Gorsuch made a mockery of textualism in discrimination case: Lackland Bloom, Jr.

The recent opinion of the Supreme Court in Bostock v. Clayton County, Georgia, holding that discrimination based on sex under the Civil Rights Act of 1964 necessarily encompasses discrimination based on sexual orientation or transgender status, is not simply patently wrong as a matter of law — but rather dishonest and fraudulent.

Lengthy dissents written by Justices Alito and Kavanaugh explain in great detail why this is so. For those of you who do not have the time or the patience to read them, let me explain. The majority opinion, written by Justice Gorsuch, purports to apply textualist methodology in interpreting this provision of Title VII. It does not do so, at least as textualist methodology has been understood.

Limiting interpretation of statutes to the text of the laws places the interpretive focus on the language that was actually passed by Congress and signed by the President rather than the intent of certain legislators or the general purpose of the law as formulated by subsequent courts. Textualism as honestly applied should make it more difficult for courts to rewrite laws to conform to their own value preferences.

As Justice Kavanaugh noted, this should also ensure predictability and accountability. However, there remains the question as to how the textualist should read the text. Should it be read in hyper-literal manner searching for secret meanings as Justice Gorsuch does in his opinion for the Court? Or should the text be given the ordinary meaning that the reasonable reader at the time of enactment would have attached to the text?

The answer is clear both with respect to prior Supreme Court precedent and respected scholars of statutory interpretation. Ordinary meaning is the proper approach. In that regard, plaintiff’s counsel conceded that when the Act was passed in 1964, no one thought that “discrimination because of sex” encompassed discrimination based on sexual orientation or sexual identity. With that concession, case over. The plaintiffs lose. At least that would be the only acceptable result pursuant to honest textualism.

There is yet another reason for the conclusion that “sex discrimination” does not encompass “sexual orientation discrimination.” And that is, as emphasized by the dissents, these concepts in 1964 and now and at all times in between have had different meanings. Discrimination based on sexual orientation is not the same as or encompassed by discrimination based on sex. They are different. Everyone knows that. And no matter how many times Justice Gorsuch says they are the same, that doesn’t make it so.

Why does all of this really matter? The purpose of reading a text based on its ordinary meaning at the time, as Justice Kavanaugh pointed out, is to ensure predictably and consistency of application.  For almost 60 years “discrimination because of sex” in Title VII was understood to mean one thing. Now it means something else entirely different. Settled expectations are destroyed. This is deeply inconsistent with the concept of the rule of law under which persons should be able to rely on the rules of law as they have been understood.

Surprise changes in the meaning of legal texts will lead to uncertainty, which, in turn will lead to litigation challenging that which had  been relied upon reasonably. Everything that had appeared to be settled will now be up for grabs. As Justice Alito pointed out, freedom of religion and freedom of speech will become battlegrounds of litigation. The cost to churches and small businesses willing to fight to protect their constitutional rights will be astronomical, all because the Court chose to impose a new and unexpected meaning on what had been settled law.

It’s hard to believe that Justice Gorsuch really meant what he said in his opinion for the Court. It is so inconsistent with the textualist methodology to which he purportedly adheres. The great danger is that the opinion will lead to other misapplications of textual analysis in the future, a methodology intended to constrain courts, not to free them to impose their own values on legislation.

In his dissent, Justice Kavanaugh writes that “many Americans will not buy the novel interpretation unearthed and advanced today. Many will no doubt believe that the Court has rewritten American vocabulary and American law.”

Let’s hope so. We aren’t obligated to accept everything the court says, especially when its explanation is so dishonest.

Lackland H Bloom, Jr., is the Larry and Jane Harlan Senior Research Fellow and Professor of Law at  SMU Dedman School of Law in Dallas.