The Supreme Court issued a new landmark ruling this morning when it held that federal job protections under Title VII of the Civil Rights Act should be extended to prohibit discrimination against gay workers. Even more surprising that the outcome of the ruling is that Neil Gorsuch, a Trump-appointed justice, authored the opinion. Chief Justice John Roberts also joined the Court’s four liberal justices to form a 6-3 majority.
In the ruling, Bostock v. Clayton County, Ga., includes several similar cases but is named for Gerald Bostock, a child social services coordinator who was fired after his boss learned that he had joined a gay softball league. Other plaintiffs included Donald Zarda, who was fired from his job as a skydiving instructor at Altitude Express after mentioning that he was gay, and Aimee Stephens, a biological male who was fired from his funeral home job after telling his employer that he planned to “live and work full-time as a woman.”
The ruling holds that the employers in all three cases violated Title VII of the Civil Rights Act, which holds 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 . . . because of such individual’s race, color, religion, sex, or national origin.”
“An employer violates Title VII when it intentionally fires an individual employee based in part on sex,” Gorsuch writes in the majority opinion. “It makes no difference if other factors besides the plaintiff’s sex contributed to the decision or that the employer treated women as a group the same when compared to men as a group.”
“Because discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex, an employer who intentionally penalizes an employee for being homosexual or transgender also violates
Title VII,” the ruling continues.
While the Civil Rights Act clearly did not intend to protect homosexuals, transgenders, and transvestites, Gorsuch notes that the letter of the law does not exclude such claims, saying, “The employers contend that few in 1964 would have expected Title VII to apply to discrimination against homosexual and transgender persons. But legislative history has no bearing here, where no ambiguity exists about how Title VII’s terms apply to the
After noting that there is little argument over the meaning of the words “sex” and “discrimination” and that the employers admit to firing the employees due to their sexual orientation, Gorsuch states, “This Court has explained many times over many years that, when the meaning of the statute’s terms is plain, our job is at an end. The people are entitled to rely on the law as written, without fearing that courts might disregard its plain terms based on some extratextual consideration.”
In Gorsuch’s view, his decision was not judicial activism but a result of following the established facts and the written law to its conclusion. While Gorsuch may or may not have sympathy for the gay community, the facts of the case were determined by the words that Congress enacted into law in 1964.
Justices Alito and Thomas joined in a dissent penned by Alito, which notes that a bill that would have defined “sex discrimination to include both ‘sexual orientation’ and ‘gender identity'” has been brought before Congress but not enacted into law.
“The Court tries to convince readers that it is merely enforcing the terms of the statute, but that is preposterous,” Alito charges. “Even as understood today, the concept of discrimination because of ‘sex’ is different from discrimination because of ‘sexual orientation’ or ‘gender identity.’ And in any event, our duty is to interpret statutory terms to ‘mean what they conveyed to reasonable people at the time they were written.'”
Alito continues vividly, saying, “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.”
Justice Kavanaugh also penned a separate dissent in which he argues that discrimination because of sexual orientation and discrimination because of sex are not the same thing.
“Courts must follow ordinary meaning, not literal meaning,” Kavanaugh writes. “And courts must adhere to the ordinary meaning of phrases, not just the meaning of the words in a phrase.”
“Both the rule of law and democratic accountability badly suffer when a court adopts a hidden or obscure interpretation of the law, and not its ordinary meaning,” he continues.
In the end, the ruling is not surprising given the Supreme Court’s embrace of same-sex marriage and other gay-friendly rulings in past decades. While the ruling will disappoint social conservatives, most of the country will not be unhappy with the decision. American culture has shifted in recent decades to the point where a large majority approve of homosexuality.
The ruling does hold two important lessons. The first is that Congress should craft legislation extremely carefully and as specifically as possible. The problem is that legislators have no way of knowing how language and culture will shift 50 or 100 years after they pass a law.
Justice Alito makes this point when he writes, “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.”
The second lesson is an established one that Supreme Court justices cannot be depended upon to always vote as their partisan backers wish. This is especially true in the case of textualists who look to the words of the law as written rather than the party platform of the president who appointed them.
To paraphrase Forrest Gump, a Supreme Court justice is “like a box of chocolates. You never know what you’re going to get.”
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