The Volokh Conspiracy
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Today's Supreme Court decision holding that Title VII of the Civil Rights Act of 1964 forbids employment discrimination against gays, lesbians, and transsexuals is well-justified on the basis of textualism - a theory of legal interpretation usually associated with conservatives. By contrast, it is less clearly right from the standpoint of purposivism, more often associated with liberals, such as Supreme Court Justice Stephen Breyer. The Court's opinion in Bostock v. Clayton County was written by Justice Neil Gorsuch, a conservative known for his adherence to textualism and joined by four liberal justices, as well as the conservative Chief Justice John Roberts. Three conservative justices dissented.
The relevant text of Title VII states 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."
Justice Gorsuch's majority opinion effectively explains why discrimination on the basis of sexual orientation qualifies as discrimination "because of…sex" under the plain text of the law:
From the ordinary public meaning of the statute's language at the time of the law's adoption, a straightforward rule emerges: An employer violates Title VII when it intentionally fires an individual employee based in part on sex. It doesn't matter if other factors besides the plaintiff 's sex contributed to the decision. And it doesn't matter if the employer treated women as a group the same when compared to men as a group. If the employer intentionally relies in part on an individual employee's sex when deciding to discharge the employee—put differently, if changing the employee's sex would have yielded a different choice by the employer—a statutory violation has occurred.
The statute's message for our cases is equally simple and momentous: An individual's homosexuality or transgender status is not relevant to employment decisions. That's because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer's mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague….
Gorsuch also explains why sex discrimination is present here even if sex was not the sole factor in the employer's decision:
Nor does it matter that, when an employer treats one employee worse because of that individual's sex, other factors may contribute to the decision. Consider an employer with a policy of firing any woman he discovers to be a Yankees fan. Carrying out that rule because an employee is a woman and a fan of the Yankees is a firing "because of sex" if the employer would have tolerated the same allegiance in a male employee. Likewise here. sexual or transgender, two causal factors may be in play— both the individual's sex and something else (the sex to which the individual is attracted or with which the individual identifies). But Title VII doesn't care. If an employer would not have discharged an employee but for that individual's sex, the statute's causation standard is met…
As a Boston Red Sox fan, I am happy to learn that it is still legal for employers to fire Yankees fans, so long as they do so on a sex-neutral basis!
On a more serious note, Gorsuch is right that "discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second." The two are, as he puts it, "inextricably connected."
I cannot resist noting that Prof. Andrew Koppelman (Northwestern) and I made much the same argument in an amicus brief we authored in Obergefell v. Hodges (2015), the same-sex marriage case in 2015 (which is not to say that Gorsuch got the idea from us). As we summarized it in an op ed in USA Today: "If same-sex marriage is forbidden, Anne is allowed to marry Bob, but Charles can't. Charles is denied the right to marry Bob, solely because Charles is a man. Denial of a legal right solely because of gender is the very essence of sex discrimination." Similarly, in the Title VII context, if Anne can date Bob without any retaliation from her employer, but Charles gets fired or demoted for doing the exact same thing solely because he is a man, then Charles is being treated differently from Anne based on sex, and is thereby a victim of sex discrimination.
If the text of Title VII forbids all employment discrimination "because of…sex," it unavoidably forbids discrimination based on sexual orientation. In much the same way, Title VII's ban on racial discrimination has long been understood to ban discrimination against people who engage in interracial sexual relationships.
In his dissent, Justice Alito takes issue with these conclusions by arguing that a policy that discriminates against gays and lesbians actually treats both sexes equally, and therefore doesn't discriminate against either men or women. As he puts it, "[i]n cases involving discrimination based on sexual orientation or gender identity, the grounds for the employer's decision—that individuals should be sexually attracted only to persons of the opposite biological sex or should identify with their biological sex—apply equally to men and women."
The problem with this argument is that the same logic would also require us to conclude that discrimination against people in interracial relationships doesn't qualify as race discrimination; the same would go for discrimination against "transracial" people who refuse to identify with "their" racial group. We can easily reword Alito's argument to apply to that situation:
In cases involving discrimination based on participation in interracial relationships or racial identity, the grounds for the employer's decision—that individuals should be sexually attracted only to persons of the same race or should identify with their biological race—apply equally to whites and blacks [and members of all other racial groups]."
These kinds of arguments were in fact made in the racial context, and were decisively rejected by courts long ago.
Justice Alito tries to sidestep the race analogy by noting that "[d]iscrimination because of sexual orientation is different [from race discrimination]. It cannot be regarded as a form of sex discrimination on the ground that applies in race cases since discrimination because of sexual orientation is not historically tied to a project that aims to subjugate either men or women." By contrast, bans on interracial marriage were historically adopted in large part to "subjugate" blacks to whites.
But courts have never held that either race discrimination or sex discrimination require the presence of a desire to "subjugate" a group, or even hostility towards it. To the contrary, even well-intentioned differential treatment based on race and sex still qualifies as discrimination, and has been held to be such by courts. Alito and other conservative judges have long emphasized that point in the context of affirmative action programs, where they have (rightly, in my view) voted to strike down racial preferences favoring African-Americans and Hispanics, despite the fact that these programs were not enacted for the purpose of "subjugating" whites, or based on a belief that whites are somehow an inferior race.
Moreover, as Koppelman and I explained in our article on the same-sex marriage case, homophobia and sexism are not so easily separated. Historically, the two were closely linked:
[H]ostility to gays and lesbians and sexism are often closely linked. At least until recently, most Americans learned no later than high school that one of the nastier social sanctions one will suffer for deviating from traditional gender roles is the imputation of homosexuality. Much anti-homosexual prejudice is closely linked to gays' and lesbians' supposed deviation from conventional gender norms. While gay men are often stigmatized for being "effeminate," lesbians are stereotyped as too masculine.
Not all opposition to same-sex marriage is rooted in sexism. But such factors are prominent enough that the gender discrimination rationale for striking down laws banning gay marriage cannot be dismissed as mere legal formalism.
Gorsuch makes a similar point in his majority opinion, when he notes that "[A]n employer who fires a woman, Hannah, because she is insufficiently feminine and also fires a man, Bob, for being insufficiently masculine may treat men and women as groups more or less equally. But in both cases the employer fires an individual in part because of sex. Instead of avoiding Title VII exposure, this employer doubles it." Enforcing gender norms on both sexes qualifies as sex discrimination, even if it applies to both equally, and even if there is no desire to "subjugate" one sex to the other.
While Gorsuch's logic is extremely strong from a textualist perspective, the court's decision is more questionable from a purposivist viewpoint. The latter focuses on what the law in question was intended to achieve. Here, it is clear that the main purpose of Title VII was to alleviate discrimination against blacks and other racial and ethnic minorities. Liberal Supreme Court justices have emphasized the centrality of that purpose in decisions like United Steelworkers v. Weber (1979), where the Court ruled that Title VII doesn't ban affirmative action preferences for minorities, because such preferences serve the larger purpose of the law even if they seem to conflict with its text.
Banning sex discrimination against women was a secondary purpose of Title VII - a provision originally added as a "poison pill" by opponents of the law, who hoped that including it might scuttle it. And very few, if any, commentators in 1964 thought that the law would ban discrimination against gays and lesbians, or wanted such an outcome.
Of course, it is possible to argue that the purpose of Title VII should be viewed more broadly than it was in 1964 and that modern understandings of the law's purpose should be privileged over those of earlier eras. Judge Richard Posner of the Seventh Circuit made an argument along those lines in a 2017 concurring opinion addressing the very same issue as the one the Supreme Court decided today. But, at the very least, the purposivist case for today's Supreme Court decision is weaker than the textualist one.
As a general rule, I lean far more towards textualism than purposivism, though I am not as hard-core a textualist as some conservative judges are. Thus, I think today's Supreme Court ruling is correct.
My only possible hesitation has to do with the issue of respect for precedent. The Supreme Court has a longstanding strong presumption against reversing its own statutory precedents. They are considered different from constitutional precedents because the former can be reversed by Congress, while the latter can only be changed by the Court itself or by a constitutional amendment.
The issue in this case had never previously been addressed by the Supreme Court. But there was a long history of lower federal court decisions and executive branch policies rejecting the argument that Title VII bans sexual orientation discrimination. Only in very recent years have some lower courts ruled the other way. I am not sure to what extent the Supreme Court should hesitate to overrule longstanding lower-court statutory precedents, as opposed to its own. That was the main reason I did not join any amicus briefs in this case, or write one myself (as I did in Obergefell, a constitutional case).
I also have some reservations about the policy result of this case. While I abhor homophobia, I also believe the government should only restrict private freedom of association in extreme cases, such as when the discrimination in question is part of a government-enforced system of repression, often backed by government-tolerated private violence, as was the case with racial discrimination in much of the country in 1964. Private discrimination might also be justifiably be banned in a situation where the private firm in question has a monopoly over some vital resource, or if in the absence of such a ban, the group in question cannot meaningfully participate in our economy and society. Although homophobia has by no means disappeared, I am not convinced that any of these extreme scenarios apply to employment discrimination against gays, lesbians, and transsexuals today, at least not in most of the country.
That said, this ruling - like Obergefell - is an important historical milestone showing how far gays and lesbians have come since the days when homophobia was ubiquitous, and they were routinely persecuted by government at all levels. On that point, it's hard to disagree with this passage in Justice Brett Kavanaugh's dissent:
[I]t 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.