mean biological sex, and then interpreted as the only plausible reading of the statute, I'm gonna guess you'll agree with what they wrote.  You should read it.

That said, you should read the dissents as well.

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Well, if the current legislators actually disagree, they can clarify the law and use more precise language this time.

I addressed that.  Not going to happen.  Doesn't make the SC creating law in violation of the Constitution okay.

TheDrake

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Re: SCOTUS protects LGBTQ workers
« Reply #10 on: June 15, 2020, 07:26:30 PM »
I don't know how you could even determine that someone is homosexual without using their gender as a part of the equation. I am most definitely not knowledgeable enough to determine if that is part of the ruling, and I choose not to read enough to weigh in on the basis of their decision.

Seriati

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Re: SCOTUS protects LGBTQ workers
« Reply #11 on: June 15, 2020, 07:31:02 PM »
I think TheDeamon, this actually is another strong signal that the SC can be intimidated.  The decision is nonsensical.  It literally does things, like assuming that "sex" is defined solely to have a gender based meaning, and then determines that it's inescapable that discrimination against homosexuality and transgenderism is prohibited by the word "sex".  The logic is effectively, that if you wouldn't discriminate against a man that likes women, it is solely the gender of the woman that women that you are discriminating on.  The dissent points out that if you include all four cases, you end up with firing decisions based on sexual orientation without regard to sex.

May I ask how interracial marriages would work based on your interpretation? According to your own interpretation of the law, are you allowed to fire someone for being in an interracial relationship, or for not being in one?

It's certainly a fair criticism, and it's one of the places that the dissent's explanation was particularly weak.  I think that's largely because the SC's decision on cross race marriages was not based on logic either, but rather based on the inescapable fact that opposition to cross race marriages was fundamentally rooted in racism and therefore inherently a discrimination based on race.  Logically, one could have argued very similarly that an employer that hired both black and white employees but not any employee of either race who was involved in a cross race marriage was not discriminating based on race.

Again, though I think the fact that the only opposition one could have to cross race marriages is racism is what decided that issue.  While there's an easy parallel to marriage in the race context and the homosexuality context (not so much the transgendered context), it falls apart when you try to connect that to sexism (which would be the relevant characteristic).  The closest you can get is to some idea of violating "gender expectations" (but that's already protected conduct) and it's hard to see how it would even apply in all cases of homosexual relationships and not in heterosexual ones.  Effectively, there's no tie to a secret sexism involved, which puts it in a different category than the unstated tie to racism.

But I agree, that's one of the weakest points for the argument. 

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If one's allowed to fire someone because of the gender of the person they're attracted to, why wouldn't you be able to fire them for the race of the person they're attracted to?

Well again, as noted above, because the later is inherently racist and the former isn't sexist.

To be clear though, I don't think you should be able to fire someone in either case.  Congress should have fixed this long since.  My objection is not to "fixing" this its to unelected Justices pronouncing their rules with the force of law in violation of the Constitution. 

Seriati

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Re: SCOTUS protects LGBTQ workers
« Reply #12 on: June 15, 2020, 07:33:02 PM »
I don't know how you could even determine that someone is homosexual without using their gender as a part of the equation. I am most definitely not knowledgeable enough to determine if that is part of the ruling, and I choose not to read enough to weigh in on the basis of their decision.

The court posited you could ask it on the employment form, and have a third party strip gender identifiers from the form.  A strained hypothetical I grant.  They then explained, that the person reading the question, if they didn't know what homosexuality was, couldn't define the term without understanding gender therefore it was sex discrimination.   And I'm not kidding about how that played out.

TheDeamon

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Re: SCOTUS protects LGBTQ workers
« Reply #13 on: June 15, 2020, 08:09:30 PM »
I can see this more likely escalating conflicts with right-wing or religious organizations in how they want to build their internal staffing. In the example given in the article, a gay man was fired for joining a gay softball team, which would now be prohibited, and which makes sense to me all things being equal. But now let's say the guy is working for some church that advocates against whatever his lifestyle entails. Would they be entitled under religious freedom to argue he violates the job requirements and literally cannot perform the job adequately, or would that now be in violation because he's protected no matter what?

That's going to be a "fun" one to watch get tested in the courts. Title VII is statute. The 1st Amendment is part of the Constitution. When statute is in conflict with the Constitution, the Constitution wins. So where Title VII meets up with religious organizations, the protections aren't likely to be as absolute.

Of course, this is going to mean future Title VII cases on the matter will be full of those "unintended consequences" as I'd put good odds that the courts haven't upheld a church having the right to not hire a black person because of some dogma about the Mark of Cain.

But now they're going to be looking at churches refusing to hire gay people because of religious dogma about Sodom and Gomorrah among some other things. So it's going to put some new strain on Title VII and how the courts try to split that proverbial hair.

TheDeamon

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Re: SCOTUS protects LGBTQ workers
« Reply #14 on: June 15, 2020, 08:23:11 PM »
I don't know how you could even determine that someone is homosexual without using their gender as a part of the equation. I am most definitely not knowledgeable enough to determine if that is part of the ruling, and I choose not to read enough to weigh in on the basis of their decision.

The court posited you could ask it on the employment form, and have a third party strip gender identifiers from the form.  A strained hypothetical I grant.  They then explained, that the person reading the question, if they didn't know what homosexuality was, couldn't define the term without understanding gender therefore it was sex discrimination.   And I'm not kidding about how that played out.

Haven't read the ruling itself, might do so at some later point. But I think some of this may be their partly using more recent legislation with regards to discerning the meaning of the words in the statute as there is a stronger "living document" claim to be made with statutory law than the Constitution itself. Every time part the United States Code is revised by Congress, any potentially relevant statute relevant to those more recent changes, even if not explicitly changed, have an implicit change woven into them.

But they probably didn't go through the effort of doing the research to find examples of Congress enacting law that makes use of a broader interpretation of the term in question.

Seriati

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Re: SCOTUS protects LGBTQ workers
« Reply #15 on: June 15, 2020, 08:47:10 PM »
That's going to be a "fun" one to watch get tested in the courts. Title VII is statute. The 1st Amendment is part of the Constitution. When statute is in conflict with the Constitution, the Constitution wins. So where Title VII meets up with religious organizations, the protections aren't likely to be as absolute.

As Alito helpfully pointed out, some 45 different statutes refer to discrimination based on sex.  So this is going to go far beyond Title VII.  Kavanaugh's dissent pointed out that even though those 45 laws refer to sex there is a large number of other laws that independently refer to discrimination based on sexual orientation (which per the SC's reasoning is unnecessary).  K also pointed out that of the 30 federal judges that directly considered this question all 30 ruled the other way, and it wasn't until 2017 that any contrary circuit court opinion emerged (previously 10 circuits rules the other way).  He also noted that 19 Supreme Court Justices (including many on the SC today) have decided cases based on sexual orientation, without even once flagging that they should apply heightened scrutiny to the decision (which is what applies in cases of sex discrimination).  Effectively decades of SC precedent decided on erroneous basis (this wouldn't necessarily change the result, but it certainly created an entire body of precedent and law that is effectively completely useless as precedent). 

How did 19 SC justices miss what this court says is the only possible interpretation?  How did the 30 judges?  Why has every Congress since 1975 introduced a proposed amendment to add sexual orientation (some have even had one house or the other pass such amendments, including 3 times in the last 5 years)?

I get liking the result, but this is NOTHING but a result orientated decision that constitutes judicial law making.

DonaldD

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Re: SCOTUS protects LGBTQ workers
« Reply #16 on: June 15, 2020, 08:49:47 PM »
I have no problem believing that the legislature did not completely evaluate the effect of the wording of the law at the time.

So this may or may not have been their intent but a purely textual reading of the law leads to this interpretation without ambiguity. This wouldn't be the first law that was poorly worded but would still need to be interpreted as written. It's up to the legislature to change the wording if that is what they want to do.

Seriati

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Re: SCOTUS protects LGBTQ workers
« Reply #17 on: June 15, 2020, 08:59:25 PM »
Actually no.  A purely textualist reading does not lead to this result - see Kavanaugh's dissent for a textualist reading.  This was a purely literalist reading (which, to my knowledge, no legal practioners other than certain amubulance chasers have ever endorsed). 

The SC interpretation literally violates nearly every principal of statutory construction and does quite literally call into question the stability of the rule of law.  But hey, everyone that read an opinion column is a lawyer these days.

DonaldD

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Re: SCOTUS protects LGBTQ workers
« Reply #18 on: June 15, 2020, 10:54:03 PM »
Actually a purely textual reading does lead to this result - See Gorsuch's opinion for the majority. Kavanaugh was legislating from the bench.  ::)

Seriously, Gorsuch and Kagan are both proponents of textualism, one a conservative, the other a liberal - that doesn't mean that there is never ambiguity in the textual analysis.  Heck, all the SC judges are textualists today.  It's just lazy ascribing nefarious motives or thought to a judgment just because one doesn't agree with it. 

Fenring

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Re: SCOTUS protects LGBTQ workers
« Reply #19 on: June 15, 2020, 11:22:34 PM »
I don't know any of this legal wizardry, but it seems to me pretty common sense that declaring the current law to say that firing someone for sexual or gender orientation to be illegal, means it always was. If it wasn't always then it means the law is changing now, which is a legislative prerogative. But if it *was* always the law then it means that those who drafted the law intended that, no? Or is the idea that the lawmakers unintentionally made this into law by using terminology that would change over time in meaning?

The thing I understand about both precedent and about intended application vs real application, is that maybe some combination of design intent along with the history of judicial rulings come into play when someone wants to know what a law really means. Since it's literally not possible those framing the original law could have thought it included trans people, the only alternative is that judicial rulings would tell us what it means. However those, too, seem to be overturned by the current interpretation, which says that it must mean this. Ok. But if it means that it includes these groups, that must mean it always included them, right? Legally speaking, that is, since no one would previously have understood it to mean those things. And if that's the case, then it means that not only were they previously misunderstood, but it also means that all rulings on those laws, ever are now being actually overturned? Does that mean that all previous cases involving any of these articles need to be revisited, on the grounds that since the SC has overturned the previous misunderstanding (i.e. that it did not include gay and trans people) then anyone falling on the wrong side of previous lawsuits now needs that wrong to be redressed? Note that the law changing would not require redressing anything, since law changes are generally not retroactive. But this appears to be a retroactive reconsideration of what the law always said, correct? And if so, that means all previous cases (maybe thousands of them) were rules on incorrectly and contrary to the law by all judges involved.

Or am I misunderstanding something?

DonaldD

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Re: SCOTUS protects LGBTQ workers
« Reply #20 on: June 15, 2020, 11:31:08 PM »
in order to see how a particular law is interpreted in certain contexts, those contexts have to be brought before the court in cases.

Aris Katsaris

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Re: SCOTUS protects LGBTQ workers
« Reply #21 on: June 16, 2020, 12:01:15 AM »
I don't know any of this legal wizardry, but it seems to me pretty common sense that declaring the current law to say that firing someone for sexual or gender orientation to be illegal, means it always was. If it wasn't always then it means the law is changing now, which is a legislative prerogative. But if it *was* always the law then it means that those who drafted the law intended that, no? Or is the idea that the lawmakers unintentionally made this into law by using terminology that would change over time in meaning?

Let's say that you have a law in favour of freedom of religion, and everyone is allowed to practice their religion freely. But the original legislators didn't consider Satanism to be a legitimate religion, and would have been horrified with the idea that their law allows even Satanism to be practiced freely. But let's say modern people on the other hand do consider Satanism just another religion.

Should the courts wait for a law that explicitly declares that Satanism is also included in "All religions"? Or should the courts accept that modern understanding of 'religion' has changed and Satanism is also included, even though that wasn't the original intent of the legislators?

I'd argue the latter, because it seems silly that the law should be changed just to clarify what wouldn't have needed clarification if it had been written with the exact same text currently.

It's like saying "All people have the right to a fair and speedy trial", and having the law specify explicitly that yes, this includes women, Jews and Indians. Isn't the modern understanding that women, Jews and Indians are also included in "All people", even though perhaps once they weren't?

Kasandra

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Re: SCOTUS protects LGBTQ workers
« Reply #22 on: June 16, 2020, 07:27:41 AM »
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Let's say that you have a law in favour of freedom of religion, and everyone is allowed to practice their religion freely. But the original legislators didn't consider Satanism to be a legitimate religion, and would have been horrified with the idea that their law allows even Satanism to be practiced freely. But let's say modern people on the other hand do consider Satanism just another religion.

Should the courts wait for a law that explicitly declares that Satanism is also included in "All religions"? Or should the courts accept that modern understanding of 'religion' has changed and Satanism is also included, even though that wasn't the original intent of the legislators?

I'd argue the latter, because it seems silly that the law should be changed just to clarify what wouldn't have needed clarification if it had been written with the exact same text currently.

"Textualism" is the trend among judges these days.  It is used to interpret laws and the Constitution in terms of common understanding of the words, not the intent of the authors.  The Framers in all likelihood had no idea that a religion like Satanism would come along (intent), and it equally doesn't matter that some of them may have conceived of the US as a "Christian nation."

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Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;

allows for any and all belief systems that can reasonably be called a religion, including both Satanism and Christianity.


Fenring

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Re: SCOTUS protects LGBTQ workers
« Reply #23 on: June 16, 2020, 10:52:40 AM »
I see. So textualism means interpreting old law based on new understanding of words, as opposed to the intent of the legislators? But I imagine that this could run afoul of wild changes in language over time, no? For instance, let's say there is a law criminalizing "physical assault." And let's say that modern culture comes to the decision, popularly speaking, that speaking to someone is physical, and that saying things that hurt someone is assault. So in pop culture saying something someone doesn't like could come to be called 'physical assault' in a common parlance. Does that mean a textualist SC judge might actually rule that the laws as they stand actually dictate that it is criminal to speak to someone in a way they don't like? I suppose in this case that particular ruling would run up against the 1st, but putting aside the constitutional issue, could such a reversal in intent happen because of a change in common parlance?

NobleHunter

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Re: SCOTUS protects LGBTQ workers
« Reply #24 on: June 16, 2020, 11:18:13 AM »
I see. So textualism means interpreting old law based on new understanding of words, as opposed to the intent of the legislators? But I imagine that this could run afoul of wild changes in language over time, no? For instance, let's say there is a law criminalizing "physical assault." And let's say that modern culture comes to the decision, popularly speaking, that speaking to someone is physical, and that saying things that hurt someone is assault. So in pop culture saying something someone doesn't like could come to be called 'physical assault' in a common parlance. Does that mean a textualist SC judge might actually rule that the laws as they stand actually dictate that it is criminal to speak to someone in a way they don't like? I suppose in this case that particular ruling would run up against the 1st, but putting aside the constitutional issue, could such a reversal in intent happen because of a change in common parlance?

Who's intent? In this case, it seems "sex" might have been added to the list as a poison pill. Other legislators had other reasons for supporting the addition. How would you resolve it if there were evidence that some legislators meant the broader forms of sex discrimination while others intended the narrowest form?

In any case, the argument is that discrimination against orientation and non-cis genders without also discriminating against sex. I don't see it as unreasonable that the written text trumps intent.

Seriati

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Re: SCOTUS protects LGBTQ workers
« Reply #25 on: June 16, 2020, 11:29:43 AM »
Actually a purely textual reading does lead to this result - See Gorsuch's opinion for the majority. Kavanaugh was legislating from the bench.  ::)

I find it frustrating when people that don't understand something pretend they do.  The essence of textualism, which can find in direct quotes from Scalia, is the interpretation of the words in the statute in the context in which they were passed and the meaning they had to reasonable people at that time.  It's a principal that is rooted on predictability of the law, stability of the law and the very Constitutional idea that Congress changes laws, not the courts.

Gorsuch is often a textualist, but here his opinion is only in the form of textualism.  It's actually literalist.  He expressly pulls individual words in the phrase out (textualism always requires you consider the whole phrase, or even the whole sentence), to put them together in a way that generates a result.

If you want to see that in real action, you can look at Alito's dissent (and the dozens of pages of attachments), where he goes into detail about the real time dictionary definitions (circa 1965).

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Seriously, Gorsuch and Kagan are both proponents of textualism, one a conservative, the other a liberal - that doesn't mean that there is never ambiguity in the textual analysis.  Heck, all the SC judges are textualists today.  It's just lazy ascribing nefarious motives or thought to a judgment just because one doesn't agree with it.

I reject your lazy thoughts.  I agree with the result.  That doesn't change that the opinion is poorly reasoned and the consequences of that will be far reaching.

I don't know any of this legal wizardry, but it seems to me pretty common sense that declaring the current law to say that firing someone for sexual or gender orientation to be illegal, means it always was. If it wasn't always then it means the law is changing now, which is a legislative prerogative.

The essence of textualism is a rejection of the concept of "updating" the law to fit current social mores into existing language that never meant what one would like it to mean now.  Prior to the rise of textualism, the court routinely interpreted laws to mean things that were even contrary to the plain meaning of the words, using things like legislative history to "guess" at what the legislators were really trying to do rather than relying on what they did.  It was just an "amazing coincidence" that what the legislators were "really trying to do" was often the exact same thing the Justices wanted to do with the case.

This opinion is 100% about "updating" the law to match current mores.  The history on this leads to no other conclusion based on all the times its been considered and never come out this way, and at the time far from intended to protect homosexuality in employment people were still arresting people and subjecting them to mental health "care" for being homosexual.  Updating laws is the diametric opposite of textualism.

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But if it *was* always the law then it means that those who drafted the law intended that, no? Or is the idea that the lawmakers unintentionally made this into law by using terminology that would change over time in meaning?

You should read the opinion.  The conclusion was that the language could never have been read any other way (despite the fact that it was literally read the other way by everyone, including 10 circuit courts, Congress, administrative agencies, the general population, and 19 SC Justices who never once held discrimination based on sexual orientation to the same standard as discrimination based on sex).

Thematically, the inescapable conclusion is that being anti-homosexuality is nothing but sexism.  The objection of the person that is anti-gay is according to the court a reflection of nothing more than an intent to discriminate based on gender.  If you interpret it otherwise the opinion's logic falls apart.  Notwithstanding that we have decades of laws and jursiprudence that treat it separately, that consider discrimination based on sexual orientation to me unique and distinct from discrimination based on sex.

Let's say that you have a law in favour of freedom of religion, and everyone is allowed to practice their religion freely. But the original legislators didn't consider Satanism to be a legitimate religion, and would have been horrified with the idea that their law allows even Satanism to be practiced freely. But let's say modern people on the other hand do consider Satanism just another religion.

That is textualism.  Much like the 1965 Act was already interpreted to protect a man from sexual harrasment by other men.  It's an inescapable consequence of the choice of words used.  If the act said it was illegal to discriminate against women, a different result happens, but the act said it was it was illegal to discriminate based on sex, which of necessity applies to both genders.

Now, if instead of Satanism, you were to include "lack of religion" you might be starting to cross the line.  But this case is more akin to saying that protection from discrimination against religion is really about belief, so if you passionately believe in the moral imperative of being a Union soldier in Civil War reenactments you would be protected from discrimination by your employer under the act and they would be required to reasonably facilitate your beliefs and observances.

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Should the courts wait for a law that explicitly declares that Satanism is also included in "All religions"? Or should the courts accept that modern understanding of 'religion' has changed and Satanism is also included, even though that wasn't the original intent of the legislators?

Religion didn't change.  In 1965 the court recognized conscientious objectors, whose belief was not required to be tied to a belief in a god.  Here's what they said:  "[w]hether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God of one who clearly qualifies for the exemption. Where such beliefs have parallel positions in the lives of their respective holders we cannot say that one is ‘in relation to a Supreme Being’ and the other is not."

Of course, that's why analogies are tough to use.  Too much extraneous baggage.

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It's like saying "All people have the right to a fair and speedy trial", and having the law specify explicitly that yes, this includes women, Jews and Indians. Isn't the modern understanding that women, Jews and Indians are also included in "All people", even though perhaps once they weren't?

All again, textualism would point out that even at the time "all people" had a general meaning easily understood that in fact included all people.    Your arguments really don't come close to addressing what you seem to think they do.

But to give you the counter example of what textualism was fighting against.  The living Constitution crowd may look at that same passage, and decide that it only protects the right of a speedy trial to those people who are politically correct.  They'd look at it and say that those with racist views are inherently sub-human, for example, and non-humans can't be all people and therefore racists are not entitled to a speedy trial.  However, they may love dogs, cats and other pets and desire that such animals be granted a hearing prior to being put to sleep, so they not withstanding their lack of "human-ness," are defined to be people based on their compassion and loyalty.  There's no requirement for consistency, the language always bends to give the result the judge thinks is "right."  And when you come to that passage and try to live your life according to it, you'd need a great lawyer to even begin to explain to you the arcana that surrounds all the caveats and exceptions.

Fenring

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Re: SCOTUS protects LGBTQ workers
« Reply #26 on: June 16, 2020, 12:05:35 PM »
Ok, so putting aside the definition of textualism for the moment, if the SC is *not* outright updating the law (officially) that means they are claiming this was always the law had to be interpreted, correct? Does that not imply that all previous trials where an alternate meaning was used by the judge are retroactively a misreading of the law, and does that entitle any losers of past cases to have the cases re-opened since the rulings were contrary to the law at the time?

Seriati

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Re: SCOTUS protects LGBTQ workers
« Reply #27 on: June 16, 2020, 01:03:16 PM »
Ok, so putting aside the definition of textualism for the moment, if the SC is *not* outright updating the law (officially) that means they are claiming this was always the law had to be interpreted, correct?

Don't mistake reality.  They updated the law, there's zero question of that.  The mechanic they used to do it is to claim that it never could have been read any other way, and even in 1965 that's what it meant.  It's contra-factual.  But yes, they are claiming that is is always how the law worked.

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Does that not imply that all previous trials where an alternate meaning was used by the judge are retroactively a misreading of the law, and does that entitle any losers of past cases to have the cases re-opened since the rulings were contrary to the law at the time?

Well they largely also claimed that this is limited to Title VII, and dismissed with a handwaive the identical language in something like 45 other statutes (Alito including a list of citations in his appendix).  They did a handwaive that this doesn't resolve the bathroom issue, for example, which is "separate issue".  But that's a bizarre opinion.  If there's no other way to read the phrase, then it has to read the same way everywhere else it appears.

Previous cases may have appeal rights, depends on the case.  Certainly you can expect thousands, if not hundreds of thousands of new filings to relitigate this issue across the entire legal system.

While activists might think that's great, I don't see it as remotely preferrable to a legislative solution.  I mean in the case of women's sports, both sides have a morally right argument.  Trans athletes want their identity respected, and for the same reasons that we passed a law to protect women's access to sport that prevents men from competing against them natural born women will be permanently disadvantaged if trans-athletes can compete.  The SC's opinion goes beyond what was there before, arguably allowing gender fluid athletes to flip back and forth between gendered competitions based upon their changing identity preferences.  Congress could have reached a balanced approach (or not) that at least tried to resolve that conflict, the Court's blunt hammer not so much.  Women lose on this issue because transwomen are more protected by a protection from discrimination based on "sex" than women are notwithstanding the "sex" protection was explicitly passed to protect women. 

Kasandra

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Re: SCOTUS protects LGBTQ workers
« Reply #28 on: June 16, 2020, 01:04:00 PM »
I see. So textualism means interpreting old law based on new understanding of words, as opposed to the intent of the legislators?

No, it means the opposite and assumes a common understanding of the words in context.  If intent - meaning what they were thinking, but not what they included - then no religion that the Founders weren't already familiar with and had in mind would be included.  But that intent might have been in the minds of some of the Founders, but not others, for instance if one or more of them was thinking of Paganism, Hinduism or any of a host of animist beliefs.  If the Founders intent mattered, any judicial matters made based on scientific discoveries made since 1789 would be have to be judged in terms of whether the Founders had thought about them.

Fenring

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Re: SCOTUS protects LGBTQ workers
« Reply #29 on: June 16, 2020, 01:21:35 PM »
I see. So textualism means interpreting old law based on new understanding of words, as opposed to the intent of the legislators?

No, it means the opposite and assumes a common understanding of the words in context.  If intent - meaning what they were thinking, but not what they included - then no religion that the Founders weren't already familiar with and had in mind would be included.  But that intent might have been in the minds of some of the Founders, but not others, for instance if one or more of them was thinking of Paganism, Hinduism or any of a host of animist beliefs.  If the Founders intent mattered, any judicial matters made based on scientific discoveries made since 1789 would be have to be judged in terms of whether the Founders had thought about them.

Hm, I see what you're saying but I'm not sure the one follows from the other. For instance allowing the practice of "religion" would, even in the eyes of the founders, include religions not yet founded. I am pretty sure they would have said outright that if a new religion comes to light then of course that would be included, even though they were not overtly 'thinking of' that particular (as yet non-existent) religion. That would be a bit different from certain classes of things that they intentionally would have said are excluded, that new use of language makes us want to include. If they had been asked point-blank "what about people who have alternative [which they might have called deviant] sexual preferences" the textualist issue would then be to determine what their answer would have been. If it would have been that it definitely doesn't include that, then it couldn't be a textualist interpretation that this was their intention, right? So what Seriati is saying seems to make sense here. The issue seems to be not whether the Founders could foresee every religion that would ever come into being when discussing religion, but rather what the point of the law was: namely, to protect the expression of beliefs and to avoid a state religion. Any interpretation of the law which would (a) prevent a person's belief being expressed or (b) found a state religion could pretty clearly be seen to be contrary to the intent, regardless of how one chooses to interpret individual words, correct? Like, I'm sure I could find some academic person who could use jargon to find a way to mangle the literal meaning of such laws, but when weighed against the spirit of it that would be seen as bogus, I assume.

So in this case, if your definition of textualism is right then it doesn't seem like this ruling could be textualist, since there's zero chance the law intended this, and as Seriati mentioned (and as common sense should tell us), given the beliefs at the time they almost certainly did not want to include orientation and gender.

TheDeamon

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Re: SCOTUS protects LGBTQ workers
« Reply #30 on: June 16, 2020, 01:49:33 PM »
Ok, so putting aside the definition of textualism for the moment, if the SC is *not* outright updating the law (officially) that means they are claiming this was always the law had to be interpreted, correct? Does that not imply that all previous trials where an alternate meaning was used by the judge are retroactively a misreading of the law, and does that entitle any losers of past cases to have the cases re-opened since the rulings were contrary to the law at the time?

I imagine most cases will be constrained by a statute of limitations but it does raise questions for the cases that are still inside that window.

Fenring

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Re: SCOTUS protects LGBTQ workers
« Reply #31 on: June 16, 2020, 02:39:56 PM »
Ok, so putting aside the definition of textualism for the moment, if the SC is *not* outright updating the law (officially) that means they are claiming this was always the law had to be interpreted, correct? Does that not imply that all previous trials where an alternate meaning was used by the judge are retroactively a misreading of the law, and does that entitle any losers of past cases to have the cases re-opened since the rulings were contrary to the law at the time?

I imagine most cases will be constrained by a statute of limitations but it does raise questions for the cases that are still inside that window.

Are you sure there's a limitation on old case rulings being overturned? I've heard of many instances where people behind bars for 25 years have had a new DNA test done and been released immediately when it was determined that their guilty verdict was bogus. Granted that's criminal and not civil.

Kasandra

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Re: SCOTUS protects LGBTQ workers
« Reply #32 on: June 16, 2020, 02:45:36 PM »
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I am pretty sure they would have said outright that if a new religion comes to light then of course that would be included, even though they were not overtly 'thinking of' that particular (as yet non-existent) religion.

It's not so easy to be "pretty sure" about largely agrarian patriarchal patricians thought about things to come that were outside of their imaginations.  You are putting the burden on those long lost souls to tell us how a religion comes to light and what a religion in fact is.  I'm not at all sure that they had as much imagination about social and religious norms as we have and retroactively attribute to them.

The problem that societal norms change in light of the Constitution will never be alleviated if we continue to try to resolve issues they never contemplated by the relatively few words they put down in a Constitution that was largely the result of massive compromises and concessions between disparate and often self-serving drafters.

The only solution IMO is for all to accept the spirit of the Constitution, mainly as expressed in the amendments, and apply the principles we can discern to present circumstances in order to create a fair and just society.  I say create, because we haven't yet achieved that objective.  The best I can think to say about it is WIP.

NobleHunter

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Re: SCOTUS protects LGBTQ workers
« Reply #33 on: June 16, 2020, 03:08:56 PM »
It's entirely possible, absent certain clarifying remarks, that "religion" in the 18th century when spoken by English Protestants meant only protestant faiths.

TheDeamon

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Re: SCOTUS protects LGBTQ workers
« Reply #34 on: June 16, 2020, 04:20:39 PM »
Ok, so putting aside the definition of textualism for the moment, if the SC is *not* outright updating the law (officially) that means they are claiming this was always the law had to be interpreted, correct? Does that not imply that all previous trials where an alternate meaning was used by the judge are retroactively a misreading of the law, and does that entitle any losers of past cases to have the cases re-opened since the rulings were contrary to the law at the time?

I imagine most cases will be constrained by a statute of limitations but it does raise questions for the cases that are still inside that window.

Are you sure there's a limitation on old case rulings being overturned? I've heard of many instances where people behind bars for 25 years have had a new DNA test done and been released immediately when it was determined that their guilty verdict was bogus. Granted that's criminal and not civil.
For the defense, that would be valid enough.

For anybody in the plaintiff chair? It applies.

TheDeamon

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Re: SCOTUS protects LGBTQ workers
« Reply #35 on: June 16, 2020, 04:22:35 PM »
It's entirely possible, absent certain clarifying remarks, that "religion" in the 18th century when spoken by English Protestants meant only protestant faiths.

Except for the Jewish congregations known to exist at the time, and a number of other non-WASP faiths also present in the United States even prior to their rebellion.

NobleHunter

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Re: SCOTUS protects LGBTQ workers
« Reply #36 on: June 16, 2020, 04:30:03 PM »
The point is that there's other text making it clear that "religion" applies to Jews, Catholics, and Muslims. But I'm reasonably sure that it was a common usage that to mean only protestant faiths. I think it came out of the conflict in England over non-conformists versus Anglicans.

Fenring

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Re: SCOTUS protects LGBTQ workers
« Reply #37 on: June 16, 2020, 05:16:03 PM »
The point is that there's other text making it clear that "religion" applies to Jews, Catholics, and Muslims. But I'm reasonably sure that it was a common usage that to mean only protestant faiths.

I wonder whether this is a sound historical assumption. Even Jefferson made his own bible, and clearly the result of it wasn't any 'Christian' denomination, even though we can safely assume he would have believed that the following of those teachings (that he chose to retain in his bible) were protected.

Kasandra

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Re: SCOTUS protects LGBTQ workers
« Reply #38 on: June 16, 2020, 05:47:03 PM »
The point is that there's other text making it clear that "religion" applies to Jews, Catholics, and Muslims. But I'm reasonably sure that it was a common usage that to mean only protestant faiths.

I wonder whether this is a sound historical assumption. Even Jefferson made his own bible, and clearly the result of it wasn't any 'Christian' denomination, even though we can safely assume he would have believed that the following of those teachings (that he chose to retain in his bible) were protected.

Right, Jefferson cut passages out of his personal bible to construct his own set of moral guideposts.  It isn't a stretch to think of him as an areligious secular moral philosopher.  If you want to go with intent rather than text, that's a good place to hang your hat.

Aris Katsaris

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Re: SCOTUS protects LGBTQ workers
« Reply #39 on: June 16, 2020, 06:22:39 PM »
I find it frustrating when people that don't understand something pretend they do.  The essence of textualism, which can find in direct quotes from Scalia, is the interpretation of the words in the statute in the context in which they were passed and the meaning they had to reasonable people at that time.

I'm trying to read up on all these terms, and I still don't get how you argue that's "textualism" instead of it's opposed theory "originalism".

Here's the definitions I google:
Textualism is a formalist theory in which the interpretation of the law is primarily based on the ordinary meaning of the legal text, where no consideration is given to non-textual sources, such as: intention of the law when passed, the problem it was intended to remedy, or significant questions regarding the justice or rectitude of the law

In the context of United States law, originalism is a concept regarding the interpretation of the Constitution that asserts that all statements in the constitution must be interpreted based on the original understanding of the authors or the people at the time it was ratified.

Any time you guys talk about what the legislators originally meant, or even care at all about the date that the law was passed -- that's originalism as far as I can google up. If you don't care about when the law was passed, only about the text of the law as it currently stands -- that's textualism, again as far as I can google up.

You people sayin that textualism is about the original intent of the legislators or the meaning of the law as originally understood -- then I have to ask, what the heck would "originalism" be then?

I'm genuinely confused here. Or perhaps you guys are. At least one of us is confused anyway.

TheDeamon

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Re: SCOTUS protects LGBTQ workers
« Reply #40 on: June 16, 2020, 06:35:03 PM »
Here's the definitions I google:
Textualism is a formalist theory in which the interpretation of the law is primarily based on the ordinary meaning of the legal text, where no consideration is given to non-textual sources, such as: intention of the law when passed, the problem it was intended to remedy, or significant questions regarding the justice or rectitude of the law

I think this is part of the problem. "non-textual sources" are ignored, but textual sources remain on the table. So dictionaries, legal rulings of the time, and other such things, which will be presentable in text, all continue to factor into things.

Kasandra

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Re: SCOTUS protects LGBTQ workers
« Reply #41 on: June 16, 2020, 06:47:06 PM »
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I'm genuinely confused here. Or perhaps you guys are. At least one of us is confused anyway.

On behalf of all of us in the US, I'll offer that we are indeed confused.  These terms mean one thing or another if you are a so-called conservative or liberal, or if you are judging a hot-bed issue.  I'm not confused.  The Constitution is a living document, so we shouldn't be pretending to be an agrarian society whose principles were promulgated by a paternalistic patrician group of male property owners.  Of course, some might think I'm confused if they don't agree with me.

Aris Katsaris

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Re: SCOTUS protects LGBTQ workers
« Reply #42 on: June 16, 2020, 06:52:01 PM »
I think this is part of the problem. "non-textual sources" are ignored, but textual sources remain on the table. So dictionaries, legal rulings of the time, and other such things, which will be presentable in text, all continue to factor into things.

Holy *censored*ing *censored* no.

Sorry to say this, but this explanation is absolutely bonkers, as if the whole concern was whether people would read words, or hear audio recordings, or perhaps watch video.

See how you intruded the words "of the time" in there? -- that's basically a surefire sign of originalism from what I can tell. As far as I can tell textualists don't care about the date the legislation was passed, only what it actually says -- their interpretation would be the same whether the law was passed yesterday or a hundred years ago, because they only care about the text.

TheDeamon

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Re: SCOTUS protects LGBTQ workers
« Reply #43 on: June 16, 2020, 07:13:02 PM »
See how you intruded the words "of the time" in there? -- that's basically a surefire sign of originalism from what I can tell. As far as I can tell textualists don't care about the date the legislation was passed, only what it actually says -- their interpretation would be the same whether the law was passed yesterday or a hundred years ago, because they only care about the text.

Originalism can go much further than that actually. The textual interpretation will still confine themselves to the words.

The Originalist will try to discern intent.

Fenring

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Re: SCOTUS protects LGBTQ workers
« Reply #44 on: June 17, 2020, 12:40:42 AM »
The point is that there's other text making it clear that "religion" applies to Jews, Catholics, and Muslims. But I'm reasonably sure that it was a common usage that to mean only protestant faiths.

I wonder whether this is a sound historical assumption. Even Jefferson made his own bible, and clearly the result of it wasn't any 'Christian' denomination, even though we can safely assume he would have believed that the following of those teachings (that he chose to retain in his bible) were protected.

Right, Jefferson cut passages out of his personal bible to construct his own set of moral guideposts.  It isn't a stretch to think of him as an areligious secular moral philosopher.  If you want to go with intent rather than text, that's a good place to hang your hat.

Not sure if you're being completely sarcastic or not!

But remember my post was a reply to the suggestion that "religion" at the time probably only meant Protestant sects. I'm pretty sure Jefferson would never have signed off on a constitution that didn't protect him from following his own actual beliefs, even if they're not Protestant.

Kasandra

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Re: SCOTUS protects LGBTQ workers
« Reply #45 on: June 17, 2020, 07:46:21 AM »
The point is that there's other text making it clear that "religion" applies to Jews, Catholics, and Muslims. But I'm reasonably sure that it was a common usage that to mean only protestant faiths.

I wonder whether this is a sound historical assumption. Even Jefferson made his own bible, and clearly the result of it wasn't any 'Christian' denomination, even though we can safely assume he would have believed that the following of those teachings (that he chose to retain in his bible) were protected.

Right, Jefferson cut passages out of his personal bible to construct his own set of moral guideposts.  It isn't a stretch to think of him as an areligious secular moral philosopher.  If you want to go with intent rather than text, that's a good place to hang your hat.

Not sure if you're being completely sarcastic or not!

Not at all.

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The ex-president bent over the book, using a razor and scissors to carefully cut out small squares of text. Soon, the book’s words would live in their own book, hand bound in red leather and ready to be read in private moments of contemplation. Each cut had a purpose, and each word was carefully considered. As he worked, Thomas Jefferson pasted his selections—each in a variety of ancient and modern languages that reflected his vast learning—into the book in neat columns.

Jefferson was a "Christian Deist" who didn't believe that Jesus was divine but believed that the New Testament was a font of moral wisdom, but he also read and revered ancient Greek and Roman philosophers.  IMO, he saw himself as a deep thinker whose conceit rested on his own accomplishments and self-education.  His "faith" was his mission to create a society governed by his ideals.  He came out of a Protestant heritage, but I don't think he thought of himself as one and I wouldn't describe him as favoring Protestants, so in that we probably agree.

Fenring

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Re: SCOTUS protects LGBTQ workers
« Reply #46 on: June 17, 2020, 11:40:55 AM »
Dude, you're trying to explain to me an issue I brought up in order to explain it to someone else...

Kasandra

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Re: SCOTUS protects LGBTQ workers
« Reply #47 on: June 17, 2020, 11:43:33 AM »
I was adding my perspective to your (and other people's) comments.  I ack'd that I was in agreement with exactly what you said in part.  You ok with that?

Fenring

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Re: SCOTUS protects LGBTQ workers
« Reply #48 on: June 17, 2020, 12:00:50 PM »
I was adding my perspective to your (and other people's) comments.  I ack'd that I was in agreement with exactly what you said in part.  You ok with that?

Ok, thanks then. It sounded like you were trying to explain it to me, not to NH (whom I was replying to). :)

Seriati

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Re: SCOTUS protects LGBTQ workers
« Reply #49 on: June 17, 2020, 01:12:49 PM »
I see. So textualism means interpreting old law based on new understanding of words, as opposed to the intent of the legislators?

No, it means the opposite and assumes a common understanding of the words in context.  If intent - meaning what they were thinking, but not what they included - then no religion that the Founders weren't already familiar with and had in mind would be included.  But that intent might have been in the minds of some of the Founders, but not others, for instance if one or more of them was thinking of Paganism, Hinduism or any of a host of animist beliefs.  If the Founders intent mattered, any judicial matters made based on scientific discoveries made since 1789 would be have to be judged in terms of whether the Founders had thought about them.

Actually no, that's a warped description of originalism (with an overlay of strict constructionism), which are other judicial philosophies (though strict constructionism is a rare philosophy and not well regarded even by conservative justices).  Take a look at the Wiki for Textualism it explains it what it is and how it differs from those philosophies with a fair bit of accuracy.  https://en.wikipedia.org/wiki/Textualism.  In particular, you may also want to read up on those two philosophies so that you can distinguish them going forward. 

There's no part of textualism that limits concepts to what the Founders had in mind.  Originalism does incorporate part of that concept for interpretation of the Constitution.  But even in interpreting the Constitution (which doesn't apply in this decision), advocates are not the literalists you are describing.