Supreme Court to determine if existing federal laws also apply to sexual orientation and gender identity

Back in 1964, the Civil Rights Act outlawed employment discrimination on the basis of sex, race, color, national origin, and religion. (See Federalist 84 for a good argument against always laying out the nitty-gritty specifics.) It is safe to say that when the law was passed, it was not believed to include protections for a person’s sexual orientation—the American Psychiatric Association listed homosexuality as a mental disorder in the Diagnostic and Statistical Manual until the 1974 revisions, after all. But a recent court ruling claimed (somewhat laboriously) that discrimination because of sexual orientation is actually a subset of sex discrimination, and therefore barred by Title VII of the Civil Rights Act. The Supremes have agreed to hear this case (rolled together with a couple of other LGBT-discrimination cases) to determine whether or not the 1964 law and its subsequent modifications apply to sexual orientation and gender expression.

Writing for the New Yorker, Masha Gessen discusses the anxiety that will cloud her next year, as we all wait around to find out if John Roberts wants to pull a Kennedy and grandfather today’s prevailing cultural wisdom into a law that clearly had no interest in doing the work we might want it to do today.

Among L.G.B.T. activists and advocates, one could sense something like a deep intake of breath, of the sort one makes when a fragile object is starting to tumble off a shelf across the room. You know it’s going to shatter, you are too far away to try to catch it, and you watch, helplessly, its interminable path to catastrophe.

(…)

As currently constituted, the Supreme Court appears likely to resolve the contradictions by ruling that the Civil Rights Act does not ban discrimination against L.G.B.T. people. This would be the kind of legal backlash that could take a generation to undo. But the decision itself may not appear for another year. Until then, all most of us can do is watch this fragile object—queer rights in the United States—take an excruciatingly slow tumble.

I think that Gessen (and everyone else) is right to be worried that the Court will fail to find that the 1964 Civil Rights Act protects against discrimination on the basis of sexual orientation, because it is plainly not there. And in the 55 years since, as public recognition and support for LGBT individuals and their fundamental rights has steadily risen—and absolutely skyrocketed in recent years—Congress has failed to modify the law to include those protections. It should not be the job of the Supreme Court to force old laws to conform to current public sentiment, no matter how clearly moral—it is the domain of the legislature to change the law as it deems necessary.

Given Roberts’ astonished dissent in Obergefell v. Hodges, it’s safe to say that the Court is unlikely to play the role of our better angels once again. Read alongside the majority opinion Roberts authored in the Obamacare-saving King v. Burwell—"In a democracy, the power to make the law rests with those chosen by the people,”—it’s an absolute lock. But there is some good news—as Roberts would be first to point out—the United States is not a Judicial Autocracy! We have this whole other branch of government, a bicameral Congress of elected representatives, which is empowered to write and modify laws. This could all be sorted out before the Court even hears oral argument in these cases, or pretty much any time after. And if Mitch McConnell and the rest of the Republicans and/or Donald Trump want to stand in the way, after the House passes the law from their side? Wield it against them in 2020, and 2022, and beyond. “Gay people should not be fired or prevented from obtaining work simply because they’re gay, just like your religion or your genitalia or your color shouldn’t stop you from getting work” is a widely accepted view these days.

Americans are broadly supportive of laws that would protect lesbian, gay, bisexual, and transgender (LGBT) people against discrimination in jobs, public accommodations, and housing. Seven in ten (70%) Americans favor such laws, including more than one-third (35%) who strongly favor them. Fewer than one-quarter (23%) of Americans oppose legal nondiscrimination protections for LGBT Americans.

Again: “Fewer than one-quarter (23%) of Americans oppose legal nondiscrimination protections for LGBT Americans.” And falling, no doubt! If we have to rely on the Supreme Court to do even this sort of non-controversial work, what’s even the point of pretending it’s a representative democracy, any more?

I know the worst people on the right will frame it in terms that are absurd, inflammatory, irrelevant, and entirely in bad faith. They will seek to turn it into an attack on religious freedom, and steer it as far away from the simple truths as possible. They will do this because it gets the base feeling all victimized and weirded out by the loony liberals. But if the Democrats and not-insane remnants of the GOP exercise a bit of message discipline, this is an easy win—again: “Fewer than one-quarter (23%) of Americans oppose legal nondiscrimination protections for LGBT Americans.”

Of course, no matter how straight they play it, no matter how well they avoid the stupid traps, or not, the trolls that make up so much of right-wing media will never play fair. To wit:

Daily Caller points, knows who will laugh

This is a completely straight news piece, notable only for the fact that it was published. Here is the text, in full:

The New York Times has installed gender-neutral bathrooms in its New York City headquarters, complete with tampons, to allow staff more freedom to use whichever bathroom they feel fits their gender expression.

Existing single-use bathrooms on the 14th floor are now designated as gender-neutral, and the paper plans to install new bathrooms on two other floors. “A lock on the main door has been added for privacy during use,” Ellen Shultz, executive vice president of talent and inclusion, said in an internal memo obtained by The Wrap.

“Please remember that you are welcome to use any bathroom that matches your gender identity or expression,” Shultz added. (RELATED: The Supreme Court May Soon Decide On Transgender Bathrooms In Public Schools)

New York Times employees praised the decision Wednesday.

“This rules,” tweeted writer and editor Benjamin Hoffman, responding to one of his colleagues who wrote her first tweet ever to celebrate the new bathrooms. “After nearly 15 years with this company I still find reasons to be proud every single day.”

The Daily Caller then includes a selfie-tweet from a self-identified “trans non-binary human” celebrating the new bathroom. That’s the whole piece. No judgement, no editorial content. They published it because they know that their audience will find it funny or absurd or a sign of liberal insanity.

And I kind of understand why! The politicization of bathrooms, at whoever’s feet you care to lay the blame, is absolutely absurd. (I know where the blame goes.) The existence of unisex or un-gendered bathrooms should not merit a mention. Not that I blame the trans non-binary human who tweeted our their excitement—because in this world, right now, it does feel like a sort of win to that person. And that is sort of sad and crazy.

Unrelated?

The above is only one-third of the whole song, which you should absolutely go watch here, as I cannot get Facebook videos to embed here. FB and I are not getting along, lately.

Taibbi: Press will learn nothing from Russiagate fiasco

I’m all for predictions that humans will learn nothing from important experiences, as I think that’s in keeping with history and reality and all the rest. And Taibbi is perfectly right to point out all the ways the media over-hyped the Trump/Russia collusion story, something I, too, have been saying for some time. Taibbi:

As outlined in his initial mandate, Mueller explored “any links” between the Russian government and the campaign of Donald Trump. His conclusion spoke directly to the question of whether there was any kind of quid pro quo between the two sides:

“The investigation examined whether these contacts involved or resulted in coordination or a conspiracy with the Trump Campaign and Russia, including with respect to Russia providing assistance to the Campaign in exchange for any sort of favorable treatment in the future.”

In other words, all those fancy org charts were meaningless. Because there was no conspiracy, all those “walls are closing in” reports — and there were a ton of them — were wrong. We were told we’d hit “turning point” after “turning point” leading to the “the beginning of the end,” with Trump certain, soon, to either resign in shame, Nixon-style, or be impeached.

The “RNC platform” change story was a canard, according to Mueller. The exchanges Trump figures had with ambassador Sergei Kislyak were “brief, public, and non-substantive.” The conversations Jeff Sessions had with Kislyak at the convention didn’t “include any more than a passing mention of the presidential campaign.” Mueller added “investigators did not establish that [Carter] Page conspired with the Russian government.”

There was no blackmail, no secret bribe from Rosneft, no five-year cultivation plan, no evidence of any kind of any relationship that ever existed between the Trump campaign and Russian officials. Michael Cohen “never traveled to Prague.”

I wonder if Taibbi isn’t discounting just how little do things like facts matter in this hell timeline. (To be clear, I’m not saying that’s good.) How many people really were swayed about the underlying goodness or badness of Trump because of media coverage of Trump/Russia collusion? How many people had their minds changed after the Mueller report concluded that there was none? Kinda like how some are saying you can’t have obstruction without an underlying crime—how meaningful a sin is it if, for all the huffing and puffing, not only was there nothing there, but it didn’t matter to anyone’s fundamental understanding of the underlying reality?

To that point, when Taibbi says the following…

“But as conservatives found out in 2016, news audiences over time lose trust in news organizations that tell them what they want to hear politically, but get the substance of things wrong.

…is he referring to everyone but Fox News, a network that is a prime example of always telling the audience what it wants to hear while being constantly substantively wrong? He’s referencing the media and political elite conservative chattering class best exemplified by the David Frums and Bill Kristols of the world, but it’s not like anyone but their fellow New York / DC / NPR class of elites ever listened to them, anyway. The Trumppening doesn’t pose a threat to the legitimacy of the mainstream media and the chattering class—the contempt for and illegitimacy of those institutions in the minds of a huge percentage of the population was codified at the Republican National Convention in the summer of 2016. Russiagate, for all the overblown hysteria, has changed nothing.

How Addled is the President’s Brain This Morning?

Robert Costa of the Washington Post filed a story about how Trump doesn’t want former White House aides testifying to Congress, based on a conversation he had with the president, on the phone. The “news” part of the story is that Trump appears to be trying to jam the toothpaste back into the tube, as the old saying goes, by trying to claim executive privilege after these people have already given publicly-known testimony to the Special Counsel investigation. Pretty straightforward!

So how addled is the president’s brain? Not addled at all, actually! He confirms Costa’s account of what happened, doesn’t dispute any of the content of the reporting, and still dismisses the whole thing as “Fake News.” He knows exactly what he’s doing.