Further thoughts on the Title VII cases and Textualism

Published Date: June 16, 2020 | Topics: Constitutional Issues, Politics and Current Affairs

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By Robert George

The majority and dissenting opinions in the Title VII cases (Bostock and its companion cases) handed down yesterday provide a dizzying slew of dueling hypotheticals, but in fact the mistake inherent in Neil Gorsuch’s majority opinion is quite fundamental and can be captured in general terms. And the mistake dooms his reasoning precisely as a matter of textualism, not purposivism or policy.

To describe the error as succinctly as possible:  Justice Gorsuch supposes that discriminating based on orientation or gender identity always entails discrimination based on sex, because orientation and gender identity vary with sex.  But discrimination in the sense relevant to this part of Title VII concerns intent.  And as a moment’s reflection shows, one’s intent—as well as any underlying beliefs and attitudes—can fix on feature X of a situation and not feature Y, even when X always comes with Y.  (To put this firmly established point in technical terms: intentions, beliefs, and attitudes create what philosophers call “opaquecontexts.) 

So an employer can be motivated by an intent—and associated beliefs or attitudes—concerning people of a certain orientation (or self-identification, or pattern of conduct), without relying on any intent, belief, or attitude concerning people of a particular sex (even though orientation turns on sex).  And again, it’s these motivations—intentions, beliefs, and attitudes—that are essential to “discrimination against” individuals “because of” sex, as confirmed by Justice Bret Kavanaugh’s analysis of the ordinary meaning of that phrase taken as a whole, and Professor James Phillips’ recent study relying on linguistic principles and systematic data. As Phillips summarizes the point, the operative language of Title VII, read in light of established linguistic principles and enactment-era data, requires differential treatment based on “unfair beliefs or attitudes directed at some or all men in particular, or at some or all women in particular—whether the beliefs be outright misconceptions or just unduly rough or weak generalizations; and whether the attitudes be indifference, discounting of interests, distaste, or outright antipathy.” 

Again, Kavanaugh’s and Phillips’ analyses show that this reading is superior precisely as a faithful reading of the text. And as Professor Phillips’ replies to critics confirm (here and here), this reading also fits the reasoning of all the Court’s Title VII precedents—until yesterday. Yesterday’s decisions contradict this faithful textualist reading of Title VII for a simple reason: an employer motivated by an intent, belief, or attitude about people engaging in certain forms of sexual conduct, for example, needn’t have any motivation (intent, belief, or attitude) at all that is specifically about, say, women (individually or as a group). 

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