Monday's momentous Supreme Court decisionprotecting L.G.B.T.Q. people against workplace discrimination was so big that it crashed the court's computer system. For nearly half an hour, those of us at home, anxiously refreshing our browsers, knew that the decision had come down but could upload only the first page of the headnote, the official summary: "Held: An employer who fires an individual merely for being gay or transgender violates Title VII."
But who wrote the opinion? And what was the vote? Eventually, of course, the surprises were revealed: Justice Neil Gorsuch and 6 to 3.
In the few days since then, I've been pondering: What do people need to know about Bostock v. Clayton County beyond its bottom line? And where, in this mammoth set of opinions — a modest 33 pages for Justice Gorsuch but an indigestible 135 pages for the dissents — does the decision's beating heart lie?
The legal academic blogs are full of vigorous debate over who, in this dispute over statutory meaning, was the more authentic "textualist": Justice Gorsuch, who called his conclusion the "necessary consequence" of the "starkly broad" language Congress chose 56 years ago when it prohibited employment discrimination "because of sex"? Or Justice Samuel Alito, whose reasoning boils down to two sentences in his long opinion's second paragraph:
"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,'" Justice Alito wrote. "Neither 'sexual orientation' nor 'gender identity' appears on that list."
(Justice Clarence Thomas signed Justice Alito's opinion. The other dissenter, Justice Brett Kavanaugh, oddly faulted Justice Gorsuch for giving the phrase "discrimination because of sex" too "literal" a meaning, as opposed to what Justice Kavanaugh deemed its "ordinary meaning" that happens, in his view, not to include gay or trans.)
I'll leave the textualism debate to my academic colleagues. I want to talk about the sharply contrasting vantage points from which the majority and the dissent (and here I refer to Justice Alito, since Justice Kavanaugh's opinion added nothing of moment) viewed the issue, whether from the past, present or future. These clashing perspectives, more than a debate over the canons of statutory interpretation, help explain the decision and may even help in understanding a court that defied most expectations with its decision and might do so again.
Justice Gorsuch anchored his opinion in the world of today; the past and the future are not the majority's concerns. "These cases involve no more than the straightforward application of legal terms with plain and settled meanings," he said. That those who wrote those terms into law might not have expected them to apply as the court was now applying them made no difference: The language they wrote is the language they wrote, and "the limits of the drafters' imagination supply no reason to ignore the law's demands." As for the future, Justice Gorsuch said, "whether other policies and practices might or might not qualify as unlawful discrimination or find justifications under other provisions of Title VII are questions for future cases, not these."
Justice Alito's dissenting opinion, by contrast, was all about the past, of which he appeared almost willfully ignorant, and the future, of which he seemed terrified. First, the past:
"Statutes consist of communications between members of a particular linguistic community, one that existed in a particular place and at a particular time, and these communications must therefore be interpreted as they were understood by that community at that time," Justice Alito wrote. "In 1964, ordinary Americans reading the text of Title VII would not have dreamed that discrimination because of sex meant discrimination because of sexual orientation, much less gender identity." He added that "these exotic understandings of sex discrimination would not have crossed their minds," and he further observed that in 1964, homosexuality was regarded as a mental disorder and transgender was "a concept that was essentially unknown to the public at that time."
My suggestion of willful ignorance stems from this passage in Justice Alito's opinion:
"Title VII prohibits discrimination because of sex itself, not everything that is related to, based on, or defined with reference to, 'sex.' Many things are related to sex. Think of all the nouns other than 'orientation' that are commonly modified by the adjective 'sexual.' Some examples yielded by a quick computer search are 'sexual harassment,' 'sexual assault,' 'sexual violence,' 'sexual intercourse,' and 'sexual content.'" Does the court really think that Title VII prohibits discrimination on all these grounds?"
Justice Alito's computer evidently didn't inform him that in 1986, 24 years after the passage of Title VII, the Supreme Court recognized sexual harassment as a form of sex discrimination. The case was Meritor Savings Bank v. Vinson. The opinion was by William Rehnquist, at the time an associate justice and the court's most conservative member, and the vote was 9 to 0. Sexual harassment had not entered the lexicon until 1979, when a law professor, Catharine MacKinnon, published a pathbreaking book, "Sexual Harassment of Working Women." Years of feminist activism followed in an effort to incorporate the concept into existing law.
In fact, the Supreme Court has consistently read Title VII generously to cover situations that were surely not on the screen of the statute's sponsors. A unanimous opinion by Justice Sandra Day O'Connor in 1993 adopted a broad definition of a workplace atmosphere so hostile or abusive as to amount to sex discrimination. And in 1998, another unanimous opinion, this time by Justice Antonin Scalia, the patron saint of judicial textualism, held that Title VII covers sexual harassment when both perpetrator and victim are of the same sex.
Forced by the majority opinion's highlighting of that precedent, Oncale v. Sundowner Offshore Services, to acknowledge its existence, Justice Alito dismissed it as "thoroughly unremarkable." Given his omission of the Meritor Savings Bank precedent 23 pages earlier in his opinion, Justice Alito's explanation for why the Oncale case proved nothing was remarkable indeed: that after all, the court had already established that sexual harassment was covered by Title VII.
So much for the past. And what of the future? The man is not lacking in imagination. Justice Alito offered a 10-page checklist of what to fear from the Bostock decision. Among them, bathrooms! Citing a brief filed by an organization called Defend My Privacy, he warned that "for women who have been victimized by sexual assault or abuse, the experience of seeing an unclothed person with the anatomy of a male in a confined and sensitive location such as a bathroom or locker room can cause serious psychological harm." And then there is free speech! ("The court's decision may also pressure employers to suppress any statements by employees expressing disapproval of same-sex relationships and sex reassignment procedures.")
And of course, Justice Alito worried about its impact on freedom of religion, a subject that deeply engages the court in any event. Within the next few weeks, the court will decide two cases on the scope of the so-called ministerial exception, a judicially created concept that exempts churches and religious institutions from having to abide by federal anti-discrimination laws for some categories of employees. Which categories? Ministers, obviously, but football coaches at religious schools? Lay classroom teachers? Receptionists? That's what the court will tell us shortly. Without doubt, this week's decision heightens the significance of those imminent rulings, given the receptivity justices showed during oral arguments to very broad application of the exception. Based on last month's arguments in the two cases, I don't expect to be cheering the result.
But Monday's decision is something to cheer, even if there prove to be holes in the web of legal protection that six justices have cast over a group of people who not very long ago were, to paraphrase the retired Justice Anthony Kennedy, strangers to the law. We are all made better off by the court's insistence that Title VII protects individuals.
"Title VII liability is not limited to employers who, through the sum of all of their employment actions, treat the class of men differently than the class of women," Justice Gorsuch wrote. "Instead, the law makes each instance of discriminating against an individual employee because of that individual's sex an independent violation of Title VII."
What does it mean to say that the Bostock decision is anchored in today's world? More than 200 major employers told the justices in a brief they filed on behalf of the gay and transgender plaintiffs that a quiet revolution is taking place with the stamp of approval of the establishment of which they are a part. As the court was considering the case following last October's argument, a gay man was running a credible campaign for a major party's presidential nomination.
In the next few weeks, we will learn, among other things, whether the court will abide by its precedents on abortion and whether it will do the Trump administration's dirty work in stripping protection from the "Dreamers," the more than 600,000 young undocumented people brought to this country as children who have been shielded from deportation by the Obama administration's Deferred Action for Childhood Arrivals policy. Thousands of these young people, a supplemental brief informed the justices in April, are currently working in the health care professions. By the time that brief was filed, the coronavirus was spreading and the court had been closed, the April arguments had been canceled, and the justices were working from home.
Is that enough evidence of today's world to turn around what had appeared a likely administration victory in the DACA case?
On Monday, over the dissenting votes of Justices Thomas and Alito, the court refused to hear the Trump administration's challenge to California's "sanctuary city" policy, which protects immigrants in state detention from being turned over to federal officers. The court had the administration's petition under active consideration since January before denying it without explanation.
And in other action on Monday, only Justices Thomas and Kavanaugh were left to complain when the court, to the surprise of nearly everyone, turned down 10 Second Amendment petitions that would have given what once looked like an eager majority a chance to further expand individual gun rights.
Random events, or straws in the wind — evidence that the justices have decided to do their part to cool the culture wars rather than inflame them? We'll see soon enough.
Reading Justice Gorsuch's Bostock opinion, I was thrown back to the summer of 2017, when I found myself in a social gathering of a half dozen fellow progressives and one prominent conservative lawyer with whom we were all friendly. It was a civil but increasingly pointed conversation as we pressed the lawyer, first gently and then more firmly, on whether he actually supported the Muslim travel ban and other actions of the Trump administration's opening months that troubled the rest of us. He took the bait in good humor but finally, all but throwing up his hands, he cut the conversation off.
"Look," he said. "We got Gorsuch."
Yes, we did.
Linda Greenhouse, New York Times, June 18, 2020
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June 18, 2020
Voices4America Post Script. Linda Greenhouse is one of the world’s foremost experts on SCOTUS. What does the Bostock ruling mean? Worth a read. #LGBTQIRights
