Earlier today, I published two posts on yesterday’s Supreme Court decision on LGBTQ rights. The first post addressed the politics of the decision and what it means for white evangelical support for Donald Trump. The second post dealt with the religious liberty issues at stake. I encourage you to look at them to get up to speed. Here and here.
In this third post, I want to think historically about both the majority and dissenting opinions.
Over at Think, Jessica Levinson, a law professor at Loyola Law School in Los Angeles, explains the conservative judicial philosophy Justice Neil Gorsuch employed in coming to his decision in Bostock v. Clayton County, Georgia and the other consolidated cases. Title VII of the Act forbids “discrimination because of race, color, religion, sex , or national origin.” The debate, of course, is over the meaning of the word “sex.” Gorsuch interpreted “sex” to cover LGBTQ rights.
In another piece, Levinson describes Gorsuch’s textualism. She writes,
Typically, conservative judges and lawyers adhere to the idea that in determining the meaning of words in a law, you look only at those words. You do not look at the context in which the law was passed, or congressional intent. This is called textualism.
No historian would treat a text this way. Frankly, I am not entirely convinced that Levinson offers an accurate description of how most textualists interpret a text. As we will see below, it is certainly not how Justice Samuel Alito or Justice Brett Kavanaugh understand textualism.
But historical context can also be a tricky thing. Gorsuch appears to have ignored it. He writes in his majority opinion:
Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids
Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination of the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statue give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.
A couple of quick observations about these two paragraphs:
- Does the meaning of a word really exist outside of its historical context? Are we to assume that all words have universal meanings across time? A historian would answer both questions with an emphatic “no.” Historians do not subscribe to the kind of textualism that Gorsuch describes here.
- Is Gorsuch correct when he says that the “those who adopted the Civil Rights Act” could never have imagined it being applied to the gay community? This is an honest question. I am assuming Gorsuch is correct, but I am not up to speed on the scholarship here.
In their dissenting opinions, Samuel Alito and Brett Kavanaugh also appealed to the text of the Civil Rights Act of 1964, but they interpreted the meaning of the word “sex” in historical context.
Here is Alito:
Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on any of the five specified grounds: “race, color, religion, sex [and] national origin. Neither “sexual orientation” nor “gender identity” appears on that list.
Alito argues that unless the document specifically says “sexual orientation” or “gender identity,” the Civil Rights Act could not have encompassed these things. He suggests that “sexual orientation” and “gender identity” do not fall under the category of “sex.”
Alito challenges Gorsuch’s textualism with the ideas of the late Antonin Scalia:
The Court attempts to pass off its decision as the inevitable product of the textualist school of statutory interpretation championed by our late colleague Justice Scalia, but no one should be fooled. The Court’s opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated–the theory that courts should “update” old statues so that they better refelct the current values of society.”
Alito argues that we need to understand the meaning of the word “sex” in the context of the 1960s. He writes:
Determined searching has not found a single dictionary from that time that defined “sex” to mean sexual orientation, gender identity, or “transgender” status. In all those dictionaries, the primary definition of “sex” was essentially the same as that in the then-most recent edition of Webster’s New International Dictionary (2d ed. 1953): “[o]ne of the two divisions of organisms formed on the distinction of male and female.”
Thus when textualism is properly understood, it calls for an examination of the social context in which a statue was enacted because this may have an important bearing on what its words were understood to mean at the time of enactment. Textualists do not read statues as if they were messages picked up by a powerful radio telescope from a distant and utterly unknown civilization. Statutes consist of communications between members of a particular linguistic community, one that existed in a particular place and at a particular time, and these communications must therefore be interpreted as they were understood by that community at that time.
For this reason, it is imperative to consider how Americans in 1964 would have understood Title VII’s prohibition of discrimination because of sex. To get a picture of this, we may imagine this scene. Suppose that, while Title VII was under consideration in Congress, a group of average Americans decided to read the text of the bill with aim of writing or calling their representatives in Congress and conveying their approval or disapproval. What would these ordinary citizens have taken “discrimination because of sex” to mean? Would they have thought that this language prohibited discrimination because of sexual orientation or gender identity?
The answer could not be clearer. In 1964, ordinary Americans reading the text of Title VII would not have dreamed that discrimination because of sex meant discrimination between sexual orientation, much less gender identity. The ordinary meaning of discrimination because of “sex” was discrimination because of a person’s biological sex, not sexual orientation or gender identity.
Alito is writing like a historian here. He wants to understand the 1964 Civil Rights Act in context. This is historical thinking 101. But while judges use historical thinking skills, they are not historians. They are tasked with applying the past to the present.
Brett Kavanaugh’s dissent is shorter, but it also draws on historical context. Here is a taste:
As to common parlance, few in 1964 (or today) would describe a firing because of sexual orientation as a firing because of sex. As commonly understood, sexual orientation discrimination is distinct from , and not a form of, sex discrimination.
[The majority opinion rewrites history. Seneca Falls was not Stonewall. The women’s rights movement was not (and is not) the gay rights movement, although many people obviously support or participate in both. So to think that sexual orientation discrimination is just a form of sex discrimination is…a mistake of history and sociology.
Again, any historian would have to agree, to some extent, with Kavanaugh’s logic. We try to get our students to see that Seneca Falls and Stonewall were indeed different movements in the same way that the American Revolution, the French Revolution, and the Russian Revolution were fundamentally different “revolutions.” We resist the social scientist’s tendency to clump all “revolutions” or “reform movements” together. Each movement took place in a particular time and place amid a different set of circumstances.
At the same time, we also treat Seneca and Stonewall as part of a larger story of American reform. It is appropriate, at times, to talk about common themes–such as the appeal to the ideas of the Declaration of Independence–that drive this larger and broader story.
But, again, historians are not justices. We are not primarily in the business of telling people what to do with the information we provide and the skills we teach. Kavanaugh was a history major at Yale. During his years studying history, he no doubt learned about Seneca Falls and Stonewall. He also learned to think critically, make an argument, understand historical context, and reflect on the many ways the past relates to the present. He is now using those skills, guided by a particular judiciary philosophy, to make Supreme Court decisions. His professors at Yale taught him these skills, but they could not tell him how to use them in service to the law. (Although I am imagining that some of them tried).
What strikes me about yesterday’s Supreme Court decision is the fact that it played out, at least in the opinions, as a debate over how to interpret Antonin Scalia’s judicial philosophy . This happened because Chief Justice John Roberts assigned the majority opinion to Gorsuch rather than to one of the Court’s liberal justices.
If Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, or Elena Kagan wrote the majority opinion, I imagine it might have also appealed to historical context, but in a much broader way. Levinson suggests what such an interpretation of the Civil Rights Act of 1964 might look like in this case if one of the liberal justices had weighed-in:
Liberal judges and lawyers, however, generally believe that it is appropriate to look beyond the words of the law and at the history and context around the law. But there was no such thing as sexual orientation protections in the 1960s, when the Civil Rights Act was passed, so “sex” in the history and context of the law was not meant to apply to LGBT Americans.
As a matter of policy, LGBT rights should be situated clearly within the larger struggle for civil rights, and discrimination on the basis of gender identity or sexual orientation should be outlawed in every workplace in the nation.
Again, context is tricky and this case shows that much of the law rests on how much weight a given justice gives to this important “C” of historical thinking.