Before today, NBC’s Pete Williams declared, “it was possible to get married on Sunday and legally fired on Monday” on the basis of sexual orientation. That’s not actually true in most jurisdictions, but it makes for a dramatic frame for today’s blockbuster 6-3 Supreme Court decision in Bostock v Clayton County. In the opinion written by Justice Neil Gorsuch, the court ruled that the prohibition on discrimination on the basis of sex in the Civil Rights Act of 1964 also applies to sexual orientation:
BREAKING: "As of just a few minutes ago, it was possible to get married on Sunday and legally fired on Monday, but no more." @PeteWilliamsNBC reports on the US Supreme Court ruling that existing federal law forbids job discrimination on the basis of sexual orientation. pic.twitter.com/xOmj6ro0Q2
— NBC News (@NBCNews) June 15, 2020
The decision doesn’t come as much of a surprise, especially with most states passing similar rules over the last few years. The author of the opinion comes as a bit of a surprise, however, as Neil Gorsuch has a reputation for flinty, conservative originalism. One might have expected him to stick with a position that the textual reading of the CRA doesn’t support this opinion and ask Congress to act instead of the courts interpreting it.
Instead, Gorsuch writes that the CRA already has “plain terms” that explain its applicability to orientation, and throws in some stare decisis to amplify it:
(1) The parties concede that the term “sex” in 1964 referred to the biological distinctions between male and female. And “the ordinary meaning of ‘because of’ is ‘by reason of’ or ‘on account of,’ ” University of Tex. Southwestern Medical Center v. Nassar, 570 U. S. 338, 350. That term incorporates the but-for causation standard, id., at 346, 360, which, for Title VII, means that a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment action. The term “discriminate” meant “[t]o make a difference in treatment or favor (of one as compared with others).” Webster’s New International Dictionary 745. In so-called “disparate treatment” cases, this Court has held that the difference in treatment based on sex must be intentional. See, e.g., Watson v. Fort Worth Bank & Trust, 487 U. S. 977, 986. And the statute’s repeated use of the term “individual” means that the focus is on “[a] particular being as distinguished from a class.” Webster’s New International Dictionary, at 1267. Pp. 4–9.
(2) These terms generate the following rule: An employer violates Title VII when it intentionally fires an individual employee based in part on sex. It makes no difference if other factors besides the plaintiff’s sex contributed to the decision or that the employer treated women as a group the same when compared to men as a group. A statutory violation occurs if an employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee. Because discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex, an employer who intentionally penalizes an employee for being homosexual or transgender also violates Title VII. There is no escaping the role intent plays: Just as sex is necessarily a but-for cause when an employer discriminates against homosexual or transgender employees, an employer who discriminates on these grounds inescapably intends to rely on sex in its decisionmaking. Pp. 9–12.
(b) Three leading precedents confirm what the statute’s plain terms suggest. In Phillips v. Martin Marietta Corp., 400 U. S. 542, a company was held to have violated Title VII by refusing to hire women with young children, despite the fact that the discrimination also depended on being a parent of young children and the fact that the company favored hiring women over men. In Los Angeles Dept. of Water and Power v. Manhart, 435 U. S. 702, an employer’s policy of requiring women to make larger pension fund contributions than men because women tend to live longer was held to violate Title VII, notwithstanding the policy’s evenhandedness between men and women as groups. And in Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75, a male plaintiff alleged a triable Title VII claim for sexual harassment by co-workers who were members of the same sex. …
(c) The employers do not dispute that they fired their employees for being homosexual or transgender. Rather, they contend that even intentional discrimination against employees based on their homosexual or transgender status is not a basis for Title VII liability. But their statutory text arguments have already been rejected by this Court’s precedents. And none of their other contentions about what they think the law was meant to do, or should do, allow for ignoring the law as it is.
Again, after Obergefell, this seemed rather predictable on the basis of stare decisis and the general social trend, the latter of which seemed to influence former Justice Anthony Kennedy the most on that case. If one was to predict which members of the conservative wing might have ruled this way on Bostock, Chief Justice John Roberts might have been the first guess — and a correct one, as it turned out.
Kennedy’s protege Brett Kavanaugh voted against it, however, as did Samuel Alito and Clarence Thomas. Both Kavanaugh and Alito wrote dissents, with Thomas joining Alito’s opinion that the court had redefined “sex” to get to this decision. In a lengthy dissertation complete with appendices, Alito hammers Gorsuch for eclipsing Congress by taking an action that the legislature has never approved:
For the past 45 years, bills have been introduced in Congress to add “sexual orientation” to the list,1 and in recent years, bills have included “gender identity” as well.2 But to date, none has passed both Houses. Last year, the House of Representatives passed a bill that would amend Title VII by defining sex discrimination to include both “sexual orientation” and “gender identity,” H. R. 5, 116th Cong., 1st Sess. (2019), but the bill has stalled in the Senate. An alternative bill, H. R. 5331, 116th Cong., 1st Sess. (2019), would add similar prohibitions but contains provisions to protect religious liberty.3 This bill remains before a House Subcommittee.
Because no such amendment of Title VII has been enacted in accordance with the requirements in the Constitution (passage in both Houses and presentment to the President, Art. I, §7, cl. 2), Title VII’s prohibition of discrimination because of “sex” still means what it has always meant. But the Court is not deterred by these constitutional niceties. Usurping the constitutional authority of the other branches, the Court has essentially taken H. R. 5’s provision on employment discrimination and issued it under the guise of statutory interpretation.4 A more brazen abuse of our authority to interpret statutes is hard to recall.
The Court tries to convince readers that it is merely enforcing the terms of the statute, but that is preposterous. Even as understood today, the concept of discrimination because of “sex” is different from discrimination because of “sexual orientation” or “gender identity.” And in any event, our duty is to interpret statutory terms to “mean what they conveyed to reasonable people at the time they were written.”
Alito has a very good point in this regard, which he spends well over a hundred pages beating into the ground. The actions by Congress make it pretty clear that they recognize that defect in the original statute, even if they haven’t mustered the political will to correct it. Kavanaugh writes that this case comes down not to social justice, but to “who decides” — and writes that it shouldn’t be the courts:
The policy arguments for amending Title VII are very weighty. The Court has previously stated, and I fully agree, that gay and lesbian Americans “cannot be treated as social outcasts or as inferior in dignity and worth.” Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 584 U. S. ___, ___ (2018) (slip op., at 9).
But we are judges, not Members of Congress. And in Alexander Hamilton’s words, federal judges exercise “neither Force nor Will, but merely judgment.” The Federalist No. 78, p. 523 (J. Cooke ed. 1961). Under the Constitution’s separation of powers, our role as judges is to interpret and follow the law as written, regardless of whether we like the result. Cf. Texas v. Johnson, 491 U. S. 397, 420–421 (1989) (Kennedy, J., concurring). Our role is not to make or amend the law. As written, Title VII does not prohibit employment discrimination because of sexual orientation. …
Over time, Congress has enacted new employment discrimination laws. In 1967, Congress passed and President Johnson signed the Age Discrimination in Employment Act. 81 Stat. 602. In 1973, Congress passed and President Nixon signed the Rehabilitation Act, which in substance prohibited disability discrimination against federal and certain other employees. 87 Stat. 355. In 1990, Congress passed and President George H. W. Bush signed the comprehensive Americans with Disabilities Act. 104 Stat. 327.
To prohibit age discrimination and disability discrimination, this Court did not unilaterally rewrite or update the law. Rather, Congress and the President enacted new legislation, as prescribed by the Constitution’s separation of powers.
It bears pointing out that most states have filled this gap as well when it comes to discrimination over sexual orientation. A few states have not, but that is not the provenance of the court no matter how much public policy should dictate otherwise. Congress and the states have the authority to pass and amend laws, and as Kavanaugh correctly points out, they have done so in this particular sphere more than once. This question should have been made by Congress, and could have been made by Congress at practically any time. That system by which the governed create the rules by which they are governed is more important than letting Congress off the hook for tough political decisions, even if the outcome seems mainly beneficial to society at that moment in time.
What about religious liberty? Will this provide a fulcrum for pursuing alleged discrimination by churches and religious schools? Gorsuch says no:
Separately, the employers fear that complying with Title VII’s requirement in cases like ours may require some employers to violate their religious convictions. We are also deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution; that guarantee lies at the heart of our pluralistic society. But worries about how Title VII may intersect with religious liberties are nothing new; they even predate the statute’s passage. As a result of its deliberations in adopting the law, Congress included an express statutory exception for religious organizations. §2000e–1(a). This Court has also recognized that the First Amendment can bar the application of employment discrimination laws “to claims concerning the employment relationship between a religious institution and its ministers.” Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. 171, 188 (2012). And Congress has gone a step further yet in the Religious Freedom Restoration Act of 1993 (RFRA), 107 Stat. 1488, codified at 42 U. S. C. §2000bb et seq. That statute prohibits the federal government from substantially burdening a person’s exercise of religion unless it demonstrates that doing so both furthers a compelling governmental interest and represents the least restrictive means of furthering that interest. §2000bb–1. Because RFRA operates as a kind of super statute, displacing the normal operation of other federal laws, it might supersede Title VII’s commands in appropriate cases.
Alito, noting amici briefs in the case, is not so sanguine:
At least some teachers and applicants for teaching positions may be blocked from recovering on such claims by the “ministerial exception” recognized in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. 171 (2012). Two cases now pending before the Court present the question whether teachers who provide religious instruction can be considered to be “ministers.”54 But even if teachers with those responsibilities qualify, what about other very visible school employees who may not qualify for the ministerial exception? Provisions of Title VII provide exemptions for certain religious organizations and schools “with respect to the employment of individuals of a particular religion to perform work connected with the carrying on” of the “activities” of the organization or school, 42 U. S. C. §2000e–1(a); see also §2000e–2(e)(2), but the scope of these provisions is disputed, and as interpreted by some lower courts, they provide only narrow protection.
Kavanaugh more or less concedes Gorsuch’s point in his second footnote, however. His issues focus tightly on constitutional issues. And, despite whatever good the outcome provides, that damage will continue to reverberate by incentivizing political cowardice on Capitol Hill for decades to come. Gorsuch might have been better advised to stick to the textual approach.
Update: Judicial Crisis Network president Carrie Severino, who gave loud and long support for Gorsuch in his confirmation bid, accused him and the other five justices of “the hijacking of textualism”:
Justice Scalia would be disappointed that his successor has bungled textualism so badly today, for the sake of appealing to college campuses and editorial boards.
This was not judging, this was legislating—a brute force attack on our constitutional system. (1/x)
— Carrie Severino (@JCNSeverino) June 15, 2020
Have no doubts about what happened today: This was the hijacking of textualism.
You can't redefine the meaning of words themselves and still be doing textualism. This is an ominous sign for anyone concerned about the future of representative democracy. (end)
— Carrie Severino (@JCNSeverino) June 15, 2020
The practical outcome of this isn’t the issue, especially since it doesn’t really change much in most jurisdictions, thanks to action by state legislatures. This should have been left to Congress to fix, though, and it perpetuates the mechanism of political hot potato that irresponsible politicians play to avoid taking tough votes.
Update: Or was it just “good lawyering” that leveraged textualism into the winning argument? RCP’s Sean Trende defends the decision on the basis of textualism — and credits the plaintiffs for understanding the battleground:
So my Poli Sci 1100 class from Fall '19 will remember — or should! — me saying that I thought the arg. in the Title VII cases would have significant pull with the conservative justices. I think it is worth expanding upon here so people understand exactly where this comes from.
— Sean T at RCP (@SeanTrende) June 15, 2020
Read the whole thread, but Trende’s point about Roberts is especially interesting:
Needless to say, the opinion that Ginsburg wrote would have probably read very differently than the opinion Gorsuch wrote. In case you're wondering, yes, the annals of Chief Justiceships are replete with Chiefs engaging in this sort of strategic behavior. 4/
— Sean T at RCP (@SeanTrende) June 15, 2020
That’s very interesting indeed. Hat-tip to Alan Windham for the thread.