In a 6-3 opinion, authored by Justice Neil Gorsuch, the Supreme Court has brazenly rewritten, by judicial fiat, a portion of the 1964 Civil Rights Act so that its prohibition on employment discrimination “because of sex” now includes sexual orientation and gender identity.
It doesn’t matter, the opinion argues, that neither the members of Congress who passed the law, nor any rational person reading it back then, would have understood that discrimination because of sex was a category that included anything other than biological sex. Gorsuch insists, along with Chief Justice John Roberts, and liberal justices Ruth Bader Ginsburg, Sonia Sotomayor, Stephen Breyer and Elena Kagan, that the term is broad enough in its ordinary meaning to encompass sexual orientation and gender identity.
Why? Because, as the majority’s theory goes, you can’t discriminate against an employee on the basis of sexual orientation or gender identity without taking the employee’s biological sex into account. They go together, not because they are all biological concepts, but because you can’t decide that you won’t hire a male employee who is attracted to other men (or a male who identifies as a female) without first deciding the biological sex of the employee. The decision to discriminate on the basis of sexual orientation or gender identity, therefore, is “inextricably bound up with sex.”
Justice Samuel Alito, in dissent, harshly rebuked the majority opinion at every turn.
“The arrogance of this argument is breathtaking,” the justice wrote. “The Court’s argument is not only arrogant, it is wrong, it fails on its own terms. ‘Sex,’ ‘sexual orientation,’ and ‘gender identity’ are different concepts, as the Court concedes.”
“Without strong evidence to the contrary (and there is none here), our job is to ascertain and apply the ‘ordinary meaning’ of the statute. And in 1964, ordinary Americans most certainly would not have understood Title VII to ban discrimination because of sexual orientation or gender identity.”
Alito was especially irked that the majority invoked the late Justice Antonin Scalia’s emphasis on giving the text of a statute its ordinary meaning to reach the exact wrong conclusion.
“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.”
Alito warns that the majority’s opinion will have far-reaching consequences in cases affecting other hot button issues such as bathrooms, locker rooms, women’s sports, college housing, employment by religious organizations, conscience in healthcare, free speech and future constitutional claims.
“Although the Court does not want to think about the consequences of its decision, we will not be able to avoid those issues for long. The entire Federal Judiciary will be mired for years in disputes about the reach of the Court’s reasoning,” he wrote.
The majority opinion claims to be an exercise in humility. Alito excoriated that claim.
“[T]he Court makes the jaw-dropping statement that its decision exemplifies ‘judicial humility.’… If today’s decision is humble, it is sobering to imagine what the Court might do if it decided to be bold.”
Justice Alito’s courageous dissent resembles some of the famous dissents by Justice Scalia over the years as he watched Supreme Court majorities usurp the role of Congress by legislating from the bench. If this decision is any indication, Alito’s voice will, unfortunately, be needed much more in the future.
The case is Bostock v. Clayton County (It also includes the companion cases of Altitude Express v. Zarda, and Harris Funeral Homes v. EEOC)