Neil Gorsuch Quotes

In fact, the insight of the double effect doctrine is not remotely theologic. As Justice Oliver Wendell Holmes, himself a frequent utilitarian critic of relying on intent, observed, "even a dog distinguishes between being stumbled over and being kicked." Of course, the question remains why should we, as a secular matter, care more about consequences that are intended versus those that are not? What wisdom, if any, lies behind this distinction? Justice Holmes' homespun illustration suggests the beginnings of an explanation. To kick a dog intentionally- to choose to hurt the animal- says something about the kicker, his or her way of interacting with animals and, perhaps, human beings- in short, it tells us at least something about the kicker's character and beliefs, about who the kicker is. By contrast, as Holmes seemed to recognize, watching a person trip over the dog tells us far less about who that person is or about the person's character or beliefs.

The consequences of the law’s focus on individuals rather than groups are anything but academic. Suppose an employer fires a woman for refusing his sexual advances. It’s no defense for the employer to note that, while he treated that individual woman worse than he would have treated a man, he gives preferential treatment to female employees overall. The employer is liable for treating this woman worse in part because of her sex. Nor is it a defense for an employer to say it discriminates against both men and women because of sex. This statute works to protect individuals of both sexes from discrimination, and does so equally. So an employer who fires a woman, Hannah, because she is insufficiently feminine and also fires a man, Bob, for being insufficiently masculine may treat men and women as groups more or less equally. But in both cases the employer fires an individual in part because of sex. Instead of avoiding Title VII exposure, this employer doubles it.

I immediately lost what breath I had left. And I am not embarrassed to admit that I couldn’t see the rest of the way down the mountain for the tears.

I ask my kids every semester when I teach ethics. I finish the semester by asking them to spend five minutes writing their obituary. They hate it. They think it is corny, and it might be a little corny. And then I ask them if they will volunteer to read some of them, and when they do, it always becomes clear people want to be remembered for the kindnesses they showed other people. And what I point out to them- what I try to point out- is that it is not how big your bank account balance is. Nobody ever puts that in their draft obituary, or that they billed the most hours, or that they won the most cases. It is how you treated other people along the way that matters. And for me, it is the words I read yesterday from Increase Sumner's tombstone [see page 321]. And that means as a person I would like to be remembered as a good dad, a good husband, kind and mild in private life, dignified and firm in public life. I have no illusions that I will be remembered for very long. If Byron White is nearly forgotten, as he is now and said he would be, I have no illusions that I will last five minutes. That is as it should be.

Of course, if the law offends the Constitution a judge may strike it down. But there’s nothing in the Constitution that forbids the people’s representatives from adopting stupid laws.

Sometimes small gestures can have unexpected consequences. Major initiatives practically guarantee them. In our time, few pieces of federal legislation rank in significance with the Civil Rights Act of 1964. There, in Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin. 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 forbids. Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.