, 7 tweets, 2 min read Read on Twitter
In the 5th Circuit today, Judge James Ho wrote a concurring opinion to his own majority opinion in order to opine (unnecessarily to the ruling) on why he thinks LGBT people should not be protected by existing federal sex discrimination bans. documentcloud.org/documents/5729…
Ho, a Trump appointee to the 5th Circuit, has been on the appeals court bench for just over 13 months. In the majority opinion, which resolves the case on other grounds, Ho wrote about a 5th Circuit opinion from 1979, which he insists is still good precedent in the circuit.
Judge Patrick Higginbotham, a Reagan appointee to the 5th Circuit, wrote separately to note — albeit without ~quite~ saying it — how ridiculous that is.
The third judge on the panel, Judge Jennifer Elrod, a George W. Bush appointee, did not write.
In sum, there was no disagreement about the case itself, which was resolved on the specifics of the claim and not on the law, but there was a bubbling disagreement under the surface — even among 3 Republican-appointed judges — about LGBT protections under existing federal law.
Big side-note here for me: I am so mad we never got to see the 5th Circuit marriage opinion. Higginbotham was the key, middle vote on the panel.
The 5th Circuit held arguments before SCOTUS granted cert in the 6th Circuit cases, but then they held the 5th Circuit cases once SCOTUS granted cert in the 6th Circuit ones. And post-Obergefell decision, just resolved them in light of that.
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