Guest Article by Nick Nugent

Sometimes, the clumsy use of conservative tools can yield absurd progressive results

As conservatives, we’ve come to view judicial activism as a third certainty in life, right up there with death and taxes. We’ve seen the script play out so many times that we could write it from memory. Through the painful democratic process, a bill is passed into law, complete with all the exceptions and limitations necessary to satisfy competing interests. Years later, an unelected judge contorts the text of the law (or strikes it down) to advance some new progressive policy, bulldozing over all the careful legislative compromises that had been struck to secure the law’s passage.

It was with these scars in mind that many of us assumed the worst when the Supreme Court handed down its decision in Bostock v. Clayton County, holding, for the first time, that federal law prohibits employment discrimination based on sexual orientation or transgender status (1). What added insult to injury was that the author of the majority opinion was none other than Neil Gorsuch, one of Trump’s two appointees to the Supreme Court. Instinctively, we assumed we had been taken in yet again by the promise of a conservative jurist, only to be disappointed when he revealed his true liberal colors.

But motivations are often difficult to judge from the outside, doubly so in the context of court cases that turn on complex legal issues. And given that many conservatives view judicial appointments as the only reason they’d consider entrusting Trump with another term, it bears examining whether Gorsuch indeed outed himself as just another progressive or whether there’s more to the story.

The facts of the case couldn’t have been much simpler. Two employees were allegedly fired for being gay, a third for being transgender. All three sued, alleging employment discrimination under the federal Civil Rights Act.

But the Civil Rights Act, signed into law by Lyndon Johnson in 1964, doesn’t prohibit such practices, at least not on its face. Title VII of the Act, which governs employment, bars discrimination based only on “race, color, religion, sex, or national origin”—just those five grounds. If your boss hands you a pink slip because of your height, weight, hair color, or affinity for the New England Patriots, you might have a claim for pettiness or Super Bowl sour grapes, but you don’t have a claim under Title VII. It is for this reason that many disgruntled LGBT employees have sued their companies in the past under Title VII for discrimination, only to lose. Until Bostock, that is. 

So, what changed? Many assume the Court simply engaged in another act of wanton judicial activism. Having grown impatient with Congress’s repeated failure to amend Title VII to add LGBT protections, the Court thought it high time to take matters into its own hands. But that’s not what happened, at least if we are to take Gorsuch at his word.

For decades, conservative judges have worked to stem the tide of judicial activism through an interpretive school called “textualism.” In its simplest expression, textualism means that if the text of a law or constitutional provision is clear, judges should apply the plain meaning. At a more advanced level, if a statute is ambiguous, textualism tells judges not to look to equivocal sources like legislative history or legislators’ subjective intent to resolve the debate. The metes and bounds of a law can only be set by the precise text that was enacted through the democratic process and not by extraneous sources, which judges can selectively exploit to reach their preferred results.

Having filled the opening in the Court left by the late Antonin Scalia, textualism’s most forceful proponent, it should come as no surprise that Gorsuch took pains to place his opinion on a textualist footing from start to finish. His was a commitment to act as a true conservative by going wherever the text of the statute led, no matter the result.

He started with the term “sex.” Despite what some conservative critics have alleged, Gorusch did not find new LGBT protections by expansively interpreting the word to encompass sexual orientation and transgender status. Instead, consulting dictionaries in circulation when the law was passed, he found the term to mean “status as male or female [as] determined by reproductive biology.” Grounded in such a traditional definition, it seems hard to believe that the Court could have then reached any result other than to hold that Title VII is silent on LGBT rights.

But curiously, the language that ultimately proved pivotal to the outcome was not the word “sex” but the simple phrase “because of,” which Gorsuch interpreted to mean direct or “but-for” causation. What’s a but-for cause? It means that if the condition is present, you get a certain result. Take away just that one condition, and the result disappears with it. If a flyball from a backyard baseball game passes through your dining room window, the batter was a direct cause of the damage. “But for” his errant swing, your window would be intact.

It was at this point that Gorsuch sought to be a faithful textualist by going wherever the plain text led him. If “sex” means reproductive biology and “because of” means but-for causation, then it follows that any time a woman is disciplined for behavior that would be tolerated for men, or vice versa, sexual discrimination has reared its head. Does Bob get an hour-long lunch break while Susie gets only 30 minutes? Sex discrimination. Can Maria occasionally bring her children into work while Carlos is denied the same privilege? If the only reason for the disparate treatment is because Carlos is a man, then we have a but-for cause, and sex discrimination is the unavoidable conclusion.

You can see where this logic leads. If Bob can marry a woman without fear of being fired but Susie cannot, then isn’t Susie’s sex a but-for cause of her termination? And if Maria can wear a dress and assume female pronouns but Carlos cannot, hasn’t the company discriminated against Carlos “because of” his sex? Homosexuality and transgenderism suddenly find ample protection under the law, without the need to shake any words loose from their 1960s definitions.

Sure, Congress might never have dreamt that Title VII would be interpreted this way when it passed the law in 1964, but does that really matter if the words of the statute are clear? And remember, for the faithful textualist, legislative intent is irrelevant. If Congress hadn’t wanted this result, it should’ve paid closer attention to its drafting.

Under this unforgiving, almost mathematical approach, Gorsuch’s decision seems inescapable. His logic may have produced a progressive result, but it was born out of conservative judicial principles. If he had chosen instead to override the text by imposing his own policy preferences, would it have been any less an act of judicial activism just because it produced a conservative result? If a law clearly stated that top incomes are to be taxed at 50%, would we expect Republican-appointed judges to nonetheless interpret the rate to be 25% just because lower taxes are a more conservative policy?

But this conundrum—that we must pick the poison of either judicial activism or LGBT policy—presents itself only if we assume that Gorsuch correctly applied textualism to the law at hand. And in this case, there are good arguments that he did not.

As Alito and the other dissenting conservative justices explained, courts must look to the ordinary meaning of text, not literal meaning. Quoting Scalia, they stated, “[T]he good textualist is not a literalist.” 

Kavanaugh offered a helpful example. Suppose a law stated simply, “no vehicles permitted in the park.” Taken literally, these words would prohibit baby strollers, bicycles, and wheelchairs. But no good judge would interpret the law that way. The textualist would find the ordinary meaning to capture motorized or self-propelled vehicles capable of noise, pollution, or dangerous speeds, not merely anything that has wheels.

And when interpreting a law, textualism doesn’t instruct judges to simply look up each word in isolation and then string the definitions together. Courts must determine the meaning of entire phrases, not just constituent words. 

So, how would the phrase “discriminate because of sex” have been interpreted at the time of the law’s passage? We don’t need to speculate to know that it would not have encompassed homosexuality, which was still classified as a mental disorder by the mental health profession in 1964. And transgenderism, a term that wasn’t even coined until sometime in the 1970s, wasn’t remotely in the public’s consciousness until decades later. Even the Supreme Court itself had held in 1967 that although Congress couldn’t deny entry to immigrants “because of sex,” it could bar homosexuals. Agree or disagree with that policy, it certainly shows how the phrase was understood at the time.

Also, the dissent noted, since 1975, bills to add “sexual orientation” to Title VII have been introduced in every single Congress, but not one has managed to secure passage. If the plain meaning of sex discrimination in 1964 had included homosexuality and transgender status, then such amendments wouldn’t have been necessary. Consider also that until 2017, every federal court of appeals to consider the issue had held that Title VII did not speak to LGBT rights. That’s 30 out of 30 judges. It was also the interpretation of the Equal Employment Opportunity Commission. It therefore strains credulity to believe that Congress, federal courts, and the EEOC all failed to grasp the “plain meaning” of the statute until the Supreme Court finally got around to taking a look some 50 years after the Act was passed.

But even if the majority’s interpretation of sex discrimination were correct, the dissent noted, it still wouldn’t support the holding in this case. Suppose a CEO ordered his deputies to fire anyone in the company found to be gay or transgender. The company would be liable for sex discrimination under the majority’s interpretation even if the CEO didn’t know the name or sex of any employee fired as a result of the policy. This example shows that behavior, not sex, is the sole but-for cause. After all, how could sex be a but-for cause if companies can discriminate against LGBT employees without even knowing their sex?

Even if you disagree with the dissent’s reasoning, at a minimum, it shows that Gorsuch didn’t have a monopoly on the “plain meaning” of the text. And without a “plain meaning” foundation, textualism did not compel Gorsuch’s result.

But if the dissent could so easily understand this fact, why couldn’t Gorsuch? He’s anything but a lackwit, and he could credibly lay claim to being the best writer on the Court. Perhaps he felt backed into an interpretive corner by some earlier decisions in which the Court had begun to stretch the text to get at other forms of sex discrimination not expressly covered by the law. Paving the road with good intentions, courts that try to help legislatures out through small, interpretive compromises may find themselves forced into absurd results in later cases.

Or maybe he was simply taken in with the math-like elegance of his reasoning. His opinions do seem to have an air of self-congratulation at his own cleverness. But whatever the backstory, it seems more plausible that Gorsuch was simply mistaken than that he is a closet liberal or a judicial activist. Like a hyper-Calvinist, he may simply have gotten carried away with his textual theology and missed the forest for the trees in the process. 

If these theories explain Gorsuch’s missteps in this case—as I believe they do—then doom-and-gloom predictions of another Kennedy or Souter are misplaced. Even the most conservative justices are liable to make mistakes—grievous mistakes—along the way. Alito voted to ban funeral picketing (2), Rehnquist, would have censored flag burning (3), and Scalia actually succeeded in gutting religious liberty (4). Gorsuch has generally been solidly conservative up to this point, and he may still provide a crucial vote in future cases. There are many defensible reasons why a thoughtful conservative might choose not to vote for Trump in November. But believing that we’d fare no better under Trump’s court picks than those of a Democrat—and that Gorsuch represents Exhibit A to that case—is certainly not one of them.

End Notes:

1. For the full Court opinion, including dissents, see https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf

2. Snyder v. Phelps, 562 U.S. 443 (2011) (Alito, J., dissenting).

3. Texas v. Johnson, 491 U.S. 397 (1989) (Rehnquist, J. dissenting).

4. Employment Division v. Smith, 494 U.S. 872 (1990).

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Nick Nugent is a Seattle-based attorney and host of The Undefined Terms Podcast. Follow him on Twitter

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