“Ours is a government of laws, and not of men,” John Adams once famously said. And when it comes to those laws, the question has been asked, “Who decides?”
True, our laws are passed by Congress. But how much strength should our Courts have in interpreting, and, in some instances, striking down, those laws? After all, members of Congress are elected directly by the people. Our members of the Courts are not. On June 15, 2020, the United States Supreme Court handed down a landmark decision impacting the employer-employee relationship. The Court ruled that the Civil Rights Act of 1964’s prohibition against discrimination based upon “sex” further included sexual orientation and gender identity.
The decision is Bostock v. Clayton County, Georgia, and actually consolidates three cases involving three employees. The first employee, Gerald Bostock, had been employed by Clayton County as a child-welfare advocate. After working more than 10 years with the county, Bostock became a member of a gay recreational softball league. Members of the public complained, and Bostock was discharged for “conduct unbecoming” of a county employee. The second employee, Donald Zarda, who worked for Altitude Express, was fired after mentioning that he was gay during work as a skydiving instructor. The third, Aimee Stephens, was fired after informing her employer — a funeral home director — that she was going to transition “to live and work full-time as female.” Her employer’s response: “This is not going to work out.”
Each of these individuals filed suit under Title VII alleging unlawful discrimination on the basis of sex. All three cases ultimately found their way to the nine Supreme Court justices. In deciding the case, an unusual coalition of Justices (Gorsuch, Ginsburg, Breyer, Sotomayor and Kagan), was joined by Chief Justice Roberts, in an opinion founded upon interpreting the words used by Congress in 1964, and particularly the word “sex.” At the outset, Justice Gorsuch wrote:
This Court normally interprets a statute in accord with the ordinary public meaning of its terms at the time of its enactment. After all, only the words on the page constitute the law adopted by Congress and approved by the President. If judges could add to, remodel, update, or detract from old statutory terms inspired only by extratextual sources and our own imaginations, we would risk amending statutes outside the legislative process reserved for the people’s representatives. And we would deny the people the right to continue relying on the original meaning of the law they have counted on to settle their rights and obligations.
So, on the question of “Who decides?” Justice Gorsuch begins with his answer, “The Congress.” After all, it is Congress who drafted and enacted the “words on the page” that the justice refers to. And it is the people who elect the members of Congress to enact those “words on the page.” However, the Court went on in its opinion to explain how “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex…”
The gloves came off in the dissenting opinions. In Justice Alito’s colorful dissent, he observed:
The Court attempts to pass off its decision as the inevitable product of the textualist school of statutory interpretation championed by our late colleague, Justice Scalia, but no one should be fooled. The Court’s opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated — the theory that courts should “update” old statutes so that they better reflect the current values of society — but the question in these cases is not whether discrimination because of sexual orientation or gender identity should be outlawed. The question is whether Congress did that in 1964.
In other words, according to Justice Alito, if the public feels that discrimination based upon sexual orientation or gender identity ought to be allowed, or ought to be outlawed, a vote should be taken and a law should be passed. Justice Alito, as you can see, bristles at the notion of accomplishing societal change by judicial fiat.
In his separate dissent, Justice Kavanaugh agreed with Justice Alito, yet took a softer approach:
Notwithstanding my concern about the Court’s transgression of the constitution’s separation of powers, it is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans. Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result. Under the constitution’s separation of powers, however, I believe that it was Congress’ role, not this court’s, to amend Title VII. I therefore must respectfully dissent from the court’s judgment.
At bottom, Justice Kavanaugh congratulated the members of the gay and transgender community, but also said that the change occurred the wrong way. According to Justice Kavanaugh, the Congress, not the Courts, should decide these issues.
And so for the Courts, it is now settled that “sex” includes sexual orientation and gender identity. Is this the last word on “sex?” Or will Congress narrow, or further broaden, the C’s definition? The battle goes on. But the question remains: On whose turf? The Courts or Congress?