Legal Theory Debate Rages After High Court LGBT Ruling

In his majority opinion, Gorsuch tossed aside context surrounding the passage of Title VII of the Civil Rights Act of 1964 and explicitly acknowledged its authors could not have intended for the law to extend to gay and transgender people. But he dismissed the “limits of the drafters’ imagination,” saying what matters is what they put to paper, not what they expected those words to do.

“When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest,” Gorsuch wrote. “Only the written word is the law, and all persons are entitled to its benefit.”

To Justice Samuel Alito, Gorsuch’s opinion is a “pirate ship,” flying a “textualist flag” but presenting an argument that reimagines the statute to reflect current prevailing views, rather than those at the time the law was drafted.

Alito suggested in a fiery dissent that textualism, properly understood, means interpreting laws by looking to what their words meant at the time they were enacted. Detailing state laws and social norms that strongly disfavored gay and lesbian people and noting that terms like gender identity had not yet reached public consciousness in 1964, Alito argued reasonable people could not have understood at the time that Title VII would apply to gay and transgender workers.

“Many will applaud today’s decision because they agree on policy grounds with the court’s updating of Title VII,” Alito wrote. “But the question in these cases is not whether discrimination because of sexual orientation or gender identity should be outlawed. The question is whether Congress did that in 1964.”

“It indisputably did not,” the George W. Bush appointee wrote, joined by Justice Clarence Thomas.

Olatunde Johnson, a law professor at Columbia University, said Alito’s approach to textualism means looking to other statutes in place in 1964 to see how the phrase “because of sex” would have been understood.

“That’s a view of textualism that almost freezes the definition of sex in terms of what it meant in ’64,” Johnson said in an interview. 

Taking a similar tack, Justice Brett Kavanaugh emphasized that until very recently nobody thought Title VII’s protections extended to gay and transgender workers. Doerfler said Alito and Kavanaugh both use this “anti-novelty” argument to suggest Gorsuch strayed from what the text truly means.

Kavanaugh called Gorsuch’s approach “literalist” and emphasized courts should look to the “ordinary meaning, not literal meaning” of words when interpreting statutes.

“Citizens and legislators must be able to ascertain the law by reading the words of the statute,” Kavanaugh wrote. “Both the rule of law and democratic accountability badly suffer when a court adopts a hidden or obscure interpretation of the law, and not its ordinary meaning.”

Doerfler said Kavanaugh’s dissenting opinion, while containing some of the trappings of a more modern vision of textualism, brings in understandings of the philosophy that weigh heavily how the drafters viewed the law at issue.

“It sort of hums those new textualist bars, but at the same time at least functionally it seems to put you in much more of the old expected application place where we have a sense of what it is that the drafters of the statute would think that this thing was going to do and then we understand that as pretty severely restricting the linguistic meaning,” Doerfler said.

All three justices appeal either directly or obliquely to Scalia, each suggesting their interpretations square with his view of textualism. Scalia’s name appears 21 times across the three opinions, both in direct invocations and in citations to his old opinions and books. 

Gorsuch’s opinion cited to a Scalia opinion that held Title VII applies to same-sex sexual harassment, while Alito accused the Trump appointee of using a method of statutory interpretation “that Justice Scalia excoriated.”

Bryan Garner, who wrote “Reading Law: The Interpretation of Legal Texts” with Scalia, said on Twitter Monday that Scalia likely would have sided with Alito and Kavanaugh “because the nobody-ever-thought-it-meant-that line of reasoning carried a lot of weight with him.”

Beyond the high-minded arguments of interest primarily to law professors, attorneys and judges, the disagreement expressed in a landmark civil rights opinion could have real bearing on the court and the law more generally.

Nourse said Gorsuch’s opinion makes clear that textualism, while not the neutral philosophy that some of its proponents claim it to be, is not inherently conservative. She said this might make some people more willing to embrace the approach.

“I think it will help people to see what those of us who study this know, which is that textualism is neither liberal nor conservative” Nourse said.

Johnson said the Bostock opinions seem to show the debate is in the minds of the justices, but that just how that debate changes the court — from the arguments parties bring to the decisions the justices hand down — remains to be seen.

“Gorsuch could have embraced the principles that are behind the opinion a lot more forthrightly, but he felt a lot of need to respond to a textualist critique,” Johnson said in an interview. “And so they may be having other debates about who is being more faithful to a conservative legacy and we’ll have to see what those are.”

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