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I'm imagining a Gorsuch decision on this and it's mind-melting.
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Aug 27, 2017 14:32
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It's a little more complicated than that, because religious groups get exceptions for laws regarding gay issues and that would never happen for laws regarding racial discrimination so there's obviously a distinction already being made. Thus while there are similarities, it cannot be "literally the exact same argument as Loving v Virginia" because if it was those distinctions would not exist. You would never have, "you can't discriminate against a black man married to white women unless like you work at a church or something", so the connection isn't as strong as we would like to believe. The vast vast majority of people, if not all, were against interracial marriage because they were racist, they wanted to continue racism/white supremacy and were just using the flimsiest of covers to try and do that legally. In other words, you had people trying to sidestep the obvious intent of the law (protect black people from discrimination) by doing a little legal dance. Does this comparison really work 1:1 with sex discrimination --> gay rights? As an example, it's a bit of a stretch to claim that a business owner who is a woman and doesn't want to hire a gay person is doing so because they want to perpetuate sexism instead of the more obvious reason -- the more obvious reason would be that they simply don't like gay people. Unlike how being anti-interracial marriage was just a cover for being racist, being against gay people working for you doesn't really seem like a cover for being sexist, most people just tend to think about those things as separate issues. (And again, I think the religious aspect is also a big part of this-- the religious justification for being against gay marriage is much more clear than for being anti- interracial marriage). Now if the SC disagrees, great. But I think if we are being honest, even people like us who would very much want the court to extend protections would agree it's a bit of a shoehorn, though perhaps a necessary one. The best solution is always (if it is possible) for congress to clearly protect trans/gay people because we tend to fight and refight controversial court decisions for decades after they are made (see abortion). It might be possible with a midterm shift in the house even, I think a surprising amount of republicans are on board with this (though you'll probably need religious exceptions to keep a lot of people - even among dems - on board). tldr Originalism is usually really dumb but I think this is one of the times when I really wouldn't have a terribly huge problem with the SC going, "hey look it's pretty obvious what they were trying to do with this anti sex discrimination legislation and it clearly wasn't, at the time, to make gay and trans people into a protected class. Stop loving up and get poo poo done congress."
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Aug 27, 2017 15:32
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Churches are not required to perform interracial marriages.
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Aug 27, 2017 15:47
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I mean this is the real problem with the comparison: (from loving ) quote:Chief Justice Earl Warren's opinion for the unanimous court held that: 1) laws that allow discrimination against gay people are not clearly made as measures to continue the thing being talked about (in this case sex discrimination) 2) there are, at least according to the courts, legitimate exceptions (religious) 3) we can easily look at the intent of the laws, if congress intended to protect gay people from discrimination in 1964, they had the complete ability to do so. Laws can evolve of course, but it's not like homophobia is some new thing- it existed in the 60's, people were discriminated against because of it, but congress did not ban that discrimination while at the same time banned discrimination against other groups. The loving comparison works on abstract levels, but if you actually look at the arguments made during the case and the tenor of the decision it's actually an extremely poor fit. I doubt very much the justices in LvV would think these are analogous situations based on the arguments they put forth. Zoran posted:Churches are not required to perform interracial marriages. Yet they cannot discriminate against people in interracial marriages for other purposes.
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Aug 27, 2017 16:05
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I mean LvV clearly works as a slam dunk for gay marriage, but I think reasonable people can disagree whether or not it makes a slam dunk case for the discrimination laws side of things or homosexuality being a protected class due to sex / gender being one. Hey I'd take it, but something tells me this SC aint going that way.
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Aug 27, 2017 16:14
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Correct me if I'm wrong, but if the court has successfully argued that discrimination against LGB folks is covered under sex discrimination, then laws that allow discrimination against LGB individuals are, by definition, clearly promoting discrimination in the basis of sex. Plus, if the 7th circuit's reasoning holds, I don't see any way that discrimination against trans people wouldn't be covered under sex discrimination - it's so much more obviously discrimination based on sex.
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Aug 27, 2017 19:55
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Murray v. HBO https://assets.documentcloud.org/documents/3911409/Wvnd-19902323086.pdf  Page 7 Despite the ACLU being responsible for helping the
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Aug 28, 2017 21:25
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lmbo
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Aug 28, 2017 21:37
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Even just the table of contents in incredible.
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Aug 28, 2017 21:48
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Potato Salad posted:Murray v. HBO It really is the best thing any organization with "ACLU" in their acronym has done this month.
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Aug 28, 2017 22:26
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Stickman posted:Correct me if I'm wrong, but if the court has successfully argued that discrimination against LGB folks is covered under sex discrimination, then laws that allow discrimination against LGB individuals are, by definition, clearly promoting discrimination in the basis of sex. Plus, if the 7th circuit's reasoning holds, I don't see any way that discrimination against trans people wouldn't be covered under sex discrimination - it's so much more obviously discrimination based on sex. The reasoning doesn't really extend to trans. LGB aren't technically a protected group, but they are effectively a protected group because they can always use the heightened scrutiny that the courts give to sex. Sex is the protected group, not gender. A person who is biologically male but identifies as female isn't automatically protected because they aren't being discriminated against because of sex, but specifically because they don't gender-identify as their sex. Gender identity probably should receive some level of protection, but they don't have it now, and its unlikely that the supreme court is going to do it for this case. The best (slim) chance the ACLU has is the argument they seem to be pushing, that the president is flat-out lying about his motivations, and his real reasons are motivated by animus.
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Aug 28, 2017 22:33
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Rigel posted:The reasoning doesn't really extend to trans. LGB aren't technically a protected group, but they are effectively a protected group because they can always use the heightened scrutiny that the courts give to sex. People with vaginas can “behave feminine”. People with penises cannot. How is that not sex discrimination?
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Aug 28, 2017 22:44
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Platystemon posted:People with vaginas can “behave feminine”. People with penises cannot. Something, something traditional roles, something, something rational basis
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Aug 28, 2017 22:49
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Platystemon posted:How is that not sex discrimination? It is gender discrimination. "You are not allowed to marry a man, and you are not allowed to marry a woman" is different from a policy on dress code and gender pronouns that exclude trans.
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Aug 28, 2017 22:50
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Platystemon posted:People with vaginas can “behave feminine”. People with penises cannot. Because people with penises aren't being discriminated because of their penis, but because of their gender. Sex != gender.
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Aug 28, 2017 22:51
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It's really hard to not see how it doesn't fall into "sex stereotyping" type definitions of sex discrimination, but to be fair I've only heard that in reference to Title VII, I don't know if that's a general conception.
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Aug 28, 2017 22:52
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Rigel posted:The reasoning doesn't really extend to trans. LGB aren't technically a protected group, but they are effectively a protected group because they can always use the heightened scrutiny that the courts give to sex. This still doesn't make sense to me because I don't how any argument that discrimination against LGB is sex discrimination could fail to cover T. I haven't read the decision in full, so I'm just going off the reasoning given in this slate article. Slate article posted:Wood provided three interrelated reasons why Title VII’s ban on sex discrimination must encompass discrimination on the basis of sexual orientation. First, the Supreme Court held in 1989’s Price Waterhouse v. Hopkins that sex discrimination includes sex stereotyping—that is, mistreating an employee because she fails to conform to gender stereotypes. That logic, Wood explained, applies to gay employees. “Hively represents the ultimate case of failure to conform to the female stereotype,” Wood wrote. “She is not heterosexual.” Because she is a woman who dates other women, Hively defies the stereotypical expectation that women date members of the opposite sex. By allegedly discriminating against Hively for failing to conform to this gender role, Wood held, Ivy Tech engaged in unlawful sex stereotyping. Slate article posted:Second, Wood deployed what she calls the “comparative method” of Title VII interpretation. I call this the textualist reading of Title VII, because it is derived from the plain language of the statute itself. On its face, the law bars “discrimination because of sex.” If Hively were a man dating a woman—or if she were dating a man—she would not face discrimination. She only faced discrimination because she is a woman dating another woman. “This describes paradigmatic sex discrimination,” Wood writes. “Ivy Tech is disadvantaging her because she is a woman.” These facts lead to “the common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex.” Slate article posted:Third, Wood relied upon the “associational theory”—also known as the Loving theory—of sex discrimination. In Loving v. Virginia, the Supreme Court found that when the government discriminates against an individual for associating with a different race, it has discriminated on the basis of race. Many courts have extended this theory to Title VII, holding that when an employer mistreats a worker for marrying a person of a different race, he has violated Title VII’s ban on race discrimination. Additionally: Slate article posted:Wood easily carries that logic over to the sex discrimination context. When Ivy Tech refused to promote Hively because of her orientation, Wood explained, it discriminated against her for intimately associating with people of the same sex. As Easterbrook made clear during oral arguments in Hively, this mistreatment qualifies as discrimination “because of sex,” in the same way that Virginia’s anti-miscegenation law constitutes discrimination because of race. “If we were to change the sex of one partner in a lesbian relationship,” Wood wrote, “the outcome would be different. This reveals that the discrimination rests on distinctions drawn according to sex.” I'm also not seeing how LGB "aren't technically a protected group, but can always use heightened scrutiny". This decision says that they can use heightened scrutiny precisely because discrimination against them is covered under a protected class of discrimination. There's no "technically not" about it. If this decision is upheld by the SC then they are a protected class. If not, then heightened scrutiny does not apply to them until congress acts, except in cases (like marriage) that warrant heightened scrutiny. Stickman fucked around with this message at 23:01 on Aug 28, 2017 |
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Aug 28, 2017 22:58
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Sinestro posted:It's really hard to not see how it doesn't fall into "sex stereotyping" type definitions of sex discrimination, but to be fair I've only heard that in reference to Title VII, I don't know if that's a general conception. Sex stereotyping might come into play and that could be an argument for standard hostile work environment situations under title VII, but that's not going to come into play at all for the military. Sex stereotyping is targeting someone because they don't match with whatever the harasser's perceived sexual norms are, but it doesn't restrict things like hiring a more feminine woman or masculine man for a commercial. This also really won't apply to the military ban because they're not being targeted because of non-conformity with perceived sexual standards, but rather on the basis of medical costs and suitability for deployment. Being transgender is effectively getting treated like a disability so it's going to limit a lot of potential legal challenges. Stickman posted:This still doesn't make sense to me because I don't how any argument that discrimination against LGB is sex discrimination could fail to cover T. I haven't read the decision in full, so I'm just going off the reasoning given in this slate article. You're absolutely right that you could extend most if not all of those to trans people in a standard workplace environment and probably successfully argue for protections. However, the military is not a standard workplace, and the ban is not analogous to workplace harassment.
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Aug 28, 2017 23:01
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Rigel posted:It is gender discrimination. “The problem with marrying a man isn’t that you have a penis. It’s that your gender is male.” “Oh no; there’s no way to change your gender. Why do you ask?” If “gender” and “sex” are correlated at all times, one of those words might as well not exist. ONE WEIRD TRICK COURTS HATE: “We’re not discriminating on the basis of race. We’re discriminating on the basis of skin color.” 
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Aug 28, 2017 23:02
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Platystemon posted:“The problem with marrying a man isn’t that you have a penis. It’s that your gender is male.” That is exactly what the people pushing gay marriage bans wanted to do, though. They were specifically focused on the sex of the individuals, not gender. They were loose with their language sometimes but if you pin them down, they cared about their physical sex.
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Aug 28, 2017 23:07
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Mr. Nice! posted:Sex stereotyping might come into play and that could be an argument for standard hostile work environment situations under title VII, but that's not going to come into play at all for the military. The two relevant arguments I keep seeing come up are 1) cost of ongoing medications, and 2) cost of and time lost to transition surgery. It seems like these could be attacked by comparing costs of gender dysphoria to other non-disqualifying diseases. I don't know anything about what is disqualifying or not, so I'm not sure how they'd stack up. Also, I understand medical discharge has less stringent requirements than enlistment or induction - that could potentially be used to at least allow currently serving individuals to keep their positions. The wildcard is the "battle readiness" argument - would current courts buy that are armed forces are so transphobic that serving alongside trans individuals will hurt their performance? (Gorsuch  )Rigel posted:That is exactly what the people pushing gay marriage bans wanted to do, though. They were specifically focused on the sex of the individuals, not gender. They were loose with their language sometimes but if you pin them down, they cared about their physical sex. It really doesn't matter what people pushing gay marriage bans think they wanted to do. What matters is whether the resulting discrimination is discrimination based on differences in gender presentation, and whether the court thinks that Title VII applies to such discrimination. The 7th circuit says yes, and it remains to be seen what the rest of the court system says. Stickman fucked around with this message at 23:19 on Aug 28, 2017 |
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Aug 28, 2017 23:15
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Stickman posted:The two relevant arguments I keep seeing come up are 1) cost of ongoing medications, and 2) cost of and time lost to transition surgery. It seems like these could be attacked by comparing costs of gender dysphoria to other non-disqualifying diseases. I don't know anything about what is disqualifying or not, so I'm not sure how they'd stack up. And that argument probably depends entirely on if Trans are a protected group. If they are not (currently they aren't), then the courts are extremely deferential and will accept lame excuses. You pretty much have to be utterly arbitrary to fail a rational basis test, like passing a law saying people born in January can't have a driver's license. The courts don't push back much until you get to protected classes, like arguing whether women should be able to serve in frontline combat roles. (used to be a flat no, now I think we're moving towards "ok, but they have to pass the exact same tests as the men")
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Aug 28, 2017 23:24
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Rigel posted:And that argument probably depends entirely on if Trans are a protected group. If they are not (currently they aren't), then the courts are extremely deferential and will accept lame excuses. You pretty much have to be utterly arbitrary to fail a rational basis test, like passing a law saying people born in January can't have a driver's license. The courts don't push back much until you get to protected classes, like arguing whether women should be able to serve in frontline combat roles. (used to be a flat no, now I think we're moving towards "ok, but they have to pass the exact same tests as the men") Doesn't that bring us back to the 7th circuit's decision being easily extensible to transgender individuals? I think I've thoroughly confused myself, because I see why gender discrimination arguments wouldn't hold up as arguments against discriminatory military employment, but if protected class status is required for heightened scrutiny, which would allow other reasonable arguments to be submitted, it seems like it is exactly those gender discrimination arguments that would argue for protected class status? Stickman fucked around with this message at 23:32 on Aug 28, 2017 |
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Aug 28, 2017 23:28
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Stickman posted:Doesn't that bring us back to the 7th circuit's decision being easily extensible to transgender individuals? For standard workplace discrimination and hostile work environment you're absolutely correct. That's not something that can be extended to the military ban because it's being treated as a medical issue and deployability issue. There is no heightened scrutiny for gender and even if there was, the executive gets vast deference with regards to military decisions. Believe me, I hope that some sort of lawsuit is successful, but what I've seen of the guidance coming down is that trans people will still be allowed to finish serving based upon certain criteria until the end of their current obligation and that being trans would be a disqualify one from joining the military. The ban is being presented as a budgetary concern, and nevermind the fact that the costs are dwarfed by other wastes in the DoD, there are still additional medical costs with trans vs cis servicemembers. This may be one of those things where the only way to counter the president's action is impeachment.
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Aug 28, 2017 23:38
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The real problem with an equal protection challenge to the trans ban isn't the trans part of it, it's the military part of it. The courts are extremely deferential to presidential decisions regarding the military and so the fact that it's blatant discrimination doesn't get you as far as you'd think.
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Aug 28, 2017 23:43
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That makes sense, thanks! Does that mean that legal challenges to other types of structural discrimination in the military (e.g women in combat, racial discrimination, etc.) are also only subject to rational basis rather than strict scrutiny? Or would the 7th's decision only make lgb (and maybe t) a second-class protected class, even if the decision is upheld (like Rigel was suggesting)? Ending the question with impeachment would work for me, too. Stickman fucked around with this message at 23:57 on Aug 28, 2017 |
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Aug 28, 2017 23:50
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Rigel posted:That is exactly what the people pushing gay marriage bans wanted to do, though. They were specifically focused on the sex of the individuals, not gender. They were loose with their language sometimes but if you pin them down, they cared about their physical sex. It's always cute when cis people start trying to debate gender like this. "Physical sex" is a borderline incoherent term. Under the construction you're arguing (that discrimination can be based on "physical sex" in some way distinct from gender), you're forgetting several cases: a) People with ambiguous genitalia that are assigned a sex at birth by the hospital. These people generally live their lives presenting as this assigned sex despite not having the "physical sex" in the way you define it and they are generally not discriminated against because they are not obviously intersex with their clothes on. b) People who are not XX or XY yet have the physical appearance of one of the two binary sexes. These people do not have a physical sex in the way you suggest. People who have internal ovaries and enlarged clitorises yet look otherwise male and live their lives as men with no discrimination, or people with micropenises who look otherwise female and live their lives, again, with no discrimination because with their clothes on they look female. And a million other varieties of intersex condition that still result in an "obvious" sex when you just look at a clothed person in front of you. c) Transgender people who have had a gender confirmation surgery like a phalloplasty or vaginoplasty. How exactly are you defining "physical sex" in this sense? Are you suggesting that people be DNA tested to decide if something was sex discrimination or not? Examined by a sex surgeon to decide if their genitals are "real" enough? What it ultimately comes down to is that intersex and trans individuals who are discriminated against are discriminated against precisely because they don't conform to the sex stereotype someone has formed based on their appearance. A trans man with wide hips and a high voice being discriminated against, for example, is being discriminated against precisely because the discriminator has looked at him, heard him, and decided he is female and not conforming to this "innate" sex assignment. The whole idea that there is an innate physical sex that can be clearly categorized in the way your argument requires is a complete fallacy. EvilWeasel's point is way more relevant, that w/r/t the military they don't need to prove that it's not discrimination, just that there's some justification for it no matter how thin.
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Aug 29, 2017 00:43
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Mr. Nice! posted:Sex != gender.
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Aug 30, 2017 01:43
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ShadowHawk posted:Has the supreme court even recognized this yet? It's a somewhat modern idea. 1972, it looks like.
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Aug 30, 2017 02:21
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This came up in the "LOL TRUMP" GBS thread: https://www.washingtonpost.com/blogs/right-turn/wp/2017/08/30/legal-challenge-to-arpaio-pardon-begins Arpaio's pardon is being challenged in court, the argument being (summing up, the article has way more details and IANAL) that the president cannot issue pardons for crimes where a violation of constitutional rights occourred, because then the pardon in itself would be uncostitutional (since it blocks courts from stopping official from violating constitutional rights). What are the chances that argument would hold up in court?
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Aug 31, 2017 14:25
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Mikl posted:This came up in the "LOL TRUMP" GBS thread: Depends, how liberal is the judge At the supreme court? It wouldn't, not with this court But I'm glad someone's making the argument even if they're gonna get shot down, fight the good fight etc. More importantly Arpaio is no longer actually in office so the pardon and the contempt order are no longer impacting allegedly unconstitutional conduct. If he were still in office maybe -- a very miniscule maybe -- but as it is, no dice. Hieronymous Alloy fucked around with this message at 14:30 on Aug 31, 2017 |
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Aug 31, 2017 14:28
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Hieronymous Alloy posted:Depends, how liberal is the judge Thanks for the answer 
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Aug 31, 2017 14:57
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Mikl posted:What are the chances that argument would hold up in court? Same as "what? Why would you ask if the President can be part of a civil trial while sitting? Why would you undercut the office like that?" during Clinton, no?
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Aug 31, 2017 18:03
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Mikl posted:This came up in the "LOL TRUMP" GBS thread: Zero. Even if we ignore the conservative majority on the SCOTUS the fact remains that the power of a pardon is absolute except in cases of impeachment.
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Aug 31, 2017 21:29
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Evil Fluffy posted:Zero. Even if we ignore the conservative majority on the SCOTUS the fact remains that the power of a pardon is absolute except in cases of impeachment. I don't think this is completely true, and I think the example given in the link of an announcement that all white but no black convicts would be pardoned would be impermissible as a violation of the 14th amendment is correct, given that the 14th amendment was added to the Constitution later than the pardon power. ...however, I don't think the Arpaio pardon is anywhere near that.
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Aug 31, 2017 21:51
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ulmont posted:I don't think this is completely true, and I think the example given in the link of an announcement that all white but no black convicts would be pardoned would be impermissible as a violation of the 14th amendment is correct, given that the 14th amendment was added to the Constitution later than the pardon power. Arpaio was found guilty of violating a court order over an unconstiutional law and was continuing to deliberately and illegally detain US citizens in violation of their constitutional rights based entirely on the color of their skin.
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Aug 31, 2017 21:55
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Mr. Nice! posted:Arpaio was found guilty of violating a court order over an unconstiutional law and was continuing to deliberately and illegally detain US citizens in violation of their constitutional rights based entirely on the color of their skin. Right, which makes the law unconstitutional and his actions illegal with regard to the court order. While he deprived citizens of their constitutional rights, there's a degree of separation between pardoning him for that conviction and issuing a discriminatory blanket pardon using a racial distinction.
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Aug 31, 2017 22:00
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IANAL, but my instinct says that invalidating pardons like that is a separation of powers line the courts will not cross.
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Aug 31, 2017 22:04
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Mr. Nice! posted:Arpaio was found guilty of violating a court order over an unconstiutional law and was continuing to deliberately and illegally detain US citizens in violation of their constitutional rights based entirely on the color of their skin. Right. And was convicted, as a result, of a crime against the United States enshrined in a federal statute. That is to say, squarely within the pardon power. I don't think he could be given a pardon for civil contempt if he had been thrown in jail until he complied with the court order, but that's in the past. I think we agree that the recipient of a presidential pardon could, in theory, have committed basically any horrific act...
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Aug 31, 2017 22:04
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Ogmius815 posted:IANAL, but my instinct says that invalidating pardons like that is a separation of powers line the courts will not cross. This is probably true, but it probably also needs to be ruled on if only to lay the groundwork for possible reform. But even that comes with its own problems. The entire situation does create an actual constitutional crisis, I think. The pardon power does need to be relatively broad, because the intent is to allow the President to give mercy to people in situations where current law provides for excessive sentencing, or other extenuating circumstances. But, without any limits at all, it can be used as it was with Arpaio (simply to flout the will of the judicial branch), for political reasons, or even personal ones. The classical answer would be "Well, the Electoral College would never choose someone that corrupt, and even if they did, Congress would impeach." But the first of those protections no longer really works, and the second one seems to be failing as well. That leaves the courts, but in challenging any such pardon decision the would be creating a showdown over separation of powers. You can argue, possibly, that issuing a pardon in the manner Trump did is obstruction of justice, maybe. Especially since it seems clear that his goal was to prevent Arpaio's conviction by any means, since he first wanted to force DoJ to drop the case entirely before settling for waiting and issuing a pardon. The clear intent is to disrupt legal proceedings targeting a political ally. But there, we run into a similar set of problems. It's his own branch that would be investigating himself, and while there are compelling legal arguments for why the President's pardon power doesn't include himself (and possibly not conspirators in his own alleged crimes), that itself is something that would need to be decided by SCOTUS in the end, and no matter what they decide, things probably get ugly after that.
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Aug 31, 2017 23:09
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