A quick follow-up to my post: It looks as though Linda Greenhouse and I aren’t quite in agreement on these cases. Greenhouse writes:

[I]f the court is true both to the direction of its sex-discrimination precedents and to ordinary uses of the English language, all three cases ought to be easy wins for the plaintiffs. No need to rely on me; ask Judge José A. Cabranes of the Second Circuit. He is one of the judiciary’s more prominent conservatives and a judge whose opinions get the attention of conservatives on the Supreme Court. In the Second Circuit sexual orientation case, he concurred with the majority in finding that the plaintiff, Donald Zarda, had a valid Title VII claim.
“This is a straightforward case of statutory construction,” Judge Cabranes wrote. “Title VII of the Civil Rights Act of 1964 prohibits discrimination ‘because of sex.’ Zarda’s sexual orientation is a function of his sex. Discrimination against Zarda because of his sexual orientation therefore is discrimination because of his sex, and is prohibited by Title VII.”
Judge Cabranes concluded: “That should be the end of the analysis.”

I have a great deal of admiration for Judge Cabranes. His entire analysis in his very brief opinion in Zarda, though, consists of the three sentences that Greenhouse quotes. Those sentences don’t acknowledge, much less begin to grapple with, the points that Judge Lynch develops at length. (How is it, for example, that sex-segregated restrooms would be permissible under Cabranes’s analysis?) So I don’t think that his opinion will persuade anyone.

A minor note: President Carter appointed Cabranes to the district court, and President Clinton elevated him to the Second Circuit. While he is indeed much more conservative than most other Carter or Clinton appointees, I would not have put him on a list of “the judiciary’s more prominent conservatives,” as I think that list would consist entirely of appointees of Republican presidents.

More broadly, Judge Lynch’s opinion, which Greenhouse doesn’t mention, devastates her claim that the “direction of [the Court’s] sex-discrimination precedents” and “ordinary uses of the English language” somehow dictate “easy wins for the plaintiffs.”