Textualism Comes for the Textualists

For the high that Trump supporters got from “all the winning” they imagined they were getting in 2016 — Tax cuts! Judges! Owning the Libs!– 2020 has been quite the hangover. Trump has been a constant embarrassment, never bothering to “rise to the occasion” or “act Presidential,” let alone bungling his response to the coronavirus, lashing out at people protesting police violence against the black community, and his very public falling out with high-ranking military officers. Trump looks like a clown to all but the most committed partisans. Don’t take my word for it, ask the Republican Voters Against Trump! The Paul Ryan tax cut, which was never very popular, now looks like the deficit expanding give away to the rich that it always was. Owning the Libs is still fun for them, one presumes, though having the guns turned back on them seems to have cowed all but the most egregious trolls (my friends and family who once gleefully posted questionable and intentionally obnoxious Trump/conservative memes on social media all seem to have given up the practice). According to a large number of conservatives on social media or traditional outlets like the National Review, the embarrassment, the 2018 electoral defeat, the increasingly awful polling numbers that have put the Senate in play and the White House at risk were all worth it just to get those judges. Or at least that is what they were saying until Neil Gorsuch penned the majority opinion in Bostock.

A casual observer of American politics might ask why the conservative movement would give up so much for a couple of judgeships. The narrative long offered by the modern conservative movement was that the liberal courts had perverted the plain meaning of laws in an effort to legislate from the bench. This resulted in the expansion of abortion rights, racial minority civil rights, and LGTBQ rights over the last fifty years. If conservatives could flip this and hold a majority on the Supreme Court for at least a generation all of these changes could be undone by simply applying a textualist reading of the law. Presto chango, two generations of progressive cultural, political, and legal gains could be wiped out! Stealing the seat Neil Gorsuch occupies and tacking on Brett Kavanaugh was supposed to be their Austerlitz. Instead, it seems to be their Waterloo.

Understandably, conservative voters have reacted poorly to the decision. In their most crude form (like the words of Josh Hawley) they ask just what was all their sacrifice for if the court wasn’t going to deliver the goods on their Faustian bargain. Much like the “nihilists” in The Big Lebowski, they thought they were going to get a big prize for compromising their values. Instead, they got a bag of Walter’s metaphorical dirty undies. My fucking whites.

The conservative infotainment sphere is full of pearl-clutching garbage. The most childish sort are the folks accusing Gorsuch of pandering to PC sensibilities and his desire to attend cocktail parties with the establishment crowd. This is too stupid to bother responding to. A less absurdist but no less false narrative has come to dominate the intellectual hissyfit Bostock has triggered– that Neil Gorsuch suddenly forgot what textualism meant.

Take this piece by Kevin Williamson. Williamson claims Gorsuch engaged in “magical thinking” and applies a “sophomoric” reading of the text. Why? Because Gorsuch (along with Roberts, who right-wing legislate by the bench advocates have long-since written off) accepted the argument that a textualist reading of the 1964 Civil Rights Act means that discriminating based on homosexuality and transgendered status is plainly illegal as it is based on the sex of the victim, which is covered by the law.

Here is how Gorsuch explains it:

A statutory violation occurs if an employer intentionally relies in part on
an individual employee’s sex when deciding to discharge the employee.
Because discrimination on the basis of homosexuality or transgender
status requires an employer to intentionally treat individual employees differently because of their sex, an employer who intentionally penalizes an employee for being homosexual or transgender also violates
Title VII. There is no escaping the role intent plays: Just as sex is
necessarily a but-for cause when an employer discriminates against
homosexual or transgender employees, an employer who discriminates
on these grounds inescapably intends to rely on sex in its decisionmaking…

Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause of his discharge. Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.

Williamson complains that this ruling equates a “man’s desire to wear a dress” with “African Americans seeking to maintain their political and economic rights after centuries of chattel slavery” (maintain is a rather dubious and misleading claim– a more accurate statement would be to codify in federal law rights that Jim Crow laws and de facto practices in many localities had prevented black Americans from exercising). How that is an affront to textualism or the conservative philosophy of jurisprudence is lost on me. The whole argument for textualism is that you read the law as it is written, not as you would have preferred it be written. Williamson is the one projecting what the authors meant to write and what the spirit of the law should be here– an inherently non-textual reading. For Gorsuch and Roberts, the meaning was clear. Discriminating on sex means treating two employees differently for the same act or behavior because one of them is of a different sex. Until the law is written to expressly exclude sexuality and gender identity there is no reason to expect that it is not covered by the meaning of sex as it is plainly understood.

Alito and Kavanagh’s rebuttals show that this is not the only possible textual reading. Per Alito, the proper focus should have been “the ordinary meaning of the statute’s words in 1964.” (Alito’s dissent was nasty, insulting the majority as being breathtakingly arrogant) By Alito’s logic, homosexuality and transgender identity would not have been understood as issues of sex (and were indeed considered illegal and/or mental disorders). For his part, Kavanagh thought Gorsuch was being too literal in his reading, confusing discrimination on the basis of sex when a full reading of the statute would show it was talking about discriminating against someone because of their status as a man or a woman, not because of their behavior as a man or a woman. Using the same tool kit these three men came to drastically different conclusions (obviously, I think Gorsuch’s conclusion is both the most reasonable reading of the statute and the most just).

Here is what conservatives need to acknowledge about Bostock and their faith in textualism and originalism in general: your magic bullet was destined to fail. There is no legal framework for judicial review that is one-size fits all and leads only to the political conclusions you desire. Two people operating off the exact same set of facts and applying the same philosophical principles can and will come to different conclusions. This is a fundamental fact of human communication. It is true in every discipline. Theologians have been arguing over sacred texts for thousands of years– and it is not just “liberals” who are upending theological readings and policy. The same is true of academic history. And literature. And science. And music. You have to be a special kind of stupid to think that this didn’t apply to laws.

The law was clear– discriminating in employment on the basis of race, sex, or nationality is illegal. Liberals, fearing that the conservative courts would do exactly what conservative politicians have been promising they would deliver for decades (overturning LGTBQ and abortion rights) tried and failed to codify that this applied to sexuality and gender identity too. What Gorsuch, Roberts, and the liberal justices assert is that sex is inexorably tied to how one view and treats homosexual and transgender Americans. I suspect that religious freedom laws will be reconciled with this ruling by the court expanding ministerial exceptions but that private, secular institutions will be completely bound by this. This story has just begun.

While the story of codified protection from employment discrimination for LGTBQ people has just begun the story of Evangelical pipe dream that they can remake America in their image should be over. Rather than do the hard work of building a coalition that convinces the majority of Americans to support your reforms, you made a Faustian deal with the GOP and sought to overturn popular opinion and settled law through a legal backdoor. Your movement has been defeated in popular culture, academia, the ballot box, and now the courts. There is no silver bullet out there that can save you. There never was.

My advice to the religious right is simple. Stop fretting over how extending rights to people infringes on your freedom to fire them, deprive them of housing, or deny them simple rights (like marriage, tax-filing status, or basic services from your business) and spend more time living out your values. To those of us in more theologically liberal churches and secular society at large, it seems like you are more concerned with preventing LGTBQ people from living full lives than you are with promoting the message of your faith. There are a myriad of issues calling out for Christian attention in our society. Win people over by showing them how your ways are better rather than demand that our laws be bent to your faith. The road you have been on leads nowhere. You gained nothing by defending bans on interracial facilities and marriage from the 1960s through the 1980s. And it has finally disappointed you in your quest to refight the Civil Rights movement “but this time with gays.” The rhetoric of freedom enshrined in our founding documents always wins out in the end. The logic of freedom and equality is an irresistible force. It takes time (far too much), but the arc always bends towards justice in the long term. If you want to bend that arc back, you will have to do so through overwhelming numbers at the ballot box. The courts and executive orders will not do it for you. Good luck with that.

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