“After all, only the words on the page constitute the law adopted by Congress and approved by the President.”
— Justice Neil Gorsuch, Bostock v. Clayton County
“Textualism should not be confused with so-called strict constructionism, a degraded form of textualism that brings the whole philosophy into disrepute.”
— Justice Antonin Scalia
For nearly two decades, from Romer v. Evans in 1996, to Lawrence v. Texas in 2003, to Obergefell v. Hodges in 2015, Justice Anthony Kennedy, nominated to his Supreme Court seat by President Ronald Reagan in 1987, was the key vote in a line of cases applying legal protections to persons alleging discrimination based on their sexual orientation. At times he was joined by Justice Sandra Day O’Connor to make a 6-3 majority, but often he was the “swing” vote in cases that turned on an application of the guarantee of equal protection under the law.
When Justice Kennedy retired in 2018, his absence left questions about where the court would come down on future cases dealing with sexual orientation. Most eyes fell on Chief Justice John Roberts as the likely new deciding vote. Many saw this year’s Title VII case — a question of whether federal law prohibiting discrimination on the basis of “sex” should also be applied to sexual orientation and gender identity, as the test case for the post-Kennedy Court.
Although he has been dead for four years, the Title VII case, Bostock v. Clayton County, would turn on the theories of Justice Antonin Scalia. That’s because Scalia, as the champion of a legal theory known as originalism, led a seismic shift in how federal appellate courts look at statutes and the Constitution. Back in 2010, during her confirmation hearings, Justice Elena Kagan responded to a question from Sen. Patrick Leahy by saying, “Sometimes (the Founders) laid down very specific rules. Sometimes they laid down broad principles. Either way, we apply what they tried to do. In that way, we are all originalists.” In 2015, in a speech at Harvard Law School, Kagan slightly changed her phrase, noting that the influence of Scalia meant, “We are all textualists now.” The change seems subtle, but it made all the difference in the world in the Bostock case.
National media outlets like to report that there are four “liberal” Justices on the Supreme Court and five “conservative” ones. As the theory goes, they have predetermined the outcome of a case based on their political or social views, and simply find a legal argument to get them there. But how then to explain Chief Justice Roberts’ vote in the Affordable Care Act case? Or Justice Kagan siding with the conservatives in March in an insanity defense case? (Or hundreds of other such examples.) The answer, of course, is that the Justices are far more often split by their legal theories — the manner in which they interpret the law.
Some believe that legal documents from statutes to Constitutions have an adaptable meaning that can change over time as societal norms change or as technology presents them new circumstances. These Justices subscribe to a “loose constructionism” theory. Some believe that legal writings should be viewed with the meaning that the original drafters of those documents gave to them. These are the “originalists” or subscribers to an “original intent” theory. Yet others believe that it doesn’t matter what the drafters intended. It matters only what they actually wrote, and how people at the time would understand it. These are the “textualists” or subscribers to an “original meaning” theory.
If you asked most people who make a living commentating on the U.S. Supreme Court how the Bostock case was going to be decided, they would have told you that the four liberal Justices would apply a “loose constructionism” theory, the four more conservative Justices would apply an “originalist” theory, and the deciding factor would be Chief Justice Roberts. Those commentators were wrong. And they were wrong because they failed to account for textualism.
The Chief Justice did decide that “sex” meant “sexual orientation” and “gender identity,” but he was joined in that decision by Justice Gorsuch, appointed to the court by President Trump in 2017. Gorsuch’s reasoning was laid out in the first words of his decision, and neither the chief, nor the four “libera” Justices felt the need to write separately or provide a different manner of interpretation. “The words on the page constitute the law,” Gorsuch wrote. Consider two employees, he said, “both of whom are attracted to men.” They are “identical” on paper, but for one thing — one is a man, and the other is a woman. If the employer fires the one because he is male, then the employer must be discriminating on the basis of sex.
Justice Kavanaugh was not unconvinced by Justice Gorsuch’s argument, but he was swayed by one other factor. Congress could not have meant to include sexual orientation, he wrote, because they have voted multiple times since on whether to add it to the statute. If they meant it to be in there in the first place, there would have been no reason to take action to add it in later. Kavanaugh takes the original intent interpretation, and thus dissents. Justice Alito, joined by Justice Thomas, wrote a dissent exceeding 100 pages in length. He takes a dim view of Gorsuch’s textualist approach calling it a “pirate ship” sailing under a “textualist flag.”
Thus, the Title VII case wasn’t centered on two groups of four, but on nine Justices all applying originalist interpretations, but on six applying one branch of originalism and three applying another. And whether you are an employee whose job is now protected, or an employer who now must abide by the holding of Bostock, those 200 pages of opinions and legal theories don’t really matter — what matters is that the court has spoken, the understanding of the law has changed, and barring an act of Congress repealing the protections, the original meaning theory has carried the day.
David Hejmanowski is judge of the Probate/Juvenile Division of the Delaware County Court of Common Pleas. He has written a weekly column on law and history for the Gazette since 2005.