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Katie Eyer is a professor of law at Rutgers Law School. She co-authored an amicus brief on behalf of scholars of statutory interpretation and equality law arguing that textualism required a finding in favor of LGBTQ employees.

Title VII has prohibited discrimination because of sex since 1964and yet many lower courts have long held that employers are free to discriminate against LGBTQ employees. Yesterday, the Supreme Court held that anti-LGBTQ discrimination is indeed because of sex under Title VII in the consolidated cases of Bostock v. Clayton County, Altitude Express v. Zarda and R.G. & G.R. Harris Funeral Homes v. EEOC. This rulingwhich has enormous implications for equality for LGBTQ workersalso makes clear why progressive textualism, i.e., progressive arguments for the centrality of legal text, is important for the future of equality change.

Before addressing the wider implications of the Bostock decision, it is important to observe how enormously significant the decision is for LGBTQ employees, who remain without explicit protections against discrimination in many states. For many employees, especially in the transgender community, this has meant that employment discrimination continues to be a lived reality, deeply disrupting personal and professional lives. As the many who have lost their jobs in the recent COVID crisis can attest, it is no small thing to be deprived of your source of income, and thus the ability to support yourself and your family. For many LGBTQ workers, this has continued to be a real risk of their working lives, and too often a lived reality.

In a 6-3 opinion by Justice Neil Gorsuch, Bostock makes clear that LGBTQ workers are indeed already entitled to federal employment discrimination protections, despite the long history of discrimination against them (and some lower court judges conclusion that such discrimination is lawful). Title VII prohibits employers from fail[ing] or refus[ing] to hire or discharg[ing] any individual because of such individuals sex. As the majority opinion recognizes, this language required an outcome in favor of LGBTQ rights. Because it is impossible to discriminate against an LGBTQ employee without such discrimination also being because of sex, anti-LGBTQ discrimination is prohibited.

As the majority opinion further elaborates, the reasoning behind this conclusion is straightforward. The Supreme Court has already held, as a matter of textualism, that because of connotes but-for causationmeaning that an employer has acted because of sex whenever that action would not have occurred but for the employees sex. And in each and every case of anti-LGBTQ discrimination, the employees sex is a but-for cause of the adverse action taken against them. Thus, Susan, a lesbian, would not have been fired for her attraction to women if she were Mark, a cisgender man. Similarly, John, a transgender man who is fired for claiming a male identity and having a male appearance, would not have been fired if he, like Mark, had been assigned the male sex at birth.

Gorsuchs opinion for the majority embraces this straightforward textualist logic, and rejects the numerous contra-textual arguments that were offered by the employers and the government in Bostock. As Gorsuch writes:

Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. But the limits of the drafters imagination supply no reason to ignore the laws demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, its no contest. Only the written word is the law, and all persons are entitled to its benefit.

This reasoning, written by a conservative justice in service of an opinion recognizing historic equality rights, is important to note. Although textualism has often been viewed as a tool of conservative legal advocacy, it need not and ought not be viewed that way. As organizations like the Constitutional Accountability Center and other scholars and activists have recognized, textualism is not an inherently ideological methodology, only serving conservative aims. Rather, there are many reasons for progressives, like conservatives, to celebrate a methodology that places limits on the ability of biases and individual beliefs to infect judicial decision-making. Indeed, as the Bostock opinion notes, textualism properly understood can serve as a bulwark against the exclusion of politically unpopular groups from the laws protections.

Thus, for example, as Gorsuchs opinion observes, the public (and Congress) in 1964 surely would not have believed that LGBTQ peoplewho were at that time a highly stigmatized minoritywere covered by Title VII. But as the opinion further notes, this is irrelevant if LGBTQ people are included within Title VIIs broad textual protections (although it would not be irrelevant under an approach that prioritized congressional intent). So too, past textualist opinions by the late Justice Antonin Scalia and others have rejected the exclusion of stigmatized groups like prisoners from the protections of expansive rights lawseven though a more purposivist approach might lead to a contrary result. Thus, although text may constrain legal outcomes in ways that progressives disagree with, so too it can at times ensure that, as the Bostock majority puts it, all persons are entitled to the benefit of the laws terms.

There are important stakes to progressives willingness (or unwillingness) to fully embrace textualism as an interpretative approach. As the dissents in Bostock make clear, control over the very meaning of textualism is a part of those stakes. Both textualism and originalism can be infinitely malleable when only one side of the argument claims the authority to define their contours. This is most strikingly evident in Justice Brett Kavanaughs dissent, which ignores the Supreme Courts own pronouncements (made by the conservative wing of the court) that the ordinary meaning of because of in Title VII is and was but-for causationpronouncements that all but compelled the outcome for the employees here. Instead, Kavanaugh suggests that the court should look to the public and Congress beliefs about expected applications as the barometer of ordinary meaningan approach that bears an uncanny resemblance to long-discredited uses of congressional expectations to contravene text. But his dissent nevertheless unfailingly claims the mantle of real textualism. Without the counterweight of progressive textualist arguments, it seems possible, indeed likely, that a nominally textualist argument like Kavanaughs would have carried the daydespite the fact that that his arguments contradicted prior conservative textualist precedents.

But as Bostock demonstrates, progressives have the ability and the opportunity to reclaim the other side of the debate. As Justice Elena Kagan famously put it in describing Scalias influence, [w]ere all textualists now. That pronouncement ought not signal a defeat for progressive approaches to statutory interpretation. Rather, the rise of textualism offers powerful opportunities for progressive lawyers, scholars and judges to think about the relationship of text to law and the ways that text safeguards the most vulnerable among us.

And those opportunities will be needed in the years ahead. As the racial-justice context vividly illustrates, winning formal legal protectionsin Bostock or indeed in any contextis no guarantee of equality on the ground. The victory of LGBTQ rights in Bostocka very important step forwardwill not translate seamlessly into lived equality for LGBTQ individuals, or for anyone else. Although there will be many fronts in the continuing equality strugglesfor LGBTQ workers, for black and brown victims of police violence, for disabled students denied educational equality, for women subjected to harassment and violencethe law will surely continue to be one. And in those legal struggles, textualism will afford an important tool.

For a vivid reminder of the importance of textualism as a tool, one need look no further than Justice Clarence Thomas dissent from denial of certiorari in Baxter v. Bracey, the same day that Bostock was decided. Even as Black Lives Matters protests continue to grow around the country, Thomas, no wild-eyed liberal, calls in Baxter for the limitation of qualified immunity [b]ecause [it] appears to stray from the statutory text of 42 U.S.C. 1983. The abolition or limitation of qualified immunity, a doctrine that continues to allow many cases of police brutality against black and brown citizens, some of them also LGBTQ, to be dismissed on technical grounds, is surely an important, though radically incomplete, step toward lived equality.

So too, as scholars like Sandra Sperino have shown, many of the doctrines that allow judges to regularly dismiss the statutory discrimination claims of all groupsblack and brown workers, religious minorities, women, people with disabilities, LGBTQ employeesare completely untethered from the statutory text. For that reason, some conservative judges (including then-Judge Gorsuch), have argued for at least some such doctrines abandonment. There are thus reasons to believe that if we want employees of any kind to have access to meaningful discrimination claims, progressive textualism will be important.

The law in the courts is of course only one tool of equality change. Protest, social change, legislative and administrative reform are all no doubt at least as useful for securing the lived reality of equality. But for that part of the work of equality change that will continue to take place within the courts, Bostock serves as a crucial reminder: Progressive textualism is important.

Posted in Bostock v. Clayton County, Georgia, Altitude Express Inc. v. Zarda, R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, Featured, Symposium on the court's ruling in Bostock v. Clayton County and Harris Funeral Homes v. EEOC

Recommended Citation: Katie Eyer, Symposium: Progressive textualism and LGBTQ rights, SCOTUSblog (Jun. 16, 2020, 10:23 AM), https://www.scotusblog.com/2020/06/symposium-progressive-textualism-and-lgbtq-rights/

See the original post here:
Symposium: Progressive textualism and LGBTQ rights - SCOTUSblog

John C. Chalbergs commentary about political trends and how they are perceived by different ideologies was very interesting. (The 2020 election? A referendum on progressivism, May 24.) What does it mean to have big government? To those on the right, it appears to mean restricting various freedoms of individuals or businesses in their use of public land or curbing the externalizing of costs that are burdensome. On the left, big government opens up public land for economic exploitation, allows more pollution by deregulating and in general being burdensome to conservation practices.

Both sides rely on big government to further their ideology. Which is favored? Chalberg has a negative view of bureaucracies in general, but especially those that are government-by-expert. Government can foster an ideology very effectively by selecting either watchdogs or predators to guard the chicken coops of their agencies. This was illustrated very well by the Environmental Protection Agency.

Will the agency be guarded by bureaucracy-by-expert or by bureaucracy-by-ideology? Chalberg makes a number of interesting points, but he and I disagree on which bureaucracy should hold the trump hand.

Richard Meierotto, Afton

Chalberg did an excellent job outlining the struggles in todays American politics. Do we want the government telling us what to do, or do we want to tell the government what to do? Our next election will tell us. Im with Chuck and a government by the people.

Gloria Gardner, River Falls, Wis.

I read Chalbergs confusing article about progressive ideology. Progressivism may remind some of socialism, and I say so what. On the other hand, I think todays federalism resembles fascism, and that scares me.

Wayne Ode, St. Charles, Minn.

Minnesota is well-served by the Star Tribunes willingness to print a variety of views in the Opinion Exchange. Extended thoughts such as those presented by Chalberg are particularly welcome. They provide grist for thought. However, readers may be better served if the paper required greater clarity in published pieces.

Chalbergs contribution suffers due to a series of undefined terms that undercut his argument. What is meant by progressives, either historically or presently? Experts? Washington bureaucrats?

By building straw men, Chalberg glosses over the variety within each term, often inaccurately characterizing U.S. history. To lump the socialism of the early 20th century with the threats that President Dwight Eisenhower was facing from the socialism of contemporary left politics is building an edifice with no foundation. Chalberg is right to implicitly identify a central challenge of inhabiting a federal republic and representative democracy: the rights of the individual vs. the collective. The proper balance between these two is unknown, perhaps unknowable. It is a type of wicked problem the definition of a workable solution changes. It is among the tasks of engaged citizens and leaders in a country such as ours to play a role in helping government calibrate and recalibrate that balance. This is called politics.

An important part of expertise is careful thinking to identify incorrect information, concepts or assumptions in the arena of study or action. Perhaps we would be better suited to have citizens, bureaucrats and indeed even editors who emphasize the important linkage between careful thought, precise rhetoric and desirable political outcomes.

John Heydinger, Bloomington

LONG-TERM CARE

Conditions causing grief today have been in place for a long time

I worked in long-term care facilities in 1976-78 and currently have a mother in long-term care. The problems havent changed in decades: (1) poor staff-to-resident ratios, (2) high staff turnover, (3) frequent moving of staff around the facility, creating an unnecessary learning curve with the patients, (4) infrequent showers, (5) rooms separated only by a drape between roommates, (6) slow call-light responses, (7) inadequate training of staff, and (8) poor oversight of staff that are addressed only if the family is aware and brings to management.

If you consider these conditions, it is easy to fathom why these facilities are being hit hard beyond just the fact that these are older individuals (Nursing home density aids spread, May 25). As is evident in the current pandemic, there is no room for wiggle or error because of where we started with these facilities. COVID-19 cases and deaths are partly on the backs of those who for decades have overlooked the poor conditions for workers and residents. This is a wake-up call for baby boomers and their families, as these conditions will still be the norm long after this pandemic subsides.

Michele Monfils, St. Louis Park

I have worked in a long-term care facility as a registered nurse. I cannot applaud Southview Acres enough! Through no fault of their own, the people at this facility (which was mentioned in the May 25 article) have been working through unbelievably difficult times. They have had so much to deal with. They have tried to isolate COVID-19 patients while trying to keep the rest of the residents safe.

Im sure that if one is ignorant of the workings of a long-term care facility, it might seem that they are not doing enough. Having experience in this, I can only applaud them. If they cant do my FaceTime call, I completely understand! Thank you to all at Southview Acres who have taken great care of my dad!

Katherine I. Weinberger, Eagan

On May 7, 81% of the 534 deaths then caused by COVID-19 in Minnesota had occurred in long-term care facilities. In response, Gov. Tim Walz introduced his five-point battle plan to combat the spread among our most vulnerable citizens. His plan included impressive sounding phrases like strike teams and active screening. Stubbornly, however, 81% of Minnesotas 881 deaths in a more recent count had occurred in long-term care.

Stories like the one published May 25 illustrate that despite the governors rhetoric, nothing has changed. Infected patients are not quarantined effectively, and proper hygiene is an ongoing issue. Perhaps we need a 10-point plan. Or even a 20-point plan. Or maybe he should just fix it.

Ryan Sheahan, Robbinsdale

A May 24 letter writer (Yes, every hour is a battle, but also remember residents, families) misses the five-minute weekly video chats with his dad. Theres a solution. Leaders of Elder Voice, a highly effective group protecting my parent, and yours, turned me on to Nest cameras that let me, members of the family, and our caregivers see and hear mom 24/7. And, I pay $10 a month to have access to 10 days of video with very effective notification technology that directs me to important moments. There are other vendors that provide similar video service. Its valuable, and my sister in California participates in my moms care. Keep your eyes on the prize.

Richard Breitman, Minneapolis

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Readers Write: 'A referendum on progressivism,' problems with long-term care - Minneapolis Star Tribune

Polarized is a weekly series featuring Americans from all 50 states sharing their views on the 2020 elections. Click here if you would like to be a part of this project

Adrienne Brietzke hates Bill Clinton, and she isnt afraid to say it.

The 70-year-old Arkansas voter is a registered Democrat, though she identifies as an independent after having spent her life working in and around local politics.

Sharing the full story, not just the headlines

Brietzke worked for the former president when he served as the attorney general of her home state, and again when he was elected as governor in 1979. In a recent interview with The Independent, she recalls being inspired by the young Clinton and his bold vision for the state until, she says, he let her and many other progressives down.

Bill Clinton was very progressive at the time, she remembers of the former presidents introduction to local and state politics. He did a 180-degree turn when he was elected president.

Brietzke blames Clinton and the Democratic-establishment politics that followed his tenure in the Oval Office for what she describes to be a neoliberal takeover of the Democratic Party, in which center-left politics have become mainstream and Congress provides nothing more than lip service when it comes to progressive measures.

The Democratic Party used to be the poor mans party, she says. When Bill Clinton came in, he taught the party to be neoliberal.

(Photo courtesy of Adrienne Brietzke)

When it comes to 2020, Brietzke says politicians like former vice president Joe Biden the presumptive Democratic presidential nominee are no different than Clinton.

Its all about the status quo, she says while discussing the swift support Biden received from other Democratic presidential candidates who dropped out of the race and later endorsed him against Vermont senator Bernie Sanders for the partys 2020 nomination.

The Democratic Party doesnt want that to change at all, she continues. Theyre all making money, and things for many of the top Democrats are actually pretty good under [Donald] Trump, at least financially: most of them are barely paying taxes.

Brietzke was a Sanders supporter, and feels the senator left progressives hanging when he dropped out of the race before endorsing Biden for the nomination.

He was perfectly placed to get real concessions from Biden, she says about Sanders, suggesting he should have waited to back the former vice president. Brietzke wishes Sanders instead stayed in the race and fought for Biden to adopt real progressive policies on issues like climate change and student debt.

The former vice president did, in fact, extend some progressive updates to his plans on Medicare and student loans after Sanders dropped out of the race, but Brietzke like many other progressives Ive spoken to for this project says those dont go nearly far enough.

Democrats like Biden diss progressives and their biggest issues with their lackluster plans on our top three issues: universal healthcare, climate change and student debt, she says.

What Ive seen is that a lot of the social-media sites I hit that are progressive with a lot of chatter have gone totally silent since Bernie took a powder, Brietzke continues. To me, thats an indicator of progressives stepping back and not participating anymore. If that happens on election day, the Democrats are screwed because they wont get the progressive vote.

Click here to read more of The Independents series, Polarized: Voices From Across America

When I ask whether she intends to vote for Biden, Brietzke pauses.

No, she says. I plan to vote against Trump.

She adds: Trump voters are going to vote for Trump. Biden voters are going to vote against Trump. Biden is a non-entity.

Brietzke plans to cast a ballot for Biden for the sole purpose of removing Trump from office, she explains. Both she and her husband have medical conditions that put them at further risk of contracting coronavirus, and the pandemic has made clear just how incompetent the leadership is at the top.

Biden being the nominee is going to prevent progressive turnout, because hes basically been a placater for Republicans, she tells me, before later concluding: But Trump is just a moron Im trusting the scientists right now, and ignoring the president.

Continued here:
Bernie Sanders supporter explains why progressives have gone totally silent since he endorsed Biden - The Independent

Rep. Ilhan Omar, D-Minn., attends a press conference on Feb. 26 on Capitol Hill. Omar tells NPR the progressive left "has moved the needle on the national conversation" surrounding certain policies. Olivier Douliery/AFP via Getty Images hide caption

Rep. Ilhan Omar, D-Minn., attends a press conference on Feb. 26 on Capitol Hill. Omar tells NPR the progressive left "has moved the needle on the national conversation" surrounding certain policies.

"I wasn't afraid of fighting," Ilhan Omar writes about her childhood in Somalia in her new memoir. "I felt like I was bigger and stronger than everyone else even if I knew that wasn't really the case."

In This Is What America Looks Like: My Journey from Refugee to Congresswoman, Omar chronicles her childhood in a middle-class family compound in Mogadishu, followed by civil war, four years in a refugee camp, a journey to the United States and ultimately her election to Congress as a Democrat representing Minnesota's 5th district.

Since being elected as one of the first Muslim women to Congress in 2018, Omar has emerged as a progressive and polarizing figure. She has been the target of racist insults, but also drawn criticism for controversial statements of her own.

"I think often times you have to make a choice: whether you'll be a punching bag or you'll be somebody who's strong and stands up for themselves and for others," Omar tells NPR.

She talked with Weekend Edition about Joe Biden and the presidential race, what she wants in future coronavirus relief measures and an unlikely role model.

On the influence of progressives in the Democratic presidential nomination

We might not have moved the needle on the nomination, but I think we certainly have moved the needle on the national conversation on the particular policies we've advocated for. "Medicare for All" is much more popular than it was before this election cycle, and we're having an honest discussion about canceling student debt. We're talking about economic and social injustices in ways that we haven't before. Taxing the wealthy is not just something that you say and people go, "Oh, my God." It's something that people are now actually debating and thinking about ways to be able to do that.

And to see so many people now running for office with the policy positions that we ran on and continue to advocate for really is a testament on how much we've changed the narrative of what is electable and what is debatable in Congress.

On why Biden should choose a person of color as his running mate

I think it would be really helpful for our party to continue to have diversity as not something we talk about, but something we celebrate and push forward.

... To have somebody who is really connected to the people who have been the backbone of the Democratic Party will help create, I think, the enthusiasm that Biden lacks right now with the majority of the base.

On what she wants to see in the next coronavirus relief package

There are musts, right? We want to make sure that there is direct cash payment. We want to make sure that there is hazard pay for essential workers. We want the OSHA protections to remain as part of the final bill. We want increase in SNAP funding. We want to make sure that we're not just expanding COBRA, but getting emergency Medicare for All. We want rent and mortgage cancellation. We have to act comprehensively to stop the kind of economic crisis that is staring us in the face.

On why the conservative former British Prime Minister Margaret Thatcher is a political role model

It's interesting, right? Oftentimes, we're told who our heroes can be. And for me, I find it to be inspirational for a woman, when there were really no other women around who were leading, to say, "I can do this." And I think as I think about my own journey, dealing with the ideas that many within my own community had about, "a boy should be the first." I needed to have sort of an inspiration, and obviously, she's left a very dark mark in history. But we can't take away how inspirationally bold she was to believe that she can lead as a woman in her time.

NPR's Hiba Ahmad and Ed McNulty produced and edited the audio version of this interview.

Original post:
Ilhan Omar On Her Memoir And Moving The Needle Toward Progressive Policies - NPR

As protests in Minneapolis and other U.S. cities over the police killing of George Floyd turned violent overnight, resulting in damage to some storefronts and buildings, complaints about "looting" sparked backlash from progressives who pointed to the billions in wealth accumulated by corporations and the super-rich in the past three months alone as the country grapples with the coronavirus pandemic.

"Americans know who the real looters are," progressive radio host Benjamin Dixon told Common Dreams. "It's the billionaires who plundered America for $434 billion during the pandemic while the essential workers keeping our country afloat make barely over minimum wage."

Looting is 25 billionaires increasing their wealth by $255 billion in 2 months while up to 580 million people throughout the world are pushed into poverty during this horrific pandemic. That's looting. pic.twitter.com/cd6uCGVoSf

Warren Gunnels (@GunnelsWarren) May 28, 2020

So-called riots exploded on the streets of Minneapolis on Wednesday during the second consecutive day of protests against the city's police department for killing Floyd, who died after OfficerDerek Chauvin knelt on his neck for at least ten minutes despite Floyd's pleas that he couldn't breathe. Protests against the killing in Los Angeles and Memphis also resulted in violence; in Los Angeles the violence was precipitated by police officers driving their cars into demonstrators.

AsIt's Going DownNewsandUnicorn Riot reported, demonstrators "are fed up with this racist system" and see the movement as part of a broader, "organic uprising."

"This is just the start,"tweetedIt's Going DownNews.

Mainstream media and right-wing commentators decried what they described as "looting" as some people poured into Target, AutoZone, and other stores, taking some items and leaving the buildings damaged.

Progressives pointed to the disconnect between condemnation of those acts and the lack of critical reaction to the country's richest people and corporations gaining billions in wealth since the beginning of the coronavirus. According to a recent Institute of Policy Studies report,U.S. billionaires have added $434 billion in wealth since the onset of the outbreak.

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"Absolutely terrible to hear about all the looting happening right now," journalist Kate AronofftweetedWednesday night, linking to a reportof the billionaires' increase in wealth. "Someone should intervene."

Progressive activist Peter Daou chimed in, sarcastically invoking calls for no more looting to make a broader point about who is benefitting from the pandemic and putting Wednesday's events in context.

"I heard there was looting and I'm furious," said Daou. "Republicans and Democrats stealing from the poor to bail out the rich in a #pandemic. That kind of theft is unacceptable."

Other progressives on social media also made the distinction between demonstrators angry at decades of police brutality and the billionaire class adding obscene levels of wealth in the pandemic.

Dixon toldCommon Dreams that the people are wise to the real looting in America and that the movement is only just beginning.

"The ruling elite have used our own civility to control us while robbing America blind," said Dixon. "But we're hip to their game."

Read the rest here:
Progressives Say 'People Know Who Real Looters Are': Not Those Angry Over Police Killings, But Oligarchs Robbing Nation Blind - Common Dreams