The Bostock Case

Text of Bostock v. Clayton County, Georgia, decided by the Supreme Court on June 15, 2020

Linda Greenhouse, What Does ‘Sex’ Mean? The Supreme Court Answers

Ross Douthat, The Tempting of Neil Gorsuch: Another conservative justice’s arc bends toward juristocracy.

While much of what Mr. Douthat says is not egregiously incorrect, and some of it is even wise and thoughtful, his key premise is erroneous. By that, I mean his assumption that Justice Gorsuch was “legislating” rather than doing conventional legal analysis when he concluded that the Civil Rights Act of 1964 forbids you to fire your employee for joining a gay softball league.

That statute forbids, among other things, discrimination in employment on the basis of sex. The hating-on-gays crowd argued that “sex” means, strictly, biological sex as determined at birth. Gorsuch responded, that might be right, and suppose it is, but if you fire a (biological) man for loving a man, but don’t fire a woman for loving a man, that’s still discrimination on the basis of sex.

And do, please, remember that Bostock was not a constitutional case, it was a statutory interpretation case. Gay rights were not much of a topic of conversation back in 1964, but people surely knew of the existence of homosexuality. The ambiguity in the language Congress employed was easily foreseeable. If Congress had an affirmative desire for gay people not to take advantage of its ambiguous language, then it could bloody well have inserted language to that effect.

The situation is very common. For example, the Founders knew that the rights enshrined in the First Amendment would need to be spelled out in subsequent case law. And, to take an example I know only too well, when Congress passed the vaguely worded Sherman Act back in 1890, again, it knew and acknowledged that it was creating a legal foundation on which the courts would erect an elaborate legal structure.

Every time Congress creates a situation like this, it knows or should know that, in concrete cases, the courts will be obliged to adopt an interpretation of statutory language that resolves ambiguities in the statutory language in a way that suffices to say who wins the particular case before the court, the plaintiff or the defendant.

It is not an option for the court just to say, “Oh, the statutory language is ambiguous, so I can’t decide the case, so get out of my courtroom.”

That’s all Justice Gorsuch was doing–resolving an ambiguity inherent in the words of the statute. That’s what judges do every day of the week.

No less.

No more.