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I wrote about how the 6-to-3 Supreme Court decision on Monday in 𝘉𝘰𝘴𝘵𝘰𝘤𝘬 𝘷. 𝘊𝘭𝘢𝘺𝘵𝘰𝘯 𝘊𝘰𝘶𝘯𝘵𝘺, which applied Title VII of the Civil Rights Act of 1964 to gay and transgender workers, represents far more than a landmark civil rights precedent. https://twitter.com/postopinions/status/1273053770734350336
𝘉𝘰𝘴𝘵𝘰𝘤𝘬 represents a victory for textualism in the interpretation of statutes. And it effectively inters, perhaps once and for all, a 128-year-old decision that illustrates exactly how laws should 𝘯𝘰𝘵 be construed. https://twitter.com/postopinions/status/1273053770734350336
The 1892 case was 𝘊𝘩𝘶𝘳𝘤𝘩 𝘰𝘧 𝘵𝘩𝘦 𝘏𝘰𝘭𝘺 𝘛𝘳𝘪𝘯𝘪𝘵𝘺 𝘷. 𝘜𝘯𝘪𝘵𝘦𝘥 𝘚𝘵𝘢𝘵𝘦𝘴. Congress had passed the Alien Contract Labor Law, which prohibited “the importation” of “foreigners … under contract to perform labor or service of any kind in the United States.” https://twitter.com/postopinions/status/1273053770734350336
The law contained exceptions for actors, artists, singers and others. It didn’t exempt clergy. But Holy Trinity Church in Manhattan had hired a new pastor—from England. The government claimed a violation of the law. And despite the text of the statute, the church won. https://twitter.com/postopinions/status/1273053770734350336
The Supreme Court conceded the hiring came “within the letter” of the law. The pastor was a foreigner imported under contract to serve in the US. But the Court held that Congress couldn’t 𝘳𝘦𝘢𝘭𝘭𝘺 have intended to prohibit hiring clergy—because “this is a Christian nation.” https://twitter.com/postopinions/status/1273053770734350336
So the Court not only ruled for the church, but also established a general principle of interpretation: “A thing may be within the letter of the statute and yet not within the statute, because not within its spirit nor within the intention of its makers.” https://twitter.com/postopinions/status/1273053770734350336
Justice Scalia, preaching judicial textualism, loved to rail on 𝘏𝘰𝘭𝘺 𝘛𝘳𝘪𝘯𝘪𝘵𝘺: His book with @BryanAGarner on statutory interpretation condemned it for its philosophy that courts should fix faulty laws: Judges must stick “with what the text says and fairly implies.” https://twitter.com/postopinions/status/1273053770734350336
𝘉𝘰𝘴𝘵𝘰𝘤𝘬 is the 21st-century version of 𝘏𝘰𝘭𝘺 𝘛𝘳𝘪𝘯𝘪𝘵𝘺—but thanks to Justice Scalia’s philosophy of interpretation, it went the other way. Just as Congress broadly prohibited hiring foreigners in 1885, so, too, it broadly prohibited sex discrimination in 1964. https://twitter.com/postopinions/status/1273053770734350336
And just as it was inconceivable that Congress had meant to bar the hiring of Christian pastors, so, too, it was absurd to think that, 56 years ago, Congress wanted to protect gays, lesbians and transgender people. https://twitter.com/postopinions/status/1273053770734350336
But just look at what Congress wrote. Title VII makes it “unlawful” for an employer “to discharge … or …discriminate against any individual … because of such individual’s … sex.” Categorical. No pertinent exception—not for sexual orientation, or anything else. https://twitter.com/postopinions/status/1273053770734350336
So if employees John and Joanne both have crushes on Sarah, and Joanne but not John gets the boot, how could Joanne not have suffered illegal discrimination on the basis of her being female, her biological sex? https://twitter.com/postopinions/status/1273053770734350336
Or if John, biologically male, becomes Jane and comes in wearing a dress like Joanne’s, and is fired for it, while Joanne, born female, keeps her job, how is that not illegal sex discrimination as well? https://twitter.com/postopinions/status/1273053770734350336
Justice Gorsuch’s textualist answer for the Court: Both cases describe wrongs, because “the employer intentionally singles out an employee to fire based in part on the employee’s sex,” period—and like it or not, by the plain terms of the statute, that’s a violation. https://twitter.com/postopinions/status/1273053770734350336
