Tuesday, June 16, 2020

Does Justice Gorsuch's Magnificent Opinion in the Title VII Sexual Orientation and Gender Identity Cases Redeem Textualism?

by Michael C. Dorf

I'll start with the most important point: Justice Gorsuch's opinion for the Supreme Court in Bostock v. Clayton County marks a historic victory for LGBT Americans, for civil rights more broadly, and for the rule of law. It rightly joins the canon of landmark gay rights opinions written by Justice Kennedy, for whom both Justice Gorsuch and I clerked many years ago (in different Terms). Indeed, this decision is the first majority opinion in a case vindicating LGBT rights written by any Justice other than Kennedy.

What's more--and I say this with the greatest respect and admiration for my one-time boss--in sheer craftsmanship and with the possible exception of Obergefell v. Hodges (about which more momentarily), Bostock is the best of the bunch. It lacks Justice Kennedy's allergy to the conventional doctrinal categories. In Romer v. Evans, Justice Kennedy did not exactly reconcile what has come to be known as "rational basis scrutiny with bite" with the balance of equal protection case law. In Lawrence v. Texas, he failed to say whether same-sex sexual intimacy is a "fundamental right." There were ways of explaining and justifying what Kennedy wrote, of course. Prof Akhil Amar admirably explained Romer; Prof Laurence Tribe likewise masterfully massaged a fundamental right out of Lawrence. But the scholars' efforts were needed.

Obergefell was different. As I wrote on SCOTUSblog the day after that decision, the dissenters should have had "little cause for complaint" about how Obergefell's "holding fit with conventional constitutional doctrine," because Justice Kennedy's majority opinion said "with admirable clarity that marriage is a fundamental right and that the state ha[d] not offered a sufficient justification for denying it to same-sex couples." Some people may not have a taste for what I called Justice Kennedy's "soaring rhetoric" in Obergefell, but others might reasonably think that a landmark ruling calls for such language.

Justice Gorsuch's prose style differs from Justice Kennedy's. Gorsuch is staccato where Kennedy is legato. But the accumulation of Gorsuch's rapid-fire hypothetical examples in Bostock works extremely well overall. He coins a catchy phrase in rejecting the defendants' argument that discrimination because of sex doesn't include sexual orientation or gender identity discrimination because those are sub-categories that Congress did not single out: There is no "such thing as a 'canon of donut holes,' in which Congress's failure to speak directly to a specific case that falls within a more general statutory rule creates a tacit exception."

Justice Gorsuch's examples are vivid and persuasive. The defendants suppose a hypothetical employer who refuses to hire anyone who self-identifies as gay or trans on a job application, without the employer knowing their sex. In explaining why distinctions drawn on the basis of sexual orientation and gender identity nonetheless necessarily are drawn on the basis of sex, Justice Gorsuch asks the reader to "imagine an applicant doesn’t know what the words homosexual or transgender mean. Then try writing out instructions for who should check the box without using the words man, woman, or sex (or some synonym). It can’t be done." Brilliant! 

And so, having lavishly (but appropriately) praised Justice Gorsuch and his opinion in Bostock, I pose a question for myself. Does the fact that he was convinced by textualist arguments and wrote a highly textualist opinion lead me to rethink my skepticism of the ability of textualism to actually constrain judges--as expressed at greatest length and most recently in the forthcoming Cornell Law Review article by Prof Buchanan and me about which I blogged here? Although I am always open to rethinking my views and changing my mind, the short answer is no. I'll now elaborate.

On its face, Bostock looks like a debate between textualism for the majority and intentionalism for the dissent. Virtually no one in the 1964 Congress intended or expected that Title VII would outlaw sexual orientation or gender discrimination in employment. Thus, the intentionalism case for the dissent is strong. However, Justice Gorsuch says in true textualist fashion that the text, rather than the subjective intentions or expectations of the legislators who enacted the text, controls, and thus the plaintiffs win. The LGBT plaintiffs have textualism to thank for their victory in Bostock, right?

Not so fast. For one thing, as Prof Buchanan and I discuss in our article and as I previously explained in the 1998 Harvard Law Review, for many years now, the chief rival to textualism in statutory interpretation has not been an intentionalism that looks to the legislature's subjective intentions with respect to particular questions but purposivism, which looks to the objective purposes at which the legislature aimed. Although Justice Gorsuch happened to write his opinion in a textualist style, it would have been a matter of child's play to write an equally or more persuasive opinion in a purposivist style. Purposivists agree with textualists that legislators' subjective intentions and expectations do not necessarily control but typically acknowledge greater vagueness in application and their own role in filling in the blanks by extrapolating from the purposes pursued by the legislature as expressed in the statute.

How would a purposivist opinion have looked in Bostock? It would have begun by acknowledging--as the case law generally does--that sex-role stereotyping is a, or even the, central evil at which prohibitions on sex discrimination aim. From there, it is a very short step to saying that discrimination on the basis of sexual orientation or gender identity is sex-role stereotyping. Such discrimination rests on the stereotypes that men should be attracted to women and vice-versa as well as various stereotypes about how people assigned to particular sexes at birth based on their genitalia ought to dress and act.

Scholars like Prof Andrew Koppelman have long argued that anti-LGBT discrimination is sex discrimination using an analogy to Loving v. Virginia, which invalidated an anti-miscegenation law. Conservatives typically pushed back by saying that while anti-miscegenation laws rested on white supremacy, anti-LGBT discrimination didn't rest on patriarchy, so the analogy was superficial and thus flawed. Prof Koppelman and others responded--correctly--that anti-LGBT discrimination nonetheless is sex discrimination because it rests on sex stereotyping.

That's a powerful rejoinder. Although Justice Gorsuch's majority opinion in Bostock adverts to stereotypes in characterizing prior precedents, it doesn't much rely on the sex-stereotyping point. The Loving analogy as it appears in the majority opinion is more formalistic and thus somewhat less persuasive than it would be in a purposivist opinion. Thus, the fact that the Bostock opinion is written in a textualist rather than a purposivist style does not give it special force.

However, my question was not whether textualism is the best way to write an opinion. My question was whether textualism is constraining. And it's possible that Justice Gorsuch's adherence to textualism motivated him to vote for the plaintiffs in Bostock. Textualism could also explain the vote of Chief Justice Roberts, right?

Sure, it's possible, but let's consider a few other possibilities.  Before doing so, let me clarify my critique of textualism. As Prof Buchanan and I say in our forthcoming article, 
we do not mean to stake out a nihilistic position. We acknowledge that in a great many contexts, the law’s content is sufficiently determinate to provide primary actors and government officials with enough guidance to allow the law to play its vital coordination function. We agree with a prominent response to the most extreme claims of legal realism and later critical legal studies: focusing almost exclusively on contested appellate cases provides a misleading picture of the law as a whole.
Sometimes the law's text is even clear in cases that reach the Supreme Court. Bostock is arguably such a case. Thus, when the Court granted cert last year, I wrote a Verdict column saying that the case would put the self-described textualists to the test, precisely because the textualist argument for the plaintiffs is very strong.

But if the textual argument is so strong in Bostock, why wasn't the decision unanimous? Indeed, why did Justice Alito (joined by Justice Thomas) accuse the majority of faux-textualism? "The Court’s opinion is like a pirate ship," Alito charged. "It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated––the theory that courts should 'update' old statutes so that they better reflect the current values of society."

So who are the real textualists? I tend to the view that the majority has the better argument, but then I need an account of why the dissenters didn't see it that way. One possibility is that the text of Title VII really does command the pro-plaintiff result in Bostock but the dissenters were so driven by their ideological motives that they could not bring themselves to vote for an outcome they disdained on policy grounds. That could perhaps explain Justice Alito--who is in some respects the most committed conservative culture warrior on the Court these days--but seems inconsistent with Justice Kavanaugh's concluding statement in dissent, echoing the dissent of Chief Justice Roberts in Obergefell, in disavowing any anti-LGBT animus and expressing sympathy with the policy of the majority opinion. Kavanaugh wrote that
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.
I have no reason to doubt Justice Kavanaugh's sincerity (although I think it unfortunate that he did not acknowledge the equally important victory for transgender Americans). Meanwhile, although Justice Thomas joined Justice Alito's somewhat less gracious dissent, he went out of his way in Lawrence v. Texas to write that he thought Texas's same-sex sodomy prohibition warranted repeal on policy grounds. It would thus be unfair to say that the difference between the majority and the dissent in Bostock was simply a policy disagreement.

But the key word there is "simply." Policy differences alone do not explain the voting pattern in Bostock but they explain it nonetheless. Justice Gorsuch's own opinion shows why.

Early in the Bostock opinion, Justice Gorsuch explains that sex discrimination counts as the reason for an adverse action under Title VII if sex discrimination is a "but for" cause of the adverse action. That does not mean, however, that sex discrimination must be the only cause. There can be multiple but-for causes. Here's his powerful explanation:
Consider an employer with a policy of firing any woman he discovers to be a Yankees fan. Carrying out that rule because an employee is a woman and a fan of the Yankees is a firing “because of sex” if the employer would have tolerated the same allegiance in a male employee. Likewise here. When an employer fires an employee because she is homosexual or transgender, two causal factors may be in play—both the individual’s sex and something else (the sex to which the individual is attracted or with which the individual identifies). But Title VII doesn’t care. If an employer would not have discharged an employee but for that individual’s sex, the statute’s causation standard is met, and liability may attach.
Now let's apply that reasoning to the motives of the conservative Justices. A strong textual argument is a necessary but not a sufficient condition for a conservative Justice voting in a way that runs contrary to a position embraced by the conservative establishment. In addition, the Justice must also feel relatively strongly that the conservative establishment position is misguided. Both a strong textualism argument and a strong policy view are but-for causes of the Justice's votes. If so, then we need not impute homophobia or transphobia to any of the dissenting Justices. It is enough to explain their break with Justice Gorsuch and Chief Justice Roberts to observe that Gorsuch and Roberts are more sympathetic to the policy of LGBT rights than are the dissenters. And I think that's clearly right if we're comparing Gorsuch and Roberts to Alito and Thomas.

If I'm right about all of that--and I am!--then the only seeming outlier is Kavanaugh. I have no reason to think that Kavanaugh is less sympathetic to LGBT equality on policy grounds than are Gorsuch and Roberts. But in Kavanaugh's case we also have a jurisprudential difference. Unlike Alito and Thomas, Kavanaugh acknowledges the strength of the textualist argument for the plaintiffs, but Kavanaugh says that the majority improperly relies on a "literalist" rather than an "ordinary meaning" approach to understanding the original public meaning of Title VII.

Yet if the difference between Kavanaugh, on one hand, and Gorsuch and Roberts, on the other, is the difference between two flavors of textualism, that tends to strengthen rather than undercut the notion that textualism as such has little binding effect--unless, that is, we have some reliable means of distinguishing between literalism and ordinary meaning, and are confident that this means is not itself either a version of some other approach entirely (like purposivism or intentionalism) or a mask for policy preferences. I have seen no evidence that such reliable means exist.

We can and should praise the Gorsuch opinion in Bostock without embracing anything called textualism.