Many people were delighted with the Supreme Court’s decision in Bostock v. Clayton County finding that the 1964 Civil Rights Act protects gay, lesbian, and transgender people against employment discrimination. A fair number of other people were outraged. Most of those people on either side were focused on the outcome, and took the decision as the Supreme Court’s denunciation of discrimination based on sexual orientation or identity. But that’s not actually what happened. To its credit, the court made no arguments about the morality or injustice of such discrimination. Both dissents, in fact, made clear that their authors welcomed non-discrimination protections. Rather, the entire argument of the opinion and the dissents was focused on the text of the statute and its interpretation, down in the weeds on competing versions of the “textualist” philosophy, replete with extensive dictionary definitions of the word “sex” (as well as some sniping over who had the best claim to the mantle of Saint Antonin, the patron saint of textualism). To be honest, as a matter of law, I think this was a tough call, and both sides had very reasonable arguments. Had Alito found two more votes for his argument, making the decision go the other way, I would not have been outraged. I am encouraged to see that Gorsuch and Roberts are willing to follow principles, even when they may lead to consequences that are highly unpopular with many of their fellow Federalists. And despite the accusations of some, I don’t think that either side was working backwards from a desired outcome, “legislating from the bench”, or “updating” the law to fit modern sensibility.
The crux of the decision was that discrimination based on sexual orientation essentially entails discrimination based on sex. The key test for Gorsuch was to consider an individual case and reason whether an employee with all of the same attributes but a different gender would get fired. Say Mark was a respected employee who was fired after he brought his husband Tim to the company holiday party. If Mark were Mary instead, and Mary showed up to the party with husband Tim, that wouldn’t have been a problem. Mark would not have been fired but for being male rather than female. Therefore sex discrimination, which is prohibited. Alito, on the other hand, thinks that Gorsuch is torturing the text to get this outcome, which everyone agrees would have been a very unexpected outcome for the lawmakers who wrote the law in 1964. (Lots of hermeneutical debate ensues over when it is appropriate for a court to try to discern the “intent” of lawmakers, as opposed to just interpreting the text itself.) For Alito, it’s perfectly clear in plain language that sex discrimination and sexual orientation discrimination are two different concepts, and Congress in 1964 chose to outlaw one and not the other. Ironically, I was inclining to agree with Alito until he brought up an example that I think inadvertently sunk his own argument: miscegenation. Suppose we had an employer who did not discriminate based on race, in that he hired employees of all races and treated them equally. But when one of the Black employees shows up to the holiday party with his white wife, he gets fired. The employer argues that they are not discriminating based on race, they are discriminating against mixed-race marriages, which is a different concept, and not an explicitly prohibited type of discrimination. But is it? Would any court not recognize that as a form of race-based discrimination? Discrimination against race is inherently bound up in discrimination based on mixed-race marriage. Alito attempts to explain why this is not perfectly analogous to the case at hand, but I found it unpersuasive. Homophobia is inextricably bound up with misogyny, and with making people uncomfortable who prefer “men to be men and women to be women”. While Gorsuch would deny on philosophical grounds that we could know the intent of the 1964 Congress, he would probably agree that his conclusion would be unrecognizable to them. Nonetheless, he makes a compelling case for following the plain text of the law even to unanticipated consequences, noting a whole body of prior case law (for example, protecting male victims of sexual harassment) that would be thrown out if they didn’t. In the end, I am encouraged not just by the welcome outcome, but even more by how they got there.
The crux of the decision was that discrimination based on sexual orientation essentially entails discrimination based on sex. The key test for Gorsuch was to consider an individual case and reason whether an employee with all of the same attributes but a different gender would get fired. Say Mark was a respected employee who was fired after he brought his husband Tim to the company holiday party. If Mark were Mary instead, and Mary showed up to the party with husband Tim, that wouldn’t have been a problem. Mark would not have been fired but for being male rather than female. Therefore sex discrimination, which is prohibited. Alito, on the other hand, thinks that Gorsuch is torturing the text to get this outcome, which everyone agrees would have been a very unexpected outcome for the lawmakers who wrote the law in 1964. (Lots of hermeneutical debate ensues over when it is appropriate for a court to try to discern the “intent” of lawmakers, as opposed to just interpreting the text itself.) For Alito, it’s perfectly clear in plain language that sex discrimination and sexual orientation discrimination are two different concepts, and Congress in 1964 chose to outlaw one and not the other. Ironically, I was inclining to agree with Alito until he brought up an example that I think inadvertently sunk his own argument: miscegenation. Suppose we had an employer who did not discriminate based on race, in that he hired employees of all races and treated them equally. But when one of the Black employees shows up to the holiday party with his white wife, he gets fired. The employer argues that they are not discriminating based on race, they are discriminating against mixed-race marriages, which is a different concept, and not an explicitly prohibited type of discrimination. But is it? Would any court not recognize that as a form of race-based discrimination? Discrimination against race is inherently bound up in discrimination based on mixed-race marriage. Alito attempts to explain why this is not perfectly analogous to the case at hand, but I found it unpersuasive. Homophobia is inextricably bound up with misogyny, and with making people uncomfortable who prefer “men to be men and women to be women”. While Gorsuch would deny on philosophical grounds that we could know the intent of the 1964 Congress, he would probably agree that his conclusion would be unrecognizable to them. Nonetheless, he makes a compelling case for following the plain text of the law even to unanticipated consequences, noting a whole body of prior case law (for example, protecting male victims of sexual harassment) that would be thrown out if they didn’t. In the end, I am encouraged not just by the welcome outcome, but even more by how they got there.
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