The Volokh Conspiracy
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This morning the Supreme Court handed down one of the most long-awaited decisions of the term. In Bostock v. Clayton County, the Supreme Court held that discrimination on the basis of sexual orientation or transgender status constitutes discrimination "because of . . . sex" under Title VII of the Civil Rights Act. Justice Neil Gorsuch wrote the opinion for the Court, joined by the Chief Justice and Justices Ginsburg, Breyer, Kagan, and Sotomayor. Justice Alito dissented, joined by Justice Thomas, and Justice Kavanaugh dissented.
The respective opinions, including a lengthy appendix to Justice Alito's dissent, total 172 pages, and appear to have crashed the Supreme Court's servers. I've been able to download a copy and will update this post with excepts.
Justice Gorsuch's opinion for the Court begins:
Sometimes small gestures can have unexpected consequences. Major initiatives practically guarantee them. In our time, few pieces of federal legislation rank in significance with the Civil Rights Act of 1964. There, in Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin. Today,we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. 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.
Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result.Likely, they weren't thinking about many of the Act's consequences that have become apparent over the years, including its prohibition against discrimination on the basisof motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters' imagination supply no reason to ignore the law's demands. 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.
Justice Gorsuch's opinion emphasizes text over the intention of the authors of Title VII.
We agree that homosexuality and transgender status are distinct concepts from sex. But, as we've seen, discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second. Nor is there any such thing as a "canon of donut holes," in which Congress's failure to speak directly to a specificcase that falls within a more general statutory rule creates a tacit exception. Instead, when Congress chooses not to include any exceptions to a broad rule, courts apply the broad rule. And that is exactly how this Court has alwaysapproached Title VII. "Sexual harassment" is conceptuallydistinct from sex discrimination, but it can fall within Title VII's sweep. Oncale, 523 U. S., at 79–80. Same with "motherhood discrimination." See Phillips, 400 U. S., at 544. Would the employers have us reverse those cases on the theory that Congress could have spoken to those problems more specifically? Of course not. As enacted, Title VII prohibits all forms of discrimination because of sex, however they may manifest themselves or whatever other labels might attach to them.
From Justice Gorsuch's conclusion:
Some of those who supported adding language to Title VII to ban sex discrimination may have hoped it would derailthe entire Civil Rights Act. Yet, contrary to those intentions, the bill became law. Since then, Title VII's effects have unfolded with far reaching consequences, some likely beyond what many in Congress or elsewhere expected.
But none of this helps decide today's cases. Ours is a society of written laws. Judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations. In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee's sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.
Justice Alito's dissent, joined by Justice Thomas, begins:
There is only one word for what the Court has done today: legislation. The document that the Court releases is in the form of a judicial opinion interpreting a statute, but that is deceptive.
Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on any of five specified grounds: "race, color, religion, sex, [and] national origin." 42 U. S. C. §2000e–2(a)(1). Neither "sexual orientation" nor "gender identity" appears on that list. For the past 45 years, bills have been introduced in Congress to add "sexual orientation" to the list, and in recent years, bills have included"gender identity" as well. But to date, none has passed both Houses. . . .
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. A more brazen abuse of our authority to interpret statutes is hard to recall. . . .
The Court attempts to pass off its decision as the inevitable product of the textualist school of statutory interpretation championed by our late colleague Justice Scalia, but no one should be fooled. The Court's opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated––the theory that courts should "update" old statutes so that they better reflect the current values of society. . . . If the Court finds it appropriate to adopt this theory, it should own up to what it is doing.
Many will applaud today's decision because they agree on policy grounds with the Court's updating of Title VII. But the question in these cases is not whether discrimination because of sexual orientation or gender identity should be outlawed. The question is whether Congress did that in 1964.
It indisputably did not.
Justice Kavanaugh's separate dissent begins:
Like many cases in this Court, this case boils down to onefundamental question: Who decides? Title VII of the Civil Rights Act of 1964 prohibits employment discrimination "because of " an individual's "race, color, religion, sex, or national origin." The question here is whether Title VII should be expanded to prohibit employment discrimination because of sexual orientation. Under the Constitution's separation of powers, the responsibility to amend Title VII belongs to Congress and the President in the legislative process, not to this Court.
Kavanaugh's opinion ends:
Notwithstanding my concern about the Court's transgression of the Constitution's separation of powers, it is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans. 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. Under the Constitution's separation of powers, however, I believe that it was Congress's role, not this Court's, to amend Title VII. I therefore must respectfully dissent from the Court's judgment.
The decisions in this case highlight a tension with textualism: Do we focus on the discrete meaning of the words, or do we focus on the words as they would have been understood and applied at the time they were adopted. On the one hand, as Justice Gorsuch notes it is virtually impossible to discriminate against someone based upon their gender identity or sexual orientation without discriminating against them on the basis of sex. On the other hand, it is indisputable that the authors of Title VII thought they were prohibiting discrimination against women, not that they were protecting sexual orientation. Indeed, sexual orientation discrimination was enshrined in law throughout the nation when the language was adopted.
There's much more to say about these opinions. One thing is for sure: Every law school Legislation & Regulation course will be poring over these opinions next year.
UPDATE: A few additional thoughts:
The Chief Justice was in the majority, so he assigned the majority opinion to Justice Gorsuch. Had he dissented, it's not clear Justice Ginsburg (the senior-most justice in the majority) would have done the same. This matters, as the Gorsuch opinion is more textualist, and more narrow, than an RBG opinion would have been.
Justice Gorsuch had already written an opinion from the October sitting, whereas the Chief Justice and Justice Ginsburg had not. This led to speculation that the Chief was writing the Bostock opinion. One possibility is that the Chief initially drafted a majority opinion going the other way, but failed to hold Gorsuch—or even that both the Chief and Ginsburg drafted opinions while Gorsuch was making up his mind. Perhaps we'll know one day, but at this point it is all speculation.
One argument for the dissent is that Congress could never have conceived that this statute would have produced this result. This is similar to one of the arguments in King v. Burwell, specifically the argument that Congress could not have intended to put tax credits at risk should states fail to create their own exchanges. In each case, however, the text is the text. In other words, some of the arguments for the majority opinion in Bostock support Justice Scalia's dissent in King. Time permitting, I'll elaborate on this point in a separate post.
UPDATE: The late Justice Scalia's sometime-co-author, Bryan Garner tweets:
Scalia J. would have been with Alito J. in dissent because the nobody-ever-thought-it-meant-that line of reasoning carried a lot of weight with him. (For what it matters [not a whit!], I'd have been with Gorsuch J.) The important thing is that all the opinions were TEXTUALIST. https://t.co/6xkHLRHW4i
— Bryan A. Garner (@BryanAGarner) June 15, 2020