Three Straight Dudes (and a Ghost) Weigh in on LGBT Rights

In 2015, it was gay marriage. In 2018, gay cakes. And in this shark-jumping year of 2020, June has brought us a ruling on workplace protections for LGBT people.

For all its faults, the Supreme Court does seem to get the optics of Pride Month.

The fun twist this time around is that the majority opinion was written not by RBG or Sonia “So-So” Sotomayor, but the great usurper Neil Gorsuch. Which means that, for a change, we get to hear from three different straight white guys regarding gay rights.

All three of them are committed to some serious hand-wringing about how they know, love, and cherish LGBT people - and (in the case of Alito and Kavanaugh) they wish the Civil Rights Act of 1964 had included sexual orientation and gender identity, they’re so sorry, obviously it should have, we all agree on that, but it just didn’t, gosh-darn-it, frowny-face-emoji!

A lot of Justin Timberlake in Bad Teacher “I just hate slavery so, so much!” energy.

It’s pretty funny to read, honestly. And maybe we can take it as a good sign that they're all pretending to believe that. It’s disingenuous lip service, but it’s what the future will see of them. At least the visible arc of the universe is bending towards justice.

The question is: when an employer fires an employee for being gay or trans, are they discriminating based on sex? So it all comes down to how these middle-aged dudebros define sex. And not in the fun, Bill Clinton way. We’re talking about sex in the seventh-grade biology class kind of way, unfortunately.

So let’s talk about sex, baby.

#1: G.

My man even looks dull in political cartoons.

Gorsuch (nicknames include Neil Bore-such, Neil Bore-suck, and Real Bore-suck, depending on one’s preferred pun-to-real-name ratio), seems to conceive of sexual orientation as an equation:

being gay* = being a man (sex) + being attracted to men

being a lesbian = being a woman (sex) + being attracted to women

*(for the purposes of clarity, I’m using gay here as a gender-exclusive term, like lesbian)

Therefore, if you’re fired for being gay, you’re fired for one trait that your employer tolerates in others (being attracted to men) and another that is protected (your sex.) And since it doesn’t have to be only your sex that causes the termination (a woman who is fired for being a mother, for instance, is still discriminated against for her sex) bada-bing-bada-boom, gays are a protected class.

It’s interesting to think about - (and I’m certainly happy about the effects that Gorsuch’s mental gymnastics will have) - but it’s kind of a stretch. It suggests that people are like Misters Potato Head, with traits that can be swapped in and out at will. Or it's John Locke’s idea of substances and properties, which I was led in Philosophy 101 to picture as a styrofoam ball with toothpicks sticking out of it.

And I’m pretty sure that’s an idea that only a straight person could come up with.

Pictured: daytime TV show host / evolution
denier Steve Harvey.

How did the anti-Gorsuch, Virginia Woolf, put it, in a passage from Mrs. Dalloway so beautiful and subtle you might not even realize it was about a lesbian fling?

“The strange thing, on looking back, was the purity, the integrity, of her feeling for Sally. It was not like one’s feeling for a man. It was completely disinterested, and besides, it had a quality which could only exist between women, and women just grown up. It was protective, on her side; sprang from a sense of being in league together, a presentiment of something that was bound to part them (they spoke of marriage always as a catastrophe), which led to this chivalry, this protective feeling which was much more on her side than Sally's.”

Now, some of the uniqueness of Clarissa's youthful feelings for Sally were because of the stigma against same-sex relations at the time. And that is relevant here. Because same-sex attraction is so often repressed, at least when you’re young, it is never going to be qualitatively identical to opposite-sex attraction. In fact, that was probably even more true in 1964 than today.

It is also inextricably bound up with her own sex; “being in league together" the key phrase. It's not the same as Clarissa's feelings for her husband, nor her husband's feelings for her. It's its own thing, qualitatively unique.

“Attraction to men” as a single trait rather than a weird abstraction strikes me as absurd. Maybe it’s possible that some Vulcans out there would consider people in those terms, but I doubt any actual queer person would use that language to describe themselves. It’s intersectionality in the most literal, additive sense. No sense of synergy. The business world would not be proud.

#2: A.

Sam “Saucy” Alito, on the other hand, holds that “homosexuality” is a trait unto itself, shared by gay men and lesbians alike. This is an abstraction, too, albeit one that serves very different ends. But it is just as indicative of a potato-head view of identity. 

Alito wrote a lot of words. Following the principle of “those who write the longest books have the least to say,” (present company included) let’s move on:

#3: K.

I can’t believe I’m saying this but Brett “The Boofer” Kavanaugh may have the most interesting take here.

He makes a distinction between literal meanings and the “ordinary meaning” of phrases, with lots of fun examples of things that could be read as meaning such-and-such. The term “vehicle” could include “baby stroller” but “no vehicles in the park” is never taken to mean that (except by people who actually enjoy language.) One to add to the mix: when a random guy on the street starts talking to you about how there are chemicals in the water, man, do not on any account agree with him on the grounds that, yes, hydrogen and oxygen are technically chemicals.

Kavanaugh’s refusal-to-interpret does remind me of when people claim that their arguments are just common sense; so obvious that they’re not actually arguments at all. They’re just stating facts. Just “telling it like it is. Being “objective.” And yet: Gorsuch, on the other side of the fence, says he’s doing the exact same thing.

I sometimes wonder if John Oliver's most enduring
legacy will be the popularity of the ending-a-sentence-
with-a-first-name thing and the subsequent rise of
"Karen" as a term of derision.

So Mr. Devils-Triangle's point is that yes, “discriminate based on sex” could be stretched to include sexual orientation but usually people don’t think of it as meaning that, so let’s not do it. It’s a lot of “don’t think too hard, folks. I may have gone to Harvard Law but I’m still just one of you. I drink beer, remember?” And it’s pretty lazy. If people had commonly understood discrimination based on sex to include sexual orientation, then we wouldn’t be here in the first place. This is literally why we have a Supreme Court, BRETT.

#3.5: Textualism

All of these justices are committed to “textualism,” which my spell check (I think rightly) does not recognize as a word. They claim they are not actually interpreting the text (that’s what dirty liberals due) but just sussing out what the text in itself actually says. Which, in the English literature world, is called New Criticism and, like many things with New in its name, is so old that no one does it anymore. (Think New Coke.) Because there’s no such thing as the text itself, or everything’s part of the text, depending on which post-structuralist you ask.

Despite the fact that these three men are all just looking at the text itself, staying within its “four corners,” they don’t agree on what it means. Almost as if they’re doing interpretation!

Now, if only they would admit it, then we could actually have a meaningful discussion about which interpretation makes the most sense. But they’re so committed to obscuring their own role; they’ve overlearned that personal pronouns are the worst sin a writer can commit - to the extent that they even say “the Court” when they mean “Neily Neil and his Lefty Bunch” and talk about what “it” has done and said. (Somehow animism is acceptable in this literalist tradition.) So you get two belligerent donkeys braying back and forth, making the same sound but meaning different things by it. “SEX!” “NO, SEX!” “NO, SEX!”

#4: The Ghost of Antonin Scalia

Like Hamlet’s dad or Bambi's mom, the ghost of Antonin Scalia looms large over the whole opinion. He’s their Syd Barret; their Kurt Cobain; their Marx. Not only do they cite his opinions and name-drop him continually, but every time they say “textualism,” they’re really saying “Scalia.” As if he’s Beetlejuice (or Bloody Mary) and saying his name enough will get him to appear. (Even a lot of the context around this decision refers to Gorsuch as occupying “Scalia’s seat,” which no, he doesn’t. If anything, it’s Merrick Garland’s seat. #Neverforget.)

And reading this decision does kind of make me miss that fucker.

Blowhard though he was, he was at least more entertaining than these dullards. He knew how to put some absurd into his reductios ad absurdum. Scalia would have written a blistering dissent here, which could then be turned into an epic song by Coheed and Cambria.

So WWASD?

Well, he’d accuse the liberal justices of trying to legislate from the bench, to rewrite history, to add 2020 sensibilities to 1964 terminology. Alito and Gorsuch try to do this too, but without Scalia’s wit and precision. The closest one of them gets is the quip “Seneca Falls was not Stonewall.”

I don’t think spectre-Scalia is necessarily wrong about this, but I’m not convinced it’s such a horrible thing. Why do we care so much about the only-Congress-can-make-laws thing? Clearly the Executive Branch hasn’t stuck to that playbook. Yes, separation of powers is built into the Constitution, but also, like, the Founders were just a bunch of guys trying stuff. Founding Fathers is misleading. They were just some bros. Madison was 36 writing the Federalist papers. Hamilton was even younger.

For context, Lin-Manuel Miranda is 40.

So Scalia would surely bloviate for awhile about textualism and originalism - you know, like how “arms” only means what it meant in 1789 and speech doesn’t include anything that George Washington couldn’t have done (Tweeting being perhaps the one skill that Trump has over old George.) And then he’d start having fun.

What about, my Antonin might ask, a person who is fired for being a male Indigo Girls fan? Imagine an employer who believed, absurdly, that the Indigo Girls were only for women. She allows and even encourages her female employees to blast “Closer to Fine” all the live long day, but when Joe (with an “e”) shows in with his vintage 1997 Lillith Fair t-shirt, he is sent packing. Go listen to Dave Matthews or Dispatch instead, he is told, like Tony-with-a-y or Rene-with-one-e, who are both allowed to keep their jobs.

Pairs nicely with paint-stained overalls.

Is Joe’s not an identity that is built upon two traits, one protected and one tolerated in others?

Or, old Scaly might continue, are those traits too easily separable for the Court? Must we find an example where the trait is “inextricably tied” to sex (nevermind that, in distinguishing attraction from sex, the Court has proven that they are, by definition, not inextricable.) Consider the Brony. A Brony is, by definition, a male fan of My Little Pony. One cannot be a Brony without being male. Are Bronies now a protected class?

Indeed, the Court is setting the precedent that any identity which is bound up with an employee’s sex - or race, for that matter - cannot be grounds for termination. So what about a black female employee who is let go for having a “poor attitude” and acting “aggressively” towards her co-workers? Couldn’t she make the argument that those terms are applied differently to those of different races and sexes? That a white man behaving the same way would be perceived as “take-charge?”

Are there any terms that it can be proven are not bound up with sex and race if an employer is aware of the employee’s sex and race? Don’t the libs believe (or claim to believe) that everything is connected to sex and race (and to everything else)? In order to prove equality of opportunity beyond a reasonable doubt in such a climate, there must be equality of outcome.

And so on and so forth. As The Dude said, in a movie I have not actually seen, he might not be wrong, but he certainly would be an asshole.

#5: So . . . 

So where does that leave us?

Scalia is dead and no one on the Court now is really filling his robe, though they’re all trying desperately to. But he would be the one to take the principles at stake to their natural conclusion, 

Or we could go with milquetoast (and milk-toast, for that matter, as long as the toast is made from white bread) Gorsuch and his arithmetic, Sims-person approach. A bad argument for a good end.

Or side with the boogeymen of the liberal wing, who like Mario or Link never actually get to speak for themselves here, but I suspect probably are trying to use their platform to advance the banner of progress, the letter of the law and the particulars of parliamentary procedure be damned. The theater is on fire; who cares if people are in their assigned seats!?

I just wish they’d own it. Congress certainly isn’t doing it any time soon.

And in any ordinary workplace, when one job isn’t getting done, and it needs to be done in order to keep the place running smoothly, you step up and do that job, even if it isn’t your assigned role?

What kind of McDonalds employee would let the burgers sit un-ketchuped just because Dalton is technically on Sauce Duty and he’s out back having an impromptu smoke break slash impromptu argument with his girlfriend?

Lot of libertarians get all hot and bothered about what is a state decision versus a federal one. It’s a jurisdictional argument and frankly - who gives a shit? Isn’t it better to have the federal government step in to protect the lives or liberty of vulnerable populations than sacrifice them to the altar of the 10th Amendment? It’s a mark of privilege to get to care more about who makes a decision rather than what decision is being made.

Division of labor may generally lead to productivity and impartiality, but it’s not sacred. It’s a means to an end. At some point you do have to start looking at the effects of your behaviors more than whether they adhere to some pre-designed system. And in terms of impact - this decision means that a lot of LGBT people will get to keep their jobs! Sure, it’d be nice if Congress would pass a real update to the Civil Rights Act, but in the meantime, I think I'm okay with a little bit of cheating.