Opinion: Why Scalia should have loved the Supreme Court’s Title VII decision
, you couldn’t do better than this case. Just as Congress broadly prohibited hiring foreigners in 1885, so, too, it broadly prohibited sex discrimination in 1964. And just as it was inconceivable that Congress had meant to bar the hiring of Christian pastors, so, too, it was absurd to think that, 56 years ago, Congress wanted to protect gays, lesbians and transgender people..
So if employees John and Joanne both have crushes on Sarah, and Joanne but not John gets the boot, how could Joanne not have suffered illegal discrimination on the basis of her being female, her biological sex? Or if John, biologically male, becomes Jane and comes in wearing a dress like Joanne’s, and is fired for it, while Joanne, born female, keeps her job, how is that not illegal sex discrimination as well? Justice Neil M. Gorsuch’s textualist answer for the court: Both cases describe wrongs.
For his part, Justice Brett M. Kavanaugh said “it was Congress’s role, not this Court’s, to amend Title VII.” But his separation-of-powers argument actually cuts the other way. Congress has
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