On June 15, 2020 the Supreme Court released a decision that will have major historical significance and implications, and if we’re going to say that we are all about how rhetoric functions in the real world, this is as big as it gets. This is legal rhetoric making real, lasting change in people’s everyday life. So we want to take a few minutes to look at the arguments in Bostock v. Clayton County, Georgia and what they say and how they are built. Because this has real life implications for some dear friends of ours. Probably yours, too.
A brief explanation – gay and transgender people have never been protected by civil rights legislation. This has been something the gay and transgender rights movement has been fighting for decades. A result of this is that, until just a few days ago, in a majority of states you could be fired for being gay or transgender. Not because you were doing a bad job – but JUST because of your sexual orientation or gender expression. This was always a shock to my students. They were like, but that’s discrimination. And I said, yeah, and it’s totally legal. This caused great consternation.
Okay – so the first thing you need to understand about this decision is that this was battle of the textualists. If you know anything about the Supreme Court, and you don’t have to follow along with me today, you know that one thing that blew everybody away was that the majority opinion came from Neil Gorsuch (the majority opinion is the “winning” opinion). Neil Gorsuch is a super-conservative Trump-appointee and a lot of conservatives point to him as the “well, we will over look Trump’s flaws because he gives us guys like Gorsuch” guy. He’s the evangelical excuse for supporting Trump. So for Gorsuch to write a pro-queer opinion is a real slap in the face. There is a lot of turmoil in the conservative world right now because Gorsuch AND Roberts, who are supposed to be conservative judges, ruled in favor of gay and transgender rights. One of Trump’s major arguments to voters was that he would deliver conservative judges and justices. Decisions like these are very bad for the Trump brand.
Which is why it’s important to understand this matter is a battle of the textualists.
Textualism is a theory of legal interpretation championed by the late Antonin Scalia, and Gorsuch was brought in SPECIFICALLY to fill in Scalia’s shoes.
Textualism is a formalist theory of the law that focuses on what is called the “ordinary” meaning of a text, or the common meaning of a text. You don’t consider non-textual sources, such as the problem it was meant to remedy, or legislative history. Sometimes textualism is misconstrued with originalism, which is actually quite different. Originalism argues that the laws must be considered from the viewpoint of the original understanding of the authors who wrote the law. This theory understands the law as stable, and that the law can only be changed through legislative means.
That last part is important. Both theories, textualism and originalism, reject the notion of “legislating from the bench.” They believe the job of creating law lies strictly with the legislative branch. The judiciary’s job is just to EXPLAIN or at best help APPLY the law. Scalia was hesitant to do even that much, sometimes. But what we see in this case is an argument over how to understand the law and what textualism (and to some extent originalism) means. And understanding that argument explains how we get a conservative like Gorsuch playing Queer Hero (just for an hour or two) and throwing a monkey-wrench in conservative plans in general.
So the short version of this is that before this case in many states a person could be fired for being gay or transgender. Now they cannot because it is a violation of Title VII which makes it unlawful “for an employer to fail or refuse to hire or discharge any individual, or otherwise to discriminate against any individual…because of such individual’s race, color, religion, sex, or national origin.” This has been controversial for years because it does not specify their sexual orientation. So it has been read as “it’s legal to discriminate based on sexual orientation, gender presentation, or anything not listed in there” for forever. Because anything not listed is not a protected class. This decision moved sexual orientation and gender presentation under the category of “sex” with some interesting reasoning.
Basically, Gorsuch posits, an employer who fires an individual for being homosexual or transgender fires that person for traits they would not have questioned in a person of a different sex. Sex plays a necessary role in the decision, which is forbidden by Title VII. The folks who adopted the Civil Rights Act may not have anticipated their work would lead to this result, but “the limits of the drafters’ imagination supply no reason to ignore the law’s demands.” The written word is the law. That’s just the way it is. And this is the way the law is written.
Gorsuch says, the SCOTUS normally interprets a statute in accordance with its ordinary public meaning at the time of its enactment (according to textualism). After all, all we have are the words on the page to understand and make the law that was adopted by Congress and approved by the President. If judges could change the law, we would risk amending statutes outside the legislative process which is reserved for the people’s representatives. And the Court would deny the people the right to continue relying on the original meaning of the law they have counted on to settle their rights and obligations.
So the Court has to determine the ordinary meaning of Title VII. Specifically that it is unlawful “for an employer to fail or refuse to hire or discharge any individual or hire or discharge…etc.” The only question at hand in this case was “sex.”
Appealing to contemporaneous dictionaries, the employers in this case say sex in 1964 referred to “status as either male or female as determined by reproductive biology.” We, the Court, says Gorsuch, are willing to concede this point. But that’s just a starting point. The question isn’t just what “sex” means, but what Title VII says about it.
Legally, the Title VII “because of” test incorporates the simple standard of a “but for” causation. That means if a particular outcome would not have happened “but for” this cause. In this case, would the person have been fired “but for” their sex?
It is also important to note that Title VII is meant to be applied to individuals, not groups. A Title VII violation is about whether an INDIVIDUAL has been discriminated against, not a group of people. So if one female is discriminated against, even if not all females are, it is still a Title VII case. For example, if a female refuses sexual advances from her boss she has been discriminated against, even if other females have not. Because this is based on individual cases. Because this is about ONE female. The statute works to protect individuals.
The law’s message is simple and momentous – an individual’s homosexuality or transgender status is not relevant to employment decisions because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.
Consider two hypothetical employees that are both attracted to males. By the employer’s reckoning they are exactly the same, except that one is a female. Their work quality is the same, their output is the same, they have the same experience. If the employer fires the male employees for no other reason than the fact that he is attracted to males, then that employee is being discriminated against for actions that the employer tolerates in the female colleague. In other words, the employers intentionally single out this employee to fire partially based on the employees’ sex. The sex is a “but for” cause of his termination.
Similarly, imagine an employer who has a policy that they will fire anyone known to be a homosexual. It’s office party time! A model employee with a perfect record shows up with their wife, Susan. Will that employee be fired? It totally depends on whether the employee is a male or a female. Their sex is a “but for” cause. This person would not have been fired “but for” their sex. The goal might be to discriminate based on sexual orientation, but the practice is discriminating on the basis of sex.
The employers’ arguments in this case are two-fold. But they are problematic because the employers have to go beyond the statute’s text where they fault the Court for ignoring the legislature’s purpose. They also warn about consequences of this decision. But none of these contentions about what the employers say that the law was meant to do or what the law should do mean the Court can ignore the law as it ACTUALLY IS. This is the textualist argument par excellence for this decision. And it is where a lot of the disagreement comes from.
Most obviously, the employers posit the discrimination on the basis of homosexuality and transgender status aren’t referred to as sex discrimination in ordinary conversation.
In conversation, a person in this situation wouldn’t say they were fired for sexual discrimination, they were fired for discrimination against homosexuals or gender expression. But these conversational conventions do not control Title VII’s legal analysis, which asks simply whether sex was a “but for” cause.
In another argument, the employers argue they didn’t INTENTIONALLY discriminate based on sex. But nothing in Title VII turns on the employer’s labels or any further intentions or motivations for its conduct beyond the actual discrimination. Ultimately, the employers are forced to abandon the law as it is written and appeal to assumption and policy. The contend that few in 1964 would expect this law to apply to the LGBTQ community so shouldn’t this give us pause today?
Title VII has already been applied to cases that are beyond what the law was imagined it would be. It has reached “beyond the principal evil” it was originally intended to address. And legislative history and historical sources are helpful and necessary for interpreting the law.
But because the law’s ordinary meaning at the time of enactment usually governs, we must be sensitive to the possibility that a statutory term that means one thing today or in one context might have meant something else at the time of its adoption. And we must be attuned to the idea that a phrase ordinarily bears a different meaning than the terms do when viewed individually or literally. To figure out these kinds of shifts in linguistic usage or subtle distinction between literal and ordinary meaning the Court has sometimes consulted the understanding of the law’s drafters, as some, though not always conclusive evidence. But the employers aren’t advocating that here. They aren’t seeding to use historical sources to illustrate the meaning of Title VII’s language or that it has changes since 1964. If anything, we all agree on what the words mean. The employers aren’t mad about the meaning of any of the words, they are mad about the RESULT and that has nothing to do with the text of the law. And that kind of reasoning is something the Court has long rejected.
The Court admits there could be fallout and recognizes the size of the impact of this decision. But Gorsuch stands his ground – he says the text has been in front of us all along. The meaning has been clear. There is no way around this. Future cases will have to figure out how this impacts other issues. But we can’t escape what the law says. It is right there. For all to see.
This is why it is important to understand the significance of Gorsuch writing this opinion. For him this wasn’t some liberal, legislation from the bench that expanded rights to a new group. It was just highlighting what was already there. It was clarifying a text that already existed. And that is significant because it means that the Federalist Society and evangelicals don’t have Gorsuch AS MUCH in their pockets as they thought they did. He is more beholden to textualism than he is to a particular partisan ideology. That’s really significant. It may not make a HUGE difference. But it makes a difference.
But, as you may know, there were those who disagreed with this opinion. Specifically Alito. And he thought Gorsuch was full of some textualist nonsense.
Alito begins by reminding us that for the past 45 years bills have been introduced to Congress to add “sexual orientation” and “gender identity” to the list of classes protected by the Civil Rights Act of 1964 and they have all failed. Alito argues that the majority’s argument that this is just enforcing the terms of the statute is preposterous. He argues that the Court’s duty is to interpret statutory terms to “mean what they conveyed to reasonable people at the time they were written.” And it is ridiculous to think that “sex discrimination” would have included sexual orientation or gender identity in 1964.
The Court attempts to pass off its reasoning as the inevitable product of textualism as championed by Justice Scalia, but that, according to Alito is nonsense. What it actually represents is a theory of statutory interpretation that Scalia hated – a theory that the Courts should update old laws so that they better reflect current values of society. If the Court is going to do that it should be honest about what it is doing. Many people are going to applaud this decision because it updates Title VII. But the question is not whether discrimination of sexual orientation or gender identity should be outlawed. The question is whether Congress did that in 1964. And it indisputably did not.
Alito then goes through a very long litany of sources that define sex and sexual. And he claims that the Court’s argument about the text is arrogant and wrong. Discrimination based on gender identity or sexual orientation is not the same thing as discrimination based on sex. We can see this because it is quite possible for an employer to discriminate on the grounds of sexual orientation or gender identity without taking sex into account.
A person can say “I’m not going to hire any gay people” and the sex of the gay person doesn’t make any difference. Alito basically says an employer is allowed to discriminate on these grounds because it isn’t listed – that’s the law.
Alito provide this interesting scenario: An employer has four types of employees. Men attracted to men, women attracted to men, women attracted to women, and men attracted to women. The employer fires the gay employees. The discharged employees have one thing in common and it is not their sex – it is their homosexuality.
Ultimately, textualism, as Alito understands it (and Scalia) calls for an examination of the social context in which a statute was enacted because this may have an important bearing on what its words were understood to mean at the time of the enactment. Textualists don’t read statutes as if they were messages picked up by some radio telescope from a distant civilization. Statutes consist of communications between members of particular communities. One that exists in a particular place and time. And these communications have to be interpreted as they were understood by that community.
Alito lists a number of issues he thinks will be impacted by this case (negatively, in his eyes). He lists everything from free speech, to housing, to health care. But what he returns to over and over again is that this decision flies in the face of a textualist reading. He sees this as a slap in the face to Scalia’s legacy. The big question here is, does textualism focus on the ordinary meaning as it is written or the ordinary meaning as it WAS written? Gorsuch seems to want to have it both ways. Alito falls squarely into the camp of the latter. Making this a pretty snippy battle of the textualists.
There is one more dissent, but it is not as profound or interesting in terms of legal rhetoric as Gorsuch’s opinion or Alito’s dissent. And that is the dissent from Brett Kavanaugh.
Kavanaugh says the question at hand is whether Title VII should be expanded to prohibit employment discrimination because of sexual orientation. Obviously, his approach is very different than Gorsuch’s textualist interpretation because Gorsuch argued he was not expanding the law. He was just saying “Here’s what the law says. This is the text of the law.” Kavanaugh says petitioners are asking for an expansion. That’s a very different thing.”
He follows that with a reminder that under the Constitution’s separation of powers the responsibility to amend Title VII belongs to the Congress the to the President in the legislative process, not the Court.
He, like most of the conservatives on the Court (including Gorsuch!) argues that the role of the SCOTUS is not to make or amend the law. He claims that this argument from the Court is creative – but relies on literal meanings, not ordinary meanings. OR, the plaintiff must establish that the ordinary meaning of “discriminate because of sex” encompasses sexual orientation. And he says the plaintiffs fall short.
First, he says, we have to focus on ordinary meanings, not literal meanings. There is not serious debate about the foundational interpretive principle that Courts adhere to ordinary meanings. Literal meanings fail to account for settled nuances and background conventions.
Judges adhere to ordinary meanings for two main reasons:
- Rule of law – a society governed by rule of law must have laws that are known and understandable to the citizenry.
- Democratic accountability – people being able to understand the law keeps them accountable to it.
This case exemplifies a deeply rooted principle: When there is a divide between the literal and ordinary meaning, the Court has to go with the ordinary meaning. This emphasis on meaning becomes essentially important as judges consider PHRASES in statutes. Courts have to think about the ordinary meaning of a phrase as a whole, not just the meaning of the words in a phrase. Because a phrase may have a more precise meaning that the literal meaning of the words in the phrase. If the usual evidence indicates that a legal phrase has an ordinary meaning different from the literal meaning of the words just strung together than you can’t ignore that discrepancy. You go with the ordinary meaning. In other words, Kavanaugh accuses Gorsuch of being a literalist, not a textualist.
So the question for Kavanaugh, then, comes down to the phrase “discriminate because of sex”. And he says the common understanding of sexual discrimination is different than discrimination based on sexual orientation and gender identity.
He, like Alito, accuses the majority of updating or amending Title VII, regardless of what the majority claims. What is strikingly different about Kavanaugh’s dissent from Alito’s is the deference he pays to the LGBTQ community. He says it is important to acknowledge the important victory achieved by this decision for gay and lesbian Americans, and describes the “extraordinary vision, tenacity, and grit” of the LGBTQ community. He seems positively happy that the decision has been made. He goes to great pains to say he enthusiastically supports the gay and transgender community and admires every advancement they have made in the last few years. But he believes this should have been a legislative action, not a judicial one, because of the separation of powers. So here we see the opposite of Gorsuch’s opinion – he seems to want to see the gay community advance, but his idealism kept him from making that move. So here the evangelicals and the Federalist society can feel safe.
So I hope what you can see, here, is that seemingly obscure things like “theories of constitutional interpretation” can actually have profound implications for people’s daily lives. Gorsuch, who was supposed to be a hero for social conservatives, was the voice for Queer America for a day because of his belief in textualism. That’s significant. Who knows what that could mean in the future, but for now it means a huge stride forward for gay and transgender rights.
In short, legal theory and rhetoric is a pretty big freaking deal.
Music in this episode is “Fearless First” by Kevin MacLeod at https://incompetech.filmmusic.io/song/3742-fearless-first licensed under CC-BY. Music modified by cutting and fading where appropriate.