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Monday, June 15, 2020

Two Brief Thoughts on Bostock

Whenever the Court next cites Obergefell, I wonder if that case will be reclassified as a sex discrimination case. Such an explanation (as many said when the case was argued) makes more sense than the rationale that Justice Kennedy gave.

My other observation is that the stakes for the ERA are now higher. If Congress ever decides to repeal the expired ratification deadline and declare the ERA part of the Constitution, that amendment could well read as prohibiting discrimination on the basis of sexual orientation or transgender status. 

Posted by Gerard Magliocca on June 15, 2020 at 08:03 PM | Permalink


The sex orientation argument fit with the arguments made by the parties, precedent (few judges used sex discrimination) and separation of sex orientation in civil rights law even when (as is) it very well also was sex discrimination. It also was how the general public saw it.

Sex discrimination in the marriage cases was a clean way to do it and very logical on some level. But, not sure how much "more sense" it really made.

I do think the last point is true enough though we are back to determining what the constitutional law is even without the ERA. The reference in Gorsuch's opinion to the ERA ratification debates in the 1970s stood out to me. How do you interpret "original meaning" for an amendment that was ratified over a 40 year span?

Anyway, three states for and three states against (IIRC) have litigation pending regarding the ERA, one side wants it made clear that it could not be accepted, the other that it should be. The author of this piece has written a lot about the ERA amendment process on multiple blogs.

Posted by: Joe | Jun 16, 2020 10:01:24 AM

Important issue. I don't see great issue here or real connection with the ERA. For the latter, doesn't solve the problem. It does propose the following, I quote relevant parts:

"Proposing an amendment to the Constitution of the United
States relative to equal rights for men and women."


‘‘SECTION 1. Women shall have equal rights in the United States and every place subject to its jurisdiction. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.

End of quotation:

So, it does offer, equal rights for women, and no discrimination on account of sex. But, the current case in the Supreme court, has dealt with transgenders and homosexuals, and whether the term "sex" is to be implied on them equally.

So, unless the Congress would clearly define the scope of "sex" so, it would include whatever: homosexuals, and transgenders etc....the Q is back to the issue.

And again, here we have considered conservative judge (Gorsuch) appointed by Trump, and ruling, as democrat ( it is ridiculous even to write it) while kavanaugh, also considered conservative, also appointed by Trump, took the opposite stance. Baseless simply.

And anyway, it was alleged by employers in that case, that, firing those employees, hadn't been solely because of their sexual status, but, for the court, the very existence of that reason, even if residing among others, was sufficient for defining it, as discrimination.

Here to the Ruling:



Posted by: El roam | Jun 16, 2020 4:53:26 AM

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