LGBT

Textualism's Redeemers

A ruling that Title VII protects gay and transgender employees may earn textualism strange new disrespect

|The Volokh Conspiracy |

Say what you will about the Supreme Court's decision today in Bostock v. Clayton County, concluding that forbidden "sex" discrimination encompasses firing someone for being gay or transgender, but on its face it is not the least bit sentimental about the almost 10 million LGBT workers in the country. There is no talk here of transcendence.  There is no waxing about dignity. There is no citation to evidence of the extent or harm of employment discrimination based on sexual orientation or gender identity. There is no homage to the struggles of gay or trans people over the decades or to society's evolving consensus. Two of the three plaintiffs are dead, yet Justice Gorsuch's decision reads as if he were parsing the terms of their wills.

There is no poetry, only prose.  It's refreshingly clear prose, too.

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. . . . When the express terms of a statute give us one answer and extratextual considerations suggest another, it's no contest. Only the written word is the law, and all persons are entitled to its benefit.

LGBT-equality advocates have long been skeptical of textualist arguments as mere covers for gay or trans exceptions to supposedly neutral legal analysis. A lot of these advocates expected that some combination of consequentialist concerns about purported transgender transgressions in bathrooms, religious objections, and libertarian grousing would drive them into a textualist dead-end. Now textualism will have new adherents across a broad swath of federal law.  (See Justice Alito's 15-page Appendix C listing federal statutes forbidding sex discrimination. It's a to-do list for Lambda Legal.) The Court was careful about the "firing" issue today, so whether Bostock will actually be applied so broadly remains to be seen. Textualism has been redeemed in their eyes, at least today. It restores faith in text as law.

But textualism, at least as practiced by the Court, may draw strange new disrespect. Just as a few esteemed scholars have begun to fault originalism for producing insufficiently socially conservative policy results, so there will be defectors from textualism's newly enlightened empire.

There is certainly room for debate among textualists about the right methodological considerations in Bostock and about where these considerations should lead. (Ilya has a close discussion of the textualist argument among the Justices here.) For years, I was not fully persuaded by the textualist case for gay and trans protection in Title VII. It's one reason I did not take a position in the litigation.

Many fine briefs on the plaintiffs' side made textualist arguments, as did those supporting the employers.  I discussed the antagonists after the oral argument here.) The argument that finally persuaded me, however, was the amicus brief by Bill Eskridge and Andy Koppelman. I saw no citation to it (except in the dissenting Justice Alito's footnote 11), but I suspect that brief was influential today.

There is an additional debate to be conducted among textualists about what we are supposed to be doing when we read legal texts. In the words of one dissenting commentator on this blog: "Textualism is not an interpretive theory. It is just a method of originalism." Really? The inverse seems to be closer to the reasoning of two leading conservatives now on the Court, at least when it comes to statutory interpretation: Originalism is not an interpretive theory. It is just a method of textualism.  That debate is now teed up.

At the same time, it's hard to escape the conclusion that there was more than clinical textualism behind this decision. The relevant text of Title VII has not changed in 56 years, and for most of that time lower courts uniformly read the text as not including protection for gay or transgender employees. But the existence of an LGBT-equality movement shifted the range of believable textualist arguments. The only paean to that movement came from the dissenting textualist, Justice Kavanaugh:

Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today's result.

The LGBT movement generated gales of social and political change that also lifted a judicial veil, allowing textualists to see what was right in front of them. "This elephant has never hidden in a mouse hole," Justice Gorsuch writes, "it has been standing before us all along."

 

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  1. This is worse than the Dred Scott decision.
    Sadly, the Second Civil War will come from this….

    1. I wouldn’t go quite that far. Most people have been “whatever”. The lawyers will get paid filing suits left and right though, and HR departments will get a bit more intrusive.

      1. “The lawyers will get paid filing suits left and right though, and HR departments will get a bit more intrusive.”

        And that will be the issue that upsets people.

      2. Now I get to decline to state my sexual orientation just like the other categories.

    2. How is it worse than the Dred Scott decision?

      Leaving the law aside, Ed, how is it morally acceptable to fire someone because of their sexual orientation?

      WWJD?

      1. Someday I’d like to meet the person who successfully changed ‘treat people fairly’ to ‘people are identical and should be treated identically no matter what reality is.’ and learn how he tricked even supposedly intelligent people with decades of education.

      2. How is morally acceptable to force people to work together against their will?

        WWRD?

      3. “… how is it morally acceptable to fire someone because of their sexual orientation? “

        I’m still not convinced that happens.
        Do you know how hard it is to get a good employee?

      4. It is a bad law because it enshrines the concept of dynamic interpretation of statutes. This is Humpty Dumpty law. A majority of the Supreme Court can now become benevolent dictators bending the laws to mean anything they want them to mean.

        1. Gorsuch’s reasoning doesn’t claim dynamism. He claims the text of the law *always* meant this.

          There’s a huge difference between claiming the text means something different today than it did before, and claiming that people were wrong (to at least some extent) in how they understood the universal and persistent meaning of the text before.

    3. “Sadly, the Second Civil War will come from this….”

      This is the breaking point?

      After more than a half-century of getting your bigoted, lame asses stomped in the culture war by better Americans, this decision is the one that is going to cause conservatives to switch from being whimpering, muttering misfits to becoming armed crusaders for bigotry and backwardness?

      This is the decision that will cause Republicans to leave their deplorable backwaters (and their white, male blogs) to take to the streets?

      What, precisely, is different and more important about this decision? What makes this the final straw that unleashes the great clinger uprising?

      And when does this unleashing of the bigots begin? I need to know when to be sure I have enough popcorn on hand.

      (Which side of this war will benefit from the fierce defenses — just ask Mrs. Cruz — for which Ted Cruz-class “libertarians” are known?)

      1. “And when does this unleashing of the bigots begin?”

        November 3, 2020…..

        1. So ‘the Second Civil War will come from this’ was a lie . . . it will be Trump’s failure to achieve reelection that will precipitate this Great Clinger War you expect?

          1. You ruined Hooters! I h8t u!

    4. This decision is fairly obviously wrong, and it’s an indictment of the Republican Party that over the last 30 years they couldn’t find a way to get five people on the court who would see that.

      That said, I find impossible to believe that anyone but the severely mentally ill would be willing to either kill or die to reverse it.

      1. Look at what a little tax on tea did.

        And this isn’t happening in a vacuum — there is a great deal of populist angst. Remember that Dred Scott was March 6, 1857 — about four years before Lincoln was sworn in as President — and while we can look at the decision from the perspective of history, I doubt many at the time knew what would be happening over the following decade.

        I don’t think that Joe Sixpack really cares what his co-workers do in their off-work time, as long as he doesn’t have to affirm it. But this crosses that line and upsets the crucial “live & let live” balance that underlies much of American society.

        I’m thinking more of someone standing up in a canoe than reversing the decision, more a resentment of Big Government (and the schmucks in HR) than anything involving LGB&T.

        It’ll be like the loyalty oaths of the 1960’s — it wasn’t that people intended to subvert the government, they were p*ssed that the government made them promise not to. The law of unintended consequences.

        1. “Look at what a little tax on tea did.”

          Camel. . . straw. . . back. . . .

          You fill in the blanks.

      2. This decision is unlikely to prompt any reasonable person to kill, but the reasoning behind this decision probably will at some point.

          1. Gorsuch basically licensed Merriam-Webster to amend the laws and Constitution. He wasn’t engaged in textualism as textualists understand it, where the fixity principle applies. It was more of a parody of textualism.

            Now, maybe that reasoning was totally outcome oriented, and not intended to be taken seriously. I wouldn’t be surprised. But if the Court goes on to continue in this vein, they’re going to toss the Constitution on the ash heap of history, while pretending to be enforcing it.

            And that’s going to enrage a lot more people than just this decision. The same ‘reasoning’ deployed widely would be revolutionary in its implications.

            1. I would not read an opinion about a statute as defining how Gorsuch or anyone else would approach constitutional interpretation.

              The Republic survived the Burger and Warren courts, and decades of Brennan. The idea that Gorsuch is going to bring it all down strikes me as unlikely.

            2. Brett, this is a textualist decision. It is not the only school of textualism, but it sure is textualist.

              That you cannot deal with a doctrine you approve of leading to an outcome you don’t like says volumes about how you actually view not just the Constitution, but laws as well.

              That continued disappointment in the Court’s outcomes allows you to rationalizing killing people shows how you’ve never respected our republic.

              1. Gorsuch claims it is a “textualist” decision. He is wrong. It is anti-textualist. It is Humpty Dumpty law. “Textualism” is not twisting the meanings of words to get the result you want. This is more in line with Critical Legal Studies: the law is just about power structures. This decision is just one more reason for people to be cynical about the law.

                1. Yeah, merely repeating “this is a textual decision” doesn’t make it so.

                2. You think Gorsuch wants this result?

                  This is textualist. Textualist scholars admit this is textualist.

                  Gorsuch mentions nothing about power structures. A telling strawman.

              2. Sarcastro, you’re not a textualist, don’t go telling actual textualists what is textualism.

                The fixity principle is central to textualism, this is a parody of genuine textualism.

                1. The fixity principle is not central to textualism, which is why you don’t have armies if conservatives calling on SCOTUS to uphold affirmative action or to get rid of Brown and Loving.

                  I love watching you guys pretend you are constrained by anything other than “gay people must lose their court cases”.

                  1. The fixity in terms of textualism is the fixity of word meanings. Once a document is written, the words in it, for purposes of interpreting THAT document, never change their meaning.

                    Lexicographers aren’t entitled to amend laws or the Constitution.

                    1. Gorsuch isn’t saying the meaning changed, he’s saying that’s what Congress wrote in the 60’s, regardless of their intent.

                  2. “The fixity principle is not central to textualism…”

                    Yes it is. In any event, Gorsuch believes he applied the fixity principle to this actual case. He wasn’t purporting to alter the meaning of “sex” to fit some modern understanding.

                    “…which is why you don’t have armies if conservatives calling on SCOTUS to uphold affirmative action or to get rid of Brown and Loving.”

                    No, instead you have (1) some people who think that Brown and Loving were probably wrongly decided as a matter of law but great results for society, (2) some textualists twisting themselves in knots trying to explain why textualism actually mandates those results, and (3) some textualists conceding that Brown and Loving were wrongly decided by deferring to stare decisis.

                    Re: “uphold affirmative action” could you explain? I’m not following.

                2. Brett, that’s dumb as hell – I’ve studied what textualism means probably more formally than you.
                  Maybe you’re too partisan to do so, but I can have opinions about things I don’t agree with.

            3. It was more of a parody of textualism.

              Maybe Roberts joined the majority and assigned the opinion to Gorsuch because he thought that Gorsuch in the process would despair of being able to produce a respectable textualist foundation and switch sides.

            4. Brett, please understand that you’re not smart enough to understand the decision. Gorsuch’s decision — unlike, perhaps a hypothetical majority decision written by Ginsburg — did not turn on changing the meaning of words. He did not, e.g., find that “sex” includes “gender identity.”

    5. A result that is supported by somewhere between 70 and 90% of the population, depending on the poll question’s wording, seems unlikely to be the flash point.

  2. Redeemed? Meh. Maybe there is something to that “common good conservatism” approach if *this* is what we get out of supposed originality.

      1. The decision calls itself textualist, not originalist. This article is about textualism, not originalism. They are not the same thing.

        1. Not only does the decision not proceed from the intentions of the drafters it doesn’ t proceed from the ordinary meaning of the text or any logical conclusion or extension. Its not textualism at all and even a high schooler who looked up the definition on wikipedia could easily see that. Politics aside this joke of a justification should be an embarrassment to the Court if they didn’t know that 99.999999999999999999999999999999999% of the planet’s sum understanding of this case would a trite headline on WAPOO about how LGBTfdhdfdkejr67^ won a human rights victory above a picture of a seizureinducing flag.

          At the very least they could have tried…..

          1. But in the 2A “state” means country…right??

            1. Uh, “state” does mean country. The only reason you might think it doesn’t is that the federal government isn’t respecting federalism anymore.

              1. United STATES of America. So if “state” means country and “militia” refers to the unorganized militia then there was no need to incorporate Heller because the 2A apparently applied to all Americans when ratified.

        2. No, textualism is a school of originalism, because it’s supposed to be using the meanings words had at the time the text was written. The idea the Merriam-Webster can change the meaning of laws by re-writing a dictionary entry is thoroughly living constitutionalist.

          1. The original meaning of “sex” does not determine the outcome. The operative text is “because of.” If an employee was faced an adverse employment decision for engaging in a specific activity (“Employee A was fired because Employee A has sexual relations with a man on Employee A’s private time” or “Employee B has young children at home so we won’t hire Employee B”) and there is a difference when we specify the sex (male or female) of the Employee then Employee can bring a cause of action for a Title VII violation. That is precisely the definition of “because of” when the statute was drafted.

            1. Sex had different meanings in 1964. How did you conclude that the one chosen meant biological gender, rather than intercourse?

              1. How does that change nystateofmind’s reasoning?

                1. Because if “sex” meant “intercourse” the case would come out differently. Before getting to “because of” you still have to know what “sex” means. It’s intended to show that even the strictest of textualists has to do some intuiting beyond the text. Dictionaries often have multiple meanings, and textualists have to select the one (from the time of enactment) that makes sense in context. But this search for context should indicate that textualism is, fundamentally, subservient to original intent. (Incidentally, many of the textualist canons of interpretation require looking to original intent in some fashion.) But once you go searching for context, that casts doubt on hist interpretation of “because of” too.

                  1. Either the authors of Title VII designated five categories of immutable* characteristics for protection, or they protected four immutable characteristics plus one activity. Which seems more likely?

                    * Yes, religion is not immutable and sex change operations are now a thing (although not when the act was enacted). Has no bearing on the topic at hand.

                    I like the policy result but gotta go with Kavanaugh on the reasoning.

                    1. I agree, my point is that we still care what the authors intended. That’s why we look at the text in context.

              2. So the 1A only protects members of the media that literally use a printing press?? I think I will invest in a printing press business then!

                EXTRA EXTRA READ ALL ABOUT IT! Transgender people can’t get fired for being transgender! Arm yourselves with knowledge!

                1. I feel bad for this argument, since it’s exhausted. If a judge subjectively believed that the 1A was intended to apply only to the printing press when written, it would. But nobody thinks that. Nobody says “The founders only intended the 1A to apply to mediums that existed in their lifetime.” (Actually I’m sure there are some people who argue this, but no one mainstream.)

                  Gorsuch in his opinion did not say “The people who enacted 1964 intended it to apply to [new class].” He said the exact opposite. Can you imagine a judge saying “The 1A was intended only to apply to the printing press. Nonetheless, I am applying it to something else.” The opinion would be incoherent. That’s why Gorsuch’s concession was so remarkable.

                  There are constitutional terms that are fixed in time, and contemplate no new application. “Corruption of Blood” will never mean blood poisoning, no matter what happens to language.

                  1. Don’t liberals do that with the 2A and the word “arms”? So arms just meant muskets and swords?

                    1. I don’t speak for your idea of “liberals”.

            2. That is precisely the definition of “because of” when the statute was drafted.

              If that was the definition of “because of” in 1964 then why didn’t everybody realize in 1964 that it would have this result? Why did all the courts and agencies uniformly reject that understanding?

              1. Because not everyone is a textualist?

                1. Because everybody realized, from the plain meaning of the words, that it was enacted to prevent discrimination against women, not discrimination against homosexuals, and because everyone assumed that the role of judges is not to find hidden meanings that were not intended, such as that “because of sex” could ever be equated with “because of sexual orientation” simply because there is a sexual component involved.

                  1. Um, you’re kind of making my point. I noted that this was a textualist case, and you attempted to rebut it by talking about the purpose of the law. Nobody disagrees that “it was enacted to prevent discrimination against women.” But the law doesn’t say, “Discrimination against women is illegal.” And the issue is whether we give effect to the text or the purpose.

                    If you allow Person 1 to do X, and you punish Person 2 for doing X, and the only difference between Person 1 and Person 2 is their sex, then you are discriminating against them based on sex. Doesn’t matter whether X is “skydiving,” “eating lobster,” or “dating a woman.”

                    (Of course, one could try to get around that by relabeling it as “dating someone of the same sex.” The problem with that is the race analogy. We (pretty much) all agree that Title VII would not allow an employer to punish an employee for being in an interracial marriage. But if that relabeling worked, then an employer could indeed do so.)

                    1. So would you say that a bar on the beach that allows male waiters to work without a shirt on will now be required by Title VII to allow female waiters to do so as well? Same with male and female lifeguards?

        3. They’re dramatically different in fact. Originalism is about how the drafting/passing congress understood the text, not about what the text meant as text. If the Congress had an incomplete understanding, then their understanding might be original but deficient textually. (And if anyone has any confidence in congress critters actually understanding the laws they pass, they clearly don’t remember the Affordable Care Act).

          Textualism and Originalism should only be identical if we believe people elected to Congress infallibly understand the language of every bill they vote for.

          1. That Hubert Horatio Humphrey was one naughty boy!! Let your freak flag fly Triple H!

          2. No. Originalism is concerned with the original public meaning, not the understanding of legislators. See this article.

            Originalists, however, generally agree that the Constitution’s text had an “objectively identifiable” or public meaning at the time of the Founding that has not changed over time, and the task of judges and Justices (and other responsible interpreters) is to construct this original meaning.

            1. That hardly describes all of originalism.

              Check out Baud’s posts on the differing subdoctrines. Original public meaning, ratifiers intent, drafters intent, Balkin’s Living Originalism, drafters’ purpose…

  3. “There is no waxing about dignity. There is no citation to evidence of the extent or harm of employment discrimination based on sexual orientation or gender identity. There is no homage to the struggles of gay or trans people over the decades or to society’s evolving consensus. Two of the three plaintiffs are dead, yet Justice Gorsuch’s decision reads as if he were parsing the terms of their wills. There is no poetry, only prose. It’s refreshingly clear prose, too.”

    In short, this isn’t a decision you have read at your wedding; it’s the decision you arm yourself with walking into HR. And that’s as it should be.

  4. It would have been better if the Congress had decided to add sexual orientation to the law instead of continuing down this cute path. The law should mean what the Congress-critters meant when they passed it and when they want to change it, they can.

    1. Or maybe we should stop with the silliness of ‘legislating morality’ like the progs used to say before they got the power and changed their minds. The business of government is infrastructure and basic social order which did not include persecuting cake shops or setting quotas for transgender employees for thousands of years up until a few years ago and humanity got along.

      1. Humanity “got along?”

        If you were a slave, you might question that observation.

        It you were gay, you might question that observation.

        If you were a woman seeking to own property to be educated, you might question that observation.

        Or, if you were a bigoted, selfish, morally bankrupt, eager recipient of unearned privilege, you might see “humanity got along” as a good way to view it.

    2. It would have been even better to put homosexuals in mental institutions where they belong.

      1. These are your peeps, Conspirators.

        Still hoping your white, male, stale blog will persuade strong law schools to hire more movement conservatives for faculty positions?

        Conservatives deserve everything that is coming to them.

        1. Still think the legal profession is going to be respected after truly asinine decisions like this one?

          And remember what Yeats said about the middle not holding.

          1. Ed, the people enraged at this decision already hate the Court for dimly understood reasons.

            Your constant ‘concern’ about right-wing violence or civil war based on everything that you don’t approve of reminds me of Grandpa Simpson seeing death everywhere.

            1. I am enraged at this decision because it means that it is now impossible to predict what a law means. How am I supposed to advise clients (or, since I am a government lawyer, policy makers) about long term policies when the courts can change the laws limited only by their ability to twist the language. It is a great day for agents of chaos who want to fight everything. One important purpose of the law is to bring some certainty to interpersonal relationships and transactions; this ruling does the opposite.

              1. Your concern does not seem in keeping with my experience with legal practice. A new legal decision has always been an uncertainty in legal practice. You said you practice ERISA. Do you think that’s been rock-solid full of predictable Supreme Court decisions?

                If something comes before the Court, there’s pretty clearly a legit question of law, and you need to be prepared for uncertainty.

              2. “How am I supposed to advise clients (or, since I am a government lawyer, policy makers) about long term policies when the courts can change the laws limited only by their ability to twist the language. It is a great day for agents of chaos who want to fight everything. One important purpose of the law is to bring some certainty to interpersonal relationships and transactions; this ruling does the opposite.”

                Do you feel the same way about recent expansions in special privilege for religious claimants, recent expansions in gun-related rights, or new interpretations of the rights of those who wish to engage in government micromanagement of certain clinics?

            2. “Ed, the people enraged at this decision already hate the Court for dimly understood reasons.”

              I hate the Court with an abiding passion, and I understand exactly why, there’s nothing dimly understood about it.

              This term they had 10 freaking 2nd amendment cases, and not marginal issues, cases concerning some of the most gross constitutional violations imaginable, and they dropped every single one of them. An enumerated constitutional right, and they won’t take the cases. That’s despicable.

              What’s it going to take before the Court stops ducking this issue? Enraged right-wing mobs on their lawns fighting it out with the left wing mobs that camp there? Because if that’s what it takes, it’s coming.

              1. You think you understand why, but it looks a lot more like you hate them whenever they stand in the way of your take on the Constitution (with concomitant policy outcomes you happen to enjoy).

                1. Isn’t “I think their important decisions are usually wrong” a valid reason to dislike the Supreme Court?

          2. They’re not trying to be respected at this point. They’re trying to avoid having the mob burn their houses down.

            1. Too much melodrama, Brett.

              1. Melodrama? They literally had enraged mobs pounding at their doors while Kavanaugh was being sworn in. Any Justice at this point who isn’t wondering if he’s going to be personally attacked for a ruling some day is an idiot.

                1. This is getting Ed-esque.

                  The Supreme Court is not making rulings out of fear of assassination.

          3. “Still think the legal profession is going to be respected after truly asinine decisions like this one?”

            Not so much by the people who disdain credentials, reason, science, education, modernity, inclusiveness, expertise, and progress.

      2. Is a mental institution what Jesus would do?

      3. “It would have been even better to put homosexuals in mental institutions where they belong.”

        There are some very good gay psychiatrists. And many of those facilities could be decorated better.

    3. “The law should mean what the Congress-critters meant when they passed it and when they want to change it, they can.”

      How about the Congress-critters should write a law that says what they mean? You should be able to look at a law and know what it means without having to get a history degree first. But on the bright side, this also kills the liberal argument that the Second Amendment means only arms available at the time of the founding.

  5. I don’t doubt this pushes us one step closer to the brink. Not because of the immediate effect. No one really cares that much about it, just like gay marriage. It will be the next step though just like after gay marriage came forcing Christians to violate their religious liberty and free speech rights to bow down to that false alter. But, when that comes we can deal with that. So, I started caring about this at 10:02AM and stopped by about 10:18AM.

    1. Whaaaa!

      1. Dynamic interpretation of the law (be it the constitution or a statute) is a step down the path to chaos. It whittles away at the entire concept of the law: which is supposed to bring some certainty and consistency to interpersonal dealings and transactions.

        1. How much do recent conservative stylings in Second Amendment cases disgust you?

  6. Only living constitutionalists think textualism is in any need of redeeming, and when you get right down to it, they think it’s irredeemable anyway, so there’s no point in textualists sucking up to them.

    1. 1) This is a statutory decision. I don’t get why the OP brought up originalism.

      2) Textualism is compatible with any form of constitutional interpretation – everyone agrees that textualism alone is insufficient. you must turn to other methods when the text is ambiguous.

      1. 1) Originalism is just as applicable to statutes as constitutions. You’ve still got the fixity principle: The law changes when it is changed, not otherwise.

        2) Textualism, properly understood, means that you interpret the text in light of the meanings of the words and the grammatical rules in place at the time the law originated. It is absolutely a component of originalism, and is only compatible to a limited degree with living constitutionalism to the extent that the law is genuinely ambiguous. Not the usual living constitutionalist simple refusal to admit clear meaning if they don’t like it, but actual ambiguity.

        1. I accidentally flagged this. The site’s pop up ads are making it difficult to navigate on mobile.

        2. 1) OK, though I don’t know a lot of living statutory interpretation guys. And you’re the one that brought up living constitutionalism which is definitely not applicable.

          2) Textualism, properly understood, is not a thing. There are subschools aplenty. Your adhesion to the one with your preferred outcome doesn’t make Gorsuch any less textualist.
          You also did not appear to read my actual post. Textualism in statutory interpretation – which does deal with the text at the time of drafting – is widely used for unambiguous text and generally disposes of the entire issue with no need to look to any other doctrine.
          Your tying it to originalism just shows that you don’t understand statutory interpretation and are trying to get the square peg of your constitutional understanding into the round hole of statutory interpretation.

          In Constitutional interpretation, textualism also does not require originalism – there is original public meaning textualism and modern meaning textualism. Both start at the text. Just because you don’t like one doesn’t mean it’s not ‘properly understood.’

      2. Originalism applies to all laws. More precisely, it applies to every communication, everywhere, in all of history. The concept of interpreting what people say—setting aside laws—makes no sense divorces from intent.

        1. That’s what I tell people: Originalism isn’t some weird legal principle, it’s just how language works. Constitution, law, cookbook, it’s all the same: If you want to know what it means, you follow ‘originalist’ principles.

          That’s why it’s so futile arguing with living constitutionalists: They’ve already decided that they’re not going to let language work if they don’t like the outcome, and all you have to argue with them with is language.

          They’ve gone down the rabbit hole, and nobody can pry them out, they escape it on their own or not at all.

          1. Brett, you’re all over here yelling about how your preferred outcome was once again required. I’ve told you all the good policies I don’t think are mandated by the Constitution (non-registration gun control, universal income, banning gerrymandering), but you never seem to remember.
            As usual you are lost in your would where everyone who disagrees with you is lying about why.

        2. I know you think this NToJ, and I agree with you as respecting laws. Indeed, I never learned or heard of anyone using modern meaning to update statutory language.

          But I don’t think it’s true of Constitutions. You can see that Constitutions are different in cases from the cases of the Founding Era – don’t forget this is a Constitution we are expounding. The undergirding of a society must flex with time else it will break. See: the electoral college, women’s rights in the EPC, etc.
          Doesn’t mean they are infinitely malleable, despite what many on this blog say. But you are not one of those who cries bad faith at all who disagree with you.

          1. “The undergirding of a society must flex with time else it will break. ”

            THAT’S WHY IT HAS ARTICLE V!

            This sort of thing is equivalent to breaking somebody’s leg and claiming they’ve got two knees in it. It’s not flexing, it’s being broken.

            1. Did you read my final paragraph? Article V can be useful for larger changes and yet not responsible for every change in Constitutional understanding since the 1700s.

              1. “and yet not responsible for every change in Constitutional understanding since the 1700s.”

                That’s because a lot of changes in Constitutional understanding have been achieved by illegitimate means. Just because you want honest accounting doesn’t mean you deny the existence of embezzlement.

                1. And now we come down to it. You keep arguing I’m inconsistent. But as I explain enough we get down to the brass tacks.
                  YOU say they’re illegitimate. Your argument has crumbled leaving only ipse dixit.

                  You do not have a monopoly on what’s legitimate. This lack of humility just seems to lead to impotent rage on your part.

                  Maybe I’m wrong, and originalism is the way to go. I’m willing to countenance that possibility. If I lose the argument, I’ll be put out, but reality has not been overthrown.
                  You’ve gotten yourself to a place where you CANNOT be wrong. I’m sure that’s very good for your self-validation. But it’s also why your arguments end up devolving into melodrama and paranoia so often.

          2. “You can see that Constitutions are different in cases from the cases of the Founding Era…”

            There are not different rules for interpreting the Constitution than any other writing. We all seek original intent as best we can based on the original text, contemporaneous evidence, etc.

            Now, there may be different rules for how the judiciary utilizes its power to enforce the Constitution. There is an important distinction between rules of interpretation and rules of adjudication. The political question doctrine, as an example, can be considered a rule of adjudication. It may have firm foundation in the text or structure of the Constitution, but it’s fundamentally just a prudential rule that judges impose on themselves to avoid out-punting the coverage. I would argue that it’s mandated by the Constitution and contemporaneous history as a matter of interpretation, but even if I’m wrong it would still survive as a useful rule of adjudication only. Separation of power is another example. Unlike many state constitutions, the US Constitution has no express separation of powers provision. Separation of Powers is intuited or implied based on the structure. SCOTUS should think extra hard before directly crossing Congress or the President, not because it has some upper hand in interpreting the Constitution, but because Congress and the President have real power to harm the Court and its members (and no real obligation to follow the whims of a runaway Court). The implied powers, structure, etc. arguments relate to interpretation. But the power dynamic is just force of will. A thoughtful jurist will adopt a rule that avoids unnecessary confrontation with people who can fuck the jurist up.

            The role of the judge is not solely to interpret legal texts. They have to issue orders, provide reasons, justify those decisions, etc. A good rule of adjudication is that if the plaintiff has not met their burden of proof and persuasion, then the plaintiff should lose. The interpretation of the Constitution is insufficient to answer that. The judge must also know what evidence the plaintiff has put on, arguments presented, preservation of error, and so on.

            I think it is a good prudential rule of adjudication for judges to punt questions that demand they agree with an interpretation that is not apparent. I think this rule is mandated by the constitutional structure and founding-era contemporaneous accounts about the role of the judiciary, specifically Federalist 74. There may be prudential reasons for this rule to run one way. If SCOTUS decides a constitutional question that refuses to recognize some constitutional power, it can be reversed by an act of Congress. If SCOTUS decides some close constitutional question in a way that prohibits Congress from ever deciding the issue again (as was the case in Maryland that you cite), it takes an Act of God to reverse that decision, especially now, since approximately 10% of the population can block an Article V amendment under our current structure.

            Another unique aspect of the Constitution is that it has so many ratifiers, from so many different places, from so long ago, in language that is necessarily vague (because a Constitution can’t cover everything). These things don’t make interpretation impossible but they make it very difficult. And where adjudication is concerned, the harder it is for a judge to interpret a law, the more restraint he or she should exercise in deciding the case in the claimant’s favor. I think that’s constitutionally mandated, but, again, even if it isn’t, it’s a good prudential rule. Caution increases as the unknown expands. There’s nothing wrong with a judge saying “I’ve been asked to answer a question that I’m unqualified to answer, and so I’m declining to answer the question.”

            1. AHHH FEDERALIST 78! Fuck my life.

              1. Eh, you’re fine. But I don’t see what’s so hard about an edit button…

                There are not different rules for interpreting the Constitution than any other writing. We all seek original intent as best we can based on the original text, contemporaneous evidence, etc.

                There are lots of ways to interpret the written word. You can most clearly see this in fiction, but your thesis here is sufficiently broad that it has to deal with that. Death of the Author. Text and subtext, etc.
                You also see it in nonfiction. The study of unreliable narrators abounds in history. The study of mythology is not limited to the study of literally what was said or meant.

                So then we turn to statescraft. Given the above, I do not think it an impossibility that the Constitution was crafted knowing that the ideas contained therein were amorphous and their valences would change over the years. Indeed, from their writing, it’s evident that the Founders knew they were dealing with broad concepts that could be nailed down only through experience. The Alien and Sedition Acts show this in action, for instance.
                This isn’t a boat of Theseus situation where the entire thing will change over time, but rather like…nature and nurture. Nature defines the range, nurture defines the specifics, which may change over time.

                Separate from that, your distinction between interpretation and adjudication is a good one that seems obvious but which my law school did not touch on in either it’s legislation nor it’s jurisprudence. I tend to agree re: judicial minimalism being a good prudential doctrine. And, I also like judicial tests ad laying our factors and doctrines for similar pragmatic reasons. Which is why I am such not a fan of Kennedy (Or Sotomayor).

                1. “You also see it in nonfiction. The study of unreliable narrators abounds in history. The study of mythology is not limited to the study of literally what was said or meant.”

                  None of these seem to address the point. I don’t know what you mean by the “study of mythology”. If you mean the interpretation of texts containing myths, you’d be studying the intended meaning of the author. If you’re trying to divine your own personal meaning from someone else’s words, that’s not what we’re talking about re: “interpretation”. I acknowledge that there are several dictionary meanings of “interpretation” that have nothing to do with the strict act of interpreting the intended meaning of a communication. (A musical “interpretation” is original work, not an exploration of the original intent.)

                  “I do not think it an impossibility that the Constitution was crafted knowing…”

                  This settles the matter. You’re an originalist, too. You’ve relied on what the ratifiers knew or intended. It doesn’t make originalism wrong, it just means you’ve reached a different conclusion about their intent than some other originalist. But the condition is critical; you have to believe that the ratifiers intended malleability. If you don’t, you cannot reach the conclusion that a malleable result is consistent with their original intent. This should be uncontroversial because it is tautological.

                  That’s what makes Gorsuch’s decision such a remarkable event. He implies that he believes the legislators in 1964 did not intend the result he gives them, but here he goes anyway. I can’t recall a single opinion off the top of my head where anyone else–including Brennan–said that.

                  1. You don’t just study the intended meaning of the author though, you study unintended information brought across, as well as what it means given modern historical context.
                    I will allow that you do not study what it would mean were the same myth told for the first time today, but my point that authorial intent is not the end of interpretation of the written word stands.

                    Yeah, You got me, though that’s a very wide definition of originalism you’re working with…Breyer’s purposivism is originalist under your definition. In fact, I don’t know anyone that hardcore. Certainly none on the Supreme Court.

                    But whether this makes me originalist or not, I’m not as hardcore as to say screw the Founders deal with only the document. But I’m pretty sure no originalist (you excepted perhaps) would have me, even given my respect for the Founders thinking.

                    You and I agree about Gorsuch’s textualism being formalist to a fault.
                    But I don’t know that it’s as radical or novel as all that.
                    I recall a similar Scalia decision I read in law school where he chortled about ‘absurd results’ must be a rare exception, and how dumb legislatures often, and how they must pay for their carelessness etc. Something about a scrivener’s error regarding dates IIRC.

                    1. And what about unreliable writers of primary sources? Historians are trying to divine stuff beyond their intent almost definitionally.

                    2. “Breyer’s purposivism is originalist under your definition.”

                      Of course, if he believes that the ratifiers intended purposivism.

                      “…though that’s a very wide definition of originalism you’re working with…”

                      I don’t agree. I think that’s the definition of originalism. The benefit is that if people purport to want to follow original intent, their conclusions can be tested on that basis. Breyer’s purposivism may not be very good originalism, but the point of having two people agree on the method is that they aren’t talking past each other.

                      “But I don’t know that it’s as radical or novel as all that.”

                      What I contend is radical is not his application of textualism, which is run-of-the-mill. What I find radical is his concession that his textualism runs counter to his subjective belief about legislative intent. Most textualist opinions go more along these lines: “The dissent states that our interpretation is counter to the legislative intent. But the best guide of legislative intent is the text, and we must faithfully follow the text.” Your recollection of Scalia is accurate; he was weary of assuming an absurd result just because the judge would have written the law differently. His absurdity doctrine required revision only if “no reasonable person could approve“. (Reading Law at Section 37, p. 234 1st ed.) But even that doctrine is an original intent application! Because we assume legislatures do not intend absurdity. Importantly, the examples Scalia starts with are scriveners’ errors, like “third partly” when it was obviously intended to be “third party” or a double print of a word (“third third party”). (All from Reading Law.)

                      Gorsuch’s concession comes very close to making textualism enforce scriveners errors. And that’s unusual. That’s Brett Bellmore’s criticism, too. Gorsuch said the quiet part out loud and then still stuck with textualism. If you subjectively believe that the legislature could not possibly have intended X, there’s no reason to resort to textualism to resolve what the law is. Usually textualism is what informs the judge’s subjective belief about original intent. If he knows what the original intent was, textualism becomes a broken tool.

                    3. “And what about unreliable writers of primary sources? Historians are trying to divine stuff beyond their intent almost definitionally.”

                      This is because historians are often concerned with things beyond the original intent of messages. If my friend in California texts me and says that there are no McDonald’s in San Francisco, the most interesting thing to me about the text is not the claim (which is obviously false). It’s intent; why would my friend send me this weird text with an obvious lie? Is there a joke coming? Are they quoting a movie? Is this a political statement? Does my friend believe it because they are suffering a mental breakdown? But a person interested in eating McDonald’s in San Francisco cares about whether the claim is true, or not, and they wouldn’t rely on my friend’s incredible claim. And they certainly don’t care about my friend’s intent.

                      In the same way, sometimes historians are more interested in answering historical claims, than they are in divining the intent of the person making those claims.

  7. Kavanaugh’s dissent was ridiculous. There’s no literal meaning of sex discrimination that’s different from its ordinary meaning. The meanings are the same. The question is, is there a common-sense exception, exterior to the text law, with respect to grossly morally atrocious sexual perversions that manifest themselves on the basis of sex. In 1964 it was obvious that title vii would not apply to such heinous activity as turd-burglary or kitty-punching.

    But times and sensibilities have changed, and now there’s no reason to create ickiness exceptions to the plain meaning of the law.

    1. If “times and sensibilities” change the law will change with them. What makes judges more qualified than legislatures to read the times and sensibilities?

      How would a legislature enact a law to prevent judges from applying the judge’s idea of the times and sensibilities? Requiring them to say “but no gays” would require them to carve out a great many things in every law.

      1. Humpty Dumpty as Supreme Court Justice:

        “When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”
        “The question is,” said Alice, “whether you can make words mean so many different things.”
        “The question is,” said Humpty Dumpty, “which is to be master—that’s all.”

      2. “If “times and sensibilities” change the law will change with them.”

        Because the law gets interpreted in the context of times and sensibilities, and other things. Take the “no vehicles in the park” example. Nobody thought that that rule would prevent an ambulance from picking up in injured person in the park. But in 100 years maybe someone will try to pick up an injured person in the park, and a park official will say, “sorry, no vehicles in the park. Just teleport him to the hospital.” The law hasn’t changed, but the context in which it applies has.

        “How would a legislature enact a law to prevent judges from applying the judge’s idea of the times and sensibilities?”

        They can’t. If they could, nobody would need judges.

  8. “Say what you will about the Supreme Court’s decision today in Bostock v. Clayton County, concluding that forbidden “sex” discrimination encompasses firing someone for being gay or transgender,…”

    Okay.

    This should have been settled by legislation during the first years of Obama’s administration, when the Democrats had both Houses and the Presidency. I expect that it was just too good a stalking horse for the Democrats to give up.

    1. No, it’s just that they need the black vote, and blacks are culturally conservative, so they have to leave it to the courts to advance the social liberalism agenda.

      1. Jesus, Brett, you think that this is some long game to keep the black vote because blacks are so anti-gay many would defect? Do you think a law would somehow show something more than the quite clear and pretty fervent positions of both parties on the issue today?

      2. While blacks tend more toward homophobia than other racial groups based on a belief that it’s morally wrong, they also show solidarity with LGBT members against discrimination, because of their shared history of discrimination. It’s much more complicated than you let on, and if you did any reading whatsoever into the contours of this relationship, you’d know that.

  9. If the Supreme Court cared about textualism or originalism, they wouldn’t let Congress regulate private employment choices.

    1. The Supreme Court continues to rule in bad faith every time they disagree with my understanding of the Constitution!

  10. So if “sex” is interpreted to mean “sex-related”, what about pedophiles and countless other perversions? We can’t use the argument that pedophilia is illegal. Sodomy was once illegal too yet the gays argued that they should be respected anyhow.

    I don’t like the courts enabling Congress to duck their responsibility to update laws. It makes the courts unelected legislatures, and means that we should elect judges to limited terms in partisan campaigns.

    1. Wrong definition of sex. I don’t know any doctrine that lets you switch between homographs.

      1. How do you know it’s the wrong definition?

      2. Think of pedophilia as a sexual preference, analogous to gay. Or man-boy sex if you want to mix pedophilia with gay.

        One could say the same about bestiality, and other perversions. There are so many of them, I don’t know their names.

        How about using this decision to argue for plural marriage?

  11. What we have is dynamic interpretation of statutes. The language of a law means whatever a majority of the Supreme Court wants it to mean. I will call this the Humpty Dumpty principle:
    “When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’
    ’The question is,’ said Alice, ‘whether you can make words mean so many different things.’
    ’The question is,’ said Humpty Dumpty, ‘which is to be master — that’s all.”

    1. 1) The constant use of this quote is a pet peeve of mine. Everyone uses it to say that the other side is lying. It is no longer clever.

      2) Gorsuch is many things. You may think he’s wrong, but, a dynamic statutory interpreter he is not.

      1. I am not using the quote as an example of lying. I am using it as an example of using the ambiguity of language to get any result you want. Gorsuch dynamically interpreted the term “discrimination by sex” in this opinion.

        1. His reasoning is not dynamic interpretation, nor critical theory. You’re reading in a bunch of strawmen, because you don’t like the outcome.

  12. So Prof. Carpenter is alive.

    First post of 2020 I believe.

    1. First post since last October.

      https://reason.com/2019/10/25/free-speech-and-lgbt-rights/

      I wish he’d post more—his stuff tends to be interesting (especially when it’s not about gay rights issues). It definitely beats Josh Blackman live-blogging the Supreme Court orders list.

      1. Heh. Those are the only posts of his I really enjoy; Supreme Court fanboy theorizing.

        Not so much his ‘Here’s the super thoughtful way I personally process Supreme Court Opinions,’

  13. Good thing Sasse grilled him about his bathroom use and not about textualism…good work senator! 😉

  14. “Sex” in the Civil Rights Act (and, for all time prior) referred specifically to BIOLOGICAL SEX, not “sexuality” or some made up social-construction of “gender” (a linguistic term co-opted and corrupted by Marxists), or to chemical / hormonal / surgical body modifications.

    How is Gorsuch even remotely being “Textualist” in this case?
    Sex: Male / Female (man / woman; boy / girl) = noun
    Who are you HAVING sex WITH? None of your damn business = verb
    Describe your “gender”: Masculine / Feminine (none / does not exist) = adjective

    Just because English is such a dumbed-down / de-gendered language does NOT mean that proper Indo-European linguistic rules no longer apply; English still does follow classic Germanic linguistic rules. Even if 99% of the American population insists on over-correcting common errors by making up new (much worse) ones (replacing “me” with “I” when in fact the possessive is always me/my, never I).

    That aside, in most cases, religious, educational, artistic and to some extent medical excluded, sexuality should not have bearing on hiring and firing. UNLESS, and this is the problem today, the person is making a huge show / scene / flaunting their sexual proclivities in situations where such behavior is uncalled for and therefore disruptive.

    The “Transgender” part is a whole different ball of wax. So, according to Gorsuch, a BIOLOGICAL MALE can force Victoria’s Secret / strip clubs / porn productions / midwives and gynecologists / battered women’s shelters / and all-girls schools / sex-segregated college dormitories and various other single-sex FEMALE-ONLY institutions and workplaces to hire / admit him simply because he “believes” he is a “woman / girl?” Does that mean that a biological male who claims to be a “Transgender -woman lesbian” can force an actual biological female lesbian porn actress to fuck him on set??? GORSUCK HAS JUST GIVEN the BIOLOGICAL MALE the RIGHT TO SUE THE BIOLOGICAL FEMALE LESBIAN and all the producers for “DISCRIMINATION” IF SHE REFUSES TO FUCK HIM.

    And, no, even if the BIOLOGICAL MALE chops off his dick, sews fake tits to his chest and loads up his body with hormone-altering chemicals he will NEVER, EVER BE AN ACTUAL FEMALE.

    And the same goes for the BIOLOGICAL FEMALE who chops off her tits, loads up on hormone-altering chemicals and attaches a prosthetic “penis” between her legs. She will NEVER, EVER BE AN ACTUAL MALE.

    A dildo made of flesh doesn’t become a penis anymore than does a human become a dog just because he or she severs his/her arms, legs and nose and surgically replaces them with the severed 4 legs and nose of a dog and surgically implants dog fur all over his/her body.

    “Inclusion” by FORCE is FASCISM / TYRANNY, plain and simple.
    Totally an unconstitutional violation of the FREEDOM OF ASSOCIATION. There is NO freedom TO associate / participate / assemble WITHOUT the simultaneous freedom NOT to associate / participate / assemble.

    I refuse to “affirm” anything that I do not believe to be valid / true.

    Gravity within the atmosphere of planet Earth is a provable FACT.
    The “Big Bang” is a THEORY.
    God created the Universe is a BELIEF.
    Evolution in the sense of animals, plants and microbes possessing genes that mutate and therefore change and modify their inherent biological characteristics over time is a provable FACT.
    Humans evolved from monkeys / “Out of Africa” is a THEORY.
    God created mankind in His own image / therefore humans did not “evolve” is a BELIEF.

    Humans are mammals; no mammals can reproduce asexually, therefore all viable species of mammals include two distinct biological sexes – male and female. Therefore all humans who can viably reproduce naturally are either biologically male or biologically female is a provable FACT.

    All European languages other than modern English are gendered with nouns being either masculine, feminine or neuter. TRUE.
    Throughout history, many cultures have distinguished between biological males and females by creating cultural “norms” around behaviors and styles of fashion that were deemed either masculine or feminine. TRUE.
    In the early 20th century many consumer-driven businesses created different styles of clothing and toys and other goods that were labelled “masculine” or “feminine” in order to drive up more demand for these goods (blue pants and toy trucks for boys, pink dresses and dolls for girls). TRUE.
    In the 20th Century, some Sociologists borrowed the linguistic term “gender” and applied it to these items that were considered “masculine” or “feminine.” TRUE.
    By the end of the 20th century, the term “gender” was often used synonymously with biological sex when referring to men vs women. This was ushered in by Ruth Bader Ginsburg who changed the valid term “sex” into “gender” for fear of her argument sounding too porn-like when she argued her case in front of the Supreme Court to overturn the biological sex-discrimination in the tax code. TRUE.
    Even at the very end of the 20th century, even far-Left pro-gay Sociologists made a clear distinction between biological sex and the social-construct of “gender.” They wanted to do away with the “sexist gender-stereoytpes” such as “boys play with trucks and girls play with dolls.” But they made a clear distinction that boys and girls and men and women were still biologically distinct and different on the basis of actual “biological sex,” but that such distinctions should not limit either sex in life based on sexist “gender norms.” TRUE.

    In the late 20th century there was a fringe handful of extreme Far-Left doctors who, despite all the evidence out of John’s Hopkins, Canada and Europe that proved surgical sex changes in infancy actually harmed the children later in life and led to very high suicide rates, went against the advise to stop all surgical sex-changes on minors, and instead they created a front-group that actually pushed for the total opposite. This fringe group created a fake “peer-reviewed” journal as a front, and by the early 21st century had infiltrated gay-rights and feminist organizations and the fields of Psychology, Sociology and today the “mainsteam” “evidence-based” medical societies (AMA, APA) to claim that sex is gender and it is all an illusion that can be changed with drugs and surgery. This group succeed via extortion by getting anyone who exposed them fired by calling them “Racist, sexist homophobes.”

    There is (was?) a great lecture on the entire history of this sex vs gender and the Transgender / sex-change pushers on YT by the Johns Hopkins Pediatric Neurologist who actually performed the earliest hermaphrodite sex-changes and life-long follow-ups and research. His and many other doctors and researchers careers were single-handedly destroyed by this front-group and all their published research proving that sex changes on infants are detrimental was memory-holed by the major universities and journals that published them.

    Gorsuch has been HAD.

    Gender = Sex is a provably FALSE BELIEF.

    1. Gorsuch’s opinion does not turn on the idea that gender = sex. You have been misinformed.

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