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Protesters rally in front of the Supreme Court as it hears arguments on whether gay and transgender people are covered by a federal law barring employment discrimination on the basis of sex, October 8, 2019.
Today, in Bostock v. Clayton County, the Supreme Court held that the Civil Rights Act of 1964 prohibits employment discrimination against gay and transgender people. That was obviously the right result, but three justices dissented. Brett Kavanaugh’s effort to evade the obvious conclusion was cleverer than Samuel Alito’s (which Clarence Thomas joined), but it was also more dangerous, because his approach would gut any law that aims to bring about significant social change.
The Civil Rights Act bans discrimination “because of sex,” and the Court explained in 1978 that this meant “treatment of a person in a manner which but for the person’s sex would be different.” LGBT discrimination is an instance of such treatment: An employee who dates women is “homosexual” only if that employee is female. Neil Gorsuch, writing for the majority, thus concluded: “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
Both dissenting opinions agreed with the majority that the Court should enforce the law’s plain meaning, without being distracted by the subjective intentions of the authors at the time of enactment. Where they disagreed was on that meaning.
All the conservatives on the Court (Roberts, Thomas, Gorsuch, Alito, and Kavanaugh) have embraced the “textualist” approach to the interpretation of statutes. It ignores legislative history and enforces the plain language of laws. If that language implies a result that its drafters did not imagine, courts should follow the words rather than their unenacted intentions. The Bostock case shows that Roberts and Gorsuch, neither of whom ever before voted to support a gay rights claim, take their textualism seriously.
But the dissenters had different views about how you find plain meaning.
Justice Alito insisted that at the time the law was enacted, no dictionary defined “sex” to include “sexual orientation.” He appended many pages of excerpts from dictionaries, along with other statutes that used the words differently. It followed, he thought, that the statute did not cover sexual orientation. The “concept of discrimination … was part of the campaign for equality that had been waged by women’s rights advocates for more than a century, and what it meant was equal treatment for men and women.”
The problem, then, is the ambiguity of plain meaning. Alito is right that the law did not prototypically cover LGBT discrimination. “In 1964, ordinary Americans reading the text of Title VII would not have dreamed that discrimination because of sex meant discrimination because of sexual orientation, much less gender identity.” But the act does bar treating a person worse because of her sex. Plain meaning can refer to prototypical meaning, the meaning that picks the most familiar example: “bird” prototypically means an animal that can fly. Thus, sex discrimination would mean discriminating against women because they are women and against men because they are men. Or plain meaning can refer to the definition of a word, which encompasses all the logical extensions of a term. The latter approach is the one used by lawyers. It is the standard approach to Title VII. In 1998, an employer argued that Title VII should not be read “literally” to protect against male-on-male harassment, because “homosexual” assault or boys-on-boys hazing was too far afield Congress’s “paradigm case” of a qualified woman not hired “because she is female.” The Court, in an opinion by the late Antonin Scalia, a fierce proponent of textualism, unanimously rejected the argument: “it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”
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Even ordinary language does not confine terms to their prototypical meaning. Words don’t work that way. Otherwise you will conclude that ostriches aren’t birds because they don’t fly.
A cleverer argument than Alito’s was made by Kavanaugh, who pointed out that courts, applying statutes, generally follow a law’s ordinary meaning rather than its literal meaning. In earlier decisions, the Court refused a reading of “mineral deposits” that included water, even though water is literally a mineral. It declined to hold that “personnel rules” encompass any rules that personnel must follow. Beans are not “seeds.” An aircraft is not a “vehicle.” Buying drugs is not “facilitating” drug distribution. Ordinary meaning sometimes precludes the literal application of a statute’s terms.
The majority responded that Kavanaugh had not offered any alternative account of the language’s meaning. “Rather than suggesting that the statutory language bears some other meaning, the employers and dissents merely suggest that, because few in 1964 expected today’s result, we should not dare to admit that it follows ineluctably from the statutory text. When a new application emerges that is both unexpected and important, they would seemingly have us merely point out the question, refer the subject back to Congress, and decline to enforce the plain terms of the law in the meantime.”
Bostock was a nice test of whether Scalia was right—whether the textualist method can prevent judges’ policy preferences from contaminating their interpretation of statutes.
It’s even worse than that. Kavanaugh’s approach presumes that if a background belief was so entrenched in the culture at the time of a law’s enactment that it was broadly shared, then one can rely on that background belief in order to subtract meaning from the plain language of a statute, to limit its extension in order to exclude applications that people at the time would not have thought of. Ordinary meaning is thus filtered through whatever blind spots were then commonly shared by (otherwise) reasonable people. By this reasoning, the Supreme Court was wrong to say in 1978 that the statute “strike[s] at the entire spectrum of disparate treatment.” There are gaps in the spectrum, blown open by the background culture at the time of enactment.
When it is applied to statutes that aim at broad social transformation, the “original cultural expectations” argument has a conservative bias. Its tendency is to cabin and defeat the very laws it purports to interpret. Normally, statutes are read to give full effect to their purpose. But laws that aim to counteract prejudice, by their nature, press against the background culture. If that culture is taken to be a check on their meaning, then what was enacted as a broad principle will be pruned down to include only its paradigmatic cases, tightly encased by the prejudices of the surrounding culture at the time of enactment.
The way to avoid that is to follow the advice of, of all people, Scalia. In his last book, Reading Law, he argued that courts should “reject judicial speculation about both the drafters’ extratextually derived purposes and the desirability of the fair reading’s anticipated consequences.” If the plain language of a law implies a result that its drafters did not imagine, courts should follow the words rather than their unenacted intentions. Disregarding the latter “will provide greater certainty in the law, and hence greater predictability and greater respect for the rule of law,” and “will curb—even reverse—the tendency of judges to imbue authoritative texts with their own policy preferences.” Bostock was a nice test of whether Scalia was right—whether the textualist method can thus prevent the judges’ policy preferences from contaminating their interpretation of statutes. His approach had a good day today. It’s too bad his conservative admirers on the Court didn’t all see that.
