Sorry about the anachronistic reference for the younger readers. Trump, or at least his Justice Department, evidently wants to run the clock back quite a ways, as they insert themselves into a lawsuit, as reported by Professor Andrew Koppelman in Fortune:
The opposing arguments by Justice and EEOC center on a case now before a federal appeals court, involving a sky-diving instructor, Donald Zarda, who was fired by his employer in 2010 after telling a female client he was gay. Zarda reportedly said this in order to prevent any awkwardness for the woman who would be tightly strapped to him during the sky-diving jump.
And what is the DOJ argument?
The Trump Justice Department argues in its brief that antigay discrimination is permissible because women and men are treated the same, even though it causes differential treatment of gay and straight employees. This is the same kind of reasoning that the Supreme Court rejected in 1967 when it struck down laws banning miscegenation and interracial marriage. That ruling struck down an 1883 decision in which the Court held that a law against interracial marriage did not discriminate against either race. The 1883 case argued that blacks and whites were barred equally from marrying members of other races. But the Court eventually understood that these laws relied on racial classifications. The same logic is likely to prevail with antigay discrimination: It flunks the test, laid down by the Court in 1978, of “treatment of a person in a manner which but for that person’s sex would be different.”
Sometimes it seems like when the reasoning starts to get deep, even if only ankle-deep, the wheels start coming off for Trump partisans. Do they just read each others’ reasoning without being critical? Old law review articles insisting on the rightness of rejected arguments? What?
