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07/03/2020

Andrew Koppelman: Bostock, LGBT Discrimination, and the Subtractive Moves
Michael Ramsey

Andrew Koppelman (Northwestern University School of Law) has posted Bostock, LGBT Discrimination, and the Subtractive Moves (Minnesota Law Review Headnotes, forthcoming) (34 pages) on SSRN.  Here is the abstract:

In Bostock v. Clayton County, the Supreme Court held that Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination in employment, covers discrimination on the basis of sexual orientation and gender identity. The dissenting Justices, following the reasoning of several Court of Appeals judges, embraced a series of subtractive argumentative moves in order to argue that the statute does not prohibit discrimination that is explicitly within its scope, and which is part of the mischief that the statute aims to remedy.

This article catalogues and critiques the subtractive moves. One may focus on (1) the law’s prototypical referent, or (2) the categories of objects that it happens to bring to mind, or (3) distinctions that feel familiar but which do not appear in the statute, or (4) formalist exceptions that are unrelated to the law’s language, or (5) the general expectations that were part of the law’s cultural background. One may also (6) claim that the law, read in its cultural context, simply doesn’t mean what it literally says. Each of these reaches outside the statute in order to defeat the law’s literal command. This strategy maximizes judicial discretion and betrays the promise of textualism.

Via Larry Solum at Legal Theory Blog, who comments:

Highly recommended, but the assumption that textualism is a form of literalism is surely wrong.  Textualists aim to recover the communicative content conveyed by the text to its intended readership, not the literal meaning or sparse semantic content of the text considered acontextually.  Download it while it's hot!