Justice Gorsuch, who succeeded Justice Scalia on the bench, reiterated this basic concept on Monday: “The limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.”
While we’re on the subject of legislators’ intentions, it is worth noting the historical irony behind the inclusion of “sex” in the civil rights law — which was, after all, targeted primarily at racial discrimination. The term was added at the last minute by Representative Howard Smith, a staunch segregationist from Virginia, in the hope that lawmakers would see it as a bridge too far and vote down the entire bill. Mr. Smith’s failed gambit continues to pay off in ways that he surely never could have dreamed.
Still, there are reasons to be cautious.
Justice Gorsuch’s commitment to textualism, a method of interpreting laws by looking solely to their plain words, achieved a just result in this case, but when applied too rigidly it can lead to very unjust results. In his previous job on a federal appeals court, then-Judge Gorsuch wrote an opinion holding that a trucker could legally be fired for abandoning his broken-down truck in subzero temperatures — based on a wooden reading of the word “operate.” In short, this particular victory for gay rights was based not on the fundamental equality or dignity of gay and transgender Americans, as previous Supreme Court decisions have been; it was based on the meaning of a single word.
The opinion also hints at a potentially serious obstacle on the horizon: claims by employers that being prohibited from discriminating against gay and transgender workers violates their religious convictions. Such claims are likely to find a sympathetic ear among this Supreme Court’s conservative majority, which has repeatedly voted to protect if not promote religion and religious objectors.
For now, however, Monday’s decision is a victory to savor, the next major step in a line of gay rights decisions stretching back nearly a quarter century, and until now written solely by Justice Anthony Kennedy.
Justice Kavanaugh, who succeeded Justice Kennedy in 2018, graciously admitted as much in his dissent. Although he disagreed with the majority’s opinion, he wrote: “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.”
Take pride, indeed.
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