Wednesday Writs: SCOTUS, Gorsuch, and The Amalgamation of Bostock

WW1: It is June. It is Pride Month, and the 26th marks the fifth anniversary of the Obergefell decision recognizing the legal right to same-sex marriage. June is also known to be the time of year SCOTUS releases its biggest decisions. In that spirit, this week gave us Bostock v. Clayton County, Georgia, in which the expected savior of conservative values and the supposed crown jewel of Trump’s first term, Neil Gorsuch, wrote an opinion holding that federal anti-discrimination laws protect LGBTQ+ persons from workplace discrimination. Chief Justice Roberts joined Gorsuch and the four “liberal” justices. “Conservatives” Thomas, Kavanaugh, and Alito dissented, with Kavanaugh writing his own opinion and Thomas joining in Alito’s 142-page screed.

Bostock, our case of the week, is an amalgamation of three cases out of three separate circuits. The named party, Gerald Bostock, was a child welfare advocate in Clayton County, Georgia, where his work earned his office a national award. After over ten years in his position, he was fired when his participation in a gay softball league came to light. The 11th Circuit ruled in favor of Clayton County, finding that Title VII of the Civil Rights Act did not prohibit his firing for being gay.

Donald Zarda lost his job as a skydiving instructor in New York at Altitude Express when he mentioned that he was gay. The Second Circuit upheld his suit, finding that he was protected by Title VII.

Aimee Stephens, a transgender woman working at a funeral home in Michigan, was fired when she told her employer of her intention to live as a woman. The Sixth Circuit found as the Second had, that her firing constituted impermissible sex discrimination under Title VII.

When SCOTUS took up the cases, many feared the worst from a Court that is conservative-heavy. Some thought, at best, Roberts could be a long shot swing vote in favor of recognizing the protections. The 6-3, Gorsuch-authored opinion was a surprise.

At the outset, Gorsuch announces that adverse employment decisions predicated on an individual’s status as LGBTQ+ is discrimination based on sex, in violation of Title VII. The crux of the majority’s reasoning is that firing a person for a trait that would not result in firing a person of the opposite sex with the same trait is sex discrimination. Take this sentence: The woman is attracted to women. Now replace the subject with “man”: The man is attracted to women. If the former leads to firing and the latter does not, the discrimination is sex based.

The employers in the case argued that, because the same would be true for men — i.e., a man attracted to men is also subject to firing–then both sexes are being treated equally and thus, no discrimination. But Gorsuch points out that Title VII protects individuals, not groups. Applying an anti-gay policy to both men and women does not reduce, but doubles, the employer’s liability. In reaching this conclusion the Court grappled with the employers’ contention that extending the term “sex” to cover sexual orientation was a misinterpretation or redefining of the statute’s intended meaning in 1964. Gorsuch accepts, for the sake of argument, that “sex” originally referred, and continues to refer, “only to biological distinctions between male and female.” Even so, Gorsuch continues, the operative clause in the statute is “because of” sex. Court precedent defines “because of” to mean “by reason of” or “on account of.” This does not change the applicable test:

In the language of law, this means that Title VII’s “because of” test incorporates the
“‘simple’” and “traditional” standard of but-for causation. That form of causation is established whenever a particular outcome would not have happened “but for” the purported cause. In other words, a but-for test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause. (Citations omitted.)

Apply this rubric to the underlying facts. “But for” Gerald and Donald being men, would the fact that they are attracted to men have led to their firings? “But for” Aimee having identified as a male at birth, would her living as a woman have led to her firing? The employers do not pretend to answer either of these questions negatively. Therefore, sex is the determining factor in the terminations, which constitutes violation of Title VII (though it need not be the only factor).

The employers also argue that they had no intention of discriminating on the basis of sex, which is distinct from homosexuality. Even accepting such a distinction, Court was unimpressed:

…intentional discrimination based on sex violates Title VII, even if it is intended only as a means to achieving the employer’s ultimate goal of discriminating against homosexual or
transgender employees. There is simply no escaping the role intent plays here: Just as sex is necessarily a but-for cause when an employer discriminates against homosexual or transgender employees, an employer who discriminates on these grounds inescapably intends to rely on sex in its decision making.

In a novel argument, the employers point out that if any of the fired employees in these cases were asked why they lost their jobs, their answers are likely to be “because I’m gay/transgender”, not “because I am a man.” Therefore, they posit, it is clear that their terminations are understood to be on basis of sexual orientation, not sex. In rebuttal, Gorsuch cites Phillips v. Martin Marietta Corp., in which the employer’s policy prohibited the hiring of women with children (but would hire fathers.) A woman not hired because of this policy, when asked why she did not get the job, is likely to say “because I have kids”, not “because I am a woman”, since the policy allows other women to be hired. Nevertheless, the crux of the employment decision was based on sex, regardless of how a person describing the conduct may couch it.

Next, the employers revert to the argument that the drafters of Title VII had no intention of this result. They point to subsequent legislation that added or amended provisions to explicitly include homosexuality or transgenderism and note that no such revision has been made to Title VII, indicating that the law does not extend to those individuals. Gorsuch does not engage in any serious attempt to explain; he does, however, call upon the ghost of Antonin Scalia, and his concurring opinion in 1990’s Sullivan v Finklestein: “Arguments based on subsequent legislative history…should not be taken seriously, not even in a footnote.”

They warn against applying “extratextual consideration” to interpreting the plain terms of a statute. But Gorsuch opines that the Court is doing no such thing here; the plain meaning of sex remains the basis for the analysis. He notes that a result that was perhaps unanticipated at the time of original passage is different from assigning a new meaning to the text.

One could also reasonably fear that objections about unexpected applications will not be deployed neutrally. Often lurking just behind such objections resides a cynicism that Congress could not possibly have meant to protect a disfavored group.

…

But to refuse enforcement just because of that, because the parties before us happened to be unpopular at the time of the law’s passage, would not only require us to abandon our role as interpreters of statutes; it would tilt the scales of justice in favor of the strong or popular and neglect the promise that all persons are entitled to the benefit of the law’s terms.

Defeated in attempts at high legal theory, the employers resort to an appeal to policy. Gorsuch doesn’t bite. “Gone here is any pretense of statutory interpretation; all that’s left is a suggestion we should proceed without the law’s guidance to do as we think best. But that’s an invitation no court should ever take up.”

The employers then wring their hands about the potential consequences of the decision, citing bathrooms and dress codes and then the Hail Mary: religious liberty and the inevitable conflict that may arise from business owners who feel it is their spiritual duty to discriminate against LGBTQ+ individuals. Gorsuch punts on most of these concerns, but suggests that religious based sex discrimination of the type in issue may be protected by other authority.

In his solo dissent, Justice Kavanaugh characterizes, almost apologetically, the majority’s opinion as an attempt to expand a statute rather than interpret it, a job reserved for lawmakers and not judges. He finds that the majority’s understanding of the plain meaning of “sex” as used in Title VII does not comport with “how a reasonable person, conversant with the relevant social and linguistic conventions, would read the text in context.” To illustrate, he posits the interpretation of a law which prohibits vehicles in a park. A literal meaning of vehicles would lead to the law prohibiting baby strollers in the park, although the ordinary meaning of the word clearly would not. Further, he cites Nix v. Hadden, the famous case in which it was held that a tomato, which is literally a fruit, is a vegetable for purposes of customs regulations, in its ordinary meaning. Extending his analysis to the phrase “discriminate because of sex”, Kavanaugh concludes that the ordinary meaning clearly is not “discrimination because of sexual orientation.”

More pointedly, Kavanaugh writes “In common parlance, Bostock and Zarda were fired because they were gay, not because they were men.”

Convincingly, Kavanaugh sets forth another argument. He invokes SCOTUS’s opinions on LGBTQ+ rights over the years–Bowers, Romer, Lawrence, Windsor, Obergfell — and posits the question: If sex discrimination encompasses, and has always encompassed, sexual orientation, why didn’t the Court apply the heightened scrutiny equal protection analysis to which sex discrimination is subject? Did all of the judges involved in those cases simply miss that? He thinks not.

Kavanaugh refuses to sign on to the majority because of his view that the ruling usurps the role of Congress and supplants a democratic victory with a “judicial dictate.” Nevertheless, he concludes his dissent by congratulating the LGBTQ+ community on this momentous occasion:

Notwithstanding my concern about the Court’s transgression of the Constitution’s separation of powers, it is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans. Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result. Under the Constitution’s separation of powers, however, I believe that it was Congress’s role, not this Court’s, to amend Title VII. I therefore must respectfully dissent from the Court’s judgement.

Alito’s dissent: TL:DR.

WW2: In other SCOTUS news, California’s sanctuary law, keeping local law enforcement from helping federal immigration authorities, will stand as the Court refuses to hear the government’s case.

WW3: Last week we speculated that the Court was poised to take up qualified immunity, a current hot button issue in light of recent events. This week, the Court denied cert on all pending QI cases. It could be that the Court anticipates legislative changes in the wake of high profile police killings like that of George Floyd, but the justices did not explain their decision. The lone dissent was Thomas, who would have granted a petition in which a police dog was sicced on a man who’d already surrendered.

WW4: A lawsuit has been filed to challenge Virginia’s new “one handgun per month law”, set to take effect July 1.

WW5: President Trump is suing John Bolton, his former National Security Advisor, to prevent publication of Bolton’s new book chronicling his time in the administration. A copy of the complaint is here.

WW6: Sometimes, the Supreme Court isn’t enough. That’s when you need the Supremer Court. (Note: SATIRE.)