I'd make three points...Prefatory, the case of so-called "hate crime" is instructive. Motive is not generally an element of an indictable crime. It is seldom -if ever- a proper part of the prosecution's or the defense's brief. It does have a cogent and obvious place in the penalty phase of a trial, after a conviction -- either as mitigation or enhancement of punishment.(True, both prosecutors and defense consul often use such when making their case to a jury... that's not important: The judge's discretion limits their excesses! Well, that's the expectation...)Codifying motive as a separable offence smacks of "thought-crime"!1. The trope of "disparate impact" is defective, in logic and in law. Statistical reasoning -as practiced- is too weak to support a charge on its own, and as such contravenes the ancient right of a defendant to know what precisely the charges are, against him!(To see how pernicious the rule of "disparate impact" can be, see Massachusetts v. EPA. It countenances the importation of the Precautionary Principle into American law!) 2. The conflation of sex and gender is uncalled for. "Sex" means physical, biological determinants, not moods or (mis)conceptions, in Title VII... Nor does it subsume "sex acts" or proclivities.3. The precidential status of dicta, properly called, needn't (I'd say shouldn't...) be elevated by judges to suit their own (or the supposed public's) understanding of changing mores: Writing law is the job of Congress.Title VII can (and perhaps should) be amended... But not by judges, who then make it the job of Congress to correct misapplication of their laws!So: Bostock was wrongly decided.
Whether the framers envisioned this particular scenario is quite irrelevant. You'd get the absurd situation that everything you can argue wasn't thought at the time of isn't covered by a piece of legislation, while you should simply interpret what the law says.
I get what you mean... But it ain't the framers (did you mean The Framers?) intent that's the problem: We're not talking about amending the constitution, per se! (see below)
One of the reasons to avoid judge-made law is simple: Consider, should (and, of course, we're always talking about a "should" in such cases) Kidnapping -a Federal Offense- admit the matter of "soul stealing" via photography into its ambit?
laws aren't written in ignorance of how courts interpret laws; quite the opposite.
A therapist asks his patient how his visit to his mother went.The patient says, "It did not go well at all. I made a terrible Freudian slip...""Really!" the therapist says. "What did you say?""What I meant to say was 'Please pass the salt.' But what I said was 'You bitch! You ruined my life!'"
But you exaggerate the meaning of "interpretation" beyond any reasonable bounds, to admit "soul stealing" into the range of reference for "kidnapping"...
Hij die opzettelijk iemand wederrechtelijk van de vrijheid berooft of beroofd houdt, wordt gestraft met gevangenisstraf van ten hoogste acht jaren of geldboete van de vijfde categorie.
He who intentionally robs or deprives a person of his liberty unlawfully will be punished with imprisonment of up to eight years or a fifth-category fine.
Would your interpretation of Freudian slip let this slide?
Broadly speaking there are three possibilities with regard to souls:
By (presumably?) opting for the first interpretation there's no value to be found in your thought experiment. It can, would, and should simply be dismissed. It would never make it to court. The only way in which your thought experiment can claim to hold any relevance is if we assume there to be a somewhat reasonable possibility that soul stealing might be kidnapping.
Perhaps it's easier to see the logic of the argument if we rephrase it slightly. Imagine a kidnapping law from 1600
There's another option that I left unstated, but an act like lobotomy could also reasonably be called stealing of the soul. To take it (somewhat) out of the domain of grievous bodily harm, we might imagine that the brain can be restored as new. A person without a well-functioning mind might be said to have their liberty taken from them. I'm not saying that's a valid legal interpretation, but you can't just summarily conclude it's not either.
But psycholinguistically (i.e., scientifically) speaking Freudian slips are a flawed explanation at best. Speech errors show something about language processing, not about underlying hidden thoughts. In that sense Freudian slips are quite similar to souls: neither exist in a relevant sense.
In the American system such a determination can't be made (except by Congress, in the process of enacting law...) before a case, a controversy, is brought to the court. Our judges have no power to propound such questions, let alone answer them before... Not in their official capacity.(Such things do come up in their opinions as explanatory... But when it does it is dicta -- not precedent for future cases and of no import re the lower courts.)
That doesn't get us anywhere: The mode of transporting the victim is not a necessary element of the crime.We're talking about interpreting the crucial element of the crime!
Employers may not "fail or refuse to hire or...discharge any individual, or otherwise...discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's...sex.
BTW: Did you read Kavanaugh's dissent?
A living constitution cannot be squared with a written one for the generative principle of the former controverts the animating purpose of the latter. Once it becomes permissible to update the Constitution, not by amending it, but by reinterpreting it (whether in the courts of law or that of public opinion), the foundational law loses its force and meaning. The ligatures that constrain the state become attenuated and a government of laws slowly mutates into a government of men. A governmental system that does not check and balance itself is bound to become unchecked and unbalanced. This has less to do with the nature of the system than the nature of those who run it. (source)
your earlier position
His formulation contains a hidden ellipsis: "whether [it is right or just that] an employer can"...
Sometimes small gestures can have unexpected conse -quences. Major initiatives practically guarantee them. Inour time, few pieces of federal legislation rank in signifi-cance with the Civil Rights Act of 1964. There, in Title VII,Congress outlawed discrimination in the workplace on thebasis of race, color, religion, sex, or national origin. Today,we must decide [ON THE BASIS OF TITLE VII AS MENTIONED IN THE PREVIOUS SENTENCE, WHICH YOU, DEAR READERS, KNOW BECAUSE YOU ARE NOT GOLDFISH] whether an employer can fire someonesimply for being homosexual or transgender. The answeris clear. An employer who fires an individual for being ho-mosexual or transgender fires that person for traits or ac-tions it would not have questioned in members of a differentsex. Sex plays a necessary and undisguisable role in thedecision, exactly what Title VII forbids.
There, in Title VII,Congress outlawed discrimination in the workplace on thebasis of race, color, religion, sex, or national origin. Today,we must decide [ON THE BASIS OF TITLE VII AS MENTIONED IN THE PREVIOUS SENTENCE, WHICH YOU, DEAR READERS, KNOW BECAUSE YOU ARE NOT GOLDFISH] whether an employer can fire someone...
Are you implying that Oakdale is goldfish?
It's impossible to read it the proposed way unless you pretend the sentence exists in some kind of vacuum.
I'd have to add a question: Did Gorsuch contend that our courts and congresses -up until his interpretation- mis-understood the plain application of the law's terms?
Perhaps it's easier to see the logic of the argument if we rephrase it slightly. Imagine a kidnapping law from 1600. The framers can only reasonably be said to have envisioned kidnapping by walking, horses, carts and ships. But now it's 1900, and someone was abducted by dirigible. The framers didn't foresee dirigibles, and there's no legal precedent with regard to dirigibles. It's not kidnapping, argues the defense. There's never been a kidnapping case in which dirigibles were considered a viable means of abduction, and just imagining the sheer wonder of being on a dirigible looking down at the world from far above should be enough to convince you that it's actually a wondrous opportunity. Quite the opposite of a kidnapping.
When an employer fires an employee because she is homo-sexual or transgender, two causal factors may be in play-- both the individual's sex and something else (the sex towhich the individual is attracted or with which the individ-ual identifies). But Title VII doesn't care. If an employer would not have discharged an employee but for that in-dividual's sex, the statute's causation standard is met, and liability may attach.
At first glance, another interpretation might seem possi-ble. Discrimination sometimes involves "the act, practice,or an instance of discriminating categorically rather thanindividually." Webster's New Collegiate Dictionary 326(1975); see also post, at 27-28, n. 22 (ALITO, J., dissenting).On that understanding, the statute would require us to con-sider the employer's treatment of groups rather than indi-viduals, to see how a policy affects one sex as a whole versus the other as a whole. That idea holds some intuitive appeal too. Maybe the law concerns itself simply with ensuring that employers don't treat women generally less favorably than they do men. So how can we tell which sense, individ-ual or group, "discriminate" carries in Title VII? The statute answers that question directly. It tells us three times--including immediately after the words "dis-criminate against"--that our focus should be on individu-als, not groups: Employers may not "fail or refuse to hire or . . . discharge any individual, or otherwise . . . discrimi-nate against any individual with respect to his compensa-tion, terms, conditions, or privileges of employment, be-cause of such individual's . . . sex." §2000e-2(a)(1)(emphasis added). And the meaning of "individual" was asuncontroversial in 1964 as it is today: "A particular beingas distinguished from a class, species, or collection." Web-ster's New International Dictionary, at 1267. Here, again,Congress could have written the law differently. It mighthave said that "it shall be an unlawful employment practiceto prefer one sex to the other in hiring, firing, or the terms or conditions of employment." It might have said that thereshould be no "sex discrimination," perhaps implying a focus on differential treatment between the two sexes as groups.More narrowly still, it could have forbidden only "sexist pol-icies" against women as a class. But, once again, that is not the law we have.
(The only workplace where sexual orientation would matter is probably porn industry, so regulate that, lawgivers.)
As to "interpreting" that Oakdale has an issue with, it so happens that whenever you read a text, you are interpreting it. Inevitably. It is impossible to not interpret.
At this stage, the problem is not how to interpret the word "sex" but that lawgivers yielded to feminist pressures in a manner that gave rise to a slippery slope of problems that keep growing like a snowball.
Quote from: ersi on 2022-01-06, 08:56:29At this stage, the problem is not how to interpret the word "sex" but that lawgivers yielded to feminist pressures in a manner that gave rise to a slippery slope of problems that keep growing like a snowball.And yet the very definition of feminism is "Shouldn't the law be against any and all disadvantaging, not solely on the basis of a limited list like race, sex etc?" Anything else is straw feminism.
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