A group of philosopher professors have filed an amicus brief in Bostok v. Clayton County, one of the consolidated cases before the Supreme Court on the question of whether Title VII applies to bar discrimination against gays/lesbians or transexual persons. More accurately, does the term "sex" in the statute cover sexual orientation or gender, or is it limited to discrimination against male and female persons because male or female? There are very interesting arguments on this. As to this amicus brief, I have a couple of questions. Although the brief was drafted with the aid of a law professor, it really is signed by something like 80 academic philosophers. Of course none of them wrote it. But, the argument is quite philosophical. It shortest form, it comes to the claim that discrimination against, e.g., gay men, one necessarily discriminates on the basis of sex because their sex identification is intrinsic to the sexual orientation. That one cannot discriminate on the basis of sexual orientation without at the same time discriminating on the basis of sex. Read the brief for the details. My concerns are not with the argument, not here.
First, who is the brief aimed at? Which justice(s) are likely to be interested in an analysis endorsed by academic philosophers? take out the suggestions of sarcasm. A useful amicus brief is one calculated to address the interests of one or more justices. So, when the question involves some opportunity for originalist analysis, a brief from legal historian may be of interest to one or more Justices. (They don't seem interested in the work of historians simpliciter, the folks whose careers are made up of studying, e.g., colonial America. Legal historians are something else.) Chamber of Commerce submit briefs on economic and business issues. The point is, which Justice is reading philosophy? If none are, is this aimed at a particular (set of) clerks?
Second, most of the academics have no particular expertise in law, or constitutional law. Why is the interpretation of a statute a topic which philosophers have any special expertise? What is it really that is being offered (in addition to 'here are a bunch of people who want this outcome' -- which is not valueless) in the brief these folks know better than others? Again, strip out any suggestion of sarcasm. I am wondering about how this is supposed to be understood.
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