A Close Argument Against Bostock

[Moral Orel]

I think we covered it. The analogy applies in this case, but not universally. As I pointed out to Hedrick, this is probably the reason why the Court didn't use your preferred analogy.

Hey, I'm losing our other argument, so let's focus on how I'm winning this one, k?

If discrimination because of interracial relationships is discrimination based on race, and discrimination because of same-sex relationships is discrimination based on sex, what is the reasoning if not "but-for" reasoning?

 

[zippy2006]

Hey, I'm losing our other argument, so let's focus on how I'm winning this one, k?

Okay.

If discrimination because of interracial relationships is discrimination based on race, and discrimination because of same-sex relationships is discrimination based on sex, what is the reasoning if not "but-for" reasoning?

Can you clarify? I don't grant that discrimination because of orientation is based on sex. Are you asking how I would oppose racial discrimination without but-for analysis?

 

[Moral Orel]

Can you clarify? I don't grant that discrimination because of orientation is based on sex. Are you asking how I would oppose racial discrimination without but-for analysis?

You said my analogy works in this case, so I must have shown that it is discrimination based on sex, but you're saying it isn't but-for reasoning. So what is the reasoning? I thought I was demonstrating but-for reasoning.

But okay, how would you oppose discrimination based on interracial relationships without but-for analysis?

 

[zippy2006]

You said my analogy works in this case, so I must have shown that it is discrimination based on sex,...

I admit that this is a tricky issue, but these are the analogies that I think work for race with respect to employment:

Black : White :: Homosexual : Heterosexual

Black : White :: Transgender : Cisgender

Black : White :: Woman : Man (Generally speaking, for there are more legitimate employment related distinctions based on sex than on race, but in general men and women should be treated equally with respect to employment. The Court didn't use this analogy because it limps too much.)

But I still don't think that discrimination based on orientation or identity is discrimination based on sex.

...but you're saying it isn't but-for reasoning. So what is the reasoning? I thought I was demonstrating but-for reasoning.

Meh, my OP was probably far too nuanced. Maybe that's why no one replied, but I'm glad you did.

I think but-for-race reasoning works to prohibit discrimination on the basis of race; I think but-for-sex reasoning works to prohibit discrimination on the basis of sex; I think but-for-orientation reasoning works to prohibit discrimination on the basis of orientation; and I think but-for-identity reasoning works to prohibit discrimination on the basis of identity. I don't think but-for-sex reasoning works to prohibit discrimination on the basis of orientation or identity, and I don't think discrimination on the basis of orientation and identity is discrimination on the basis of sex.

My OP is about whether but-for-sex reasoning works to prohibit discrimination on the basis of orientation and identity. It is uncontroversial that but-for-orientation or but-for-identity reasoning would prohibit discrimination on the basis of those categories.

But okay, how would you oppose discrimination based on interracial relationships without but-for analysis?

I think the basic concept of but-for reasoning to identify discrimination is sound even if the legal application is mired with difficult questions. I'm happy with but-for reasoning for identifying racial discrimination.

At the heart of such issues are three simple questions: 1) Is discrimination occurring? 2) If so, what kind of discrimination is occurring? 3) Is that kind of discrimination illegal? Bostock fudged (2) in order to be able to give an affirmative answer to (3) due to the fact that discrimination based on orientation and identity aren't currently illegal.

 

[Moral Orel]

I think the basic concept of but-for reasoning to identify discrimination is sound even if the legal application is mired with difficult questions. I'm happy with but-for reasoning for identifying racial discrimination.

A man being attracted to a man is a sexual orientation, so a black man being attracted to a white woman is a racial orientation. If I fire a black man for dating a white woman, I didn't fire him because of his race, I fired him because of his orientation. Did I break the law and why?

 

[zippy2006]

A man being attracted to a man is a sexual orientation, so a black man being attracted to a white woman is a racial orientation. If I fire a black man for dating a white woman, I didn't fire him because of his race, I fired him because of his orientation. Did I break the law and why?

Even if there is anti-miscegenation that is not racist, the laws prohibit both racism and anti-miscegenation. Non-racist anti-miscegenation is still illegal in the U.S. even though it has probably never been present. Theoretically you could oppose miscegenation without being racist, and in that case a but-for-race analysis would also incorrectly diagnose the issue.

A but-for test always establishes distinction but does not always establish discrimination. Maybe that is the main problem. For example, the non-racist anti-miscegenist is making a distinction based on race but they are not discriminating based on race. That's just because our use of the word "discrimination" has become negative. You could also say they are discriminating but not 'discriminating' in that they are using discrimination to distinguish races but not playing any favorites.

(In earlier posts I have given more attention to the differences between sex and race; no need to do it again)

 

[Moral Orel]

Even if there is anti-miscegenation that is not racist, the laws prohibit both racism and anti-miscegenation. Non-racist anti-miscegenation is still illegal in the U.S. even though it has probably never been present. Theoretically you could oppose miscegenation without being racist, and in that case a but-for-race analysis would also incorrectly diagnose the issue.

A but-for test always establishes distinction but does not always establish discrimination. Maybe that is the main problem. For example, the non-racist anti-miscegenist is making a distinction based on race but they are not discriminating based on race. That's just because our use of the word "discrimination" has become negative. You could also say they are discriminating but not 'discriminating' in that they are using discrimination to distinguish races but not playing any favorites.

(In earlier posts I have given more attention to the differences between sex and race; no need to do it again)

It may just be that I'm ignorant of a law about discrimination based on anti-miscegenation. Is there one? I honestly just assumed it was illegal because of the way the civil rights act was interpreted. Is that not the case?

 

[zippy2006]

It may just be that I'm ignorant of a law about discrimination based on anti-miscegenation. Is there one? I honestly just assumed it was illegal because of the way the civil rights act was interpreted. Is that not the case?

You would have to dig into Loving v. Virginia, which Hedrick brought up and which struck down anti-miscegenation laws. You may be right.

 

[zippy2006]

Bostock is the wildcard in United States v. Skrmetti.

 

[hedrick]

I'm not convinced that Bostock is going to stand. The current court doesn't seem to be willing to enforce any freedoms not explicitly written in the Constitution. (Of course the Constitution itself doesn't support this.) There was a whole series of decisions on laws about sexual behavior, against adultery, against homosexuality, contraception, etc, that are based on arguments that I don't think the Court currently accepts. It's quite possible that all the old moral laws could come back.

 

[zippy2006]

I'm not convinced that Bostock is going to stand.

I hope not. It conflates sex-based discrimination with other forms of discrimination.

The current court doesn't seem to be willing to enforce any freedoms not explicitly written in the Constitution.

Bostock interprets Title VII, not the Constitution or the Bill of Rights or nebulous "freedoms."