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The employer hosts an office holiday party and invites employees to bring their spouses. A model employee arrives and introduces a manager to Susan, the employee’s wife. Will that employee is fired? If the policy works as the employer intends, the answer depends entirely on whether the model employee is a man or an LGBT Liberty Guns Beer Trump Shirt woman. To be sure, that employer’s ultimate goal might be to discriminate on the basis of sexual orientation. But to achieve that purpose the employer must, along the way, intentionally treat an employee worse based in part on that individual’s sex.
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Gorsuch is a strict textualist. The Civil Rights Act states that you cannot discriminate based on sex, but nothing about sexuality. I think his argument is the only logical way one could conclude that the Civil Rights Act’s protections extend to LGBTQ+ individuals based on the text alone. In an ideal world, Congress would have just passed an LGBT Liberty Guns Beer Trump Shirt law extending these protections a long time ago. There was a story a while ago about a boarding school in England with a strict dress code of pants or skirts. Can’t find the exact article now, but there’s a bunch of similar stories and different ways schools have ruled. The employer hosts an office holiday party and invites employees to bring their spouses.
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Realistically he seems like the ideal kind of justice if our country was running as it should. He’s not gonna stretch the letter of the law to a significant degree which makes sense – we voted for politicians who put those laws in place and the LGBT Liberty Guns Beer Trump Shirt court should just be there to ensure they are followed as intended. We don’t live in an ideal world and sometimes a liberal court decision can be nice to help fix a problem (hello Roe v. Wade), but I’m not gonna complain unless it feels like justice is taking liberties with the law in a way that hurts people.
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