"Today, we must decide whether an employer can fire someone simply for being homosexual or transgender."

"The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbid.

Writes Justice Gorsuch, and Chief Justice Roberts is with the majority as well.

The answer is clear, because we've got 2 of the conservative justices joining the liberals. Nice work!

I'm reading the live blogging at SCOTUSblog.

Here's the PDF of the opinion. 172 pages. SCOTUSblog explains:

Alito has a long dissent with at least 4 appendixes, Appendix D is full of images of government forms....

kavanaugh [dissenting] ends with: "Notwithstanding my concern about the Court’s transgression of the Constitution’s separation of powers, it is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans. Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result. Under the Constitution’s separation of powers, however, I believe that it was Congress’s role, not this Court’s, to amend Title VII. I therefore must respectfully dissent from the Court's judgement. "

ADDED: From Alito's dissenting opinion, we see how much everyone pays obeisance to Justice Scalia:

The Court tries to convince readers that it is merely enforcing the terms of the statute, but  that is preposterous. Even as understood today, the concept of discrimination because of “sex” is different from discrimination because of “sexual orientation” or “gender identity.” And in any event, our duty is to interpret statutory terms to “mean what they conveyed to reasonable people at the time they were written.” A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 16 (2012) (emphasis added). If every single living American had been surveyed in 1964, it would have been hard to find any who thought that discrimination because of sex meant discrimination because of sexual orientation––not to mention gender identity, a concept that was essentially unknown at the time.

The Court attempts to pass off its decision as the inevitable product of the textualist school of statutory interpretation championed by our late colleague Justice Scalia, but no one should be fooled. The Court’s opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated––the theory that courts should “update” old statutes so that they better reflect the current values of society. See A. Scalia, A Matter of Interpretation 22 (1997). If the Court finds it appropriate to adopt this theory, it should own up to what it is doing.

Many will applaud today’s decision because they agree on policy grounds with the Court’s updating of Title VII. But the question in these cases is not whether discrimination because of sexual orientation or gender identity should be outlawed. The question is whether Congress did that in 1964.

I understand your argument, but right now, I am busy applauding.

ALSO: This does help Trump, of course.

PLUS: Here's something from the Gorsuch majority opinion:

By discriminating against homosexuals, the employer intentionally penalizes men for being attracted to men and women for being attracted to women. By discriminating against transgender persons, the employer unavoidably discriminates against persons with one sex identified at birth and another today. Any way you slice it, the employer intentionally refuses to hire applicants in part because of the affected individuals’ sex, even if it never learns any applicant’s sex....

We agree that homosexuality and transgender status are distinct concepts from sex. But, as we’ve seen, discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second. Nor is there any such thing as a “canon of donut holes,” in which Congress’s failure to speak directly to a specific case that falls within a more general statutory rule creates a tacit exception. Instead, when Congress chooses not to include any exceptions to a broad rule, courts apply the broad rule. And that is exactly how this Court has always approached Title VII. “Sexual harassment” is conceptually distinct from sex discrimination, but it can fall within Title VII’s sweep. Oncale, 523 U. S., at 79–80. Same with “motherhood discrimination.” See Phillips, 400 U. S., at 544. Would the employers have us reverse those cases on the theory that Congress could have spoken to those problems more specifically? Of course not. As enacted, Title VII prohibits all forms of discrimination because of sex, however they may manifest themselves or whatever other labels might attach to them.

When Jake Tapper asked Michigan Governor Gretchen Whitmer to explain her belief in Christine Blasey Ford and not Tara Reade...

... she really got desperate. Let's look at the transcript from last Sunday's "State of the Union." Tapper asks a completely fair and well-stated question:

TAPPER:  You have said that you believe Vice President Biden. I want to compare that to 2018, when you said you believed Dr. Christine Blasey Ford after she accused now Justice Brett Kavanaugh of assault. Kavanaugh also, like Biden, categorically denied that accusation. And Blasey Ford, to be honest, she did not have the contemporaneous accounts of her view of what happened that Tara Reade does. You have spoken movingly about how you're a survivor — survivor of assault yourself. Why do you believe Biden, and not Kavanaugh? Are they not both entitled to the same presumption of innocence, regardless of their political views?

WHITMER: You know, Jake, as a survivor and as a feminist, I will say this. We need to give people an opportunity to tell their story. But then we have a duty to vet it. And just because you're a survivor doesn't mean that every claim is equal. It means we give them the ability to make their case, and the other side as well, and then to make a judgment that is informed. I have read a lot about this current allegation. I know Joe Biden, and I have watched his defense. And there's not a pattern that goes into this. And I think that, for these reasons, I'm very comfortable that Joe Biden is who he says he is. He's — and you know what? And that's all I'm going to say about it. I really resent the fact that, every time a case comes up, all of us survivors have to weigh in. It is reopening wounds. And it is — take us at our word, ask us for our opinion, and let's move on.

Let's move on?! The question does ask her to answer as a survivor, and she began her answer "as a survivor and as a feminist." She didn't object to being asked as a survivor until after she'd answered, though she did begin by expanding her status from "survivor" to "survivor and... feminist."

But after quickly answering, she registered her objection: She resents that her survivor status makes her a target of questions about sex assaults. It reopens the old wound. But she does want to be asked. She wants to get the question, to answer it quickly, and to be believed as a commentator on the things that happened to other people: "take us at our word, ask us for our opinion, and let's move on."

I certainly believe it's her opinion that Kavanaugh did what Blasey Ford said he did and Biden did not do what Tara Reade said he did, but why is that her opinion? Is it only because of what political side Whitmer is on? If so, I can understand telling us to move on. Don't look too closely at that.

Notice how Whitmer stopped herself in the middle of her explanation of why Biden's denial is more believable than Kavanaugh's: "I'm very comfortable that Joe Biden is who he says he is. He's — and you know what?" She decided not to go on about her reason why but to switch to attacking Tapper for asking the question. You know what? I resent the question! Let's move on!

That seems to give the game away. Her reason was that she's on Biden's side. It's like the way Bill Clinton was treated back in the 90s — complete with the old "move on" catchphrase.

Tapper defended himself:

TAPPER: Well, just for the record, the reason I'm asking you is because you're the only Democrat on the show today, not because you're a survivor, and not because you're a woman. But thank you so much for your time. I want to...

Well, he did present her survivor status as a basis for authority on whom to believe. He said "You have spoken movingly about how you're a survivor... of assault yourself: Why do you believe Biden."  She may have been "the only Democrat on the show today," but why was she  the only Democrat on the show today? Looking at the whole transcript, I think it was because of the protests against the lockdown in Michigan. I can see how maybe she felt ambushed by that extra question.

She responded to his self-defense:

WHITMER: Yes. No, and it's not a criticism of you, Jake. It's not a criticism of you. You're doing your job, and I appreciate that. I'm just sharing, I think, some of the simmering anger that we survivors have every time that we have got to confront this from someone else's behavior that we weren't a party to, that we weren't even a part of the reality in the moment. What I think is this. We owe it to every woman who has a story to listen to that story, and then to vet that story, ask the questions and be critical thinkers, and then make a judgment, based on all of those pieces. I have done that in this instance. And I will tell you this. I don't believe that it's consistent with the Joe Biden that I know. And I do believe Joe, and I support Joe Biden.

There is no further question, but here are the questions I would ask:

Does it all depend on who you know? If someone you know is accused, you disbelieve the accuser, but if someone you don't know is accused, you believe the accuser? Or does that depend on whether you like that person you know or the person you don't know? Seriously, what is the rule going forward as these accusations arise — especially in the context of a nomination for a high office, where there is the temptation to try to find a shortcut to bring someone down? We can't make it easier and easier to destroy a candidate, and it can't work — it shouldn't work — to stand up for the candidates we support and to participate in the destruction of the candidates we oppose, so don't you need to reexamine your position on Brett Kavanaugh if you want fair-minded people to accept your vouching for Joe Biden? You say we need to listen to every story, vet that story, and be critical thinkers, but where is the critical thinking in your distinction between Brett Kavanaugh and Joe Biden?

ADDED: Rereading this post, I noticed a point where Whitmer deviated from supporting Biden and said something that I think is properly respectful of the problem of due process to the accused. In her response to Tapper's self-defensiveness, after she rejected the idea that she was criticizing him, Whitmer talked about the "simmering anger" that survivors feel as they are called upon to look at the evidence and weigh in on whether the accused is guilty or innocent. She doesn't like having "to confront this from someone else's behavior that we weren't a party to, that we weren't even a part of the reality in the moment."

I'm not sure exactly what that meant. Maybe it's the idea of reopening the wound. To judge what happened you have to hear the evidence and imagine the entire scene, the events, and put yourself inside of it and to use your own personal experience to form a belief about whether it is true. That's a painful ordeal, and those who impose it on the survivor ought to be more aware of what they are doing.

Maybe it's the idea that fact-finding is truly difficult. It's difficult in a courtroom trial, with all of the safeguards of cross-examining witnesses under oath and a judge excluding improper evidence and meticulously instructing a sworn-in jury about the legal standards. And it's all the more difficult when we've got allegations passed along in newspaper articles and amplified by political partisans. Whitmer may have been saying — just in that one sentence — that she is in no position to give the accused the due process he deserves.

"It could be false accusations. I know all about false accusations. I’ve been falsely charged numerous times. And there is such a thing. If you look at Brett Kavanaugh, there’s an outstanding man. He was falsely charged...."

From yesterday's press briefing:

Speaker 7: Follow up regarding the Joe Biden, your campaign and surrogates going after him pretty hard with regard to these allegations from Tara Reade, what do you say to Joe Biden-

Donald Trump: I don’t think so. I don’t think they’re going after him hard with regard to Tara.

Speaker 7: What do you think of the allegations and what do you say to Joe Biden?

Donald Trump: I don’t know anything about it. I don’t know exactly. I think he should respond. It could be false accusations. I know all about false accusations. I’ve been falsely charged numerous times. And there is such a thing. If you look at Brett Kavanaugh, there’s an outstanding man. He was falsely charged. What happened with him was an absolute disgrace to our country. And I guess three of the four women have now admitted that. And of the fourth, give me a break. I mean, take a look. 36 years. Look, this is a fine man. I saw a man suffering so unfairly. I’m talking about Brett Kavanaugh. But I don’t know, I can’t speak for Biden. I can only say that I think he should respond. I think he should answer them.

Here are some question to ask Democrats who are supporting Biden in this: In retrospect, do you regret the way your party treated Brett Kavanaugh? What do you say to people who believe in equal treatment for anyone who faces accusations like this and who see your different treatment of the 2 men as nothing but partisanship?

I know how they will try to answer. They'll say Christine Blasey Ford was credible in a way that Tara Reade is not. Meanwhile, anti-Biden partisans say the opposite — Tara Reade is credible in a way that Christine Blasey Ford was not.

Biden promised to pick a woman VP, but because they are women, the possible choices are all under special pressure over the Tara Reade allegation against Biden.

This is the old backwards in high heels problem all over again!

Or is it?

This is the trouble with affirmative action. You get advanced to the front, but it comes with a catch. Biden wants a woman partner to help him out with woman things. Where's the feminism in that?

I'm reading "Here’s What Biden’s VP Shortlist Said About The Kavanaugh Allegations/Whichever woman Joe Biden picks to be his running mate will have a lot of explaining to do on past positions about sexual assault" (in The Federalist).

I've only read the headline so far, and I am irked. Female candidates should have the same status as male candidates, not special woman's work. We missed our chance to get a female presidential candidate, and a female presidential candidate is, clearly, required to take on all the work of the presidency. The equality of the sexes is locked in. But with a VP candidate, we have some mixed up ideas about what this person is for — not so much the backup President, but someone to help get through the election. Biden wants the show of having a woman, and now he particularly needs a woman to vouch for him as he's accused of sexual assault.

It's woman's work!

What a disgusting predicament. Now, let me try to read the article. Ah, this does not tell us what the various women are saying now about the Tara Reade allegations as they offer themselves to Joe Biden for his purposes. It simply collects what they said about Kavanaugh. So this sets them up to look hypocritical and ludicrous when they clamor for the big man's attention.

Biden should do his own work here. So far he's been silent. I want to say he's hiding, but I read this in the New York Times: "Joe Biden Is Not Hiding. He’s Lurking." That's a column by Michelle Cottle. Her idea is that Trump is destroying himself, so the best strategy is to let him. And:

[Biden] has to pick his moments, especially with personal appearances, to avoid seeming to undermine the president during a national meltdown. Criticisms must be targeted and measured... [W]ithout a frontal assault, he will have a tough time getting attention. The media respond to heat more than light. But that is Mr. Trump’s turf, and those who try to play on it tend to get burned.

Mr. Trump's turf is heat, and if you play on it — I picture a flaming golf course — you get burned.

None of that excuses Biden for doing nothing about the Tara Reade allegations when the women who are in the running for the VP nomination are all getting pressure to address the "woman's" issue.

I'm seeing this at BuzzFeed News: "Democrats Will Have To Answer Questions About Tara Reade. The Biden Campaign Is Advising Them To Say Her Story 'Did Not Happen.'/Joe Biden has yet to personally address Tara Reade’s sexual assault allegation, but his campaign has circulated talking points." Biden is silent but his campaign sent out talking points "earlier this month":

“Biden believes that all women have the right to be heard and to have their claims thoroughly reviewed,” the talking points read, according to a copy sent to two Democratic operatives. “In this case, a thorough review by the New York Times has led to the truth: this incident did not happen.”

“Here’s the bottom line,” they read. “Vice President Joe Biden has spent over 40 years in public life: 36 years in the Senate; 7 Senate campaigns, 2 previous presidential runs, two vice presidential campaigns, and 8 years in the White House. There has never been a complaint, allegation, hint or rumor of any impropriety or inappropriate conduct like this regarding him — ever.”...

Biden’s campaign’s talking points say the [New York] Times story served as proof that Reade’s allegation “did not happen” — but the story did not conclude this, nor did it conclude that an assault definitively did happen...

The Biden campaign also pointed to the former vice president’s lead role in crafting the Violence Against Women Act....

"I think this case has been investigated,” Sen. Amy Klobuchar said in an MSNBC interview earlier this month, pointing to the New York Times article a few days after its publication.... “I know the vice president as a major leader on domestic abuse. I worked with him on that. And I think that, again, the viewers should read the article. It was very thorough.”...

Sen. Kamala Harris said in a recent podcast interview that Reade “has a right to tell her story” and that she could “only speak to the Joe Biden I know. He’s been a lifelong fighter, in terms of stopping violence against women.”

Straight out of the talking points!

AND: I'm seeing this, in Politico this morning: "Tara Reade allegations stir Democratic unrest/Democrats are reassessing the potential damage to Joe Biden after new details surface." Maybe some delurking is in the offing.