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09/30/2020

Steven Semeraro: Bostock’s Misperceived Quest to Distinguish Title VII’s Meaning From the Public’s Expectations
Michael Ramsey

Steven Semeraro (Thomas Jefferson School of Law) has posted We’re All Originalists Now . . . Or Are We?: Bostock’s Misperceived Quest to Distinguish Title VII’s Meaning From the Public’s Expectations (Hofstra Law Review, forthcoming) (70 pages) on SSRN.  Here is the abstract:

Two principal tenets underlie originalism-textualism: First, judicial interpreters of a statute should not use modern values to supplant original meaning because the law should change only through democratic processes. Second, original meaning is limited to the intersubjective original understanding that a reasonable reader would draw from a statute’s text. Meaning does not include anyone’s extratextual subjective expectations about how a statute should apply.

The divided Bostock Court’s decision that Title VII prohibits sexual orientation and gender identity discrimination reveals a contradiction between originalism-textualisms dual tenets. The mid-1960s public’s expectations about how Title VII would apply to sexual orientation and gender identity discrimination are both (1) irrelevant to the original public meaning (as the majority held) and (2) so sacrosanct that an interpreting court must apply them no matter how horribly wrong the prevailing views of that period were (as the dissenters contended).

Rather than grapple with this contradiction, the Justices simply privileged one tenet or the other. Despite a great deal of thrust and parry, their opinions never engaged the core disagreement over how an interpreting court should distinguish intersubjective original public meaning from individuating subjective expectations about how to apply the statute.

This issue goes to the heart of originalism and demands more attention. Originalist scholars reference the question, but their theoretical analysis does not resolve concrete cases in which an interpreting court tries to avoid imposing modern values while simultaneously refraining from illegitimately converting then-prevailing subjective desires and prejudices into binding law.

The scholarly originalist community’s initial negative reaction to Bostock v. Clayton County, Georgia, suggests that the fear of modern values gaining hold through anti-democratic means is the more important tenet. But given the dramatic and definitive change in the prevailing views on homosexuality and gender identity between Title VII’s adoption and today, the greater threat appears to be that unwritten prejudices of the past would override intersubjective meaning and illegitimately bind future generations.

Two methods could potentially resolve this contradiction within originalism-textualism. First, Justice Kavanaugh’s use of linguistic categories in his Bostock dissent can be read as an attempt to resolve the conflict by using how we talk as a stand-in for objective meaning. This approach fails. Although the existence of linguistic categories is objective, the categories arise subjectively. Allowing the way people talk to blur the meaning of a clear text would undermine both of originalism’s tenets by allowing modern judges to (1) change the meaning of objective text, perhaps to conform to their own values, by selecting among linguistic categories, and (2) imbue extratextual subjective beliefs held only by some people with the authority to bind future generations.

Second, and more promising, originalist scholars have provided hypotheticals in which an interpreting court could legitimately take account of modern learning. If the original populous made a mistake of objective fact, originalists have acknowledged, a court may correct that mistake when interpreting the text’s original meaning. But this window to modern learning is strictly limited. It only applies to factual errors. An interpreter may not consider changes in the policies that people believe best advance societal interests. Since the relevant changes under Bostock’s facts between 1964 and today relate to our subjective views about homosexuality and gender identity, rather than factual errors, originalists appear to have concluded that the interpretive window to modern learning should have remained closed.

Aspects of language theory show, however, that changes in values can be indistinguishable from mistakes of fact. No hard break separates these categories for us. Whether a particular issue is designated one or the other is a choice we make. Not all disputes that we call factual can be resolved definitively. Yet, we can agree that certain concepts that we call values are true with an extremely high degree of consensus. Whether an interpreting court should open the interpretive window to modern learning should turn on the definitiveness of the mistaken nature of the public’s original expectations, not whether a mistake is delineated as one of fact or value. To be sure, close cases will pose interpretive challenges over the definitiveness of the mistake. But such challenges are nothing new, and Bostock is not a close case.

To avoid an irresolvable contradiction between its principal tenets, originalism must accept that values can be mistaken in the same way as facts. The interpretive window should open to correct mistaken values when they have changed in a way, as in Bostock, that is as definitive as what we normally think of as a mistake of objective fact.