6-3, with Roberts and Gorsuch joining the lefties. Gorsuch wrote the opinion. Justice Gorsuch says, essentially, that when Congress outlawed discrimination “because of” sex in Title VII, Congress must have meant to include gays and transgenders “because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
Gorsuch is a vocal proponent of “textualism,” the belief that the meaning of a law turns on its words alone, not on the intentions of the law’s drafters. And Bostock forced Gorsuch to decide between his own conservative politics and following the broad language of a landmark civil rights law. Gorsuch didn’t simply honor his textualist approach in Bostock, he wrote the majority opinion.
In Bostock, the Court considered Title VII of the Civil Rights Act of 1964, which forbids employment discrimination that occurs “because of [an employee’s] race, color, religion, sex, or national origin.” Though there is little doubt that the people who drafted this law in 1964 did not believe they were enacting a ban on LGBTQ discrimination, the thrust of Gorsuch’s opinion is that the expectations of lawmakers in 1964 simply does not matter.
Only the text of Title VII matters. And, as Bostock explains at length, that text clearly prohibits employment discrimination on the basis of sexual orientation or gender identity. Gorsuch lays out why in just five crisp sentences on the first page of his majority opinion:
In Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin. Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.
Remarkably, Bostock is a 6-3 opinion. Both Gorsuch, a Trump appointee, and Chief Justice John Roberts, a conservative appointed by President George W. Bush, joined the majority. Roberts joined Gorsuch’s opinion in full and did not write a separate opinion. Neither man has shown much sympathy for LGBTQ rights plaintiffs in the past.
But the sheer force of the plaintiffs’ textual arguments in Bostock appears to have weighed heavily on both men. At the very least, Bostock suggests that this conservative Supreme Court can follow the clear text of a law, even when that reading points in a liberal direction.
Gorsuch quoted the late Justice Antonin Scalia, whose seat Gorsuch filled, in the opinion to explain why it did not matter that Congress, since the 1964 law, had attempted to pass measures outlawing LGBT discrimination.
Alito took several shots at Gorsuch for daring to invoke Scalia in the opinion.
He said “no one should be fooled” by Gorsuch’s “attempts to pass off” his approach to the one “championed” by Scalia .
Comparing Gorsuch’s opinion to a “a pirate ship,” Alito said 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.”
“[N]o one should be taken in by the majority’s effort to enlist Justice Scalia in
its updating project,” Alito wrote.
Alito said it was “preposterous” that the majority was “merely enforcing the terms of the statute.”
“The arrogance of this argument is breathtaking,” Alito said.
His dissent compared the firing of an LGBT employee for being gay or transgender to the firing of an employee because his or her astrological sign.
“Even idiosyncratic criteria are permitted; if an employer thinks that Scorpios make bad employees, the employer can refuse to hire Scorpios,” Alito wrote. “Such a policy would be unfair and foolish, but under Title VII, it is permitted. And until Title VII is amended, so is a policy against employing gays, lesbians, or transgender individuals.”
Like Alito, Kavanaugh accused the majority of playing the role of Congress and the President. He claimed that in “judicially rewriting Title VII, the Court today cashiers an ongoing legislative process, at a time when a new law to prohibit sexual orientation discrimination was probably close at hand.”
He said that Gorsuch’s opinion “rewrites history.”
“Seneca Falls was not Stonewall. The women’s rights movement was not (and is not) the gay rights movement, although many people obviously support or participate in both. So to think that sexual orientation discrimination is just a form of sex discrimination is not just a mistake of language and psychology, but also a mistake of history and sociology,” Kavanaugh said.
He claimed that Gorsuch had adopted a “literalist” approach by interpreting the 1964 law’s sex discrimination prohibitions to be applicable to LGBT discrimination.
“Under this literalist approach, sexual orientation discrimination automatically qualifies as sex discrimination, and Title VII’s prohibition against sex discrimination therefore also prohibits sexual orientation discrimination—and actually has done so since 1964, unbeknownst to everyone. Surprisingly, the Court today buys into this approach,” Kavanaugh said.
He decried that Monday’s ruling was not a “hard-earned victory won through the democratic process,” but instead a “victory” by “judicial dictate—judges latching on to a novel form of living literalism to rewrite ordinary meaning and remake American law.”
“Under the Constitution and laws of the United States, this Court is the wrong body to change American law in that way,” he said.