Courts

Neil Gorsuch Lays Landmines Throughout LGBTQ Discrimination Opinion

This good result feels like an attempt to Trojan Horse in some awful stuff.

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(Photo by Win McNamee/Getty Images)

When Rep. Howard Smith added the word “sex” to the Civil Rights Act of 1964, he never intended a result like today’s Bostock opinion. Indeed, Smith never intended any result of the Civil Rights Act, since he added the term as a poison pill intending to derail the effort of racial justice by throwing the concept of gender equality into the mix. But his successful effort to drop that landmine in the middle of the bill didn’t stop the legislation. After years of combatting bias against both minorities and women, the 1964 Civil Rights Act now officially protects the LGBTQ community. All because Smith tried to be too clever by half.

Smith’s shenanigans make today’s opinion all the more meta. A lot of Court observers had girded themselves for a rejection of LGBTQ rights when Bostock finally came down. Personally, I’d expected a bland 5-4 opinion with Roberts writing an opinion that boiled down to “I don’t like it, but we settled gay rights already so let’s please stop dragging my Court into it.” The surprise addition of Neil Gorsuch to a 6-3 opinion sparked an outpouring of relieved excitement amongst liberals. But after the celebrations of the result subside — and none of this should diminish the significance of this victory for the LGBTQ community — the Gorsuch opinion should raise some red flags for what’s coming down the road.

First of all, Gorsuch wrote the opinion. Handing a landmark ruling on civil rights to Gorsuch should tell you there’s some funny business in the offing. This wasn’t handed to the majority’s junior justice for the sake of doing yeoman’s work. In controversial opinions, the median justice might write the opinion to lay out the compromise terms that made the majority, but this opinion doesn’t seem to be all that prickly: the law says “sex” so you can’t discriminate on the basis of sex. The majority opinion isn’t based on a lot of sleight of hand or tenuous interpretations of different doctrines. Put another way, Sonia Sotomayor would have pegged an opinion squarely on that text in the statute too, so Gorsuch isn’t writing because of some kind of compromise. What’s the angle here?

When Chief Justice Roberts saved Obamacare by recasting it as a tax, he gave the liberals the result they wanted while gutting the commerce clause like a fish. Roberts used his opinion as an empty blackboard to rewrite the commerce clause, interpreting the well-settled provision to prevent Congress from regulating an interstate market by demanding individuals (in that case, the uninsured) participate in it. It’s a result that would have surprised poor Roscoe Filburn, who just wanted to not sell his wheat. The Obamacare opinion was just the vehicle Roberts chose to lay the groundwork for the growing army of FedSoc judges to strike down the straightforward exercise of legislative power in this country by hanging their hats on that language.

Now here comes the infamously pro-business, anti-regulation Gorsuch upholding a sweeping act of business regulation.

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 on 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 statute 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.

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There we go! This is going to be the vehicle for the next assault on basic tenets of statutory interpretation and Chevron deference. The Civil Rights Act has long served as every conservative’s favorite argument for textualism. “If courts considered legislative history, then they would have to dismiss the addition of ‘sex’ as a joke?” you can hear some pompous professor posit. This, of course, ignores that Smith’s anti-civil rights coalition wasn’t a majority and the majority that passed the legislation did so intending to take the term seriously despite its disingenuous introduction, but what’s a conservative argument without cherry-picking? In any event, a case involving this statute sets up a perfect bid to undermine the value of legislative intent in divining the meaning of statutory language, as well as the doctrine granting executive agencies deference in interpreting how to execute statutory language. All of that stuff is “extratextual” nonsense! It’s the reductio ad absurdum that Howard Smith was a cynical bigot so the Clean Water Act can’t possibly intend to keep water free of chemicals that hadn’t been invented yet.

Gorsuch couldn’t be more clear about what he’s intending to do with this opinion short of inserting a giant winking emoji:

This Court normally interprets a statute in accord with the ordinary public meaning of its terms at the time of its enactment. After all, only the words on the page constitute the law adopted by Congress and approved by the President. If judges could add to, remodel, update, or detract from old statutory terms inspired only by extratextual sources and our own imaginations, we would risk amending statutes outside the legislative process reserved for the people’s representatives. And we would deny the people the right to continue relying on the original meaning of the law they have counted on to settle their rights and obligations.

Eyes. Rolling. So. Hard. Right. Now.

Gorsuch then proceeds to, you can’t make this up, cite old editions of Webster’s Dictionary to determine what “discrimination” could have possibly meant to those of the distant past. Neil Gorsuch is exactly the guy at the wedding or funeral that begins with, “Webster’s Dictionary defines….”

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But note that a Sotomayor opinion would’ve said these are all necessarily discriminations based on sex and moved on to a long treatment of historic trends in anti-LGBTQ discrimination in the country. Her opinion would set the stage for a broader understanding of equality in America. Gorsuch’s opinion sets the stage for a torrent of dictionaries explaining why we have to shut down consumer protection laws. How opinions are drafted may not matter to the Supreme Court itself because they can act with functional fiat — if Abood wasn’t controlling precedent then literally nothing is — but they can churn out ammunition for the legions of FedSoc lower court judges to work with. How many awful opinions over the next decade will begin with a pin cite to “Justice Gorsuch’s landmark Bostock opinion”?

Alito and Kavanaugh wrote dissents almost perfectly constructed to set up Gorsuch’s ode to triumphant textualism. Alito even goes so far as to say that it’s crazy to limit statutory interpretation to the analysis of the text in a passage that could be captioned, “TFW your wholly contrived judicial philosophy betrays your naked political philosophy.” Alito’s dissent, longer than the majority opinion, reads as such a celebration of TERF culture it may as well be titled: Harry Potter and the Goblet Of Bigot Tears.

Pointing to later legislation that specifically references homosexuality as an indication that it couldn’t have been intended by the term “sex” in the Civil Rights Act, the dissents earn a proper textualist admonishment from Gorsuch:

But what? There’s no authoritative evidence explaining why later Congresses adopted other laws referencing sexual orientation but didn’t amend this one. Maybe some in the later legislatures understood the impact Title VII’s broad language already promised for cases like ours and didn’t think a revision needed. Maybe others knew about its impact but hoped no one else would notice. Maybe still others, occupied by other concerns, didn’t consider the issue at all. All we can know for certain is that speculation about why a later Congress declined to adopt new legislation offers a “particularly dangerous” basis on which to rest an interpretation of an existing law a different and earlier Congress did adopt.

“Particularly dangerous.” Remember that one, because that’s what it will be the next time the Court levels its aim on a statute that fails to explicitly spell out everything it means. For a group of people who sneer at “900 page bills” and “hundreds of thousands of pages of regulations” they sure do want Congress to write out every eventuality.

Still, some conservatives are in pure meltdown mode over Gorsuch’s opinion right now.

Well, the problem with being too clever by half is you consistently lose those who can’t clear the “clever” bar in the first place.

Again, this is still a day to celebrate. Workplace protections for LGBTQ rights is a momentous achievement. But vigilance is a virtue too. It’s been 56 years since Howard Smith tried to set up a landmine that ultimately blew up in his face. Just make sure Neil Gorsuch hasn’t found a way to use Smith’s mistake to lay more successful traps of his own.

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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