How sure you need to be depends on what you’re doing (Or: As usual I think social media discussions are missing a more fundamental disagreement, this time about a SCOTUS nominee)

Brett Kavanaugh is being considered for a position on the Supreme Court of the United States. He’s also been accused of sexual assault. This information has been all over social media lately, and there seems to be, as there often is, a fundamental disagreement behind the arguments. On the surface, we see basic support versus opposition of the man. There are some straightforward statements of believe in Kavanaugh or else the women who have accused him, mostly prominently including Dr. Christine Ford. There is also quite the range of more general claims. For instance, some people are saying that you should always believe someone accusing someone of sexual assault. Others are taking the opportunity to speak up about what they take to be a worrying trend of false accusations. But these generalities are harder to grasp, so let’s look at the particular case at hand.

In this particular case, besides the basic disagreement about facts, there’s a prior disagreement about how sure either way you need to be to claim to believe in one side or the other. Or, more straightforwardly, to take one side or the other. What actions or consequences are at stake on a belief one way or the other change how easily we’ll take a side or make a belief claim.

A common way philosophers model sure-ness is by using what are called “credence levels,” numbers between zero and one that represent how confident one is in the truth of a statement.  I’m probably 99% sure it’s not going to snow in Phoenix tomorrow morning. Maybe even more sure than that. So I have a credence level of .99 for that. I think I have three decks of cards in my closet, but I’m not super sure. I wouldn’t even bet on even odds. My credence level is maybe .3.

These credence levels are also nifty for expressing how sure of something to be to act a certain way. For instance, in the US, a guilty verdict requires “proof of guilt beyond a reasonable doubt.” This is often expressed as requiring a credence level for the guilt of .99 or higher. But in a civil case, the standard is just believing the verdict is more likely than not. That is, .51 or higher. You can pick all kinds of cases. If you really hate rain, then maybe you only need a .1 credence level that it’ll rain tomorrow to bring an umbrella.

But before you can pick a requisite credence level in a given belief for a given action, some sort of goal is required. Or multiple goals. We have competing values that push us in either direction. I don’t want to get all wet walking to work, but I also don’t want to needlessly carry around an umbrella. I don’t care that much about staying dry, but carrying an extra umbrella annoys me a fair bit. So I need probably a .9 credence level that it’s going to rain. We want to have a functioning justice system, but we really don’t want to punish the innocent. Better a hundred guilty people go free than one innocent person get locked up. So we need that credence level of .99.

The difference in rhetoric of Kavanaugh’s supporters and detractors is revealing of entirely different focuses. The opposition is generally mostly focused on keeping a rapist out of the Supreme Court. For that end, you don’t seem to need to be all that sure. You might even, as I do, flip the proof of guilt beyond a reasonable doubt around to proof of innocence beyond a reasonable doubt. The cost of being wrong is much higher if he’s guilty. Meanwhile even if he’s innocent, a replacement can easily be found. Given the plethora of options and importance of the position, we should be really, really sure that we get someone really, really good. If there’s any reason at all to suspect a Supreme court nominee is a rapist, then we should just move on to the next option. So my opposition to Kavanaugh in this regard only requires a credence level higher than .01 for his guilt. (It is in fact higher than that, though I haven’t spent a lot of time fine-tuning my position. The credence level is far enough above .01 that not much farther thought is needed.)

On the other side, Kavanaugh’s supporters focus on a few things. Shouting “innocent until proven guilty” is one route, suggesting a demand for a .99 credence level for his guilt being needed to deny him the job. But digging a bit into it, there’s more of a focus on some notion of justice. The actual consequences are secondary to the importance of doing the right thing. This would move the bar probably at least to .51. Either Kavanaugh is deserving of the position or he is undeserving, but that fact has nothing to do with the actual results of him getting it. The question comes more down to “Is he a good guy?” as a quasi-factual question about his character.

Some do appeal to some notion of “ruining his life” being a bad thing, to which the standard response is that not being on the Supreme Court does not constitute one’s life being ruined. The standard response to that is that his reputation is being destroyed. I’d be really surprised if anyone hinged their judgement of him on how the Senate votes. The damage, deserved or not, is done. But this does bring up the presence of various actions to take or beliefs to have based on the credence level of a single statement. For example, while I only need a .01 credence level that someone is a rapist to say that they shouldn’t be a major government official, I do still think .99 is morally required to incarcerate someone. Given the former is the context usually at hand, .01 is the bar used to determine what to say I believe. In most of our lives, we have other contexts. If a friend shared a story about having been assaulted, my role would be to comfort, be confided in, or something along those lines. So the bar is pretty low for me to believe. Even if the evidence I have would seem a little suspicious, I don’t need to be very sure at all. On the other hand, if someone I don’t know accused a close friend, I’d probably need more convincing. (It’s a bit harder to pin this case down, though. I have plenty of evidence already built up leading me to believe that my friend wouldn’t do such a thing. So maybe I wouldn’t need that high a credence level in my friend’s guilt, but I would need a lot of evidence to get the credence level even to a medium level.)

These middle cases suggest to me that there’s some reasonable room for needing different amounts of convincing given different conditions. Whether you’re seeking to find someone good enough for a Supreme Court position, send someone to prison, support a friend, or achieve some notion of justice will determine how sure you need to be to take one position rather than the other. And how sure you need to be can vary from one extreme to the other. Given this fact, perhaps the prior questions need a bit more attention. We have the facts as they’ve been presented. Throwing them back and forth appears to be rather unconvincing. But maybe the sureness levels can be moved. If I think about it, I’m not super sure that .01 is the right bar to deny someone a spot on the Supreme Court. I could probably be convinced that I need to be more or less sure. Some people may also be able to be convinced on what the important values at hand are. This is often the route I take. I don’t think that I can convince people to believe Ford if they don’t already. I do think that I can convince a few people that the bar for being on the Supreme Court ought to be really high and so even if you think that Kavanaugh is probably innocent, you should still support moving on to someone who isn’t even accused.

There’s some back and forth from there. Usually the first defense is that a really corrupt political group might just get people to block everyone Trump appoints. I have responses to it, mostly appealing to the growing incredulity and subsequent increased scrutiny. But the point is that the badness of a rapist on the Court is much harder to deny, the badness is much harder to counterbalance, and even rather strong supporters of Kavanaugh are likely to have some non-zero level of suspicion. So this is the argument to have. It has another nice feature, too: The open acknowledgement of different contexts and aims requiring different levels of credence allows us to be more clearly supportive of people who have been assaulted and are in the current discussion being made afraid of coming forward for fear of widespread disbelief. It also satisfies some of the worries about the potency of false accusations. Sexual assault, among other crimes against others, is unfortunately often very difficult to be super sure either way what happened. But, we do at least have a fair bit of middle ground to work with. You need to be pretty damn sure someone did something wrong to lock them up. You don’t need to be so sure to just not give them a bunch of power. And you don’t need to be so sure to give someone some support when they’ve been hurt.

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A brief example of the disingenuity of states’ rights champions

So, California wants to have its own emission standards for automobiles. They want standards that are stricter than the national standards. Some other states do, too, but California is the one that really upsets the anti-environment right because there are so many cars in the state that California standards are effectively national standards.

Where are all the states’ rights champions on this? Why are Fox News pundits not up in arms about the rights of states to set their own standards? Whenever national law looks like it’s about to progress, the right, especially in very regressive states, appeal to states’ rights. There are two options for why:

  1. They have principled reasons to support states’ rights, or
  2. It’s politically expedient to appeal to a principle that nobody really holds but seems more likely to at least keep a few states back than an argument from their actual principles would.

Given the silence of this group on California’s rights, 1 is very unlikely.

Another attempt to bring out the two most critical points in the abortion debate

A month or two ago Ireland made a stride towards legal abortion, and the US made a stride in the opposite direction. Abortion is always on the political table though. I imagine a perfect pregnancy-prevention mechanism would cool the flames quite a bit, but even then, people can change their minds, and the question will emerge of whether that should be allowed. But as usual, this most recent flare-up of abortion debates involved a lot of people talking past each other other. I think, though, there is ultimately one argument for the prohibition of abortion that is good if it works. There are plenty of reasons one might want to prohibit abortion, such as controlling women, liking the appearance of pregnancy, and any other number of bad reasons, but they’re all pretty bad. So, here’s the one possibly good argument:

  1. Killing people ought to be illegal.
  2. Unborn humans are people.
  3. So, killing unborn humans ought to be illegal.

This seems to be the most intuitive and defensible argument for making abortion illegal. A lot of people seem to endorse it, sometimes implicitly. There’s a need in the popular discourse, though, to be more explicit about the two premises in play, because oftentimes people will defend 2 against an attack on 1, or vice-versa.

Getting a little more clear on the premises

Neither premise is super clear, as is the cost of making them short. The first, the killing people ought to be illegal, has plenty of exceptions. Asking why killing people ought to be illegal seems a little strange. Being wrong to kill seems like it might just be a feature of being a person rather than some other kind of thing. So wrong, in fact, that any code of law that doesn’t forbid killing people seems fundamentally broken. So, to spare us a lengthy dive into a theory of moral personhood, I will assume that there’s an agreement that in general people’s lives should be protected by law.

The generality rather than universality of the statement is important, though. There are exceptional cases in which we defend the legal killing of persons. Self-defense is the most obvious. If someone is threatening your life, you’re allowed to kill the person threatening your life. There are perhaps other crimes that might make killing someone defensible. If someone is threatening the lives of others, if someone is severely assaulting you, and so on. War and law enforcement create further situations. Sometimes there is no choice but to kill some set of people, and the choice is merely which set. Accidents that aren’t the result of negligence also usually land on the legal side. My point here is just that we ought to have many legal exceptions for killing people. This is of course an opening that someone defending the legality of abortion against this argument can and often does use.

In the phrasing of the second premise I use “people” in a possibly technical way. While we might have been able to dodge questions of moral personhood for the first premise, they are the heart of the second premise. By “person” (and derivatively, “people”), I just mean a being with moral personhood. That still sounds a bit circular, but getting a technical definition down is a whole subsubfield of philosophy on its own. Examples can give us a good enough idea, though! Normal adult humans are the archetype of people. If a theory of personhood excludes them, it’s probably defective. Inanimate objects are not people. You can violate the autonomy of a rock all you want, and nothing wrong is being done. Then there are edge cases. Is C-3PO from Star Wars a person? Maybe. Are higher apes, or maybe dolphins people? Again, maybe. Within the realm of humanity, we can ask the same of fetuses and maybe infants, too. Once we pin down what gives adult humans their moral worth as people, we can turn to the unborn and ask if they are people.

Arguments pointing to the human DNA and beating heart of the unborn are usually along these lines. They are implicitly placing the bar for personhood at humanity. Nobody defending abortion thinks that the unborn humans are not living beings, and nobody denies that they are human beings. They very obviously are. What one might deny is whether they are persons. Often someone backing this sort of argument against abortion takes for free that all humans are morally relevant persons and then goes in to prove the much easier point that unborn humans are human. But this is just the root of much misunderstanding.

The common arguments against each premise and setting up the right questions

With the first premise, that killing people ought to be illegal, usually the premise is not denied outright so much as the line pushed. Almost nobody thinks every case of killing a person ought to be illegal, so the argument here is on where to draw the line. So, let us take up the case of whether the line ought to be before or after abortion. For the sake of argument, let’s assume that personhood begins at conception. Given this, can someone kill a person inside them?

A well-treaded argument asks us to consider waking up in the hospital attached to a famous violinist. He brings a lot of happiness to the world with his playing, but is sick in such a way that he requires using your body for life support for awhile. Let’s say he’ll be hindering you for about nine months. If you pull the plug, he dies. The defender of abortion here draws on the intuition that you ought to have the legal right to pull the plug anyway.

The argument can be strengthened or weakened. Someone not yet convinced might think that the state should totally use someone as life support if they aren’t doing much with their lives but the person in need of support is. This person might also think mandatory blood donations are a good idea. In that case, we can reduce the status of the violinist until he contributes as much to society as the unborn do: nothing.

On the other hand, someone arguing against abortion might not be satisfied yet. Usually the first next objection is that the aborter usually has something to do with the creation of the unborn person, so while normally you have a right to not let someone use you as life support, you do if you willingly engaged in an act with the potential to create that situation. (We might note that this makes the argument against the legality of abortion no longer work against cases of rape.) So let’s alter the example to fit this. How far we want to push it is another question. Perhaps the right analog is someone who you accidentally hit with your car. You weren’t trying to, but a danger of getting behind the wheel is hitting someone. If they require the surrender of your bodily autonomy, ought the law demand it? (Ideally, this case uses you as life support for nine months. If you don’t have enough imagination, maybe ask what the law should demand if they need blood. Or a kidney.) Alternatively, perhaps the right analog is someone who you aimed your car at and hit. You knew the likely consequences of your actions. But the fun of smashing someone with your car seemed worth it. Are you bound to use your body to aid the person you hit?

I’m not sure yet where to move from there, but those seem to be the two questions at hand, in addition to the question of which one pregnancy is more like. For the argument presented for the prohibition of abortion to work, whichever one abortion turns out to be like has to also be answered that, yes, the government should step in and force you to surrender your bodily autonomy. You cannot pull the plug on/deny an organ donation to someone you hit with your car.

Onto the second premise, then. Are unborn humans people? If they’re not, then the door is open to killing them. They might still have some rights. Dogs aren’t people, but you can’t torture them. Nonetheless, their being people is pretty significant to this argument.

Now, we don’t need perfectly refined necessary and sufficient conditions of personhood to answer this question. All we need is something sufficient that unborn humans have or something necessary that they do not. So, someone making the argument against abortion will try to put forward a condition that anything that fulfills the conditions is a person. And someone defending abortion will put forward a condition that is required to qualify as a person.

On the arguing against the legality of abortion side, being alive tends to come up far more than it should. Lots of things are alive. The fly I just swatted was alive, but it was not a person. Next up is human. From here we see all sorts of conditions thrown around, like a beating heart or looking like a human in ultrasounds, or just being alive while having human DNA. Being alive while having human DNA isn’t enough since removed limbs are not people. Okay, so being alive, having human DNA, and either being able to survive independently or on a path of development toward independent survival. That seems to be the stable position, but then the question emerges: Why is that the line for moral personhood? What about having human DNA and either being biologically independent or on the path to such makes someone morally relevant as a person? This is what the person arguing against abortion needs to be more clear about.

Cue the defender of legal abortion. There are some conditions thrown out that turn out to be rather silly. “It’s just a clump of cells” is common, but it doesn’t work. As noted in the previous paragraph, the clump of cells is special in that it can develop. Given the right resources, it will develop into a human. Now if you want to push for the absurdity of allowing speculation into the future with some resources just assumed, you might argue that an egg or sperm will develop into a person given the right resources. But clearly eggs and sperm are not people, so that line cannot work. There’s room to go back and forth on this, but I think looking for a biological answer to personhood is a mistake.

Remember when giving examples of possible persons, beings like C-3PO came up. When we ask why someone is morally relevant as a person, the features that really matter are not a certain biology, but certain capacities or abilities. The ability to enter into interpersonal relationships, intelligence, language or concept use, moral understanding. These are all possible criteria. Unborn humans seem to fail all of them. Of course, each of these also has some dangers. If an adult human is incapable of being in an interpersonal relationship, is she not a person? Is sufficiently low intelligence grounds for denying personhood? Is someone completely amoral not a person? Perhaps. Is any of these things are the things that really matter to personhood and some humans fail to meet the condition(s), then maybe some exceptional humans are not persons.

The other side to this is the developmental disjunct. Maybe an unborn human is unable to enter a relationship, well below whatever an intelligence criterion might be, and amoral. But, the likelihood of developing into such a being is high, given adequate resources. And we can assume some level of resources because if you starve anyone, they will degrade and likely lose these conditions. There might be something question-begging about saying only the present individual counts, unless some further reason is given. One might look to people who are comatose or asleep. They fail the conditions, except maybe being in relationships. Yet going to sleep doesn’t make you not a person. But the defender of abortion can appeal to someone sleeping having a personal history. Though maybe going into a permanent coma does deprive one of personhood. Or dying. Are dead people still people? If they are, then being alive isn’t even a requirement. It doesn’t seem entirely absurd, though, to say that dead people are people. In which case maybe the personal history requirement is just the crucial requirement for personhood that captures all the cases we would otherwise want but excludes the unborn.

The problem here is just that now we’re stuck asking what a personal history is. My working hypothesis for a condition for personhood is something like personal history, and I take the lines to be drawn not by strict logical requirements, but rather by a general understanding of what a story of someone’s life looks like. Now, maybe “I know it when I see it” isn’t all that helpful in figuring out whether unborn humans are people. It may just leave us right where we started. But, as I said, just finding a necessary condition for personhood is enough, even if it’s not the most restrictive true necessary condition. That is, maybe the real bar is higher, but if we find a bar that’s not too high but the unborn still cannot meet, then the case against the second premise is made. So maybe a condition like this: someone is a person only if she is able to engage in interpersonal relationships or can use language or can use concepts or is intelligent or has moral understanding. Surely that’s too low a bar for personhood, but it doesn’t seem too high in any important regard, and unborn humans don’t clear it.

To summarize:

  • The best argument to make abortion illegal has two premises, each of which must be argued separately.
  • The first question  is whether, even if unborn humans are people, abortion is one of the exceptions in which we think killing people ought to be legal. The argument against the legality of abortion demands that abortion is not justifiable.
  • The second question  is whether unborn humans are people. While a complete definition of personhood is not needed, the argument against the legality of abortion demands that unborn humans do fall within the boundaries of personhood.

Even if the Bible is not the law, it is the document a lot of Americans look to for values

In the US, a lot of people are Christian. Christianity is a big enough force in the country that the “Religious Right” is a thing. While not all Republicans are concerned with religion, it’s at least a staple of the party, and any conservative politician will at least pay lip service to it. The Trump administration is no exception, and it has indeed tried to justify itself with the Bible.

In response to this and the absolutely infernal acts the administration is propagating, some others have pointed out that a good reading of the Bible will lead one to find condemnations of categories of things that include treating immigrants and refugees horribly.

In response to this response, some have stepped back and tried to deny any authority to the Bible either way:

hereweare

In some sense, yes, this is right. Though the second paragraph makes a subtle shift. Most people who are talking about the application of Jesus’s words to tearing kids from their parents are not trying to make a legal argument. I would be very surprised to find someone saying that tearing kids from their parents is illegal. Plenty of people are saying that it’s wrong, or that people should not tear kids from their parents, but that’s not the same as saying it’s illegal.

There are Constitutional provisions in the US restricting how laws can interact with religion. Though there’s an under-appreciated distinction between policies and the reasons behind policies. This comes up when people talk about the political compass too. Someone could be, say, authoritarian-left for a variety of different, even contrary reasons. But if you’re just trying to measure the concrete policies people support, then the motivations are abstracted away.

Likewise, people have all sorts of motivations for voting the way that they do. Many people, citizens and legislators, look to religion for guidance on which ways to vote. And if it’s something like what to set the income tax rates at or whether usury ought to be legal, then that’s a thing people can do. (There is some slippery room with legislators openly voting based on religious beliefs for policies without religious content, but even then, most people will let their values or morality tell them how to vote, and many people get those values from religion. You’re just one step removed.)

So in the sense of whether the Bible is the document that the agents of the state are supposed to consult in governing the country, no, of course not. You look to the laws and the will of the people. However, most of the people behind the laws and will are Christians. You might not like that. I’m not arguing whether that’s a thing worth trying to change, but for now, it is the case, and it will almost certainly be the case for at least several more years. So even if you think a long-term strategy of diminishing Christianity or religion in general is good, short-term solutions to urgent problems are also needed.

Public opinion and outcry does seem to have some effect on what the US government does. (Just yesterday Trump signed an order to keep families together. This may have been the Republican plan all along, but nonetheless, the plan at least had to incorporate public reactions.) So, to get good outcomes, we should include persuading the public to support the right policies. To do this requires appealing to the values people have. (We should also try to instill better values, but, again, that’s a long-term move.) In this case, adherence to the values of Christianity is a value a lot of people already have, and Jesus is pretty clear on this topic. So even if you or I think the Bible is not the document to look at for guidance in organizing society, plenty of people do, and they’re going to act as such. So we may as well point out that Jesus said to be good to people, as well as other things condemning pretty much everything ICE and company do.

Now, one might argue that if the majority religion were some other religion that supported these atrocities, then we would want people to steer away from what it says. Sure. We rarely appeal to every value anyway. In that case we would not look to adherence to religious teachings as a value and pick other values to appeal to. We can see this here, anyway. Most people probably take the obtaining of wealth as a value. Taking in refugees does not clearly serve that end. But for our purposes, that just means we don’t appeal to the value of money on this topic.

Brick-and-mortar stores are complaining that online stores not having to charge sales taxes is unfair; they’re right, what an occasion to end sales taxes!

Though it’s a state government leading the charge, the good justification for changing the law isn’t the one in the state’s interest. I see two complaints here:

  1. The state government wants more revenue. Online sales generally lower the amount of in-state sales, so the sales tax revenue is reduced.
  2. Physical retailers have to charge more than online retailers because of the sales tax boosting their effective prices. This gives buyers an extra incentive to buy online.

Complaint 2 is pretty reasonable. Unless we’re looking to give online sellers an edge for the sake of stomping out physical sellers, then the current situation is needlessly unfair. But there’s two ways to make it more fair. One is to add sales taxes to online purchases. The other is to destroy sales taxes entirely. Given sales taxes are a regressive, anti-demand tax, that second option is a lot nicer.

This second, better option would aggravate complaint 1 even further, but unlike sellers who only acquire revenue via selling things, state governments have other, better options. They can tax for land use. They can have progressive income or wealth taxes.

One comment in the linked WSJ article made a decent point against 1, as well: sellers without a physical location in the state are consuming less of the state resources. They aren’t taking up space, polluting the air and water, creating garbage, and otherwise creating various negative externalities for the state.

(Of course, the current court case can, officially, only be decided by what the current legal documents say rather than what they should say, and some analysis of the constitution suggests the status quo will be upheld. Though even the linked analysis then suggests that actual legislative changes should be made. The interstate commerce stuff is somewhat interesting, but a bigger hammer seems more appropriate here.)

Dragging people down instead of trying to make things better

Perhaps I’ve blogged about this before. The tendency has existed long before social media, but social media makes it even easier to broadcast one’s ressentiment. Today this one popped up in my newsfeed, edited because Facebook and Twitter will use it as the image for this post:

Epipen Ressentiment

See what I did there? The original post suggests that because children’s parents are being charged nefarious costs, drug users should also be charged nefarious costs. That’s, of course, either idiotic (in most cases) or evil (if you’re selling epipens). By crossing out the second sentence, I changed the message. That people are being gouged of their limited resources because they or their children need epinephrine to not die is screwed up.

One might object that they think children are blameless and that drug users deserve worse. Even thinking that, to try to drag the conditions of drug users down instead of to raise the conditions of children up is at best an expression of bitter ressentiment.

And this is, of course, just one form. This shoddy rhetoric also comes up with the minimum wage. Some people will say that, for example, nurses only make $13 an hour, so clearly people working cash registers should make less than $13 an hour. Thinking and speaking that way only drags everyone down. If you want to hold onto that nurses should make more than cashiers, then instead reason that since everyone working should make at least, say, $15 an hour, nurses should make at least $20 an hour. And instead of saying we should make drug users pay up or die, instead say nobody should be forced into such a bad situation.

Sex discrimination inherently includes discrimination on homosexuality, transsexualism, etc.

I’ve been saying this for years, but hey, looks like the courts are getting on board.

The linked article includes some statements in opposition, but they’re generally terrible. First, a brief argument for the statement in the title of this post. If you’re going to support equality across sexes, then you’re going to support that for all x, if x is permissible for one sex, then x is permissible for all sexes. (There are other understandings of how to use the word “equality”, but those are clearly not the ones in play here.) So, if it’s okay for people of any particular sex to be attracted to women, then it’s okay for people of any sex at all to be attracted to women. And so on.

Jeff Sessions said,

Title VII’s prohibition on sex discrimination encompasses discrimination between men and women but does not encompass discrimination based on gender identity per se, including transgender status.

I’m curious what action Jeff thinks is unique to the transgender “status”. To use the case in the article as an example, there’s nothing Stephens is doing against any rule, unless there are some sex-specific rules. There is no way to state his objection to Stephens’s case completely without reference to her sex.

The employer, Rost, said he wants to run his business in accordance with his religion that says that

a person’s sex (whether male or female) is an immutable God-given gift and that people should not deny or attempt to change their sex.

I’d be really curious to see which religion says you cannot employ people who deny or attempt to change their sex. I’ll admit I’m only a little into the iceberg of religion, but rules for employers seem to be generally sparse, and I’ve never seen anything approaching this.

Posner said,

It is well-nigh certain that homosexuality, male or female, did not figure in the minds of the legislators who enacted Title VII,”

He then proceeded to say the meaning of “sex” can be updated to include homosexuality. But that’s unnecessary. There’s no way to discriminate against homosexuals without also discriminating on the basis of sex.