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| Supreme Court building in Washington, DC I took this photo during our trip there in 2015. |
It’s June, the season for Supreme Court rulings, because
their annual term ends June 30th. I’m writing today about the
Bostock v. Clayton County case. But this morning another ruling came out—another
bad ruling.
We’re supposed to have 5 of the 9 justices who form their
opinions based strictly on the law as written, since they were appointed by
Republican presidents. Apparently that isn’t so. Which shows why there is
danger in allowing the Supreme Court to have so much power.
The Constitution is pretty clear. Article III refers to the
Judicial Branch. Section 1 covers judicial service—who can serve, under what
conditions. Section 2 covers which types of cases are handled by the federal
judiciary. Section 3 describes treason against the United States and how that
will be handled.
That covers the entirety of Article III. It doesn’t say that
the court gets to determine whether there are hidden meanings, or penumbras of
meaning, in the Constitution. It doesn’t say it’s up to the courts to determine
when life begins. It doesn’t say it’s up to the courts to change the definition
of marriage from what it’s been for several thousand years. It doesn’t say the
courts have the right to rewrite a badly written law to make it better, or
better able to accomplish a desired outcome.
Surprisingly, it doesn’t even say it is up to the Supreme
Court to determine whether a law is constitutional. That didn’t become a thing
until Marbury v. Madison, in 1803.
In fact Thomas Jefferson said this:
[T]he opinion which gives to the judges the right to
decide what laws are constitutional and what not... would make the judiciary a
despotic branch.... [T]he germ of dissolution of our federal government is...
the federal Judiciary... working like gravity by night and by day, gaining a
little today and a little tomorrow, and advancing its noiseless step like a
thief, over the field of jurisdiction, until all shall be usurped.… They are
construing our Constitution from a co-ordination of a general and special
government to a general and supreme one alone.
In Federalist 78 Alexander Hamilton describes the judicial
branch as the weakest of the three branches, because it has "no influence
over either the sword or the purse…. It may truly be said to have neither FORCE
nor WILL, but merely judgment."
And yet here we are, with these nine unelected persons
wearing black robes deciding things that affect our daily lives.
Today’s bad ruling, in short, said that, while there is full
agreement that Obama’s executive order concerning DACA (refusing to enforce the
law when it comes to a class of individuals the president wanted to favor) was
illegal, and there is full agreement that President Trump has the power to rescind that
illegal executive order, the Supreme Court is nevertheless ruling that the Trump
administration didn’t fully explain their reasoning, or perhaps with the right tone, so the Court is ordering
the President to start over and do it the way the Court says—in the
meantime letting the illegal executive order stand. Justice Roberts joined the
anti-constitutionalists on the Court in that ruling.
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| Justice Neil Gorsuch wrote the opinion for Bostock v. Clayton County, GA image from Wikipedia |
The one we’re talking about today, Bostock v. Clayton
County, Georgia, concerns the "ordinary meaning" of Title VII, written in 1964,
concerning categories of discrimination in employment. The 6-3 Court opinion
was written by “textualist” Gorsuch. What a disappointment!
There are three cases included in the decision, all related
to long-time employees being fired for being either homosexual or transgender.
That they were fired at least in part for these reasons is
not in dispute. And I am not going to spend much time on the desirability of
the outcome of the case; there are multiple states where laws have been
written disallowing firing based on these reasons.
The question is, simply, what does Title VII say? As Justice
Gorsuch, writing for the majority, says in the opening of his opinion:
This Court normally interprets a statute in accord with the
ordinary public meaning of its terms at the time of its enactment. After all,
only the words on the page constitute the law adopted by Congress and approved
by the President. If judges could add to, remodel, update, or detract from old
statutory terms inspired only by extratextual sources and our own imaginations,
we would risk amending statutes outside the legislative process reserved for
the people’s representatives. And we would deny the people the right to
continue relying on the original meaning of the law they have counted on to
settle their rights and obligations.
With this in mind, our task is clear. We must determine the
ordinary public meaning of Title VII’s command that it is “unlawful… for an
employer to fail or refuse to hire or to discharge any individual, or otherwise
to discriminate against 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[i].”
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.
We get agreement with that from Justice Kavanaugh, with the
additional rationale for this practice:
Judges adhere to ordinary meaning for two main reasons: rule
of law and democratic accountability. A society governed by the rule of law
must have laws that are known and understandable to the citizenry. And judicial
adherence to ordinary meaning facilitates the democratic accountability of
America’s elected representatives for the laws they enact. Citizens and
legislators must be able to ascertain the law by reading the words of the
statute. Both the rule of law and democratic accountability badly suffer when a
court adopts a hidden or obscure interpretation of the law, and not its
ordinary meaning.
So we think at least all the “conservative” justices
understand the process. Did the ordinary public meaning, in 1964, of discrimination
because of an individual’s sex mean the same thing as discrimination because of
a person’s sexual orientation or sexual identity? Since the answer to that is
clearly no, and is still no today, as Gorsuch himself admits, and as is pointed
out with masterful clarity in the dissents by Justices Alito, and Kavanaugh’s, you
expect certain things.
You expect the Court to say, since the law was not written
to include these additional concepts, and since Congress has had ample
opportunities to change the law or to show that it was interpreting it
differently from the ordinary public meaning when written, it is not in the
power of the Court to change the clear meaning, regardless of personally
desired outcomes.
Instead, we get a tortured invention of what the text “says.”
Justice Gorsuch says,
By discriminating against homosexuals, the employer
intentionally penalizes men for being attracted to men and women for being
attracted to women. By discriminating against transgender persons, the employer
unavoidably discriminates against persons with one sex identified at birth and
another today.
Let’s set aside the transgender portion for a moment.
Gorsuch is saying an employer is only against the man’s attraction to men
because he is a man, because you’re fine with a woman being attracted to men—so
the difference is their sex.
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| Protesters on this case October 8, 2019 image from Wikipedia |
Both Justices Alito (with Justice Thomas joining in his dissent) and Kavanaugh show the short-sightedness of that assumption.
Justice Alito does it graphically, strikethroughs included:
In an effort to prove its point, the Court carefully includes
in its example just two employees, a homosexual man and a heterosexual woman,
but suppose we add two more individuals, a woman who is attracted to women and
a man who is attracted to women. (A large employer will likely have applicants
and employees who fall into all four categories, and a small employer can
potentially have all four as well.) We now have the four exemplars listed
below, with the discharged employees crossed out:
Woman attracted to men
Man attracted to
women
The discharged employees have one thing in common. It is not
biological sex, attraction to men, or attraction to women. It is attraction to
members of their own sex—in a word, sexual orientation. And that, we can infer,
is the employer’s real motive.
Justice Kavanaugh illustrates with a hypothetical:
Consider the employer who has four employees but must fire
two of them for financial reasons. Suppose the four employees are a straight man,
a straight woman, a gay man, and a lesbian. The employer with animosity against
women (animosity based on sex) will fire the two women. The employer with
animosity against gays (animosity based on sexual orientation) will fire the
gay man and the lesbian. Those are two distinct harms caused by two distinct
biases that have two different outcomes. To treat one as a form of the other—as
the majority opinion does—misapprehends common language, human psychology, and
real life.
Justice Gorsuch claims that it is impossible to discriminate
on the basis of sexual orientation without discriminating on the basis of sex,
so sexual orientation is contained within the idea of “on the basis of sex.”
The dissenting justices quickly and easily point out the fallacy.
Justice Alito writes:
If “sex” in Title VII means biologically male or female, then
discrimination because of sex means discrimination because the person in
question is biologically male or biologically female, not because that person
is sexually attracted to members of the same sex or identifies as a member of a
particular gender.
And,
Something that is not sex discrimination cannot be converted
into sex discrimination by slapping on that label. So the Court cannot prove
its point simply by labeling the employer’s objection as “attract[ion] to men.”
Rather, the Court needs to show that its label is the correct one.
Justice Alito calls the Court’s decision arrogant, because it claims that apparently everyone else since 1964 was too stupid to see the
“ordinary public meaning” written right there in the law.
Justice Alito attacks the stupidity charge with a verbal eyeroll:
The Court seemingly has the same opinion about our colleagues
on the Courts of Appeals, because until 2017, every single Court of Appeals to
consider the question interpreted Title VII’s prohibition against sex
discrimination to mean discrimination on the basis of biological sex[ii].
And for good measure, the Court’s conclusion that Title VII unambiguously
reaches discrimination on the basis of sexual orientation and gender identity
necessarily means that the EEOC failed to see the obvious for the first 48
years after Title VII became law[iii].
Day in and day out, the Commission enforced Title VII but did not grasp what
discrimination “because of… sex” unambiguously means[iv].
Justice Kavanaugh puts numbers to it:
Because judges interpret the law as written, not as they
might wish it were written, the first 10 U. S. Courts of Appeals to consider
whether Title VII prohibits sexual orientation discrimination all said no. Some
30 federal judges considered the question. All 30 judges said no, based on the
text of the statute. 30 out of 30.
In the face of that kind of clarity, the Court ought to be able
to read the law as written and rule as written—and leave any desired changes to
the Legislative Branch to accomplish.
One advantage to having the Legislature do their own work is
that, theoretically, they have the opportunity to debate, to explore different
viewpoints on an issue, and to address possible consequences of any legislation.
Justice Alito points out several effects this Court does not address, and
offers comments for each. Here is his list:
·
“[B]athrooms, locker rooms, [and other things]
of [that] kind.”
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Women’s sports.
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Housing.
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Employment by religious organizations.
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Healthcare.
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Freedom of speech.
·
Constitutional claims.
One of my key concerns is religious freedom. Justice Alito says this
about the employment by religious organizations question:
This problem is perhaps most acute when it comes to the
employment of teachers. A school’s standards for its faculty “communicate a
particular way of life to its students,” and a “violation by the faculty of
those precepts” may undermine the school’s “moral teaching[v].”
Thus, if a religious school teaches that sex outside marriage and sex
reassignment procedures are immoral, the message may be lost if the school
employs a teacher who is in a same-sex relationship or has undergone or is undergoing
sex reassignment. Yet today’s decision may lead to Title VII claims by such
teachers and applicants for employment.
I find Justice Gorsuch’s assertion that “An individual’s
homosexuality or transgender status is not relevant to employment decisions”
offensive. Who are these justices that they get to decide what is or is not
relevant to an employer’s decision?
Particularly in a religious school setting the relevance is
obvious. But it is also relevant for a religious person who is an employer and
may not want a person involved in a particular behavior to represent his
business. Suppose such an employer does not employ persons who engage in sex
outside of marriage, but today’s Court rules that he must employ such persons
if they engage in homosexual sex. Why should the Court have the power to
dismiss the relevance of sin to an employer in his hiring practices? At what point do they
have the power to decide that honesty is irrelevant, or theft, simply because these are
moral considerations?
Consider the transgender case involved in the decision. A
family-owned funeral home company fired a biologically male employee who informed
them that, after returning from an upcoming vacation time, he would be living
and working full-time as a woman. Is that relevant to the employer? To some it
might not be, especially if the employee is good at computer coding or at some
technical job that doesn’t involve interfacing with the public. But a funeral
home is a particular type of business. It deals with people at a sensitive and
emotional time. It offers care and comfort. The owner of such a business might
sense that forcing discomfort on their clients would go against their
purpose and the image they are trying to present. But Justice Gorsuch seems to
know, offhand, that the employee’s transgender status is irrelevant to the funeral
home’s hiring decisions.
While it may not always be the case, the appearance of many
transgender individuals is jarring, confusing, and discomforting. What might
bother the business owner is not that a biological male is doing something a
biological female could do without a problem, as the Court’s opinion asserts;
it is that the biological male will still be a biological male (as sex is
defined in the statute) but will be forcing the employer—as well as its
sensitive clients—to treat that biological male as the sex that he is not. A biological
female dressing as a female is not asking anything discomfiting of either
employer or client.
Here we face one of the underlying issues of Title VII in
the first place, something libertarians have pointed out all along: A person’s
business is their property, and they are entitled to do what they want with
that property, including whom they hire and whom they serve. Title VII overrides their natural right.
What if this law had never been enacted? I don’t know. I
want to think that we could trust the American people to make choices that
would not encourage a business to continue engaging in actual bigoted
activities. Society was moving naturally in that direction in most areas, and
pressure would have been felt, I think, in those Southern Democrat areas that
continued racist practices, for example. Such pressure could have brought about
the wanted changes—organically and thoroughly in a way that coercion cannot.
But I could be wrong. I did not live where Jim Crow laws
existed. I’ve often been shocked to read of things that were thought normal or
acceptable by otherwise decent Americans in those places. Maybe something
actually needed to be done by legislation. But the cost of doing it by the
coercion of law is something we’re seeing now: no trust that people’s hearts
have changed.
Doing the statutory change enacted by the Court in this case
is not going to engender better feelings. It is likely to do the opposite—which
is what happens any time the government—or any of its branches— steps beyond
its proper role.
Look especially to religious freedom. Justice Kennedy tried
to say, “That’s not going to happen,” when he ruled as he did in Obergefell.
But since that ruling there has been an all-out legal assault on religious people
and organizations that don’t fall in line.
Bad Supreme Court rulings have great power to harm
Americans. And the remedy would be so simple: justices should read the
ordinary meaning of the law.
[i] I
am including the citations as written: §2000e–2(a)(1).
[ii] See
Part III–C, infra.
[iii] The
EEOC first held that “discrimination against a transgender individual because
that person is transgender” violates Title VII in 2012 in Macy v. Holder, 2012
WL 1435995, *11 (Apr. 20, 2012), though it earlier advanced that position in an
amicus brief in Federal District Court in 2011, ibid., n. 16. It did not hold
that discrimination on the basis of sexual orientation violated Title VII until
2015. See Baldwin v. Foxx, 2015 WL 4397641 (July 15, 2015).
[iv] See
Part III–C, infra.
[v] McConnell,
Academic Freedom in Religious Colleges and Universities, 53 Law & Contemp.
Prob. 303, 322 (1990).
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