By a twisted path
The idea that Bostock v. Clayton County is a victory for LGBT rights contains a distressing view of jurisprudence which reduces court rulings to the equivalent of the outcomes of sporting events in which our team either wins or loses.
The more interesting aspect is not who won or lost, but how the game is played; in this case the legal reasoning that produced the court’s surprising 6-3 ruling in favor of interpreting the 1964 Civil Rights
Act to mandate the same workplace protections for gays and the transgendered as for women and racial minorities.
Four of those six votes—those coming from justices Sotomayor,
Ginsburg, Breyer, and Kagan—are significant only in a numerical sense, since the likelihood of any of the four actually rebuffing any demand that comes cloaked in the social justice cause of the moment is roughly equivalent to my stepping onto the surface of the moon sometime in the next 48 hours; the left wing of the court exists purely to give the left what it wants (and can’t achieve through elected legislatures), and, like the left as a whole, doesn’t particularly care for the legal particulars.
As such, our attention is necessarily turned to the other side of the court, the conservative side which at least claims to take legal reasoning seriously and which saw curious and decisive defections by Neil Gorsuch and Chief Justice John Roberts.
It is probably true, as some court-watchers are claiming, that Roberts’ alignment with the majority represented a strategic maneuver designed to prevent Ginsburg from writing a more sweeping and more mischievous majority opinion; that it constitutes an exercise in damage limitation dictated by the realization of Gorsuch’s defection.
Thus, it all came down to Gorsuch, the alleged heir of Antonin Scalia’s “textualist” mode of interpretation, and the remarkable way he abused it in Bostock.
Along these lines, Gorsuch essentially had three interpretative routes to choose from, two of which were more obvious and straightforward but which forbade his apparent preferred result (to extend Title VII protection) and one that was more circuitous and less obvious but taken because it took him where he wanted to go.
The kind of strictly textualist reading that conservatives like Gorsuch usually lean on when interpreting statutes would have involved obeying the precise language of Title VII, which makes it illegal “for an employer to fail or refuse to hire or to discharge any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”
Since there is no mention in any of that of sexual orientation or transgenderism, Gorsuch, in impressive emulation of the kind of leftist jurisprudence most flagrantly found in Roe v. Wade, manages to find something where there is nothing; thereby reading into the statute additional forms of protection that its wording doesn’t require.
The second method of conservative interpretation, the “originalist” approach, mandates an effort to understand what those who voted for Title VII back in 1964 thought they were voting for. It is more capacious than a textualist reading because it goes beyond the text of constitutional provisions or statutes per se to permit the entry of commentary, speeches, memoirs, and other items from the historical record to grasp “original intent.”
The problem with this for Gorsuch is that, although members of Congress were quite aware of homosexuality and of men who liked to put on dresses at the time of the act’s passage, they clearly had no intention of using it to extend employment protection in those directions. Given the attitudes regnant in the mid-1960s, any suggestion to do so would have been met with baffled expressions, chuckles and rolled eyes.
Thus, with the more obvious original intent and textual paths to his goal of expanding Title VII foreclosed, Gorsuch had no choice but to get “creative” and climb aboard what Justice Alito in his dissent accurately referred to as “a pirate ship” that “sails under a textualist flag.”
In an argument that was too clever by half, Gorsuch would assert that “homosexuality and transgender status are inextricably bound up with sex” to the point that “to discriminate on these grounds requires an employer to intentionally treat individual employees differently because of their sex.”
More specifically, for Gorsuch, a man attracted to another man (or a woman attracted to another woman) would be treated differently than other men (or women), and hence, in a decidedly innovative formulation, discriminated against on the basis of gender in a way that Title VII forbids.
Apparently, Congress in 1964 extended protections against discrimination for gays and the transgendered by accident, without knowing it. And all it took was the passage of 56 years and the detective skills of Judge Gorsuch to figure it out.
The issue here is not LGBT rights, but the proper legal interpretation of legislation passed by the people’s representatives; which is also a way of asking yet again whether we are a nation of laws or just men.
An ordinary reading of the text of Title VII didn’t get Gorsuch to where he wanted to go; nor did reference to the intent of those who crafted it.
But determined as he was, he still found a way.