Kav: "Sex" is not the same as "sexual orientation".
Majority: Close enough.
...but Kav makes some solid points. 50 out of 50 didn't equate the two. ...so in a real sense, the Supreme Court is making law - not really interpreting law.
...and that is a big long term danger to the separation of power.
Having read the opinion and dissents, I heartily disagree that Kavanaugh made solid points. Nor Alito, for that matter.
> "Sex" is not the same as "sexual orientation".
This is the crucial point. Alito and Kavanaugh imagine a world where you can discriminate against sexual orientation while somehow not considering a person's sex. I don't see how that is possible.
If you know that someone is gay, or lesbian - and then discriminate against "sexual orientation," you can't say that sex didn't play a part: sexual orientation is inextricably linked to sex and gender. It's kinda the whole point. And in this case you know that a man, or woman, is attracted to men, or women (or both, really). Sex isn't something to wave away at that point, it's a known fact and the discrimination seems obvious.
But even in the extreme hypothetical of "discriminating against homosexuality while somehow not knowing the sex or gender of the people involved" still commits sex discrimination: it then shifts to the "stereotypes" interpretation, which has been held to be discriminatory under quite a lot of case law at this point. In this world, you've discriminated because you know that a homosexual person has attraction towards someone of the same sex/gender. You don't know what sex, but you know it's about sex. And that's why it falls under sex discrimination.