Against Procrustean Law: II. Justice Gorsuch’s Error in Logic

Posted on ; Last updated on June 29, 2022
Justice
Justice

Preface

To paraphrase Plato, the price we pay for indifference to reason is to be ruled by unreasonable people. On a personal level, I seek to understand the laws that affect or govern my life. If I cannot understand the laws, but am forced to abide by them, I’m no different from a slave; On a societal level, true democracy depends on reason. A democratic society is healthy only so long as its laws are reasonable, understood and consented to by the people. A democracy not governed by reason is no different from tyranny.

While reading the majority opinion in Bostock v. Clayton County, I’m baffled why a perceptive legal mind like Justice Gorsuch would make arguments that seem illogical to me. I have a déjà vu feeling that either I’m crazy or the world has gone crazy. So I’m posting my thoughts here in the hope that fair-minded readers would correct me.

Although I disagree with Justice Gorsuch’s logic, I admire his philosophical temperament. In his two opinions that I’ve read, he has shown a willingness to understand dissenting opinions in every way possible, and address the substance of their arguments graciously. I’ll try to imitate his example, and respond in kind.

Reading Law

According to Title VII of the Civil Rights Act of 1964

it is “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin,”

In Bostock v. Clayton County, the Supreme Court of the United States had to decide whether discrimination based on gender identity or sexual orientation constitutes discrimination based on sex. Three dissenting Justices pointed out that Congress could add sexual orientation and gender identity to the list of protected traits, but as it stands now, the Civil Rights Act does not include them. Justice Gorsuch, writing for the majority, reasoned that it does: “It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” Why? Because “if the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.” In other words, if a man suffers injurious consequences for doing things that a woman can do with impunity, then he is discriminated against based on sex, and vice versa.

To my mind, Gorsuch’s logic errs in four respects:

1. Proportional Equality

First and perhaps foremost, he confuses discrimination based on sex with applying “sex-based rules”. The former is illegal, but the latter is not, at least not per se. There are many age-based rules in our society, which do not constitute discrimination based on age. For example, there is minimum age at which a person is allowed to drink, drive or marry. A person can be prohibited from engaging in these activities solely based on his age, but no court would rule that he is the victim of discrimination. In the same vein, applying sex-based rules is not necessarily sex-based discrimination. Otherwise, male athletes, if they so choose, can sue the IOC for sex-based discrimination because it bans male athletes from competing in female-only events.

Discrimination is unjust because it treats people who are equal as if they were unequal. Conversely, it is also unjust to treat people (and things) that are different as if they were the same. This is the principle of proportional equality expounded by Aristotle. If we abide by Gorsuch’s logic, we’ll have to suffer Procrustean laws that disregard all differences between individuals, which would be a grave injustice.

2. The Knowledge Test

One test for discrimination is whether the defendant has knowledge of the protected trait of the plaintiff, and uses that knowledge to discriminate against the latter.

In the Bostock case, the employer can implement the same policy without any knowledge of the sex of the employee affected by the policy, which is evidence that sex is not being discriminated against.

Gorsuch raises an objection: “Suppose an employer’s application form offered a single box to check if the applicant is either black or Catholic. If the employer refuses to hire anyone who checks that box, would we conclude the employer has complied with Title VII, so long as it studiously avoids learning any particular applicant’s race or religion?” In this hypothetical, the employer does know the protected traits of the individual, viz. his religion or race, or both, so the case would fail the knowledge test. It’s puzzling why Gorsuch doesn’t see it.

There is a reasonable objection to this test: The Court has ruled that banning interracial marriage constitutes discrimination because of race, although the race of the individuals involved may be unknown. I will address this later.

3. The Motivating Factor Test

Another test for discrimination is whether the protected trait is a motivating factor. As one attorney put it, “Imagine you gave the employer truth serum and said what were your true reasons for doing this? Would one of them be the protected trait?”

Gorsuch asked, “Wouldn’t the employer maybe say it’s because this person was a man who liked other men? And isn’t that first part sex?”[1]

Your Honor, the employer could answer without any reference to sex, “It is because this person was guilty of committing an act forbidden by the sacred text of our religion.” Or answer in a way that is not sex-specific, “It is because this person was attracted to another person of the same sex”.

Gorsuch confuses a cause of discrimination, i.e. motivating factor, with a prerequisite for said cause. He reasons that, because discrimination against sexual orientation is impossible without reference to sex, sex must be partly the cause of discrimination. It is a category mistake: sex is a prerequisite for sexual orientation, which may be a cause of discrimination, but sex is not (part of) the cause of discrimination.

Let me use an imperfect analogy to show the difference: if a man commits premeditated murder, his action necessarily involves his humanity (assuming for argument’s sake that animals can’t premeditate). If he were not a man, but a monkey, he would be subjected to a different judgment for the same act, but it doesn’t follow that he is discriminated against because of his humanity. The man is judged not because of his humanity, but because of his murderous act, though the latter is impossible without the former.

4. The Double Standard Test

To treat people who are equal as if they were unequal, is to apply a double standard. This is indicated by the “but-for” cause of discrimination, i.e., the individual would be treated in the same way but for the protected trait. If the same principle is applied (to the individual) regardless of the protected trait, there is no discrimination.

Gorsuch dismisses the double standard test, and argues that applying the same principle to both sexes may double rather than eliminate the liability.

First, the Court needs to establish liability first, before doubling it. Second, if the same principle is equally applied regardless of a protected trait, but still found to be liable for discrimination, it would suggest that the cause of discrimination is a different protected trait. The Court is barking up the wrong tree.

For instance, I tend to think that laws prohibiting interracial marriage are not necessarily racial discrimination per se, partly because the laws can be applied universally regardless of race, and partly because they may be motivated by a legitimate concern for the survival of the race. What makes them a discrimination case is the belief in the inequality of the races that these laws are historically rooted in, as Justice Alito pointed out in his dissent [2].

Discerning the Protected Trait

An individual’s morality, like his religion, can be a cause of discrimination, but it doesn’t quite fit in the existing categories protected by Title VII. To mistreat a person based on stereotypes, i.e., prejudiced conceptions, about the person’s race, sex or religion, not the person’s actual individual traits, constitutes discrimination based on race, sex, or religion, respectively; To treat a person differently because the person doesn’t confirm to stereotypical expectations of race, sex or religion, is discrimination based on morality. The former is about what the person is, i.e., facts, the latter is about what the person ought to be, i.e. moral judgment.

I would submit that, in interracial, inter-faith, or same-sex marriage cases, the protected trait is morality, not race, religion or sex. All these latter categories fail the three aforementioned tests.

To some extent, law is morality codified, so discrimination based on morality can be lawful. It becomes unlawful when done without properly constituted authority. In our divided culture, it is perhaps even more important to recognize unlawful discrimination because of morality. To impose one’s moral values upon others is another form of vigilantism: people usurp authority that do not belong to them. The moral standards they apply to judge others have not been agreed upon and consented to by the people on both sides, therefore they don’t have the proper authority to inflict punishment in a democratic society. When people are fired for expressing views or engaging in conducts that allegedly violate the moral values of their employers, values which are not articulated and agreed upon in a written contract, and have nothing to do with the job qualification and performance of the employee, it is unlawful discrimination based on morality.

Conclusion

Although I agree with the Court’s decision to protect people from discrimination based on sexual orientation or gender identity, I disagree with the logic and procedure employed by the Court to achieve that end. The end does not justify the means, for the same means will lead to unjustifiable and undesirable end. I’m concerned that by confusing sex and morality, the Court has established one morality in the law, and thereby discriminated against diverse others.

Notes:

  • ^1.During the oral argument, the attorney for the respondent put forth the question about motivating factor for the Court, but when Justice Gorsuch pressed him on it, he failed to address the question to the Justice’s satisfaction. Later the Justice gave the attorney’s friend another opportunity to address it, but he too failed. I get the sense that they lost their case then and there.
  • ^2.On a side note, advocates of same-sex marriage have analogized it to interracial marriage, and argued that to treat it differently from heterosexual marriage constitutes discrimination. I respectfully disagree. Homosexual relationship is different from heterosexual relationship, even as friendship is different from a sexual relationship. To treat these different relationships as if they were the same would be unjust. For instance, why should committed sexual relationships be granted tax and other benefits by the State, whereas committed friendships are barred from them? Historically, if I’m not mistaken, States had a compelling interest in promoting heterosexual marriages: it was a matter of survival. No marriage, no children, no future of the State.

Related Posts:

Related External Articles:

References:

Leave a Comment