"Can it be seriously argued that one of the aims of Title VII is to outlaw employment discrimination against employees, whether heterosexual or homosexual, who engage in necking?" —Literally Justice Alito.
I just want to underscore that I am using the word "literally" literally literally here, and that that is literally a literal quote from Alito's literal dissent.
For those who are curious, Alito uses "necking" here because a 1966 dictionary defined "sex[ing] it up" as "passionate necking," and he's attempting to demonstrate that "sex," as the term was used in 1964, didn't include gay sex.
This is, of course, absurd for two reasons. First, Gorsuch doesn't claim the Civil Rights Act defines "sex" as who you have sex with, but as what your sex is. So Alito's ninth-grade musings about "what counts as sex" are irrelevant.
The second reason it's absurd is that THE TERM "SEX" ABSOLUTELY INCLUDED GAY SEX IN 1964.
"In these gangs usually some homosexual sex play takes place." —Harms, "Handbook of Child Guidance, 1947.
"It has been suggested that boys might learn homosexual ways by engaging in sex with brothers." —"Abstracts on Criminology and Penology," 1962
"The Model Penal Code does not penalize private, illicit sexual relations, whether heterosexual or homosexual." —"ABA Journal" (!), 1963.
So Alito's argument that the folks who wrote the Civil Rights Act didn't know about gay sex, or didn't think of gay sex as sex, is not merely preposterous, pointless, and silly, but also provably false.
BTW, a supporting element of Alito's claim here is that the term "sexual intercourse" is one that refers exclusively to "heterosexual sex acts," or at least did in 1964. (He's a bit vague on what he's arguing.) But that too is ... you guessed it ... provably false.
The phrase "homosexual intercourse" is attested a bunch of times in the early 20th century, but this, from Krafft-Ebing in 1906, is surely the most glorious example: "Hypersexuality also leads faute de mieux to homosexual intercourse."
(Krafft-Ebing is referring specifically to lesbianism here, and particularly to inmates of prisons [and] daughters of the higher classes of society" who may be seduced by "female servants...or lady friends with perverse sexual inclinations, and lady teachers in seminaries.")
Nobody show that quote to Alito. It might just blow his mind.
