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11/21/2019

Robert George on Textualism in the Title VII Cases
Michael Ramsey

At National Review, Robert P. George (Princeton): Counterfeit Textualism.  From the beginning: 

In 1964, Congress adopted Title VII, which forbids employers to discriminate based on sex. No one suggests that any member of Congress or the public then understood Title VII to ban discrimination based on “sexual orientation” or “gender identity.” Did generations of Americans miss something hidden in plain sight? Justice Elena Kagan thinks so. And she believes she can prove it with a knockdown “textualist” argument. But that argument fails for a decisive reason — one foreshadowed by Justice Neil Gorsuch’s expert dismantling of Kagan’s analysis in an earlier anti-discrimination case, Masterpiece Cakeshop v. Colorado Civil Rights Commission.

In the Title VII cases, Kagan proposes to test for sex discrimination by asking what would happen if an employee’s sex were flipped and all else were held constant. Thus, she would say, a company that fires Riley for being a woman who dates women is discriminating based on sex, because it would have kept Riley on if she were a man who dates women.

Clever, right? But the argument is fallacious. If it seems like a knockdown, that’s only because the objectionable moves were made offstage and then smuggled into the argument’s setup, diverting our gaze from the only fair reading of Title VII.

The whole appeal of Kagan’s argument is that it purports to flow directly from the text (“discriminate”), without any contestable moves along the way. Once you see that this is false, the argument loses all appeal, and its proponents have to fall back on dubious premises that cut against the only reasonable reading of the text. As we’ll see, the “textual” part of Kagan’s “textualist” case is doing no work whatsoever.

The hypothetical scenario described above doesn’t actually hold “all else constant.” In changing Riley’s sex while holding constant the sex of Riley’s dating partners, it flips a second factor, too: Riley’s “sexual orientation,” which has gone from homosexual to non-homosexual (or, if you prefer, from “gay” to “straight”).