Friday, July 3, 2020
Lunacy and Logic. . .
The SCOTUS opinion in Bostock v. Clayton County is not only a majestic tour de force on behalf of a living document in which words that meant one thing at one time can mean something else later. No, it is also the triumph of logic, albeit flawed, in order to guarantee an outcome that fits the spirit of this age. The issue before the Court was whether Title VII of the 1964 Civil Rights Act that bars employment discrimination on the basis of sex also bars such discrimination on the basis of sexual orientation and gender identity. Few could have predicted that with a 6-3 decision the supposed conservative majority would find that the Act does indeed forbid such discrimination. By all accounts the effect will be dramatic in the hands of those who perceive a way to enlarge old legislation with new meanings to their words. But it is also sheer lunacy.
Gorsuch has tread upon the path of this lunacy in suggesting that if A=B and B=C, then A must equal C. So, in Gorsuch logic, if a man who identifies as a woman is fired for identifying as a woman, he is actually being fired for that which would be entirely acceptable IF he were a woman. And a man who has sex with men who is fired is being discriminated against for something that would be perfectly acceptable IF he were a woman. Therefore, employment decisions based on rejections of homosexuality or transgenderism fall under the 1964 Civil Rights Act and are protected. Seems reasonable and logical, right? But it is sheer lunacy!
I should not be fired for stealing, for example, if it would not be illegal for me to take what was mine IF it were mine. I should not be fired for just about any immorality clause, since, there is hardly any morality clause which could not be nullified under some delusion of the grand and great IF. I should not fired for anything at all since the fulcrum of his argument is the IF that protects everyone. What about those who identify as Black or African American? What about those who identify as white? Where is end to such lunacy? There is none.
The true lunacy is to argue with logic that leads you anywhere and that anywhere becomes nowhere. If I were among those poor and oppressed for whom the Act were written I would be rightfully offended. Unlike the modern day LBGTQ+ movement which is well funded, well served in the media, and well represented before the law, when this Act was written, there were no voices to speak or money to protect or media outcry to herald or legislating judges to act. And therein lies the true lunacy. This logic makes a mockery of protected rights and hides them behind the virtual and therefore not real illusion of how I feel, identify, or prefer in the moment. From the lines of those seeking employment to the high school athletes seeking fair competition, the lunacy of this flawed logic will be the end of more than we care to know and it will result in more unfairness and inequity than it is supposed to overcome.