A Win for LGBTQ Equality or for Textualism at the Supreme Court?

“LGBTQ employment rights” by vpickering is licensed under CC BY-NC-ND 2.0

When the news broke of the U.S. Supreme Court ruling in Bostock v. Clayton, protecting LGBTQ people in the workplace, many reports and commentators, including myself, claimed it as an outright win for LGBTQ equality. But as I read Justice Neil Gorsuch’s textualist opinion, I realized what sort of long-term consequences for LGBTQ equality and other progressive issues — intended and unintended — could come from the decision. Despite the 6–3 ruling, we should be wary of drawing broader conclusions about the current Court’s ongoing commitment to LGBTQ equality.

The Court bases its ruling on Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination on the basis of several characteristics, including “sex.” Ironically, some members of Congress supported the inclusion of “sex” in the law as a poison pill. They believed that while a majority of Congress was sympathetic to an anti-discrimination law that included race, a similar majority would not support an anti-discrimination law that included sex, let alone sexual orientation. They were wrong, and here we are today.

Popular news reports focused on the opinion’s immediate effect, not its lasting impact.

Much lies beyond the “plain meaning”

Notwithstanding this history, Justice Gorsuch’s opinion is actually a conservative one because it relies on a statutory (and sometimes Constitutional) interpretative theory called textualism. Proponents of textualism believe judges should interpret laws based on the ordinary meaning of words and without consideration of the law’s purpose or the legislature’s specific or general intentions. Textualism is similar to originalism, a Constitutional interpretive theory, in that it says judges should interpret the Constitution based on its original public understanding. Justice Gorsuch is one of the principal advocates for both textualism and originalism. He devotes an entire chapter to each his book, “A Republic, If you Can Keep It.”

The textualist argument goes something like this: an employer that fires a gay man partnered to a man but does not fire a straight woman partnered to a man is engaging in sex discrimination because the only difference between the gay man and the straight woman is their sex. In other words, this textualist opinion does not explicitly protect against discrimination based on sexual orientation. Here is the relevant language from Gorsuch’s opinion:

“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.”

This result was not inevitable. During last fall’s oral arguments, Justice Gorsuch wrestled between this textualist reading and Congress’s 1964 intentions, which he suggested did not contemplate protections for LGBTQ workers. He was also concerned with “massive social upheaval” that would result from a ruling that protects LGBTQ workers, but conceded it was a “close call.” Ultimately, he wrote a narrow opinion that champions textualism and just so happens to afford greater protections to LGBTQ people in the workplace.

For LGBTQ advocates and others who care about equality, the critical thing to note is that the opinion does not afford any weight to Title VII’s general anti-discrimination purpose, legislative history, or commitments to equality. Gorsuch makes clear in the opinion that “[w]hen 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…” As such, we should be wary of making any conclusions about Gorsuch’s commitment to LGBTQ equality based on this opinion. If past is prologue, those who believe in LGBTQ equality — and other progressive causes — may have reasons to be wary. For example, as Cass Sunstein noted in a recent opinion column, Gorsuch’s textualist opinion in Bostock could be used to end voluntary affirmative action policies.

A win today, a fight tomorrow

Here’s what to watch for: because the opinion is based solely on the text of the statute, rather than some larger commitment to equality, the opinion leaves open the possibility that employers could refuse to hire LGBTQ workers based on Constitutional religious freedom grounds. We need to look no further than the Masterpiece Cakeshop case to know a majority of the Court is sympathetic to these sorts of religious freedom claims. It is unlikely that the Court will make a baker who refused to bake a cake for a same-sex couple, hire an LGBTQ person. Additionally, Justices Ginsburg, Breyer, Sotomayor, and Kagan (sometimes referred to as “the liberal justices”) signed on to the opinion without a concurrence qualifying Gorsuch’s textualist approach. Therefore, the opinion will serve as a strong precedent for textualism in future cases on issues ranging from LGBTQ equality to the environment. A textualist approach in those cases may lead to decisions many progressives would oppose.

Because we cannot assume the Court will grant further protections that are not explicit in the text of the law, those of us who value and champion LGBTQ equality have more work to do to gain greater protections through state and federal legislation. We similarly should not rely on an interpretation of the Fourteenth Amendment’s Equal Protection Clause or Due Process Clause to provide further protection, since the word “sex” does not appear in either clause. Nor is there evidence that the original public understanding of these clauses included protections for LGBTQ people. As such, if the Court were to adopt this textualist and originalist approach in future Constitutional cases, past opinions recognizing LGBTQ equality, including marriage equality, could be vulnerable. This possibility makes legislation, like the Equality Act, that much more important to pass.

While the outcome, in this case, should be celebrated for its immediate effect to protect many LGBTQ people in the workplace, it is also a win for textualism. Only time will tell which will ultimately prevail. Meanwhile, there is still a lot of work to do to ensure LGBTQ equality.

Omar H. Noureldin is an attorney at Munger, Tolles & Olson LLP and lecturer in law at the USC Gould School of Law, where he teaches constitutional theory and judicial opinion writing. He is on Twitter @OmarHNoureldin.

Affiliations are provided for identification only; the views expressed are solely that of the author and do not reflect endorsement by his employers.

Reflections on law, politics, faith, and tennis from an attorney, policy wonk, community organizer, and law professor at the USC Gold School of Law

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