, 8 tweets, 2 min read Read on Twitter
1. Judge Ho has a concurring opinion out in Wittmer v Phillips 66 that's basically an amicus brief to SCOTUS for why Title VII doesn't protect LGBT people. I have some thoughts.
2. I've read this footnote 15 times, and I still don't understand what he thinks the difference is between original legislative intent and original public meaning. It has the patina of logic, but it has no real content.
3. The historical record is clear that people in 1964 did not think that sexual harassment was sex discrimination. Courts said it wasn't through the mid-1970s. Of course it would have been surprising that that the statute would later be interpreted that way.
4. There is no actual historical grounding. It is just using hindsight to make faux empirical claims about what people should have anticipated even when they didn't anticipate it.
5. He also argues that Obergefell struck down marriage bans based on the fundamental right to marry, not sex discrimination. That's irrelevant but also incorrect. In its EP holding the court repeatedly invoked its sex discrimination cases.
6. Back to previous footnote. The whole point of original public meaning is to recognize that a statute/constitution can have a fixed meaning and still have unanticipated applications. But if you define the statute's meaning by its expected applications, then it makes no sense.
7. Aside from these contortions to get around Oncale, it is concerning that Judge Ho and DOJ think that Title VII doe not require that sex be irrelevant the same way race is irrelevant. Supreme Court explicitly said it Manhart that sex has be treated just as irrelevant as race.
What’s really telling about the opinion is that Judge Ho admits that if T7 requires employers to be “sex blind” then it bars discrimination based on sexual orientation or gender identity. He thinks in order to make his case he has to argue that sex is different than race under T7
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