UPDATE: First, I'm being loose with terminology here - "originalism" specifically refers to a theory of Constitutional interpretation; what Gorsuch et al are advocating is "textualism" (for statutory construction). The distinction between public meaning and expected application is important in the originalism debate - but I think it's clearly at work in the debate here. Second, Andrew Koppelman's commentary here is worth reading on the different ways of understanding the plain meaning of a text.
Up until today, if your boss wanted to fire you for begin gay or trans, you had no recourse in federal law – so unless your state happened to protect you, you had no recourse at all. Today, the Supreme Court issued a landmark ruling in Bostock v. Clayton County that not only hands the LBGTQ community a huge, huge set of legal protections, it does so in a straightforward way. And the opinion was authored by Justice Gorsuch and joined by Roberts.
Gorsuch delivers a seminar on originalism. Does Title VII prohibit discrimination against trans and homosexual individuals? Well, let’s see what it says. It says that it prohibits discrimination because of sex. What does “sex” mean here? Well, according to the public meaning (more on this in a sec.) of the term when the law was enacted, it means “status as either male or female [as] determined by reproductive biology” (op. slip, 5). Ok. You can’t discriminate “because of sex.” What does “because of” mean? It establishes a but-for causality. Gorsuch goes on to explain that an event can have multiple but-for causes, which means that sex need only be a necessary part of the decision. As he puts it, “when it comes to Title VII, the adoption of the traditional but-for causation standard means a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment decision. So long as the plaintiff’s sex was one but-for cause of that decision, that is enough to trigger the law.” (6). Gorsuch notes that this is sweeping, and “Congress could have taken a more parsimonious approach” (6). But they didn’t. He proceeds to similarly characterize discrimination.
I emphasize “public meaning” because Justice Alito’s dissent begins by accusing Gorsuch of violating originalist principles – but then immediately conflates public meaning with expected application of the laws:
“If every single living American had been surveyed in 1964, it would have been hard to find any who thought that discrimination because of sex meant discrimination because of sexual orientation––not to mention gender identity, a concept that was essentially unknown at the time” (dissent, p. 4).
Alito then announces that “it was as clear as clear could be that this [sex] meant discrimination because of the genetic and anatomical characteristics that men and women have at the time of birth.” Yes! But as originalists will tell you, that’s the point. It’s not about expected application of terms; it’s about what they mean. The procedure is not “did the framers have x in mind when they passed the law.” That would make most older laws useless and introduce ungodly amounts of interpretive vagaries. The procedure is to ask “what did those words mean, and does x fall within that meaning.” Say what you like about originalism, but Gorsuch is getting it right here. On Alito’s reasoning, the First Amendment wouldn’t apply online because literally nobody thought that “speech” meant communication through electronic devices, since such were unknown at the time.
Gorsuch concludes:
“From the ordinary public meaning of the statute’s language at the time of the law’s adoption, a straightforward rule emerges: An employer violates Title VII when it intentionally fires an individual employee based in part on sex. It doesn’t matter if other factors besides the plaintiff ’s sex contributed to the decision. And it doesn’t matter if the employer treated women as a group the same when compared to men as a group. If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee—put differently, if changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred. Title VII’s message is “simple but momentous”: An individual employee’s sex is “not relevant to the selection, evaluation, or compensation of employees” (9).
From that point, the application to the present case is straightforward:
“The statute’s message for our cases is equally simple and momentous: An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause of his discharge. Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision” (9-10)
And that’s it! LGBTQ individuals are henceforth protected under Title VII. The argument is elegant – and it’s probably the one that the Court should have used when it legalized same-sex marriage, rather than the vague rhetoric about dignity that Justice Kennedy used. No doubt he was right about dignity – but this is a much cleaner legal standard. It also lets Gorsuch draw a principled originalist argument when he responds to claims that the current ruling isn’t what the statute’s authors would have wanted:
“In the end, the employers are left to retreat beyond the statute’s text, where they fault us for ignoring the legislature’s purposes in enacting Title VII or certain expectations about its operation. They warn, too, about consequences that might follow a ruling for the employees. But none of these contentions about what the employers think the law was meant to do, or should do, allow us to ignore the law as it is.” (15-16).
He then goes on to dispatch a number of counterarguments, including that it might be necessary to look beyond the statutory text to legislative history. Here, the text is clear, and “legislative history, for those who take it into account, is meant to clear up ambiguity, not create it” (24, citing a 2011 case). He even invokes Justice Scalia for the point that “unexpected applications of broad language reflect only Congress’s “presumed point [to] produce general coverage – not to leave room for courts to recognize ad hoc exceptions” (24). As he says in a slightly different context a couple of pages later, “often lurking just behind such objections resides a cynicism that Congress could not possibly have meant to protect a disfavored group” (27). And that is too much for the libertarian-leaning Gorsuch:
“But to refuse enforcement just because of that, because the parties before us happened to be unpopular at the time of the law’s passage, would not only require us to abandon our role as interpreters of statutes; it would tilt the scales of justice in favor of the strong or popular and neglect the promise that all persons are entitled to the benefit of the law’s terms” (28).
Alito has a looong dissent, and I haven’t read the whole thing. But what I have read vacillates between complaining about the majority’s “arrogance” or “legislation” and conflating original public meaning with original expected application.
As Mark Joseph Stern writes on Slate, “Bostock was a hack test, a challenge to the conservative justices to stick by their principles even when they lead to a liberal outcome. Gorsuch and Roberts passed. Alito and Thomas failed”
It’s a really, really good day for LGBTQ rights!
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