Boom! Trump's DOJ throws Gays Under the Bus on Title 7

[ecofarm]

When the law does the opposite of what it's supposed to, by protecting heteros just like homos.

It's the law of the slippery slope. Every law has them.

What wrong with protecting heteros from being not-hired or fired because of their sexual orientation? How does this, in any way, negatively affect anyone?

 

[volsrock]

Seems he wrong about the Congressional Black Caucus too. Race and party affiliation are not a requirement to become a member. Being 54 is not too old to run for office and becoming just another angry, old white man in Congress.

Black Caucus: Whites Not Allowed

As a white liberal running in a majority African American district, Tennessee Democrat Stephen I. Cohen made a novel pledge on the campaign trail last year: If elected, he would seek to become the first white member of the Congressional Black Caucus.

Now that he's a freshman in Congress, Cohen has changed his plans. He said he has dropped his bid after several current and former caucus members made it clear to him that whites need not apply.

Black Caucus: Whites Not Allowed - POLITICO


So can u name me JUST ONE white member?

 

[calamity]

They should take talents elsewhere, then.

Should Blacks take their talents elsewhere too?

 

[calamity]

Seems he wrong about the Congressional Black Caucus too. Race and party affiliation are not a requirement to become a member. Being 54 is not too old to run for office and becoming just another angry, old white man in Congress.

Volstock wrong? No way.

 

[NotreDame]

Two LGBT hits in one day. Damn, these guys are on a roll.

DOJ set to reject LGBT workplace protections

lol@ anyone who believed Trump was going to be watching out for gay rights. :lol:

A view consistent with a reasonable reading of the statutory text.

 

[NotreDame]

Hillary Clinton blasts Trump on LGBT rights

It is edifying information that Hillary has an opinion but her opinion does not indicate the text of the federal statute protects sexual orientation.

 

[Moon]

Don't like the law as written, then change the law.

 

[vash1012]

Yes and there lies the double edged sword that, as usual, comes back to bite the Libbos in the ass.

Yea, I'm sure so many liberals are up in arms because heterosexual people might be protected from being fired for being heterosexual.

 

[JasperL]

Title VII doesn't protect sexual orientation. Never has. So...?? What's your point?

Some courts have interpreted the law that it does, and that's how the Obama administration interpreted the law, so that's not actually correct. The lawsuit and the hearing before the 2nd Circuit, then possibly the SC, are intended to settle the issue.

 

[MaggieD]

Some courts have interpreted the law that it does, and that's how the Obama administration interpreted the law, so that's not actually correct. The lawsuit and the hearing before the 2nd Circuit, then possibly the SC, are intended to settle the issue.

Can you backup your assertion that courts and the Obama Admin interpreted Title VII that way?

 

[ludin]

Some courts have interpreted the law that it does, and that's how the Obama administration interpreted the law, so that's not actually correct. The lawsuit and the hearing before the 2nd Circuit, then possibly the SC, are intended to settle the issue.

courts do not have the power to change or make law.
separation of powers. the only they can do is rule on how the law is written.

if there is something missing from the law then to bad for them. the ruling should be consistent.

 

[JasperL]

Can you backup your assertion that courts and the Obama Admin interpreted Title VII that way?

Sure: https://www.washingtonpost.com/news...er-sexual-orientation/?utm_term=.5d21598b4bbc

The amicus brief filed Wednesday with the full U.S. Court of Appeals for the 2nd Circuit in New York also runs contrary to the position of the Obama administration’s Justice Department as well as the Equal Employment Opportunity Commission.
...
The [Trump] government’s friend-of-court brief stated since Congress has not specifically incorporated sexual orientation in the law, the courts can’t on their own act to include it.

Appeals courts have disagreed on the question, meaning that it will probably have to be settled by the Supreme Court, which has not weighed in squarely on it.
...
Lawyers for LGBT people took it from there, arguing that discrimination on the basis of sexual orientation was, at bottom, a form of stereotyping.

It reflected judgments about how men and women should dress and behave, with whom they should have sex, whether they should or shouldn’t wear makeup, and so forth.

The EEOC and several lower courts accepted that interpretation while other courts, including the 2nd Circuit, have rejected it.

 

[JasperL]

courts do not have the power to change or make law.
separation of powers. the only they can do is rule on how the law is written.

if there is something missing from the law then to bad for them. the ruling should be consistent.

Thanks for the analysis, but I think I'll let the courts make the final decision, and I'm sure the ruling will be based on the law as written.

 

[ludin]

Thanks for the analysis, but I think I'll let the courts make the final decision, and I'm sure the ruling will be based on the law as written.

if there is nothing in there that contains sexual orientation then well there you have it it will be based on the rule as written.
if they want the law changed then they will need to actually get congress to pass a law that amends the exist one.

 

[NotreDame]

Some courts have interpreted the law that it does, and that's how the Obama administration interpreted the law, so that's not actually correct. The lawsuit and the hearing before the 2nd Circuit, then possibly the SC, are intended to settle the issue.

Well, deference to a court is anticipated but while a court ruling is law, a court ruling is not the equivalent of the court correctly interpreting a statute. Your reply above assumes since the court ruled the statute says X, then the statute correctly says X. But this is not necessarily a true assumption. Whether the statute indeed says X is controlled by the text of the statute, and other factors.

 

[NotreDame]

Thanks for the analysis, but I think I'll let the courts make the final decision, and I'm sure the ruling will be based on the law as written.

Really? The courts can make mistakes. The courts can misinterpret a statute. The courts can made an erroneous "final decision." Just as a court interpreting the free speech clause of the 1st Amendment to no longer protect any speech would be a "final decision" but an incorrect decision misinterpreting the "law as written," so may court's also, and have, misinterpreted the text of statutes.

It is the text of the statute, and other factors, that should be used to evaluate whether a court's interpretation of the statute is correct. What a statute says isn't determined by what a court rules, certainly the court ruling is law, but the legal ruling is not the equivalent of accurately and correctly determining what the statute does say.

 

[volsrock]

Some courts have interpreted the law that it does, and that's how the Obama administration interpreted the law, so that's not actually correct. The lawsuit and the hearing before the 2nd Circuit, then possibly the SC, are intended to settle the issue.

Seventh Circuit Says Title VII Does Not Protect Against Discrimination Based on Sexual Orientation

Seventh Circuit Says Title VII Does Not Protect Against Discrimination Based on Sexual Orientation | Parker Poe



11th Circuit: Title VII Does Not Cover Sexual Orientation Discrimination

https://www.newyorkemploymentattorn...-cover-sexual-orientation-discrimination.html

 

[JasperL]

if there is nothing in there that contains sexual orientation then well there you have it it will be based on the rule as written.
if they want the law changed then they will need to actually get congress to pass a law that amends the exist one.

OK, you should file your own amicus brief I guess.

 

[volsrock]

2nd Circuit Court says Title VII doesn't cover sexual orientation bias

2nd Circuit Court says Title VII doesn't cover sexual orientation bias | HR Dive

 

[ludin]

OK, you should file your own amicus brief I guess.

thanks for confirming i was correct.

 

[JasperL]

Well, deference to a court is anticipated but while a court ruling is law, a court ruling is not the equivalent of the court correctly interpreting a statute. Your reply above assumes since the court ruled the statute says X, then the statute correctly says X. But this is not necessarily a true assumption. Whether the statute indeed says X is controlled by the text of the statute, and other factors.

Not really what I'm assuming. What I said was the lawsuit at the 2nd Circuit and a possible appeal to the SC will settle the issue, not that it is already settled law. My assumption is the law is unclear and therefore requires courts to clarify the issue.

 

[beefheart]

Hooters wont hire me to wait tables because Im a man!

NFL wont hire 300 lb Cheerleaders

Congressional Black Caucus wont let whites join and now the Army wont let Trans join

Army wont hire me because Im 54

Local Police Dept wont hire me because Im 54

With regards to Hooters, cheerleaders and all that...that is a Bona Fide Occupational Qualification, pretty rare. The usual example for that would be if someone was casting for a play about George Washington and an African American actor complained that he didn't get the lead role. Fairly simple and accepted concept in the work place

 

[NotreDame]

Not really what I'm assuming. What I said was the lawsuit at the 2nd Circuit and a possible appeal to the SC will settle the issue, not that it is already settled law. My assumption is the law is unclear and therefore requires courts to clarify the issue.

My assumption is the law is unclear and therefore requires courts to clarify the issue.

Have you read the statute? Have you taken into consideration the historical context in which the law was passed? Have you looked up the meaning of the word "sex" as the word was defined at the time of passage of the law? The statute isn't "unclear." The statute does not include sexual orientation. The historical context in which the law was passed supports the conclusion the law does not include sexual orientation. The meaning of the word "sex" at the time the statute was passed did not include sexual orientation.

The courts are misinterpreting the statute. For instance, the 7th Circuit decision Title VII includes sexual orientation includes a concurrence by Judge Posner and in his concurrence he does not attempt to obfuscate the court's incorrect interpretation of the statute. Rather, Judge Posner explicitly concedes Title VII does not include sexual orientation, that the majority decision was wrong for interpreting the statute to say something the statute clearly does not say, but justified the outcome under the rationale the judiciary has the power to update statutes.

First, Judge Posner makes argument the historical context in which the statute was passed did not include sexual orientation.

It is well-nigh certain that homosexuality, male or female, did not figure in the minds of the legislators who enacted [**32] Title VII. I had graduated from law school two years before the law was enacted. Had I been asked then whether I had ever met a male homosexual, I would have answered: probably not; had I been asked whether I had ever met a lesbian I would have answered "only in the pages of À la recherche du temps perdu." Homosexuality was almost invisible in the 1960s..."Sex" in 1964 meant gender, not sexual orientation​

Posner also explicitly states the statute does not include sexual orientation.

Title VII does not mention discrimination on the basis of sexual orientation, and so an explanation is needed for how 53 years later the meaning of the statute has changed and the word "sex" in it now connotes both gender and sexual orientation..."Sex" in 1964 meant gender, not sexual orientation
​

But he justifies including sexual orientation into the statute, although the statute didn't include sexual orientation, by asserting the judiciary can "update" the law.

call it judicial interpretive updating​

He is correct in stating the statute did not include sexual orientation. The historical context in which the statute was passed and the meaning of the word "sex" at the time the statute became law did not include sexual orientation.

The 7th Circuit Court of Appeals, and other appellate courts, should they decide Title VII includes sexual orientation, are, as Judge Posner noted, "updating" the statute.

But the judiciary does not have the authority to "update" statutes. The judiciary does not have the authority to conclude a statute has a particular meaning in which text of the statute does not support. It is solely and exclusively the authority of the legislative branch to "update" statutes.

Judge Posner had the temerity to accurately call em as he sees em, the judiciary is "updating," as opposed to the ruse by the majority that their interpretation is actually supported and consistent with the statute. Judge Posner admits the interpretation is not supported or consistent with the text of the statute but justifies the outcome because the judiciary must "update" the statute.

 

[JasperL]

Have you read the statute? Have you taken into consideration the historical context in which the law was passed? Have you looked up the meaning of the word "sex" as the word was defined at the time of passage of the law? The statute isn't "unclear." The statute does not include sexual orientation. The historical context in which the law was passed supports the conclusion the law does not include sexual orientation. The meaning of the word "sex" at the time the statute was passed did not include sexual orientation.

The courts are misinterpreting the statute. For instance, the 7th Circuit decision Title VII includes sexual orientation includes a concurrence by Judge Posner and in his concurrence he does not attempt to obfuscate the court's incorrect interpretation of the statute. Rather, Judge Posner explicitly concedes Title VII does not include sexual orientation, that the majority decision was wrong for interpreting the statute to say something the statute clearly does not say, but justified the outcome under the rationale the judiciary has the power to update statutes.

First, Judge Posner makes argument the historical context in which the statute was passed did not include sexual orientation.

It is well-nigh certain that homosexuality, male or female, did not figure in the minds of the legislators who enacted [**32] Title VII. I had graduated from law school two years before the law was enacted. Had I been asked then whether I had ever met a male homosexual, I would have answered: probably not; had I been asked whether I had ever met a lesbian I would have answered "only in the pages of À la recherche du temps perdu." Homosexuality was almost invisible in the 1960s..."Sex" in 1964 meant gender, not sexual orientation​

Posner also explicitly states the statute does not include sexual orientation.

Title VII does not mention discrimination on the basis of sexual orientation, and so an explanation is needed for how 53 years later the meaning of the statute has changed and the word "sex" in it now connotes both gender and sexual orientation..."Sex" in 1964 meant gender, not sexual orientation
​

But he justifies including sexual orientation into the statute, although the statute didn't include sexual orientation, by asserting the judiciary can "update" the law.

call it judicial interpretive updating​

He is correct in stating the statute did not include sexual orientation. The historical context in which the statute was passed and the meaning of the word "sex" at the time the statute became law did not include sexual orientation.

The 7th Circuit Court of Appeals, and other appellate courts, should they decide Title VII includes sexual orientation, are, as Judge Posner noted, "updating" the statute.

But the judiciary does not have the authority to "update" statutes. The judiciary does not have the authority to conclude a statute has a particular meaning in which text of the statute does not support. It is solely and exclusively the authority of the legislative branch to "update" statutes.

Judge Posner had the temerity to accurately call em as he sees em, the judiciary is "updating," as opposed to the ruse by the majority that their interpretation is actually supported and consistent with the statute. Judge Posner admits the interpretation is not supported or consistent with the text of the statute but justifies the outcome because the judiciary must "update" the statute.

OK, but the issue is before the appeals court presumably because the issue needs clarification. If not, if the law was clear and the courts and feds interpreting the law consistent with your interpretation of the statute, why accept the case and waste the time of the very busy appeals court? In fact as you must know, the EEOC is not interpreting the law as you suggest, and there is some conflict in the courts, which is why it's going to the appeals court and perhaps the SC. I'm just pointing out what IS, not taking a position on the law.

And as to the general statement you're making, I'm not all that persuaded by it. Seems these kinds of arguments come out when it suits the outcome people prefer and are ignored if not. Just for example, there is nothing in the statute or the Constitution that I know that prohibits the Feds from setting the conditions for government programs, but the conservatives on the USSC invented one from whole cloth to strike down the Medicaid expansion, with cheers from originalists and legal conservatives, and it's because they liked the outcome.

 

[NotreDame]

OK, but the issue is before the appeals court presumably because the issue needs clarification. If not, if the law was clear and the courts and feds interpreting the law consistent with your interpretation of the statute, why accept the case and waste the time of the very busy appeals court? In fact as you must know, the EEOC is not interpreting the law as you suggest, and there is some conflict in the courts, which is why it's going to the appeals court and perhaps the SC. I'm just pointing out what IS, not taking a position on the law.

And as to the general statement you're making, I'm not all that persuaded by it. Seems these kinds of arguments come out when it suits the outcome people prefer and are ignored if not.

If not, if the law was clear and the courts and feds interpreting the law consistent with your interpretation of the statute, why accept the case and waste the time of the very busy appeals court?

Accept the case? You are aware of the fact that when a federal district court has made a final determination of the case on the merits (finality) and the district court's ruling is appealed to a federal circuit court of appeals, then the federal appellate court must accept the appeal. So, the acceptance of the appeal does not reveal anything as to whether the statute is clear or ambiguous.

In fact as you must know, the EEOC is not interpreting the law as you suggest, and there is some conflict in the courts, which is why it's going to the appeals court and perhaps the SC. I'm just pointing out what IS, not taking a position on the law.

Fortunately, I can read the statute, I can comprehend the meaning of the words used in the statute, I can discover the meaning of the words as they existed at the time the statute was written and subsequently passed. I can discern the historical context in which the statute was conceived, all of which permits me to confidently say the EEOC's interpretation is erroneous. It is facts, in conjunction with sound reasoning, which determine whether an interpretation of a law or statute is correct. Telling me someone has a contrarian opinion is nothing more than to illuminate the obvious, which is someone has an opinion opposite to my own.

And as to the general statement you're making, I'm not all that persuaded by it. Seems these kinds of arguments come out when it suits the outcome people prefer and are ignored if not

Your response above isn't not a rational rebuttal. You attempt to weaken my argument by suggesting some ulterior motive on my behalf. Speculating as to the reasons for my position isn't and never will be a persuasive refutation of what I have said. Second, the existence of an ulterior motive does not diminish the veracity of a claim. To successfully assail the veracity of a claim requires a counterargument that focuses upon the weaknesses of the facts and/or reasoning of the argument while at times also supplying contrary facts and a contrary claim based upon reasoning.

for example, there is nothing in the statute or the Constitution that I know that prohibits the Feds from setting the conditions for government programs, but the conservatives on the USSC invented one from whole cloth to strike down the Medicaid expansion, with cheers from originalists and legal conservatives, and it's because they liked the outcome

I have no idea what you are referencing and I could not care less. You can dispense with the digression above as it is not germane to the topic.