- - Tuesday, June 23, 2020

Bostock v. Clayton County, Georgia, the U.S. Supreme Court ruling issued last week, will forever change employment law. 

In a decision that defies logic (and the dictionary), Justice Neil Gorsuch and five of his colleagues found that “sex” and “sexual orientation” and “gender identity” are all interchangeable for employment law purposes. The good news is, Justices Samuel Alito and Brett Kavanaugh each penned blistering dissents that may eventually form the basis of a decision to overturn the Bostock ruling at some point in the future.

At issue was a simple question: Does Title VII of the Civil Rights Act of 1964 — which prohibits employment discrimination on the basis of race, color, religion, sex and national origin — also prohibit such discrimination on the basis of sexual orientation and gender identity?

Justice Gorsuch knows he sits in the seat once held by the late Antonin Scalia. He knows the seat was held open in hopes that a Republican candidate would win the presidential election of 2016 and win the right to nominate a justice in the mold of Scalia. He knows the expectations that accrue to the holder of that particular seat on the court.

So it is more than distressing that Justice Gorsuch deliberately chose to tip his hat to “textualism,” one of Scalia’s favored themes, as the means he used to arrive at his conclusions: “This court normally interprets a statute in accord with the ordinary public meaning of its terms at the time of its enactment,” he wrote. “To do so, we orient ourselves to the time of the statute’s adoption, here 1964, and begin by examining the key statutory terms in turn before assessing their impact on the cases at hand and then confirming our work against the court’s precedents.”



But then, as Justice Alito’s dissent notes, Justice Gorsuch’s opinion goes off the rails — because Justice Gorsuch then finds that “sex” and “sexual orientation” and “gender identity” all mean the same thing for purposes of employment law.

Justice Alito’s dissent rejects this: “If every single living American had been surveyed in 1964, it would have been hard to find any who thought that discrimination because of sex meant discrimination because of sexual orientation — not to mention gender identity, a concept that was essentially unknown at the time.

“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 statutes so that they better reflect the current values of society.”

Justice Alito goes on to note that Congress itself — which, under our Constitution, is the only entity authorized actually to make law — knows better than to think that “sex” means the same thing as “sexual orientation.” Otherwise, he asks, why would some members of Congress have been trying to amend that very law to include the terms “sexual orientation” and “gender identity” for the last four decades? The fact that they were trying to add those terms means, by definition, they did not believe the law already protected them.

Justice Kavanaugh, for his part, goes for the jugular in the very first sentence of his dissent: “Like many cases in this Court, this case boils down to one fundamental question: Who decides?” Then he answers himself: “Under the Constitution’s separation of powers, the responsibility to amend Title VII belongs to Congress and the President in the legislative process, not to this Court.”

Of course, Justice Kavanaugh is correct. He cites Alexander Hamilton, in Federalist No. 78: “[F]ederal judges exercise ‘neither Force nor Will, but merely judgment.’”

Justice Kavanaugh, like Justice Alito, notes the several failed attempts to amend the law to include protections for “sexual orientation” and “gender identity,” then continues: “In the face of the unsuccessful legislative efforts (so far) to prohibit sexual orientation discrimination, judges may not rewrite the law simply because of their own policy views. Judges may not update the law merely because they think that Congress does not have the votes or the fortitude. Judges may not predictively amend the law just because they believe that Congress is likely to do it soon anyway.”

Why not? Because if judges were to begin writing law, the separation of powers between the legislative and judicial branches would crumble, leaving legislators weakened and judges super-powered: “As James Madison stated: ‘Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator.’”

It’s not at all what we might have read if the dissent had been written by the man he replaced, the late Justice Anthony Kennedy.

While many conservatives will, no doubt, be angered that Justice Gorsuch — a justice they labored to elevate to the Supreme Court — has turned his back on what they wrongly believed was a shared understanding of the U.S. Constitution, some will also recognize how important it was to work to elevate the other. In this dissent, Justice Kavanaugh shows himself to be worthy.

In the future, Justice Gorsuch, leave the activism to us.

• Jenny Beth Martin is honorary chairman of Tea Party Patriots Action.

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