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10/17/2019

Textualism and Sexual Orientation Discrimination
Michael Ramsey

Academic commentators having been arguing that a commitment to textualism should impel Justice Gorsuch to support the plaintiffs in the Title VII sexual orientation discrimination cases.  Richard Primus (Michigan) makes the argument in Politico: The Supreme Court Case Testing the Limits of Gorsuch’s Textualism (with the subhead "If the justice rules against LGBTQ protections, he’ll be admitting that, deep down, he knows his judicial philosophy is deeply flawed."). From the introduction:

[N]obody thinks that Congress in 1964 intended to ban workplace discrimination against LGBTQ persons when it prohibited discrimination “because of … sex.” But the words of the law turn out to do so, regardless of what Congress had in mind. The question before the Supreme Court, therefore, is what prevails when the text of a statute does something that the legislature that passed the statute did not have in mind—and would not have endorsed.

The justice to whom that question is posed most sharply, and who may well cast the deciding vote in these cases, is Justice Neil Gorsuch. Gorsuch may find himself pulled in different directions by two of his strong jurisprudential commitments. On one hand, he generally thinks that courts should not be engines of social change, including by expanding the reach of antidiscrimination laws. Those sorts of changes, he believes, should come from legislatures. But on the other hand, Gorsuch is a proud and articulate textualist. In his oft-repeated view, a court applying a law passed by a legislature should be governed by what the words of the statute actually say, regardless of whether the court thinks the words of the statute embody good public policy. Nor should courts let the meaning of statutory text be overcome by considerations about the general purposes of the law or what members of the legislature said or thought during the lawmaking process. What matters is the text of the statute. And the text that Congress adopted, read literally, covers LGBTQ scenarios.

I think this misunderstands textualism, at least the Scalia-Gorsuch version.  The textualist question is not the meaning of the text in the abstract without reference to context (what Scalia dismissively called "wooden literalism") but rather the meaning of the text within the context in which it was adopted.  The question is what the words meant at the time, not what they mean today.

In considering this question, it is surely relevant to consider what people at the time of enactment thought the words meant.  It's not conclusive, but it's strongly indicative.  Indeed, textualist originalists do this routinely when thinking about the meaning of constitutional phrases, and older statutes should be treated similarly.

Thus it is relevant, not that the enacting Congress did not intend to ban sexual orientation discrimination, but that Congress did not think its text had banned sexual orientation discrimination (nor, so far as I know, did anyone else at the time).

Indeed, the idea that a prohibition on discrimination on the basis of sex is "literally" a ban on sexual orientation discrimination seems a very recent discovery (even though sexual orientation discrimination has a long and sad history).  As Charles Lane observes in this account of the case, A more appropriate target for the LGBTQ discrimination case: Mitch McConnell, "Congress for decades after 1964 acted as though it had not banned job discrimination against LGBTQ people. Starting in 1974, lawmakers repeatedly introduced bills to add sexual orientation to Title VII, including in almost every session after 1994. ...  If Title VII’s reference to “sex” already incorporated sexual orientation and gender identity, then all of this was just wasted effort — as were state nondiscrimination measures." (State nondiscrimination laws routinely ban discrimination on the basis of sex and and on the basis of sexual orientation).

Further, the proposed Equal Rights Amendment would have banned discrimination "on account of sex."  All sorts of fanciful sky-will-fall arguments were brought against the proposed Amendment, but as far as I know opponents did not seriously claim the Amendment would ban sexual orientation discrimination (and if they had, I'm sure its proponents would have sharply denied it).  And when the issue of sexual orientation discrimination first came to the Supreme Court in Bowers and Lawrence, it was not thought that the Court's prior decisions invalidating sex discrimination made these easy cases.

So this is not a situation merely of Congress not thinking carefully about the text it was enacting.  It's a situation of essentially no one for decades after the enactment thinking the text had the meaning Professor Primus now thinks is self-evident and unambiguous.  (And, I assume, there's also no record of anyone prior to the enactment thinking that sex discrimination included sexual orientation discrimination).

I would not say that evidence of this sort should always be conclusive for a textualist (although it's surely relevant).  It's possible that a text could be so clear that no amount of contrary contemporaneous understanding could overcome its literal meaning.  But in this case the text seems to be not as clear as Professor Primus contends.  As commentators including Ed Whelan (at Bench Memos) and Paul Mirengoff (at Powerline) -- and Andrew Hyman on this blog -- have argued, discrimination on the basis of sex might just mean narrowly discrimination against women (or men) for being women (or men).  Indeed, they argue it self-evidently means this.  But one need not go that far in order to find the evidence of contemporary understanding highly persuasive.

In sum, looking at the way a statutory phrase was consistently interpreted at the time of its enactment is not contrary to textualism; it's part of textualism (or rather, it's part of textualist originalism, which is what Justice Gorsuch embraces).  How much the contemporaneous understanding should count, and how clear an apparently contrary text must be, are questions of degree that may divide textualists.  But in any event I do not see that Justice Gorsuch's principles oblige him to favor the plaintiffs.