At Verdict, Michael Dorf: SCOTUS LGBT Discrimination Case Will Test Conservative Commitment to Textualism. From the introduction:
Last week, the Supreme Court agreed to review three lower court decisions posing the important question whether Title VII of the Civil Rights Act of 1964—which makes it unlawful for an employer or prospective employer “to discriminate against any individual . . . because of such individual’s . . . sex”—thereby forbids discrimination on the basis of sexual orientation and gender identity. There is little doubt that few if any of the members of the Congress that originally enacted the statutory language would have thought it had that effect.
However, as the late Justice Antonin Scalia wrote for the Court in a 1998 Title VII case that applied the statute’s sex discrimination prohibition to other circumstances that its drafters likely did not envision, “it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” And there are straightforward reasons to think that discrimination based on sexual orientation or gender identity is sex discrimination.
The pending Title VII cases thus pose a test for the Court’s conservative majority. At one point or another and to varying degrees, all of the Court’s conservatives have embraced some version of the so-called textualist approach to statutory interpretation epitomized by Justice Scalia’s observation in the 1998 case, Oncale v. Sundowner Offshore Services, Inc. If they keep faith with their textualist commitment, they will rule in favor of the plaintiffs.
And further:
The argument for the plaintiffs in the Title VII cases is very straightforward. As Chief Judge Robert Katzmann of the US Court of Appeals for the Second Circuit wrote for an en banc majority in one of the cases now before the Supreme Court:
Because one cannot fully define a person’s sexual orientation without identifying his or her sex, sexual orientation is a function of sex. Indeed sexual orientation is doubly delineated by sex because it is a function of both a person’s sex and the sex of those to whom he or she is attracted. Logically, because sexual orientation is a function of sex and sex is a protected characteristic under Title VII, it follows that sexual orientation is also protected.
Ed Whelan responds at NRO Bench Memos: No, Conservative Justices Should Not Rule for Plaintiffs in Title VII SOGI Cases. From the introduction:
In another entry in the genre of liberals-tell-conservatives-what-conservative-principles-mean, law professor Michael C. Dorf argues in an op-ed that if the conservative justices “keep faith with their textualist commitment, they will rule in favor of the plaintiffs” in the cases to be argued next term that present the questions whether Title VII’s ban on employment practices that “discriminate … on the basis of … sex” prohibits discrimination on the basis of sexual orientation and discrimination on the basis of gender identity. But Dorf’s argument, as I see it, misconceives what the conservative textualist commitment consists of.
At the heart of Dorf’s argument is Justice Scalia’s statement in his majority opinion in Oncale v. Sundowner Offshore Services, Inc. (1998) that “it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” By that proposition, Scalia was making in the statutory context the same distinction between original meaning and original intent that he prominently made in the context of constitutional interpretation. So it would be incumbent on Dorf to show that the original meaning of Title VII bars discrimination on the basis of sexual orientation and gender identity.
Dorf does not undertake to make an argument about original meaning. Instead, he embraces the argument by Second Circuit chief judge Robert Katzmann, in his en banc majority opinion in Zadra v. Altitude Express, Inc., that “because sexual orientation is a function of sex and sex is a protected characteristic under Title VII, it follows that sexual orientation is also protected.” (Emphasis added.) He then applies the same “function of sex” claim to gender identity. But neither he nor Katzmann grounds this “function of sex” claim in the original meaning of Title VII.
Without expressly taking a side, I note that it's a little odd for Professor Dorf to rest his textualist argument principally on an opinion by Judge Katzmann. After all, Judge Katzmann, one of the nation's leading academic judges, wrote an entire book arguing that textualism was an inappropriate approach to statutory interpretation. It's a great book. But Judge Katzmann is really really not a textualist.
Posted at 6:58 AM