Once again the Supreme Court has strayed from declaring what preexisting law is to making law.
Impatient with the pace of legislative action on amending Title VII of the Civil Rights Act of 1964 to include sexual-orientation discrimination, the Supreme Court has rewritten the statute via interpretation. In Bostock v. Clayton County (a 6-3 decision), the Court held that Title VII’s prohibition of workplace discrimination based on “sex” encompasses sexual orientation. Hence, a person fired because of homosexual orientation or transgender status may now bring a claim under Title VII. Although many Americans agree with the policy result reached by the Court, all thinking persons should lament that six unelected lawyers have usurped the role of Congress.
When engaging in statutory interpretation, the Court is supposed to implement congressional intent by examining the plain language of the statute. A statute’s plain meaning is determined by reference to its words’ ordinary meaning at the time of the statute’s enactment. In reaching its decision in Bostock, the Court asserted that it was simply enforcing the plain terms of Title VII as those terms would have been understood in 1964. It cited the late Justice Antonin Scalia and assured readers that it was engaging in a textualism that would have made Scalia proud.
The Court conceded that “sex” as used in Title VII would have been understood by an average person in 1964 as meaning biologically male or female. However, the Court followed up with a remarkable statement: “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
This is balderdash. (Or better yet, “interpretive jiggery-pokery,” as Scalia once said.)
If, for example, an employer fired all lesbians working for his company, he would not be discriminating because the targets of his wrath are biologically female but on account of their sexual orientation. Sex discrimination and sexual-orientation discrimination are two distinct categories of discrimination. The former falls within the plain meaning of Title VII; the latter does not.
For most of its history, this has been the common understanding of Title VII’s prohibition of sex discrimination. As Justice Brett Kavanagh pointed out in dissent: “in the first 10 Courts of Appeals to consider the issue, all 30 federal judges agreed that Title VII does not prohibit sexual orientation discrimination.” For the first 48 years of its existence, the Equal Employment Opportunity Commission, charged with enforcing civil rights laws against workplace discrimination, viewed sex discrimination and sexual-orientation discrimination as separate matters.
Congress certainly viewed sex and sexual-orientation discrimination as different. Over the years various bills have been introduced to add sexual-orientation discrimination to Title VII. At different times majorities in both the House and Senate have approved such a change, but they have yet to come together to send a bill to the president. In many other federal antidiscrimination statutes, Congress has specifically included sexual orientation. Thus when Congress wants to prohibit discrimination based on sexual orientation, it knows how to do so.
Bostock is yet another Supreme Court decision that teaches Americans the wrong lessons. Rather than engaging in a debate, proposing legislation, and garnering votes, we are taught that the easiest way to obtain a desired policy result is to run to the judiciary. It’s a lot less work to convince five lawyers rather than 218 House members, 51 senators, and the president.
Of course, under separation-of-powers principles, all legislative authority is supposed to reside with Congress. If the people desire a certain policy or object to a policy enacted, they can use the franchise to oust members of Congress and to elect representatives more to their liking. But the people have no such power when it comes to the federal judiciary. The Court can discover new constitutional rights hitherto unknown in American history or make law through tricks of statutory interpretation, but the people have no recourse.
Bostock is but the latest example of judicial overreach. It shows why the Court should allow policy matters to be worked out in the elected branches of government.