June 15, 2020 12:33PM

With Nod To Scalia, Surprise Plain Meaning Carries Day for LGBT Plaintiffs

Today the Supreme Court held that the 1964 Civil Rights Act, by barring discrimination on the basis of sex, also forbids discrimination against gay and transgender employees. “When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest,” Justice Neil Gorsuch wrote for a 6–3 majority that included Chief Justice John Roberts as well as the four liberals. “Only the written word is the law, and all persons are entitled to its benefit.”

As a matter of legal interpretation, the cases show textualism that de‐​emphasizes legislative intent and legislative history, instead looking within the four corners of the statute, does not always favor one side or the other on policy. As a committed textualist, Gorsuch had already signaled at oral argument that he found merit in what I’ve called a “surprise plain meaning” reading of the law, even one that might have shocked the drafters. Critics who discounted Justice Gorsuch’s independence of mind are looking foolish.

When the Court agreed to hear the cases a year ago I wrote:

The strongest case for this reading rests on an ambitious, yet not frivolous, plain meaning approach to Title VII’s text. The law bans any discrimination against an employee “because of… sex.” Now suppose that the employer would never fire Ginger for taking a romantic interest in men, but does fire George when it learns that he does so. It has (the argument goes) treated him differently because of his sex. Similar arguments can reach the case of an employee’s gender identity.

Ranged against this line of argument is precedent as well as, should one choose to give it weight, likely legislative intent. In the years after 1964 courts considered but rejected arguments that the law by its terms covered sexual orientation, presumably inadvertently (since almost no one thinks the lawmakers of that era intended such a result). Much later, when it endorsed the new interpretation, the federal Equal Employment Opportunity Commission called the old precedents “dated.” “Dated” might seem like a pejorative term for “well‐​established,” yet it is true that the Supreme Court in its decision in Price Waterhouse v. Hopkins (1989) did mix things up somewhat by accepting a theory that Title VII covered not just sex but gender “stereotyping.” That might open the door to further evolution in what had not shown itself to be an entirely fixed standard.

Last fall, following oral argument, I wrote:

Of the five conservative Justices, Neil Gorsuch showed himself the most hospitable toward the plaintiffs’ case on Tuesday, and no wonder: as the most committed textualist, he’s the likeliest to see surprise plain meaning as beating legislative history. …

As justices know, this would not be the first branch of employment discrimination law to develop through surprise plain meaning readings. Bans on sexual harassment and sexual stereotyping, for example, were likely neither foreseen nor intended by the drafters of Title VII. But in time they came to be firmly enough established that Antonin Scalia himself wrote an opinion finding the law to cover sexually‐​oriented hazing of a male employee by heterosexual male co‐​workers.

About half the states—as well as many cities and counties—already ban sexual orientation discrimination, and most of these states also ban gender identity discrimination. The plaintiffs say this dispels a parade of horribles since the laws haven’t occasioned a high volume of litigation, or even much social upheaval. Conservatives counter that when such laws are adopted through legislation, critics are often able to obtain concessions, exemptions, and compromises. Not so if the courts reach the destination simply by reinterpreting current law.

Despite the considerable weight of precedent, which often would be enough to sway his vote, Chief Justice Roberts joined the majority in the combined Bostock, Harris, and Zarda cases. Like Gorsuch’s majority opinion, the dissents by Justice Alito, joined by Justice Thomas, and by Justice Kavanaugh all claim the textualist mantle of Justice Scalia. Alito compares the majority opinion to “a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated.” (One complication for this view: Gorsuch relies on Scalia’s pulling a similar move in Oncale, the case that stretched sex discrimination law to cover sexually oriented hazing of one male employee by others.)

Kavanaugh says the majority’s reading accepts, in place of ordinary meaning, a mechanical literalism of which textualists ordinarily know to steer clear, all to spare advocates of extending discrimination law the need to complete a legislative victory that was likely within their reach soon anyway. Alito warns of collateral confusion as litigants try to adapt the same reading to many other statutes relating to sex discrimination. These are powerful points that should give us pause.

As a policy matter, extending anti‐​discrimination law further into private employment decisions invades further the realm of private choice and individual liberty. As Alito notes in his dissent, it is especially hazardous to do so without the sort of conscious legislative back‐​and‐​forth that might result in the negotiation of thresholds and exemptions so as to handle controversial or burdensome cases. In the longer run, when Congress revisits this area in legislation, it will have a chance to rethink these points.