The Supreme Court recently decided an employment discrimination case based on the meaning of the word “sex” (Bostock, 2020). Title VII of the Civil Rights Act of 1964 “prohibits employment discrimination based on race, color, religion, sex and national origin.” The Supreme Court combined three cases into a single opinion because of their similarity. All three cases involved employees being discharged because of their being homosexual in two cases and transgender in the third. The defendants in all three cases claimed the word “sex” means only male or female and not separate gender identities of either sex. The employers further claimed the word “sex” meant the dictionary-meaning of the word, and no dictionary elaborated beyond male and female in 1964. These three cases and seven others were previously appealed to their respective circuit courts, and from there appealed to the Supreme Court for ultimate adjudication. All of the decisions in the ten cases were in favor of defendants. The basis for all decisions was in each instance, as stated above, that “sex” did not include any further attributes and that discrimination at the time meant only unequal treatment vis-à-vis males and females. It seems striking that plaintiffs did not alter their cases as the string of defeats kept mounting over the years. What was their alternative? My opinion is it has been in broad daylight since 1776 in the second paragraph of the Declaration of Independence. It is a self-evident truth that, “All men are created equal” in their rights. This informs the Constitution, as the Framers unanimously believed the claim expressed in the Declaration was true. The Constitution and Bill of RightsAmendments express many rights, but not all of them. For that reason, Amendment No. IX states, “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” This solidly incorporates equality of rights among all persons.
The Bostock decision was written by Justice Gorsuch, and joined by five other justices for a 6-3 majority. The opinion is not as satisfying as I would have liked, but there are good reasons Justice Gorsuch had to apply a lot of reasoning for his explication. It was correctly reached, and in fact no other approach to legal reasoning was available. Plaintiffs’ lawyers did not present to the Supreme Court that plaintiff’s case should be decided on Constitutional terms; Plaintiff’s lawyers have to make this case to the court, and only on that condition can this reason become persuasive. American jurisprudence does not permit a judge or justice to bring his own legal theory and apply it to the opinion. Such a judicial act would be beyond the judge’s role, which is more like “an umpire to call balls and strikes, but not to be a part of the game” [Chief Justice John Roberts in his Senate Confirmation Hearing]. What Gorsuch did is appropriate; he based his decision on the statute and gave correct meaning to it with persuasive logic.
Plaintiffs’ pleading the Bill of Rights will not be appropriate to every instance, but it should make fast work of those discriminations as clear as in the Bostock cases; all three defendants acknowledged they fired plaintiffs for the alleged reasons. An entirely different example is the following. Asian applicants have claimed for decades they are being discriminated against when applying for admittance to certain elite universities. No doubt more could be said about this example, but does any of it change what the Constitution requires?
The people (as in “we the people”) expect governments to better protect our unalienable rights; too many times it is the government which sponsors the opposite and takes away rights. When the government protects the rights of the people, the result is the people have liberty. The purpose for this essay is to inform the general public about the history of the United States, the Declaration and Constitution. Their lack of awareness and knowledge permits our representatives in Congress and the Presidency to be the primary source of our discontent. I would add, those who teach the law leave a lot to be desired as well.
Publiustoo.com August 22, 2020
