Not exactly schadenfreude

I have to admit taking some pleasure reading editorials like Watch Out, America — The Supreme Court Is Back in Session from the New York Times Editorial Board. It’s not exactly schadenfreude, though, because my sorrow is only that the nation is so divided (a division I’ve anticipated for decades, though its realization looks and feels much different than I imagined).

The Editorial is especially pleasurable to me because its fear is that the court will overturn fanciful precedents when they’re unwarranted by the constitution and destructive of federalism and the political processes of self-governance.

Here’s an example of how the judiciary, with help from law school theorizers, turn laws on their heads, as told with approval by the aforesaid Editorial Board (emphasis added):

[D]iscrimination is a daily fact of life for gay, lesbian and transgender people across the country. Some states have laws barring it, but most don’t. For people in states without their own legal protections, the only hope is federal law — specifically, Title VII of the 1964 Civil Rights Act, which bars employers from firing, harassing or discriminating against an employee because of” that person’s sex.” The plaintiffs in these three cases argue that the plain language of Title VII applies to them, because they would not have been fired but for their sex — after all, if the gay men had been women, their attraction to men would not have been an issue for their employers.

The transgender woman before the court, Aimee Stephens, also argues that she was fired because she did not fit the stereotype of how a person assigned male at birth is expected to dress and act. This violates a 1989 Supreme Court ruling that Title VII bars discrimination on the basis of sex stereotypes.

The employers in these cases, with the backing of the Trump administration, say the civil rights law provides no protection to the plaintiffs, because when it was passed in the 1960s, no one imagined that it would apply to sexual orientation or gender identity. That’s true — many L.G.B.T. Americans were closeted at the time, and they faced severe consequences for standing up for their equality in public. But what lawmakers might have thought more than 50 years ago is irrelevant to the matter at hand, which is what the law they passed actually says.

Congress has repeatedly declined to add sexual orientation” and gender identity” to Title VII, which was passed as an attack on the glass ceiling” and on categorical exclusion of women from certain jobs traditionally held by men. But since creative thinking can make Title VII an attack on gender stereotypes, to heck with what sex” meant.

If this sounds cold and insenstive, consider, too, that the facts and issues in the cases coming up aren’t as stark as the Editorial Board paints them:

The funeral home, supported by amicus briefs—including one from the Women’s Liberation Front or WoLF, a radical-feminist group—counter that Stephens is not, as the term should be understood under Title VII, a woman at all. Stephens was fired for behaving in a way that would have got any male fired. No discrimination occurred.

May 21, 2019


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