The linked case (and thanks for that) seems not analogous to me.
At issue wasn’t that the teacher had changed religions, it was that his religious practice required unreasonable accommodations.
For a more analogous situation, I’m imagining say, a salesperson who works in a region with a strong religious culture. He’s part of the local megachurch community, as are much of his company’s executives and some of the representatives of other companies that he does business with. He then converts to another religion. Can they fire him because he doesn’t go to church on Sunday any more and they expect his sales to suffer?
He’s not asking for any accommodations there. No extra days off. No prayer times. No special cafeteria food.
Would they be justified in firing or not hiring someone who was always the religion that this guy changed to because they assumed they wouldn’t be as effective a salesman because he didn’t go to the church potlucks?
I have quoted just this part of your post because both you and Left Hand of Dorkness are simply stating your position without much in the way of supportive argumentation. You assert that discrimination based on sexual orientation is sexual discrimination because a man can’t marry a man but a woman can marry a man. I have explained several times why that isn’t a persuasive argument, but I haven’t seen any actual rebuttal. The position you are stating is the position of the plaintiffs in the case before the Supreme Court but that’s all it is, it is not a case. If you were the lawyer for the plaintiff and that’s all you had to say to the court, I don’t give much odds for your chances of winning.
Your position would change the definition of discrimination based on sex, which is exactly what the case is about. Yours is not a new insight. Have you nothing more persuasive to say in favor of it?
I think you missed my point. Anti-trans bigots like to declare that it’s impossible for someone to change their sex. It would be entertainingly ironic if, in their effort to treat trans people as second-class citizens, they had to argue that they had, indeed, changed their sex. Doubly so if, in making this argument, they end up getting the idea enshrined in constitutional law.
That’s a faintly absurd requirement. Why would you think that’s necessary?
That seems like something that they should need to show regardless of whether there’s any sort of sex-confirming authority involved in the process.
I’m not comfortable with the idea of anyone “resolving” this issue, since this isn’t the sort of issue that decent people should need legal guidance about. But given that this country is hip-deep in unethical, immoral scumbags, I’ll take whatever protections trans people can get, be it the courts or the legislature.
Historically, one of the more common forms of discrimination against women is pregnancy discrimination. It used to be pretty common that, if a woman got pregnant, she would be out of a job, under the assumption that a woman’s “real” job is taking care of their kids, and they wouldn’t be able to both work and do that - an assumption, obviously, that did not apply to their male co-workers when they had kids.
This seems pretty obviously a case of discrimination based on something a person did (fuck) outside of work (at least, hopefully.) So, I don’t think your assertion here holds.
How is, “You can’t marry a man; you’re a man!” fundamentally different from any of these examples? It seems to fit the pattern you’ve established here perfectly.
It’s worth noting here that, in Loving v. Virginia, the state argued (unsuccessfully) that their anti-miscegenation laws were constitutionally valid because they equally forbade white people from marrying black people, and black people from marrying white people.
So, maybe hold off on sneering at other people’s “unoriginal” arguments until you’ve got something to say that wasn’t thrown out of court more than fifty years ago?
I’m not a legal scholar, but it seems to me that I’ve cited a case where the court ruled for a plaintiff that was discriminated against not specifically because of her sex but because she didn’t behave in a manner her employers felt appropriate for a woman. The court ruled that if gender played any part in the decision to render adverse actions against an employee that it was in fact gender discrimination. It seems logical to me that the only reason to discriminate against homosexuals is because their behaviors are viewed as unfeminine or not masculine. Expected gender roles are at the very heart of discrimination against homosexuals. You call it a stretch. I call it precedent.
Thank you for the case references. I will study them.
Some other things worth noting:
You have mis-characterized my request for better arguments as “sneering.” That sort of thing tends to devolve a debate into name-calling. I think you should know better, of all people. I think I have been fairly patient, but people keep saying the same thing over and over. Read the thread through again and tell me I’m wrong.
I didn’t say the positions or the arguments were unoriginal, I said it was not a new insight that “a woman can marry a man but a man can’t marry a man” sounds like discrimination on the basis of sex under Title VII. That’s the claim in the Supreme Court case, is it not? Is that all they’re going to say about it in front of the justices? What will their case be?
I have already argued that marriage is not a good analogy for employment. Legal marriage is bound around with laws from beginning to end, there is no legal marriage without legal permission to do so. The Loving decision and the decision about same-sex marriage were based on due process and equal treatment clauses in the 14th amendment. I suspect, not being a lawyer, that that is useless as a precedent for re-defining “discrimination based on sex” in Title VII. I have made this case earlier in this thread, I haven’t seen anyone challenge it.
Let’s be clear: of course it is discrimination, but I am not convinced yet that it falls under the proscription against sex discrimination contained in Title VII. That is the topic of the suit, and that is the topic of this thread.
Again, thank you for these references. The first one is exactly what I was looking for, a decision by a Federal circuit court, which stated that firing due to inter-racial marriage was a form of racial discrimination and therefore protected under Title VII. The article refers to “associational discrimination” as the legal concept involved, if I understand that correctly. That seems to me to be an excellent precedent for the case we are discussing, and I only hope there have been more like that, including from other circuits, since 2008, and that the justices find it/them persuasive.
The other two are just news accounts of lawsuits, without any reference to how the cases were decided, and so not much use in this discussion. But the first one provides what I have been requesting and hoping for, some reason to believe that the Supreme Court might be willing to, in effect, expand the legal definition of sex discrimination in employment.
This entire thread is an incredibly good example of why “equality” is such a meaningless goal to the point it’s almost absurd to legislate. “Homosexuals are equal, they can marry someone of the opposite gender like everyone else” is a statement that’s not even wrong, really. It’s damaging, and has some bigoted effects, but it’s not on its face more or less wrong than “it’s gender discrimination to disallow a man to marry a woman but not a woman.” I’m coming around to the idea that Marx and Engels were right about equality just being a non-goal for various reasons, including this. Not ignoring marginalized people, of course, but improving their station without trying to define or enforce some nebulous “equality”.
To be honest, while on some level of principle I agree this isn’t really the supreme court’s business to decide, and I recognize the risks in deciding in favor of this… I also don’t care? Queer people need protections and there’s a multi-pronged attack on multiple areas of government to try and get these. We got some under Obama via EOs (that Trump largely reversed), some via the SCOTUS in the past, and hopefully eventually some in the legislature. All of these are fragile for various reasons, but because of that I want it enshrined in as many branches as possible, for redundancy if nothing else.
I don’t worry about the problem of an “activist court” because that ship has sailed long, long ago. In the present, the court is just another political branch of the government, quite obviously. This is a very bad thing for the country and hopefully it will change (and I think set terms, or some of the other ideas I’ve seen in which the SCOTUS must agree unanimously on new members, or something like that, might change this), but until it does, Democrats should push for this political branch to aid their goals, just like the Republicans do (and have largely been successful at).
Exactly so. Despite all the pedantry in this thread about what is and is not in the Constitution, conservative wingnut Neil Gorsuch has already expressed reservations about ruling in favor of LGBT employment rights because of the alleged “social upheaval” it would cause. Which is of course fundamentally misguided on two different grounds. One, it misses the fact that LGBT rights are now in the mainstream of social values, except only for narrow-minded fringe Bible-thumping zealots like himself. Second, he’s unwittingly revealed himself to be thinking like a legislator and not a constitutional judge, because to a constitutional literalist it should never be within the purview of a Justice to think in terms of societal values and outcomes, but only in terms of the law as written. But yes, that ship sailed long ago. Citizens United and Heller were two of the most activist and constitutionally groundless decisions every ruled by the SCOTUS.
Depends on the interpretation. Meaning, depends on whether we have Republican or Democratic justices on the SCOTUS, and/or which SCOTUS justices are better at making their legal interpretation verbiage sound better.
Meaning, this is all just politics, for the most part, no matter how much we want to pretend that it’s based on actual objective principles.
Says you. And the (Republican) SCOTUS. Obviously it matters what they say, but that doesn’t mean it’s necessarily anything more than just another political call to benefit the wealthy and powerful.
One thing that occurred to me after I wrote this is that, if SCOTUS rules against the plaintiffs, it could call any Circuit Court decisions like this one into question, and encourage future appeals to challenge the Circuit Courts even on the inter-racial marriage issue (i.e. whether firing someone because of inter-racial marriage is actually racial discrimination). Going before SCOTUS is always a risk, which is another reason to use that tactic sparingly.
I do agree with Jragon, though, that it is good to have as much redundancy as possible across branches, and levels, of government.
Citizens United was a pretty straightforward decision based on the First Amendment. Freedom of the press is freedom of the press. Had Citizens United been a liberal not-for-profit, instead of a conservative not-for-profit, virtually everyone who complains about that decision now would either support it or would never have heard of it.
“Constitutionally groundless” is a stunningly ridiculous thing to say. The First Amendment says Congress cannot do what it did.