This is right but I can still kvetch that textualist piety is a substantive and a rhetorical weakness of the writing, and gives Alito his opening to bang on, pointlessly. 'Because of ... sex' is too ambiguous and indefinite to admit a definite, narrow textual reading. 1/ https://twitter.com/LemieuxLGM/status/1272598887191044097

Gorsuch is doing 'what is the purpose?' analysis on the down-low. Why not do it openly? Lemieux' quote from Black is a case in point. Black is admirably clear because he's clear in the 'what is this thing doing and what are we doing as a result, and why' department. 2/

So I completely disagree with @IlyaSomin , who says textualism is strong here, purposivism weaker. 3/ https://reason.com/2020/06/15/textualism-and-purposivism-in-todays-supreme-court-decision-on-discrimination-against-gays-lesbians-and-transsexuals/

To see how weak the textualist argument is, consider, hypothetically, that I make the following rule about grocery shopping in our family: 'no one is allowed to buy or not buy items because of money.' Now, this may well - probably does - express a 'money is no object!' dictum. 4/

So one should apply a 'but for money!' test. If a different price would have induced a different pattern of buying/not-buying, then the existing pattern is wrongful! But the idea that we are extracting this from the text is phony. We are guessing at a likely purpose. 5/

A Martian who understood English semantics but not human purposes could put all sorts of funny readings on 'no one is allowed to buy or not buy items because of money'. It could be read as mandating the elimination of money, as a precondition for any future buying and selling. 6/

But once you are in the realm of reading for purposes, you should just 'fess up that you are. Reading for purposes while acting like you are just reading 'the text' is confusion, and invites the sorts of yet more confused objections that Alito makes. 7/

The fact that the purpose of 'because of sex' was secondary, even poisonous, does not make the purposive analysis more difficult. It isn't hard to see, basically, what the normative point, hence legal function, is supposed to be. 8/

If someone sets a bomb to go off, if someone does X, to blackmail them into NOT doing X, we understand the purpose of the bomb is to prevent X, but also to explode (in the event of X). It isn't hard. 9/

So: given we have here a machine with a purpose, i.e. preventing people from having their employment prospects hindered by other people's botherations over sex, hence workplace gender roles, it would be arbitrary to preclude that machine's function in LGBTQ/trans cases. 10/

A textualist will now say: a-ha! Gorsuch no textualist! Alito's right! No. Alito's 'let's read the dictionary' schtick is empty. You could never figure out what the law means THAT way. See above. (Pull the other one!) 11/

Alito's textualist (originalist) reading is just as purposive, just much, much more implausible that way than Gorsuch's. How so? Alito grants the purpose of the law, implicitly. (So he's off the originalist/textualist bus and doing purposive stuff on the down-low.) 12/

But he wants the law's purpose to be, in effect, to constitute 'sex' as a legal fiction. That is, the law should serve a kind of reverse Philip Larkin 'annus mirabilis' purpose of sealing 'sex' in attitudinal amber, circa 1964. 13/

'Sex', in Title VII, does not say SEX-sex but instructs to look to sex-adjacent attitudes towards who 'fits' in the workplace. Alito concedes this, implicitly. But he wants the relevant set of sex-adjacent attitudes not to be OUR attitudes but those of people in 1964. 14/

But the idea we should read Title VII, in purposive fashion, as functioning to freezing a cultural conception of sex and gender henceforth, for legal purposes, is ... implausible. 15/

Alito is basically arguing we should read Title VII, in a purposive (not originalist/textual) way BUT we should import a reactionary purpose into it, on top of the more or less progressive original intended one. Sheesh. The activist moxie of these Federalist types! 16/

P.S. People may wonder why I say the intended effect of 'because of sex' was 'poisonous'. That's because, in one of those ironies, the clause was originally inserted as a poison pill amendment. But poison pill amendments do not generate intolerable 'purposive' paradoxes.

Poison is intended NOT to be swallowed, but if it is swallowed, it does its work.