Read the series.
The most important thing to know about Bostock is that it demonstrates the pillars of Western society no longer have anything anchoring them to reality. When your way of interpreting the world isn’t tied to a real, concrete revelation that explains reality, then you slowly drift away from the shore into madness.
Think of revelation as the eyeglasses that allow you to see the world and understand it. Now, think of the shoreline as reality. Then, think of that line holding your boat fast to the dock as the lifeline that connects you to reality.
In the West, we have cut the line and smashed the eyeglasses. We’re drifting away from the shore. At first, our boat bobbed aimlessly pretty close to the dock. That went on for several decades. But, we’ve now edged ever further away and the current has us. The dock is gone. The shoreline is gone.
We’re in the open sea. We’re done.
That’s what Bostock shows us. This Court decision is that last speck of land fading from sight as the horizon flattens into nothingness. It’s when we realize that this is really happening. We really are alone.
Let me explain.
You’ll recall, from the last article, that Bostock’s attorney at oral arguments made the case that Title VII includes discrimination “because of … sexual orientation” because Clayton County, by terminating Bostock allegedly because he was a homosexual, was penalizing him for not fulfilling stereotypes about what it means to be a man.
Justice Ginsburg knows the framers of Title VII did not understand “sex” to include “sexual orientation.”
Ms. Karlan -Ms. Karlan, how do you answer the argument that back in 1964, this could not have been in Congress’s mind because in –in many states male same-sex relations was a criminal offense; the American Psychiatric Association labeled homosexuality a –a mental illness?Transcript of oral arguments; 6:13-19
Bostock’s attorney, Pamela Karlan (“Attorney Karlan”), pivoted to precedent; particularly Price Waterhouse v. Hopkins (see the last article for context). The Court has already expanded “sex” to include sexual harassment. It’s also expanded it to include discrimination for failure to live up to stereotypes about sex (Oral arguments; 6:20 – 7:10). This is what happened to Bostock, Attorney Kaplan says.
She goes further, too. She declares:
Title VII was intended to make sure that men were not disadvantaged relative to women and women were not disadvantaged relative to men.Oral arguments; 7:21-24
She frames it this way on purpose. Now, quick as you please, she makes application to her client:
And when you tell two employees who come in, both of whom tell you they married their partner Bill last weekend, when you fire the male employee who married Bill and you give the female employee who married Bill a couple of days off so she can celebrate the joyous event, that’s discrimination because of sex.Oral arguments, 7:25 – 8:6
Attorney Karlan wants to make Bostock about stereotypes. As I mentioned in the previous article, her argument goes like this:
- Men must only have sex with women.
- But, Bostock wants to have sex with men.
- This means Bostock fails to act like a man.
- Clayton County fired Bostock because he wasn’t acting like a man.
- So, Clayton County discriminated against Bostock because of sex; because he wasn’t acting as the County felt a man should act.
She’s only asking the Court, she claims, to make one more analogous extension of principle to read “sexual orientation” into “sex” in Title VII. However, as I explained in the previous article, words have meanings and discrimination “because of … sex” and “because of … sexual orientation” are completely different things.
But, even if we grant Attorney Karlan’s argument, we’re immediately confronted with a problem. With several problems:
- Who decides what a “stereotype” is?
- Who decides what is socially acceptable and what isn’t?
- And, if you don’t acknowledge an authority, a standard, a revelation that stands above our society, above our own personal preferences and opinions, then how can you possibly answer this question?
Attorney Karlan can’t answer that question. The Court asks her repeatedly. She can’t muster a coherent answer. She retreats to social customs. For example, people call her “Ms.” and assume her gender, “[b]ut that’s not discriminatory because neither of us has been subjected to a disadvantage,” (Oral arguments, 12:23-24). The key, she asserts, is that the victim must suffer an “injury,” (Oral arguments, 13:2-5).
But, who gets to determine whether an “injury” occurred? By whose standard? By the victim’s? Or, is there something objective, something concrete, something tangible that tells us what an “injury” is, so we don’t drown in subjectivism and hurt feelings?
Justice Gorsuch sees the conundrum, and asks her about it (Oral arguments, 13:12-15). Attorney Karlan again fails to answer. She explains, by way of example, that people “know” what is normal and what isn’t:
MS. KARLAN: So there’s no categorical rule about these. For example, the fact that all of the men sitting at counsel table knew that they had to wear ties today and I was free not to didn’t cause an injury. On the other hand, even the dissenters in the Second Circuit said, if the Court said women who come to argue should argue in Hooters outfits and the men should wear —
JUSTICE GORSUCH: — No —
MS. KARLAN: — ties —
JUSTICE GORSUCH: — we’re not – we’re not — I mean —
MS. KARLAN: I know.
JUSTICE GORSUCH: —we can talk absurd examples —
MS. KARLAN: No, but I can —
JUSTICE GORSUCH: —or we can talk real world examples.Oral arguments, 13:16 – 14:9
Justice Gorsuch, who appears exasperated at this point by Attorney Karlan’s deliberately absurd strawman, gets to right to it:
JUSTICE GORSUCH: All right. What I’m –what I’m suggesting, counsel, is that there are male and female bathrooms, there are dress codes that are otherwise innocuous, right, most –most people would find them innocuous.
But the affected communities will not. And they will find harm. And how does your test deal with that one way or the other? That’s what I’m asking you to address, if you’d like to.Oral arguments, 15:4-13. Emphasis added.
He gets it. How does Attorney Karlan avoid subjectivism? Where is the concrete test for “injury” in order to determine whether discrimination happened? Without it, you just have one person saying another person hurt his feelings! And, by what standard can we say, “No, that’s not good enough?”
Attorney Karlan has no answer. To be fair, no answer is possible.
MS. KARLAN: Yes. My test says that you have treated the people differently because of sex, which is what we are asking you to hold here. When you treat a gay man who wants to date a woman differently than a man –woman who wants to date a woman, that –that’s discrimination.Oral arguments, 15:14-20
Yes, but who says the discrimination happened? How do you figure out whether what the stereotype is and whether the victim was fired for not living up to it? Is there some book, manual or pamphlet; some something that tells us what men and women are? What “sex” is?
Karlan then retreats behind the “reasonable person” concept and founders on the reef under Justice Gorsuch’s questions:
MS. KARLAN: Then you get to what I’ve said, which is you have to ask whether a reasonable person under these circumstances would be injured by the imposition of the particular sex-specific world. So when the Chief Justice calls me Ms., I am not injured. When I go to a –when I —
JUSTICE GORSUCH: You are not, but another —
MS. KARLAN: It –it —
JUSTICE GORSUCH: —person might be —
MS. KARLAN: Right. And the question —
JUSTICE GORSUCH: Are they reasonable or not? And –and I’m –I’m –I’m just -I’m wondering, how do you decide those cases?
MS. KARLAN: An idiosyncratic preference does not void an otherwise valid dress code or bathroom rule.Oral arguments, 15:21 – 16:13
This is amazing. She doesn’t see it. Do you see it? Read it again.
How do you determine whether a “reasonable person” would be injured by the actions of the employer? By whose standard? What’s reasonable to one person might be pretty unreasonable to another. Attorney Karlan waves her hands and claims an “idiosyncratic preference” has no merit.
Again, who determine what that is? Society? 50 years ago transgenderism was more than idiosyncratic; it was perverse. Is this the route we ought to go? Whatever culture says is “good” is good? And, when culture changes than the laws need to change, too?
Attorney Karlan fares no better when Justice Sotomyor asks the same questions. I’ll quote the exchange in whole because it’s worth it:
JUSTICE SOTOMAYOR: But you’re begging Justice Gorsuch’s question. We were following up on the same thing —
MS. KARLAN: I truly am not trying to —
JUSTICE SOTOMAYOR: —which is —
MS. KARLAN: —beg the question.
JUSTICE SOTOMAYOR: —how do we differentiate the two? What is the legal test that you propose to say this is discrimination because of sex, as you said, calling you one thing and your friend another is discriminatory, but it’s okay because there’s no harm. So what’s the test we apply to, say, when it is harm and when it isn’t?
MS. KARLAN: Let –let me try to be clear.
JUSTICE SOTOMAYOR: Let’s be —
MS. KARLAN: It’s not discrimination to call me Ms. Karlan and to call Mr. Harris, Mr. Harris. It is –it is because of sex that we were treated differently.
But as this Court has made it clear several times, discrimination consists in an injury that the law is prepared to recognize. And generally across all statutes, this isn’t a Title VII, and this is why I’m really not begging the question here, the Court has said de minimis effects are exempted from statutes presumptively. So if this Court thinks or if another court —
JUSTICE SOTOMAYOR: So why —
MS. KARLAN: —thinks —
JUSTICE SOTOMAYOR: —is a dress code for Hooters that requires all women to wear a scantily –a scant dress, is that discriminatory?
MS. KARLAN: Yes, it is.
JUSTICE SOTOMAYOR: Is it discriminatory for the woman who just doesn’t want to wear it because it’s demeaning?
MS. KARLAN: Yes, it is.
JUSTICE SOTOMAYOR: So how about, is it discriminatory for the restaurant not to hire a transgender man who wants to wear the uniform?
MS. KARLAN: Well, you’re going to get —
JUSTICE SOTOMAYOR: The scant uniform.
MS. KARLAN: I –I mean, I do want to get to the question of sexual orientation
JUSTICE SOTOMAYOR: No, no, no —
MS. KARLAN: –here, but I understand –I understand.
JUSTICE SOTOMAYOR: But I think what you’re alluding is, and I still haven’t heard —
MS. KARLAN: Yeah.
JUSTICE SOTOMAYOR: — the explanation, which is the question of how do we tell what’s actionable and not?
MS. KARLAN: Well, if —
JUSTICE SOTOMAYOR: At what –when does that discrimination become an issue?Oral arguments, 17:15 – 20:2.
The line has been cut. The eyeglasses smashed. The boat has drifted away, been caught by the current, and has lost sight of land. Now that we’re adrift, we have nothing holding us to reality.
What is that objective standard, that anchor, that line holding us fast to the dock of reality? It’s God’s revelation to us, in the form of the Christian scriptures. Suffice it to say that morality can and will be legislated. Always has and always will be. Why else do you think it’s against the law to murder someone? The only question is which morality, and its claim for authority in our lives and in society. But, that’s an article for another time. For now, I leave you with this article outlining the Christian mission to this secular age.
In the next article, we’ll examine Justice Gorsuch’s opinion.