Tutor profile: Trueman G.
In Bostock v. Clayton County, Georgia, the Supreme Court decided that the 1964 Civil Rights Act, which prohibits employment discrimination on the basis of sex, includes the protection of gay and transgender people. Is this an accurate legal interpretation? Was the ruling for Bostock correct?
A historic step towards LGBTQ equality, the Supreme Court decided June 15 (6-3) in Bostock v. Clayton County that the 1964 federal Civil Rights Act, which outlaws workplace and public discrimination based on race, color, religion, national origin, or sex, includes the protection of gay and transgender individuals. The key argument in the Court’s opinion, written by Justice Neil Gorsuch, President Trump’s first SCOTUS pick, is that the law’s reference to ‘sex’ requires protections for people treated differently because of their sexual orientation and/or gender identity. The argument is weak and contrary to legislative intent—nevertheless, the impact it will bring is important and supported by the Equal Protection clause of the 14th Amendment to the United States Constitution. Section 1 requires that no state “deny to any person within its jurisdiction the equal protection of the laws.” Justice Gorsuch states that “an employer violates [the Civil Rights Act of 1964] when it intentionally fires an individual employee based in part on [biological] sex.” Following that premise, he is accurate in his conclusion that firing gay or transgender people (which requires consideration of their sex) is illegal. Yet, hinging on the “in part” qualification he makes, his premise seems misguided. When the Civil Rights Act of 1964 was passed, America was just coming around to legal rights for women and people of color. Even now-liberal states, such as New York and California, did not support basic gay rights until decades after the ‘60s. Only in 1992 did California Governor Pete Wilson change his position to restricting discrimination against gay and bisexual employees. Four years later, President Clinton signed the highly-popular Defense of Marriage Act into law, which federally defined marriage as a union between a man and a woman. We are not led to believe, seeing the consensus of the U.S. government in 1996, that 56 years ago, Congress meant “sex” to cover gay and transgender people, whose right to marriage was only recently established in Obergefell v. Hodges (2015). The intent of the law, a critical factor in judicial interpretation, does not support the Court’s conclusion. Why care about the intent of the law? Our Constitutional system of separation of powers asks courts to interpret laws, not compose them. It’s clear that the law should protect LGBTQ people from being fired arbitrarily; however, it is Congress’s duty to fix the law, not the job of nine unelected judges to apply “sex” beyond legislative intent. Especially considering strong popular support for anti-discrimination policies, amending the law should have happened on the congressional floor, not a courtroom. Take it from Justice Gorsuch himself who, as the Wall Street Journal’s Editorial Board notes, supports interpreting statutes according to the meaning of the language at the time it was written. “After all, if judges could freely invest old statutory terms with new meanings,” the Constitution’s lengthy process for amending democratically-supported legislation would be disregarded (New Prime, Inc. v. Oliveira). And second, I remain convinced that the Court’s interpretation—that discriminating “in part” for one’s sex violates the Civil Rights Law—is not correct. It may seem like a minute distinction, but adding “in part” will bring negative consequences to legal precedent. Let’s say a company operates in one of the states that do not offer paid family leave, which is most of them. The company has limited financial resources. It decides to provide eight weeks of paid leave to new mothers and only four weeks of leave to male employees (the exception being if an employee is a single father). This policy doesn’t strike me as particularly unfair, but more importantly it’s presumed to be legal in states without conflicting laws on paid family leave. But under the Court’s phrasing of “in part,” this policy violates the Civil Rights Act of 1964. Even though the policy is informed by a meaningful biological distinction, the policy wrongly discriminates against men: they are entitled to eight weeks of paid leave if mothers are. Is this what the sponsors of the Civil Rights Act intended when they pushed for its enactment? It seems to be a wrong conclusion despite following Gorsuch’s reasoning to a tee. Through modus tollens we can imply that the argument’s premise, that it’s illegal to differentiate “in part,” is wrong. It is wrong because the policy is not malicious, nor is it the sort of unequal treatment Congress meant to prevent. Malicious discrimination, such as firing a person for being a woman, would still be illegal under my reading of the Civil Rights Act. If the Court’s interpretation is not justified, are we to abandon hope of protecting gay and transgender people from being fired out of intolerance? Fortunately, the 14th Amendment’s Equal Protection clause grants a path to effect stronger protections than the Supreme Court’s actual decision. While the language of the 14th Amendment was primarily intended to protect recently-freed African Americans, the Court’s system of analysis for Equal Protection (which it has applied in countless cases for decades) is friendly to LGBTQ rights. Key to understanding my subsequent argument is an appreciation of how Equal Protection claims are considered. Courts apply one of three standards to claims that the government has denied “equal protection of the laws.” The standards are a rational-basis test, where unequal laws only need a conceivable reason to be constitutional, heightened scrutiny, where a law must have “substantial reasons” for its passage, and strict scrutiny, where the law must be “narrowly tailored” around a legitimate government interest to be constitutional (United States v. Carolene Products Co). Since it is not difficult to provide a conceivable reason for most laws, the current test used for legislation that distinguishes based on sexual orientation, rational basis, has not been adequate in granting equal rights. This is why homophobic laws were upheld decades after the 14th Amendment’s ratification. But if the Court were to apply intermediate or strict scrutiny, as it has to the classes of sex and race respectively, the government would need significant reasons for any distinction; without such justification in court, the law would be found to violate the Equal Protection clause (Plyler v. Doe). Adopting this argument, as the 2nd Circuit did in Windsor v. U.S. (2013), would mean that virtually any future law would have to apply equally for gay and straight people. Further, the states which do not protect LGBTQ people from workplace discrimination would be denying them Equal Protection. How do we know that laws affecting gay and transgender people should be examined with higher scrutiny? According to current precedent, courts should apply heightened scrutiny when at least three conditions are met. Bowen v. Gilliard (1987) established that a certain class of people must have been subjected to historical discrimination and that the characteristics that differentiate such a class be “immutable,” or unchanging (this calls into question protections for transgender individuals. If gender identity is chosen, it may not be an immutable characteristic). Thirdly, the relevant characteristic (sexual orientation or gender identification) must not impair one’s ability to contribute to society (City of Cleburne v. Cleburne Living Center). This qualification allows laws that distinguish people with mental disabilities, since their contributions are impacted. LGBTQ people have historically been (and are) discriminated against, recognizing the illegality of their behavior in many states until Lawrence v. Texas (2003). Adding that they are equally productive members of society, and could not choose to have different sexual preferences, legislation that fails to regard gay and straight people as equals is unconstitutional under precedent set by the Supreme Court. We are led to the conclusion that allowing a person’s firing based on her sexual preferences or gender identity is unconstitutional because it violates Equal Protection under the 14th Amendment. The Supreme Court’s arguments, not just the results they bring, are important because they influence every federal and state court in America. The Court’s interpretation that the law prohibits any discrimination based “in part” on sex does not have to be correct to reach the desirable conclusion that gay, bisexual, and transgender people cannot be fired for prejudice of an employer. Relying on the 14th Amendment instead, the protections would be stronger for affecting all future laws that distinguish on the basis of being LGBTQ.
Subject: US Government and Politics
Theories about the defining principle of American history tend to favor liberalism or republicanism. Yet, inegalitarianism was present throughout much of history, and arguably still plays a role in American society. Are we correct to heavily prioritize classical liberal thought for its influence, or should we embrace a "multiple-traditions" view of how our political systems were formed?
When the colonies split from the King, tyrannical government was America’s first enemy and initial governmental concern. Influenced by the father of liberalism, John Locke, the Declaration of Independence and Constitution were crafted with individual liberty as the defining principle. The founding fathers feared undemocratic power which led them to strictly define the government’s legislative abilities. Complemented by the Bill of Rights’ restrictions, as well as the federal division of power between two levels, America prioritized liberty over anything. Republicanism is a significant value as well, with America becoming the first major democracy to elect its officials, rather than vote on all matters as the Greeks did. However, a solely republican society would not have the extensive protections of individual liberty that the United States had and continues to develop. Ascriptive inegalitarianism is a symptom of the world that the founders lived in. It was and is at persistent odds with our aspiring political values. While I wouldn’t equate inegalitarianism to liberalism in the importance of American values, the “multiple traditions” view is a strong addition to American political theory. It’s not just that inegalitarianism competes with liberalism (which is self-evident), but liberalism and republicanism compete with one another. It’s natural to taper liberalism’s importance as society recognizes the social ills of America, past and present. There’s no doubt that the founders’ vision has not yet been taken to full development, nor does the U.S. want as limited a government as they planned. It’s debatable how far laws need to go in order for everyone to have equal rights and opportunity. However, it’s undeniable that incredible progress has been made over the past centuries in this regard. The founders knew that their goals of equality would not be enacted just because the Constitution was ratified. We’ve slowly extended voting rights, for example, from rich white men to every citizen of the U.S. (barring certain exclusions, such as felons). While the reality has never been totally just, this country has finally reached equality in most aspects. Through mostly constitutional amendments and Supreme Court rulings, as well as legislation, voting rights, antidiscrimination, and hate crime laws have propelled social progress. Because we are (correctly) focused on rectifying where our legal equality falls short, we become inclined to reinterpret history to devalue liberalism’s call for equal rights. Still, our political emphasis on liberalism is just as revolutionary as it always was. The documents at the national archives, for me, are clear in their aspirations for equal rights, even if society would not recognize it at the time. While they had shortcomings in their lack of protection for the rights of women, people of color and other minorities, they are not “mistakes” in that the founders should have written them differently. It’s inconceivable that the Constitution or Bill of Rights would be agreed upon if they included the protections we’ve dutifully added over the decades. Considering my visit to DC Vote, one could look at the lack of federal representation for 700,000 people as a clear example of inegalitarianism. However, to elevate ascriptive inegalitarianism to the importance of liberalism or republicanism is to miss the historical reasons for the inequality. It made sense to establish a federal district for the offices of government. That DC has developed into a major metropolitan city is not unpredictable, but also not a necessity of its original purpose. We should have already granted DC residents the right to vote (not necessarily as a state but at least by giving them representation). But, as is typical in a democracy which separates government powers, legislation moves slowly. As Thomas Jefferson would say, educated people are the best defense against tyranny, and it’s clear that when educated on the issue, people overwhelmingly support granting residents the ability to vote. It is not the case that any substantial percentage of people believe DC residents should not have a say in federal elections. The reasons they can’t vote is because people are ignorant of the issue, the government is a huge, slow machine that has a million priorities above DC voting, and the plan to grant voting rights is heavily debated between those who want them. This, and many social advancements that take us in the direction of full equality, are virtually inevitable over time. If not in 10 or 20 years, within my lifetime I’m sure that DC residents will gain representation one way or another. Our history of progress, as I’ve discussed with this particular issue, is not conclusive evidence of inegalitarianism making up this country’s core. It’s evidence of our constant struggle to equal rights and representative government, coming closer to the founders’ original vision. Civic virtue plays a minimal role in our founding documents compared to liberalism. Though America is one of the most giving nations by charity estimates, by human nature we are all more protective and selfish than we’d like to think. Civic virtue is more a cultural than political phenomenon. Legislation engages civic virtue in that every law is a declaration of moral value, a prescription to do x or not y. True virtue is not how one acts when compelled by a law, but how one behaves according to one’s own moral code. We can hardly morally reward someone for following the law (which is the minimum expectation), just as we can’t fully praise someone for doing good if we incentivize it. If you help an elderly woman across the street because the government pays people who do that, it’s not a truly virtuous act. One could argue that this is irrelevant because both parties gained something from the interaction, but that is a separate matter. The Constitution is merely the foundation of American law, not an exhaustive list of civic virtues. States are expected to expand our values with their mandate to regulate health, safety, and welfare. The Bill of Rights is the best example of our highest-priority virtues. Free speech, press, religion, and a number of restrictions on government investigation illustrate our most important values. But those values could accurately be described as liberal. The visit to DC vote, also, had liberalism at the front of my mind more than civic virtue, as their work is a modern embodiment of the pursuit of liberalism. It’s interesting how liberalism and civic virtue are at conceptual odds—the former calls for more individual freedom, the latter calls for less. Take the criminalization of drugs. Society decides that drugs are dangerous to people and their communities, and outlaws them. Liberalism, conversely, argues that an individual should be able to use a drug if he wants, regardless of others’ sense of virtue. This competition is resolved in two ways. First, voters establish and change their views on civic virtue through elections of politicians. Theoretically, politicians either do what they were elected to do or are voted out eventually. Some of our virtues don’t seem to change. Murder, for example, appears to be widely agreed-upon as unacceptable. But looking deeper into the topic reveals that there are many ways that people disagree about murder, and states legislate accordingly. There are many different policies regarding when murder is justified killing, whether it be stand-your-ground laws in certain states, or when government, the monopoly on force, is permitted to kill its own citizens. The second way that liberalism and civic virtue interact are between the judicial and legislative branches of government. Regardless of a majority’s will, courts can nullify laws (which express virtues) that breach the Constitution, largely through the Bill of Rights and Fourteenth Amendment. On the topic of murder regulation, courts could outlaw certain methods of execution or execution itself, had the Supreme Court decided that the Eighth Amendment prohibits the death penalty. The exploration of America’s social flaws, past and present, is important work as we try to achieve a society of truly equal opportunity. It’s true that inegalitarianism is a critical part of our history. American politics have been shaped by the conflicting notions of liberalism, republicanism, and inegalitarianism, though I wouldn’t go so far as to equate the latter to liberalism. Even among those with (relatively) progressive views on race, including Tocqueville and the founding fathers, equality between men and women was never considered to be ideal. At best, they viewed women as capable of working with high autonomy in a domestic role, never in the workforce. The subsequent authors that picked up after Tocqueville fell short in various ways, for example the narrow focus on African-Americans and not other minorities that faced discrimination. The national archives illustrate the progression of rights for various groups, be it racial or sexual minorities. Even the famous declaration that “all men are created equal” is inegalitarian at its face, excluding women from the statement. Obviously, liberalism and republicanism play an enormous role in the archives. Our visit to DC Vote shows the same competition of ideas—while we’ve made huge strides in increasing voting rights, people in the nation’s capital are still unrepresented in the federal government. The multiple traditions is an accurate qualification to the Tocquevillian thesis of American politics, as supported by the historical accounts and my site visits.
Our notions of justice and responsibility appear to rest on an assumption that people choose their beliefs, since our actions are deeply influenced by our beliefs. Do people actually have the capacity to choose their own beliefs? Further, does every action require a firmly held belief?
It's important to note what I mean by ‘choice’ in relation to discussions about belief. When one chooses to believe something, one has the control to choose or not choose to believe that x. There must be two states of mind at two different times if beliefs are indeed chosen: the mental attitude with the intention to believe, and a mental recognition that one now holds that belief. Equally, if it is accurate to say that we cannot choose beliefs, it is the case that (1) one intends to believe that x, and (2) one subsequently does not hold that belief; alternatively, it could be the case that one did not intend to believe that x but one does anyway. If beliefs cannot be chosen, the former statement explains how people fail to believe things they would like to believe, while the latter describes how they form the vast majority of their beliefs. This understanding of choice should be compatible with any account of belief formation. I will now explore arguments against voluntary belief. William Alston's influential essay makes note of types of actions (before drawing the parallel to belief) according to how immediate they are to our control. Basic actions, such as raising my arm, are performed entirely at will. There seems to be no figurative room between the decision to perform a basic action and the action’s completion. This is clearly not comparable to how people enter states of belief. I can’t, as simply as raising my arm, start to believe that the Earth is flat. Even if I were offered $10,000,000 for it, I could not elect that belief. The same is true for less direct forms of control. I can’t begin a mental process that will, in one hour or one week, result in my believing the Earth is flat. A response to this example might be that it’s problematic because I have too much previous knowledge about the Earth. After all, I’ve been told it’s a globe and seen documentaries about the planets since I was a child. Perhaps people can choose beliefs when they don’t already know something about the topic. Take Rebecca, who knows little about biology. Can Rebecca simply choose to believe that humans share 90% of our DNA with chimpanzees? It’s clear that she can’t do this because she’s encountered no evidence to support that belief. There is one form of belief control that philosophers commonly accept, which is long-range influence. Rebecca can’t choose to believe how much DNA humans share with a chimpanzee, but she can look into it. If she starts to research genetic similarities between the two species, she is likely to bring herself to form a belief about it. After a few hours of research, Rebecca is justified about her belief on that topic. Observe that she didn’t form a belief in the way a doxastic voluntarist (beliefs are chosen) would claim. She didn’t make herself believe her original hypothesis that the number is 90% because (unless there was a strange coincidence) the research will show that number to be different. In other words, Rebecca has influenced a belief on the subject of DNA similarity between humans and chimps, but she hasn’t elected to believe anything. The specification of her belief was up to the research she found. Alston addresses the claim that perhaps we can control beliefs when there is a decent amount of evidence both affirming and denying that x. For a controversial belief, such as the existence of God, there are important considerations in religion, science, and ethics that should guide an internal debate. Assume that religious and nonreligious people make good points while trying to convince someone to agree with them. Does one have a choice here? Alston argues that these situations still don’t bring choice of belief because despite the lack of conclusive evidence, “the belief follows automatically, without intervention by the will.” While an evidentialist might claim that we are obligated to suspend judgement on a proposition until there’s conclusive evidence, there are many practical situations that call for action when we aren’t (by the standards of epistemic justification) validated in forming a belief. Alston claims that we form whatever belief seems more likely to us. Under the account of epistemic justification (when are we justified in believing that x) that Alston and I accept, one can believe that x when his epistemic practices are sound and there is reliable evidence in favor of the proposition. When there is evidence for and against x¸ this account is not satisfied because it violates the epistemic principle of suspending judgement when credible evidence conflicts. If one looks for contrary evidence and finds it, one becomes obligated to seek additional verification before believing. What appears to be missing from Alston’s perspective is an important distinction to account for actions that aren’t motivated by epistemically-justified beliefs. In many situations, despite how we act, we should not regard our attitude toward proposition x as a belief, but rather a hypothesis. It’s a mistake to assume that because there are situations which require us to act from uncertainty, we must form a belief one way or another. Imagine the situation of thinking I might have forgotten to lock my car as I arrive at class. I usually, by habit, hit the lock button on my key after closing my door, but I don’t recall hearing the doors lock shut after I did this. My mind was also pretty occupied on the readings I’d just finished, so it’s possible I just tuned out the sound. My possible choices, according to a doxastic voluntarist, are to believe that I did lock the door and do nothing or believe that I forgot and run out to lock it. Alston would argue that these aren’t choices—one will simply appear more likely to me and I’ll believe one proposition or the other. In fact, I don’t have to form any belief about the car. In this situation, I have to act as if I believe something, but that action can just be based on a guess. Of course, an agent in my example does have beliefs such as “my car might be unlocked.” When I say that the person doesn’t have a belief, I’m referring to the ultimate question being considered, which is whether the car is or is not locked. My account of (non)belief and action will use the words ‘hypothesis’ and ‘guess’ for lack of better terms, but I mean to use them in cases where something’s truth likelihood is greater than a shot in the dark, say 50/50. In my car’s uncertain state of being locked, I can make the hypothesis that it isn’t locked without actually believing this. Perhaps I run outside and lock the door again, learning that I had actually already done so. When I get back, my friend Lucas asks where I went and I explain. “You thought you didn’t lock it?” he asks. “No,” I reply. “I had to do something, so I operated as if I hadn’t locked it, but I wouldn’t say I believed it was unlocked either.” From the perspective of a general fighting a difficult war, it’s entirely possible that the enemy will show up here or there, but the general must act. In spite of that action, the general also suspends epistemic judgement when he orders troops to a certain location. He is going with his best idea of what’s likely. It’s not necessarily true that the general believes the enemy will be at that location, but if he does, it’s an involuntary and unjustified belief. At play in these examples is a difference between ordinary and philosophical meanings of ‘believe.’ I am arguing for a higher standard, which is when one really judges x to be true. We may use ‘belief’ as a weaker term in conversation because we use ‘know’ when we’re more confident. Yet, philosophers usually demand a higher standard of proof than others to say one knows something, so my distinction isn’t misplaced. This account of belief-action strengthens our understanding of epistemic justification. Indeed, it’s wrong to say that a person is justified to adopt a position when both x and ~x are backed up by evidence not only because the standards of justification have not been met; explicating belief to say one believes that x only when one sincerely finds it true, we see that a person doesn’t necessarily choose to form a belief in scenarios of conflicting evidence, even when such scenarios require action. Alston notes that even if it were true that in these cases one chooses to believe x or ~x, that would not provide a foundation for a comprehensive voluntarist account. A limited number of propositions genuinely appear ambiguous, especially when stacked against the natural, unquestioned beliefs people operate on daily. In conjunction with previous arguments against one’s ability to choose beliefs, the case for doxastic voluntarism is crippled. Here's the citation for the paper I discuss by William Alston. William P. Alston, “The Deontological Conception of Epistemic Justification,” Philosophical Perspectives 2 (1998): 263-266.
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