Richard Tsong-Taatarii/Star Tribune via AP
U.S. Supreme Court Justice Elena Kagan speaks at the University of Minnesota, October 2019.
It’s now more than a month since the Supreme Court heard oral argument in Bostock v. Clayton County on whether federal law prohibits anti-gay discrimination, and suddenly conservatives have focused their attacks on what might seem like an improbable target: Justice Elena Kagan’s insistence on the importance of the plain language of the law. This is a position known as “textualism,” often associated with conservatives such as the late Justice Antonin Scalia.
But within 72 hours, between November 19 and November 22, National Review and The Wall Street Journal published similar criticisms of Kagan, claiming that her textualism is counterfeit. The near-simultaneous attacks may be a coincidence, or they may mean that conservatives have learned something about what’s happening in the Court’s chambers—something that worries them.
The conservatives are right to worry. The question before the Court is whether Title VII of the Civil Rights Act of 1964 covers discrimination on the basis of sexual orientation and gender identity. The law prohibits sexual discrimination in employment, and the textual argument for including sexual orientation and gender identity in that protection is simple. Treating a female employee worse because she is a woman is sex discrimination; an employee who dates women is “homosexual” only if that employee is female. Discriminating against her therefore violates Title VII.
The question a court should ask in a sex discrimination case, the Supreme Court explained in 1978, is whether the evidence shows that “but for that person’s sex,” he or she would be treated differently. Although Justice Kagan asked only four questions in the oral argument, she did press counsel on the “but for” test: “[W]hat you do when you look to see whether there is discrimination under Title VII is, you say, would the same thing have happened to you if you were of a different sex?” A man who dates women would not have been labeled “homosexual” and fired. So it’s sex discrimination when a woman is fired for doing the same thing.
Robert P. George, the McCormick Professor of Jurisprudence at Princeton, has been called “this country’s most influential conservative Christian thinker” by The New York Times Magazine. He is a serious and important scholar and, as it happens, a good friend of mine. Writing in National Review, he claims that Kagan is being tricky. The hypothetical comparison of two individuals who date women, where a woman would be fired but a man would not, does not hold constant in its comparison everything except sex. It “flips a second factor … ‘sexual orientation,’ which has gone from homosexual to non-homosexual.” That, George argues, should show us:
It’s impossible to hold all but sex fixed in these cases. In designing a hypothetical to use for comparison, we have two options: (1) change the employee’s sex and her orientation (but not her partners’ sex), or (2) change her sex and her partners’ sex (but not her orientation). Only the first path leads to Kagan’s preferred result, but nothing in the text compels it. On the contrary, only the second hypothetical keeps constant all the details that reasonable readers of Title VII would deem relevant.
Thus, according to George, when a woman is fired for dating women, there is no discrimination as long as the employer would similarly have fired men who date men. The Wall Street Journal editors made the same point more briefly: “[T]he employment bias isn’t based on sex since it could apply to gay men or gay women. The bias is against sexual orientation.” And Congress hasn’t specifically protected sexual orientation from discrimination.
There are several difficulties with this reasoning. Kagan did not invent the “but for” test; it has been settled law for 40 years. The deeper problem is the implication of George’s proposed rule that one can avoid the “but for” test by saying that a person who wants to do something that the other sex may do thereby places herself into a new and distinctive category of person, defeating attempts at comparison. If you can do that, you can defeat any discrimination claim.
In 1873, the Supreme Court refused in Bradwell v. Illinois to hold that a woman has a right to practice law. In a notorious concurring opinion, Justice Joseph Bradley wrote that “[t]he natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life … The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator.”
Myra Bradwell was discriminated against because of her sex. If you accept George’s logic, however, she was not rejected by the bar only because she was a woman, but also because she rejected the paramount destiny and mission of woman—something that no male applicant did. To compare her with a man, one would need to change both her sex and the fact that she was unwomanly, a pretender to masculine prerogatives, or in modern parlance, a dyke.
You can transfer this logic to anyone who challenges gender norms. If it’s not discrimination to reject “homosexuals,” male or female, it’s not discrimination to reject “persons who seek jobs not traditionally associated with their sex,” male or female. On this logic, I’ll shortly show, even racial discrimination no longer qualifies as illegal discrimination.
Another move, made by both George and The Wall Street Journal, is to argue, in the Journal’s words, “No one in Congress in 1964 claimed that outlawing discrimination based on sex applied to sexual orientation, much less to the transgendered.” That’s true but irrelevant. Few in 1964 understood that sexual harassment is sex discrimination, but Justice Scalia explained why harassment is nonetheless covered by the statute: “[I]t is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”
George goes on to argue that Kagan made the same mistake in Masterpiece Cakeshop v. Colorado, in which a baker claimed a First Amendment right to refuse to make a cake for a same-sex wedding. Kagan argued that the law was not discriminating against conscientious Christians. It simply required the baker to make the same product for gay and straight customers alike. Justice Neil Gorsuch was unpersuaded, as George summarizes:
There were, he noted, many ways to define the product: “a mixture of flour and eggs,” a “generic wedding cake,” or a cake celebrating this same-sex couple’s wedding. The state picked a description hostile to the Christian baker’s conscience claims but chose a more conscience-friendly description in cases involving progressive bakers refusing to make cakes offensive to their values and principles. A putatively formalist rule—requiring vendors to sell everyone the “same product”—was cloaking the state’s substantive policy preferences.
Gorsuch argued that the baker “would have refused to sell a cake celebrating same-sex marriage to a heterosexual customer … it was the kind of cake, not the kind of customer, that mattered.” Here, again, a same-sex couple who wanted the same treatment would have found that their very demand for equal treatment made them different.
It is true that many actions have communicative significance and that a cake for a same-sex wedding has a different meaning than a cake for an opposite-sex wedding. In that sense, George is right that it’s never possible to hold all but sex fixed. A woman practicing law in 1873 had a different significance than a man doing the same thing. Whenever someone declines to discriminate in a cultural context where discrimination has been common, it has communicative significance. An exception of this kind would swallow the rule. There would be no violations of the law that do not fall within the exception.
Take the familiar case of the restaurant that would not serve black customers. It’s the paradigm of wrongful discrimination, the core case of what the law prohibits. We generally think of that as pure race discrimination. But when the Civil Rights Act was passed, the black customers were trying to do something different from the white customers: They were trying to integrate the restaurant, and for many that was the most salient thing about them. A same-sex wedding is an event that the baker does not want to facilitate, and the cake sends a message that the baker doesn’t agree with. The presence of black people eating lunch at Ollie’s Barbecue in Birmingham in 1965, sitting at a table next to white people, was an event that Ollie didn’t want to facilitate, and it sent a message that Ollie didn’t agree with. (The Ollie’s Barbecue case was the one in which the Court found that Congress had the power to prohibit discrimination.) The Court would not have accepted a claim that the owner could refuse to sell “racially integrated dining” or “food that expresses approval of integration.”
It is a remarkable coincidence that National Review and the Journal published these two critiques in quick succession. Perhaps some conservative justice indiscreetly complained to a friend that Kagan is winning. Let us hope.
