Justices Debate Title VII

A June 15 Supreme Court opinion on Title VII of the Civil Rights Act of 1964 is worth reading.

Title VII makes it unlawful “for an employer to … discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”

As the court’s opinion notes, the issue was whether – given Title VII’s ban on discrimination because of sex – an employer may “fire someone simply for being homosexual or transgender.”

Not long ago, the analysis may well have focused on what justices believe the law should be, not what it is.

Yet all nine justices agreed that the issue wasn’t whether Title VII should ban discrimination on such bases. Rather, the issue was whether the law, as enacted in 1964, does so.

Six justices said it does, in an opinion by Justice Neil Gorsuch, joined by Chief Justice John Roberts, and Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan.

Three justices said it doesn’t. One dissent is by Justice Samuel Alito, joined by Justice Clarence Thomas. Another dissent is by Justice Brett Kavanaugh.

On this much, all nine justices agree: To determine the meaning of law, one looks to its ordinary public meaning at the time of enactment.

Nevertheless, the majority and the dissents reach different results. How?

For one thing, Gorsuch focuses on the meaning of individual words, including “discriminate,” “because of,” and “sex.”

He says an employer who, for example, fires a male employee because he’s attracted to men “discriminates against him for traits or actions it tolerates in his female colleague” and thereby “intentionally singles out an employee to fire based in part on the employee’s sex.” The same is true, Gorsuch says, of “an employer who fires a transgender person who was identified as a male at birth but now identifies as a female.”

Meanwhile, Kavanaugh looks not to the meaning of individual words but to the meaning of phrases, “because a phrase may have a more precise or confined meaning than the literal meaning of the individual words in the phrase.”

“A society governed by the rule of law must have laws that are known and understandable to the citizenry. And judicial adherence to ordinary meaning facilitates the democratic accountability of America’s elected representatives for the laws they enact. Citizens and legislators must be able to ascertain the law by reading the words of the statute. Both the rule of law and democratic accountability badly suffer when a court adopts a hidden or obscure interpretation of the law, and not its ordinary meaning,” he says.

With this understanding, Kavanaugh focuses on “the ordinary meaning of the phrase ‘discriminate because of sex.’ Does the ordinary meaning of that phrase encompass discrimination because of sexual orientation (or transgender status)? The answer is plainly no.”

Alito similarly says that in 1964, the “ordinary meaning of discrimination because of ‘sex’ was discrimination because of a person’s biological sex, not sexual orientation or gender identity.”

This debate is worth reading, whichever side the reader may eventually take, because the consequences may extend across the law.

Yet the reader needs to avoid result-oriented reasoning: Selecting the desired result and then selecting reasoning that gets there.

The reader also needs to cut through the majority’s excess verbiage, which the dissents needed verbiage to address. The dissents also use more words than necessary.

The humorous irony is that the court, which in 2019 cut word limits for briefs, used more words than were necessary to address the issue, regardless of the holding.

Supreme Court opinions are part of Dr. Randy Elf’s presentation on “How Political Speech Law Benefits Politicians and the Rich” at an Advocates for Balance at Chautauqua event at 4 p.m. Aug. 20. For program information, including on attending via Internet, see https://www.abcatchq.com and https://www.facebook.com/events/835631386966063.



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