Bostock v. Clayton: The Silence of the Libs.

In Bostock v. Clayton, the Supreme court decided that discrimination against gay employees violates Title VII of the Civil Rights Act of 1964. (The case also applies to trans employees, but the logic is parallel, so this discussion will refer only to homosexuals.) I don’t know whether the case was rightly decided, but I do not believe the Court’s opinion by Justice Gorsuch makes the case for the decision reached.  And, although Bostock may prove to be as important as Griswold v.Connecticut – even Justice Gorsuch calls it an “elephant” – not one other justice saw fit to offer a concurring opinion. Justice Kavanaugh felt moved to write his own dissent, but the Court’s liberals declined to offer a better case for the result than Justice Gorsuch’s wordplay.  Maybe they were content to take the win, and maybe they didn’t want to rock the boat. But they may come to regret their silence.

Writing for the Court, Justice Gorsuch applies the “but for” test used in other cases where membership in a protected class was not the sole or primary reason for an action challenged under Title VII. Applying that test, Justice Gorsuch reasons that if an employer does not fire women who prefer men, but does fire a man who prefers men, the employer discriminates against that man “because of [his] sex.” As Justice Gorsuch wrote (p. 9) “if changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred.” Sounds fair, but something seems off about it, so let’s test that template.

The Age Discrimination in Employment Act of 1967 tracks the language of Title VII, prohibiting discrimination against an individual “because of such individual’s age.” In most states, people below the age of sexual consent are permitted to work. Presumably, an employer would not fire a sixteen-year-old burger flipper for asking out a sixteen-year-old cashier. But if a fifty-year-old worker did the same thing, the employer might decide not to have a potential pedophile on the payroll. Thus, changing the employee’s age would have yielded a different choice by the employer. By Justice Gorsuch’s reasoning, the older employee would have been fired “because of that individual’s age” and could sue under the ADEA. I find that result troubling, but it fits perfectly into Justice Gorsuch’s “but for” template.

The problem, I believe, lies in the choice of “traits” considered. Justice Gorsuch wrote (pp. 9-10):

Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.

Compare that argument to this one from a hypothetical dissent:

Consider, for example, an employer with two employees, both of whom are attracted to members of their own sex. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires them both, for no reason other than the fact that each is attracted to his or her own sex, the employer does not discriminate against either for traits or actions it tolerates in their colleagues.

As lawyers like to say, Justice Gorsuch “puts the rabbit in the hat” when he chooses preference for a particular sex, as opposed to preference for one’s own sex, as the “trait” shared by the two employees. There is no a priori reason to make that choice, and none is offered. On the contrary, the ADEA example suggests that the choice is ill-advised. The potential pedophile in that example is fired not for preferring nubile teens, a defining trait of the red-blooded cis-het schoolboy, but for age-inappropriate creepiness, something someone of any age can evince (and be fired for).  If every employee of either sex who prefers his or her own sex is treated equally, changing the sex of the employee does not change the choice by the employer.

Justice Alito makes this argument in his dissent (p. 16)

If the employer’s objection to the male employee is characterized as attraction to men, it seems that he is just like the woman in all respects except sex and that the employer’s disparate treatment must be based on that one difference. On the other hand, if the employer’s objection is sexual orientation or homosexuality, the two employees differ in two respects, and it cannot be inferred that the disparate treatment was due even in part to sex.

I believe Justice Alito has the better argument here. (I don’t know why he doesn’t simply reject “prefers men” as a difference rather than dismiss it as not shown to be an operative difference.) In preferring Justice Alito’s analysis, I am not saying that the majority decision is wrong, just that it was poorly defended - and that the liberals really should have spoken up with a less easily refuted rationale.

Justice Kavanaugh’s dissent is also persuasive as a critique of Justice Gorsuch’s opinion. That, too, is not the same thing as being persuasive as to the result, but it does again make louder the silence of the libs.

The Misdirection of “Original Intent.”

I’m guessing you’ve heard the suit joke. Here’s a concise version grabbed from the web:

A man tries on a made-to-order suit and says to the tailor, “I need this sleeve taken in! It’s two inches too long!”

The tailor says, “No, just bend your elbow like this. See, it pulls up the sleeve.”

The man says, “Well, okay, but now look at the collar! When I bend my elbow, the collar goes halfway up the back of my head.”

The tailor says, “So? Raise your head up and back. Perfect.”

The man says, “But now the left shoulder is three inches lower than the right one!”

The tailor says, “No problem. Bend at the waist way over to the left and it evens out.”

The man leaves the store wearing the suit, his right elbow crooked and sticking out, his head up and back, all the while leaning down to the left. The only way he can walk is with a herky-jerky spastic gait.

Just then two passersby notice him.

Says the first, “Look at that poor crippled guy. My heart goes out to him.”

Says the second, “Yeah, but his tailor must be a genius! That suit fits him perfectly!”

The “suit” (no pun intended) in Bostock is “original intent,” a trivially reductive “doctrine,” if it can be called a doctrine at all. All judges are originalists. All agree that words in statutes mean what they “meant” at the time they were used. So, for example, when Queen Gertrude says the lady doth “protest” too much,” she means that she promises too much, because at the time, “protest” meant “promise” (as in “Protestant).” No judge is going to interpret “protest” in an Elizabethan statute to mean “remonstrate” just because that’s what it has come to mean centuries later.

But self-styled “originalists” beg a more subtle question. Very often, the issue in statutory interpretation is not, as Justice Gorsuch calls it (p.4), the “public meaning of its terms at the time of its enactment.”  That meaning is usually clear enough. The real question is whether those words are being used de re or de dicto. The nuances of that distinction are beyond the scope of this essay (and my ken), but the TL;DR is that the same expression can be used either to refer to a certain thing (de re) or to describe an unknown thing (de dicto). The classic example is “John believes that someone is a spy.” We cannot tell from the words themselves whether John believes he knows who the spy is. Is the speaker speaking de dicto (John does not believe he knows) or de re (John has a certain person in mind). 

Context can sometimes resolve the issue. When Glenn Miller’s crooner declares that he’s goin' to Michigan to see the sweetest gal In Kalamazoo, we know he is speaking de re, because he obviously has a certain young woman in mind. (She’s a real pipperoo!)  And when Petruchio says he has come to wive it wealthily in Padua, we know he is speaking de dicto, because we know he is unacquainted with the local social register. But in either of those examples, the actual sentences leave open the question of whether the speaker had a specific person in mind.

Some legal questions turn precisely on the choice between de dicto and de re. We can, for example, interpret the term “cruel and unusual” de re to identify punishments that were thought “cruel and unusual” in 1789 , or we can read it de dicto to describe punishments that are cruel and unusual by the lights of the future society administering them.  Nothing about one interpretation is more “originalist” than the other. Both interpretations would be supported by a 1789 dictionary.  But one interpretation treats the term as an identifier and the other treats it as a descriptor.

When self-styled “originalists” invoke “original meaning,” they are often really saying that they wish to treat statutory words as de re identifiers and not as de dicto descriptors.  Thus, Justice Gorsuch’s fellow “originalist” Justice Alito writes (p.4):

Determined searching has not found a single dictionary from that time that defined “sex” to mean sexual orientation, gender identity, or “transgender status.”

This factoid implies, I believe, that a more modern dictionary might define “sex” more broadly, but it wouldn’t matter to Justice Alito, because, to him, that change would be like the shift in the meaning of “protest.” The counterargument would be that we have since 1964 come to understand that at least some aspects of sexuality are innate and so should benefit from whatever legal provision has been made de dicto for “sex.”

I attribute the tendency toward de re interpretation to a kind of conservatism. As a matter of policy, a de re reading is less likely than a de dicto reading to intrude on legislative prerogatives.  That’s not a bad place to start analysis, but it is only a place to start. 

The Missing Concurrences

Regarding the meaning of “sex” in 1964, Justice Gorsuch was not so sure as Justice Alito about the state of play (p.5):

The only statutorily protected characteristic at issue in today’s cases is “sex”—and that is also the primary term in Title VII whose meaning the parties dispute. Appealing to roughly contemporaneous dictionaries, the employers say that, as used here, the term “sex” in 1964 referred to “status as either male or female [as] determined by reproductive biology.” The employees counter by submitting that, even in 1964, the term bore a broader scope, capturing more than anatomy and reaching at least some norms concerning gender identity and sexual orientation. But because nothing in our approach to these cases turns on the outcome of the parties’ debate, and because the employees concede the point for argument’s sake, we proceed on the assumption that “sex” signified what the employers suggest, referring only to biological distinctions between male and female.

Whoa! For the sake of what argument did the employees “concede” the point? Surely, then can concede that the point is irrelevant to Justice Gorsuch’s argument, as he sided with them. But it is hardly possible that the employees “say” that “sex” may mean more than plumbing but “concede” generally that it doesn’t. 

I mentioned Griswold because six opinions were filed in that case.  Each of the writing Justices wanted to make clear his or her view of why the case should have been decided as it was decided. A concurring opinion in Bostock might have provided a pro-employee template that pedophiles can’t use. I'm not especially worried about pedophiles, but if pedophiles can use a logical template, that template is almost certainly defective. And if the template is defective, the power of the case as precedent is weakened.  

Justice Alito solved the logical problem in a way that comes down against the employees. I would like to have seen a Justice argue that Justice Alito is wrong about what “sex” meant in 1964, and that, even if he is right, the word was used de dicto in the statute and so now should be read to comprehend at least some aspects of sexuality. I cannot say whether that case can be made, but I do wish the Court’s liberals had given it a shot.

Beware of Originalists Bearing Gifts

I must confess a somewhat dark view of Justice Gorsuch’s opinion – and of the liberals’ silence. The opinion looks to me like a Trojan horse. The reliance on the choice of trait for the “but for” argument is so bizarre as to call that test into question entirely. If a “but for” test as presented here would protect pedophiles, then that test must be tweaked to require some level of relevance. But liberals have been winning with the “but for” test for decades, and they may well be loath to suggest that it does not apply here for fear it might not apply somewhere else. Justice Alito’s argument against Gorsuch’s version actually protects the “but for” rationale by showing that it must be used correctly. Still, by misapplying it, I think Justice Gorsuch erodes its authority.

Judge Gorsuch may also be attacking the “disparate impact” analysis of Griggs v. Duke Power Company.  His opinion makes a very big deal of how the statute is about “individuals,” and not classes. Thus, the fact that the employer’s employment practices do not have a disparate impact on men or women is no excuse. If no disparate impact is no excuse, maybe conduct that has such an impact is not actionable. Gorsuch writes (p. 7):

In so-called “disparate treatment” cases like today’s, this Court has also held that the difference in treatment based on sex must be intentional.

But that’s not what those cases say. They say that disparate impact is the “functional equivalent” (Griggs) of intent. One wonders whether the camel’s nose of revisionism has stuck its nose under the disparate impact tent. I can see why the liberals would not want to pull on that thread either, but still, some turf needs to be defended if it is to be retained.

All in all, I was hoping for something better.