OA397: Explaining Bostock v. Clayton County


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By Thomas Smith and Andrew Torrez, Thomas Smith, and Andrew Torrez. Discovered by Player FM and our community — copyright is owned by the publisher, not Player FM, and audio is streamed directly from their servers. Hit the Subscribe button to track updates in Player FM, or paste the feed URL into other podcast apps.

This episode breaks down exactly what happened in the Supreme Court's surprising 6-3 decision in Bostock v. Clayton County holding that discrimination on the basis of sexual orientation and/or gender identity is discrimination "because of sex" under Title VII of the Civil Rights Act of 1964. It's a great decision, we tell you why, and we give you some additional insights about Neil Gorsuch.

We begin by diving into the case! We tell you exactly what it does (and doesn't) mean, figure out why this case took so long to get to a decision, and how it's exactly the ruling we thought might have been possible ever since the 7th Circuit's en banc decision in Hively v. Ivy Tech that we discussed way back in Episode 60.

In figuring that out, we discuss the narrow differences between "texualism" and "originalism," even though this show tends to lump them together.

As part of the analysis, we take a look into Neil Gorsuch's voting patterns to see if he's a secret liberal. Hint: he isn't.

After all that, it's time for the #T3BE answer on Constitutional law. Can the university fire a professor for her political views? Listen and find out!

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Show Notes & Links

  1. Go ahead and read the Court's decision in Bostock v. Clayton County for yourself if you haven't yet.
  2. We discussed the 7th Circuit's en banc decision in Hively v. Ivy Tech back in Episode 60, with specific emphasis on the Flaum & Ripple concurrence. We also discussed R.G. & G.R. Harris Funeral Homes in Episode 167.

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