Bostock v. Clayton County: Decided
If you’re reading this, you’ve probably already heard the news. You’ve probably read at least a half dozen news articles and social media statuses about the Supreme Court’s decision in Bostock v. Clayton County. Depending on the sorts of news sites you typically visit, and the types of people you’re friends with on social media, the decision was either a calamity, or it was a long time coming. Good news, I don’t care what you think. As always, I’m not here to change your mind or offer you my opinion. I’m here to make sure you’re informed about the issues, the facts and the law. That way, you can impress your friends and infuriate your enemies with your immense knowledge of the Supreme Court. You’re welcome.
Justice Neil Gorsuch, who wrote the majority opinion.
We’ll start with something that you may find surprising. If you read the three opinions in this case (Justice Gorsuch’s majority opinion, plus dissenting opinions by Justices Kavanaugh and Alito), you will notice that the essential dispute between the two sides is not with the end result, but rather with who decides that result. That is, both sides appear to agree in principle with the outcome in the case, but they disagree with whether the Supreme Court is the proper means of reaching that outcome. We’ll talk more about that later on, so keep it in mind.
For now, let’s turn to the law.
To begin, a quick refresher about the actual issue in the case: the question was whether Title VII of the Civil Rights Act of 1964, which protects against workplace discrimination on the basis of race, color, religion, sex, or national origin, protects homosexual and transgender employees.
Spoiler Alert for everyone who hasn’t heard by now: it does.
That’s the holding of this case. Homosexual and transgender employees can now sue their employers and argue that they were fired, disciplined, transferred, etc. because of their sexual orientation or identity. When we look back on this case in 5 years or 10 years or 50 years, that’s what we’ll remember, just like we remember that Brown v. Board of Ed. was about ending segregation, or that Miranda v. Arizona was about those rights we always hear cops reading to people on Law and Order.
But how does the majority get there?
Title VII:
“It shall be an unlawful employment practice for an employer -
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual...because of such individual’s race, color, religion, sex, or national origin.”
Well, if you take a look at the language of Title VII, you’ll probably notice right away that the only category that really comes close to describing sexual orientation or identity is the term “sex.” So the real question in the case was whether Title VII’s rule against discrimination “because of sex,” included sexual orientation and/or identity. Six of the nine Supreme Court justices concluded that it does.
The majority opinion reached that conclusion by defining the phrase “discriminate because of sex” in the context of Title VII. Justice Gorsuch defined it like this:
“If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee—put differently, if changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred.”
Essentially, what Justice Gorsuch is saying is that discrimination on the basis of sexual orientation or identity is discrimination because of sex. That’s because, according to him, you can’t discriminate against someone for being gay or transgender without first considering their sex. Here’s an example he uses to illustrate the point:
“Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause of his discharge.”
If that’s true, then it is impossible to discriminate against someone for being gay or transgender, without also discriminating against them because of their sex, in violation of Title VII.
Justice Antonin Scalia, who passed away in 2016, but who still looms large over the Supreme Court.
Now, Justice Gorsuch is, like the late Justice Scalia, a textualist, and in his view, he’s written a textualist opinion in this case. If you’ve read the other reviews, you’re probably getting tired of me talking about textualism. Too bad. It’s an important viewpoint to understand, and it’s only becoming more important as it becomes more and more prominent on the Supreme Court. For now, all you have to know is that textualist judges believe that the terms of a law should be given the ordinary meaning they would have had at the time the law was written. And in this case, many people expected the textualists on the Court to side with the employers’ definition of “sex” in Title VII, which included only the biological male and female genders.
But Justice Gorsuch didn’t do that. Instead, he essentially said that it doesn’t matter how you define the term “sex,” because it always includes sexual orientation and identity. And not only that, but it always has, even if no one recognized it, even if that’s not what the people who wrote the Civil Rights Act had in mind. That’s a remarkable conclusion, and it’s one that’s really going to get the legal nerds stirred up. But for now, I want to move on and discuss the other big issue in the case, which is the question of who decides?
If you came here for the Sparknotes, this is where we part ways.
But, as always, I think it’s worth going a little bit deeper and talking about the decision on a deeper level, examining what it really means. If that interests you, stick around.
So, let’s start that process by touching on an issue that comes up again and again when the Supreme Court hears cases involving individual liberty: the separation of powers. If you attended public school in America, then you’ve heard of this concept, and you have some sense of what it means. But you probably haven’t spent much time thinking about it since high school, so how about a brief refresher?
Our federal government has three branches: the Executive (which includes the president and his various departments and agencies, such as the EPA, the Department of Justice, and the FBI), the Legislature (i.e. Congress), and the Judiciary (all the federal courts, including the Supreme Court). Each of the branches has the authority to perform one essential function with respect to the laws of the country. The Legislature gets to create the law, or to legislate. The Executive branch gets to enforce the law. And the Judiciary gets to interpret the law, or to say what the law is/means. These functions are, in theory, exclusive. The president isn’t supposed to make laws and Congress isn’t supposed to enforce them. That equilibrium, often referred to as “checks and balances,” is one of the factors that makes the American system of government unique.
Of course, it isn’t perfect, and the balance is threatened all the time. There are those that would say that every time any president issues an executive order, he’s intruding on the legislature’s power to create the laws of the country, throwing off the system of checks and balances that makes the government work. Whether you agree or not, you can probably see the appeal of the argument and you can probably also see how it would be problematic if the Executive Branch could both create the laws and enforce them. That doesn’t sound much like a democracy, does it? And yet, almost every president dating back to George Washington has relied on executive orders to achieve some policy-making goals.
I mention the separation of powers in this context because one of the main accusations thrown around by justices on the Supreme Court who disagree is that the other side is engaged in so-called judicial lawmaking. Federal judges, as we know, are only supposed to interpret the law, and if they were to start making the law, that would be a big separation of powers problem. So to accuse another justice of judicial lawmaking is sort of a slap in the face, like calling a professional artist an amateur, or accusing an author of plagiarism. But still, you can probably see how thin the line is between interpreting the law and making it, can’t you? Let’s look at a common example that I’ve already mentioned: Miranda v. Arizona. You’ve heard of it. It’s the reason cops have to tell you about the right to remain silent, the right to have an attorney present during questioning, and the right to counsel. But where do those rights come from? Are they written down in the Constitution? How about some other federal law? Well, not exactly. The Supreme Court in Miranda read the Fifth Amendment to include those rights. Here’s the Fifth Amendment:
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
You don’t see the Miranda rights in there, do you? No, I don’t either. But the vague outline is there, if you know where to look. And supporters of the Miranda decision, including the justices that signed it, would say that the rights are there, implied by the language of the Fifth Amendment.
Wait, the Supreme Court is supposed to interpret the law, right? It’s not supposed to turn “vague outlines” and “implications” into something that appears in every police procedural TV show for the next seventy years. That’s right, and one of the main criticisms of Miranda was that the rights it created didn’t appear anywhere in the Constitution. They were created by the Supreme Court in an act of judicial lawmaking.
Now, I’m not here to offer any opinion on whether Miranda was right or wrong. I’ll leave that to someone smarter and better educated on the subject. I only bring it up to illustrate the main point of disagreement between the majority and the dissents.
Let’s look at that disagreement.
I want to talk briefly about those dissents, and with all due respect to Justices Kavanaugh and Alito, I’m going to combine them into one discussion, because they’re both essentially saying the same thing. And that same thing is this: How dare you, Justice Gorsuch, say that you’re a textualist! How dare you say that you’re following in the footsteps of Justice Scalia! What you’re doing is no such thing! What you’re doing is judicial lawmaking at its worst!
Both of the dissents point out the general rule we discussed above, which says that when you’re interpreting a law, you’re supposed to give the words the ordinary meaning that they would have had when the law was written. And in 1964, according to the dissents, if you surveyed all the Congresspeople responsible for passing the Civil Rights Act, not one of them would have understood “sex” to include sexual orientation or identity. If that’s the case, then the majority opinion isn’t an interpretation at all, it’s the Supreme Court writing a new law. It’s not textualism, it’s a judicial creation, an act of judicial lawmaking, similar to the accusations people threw at the Miranda decision. Incidentally, it’s the same argument that people threw around about Obergefell v. Hodges, the decision that guaranteed the fundamental right to marry to same-sex couples in 2015.
This being the case, the solution, in the dissenters’ view, is for the Supreme Court to stay out of the matter. No matter how much the dissenting justices might agree with the outcome—and they all seem to agree with it, at least in principle—in their view, it’s not their place to rewrite Title VII to say something that it didn’t say when it was written in 1964. So, as you can see, this case actually ends up being more about the policies and theories of the justices than it does about individual liberties.
Let’s sum up the actual conflict here: the majority believes that when Title VII prohibits discrimination “because of sex,” it also prohibits—and has always prohibited—discrimination because of sexual orientation or identity. The dissenters, by contrast, believe that Title VII does not mention sexual orientation or identity at all, and no matter how much we might wish that was different, it’s Congress’ job, not the Supreme Court’s, to rewrite the Civil Rights Act if such changes are appropriate. In the dissents’ view, the Supreme Court should stay out of the way until then, and let Congress do its job.
Now, let’s assume, for argument’s sake, that the dissents are right, and that the majority opinion is creating new law. If that’s the case, what are the pros and cons? Well, the main pro to the majority approach is that the Supreme Court can do in one day what it might take Congress years, or even decades, to accomplish. And to many, this ability is fundamentally important. After all, imagine if the Supreme Court had stayed put on the issue of segregation. How long would it have taken Congress to make the kind of changes that Brown v. Board of Ed. did? A few years? Decades? Would it ever have happened? How long are people supposed to wait to receive the equal protection that our law commands?
On the other hand, it is potentially dangerous to have any branch of government taking power that belongs to another. We’ve already talked about what happens if the president starts taking away Congress’ power to make laws. That’s potentially frightening, but at least the president is an elected official. If he crosses the line, he can be removed from office. The Supreme Court is made up of 9 unelected bureaucrats who serve for life. They’re nearly impossible to get rid of. If they’re allowed to make the law, then we don’t have a democracy, we have, at best, an oligarchy.
My hope is that we can all recognize that both ends of this spectrum are legitimate, and that both sides are concerned with important political and social issues. Where you draw the line is up to you, so long as you recognize that a line exists. And no matter how you feel about this particular issue, recognize that there will come a time, maybe soon, when you fall on the other side of it, ideologically-speaking. When that time comes, we should all be prepared to reexamine our beliefs and not allow ourselves to become entrenched in one particular outlook or worldview. The law hasn’t yet created, at least to my knowledge, one ideology or system that solves all problems. With that said, why not listen to what other people have to say?
That’s what I intend to do, and I hope you’ll join me.
Ok, that’s enough for this summary, which was supposed to be brief and ended up being anything but. As always, don’t forget to follow the blog on social media using the links at the top right. And if you have comments, concerns, suggestions, or anything else, check out the contact page and send me a message directly.