In this time of pandemic, it’s easy to lose a robust sense of where we are in the year. Today, the Supreme Court reminded us that we’re at the time of year when it delivers decisions in major cases.
Until recently, this was a dreaded time for conservatives. We dreaded it mainly because the Supreme Court was prone to inventing new constitutional rights based on its policy preferences, not on any credible reading of the Constitution.
With the addition to the Court of Justices Gorsuch and Kavanaugh, and the subtraction of Justice Kennedy, there seemed to be less reason for dread. Today, however, the Court, in an opinion by Gorsuch, one-upped the Kennedy Courts. It invented new rights based not on the Constitution, but on a statute that plainly does not confer them.
The statute is Title VII of the Civil Rights Act of 1964. The new rights are freedom for lesbians, gays, and transgender individual from employment discrimination based on their LGT status.
These are rights that, properly understood, I believe such individuals should have. Employment discrimination, properly understood, because of sexual orientation and gender identity is wrong.
Today’s decision may reduce the amount of it. On the other hand, it will lead to the filing of a great many meritless suits and will enable left-liberal judges to construe Title VII as banning sex-specific restrooms, locker rooms, and shower facilities, and to take the statute on additional absurd and harmful frolics.
But all of this is beside the point. The point is that Congress has never banned discrimination against lesbians, gays, and transgender individuals. Rather, it has continuously declined to do so.
Yet, Chief Justice Roberts and Justice Gorsuch joined the four liberal Justices to conjure up such a ban. The four libs were happy to turn the floor over to Justice Gorsuch for his own absurd frolic into pseudo “textualism.”
They must have had a good laugh. This isn’t the first time that idiosyncratic pseudo-conservative legal theory has played into their hand.
Justice Alito was not amused. His dissent, in which Justice Thomas joined, is a masterpiece. Here is how it 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.
Last year, the House of Representatives passed a bill that would amend Title VII by defining sex discrimination to include both “sexual orientation” and “gender identity,” H. R. 5, 116th Cong., 1st Sess. (2019), but the bill has stalled in the Senate. An alternative bill, H. R. 5331, 116th Cong.,
1st Sess. (2019), would add similar prohibitions but contains provisions to protect religious liberty. This bill remains before a House Subcommittee.
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 tries to convince readers that it is merely enforcing the terms of the statute, but that is preposterous. 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. A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 16 (2012) (emphasis added). If every single living American had been surveyed in 1964, it would have been hard to find any who thought that discrimination because of sex meant discrimination because of sexual orientation––not to mention gender identity, a concept that was essentially unknown at the time.
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. See A. Scalia, A Matter of Interpretation 22 (1997). 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 wrote his own dissent. I wish he had joined Justices Alito and Thomas, but maybe I should be grateful that only one of the two Justices appointed by President Trump indulged in egregious judicial activism.