Sex and the Supreme Court | Center for Equal Opportunity

The Supreme Court recently agreed to review cases presenting the questions whether sexual orientation and transgender status are “sex” within the meaning of Title VII of the 1964 Civil Rights Act — that is, whether the prohibition in federal employment law against discrimination on the basis of sex includes bans on sexual-orientation and transgender-status discrimination.

The answer, of course, is no: When Congress wrote in 1964 that employers may not discriminate on the basis of sex, they meant — those words meant — that employers could not treat men and women differently, and nobody would have thought that the word “sex” meant sexual orientation or transgender status.

The cases under review reminded me of two posts that I made on National Review Online at the time the Supreme Court was considering whether the Constitution requires states to recognize same-sex marriages. Those posts make points that I think are still salient, so here they are.

It Ain’t In There – From this news story on the oral arguments today about same-sex marriage before the Supreme Court:

“If Sue loves Joe and Tom loves Joe, Sue can marry Joe but Tom cannot,” [Chief Justice] Roberts said. “Why isn’t that a straightforward case of sexual discrimination?”

This argument is commonly made but I can’t believe the chief justice really finds it persuasive. If blacks cannot marry whites and vice versa, that’s clearly a racist law, aimed at blacks. If men can’t marry men and women can’t marry women, is it seriously suggested that this law is sexist? Of course it isn’t; it’s a statement against same-sex marriage all right, but it’s not a statement against men or women. Anti-miscegenation laws were about racial discrimination; laws against same-sex marriage deny nothing because of sex, but because of sexual orientation.

When I was little my grandfather told me a story about an old surveyor who was training a young one. The young one did the mathematical calculations, set up the tripod with the scope carefully set, and then said it was good to go. The old surveyor walked over, quickly squinted through the scope, and said, “Nope, that ain’t right.” The young surveyor protested that he had checked and double-checked the calculations, but the old man replied, “Son, once you make the calculations, look through the scope. If it don’t look right, it ain’t right.” Sure enough, it turned out the young surveyor had misplaced a decimal point.

And my point is that, if you have a constitutional theory that says the Constitution contains a requirement that the government must allow men to marry each other and women to marry each other, then there’s something wrong with your constitutional theory. It ain’t in there.

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Following up on my earlier post here, it occurs to me that perhaps the basic flaw in the argument — that a ban on same-sex marriage is sex discrimination because Jill can marry John but Bill can’t — is that it assumes that if a law considers sex then it must be sex discrimination. But this is not so if the reason sex is looked at is only because it is essential to make some other classification that is not about what sex someone is. Sometimes you have to look at a characteristic in order to make a classification that is really not about that characteristic, but about something quite distinct from it.

Thus: You have to look at whether two people are male or female to see if their relationship is heterosexual or homosexual, but that doesn’t mean that the male-female distinction is the same as the heterosexual-homosexual distinction.

And maybe this analogy would be useful: Suppose that a company announces that it will start giving each employee a $100 gift certificate on his or her birthday. The new policy is immediately challenged by a cranky employee on the grounds that it is age discrimination. “If I were few months younger, I would get a gift certificate today,” he cries. “O woe is me!”

Well, yes, maybe in a sense this is “age discrimination,” just as in a sense maybe a ban on gay marriage is “sex discrimination.” But not really, or at least not in the way that “age discrimination” and “sex discrimination” are generally understood.

Yes, you have to look at an individual’s date of birth to determine if it is his birthday, and you have to look at an individual’s date of birth if you are engaging in age discrimination. Likewise, you have to look at an individual’s sex to see if that individual’s marriage to a male would result in a same-sex marriage, and you have to look at an individual’s sex if you are engaging in sex discrimination. But giving someone a birthday gift is not really age discrimination, and banning same-sex marriage is not really sex discrimination. It’s not just that you have a different reason for looking at the birth date and sex in the two different instances, but that you are looking at it to make a different sort of classification — one that is not about sex in one case, and one that is not about age in the other.

I might call the sex-discrimination argument that my opponents are making a semantic sleight-of-hand, but I’m willing to be a little more charitable than that. John Derbyshire once wrote in these pages that “legal logic is a special kind of logic, that doesn’t yield easily to syllogistic analysis.” He was right (about that). Better, Robert Bork once began a lecture at the American Enterprise Institute with this story:

It is said that, at a dinner given in his honor, the English jurist Baron Parke was asked what gave him the greatest pleasure in the law. He answered that his greatest joy was to write a “strong opinion.” Asked what that might be, the baron said, “It is an opinion in which, by reasoning with strictly legal concepts, I arrive at a result no layman could conceivably have anticipated.”
Here’s hoping no justice will write an opinion here that would make Baron Parke proud.

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Trump’s Bad Tweet – Recently President Trump tweeted, “Anyone associated with the 1994 Crime Bill will not have a chance of being elected. In particular, African Americans will not be able to vote for you.” This plays into the hands of those on the Left who bemoan a supposedly racist criminal justice system that it claims has caused “mass incarceration,” and the tweet uses the Left’s sleazy identity politics in saying that African–Americans have to vote against anyone (here, Joe Biden) who supported a legitimate anticrime bill. Sad!

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Finally, I appeared recently on the Chad Hasty radio show in Lubbock, Texas, to talk about the Center for Equal Opportunity’s successful efforts to get Texas Tech, located there, to end its use of racial and ethnic preferences in admissions. You can listen to my segment here.

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