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02/08/2021

Mitchell Berman & Guha Krishnamurthi: Bostock was Bogus
MIchael Ramsey

Mitchell N. Berman (University of Pennsylvania Carey Law School) & Guha Krishnamurthi (South Texas College of Law Houston) have posted Bostock was Bogus: Textualism, Pluralism, and Title VII (28 pages) on SSRN.  Here is the abstract:

In Bostock v. Clayton County, one of the blockbuster cases from its 2019 Term, the Supreme Court held that federal antidiscrimination law prohibits employment discrimination on grounds of sexual orientation and gender identity. Unsurprisingly, the result won wide acclaim in the mainstream legal and popular media. Results aside, however, the reaction to Justice Neil Gorsuch’s majority opinion, which purported to ground the outcome in a textualist approach to statutory interpretation, was more mixed. The great majority of commentators, both liberal and conservative, praised Gorsuch for what they deemed a careful and sophisticated—even “magnificent” and “exemplary”—application of textualist principles, while a handful of critics, all conservative, agreed with the dissenters that textualism could not deliver the outcome that the decision reached.

This Essay shows that conservative critics of the majority’s reasoning were correct—up to a point. Specifically, it argues that Title VII’s ban on discrimination “because of” an employee’s “sex” does not cover discrimination because of their sexual orientation as a matter of “plain” or “ordinary” meaning. Further, it demonstrates that Gorsuch’s effort to establish that result as a matter of “legal” meaning wholly fails because it depends upon a fatally flawed application of the “but-for” test for causation, one that flouts bedrock principles of counterfactual reasoning. It follows that if a textualist approach to statutory interpretation is correct or warranted, then Bostock was wrongly decided. However, if Bostock was rightly decided, then it must follow that textualism is wrong or misguided. This Essay endorses the latter possibility, explaining that the dominant American approach to statutory interpretation is neither textualist nor purposivist but pluralist. It concludes by drawing powerful but previously unnoticed support for pluralism from Justice Samuel Alito’s principal dissent.