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Current Affairs

A Magazine of Politics and Culture

Scalia’s Ghost Comes Back To Bite Conservatives On The Ass

“Textualist” jurisprudence advocates a literal interpretation of statutes. Unfortunately for the right, that just resulted in the guaranteeing of LGBT rights.

The Supreme Court has just ruled, in Bostock v. Clayton County, that under Title VII of the Civil Rights Act of 1964, an employer cannot discriminate against employees for being gay or transgender. Surprisingly, conservative justices Neil Gorsuch and John Roberts were in the majority, with Gorsuch writing the opinion. One might find this strange, given that (1) conservatives have generally not been sympathetic to enforcements of LGBT rights by judicial decree, and (2) the 1964 Civil Rights Act says nothing about sexual orientation or gender identity. Some conservatives were baffled and outraged, and concluded that Neil Gorsuch must have lost his mind. He had “hijacked” the “textualist” philosophy of Antonin Scalia and was threatening our democracy, according to Carrie Severino of Judicial Watch: 

Justice Scalia would be disappointed that his successor has bungled textualism so badly today, for the sake of appealing to college campuses and editorial boards… Have no doubts about what happened today: This was the hijacking of textualism. You can’t redefine the meaning of words themselves and still be doing textualism. This is an ominous sign for anyone concerned about the future of representative democracy.

Ben Shapiro was apoplectic, accusing Gorsuch of being “outcome-driven,” i.e., caring more about helping LGBT people and pursuing “progressive jurisprudence” than about faithfully interpreting the law: 

This Gorsuch decision is not originalist in any way; he acknowledges as much. It is simply a bad, outcome-driven legal decision. And it throws religious liberty, free speech, and employment law into complete turmoil… Gorsuch himself acknowledges that Title VII obviously wasn’t mean [sic] to cover sexual orientation or gender identity. Democrats know that too, which is why they’ve attempted to pass separate legislation concerning these issues. This has nothing to do with textualism, obviously…. Out: Textualism means interpreting a statute according to the meaning of its verbiage when written. In: Textualism means progressive jurisprudence.

This seems a little implausible: Has Neil Gorsuch really suddenly been converted to progressivism? Or is there perhaps a little more to it than that? 

In fact, there is, but because Ben Shapiro apparently didn’t pay very much attention during class while he was at Harvard Law School, he doesn’t understand the arguments involved. He is therefore powerless to comprehend why Gorsuch did what he did and thus must resort to implausibly assuming Gorsuch has simply abandoned his whole judicial philosophy and been brainwashed by the Left.

To understand Gorsuch’s reasoning, we should first note what “textualism” actually means.* If I am a “textualist” judge, I interpret texts according to what their words mean in their ordinary use. Now, that may seem obvious—who wouldn’t do that?—but note what it implies: If the person who wrote the document intended for it to mean one thing, but the words they wrote actually are ordinarily used to mean something else, it is the definition of the words rather than the intent of the writer that should prevail. 

Consider two examples cited by Scalia and Bryan Garner in their book Reading Law: (1) a Panera bread writes up a contract to lease some commercial space. One of the stipulations is that no other part of the space can be rented to a company that sells “sandwiches.” The landlord rents another part of the space to a Mexican restaurant that sells burritos and tacos. Panera sues, arguing that because these are handheld flour-based foods that contain ingredients within, they are legally sandwiches. (2) An ordinance prohibits anyone from bringing a vehicle into the park. An ambulance enters the park in order to attend to an emergency. The court is called upon to decide whether the ambulance driver violated the ordinance. 

You can see in these two cases why in some cases, we would want to know about the intent of the person writing the words and in some cases we would want to defer to the text. In the ambulance case, it seems silly to say that statute was meant to prohibit ambulances. But the text doesn’t make any exceptions. It says anyone bringing in a vehicle violates the law. It seems like intent matters. In the sandwich case, though, it’s clear that the word “sandwich” in its ordinary meaning doesn’t include burritos and tacos, because nobody ever calls them that, and if I told you I was opening a sandwich shop and you came and discovered it was a Mexican restaurant, you would think I was being weird by referring to it that way. So even if Panera intended to call burritos sandwiches, that’s simply not what the word means.

Justice Scalia generally argued that text should be valued over intent. No vehicles ought to mean no vehicles. If we start saying “Well, that seems unreasonable,” we find ourselves introducing our own ideas of what is and is not reasonable rather than applying the law as it is written. And this opens up a whole can of worms, because then we’re actually rewriting the law to say what we think it ought to have said rather than what it says.

Now, personally, I think the mission to simply “apply the text as it is written” is often futile, because your values creep in no matter what, and because it results in judges abandoning their moral duties. If you are willing to simply apply laws in accordance with whatever the text says, then you are just a technician of the state, and you will end up doing evil if the state is evil. A purely textualist judge is also amoral and cares nothing for justice, operating on the assumption that the law and justice are the same thing, or at least that “justice isn’t my department—that’s for the legislature.” Still, Scalia advocated this mindlessly literalistic approach, and it is the one Gorsuch used in this case.

Here is how Gorsuch reasoned: 

The Civil Rights Act prohibits discrimination on the basis of sex. We know that the writers of the Civil Rights Act did not intend to protect gay and transgender people from discrimination. But that is irrelevant. What matters is not what they wanted the law to do. What matters is what the words they wrote actually say. And the words say that discrimination on the basis of sex is prohibited.

“Okay,” you say, “but that’s sex, not sexual orientation or gender identity.” However, what Gorsuch argues is that when you discriminate against people on the basis of their sexual orientation or gender identity, you are discriminating against them on the basis of sex. The reason is simple: If someone with XY chromosomes is fired for adopting female dress and female pronouns, but someone with XX chromosomes would not be fired for adopting female dress and female pronouns, the decision as to whether to fire them is dependent on their sex. Likewise: If a male is fired for being attracted to males, but a female would not be fired for being attracted to males, then the same behavior is being treated differently depending on a person’s sex. Which kind of chromosomes  you have is determining whether the thing you do is or is not a fireable offense. 

Gorsuch, then says that when an employer “fires an individual for being homosexual or transgender,”“[s]ex plays a necessary and undisguisable role in the decision” and it is “impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” He gives an example: 

Imagine an employer who has a policy of firing any employee known to be homosexual. The employer hosts an office holiday party and invites employees to bring their spouses. A model employee arrives and introduces a manager to Susan, the employee’s wife. Will that employee be fired? If the policy works as the employer intends, the answer depends entirely on whether the model employee is a man or a woman.”

In Justice Alito’s angry dissent, he says that nobody has ever understood the law this way before. The people who wrote it didn’t understand it to be doing this. Congress has tried, and failed, to pass legislation (H.R. 5, the Equality Act) protecting LGBT people from discrimination, indicating that they didn’t interpret the law this way. Alito says that: 

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.

But on a purely textualist philosophy, it doesn’t matter whether Congress has been misinterpreting the Civil Rights Act for years. What matters is: What do the words say? What does it mean to discriminate against someone on the basis of their sex? And for Gorsuch, it amounts to something simple: If someone suffers negative employment consequences, but they wouldn’t have if every fact had been the same EXCEPT their sex was different, they have been discriminated against on the basis of sex. Even though he is a conservative, Gorsuch believes that that the plain meaning of the words trumps the drafters’ intent and compels the outcome:

Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. 

Alito’s dissent insists that “the concept of discrimination because of ‘sex’ is different from discrimination because of ‘sexual orientation’ or ‘gender identity.’” Indeed it is, but whether the concept is different is not the point. What Gorsuch is saying is that the question is: Would this employee have had the same thing happen to them if they had behaved exactly the same way but their sex was different? And the answer to that resolves the question of whether the conduct violates the Civil Rights Act, even if the person doing the discriminating considers what they are doing to be about something different.

Here’s a parallel: The law says you can’t discriminate against people on the basis of their race. An employer issues a decree that says: You will be fired if you listen to musical genres that are the opposite of those stereotypically associated with your race. So, if you’re Black and you listen to death metal music rather than hip hop, you’re fired. (Don’t ask me why the employer issued this decree; bosses are psychos.) The employer argues that they are not discriminating against people because of their race: You’re allowed to be Black, you’re just not allowed to be Black and listen to metal music, and it’s the listening to metal music that got you fired, not your Blackness. But the employee responds: Yes, but if I was white and had listened to metal music, you would not have fired me, therefore this is racial discrimination. The same behavior was treated differently when done by Black employees versus white ones. Gorsuch says that anti-LGBT discrimination should be thought of similarly. It would be ludicrous to say “Yes, I punish the same behavior differently in Black employees than white employees, but what I care about is “correct correspondence of race and music genre” not “race.” Likewise, if you say “Yes, a chromosomal male who is feminine will be fired, but a chromosomal female who is feminine will not be,” but what I care about is “correspondence between gender identity and biology, not gender/sex itself.” It doesn’t matter what you care about. It matters what you do, and what the law says. 

Here’s another hypothetical with similar reasoning: At an international school with students from different countries, the choir director insists all French children must sing the Marseillaise and all German children must sing Wagner. The school has a code that says you cannot treat people differently because of their national origin. The choir director says they do not treat anyone differently because of their national origin—nobody will be punished for being French or being German, they just have a fixed idea of which songs belong to which nationality and children who fail to sing the song associated with their country will be punished. Principal Gorsuch of the International Academy rolls his eyes and says to the choir director, “Ok, but you’re literally telling children that their national origin means they have to sing a particular song, and we prohibit treating people differently on the basis of national origin.” (In this case, “singing the right song” is an analogy for “conforming to what is considered gender-appropriate behavior.”) 

Alito still insists that Gorsuch’s interpretation is not what the text of the law would have been understood to mean at the time it was passed, and is therefore still betraying Scalia, who was not just a textualist but an originalist. His originalism means that when he applied a textual interpretation, he did not look at what the text means now that times have changed, he looked at what the text “conveyed to reasonable people at the time they were written.” But I don’t think it’s actually right to say that the meaning of “discrimination on the basis of sex” is being changed. The meaning of that phrase that Gorsuch is arguing for is: A person discriminates against someone on the basis of sex when they do something to another person that they would not have done if that person was of a different sex. That doesn’t seem to me as if it would have been implausible in 1964. The thing that is changing is not the meaning, but our willingness to follow that meaning through to its logical conclusions and apply it consistently rather than allowing the intent of the lawmakers to prevail over the actual text they’ve written. (Accepting Alito’s reasoning, by the way, would lead to overturning Brown v. Board of Education, since at the time the 14th Amendment was written equality was not understood to mean desegregating the schools.) 

Let us quickly address two of Alito’s responses to Gorsuch. Alito says at one point that: 

[It] is quite possible for an employer to discriminate [against LGBT people] without taking the sex of an individual applicant or employee into account. An employer can have a policy that says: “We do not hire gays, lesbians, or transgender individuals.” And an employer can implement this policy without paying any attention to or even knowing the biological sex of gay, lesbian, and transgender applicants. 

Alito gives an example: Say, on an employment application, you are asked whether you are gay, lesbian, or transgender, but not your sex. If you answer “yes,” you are not hired, even though the employer doesn’t know what your sex actually is. But, to go back to the “international school” example: The choir director could ask, “Do you sing a song that is different from that which is associated with your country?” but not ask what your particular country is. But their country of origin is still determining which song they can sing, even though the rules prohibit treating people differently on the basis of their country of origin. Likewise, in the race and music example: An employer could ask, “Do you listen to music that is different from that stereotypically associated with your race?” but not ask your race. Yet we are still in a situation where a Black person who likes metal music will not be hired but a white person who likes it will be. Holding all other things equal, race is still making the difference as to whether someone will be hired. 

Alito also responds to Gorsuch’s example of the employee bringing their wife Susan to the party, and the decision as to whether to fire the employee being dependent on whether the person married to Susan is male or female: 

The employer presumably knew that this employee was a woman before she was invited to the fateful party. Yet the employer, far from holding her biological sex against her, rated her a “model employee.” At the party, the employer learned something new, her sexual orientation, and it was this new information that motivated her discharge. So this is another example showing that discrimination because of sexual orientation does not inherently involve discrimination because of sex.

To go back once again to the race comparison, the employer would say the same thing: I have employed you for years knowing you were Black. I only fired you when I found out that you were Black and liked metal music. So clearly my problem was not with you being Black, but with you liking metal music, because it was only when I uncovered that additional piece of information that I fired you. Remember, though, that if we accept the employer’s argument, we’re saying that a person’s race can directly affect an employer’s judgment of whether a particular behavior is or is not acceptable and it would still not constitute discrimination, just as in the sexual orientation case. Alito is saying the same behavior (e.g., attraction to men) can be punished differently depending on whether one is or is not a man and it would not be discrimination on the basis of sex.

It’s funny watching Ben Shapiro’s head explode as Gorsuch applies a highly formal, highly conservative approach to statutory interpretation. Gorsuch is simply doing what Scalia taught him to do: look at the words, isolated from the intent of the people writing the laws, figure out what the words themselves meant, and think through the implications of applying those words to today’s context. Alito, too, was furious, and insisted that this isn’t real textualism, but an interpretive “pirate ship”:

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.

Gorsuch did not update the statute, though. The statute prohibits sex-based discrimination, and he simply realized that gender identity and sexuality discrimination requires treating the same behavior differently on the basis of the sex of the person doing it, i.e., discriminating. It is elegant and simple reasoning that would do Antonin Scalia proud. (Just kidding, his brain would probably explode too.) We can all be amused watching conservatives become enraged when a judge actually has the audacity to consistently believe their own judicial theory. Doesn’t he know we don’t take any of that shit seriously? It’s about preserving the goddamn existing social order! Gorsuch is what happens when someone pays too much attention to their professors at Harvard Law School, which fortunately for the conservative movement, Ben Shapiro did not do. 

I do not actually endorse Gorsuchian textualism. As I mentioned at the outset, the stricter applications of text tend to lead to absurdities (like, for example, saying an ambulance shouldn’t be allowed in the park). The job of a judge should be to do justice, and the correct reason that a court should ban discrimination against LGBT people is that the equal rights of all are a basic precondition of a civilized society. Even if the statute had explicitly contained an exemption permitting LGBT discrimination—which, thank God, it did not—a good judge would still have ruled discrimination impermissible. 

So I’m not suggesting we should embrace the legal philosophy of Neil Gorsuch, which in many cases is still going to lead to indefensible outcomes. I am not praising him as some sort of model jurist to be emulated. (My God, no.) The point here is that the decision is perfectly defensible as a piece of conservative legal reasoning, and should be unanimously accepted by the public as legitimate and sound. It’s very difficult for an honest analyst to complain that this is just progressives upending the Constitution and imposing their values on the country, though that is how Fox may spin it. (For the record, I believe strongly in upending the Constitution—it’s a democratically illegitimate document that serves our country’s needs poorly.) I do think that a strong tendency of judges is to simply grab whatever tossed-together interpretive rationales can justify their preexisting policy preferences. But if you wanted evidence that this isn’t always true, and that sometimes judges seem to set aside some of their personal preferences, here’s one. Of course, usually those instances come in cases that do not threaten the power structure too much and where social values have evolved to permit the outcome compelled by logic, meaning that Gorsuch would probably be less strict in his application if the consequence of a literal reading was to, say, expropriate all landlords, and would likely have not reached this outcome if the case had come two decades ago—not because the logic was not sound, but because the outcome was considered too extreme to follow the logic, and so a different theory demanding a different logic would have been chosen. I could prove as a matter of sound reasoning that the Constitution should not actually be considered legally valid, but no Supreme Court justice is going to agree with me no matter how much better my argument is than theirs, because “logic” is only part—and often a very small part—of the law. But occasionally you can in fact get a judge to produce both a socially good outcome and a logically valid decision—even if it’s on a silly legal theory. It’s funny that when that happens, the right erupts in fury, not at the legal theory, but at the good outcome and the sound logic.  

But as we laugh watching these reactionaries stammer at being betrayed by one of their own, let us not forget the real meaning of this decision. Regardless of how it came about, or what crackpot legal theory was invoked to get to a just outcome, something good has happened at a time when victories are in far too short supply. LGBT people can no longer legally be discriminated against by employers for their identity and sexuality. (That “legally” is important, though: They will still be discriminated against, because we live in a bigoted society. It will be illegal, but as with the prohibition of race discrimination, it will take many, many decades to go from a technical legal reality to a lived reality.) 

Any day is a good day when something irritates Ben Shapiro, but this is much more. It’s a long overdue civil rights triumph, another small step toward a world of authentic equality. 

*Though Shapiro blurs the two together, textualism is distinct from “originalism.” Scalia was a textualist and an originalist, but not all originalists are textualists and not all textualists are originalists. Textualism is about interpreting using “the words in the document instead of words outside the document,” e.g., determining whether an ambulance is a vehicle by what the statute says rather than by what the people who wrote it said about what they meant. Originalism favors an understanding based on the original meaning of terms at the time of the law’s drafting, and declines to update interpretations in accordance with social changes in language and values. These two philosophies can actually be in serious tension (and, it should be noted, different people have different definitions and any definition you could give will be quibbled with by any number of lawyers).

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