A gay rights flag outside the U.S. Supreme Court. Credit: Diego M. Radzinschi / NLJ

The U.S. Supreme Court's landmark ruling applying the nation's workplace discrimination law to protect LGBTQ workers revealed intense disagreements within the court's conservative wing over who properly claimed the mantle of "textualism."

In a 2015 Harvard Law School lecture, Justice Elena Kagan, underscoring the legacy of the late Justice Antonin Scalia, said, "We are all textualists now." But in the court's Monday 6-3 decision in Bostock v. Clayton County, Georgia, textualism clearly meant different things to Justice Neil Gorsuch, who wrote the majority opinion, and dissenting Justices Samuel Alito Jr. and Brett Kavanaugh.

Gorsuch arrived at the Supreme Court with a firm reputation as an uncompromising textualist. He has written that a textualist should "strive (if humanly and so imperfectly) to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be."

In the Bostock case, the justices were asked to decide whether language in Title VII of the Civil Rights Act of 1964 that prohibits employers from discriminating "because of … sex" includes discrimination based on sexual orientation and gender identity.

"When the express terms of a statute give us one answer and extratextual considerations suggest another, it's no contest. Only the written word is the law, and all persons are entitled to its benefit," Gorsuch wrote.

There was no disagreement between Gorsuch and the dissenters about the basic approach to answering the question before them. "This court normally interprets a statute in accord with the ordinary public meaning of its terms at the time of its enactment," Gorsuch said. "To do so, we orient ourselves to the time of the statute's adoption, here 1964, and begin by examining the key statutory terms in turn before assessing their impact on the cases at hand and then confirming our work against this court's precedents."

But that is where the agreement ended. Gorsuch began his analysis by examining the words in text: "discriminate" and "because of" sex.

"The question isn't just what 'sex' meant, but what Title VII says about it," he wrote. "Most notably, the statute prohibits employers from taking certain actions 'because of' sex. And, as this court has previously explained, 'the ordinary meaning of 'because of ' is 'by reason of' or 'on account of.'" And the meaning of "discriminate" in 1964?

"As it turns out, it meant then roughly what it means today: 'To make a difference in treatment or favor (of one as compared with others),'" he wrote. "So, taken together, an employer who intentionally treats a person worse because of sex—such as by firing the person for actions or attributes it would tolerate in an individual of another sex—discriminates against that person in violation of Title VII."

The fact that congressional drafters in 1964 might not have anticipated this particular application of Title VII did not detract from the broad language in the statute, Gorsuch said.

"Likely, they weren't thinking about many of the act's consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees," Gorsuch wrote. "But the limits of the drafters' imagination supply no reason to ignore the law's demands."

U.S. Supreme Court Justice Samuel Alito Jr. testifying in 2019. Credit: Diego M. Radzinschi / ALM

Alito's dissent focused on the ordinary meaning of the statute's words in 1964. "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," he wrote.

In 1964, Alito said, homosexuality was thought to be a mental disorder and homosexual conduct was considered worthy of punishment. Sex reassignment surgeries weren't performed until 1966 and it was considered by some physicians as either "severely neurotic" or "psychotic," he added.

Alito called the majority's argument "breathtaking" in its "arrogance." He wrote: "Textualists do not read statutes as if they were messages picked up by a powerful radio telescope from a distant and utterly unknown civilization."

Kavanaugh took a slightly different approach in his dissent. He accused the majority of taking a "literalist," not a "textualist" approach to the language in Title VII. The primary wrong, he said, was taking the words individually instead of analyzing the entire phrase.

"Do not simply split statutory phrases into their component words, look up each in a dictionary, and then mechanically put them together again, as the majority opinion today mistakenly does," Kavanaugh wrote.

The majority opinion, Kavanaugh said, made another "fundamental" mistake by confusing ordinary meaning with subjective intentions. "To fire one employee because she is a woman and another employee because he is gay implicates two distinct societal concerns, reveals two distinct biases, imposes two distinct harms, and falls within two distinct statutory prohibitions," Kavanaugh argued.

U.S. Supreme Court Justice Brett Kavanaugh. Credit: Diego M. Radzinschi / ALM

Kavanaugh said at one point in his dissent that he has "the greatest, and unyielding, respect for my colleagues and for their good faith." He continued: "But when this court usurps the role of Congress, as it does today, the public understandably becomes confused about who the policymakers really are in our system of separated powers, and inevitably becomes cynical about the oft-repeated aspiration that judges base their decisions on law rather than on personal preference."

"The best way for judges to demonstrate that we are deciding cases based on the ordinary meaning of the law is to walk the walk, even in the hard cases when we might prefer a different policy outcome," Kavanaugh wrote.

All three justices turned for support to Justice Antonin Scalia's opinion in Oncale v. Sundowner Offshore Services, which ruled that male-on-male sexual harassment violated Title VII but read that opinion differently.

The justices will soon have another opportunity to reveal their views on textualism when the court issues its decision in the "faithless electors" cases, but in those cases, the text to analyze will be the Constitution as well as statutes.

 

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