The Supreme Court’s Monday decision in a job discrimination case is one of the worst pieces of robed sophistry since Chief Justice John Roberts invented a new meaning of the word “tax” to save Obamacare. As legal reasoning goes, it is garbage.
In a 6-3 decision penned by Justice Neil Gorsuch, the court ruled in Bostock v. Clayton County that when Title VII of the Civil Rights Act of 1964 banned employment discrimination based on “sex,” it also forbade discrimination based on sexual preference or sexual identity. This decision flies in the face of 56 years of copious evidence that Title VII did no such thing.
Before looking at the details, please allow a disclaimer. If I were in Congress and were asked to amend Title VII to outlaw employment discrimination against homosexuals, then as long as there were a clear carve-out for faith-based employers, I would unreservedly vote for such a bill. That, though, is exactly the point: Title VII does not already outlaw such discrimination, which is why it would take an act of Congress to forbid it. That is precisely why Congress has introduced bill after bill to do just that: To change a law, one must actually, yes, write a new law, not just rely on judges to invent, from thin air, new meanings for old phrases.
Yet, as Justice Brett Kavanaugh notes in one of two excellent dissenting opinions (Justice Samuel Alito wrote the other, even better one), “Although both the House and Senate have voted at different times to prohibit sexual orientation discrimination, the two Houses have not yet come together with the President to enact a bill into law.”
Thus, the law still should stand as it has been understood, almost universally, for 56 years. Yet, ludicrously, the court majority asserts that “an employer violates Title VII when it intentionally fires an individual employee based in part on sex [my emphasis added]. It makes no difference if … the employer treated women as a group the same when compared to men as a group.”
Come again? “Sex” is indisputably a physiological factor. Sexual orientation may not be, and psychological sexual identity may not be, but sex itself — the state of being, which is at issue here, not the act of coitus — is entirely binary (except in exceedingly rare cases related to what once was known as hermaphroditism). If the employer treats a woman (for employment purposes) the same as a man, then, by definition, the employer is not discriminating on the basis of sex.
Using irrefutable logic, Kavanaugh explains: “Consider the employer who has four employees but must fire two of them for financial reasons. Suppose the four employees are a straight man, a straight woman, a gay man, and a lesbian. The employer with animosity against women (animosity based on sex) will fire the two women. The employer with animosity against gays (animosity based on sexual orientation) will fire the gay man and the lesbian. Those are two distinct harms caused by two distinct biases that have two different outcomes.”
To say that because sexual orientation is related to sex, it is the same thing as sex, is as nonsensical as saying that a square and a rectangle are the same thing for painting purposes because both have four sides.
Laws should be interpreted according to the generally understood and understandable public meaning at the time they were adopted. Otherwise, the meaning of laws might change willy-nilly with the adoption of new idioms or even slang. (Imagine the chaos if “cool,” “gay,” “woke,” or even “cougar” appeared in laws from the 1890s but were interpreted by their common usages today.)
All this is important because radically new interpretations of existing phrases can lead to unforeseen consequences. Alito outlined some of them in his dissent, including how this reading of “sex” for employment purposes could also be used not just to allow but to mandate unisex locker rooms, the participation of men in women’s sports leagues, and coed roommates in colleges or to make the use of an undesired personal pronoun a legally punishable offense.
Gorsuch and company should never have approached this judicial Pandora’s box. Implementing a social agenda, even an admirable one, is not a judge’s job. As Alito wrote in his opening sentence, “There is only one word for what the Court has done today: legislation.” And: “A more brazen abuse of our authority to interpret statutes is hard to recall.”
Brazen, and deleterious in both form and function. The justices are courting pandemonium.
