Why The Supreme Court's Major LGBTQ Ruling Was so Shocking: What it Means for the Future - TLDR News

Yesterday the US supreme court made a major ruling in favour of LGBTQ+ rights. The decision was good news for activists, but it also represented a major surprise, with two conservatives justices siding with the four more liberal judges leading to a major 6-3 decision. In this video we explain what happened, the implications and why the move was such a shock.

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[JackClayton]

As an employer, I don’t care about orientation. Do your job, the rest is not my business. Resultingly, I agree with this decision.

[CH-ekbm]

I'm glad they ruled that way. The position that employers should be allowed to discriminate against workers based on any irrelevant characteristic really doesn't make any sense to me.

[heartfulcry]

not gonna lie, i can’t believe this wasn’t ruled earlier like wtf it’s 2020

[kieranburt]

Please can you make more videos on the Supreme Court Cases

[TreyHarris]

It’s important in considering this ruling not to understate its importance—it will be at least as impactful in the long run as the _Obergefell v. Hodges_ decision enshrining marriage equality, if not more so. More people are exposed to opportunities for discrimination forbidden by Title VII than have occasion to be married, far more frequently over the course of their lifetimes.

At the same time, it’s important not to misunderstand this ruling as a win for the liberal judicial concept of a “living Constitution”, or a defeat for judicial conservatism. It’s simply an orthodox application of one flavor of conservative judicial thought—one that, earnestly and honestly applied, happens to result in a ruling that goes directly against core political beliefs of the Republican Party.

Justice Neil Gorsuch is, and has long been, one of the foremost proponents of textualism (his book published in the past year, _A Republic, If You Can Keep It_, was largely on the precepts of textualism). This is the idea that in U.S. Constitutional and statutory law (as opposed to the unwritten English Common Law), one must find interpretation of the meaning of the law in the written word of the law, not by attempting to imagine or mind-read the intentions of the legislators.

In the past year, Rutgers University professor Katie Eyer published a law article that persuasively—and, ultimately, influentially, as it was quoted and referred to in Gorsuch’s opinion—argued that any reasonably textualist reading of Title VII protections from discrimination on the basis of sex *must* hold that these protections extend to sexual orientation and gender identity.

As Gorsuch wrote in his opinion, a person cannot be treated differently by their employer based on their sex. So discrimination against a gay man shows different treatment based on their attraction for men than the employer’s treatment of a straight woman in the same circumstances. The sex of the worker is the defining difference, so discrimination on sexual orientation is sex discrimination.

Similarly, to treat two people identifying as female differently because one was assigned male at birth and the other was not is, again, to discriminate based on sex—depending on one’s perspective, on their birth sex or on their current identity. (Title VII as passed in 1964 explicitly said that a woman cannot be discriminated against for somehow “acting like” a man, or vice versa, so questions of whether a trans identity is somehow valid or not becomes moot—it doesn’t matter to Title VII whether a trans woman “is a woman” or is “acting like a woman”—either way, if there’s discrimination, it is forbidden.)

This textualism is usually paired with another strain of conservative legal thought, “originalism”. Originalism says that laws and the Constitution are not “living documents” whose meaning changes over time; rather, interpretation should be based on the plain meaning of the law as when passed.

Usually, textualism and originalism flow together and do not conflict—both textualism and originalism would hold that a law making one particular chemical pollutant illegal cannot be enforced against a chemical unknown at the time of passage of the law by claiming that “the intent of the legislators” would clearly have also criminalized the new pollutant, had they known of it.

But here is a case where textualism and originalism are in conflict. Gorsuch himself makes quite clear that an originalist approach to Title VII would not protect LGBTQA+ people—1964 society was not there and 1964 members of Congress would surely have balked at the idea that Title VII would be applied in this way. But he further notes that sexual harassment has many times been held to be forbidden by Title VII, by the plain text of the statute—even though, in 1964, sexual harassment was not a widely-recognized behavior that Congress could have intended to prohibit.

Gorsuch decides—at least in the case of this statute—that textualism trumps originalism, and Chief Justice John Roberts concurred. (As the senior justice in the majority, Roberts had the choice of the justice to assign the opinion’s writing to, and he chose Gorsuch.) Justices Alito, Kavanaugh, and Thomas strongly dissented.

But this does not in any way imply that the Court is less conservative than it was in the past. At issue in this decision was a statute passed by Congress, Title VII of the Civil Rights Act of 1964. It is possible (and even likely) that in Constitutional rather than statutory questions, Gorsuch and/or Roberts may decide originalism trumps textualism. (There’s nothing stopping them from deciding this applies even to other statutes.)

In the realm of this opinion, the “living law” does not exist here; merely a static law being applied in a living and changing society.

[ayo]

@3:48 "What made the ruling an even landmark decision was the 6-3
rather than 5-4 margin that the court usually produces"

this is a common misconception. the plurality of Supreme Court cases are unanimous (36%). 7-2 or 8-1 decisions make up the next 15% of decisions
while the 5-4 decisions only occur 19% of the time (and it's not always the same people).

source: "Those 5-to-4 decisions on the Supreme Court? 9 to 0 is far more common." by Turberville and Marcum, Washington Post

[David_Bower]

A win is a win so we'll take it. They'll throw us a bone from time to time on social issues but whenever money's involved they always seem to side with the corporations.

[TimwiTerby]

I read the majority opinion and both dissents and I feel that you could have included more of the interesting detail. The arguments set forward by the majority opinion are very creative and the dissents are very up-in-arms. My favourites from the majority opinion were: (1) The idea that “discrimination because of sexual orientation is not motivated by discrimination because of sex” is responded to as follows: When it’s hot inside, you open a window to let cool air in; and when it’s cold inside but warm outside, you also open the window. Does this mean your opening the window was not motivated by temperature? (2) The idea that “you can know someone’s orientation without knowing their gender” is responded to by saying: Imagine an employer that has applicants tick a box saying “Are you black or a Catholic or both? [yes/no]” Now we can implement a practice where we discriminate against Catholics and POC without knowing each individual applicant’s race or religion. Clearly the practice is still illegal.

[pottingsoil]

I've lived in the US for 30+ years and have never heard of the Supreme Court... What the fuck?

[dcviper]

Not only are Gorsuch and Roberts considered conservative, they are also considered hostile to gay rights. Roberts even wrote the dissent in Obergefell.

[ThomasBomb]

Is the audio really quiet for anyone else?

[James-xgrz]

I like how this is a landmark ruling that people have been campaigning for years to get but "we'll live with it"

[matthewbrooker]

Still amazes me how much fuss it makes discussing what someone does with their consent and genitals in the privacy of their own home in the supposed 'land of the free.'
I honestly couldn't care less.

[chasewilbur]

how about everyone learns to treat everyone else better; then we wouldn't need extra steps

[benhoffman]

I'm more shocked that the US did not have sexual orientation discrimination protection in federal law until now 😢

[Lanikins]

I don't understand how it wasn't illegal before!!! American politics will forever beffudle me.

[darthcalanil]

The more I hear about the workings of the US over the past couple of years, the more I'm baffled how on earth did it become a "1st world country"

[jonathanhagler]

At 3:53 you said the court usually produces a 5-4 decision, that's incorrect. 36% of decisions are unanimous, only 19% are 5-4.

It's a common misconception that the Supreme Court is highly political and votes along political lines. Even among the 5-4 decisions, an even smaller percentage are actually according to the media emphasized conservative and liberal lines. It's incredibly common for the justices so votes with justices outside of their purported political lines.

For example, Justices Thomas and Sotomayor vote the same way the least of all other justices, and still vote the same roughly 50% of the time (as per the empirical data from SCOTUSBlog). Despite having the highest rate of disagreement between them, there was at least one case (in 2016) when the two were alone together in a 7-2 decision.

In the legal community, most were not particularly surprised by this decision, but the public and the media were surprised due to their political preoccupations.

I had thought TLDR was better than that.

[isaacleach]

Sorry, I think I might be missing something here... at 00:13 it says the title VII of the 1964 civil rights act forbids workplace discrimination on the basis of sexual orientation but at 2:03 it says it doesn't protect workers from discrimination on the basis of sexual orientation

[mattisglad]

This is actually massive how has this not been spoken about more?