NOTE: I would appreciate posters sticking to the legal aspects of the opinion.
Justice Gorsuch’s majority opinion in Bostock v. Clayton County, Georgia , ignored the rules of statutory construction by ignoring the distinction between " sexual orientation discrimination " and " sex discrimination "___ the latter being the intended object of protection under Title VII of the Civil Rights Act of 1964, while protection for the former was considered for protection on various occasions, but never agreed upon and written into law.
As pointed out in Justice Kavanaugh’s dissent “For several decades, Congress has considered numerous bills to prohibit employment discrimination based on sexual orientation. But as noted above, although Congress has come close, it has not yet shouldered a bill over the legislative finish line.”
Kavanaugh continues with emphasizing the distinction between sexual orientation and a firing because of sex discrimination.
” As to common parlance, few in 1964 (or today) would describe a firing because of sexual orientation as a firing because of sex. As commonly understood, sexual orientation discrimination is distinct from, and not a form of, sex discrimination. The majority opinion acknowledges the common understanding, noting that the plaintiffs here probably did not tell their friends that they were fired because of their sex. Ante, at 16. That observation is clearly correct. In common parlance, Bostock and Zarda were fired because they were gay, not because they were men.
Contrary to the majority opinion’s approach today, this Court has repeatedly emphasized that common parlance matters in assessing the ordinary meaning of a statute, because courts heed how “most people” “would have understood” the text of a statute when enacted.”
The fact is, Justice Gorsuch attempts in his written opinion, with unusual and extraordinary effort, to articulate, or to be more accurate invent, the idea that there is no distinction between " sexual orientation discrimination " and " sex discrimination " within the meaning of Title VII of the Civil Rights Act of 1964
While sex discrimination, under Title VII of the Civil Rights Act of 1964, obviously refers to biological distinctions of an individual identified at birth, sexual orientation refers to an individual’s mental yearning or belief that their physical attributes do not align with their emotional sexual proclivities. And it is this distinction that has been considered for protection under Title VII of the Civil Rights Act of 1964, but without success.
So, instead of Gorsuch and the majority accepting the distinction between sexual orientation and sex discrimination, and following time honored rules for interpreting statutory law requiring the meaning of “sex”, a biological attribute intended to have protection under Title VII of the Civil Rights Act of 1964, Gorsuch and the Majority resort to the Humpty Dumpty Theory of Language being applied to Title VII of the Civil Rights Act of 1964, and pretend there is no distinction between sexual orientation, a mental or emotional state, and sex discrimination which refers to a biological distinction under Title VII.
“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean- neither more nor less.”
But, the fact is, words or terms used in legislation must be understood in the sense most obvious to the common understanding at the time of its adoption!
Unfortunately, Gorsuch and the Majority, in applying the Humpty Dumpty Theory of Language, and doing for the Legislature what it has refused to do or was unwilling to do, has likewise usurped legislative power which borders on judicial tyranny as described by Madison:
”The accumulation of all powers, legislative, executive, and judiciary, in the same hands [our Supreme Court] . . . may justly be pronounced the very definition of tyranny.” ___ Madison, Federalist Paper No. 47
JWK
As nightfall does not come at once, neither does oppression. In both instances there is a twilight where everything remains seemingly unchanged. And it is in such twilight that we all must be aware of change in the air - however slight - lest we become unwitting victims of darkness. __ Supreme Court Justice William Douglas
