Bostock v. Clayton County - initial thoughts

"what matters in the end is the answer to the question . . . How would the terms of a statute have been understood by ordinary people at the time of enactment...?"

- from Justice Alito's dissenting opinion

Brad Polumbo at the Washington Examiner tries to calm conservatives's nerves, saying

. . . they should hear Gorsuch out. His decision is based on razor-sharp logic, and it is entirely consistent with the conservative commitment to textualism — that the law means exactly what it says.

He provides a hypothetical situation the logic of which seems compelling on the surface:

For example, let's say an employer fired me, a gay man, after discovering that I had a husband. That would be anti-gay discrimination, but it would also be a form of sex discrimination because the employer is punishing me for having a husband —something it would be perfectly fine with a female employee doing. Similar logic applies to transgender employees — that by firing a transgender person, such as Stephens, for choosing to follow the women’s dress code, you are applying a standard you would never have enforced against a member of the female sex.

But in a piece for National Review last November, Princeton law professor Robert P. George blows a big hole in that line of reasoning, also using a straightforward hypothetical situation:

In the Title VII cases, Kagan proposes to test for sex discrimination by asking what would happen if an employee’s sex were flipped and all else were held constant. Thus, she would say, a company that fires Riley for being a woman who dates women is discriminating based on sex, because it would have kept Riley on if she were a man who dates women.

Clever, right? But the argument is fallacious. If it seems like a knockdown, that’s only because the objectionable moves were made offstage and then smuggled into the argument’s setup, diverting our gaze from the only fair reading of Title VII.

The whole appeal of Kagan’s argument is that it purports to flow directly from the text (“discriminate”), without any contestable moves along the way. Once you see that this is false, the argument loses all appeal, and its proponents have to fall back on dubious premises that cut against the only reasonable reading of the text. As we’ll see, the “textual” part of Kagan’s “textualist” case is doing no work whatsoever.

The hypothetical scenario described above doesn’t actually hold “all else constant.” In changing Riley’s sex while holding constant the sex of Riley’s dating partners, it flips a second factor, too: Riley’s “sexual orientation,” which has gone from homosexual to non-homosexual (or, if you prefer, from “gay” to “straight”).

As this shows — and here’s the decisive point — it’s impossible to hold all but sex fixed in these cases. In designing a hypothetical to use for comparison, we have two options: (1) change the employee’s sex and her orientation (but not her partners’ sex), or (2) change her sex and her partners’ sex (but not her orientation). Only the first path leads to Kagan’s preferred result, but nothing in the text compels it. On the contrary, only the second hypothetical keeps constant all the details that reasonable readers of Title VII would deem relevant based on the law’s text, logic, and history.

A few other observations:

Gorsuch, who wrote the majority opinion, and Roberts joined the court's four Democrat-appointed justices. This blows quite a hole in the argument that no matter how unfit a conservative finds Trump, that conservative needs to vote for him to ensure a "conservative" Supreme Court. Federal judges are not nearly as predictable as is often assumed.

Gorsuch assures us that, since none of the three cases bundled into Bostock v. Clayton County involved religious-freedom issues, any such case would be considered based on the "ministerial exemption" Title VII carve-out. The side wanting to knock that down is doing its homework, be assured.

Why culture matters for law: Interest groups lobby legislatures and laws get passed, or lower courts set precedents. Notions such as that just because someone feels - very strongly, perhaps - that he or she is actually of the sex other than the one his or her genitals and DNA indicate that that is so become ever more entrenched. Or consider how much harder it is to get people to take the long historical view with regard to homosexuals marrying since Obergefell v. Hodges. It's still as much a fact as it was before that decision that in no culture in the world, at no time in human history, did anyone entertain the notion that two people of the same sex could enter into the institution of marriage until the last 20 years at the outside.