Bostock Was Written as Textualism, and Textualists Split Over It

Here is a puzzle for anyone who thinks interpreting a statute is a matter of looking things up. Take one word, "sex," in one sentence of one federal law. Hand it to two judges who both say the judge's job is to apply the text as written, who both reject the idea that a court may update a statute to match the times, and who have both spent careers criticizing judges who legislate from the bench. Ask them what it means. They come back with opposite answers, and each of them accuses the other of abandoning the method they share.

That is Bostock v. Clayton County, decided on June 15, 2020. It is a hard case for conservatives, and the honest way to treat it is to walk through the argument rather than to cheer or to scream. Some of the sharpest legal minds on the right wrote the majority opinion and the principal dissents, and they used the same tools. The split teaches more about textualism than a dozen easy cases.

What the statute says

Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin."

Two features of that text matter. The operative phrase is "because of." And the protected traits are five: race, color, religion, sex, national origin. Sexual orientation and gender identity are not on the list. The word on the list is "sex."

A bit of history belongs here, because both sides use it. The word "sex" was added to the bill on the House floor in February 1964 by Representative Howard W. Smith of Virginia, an opponent of the bill. Historians still argue about whether he meant it as a poison pill. What is not disputed is that the amendment passed and the Act became law with the word in it. Whatever the motive of one member, the law's meaning comes from the text that the House and Senate enacted and the President signed.

The cases

Bostock consolidated three cases. Gerald Bostock was a child welfare advocate for Clayton County, Georgia, who said he was fired after joining a gay recreational softball league. Donald Zarda, a skydiving instructor in New York, said he was fired after a customer complained about a remark he made while he was strapped to her. Aimee Stephens was a funeral director at a Michigan funeral home who was fired after informing the owner that she was a transgender woman and would be living and working as a woman. The question in each: does firing a person for being gay or transgender violate Title VII's ban on discrimination "because of ... sex"?

The decision was 6 to 3. Justice Gorsuch wrote for the majority, joined by Chief Justice Roberts and the Court's four more liberal members. Justice Alito dissented, joined by Justice Thomas. Justice Kavanaugh dissented separately.

The majority: three steps

Gorsuch's opinion is built like a proof, and it begins by granting the other side everything it asks about interpretation.

He accepted that the words of a statute carry the meaning they had when enacted. He proceeded on the assumption, which the employees conceded for argument's sake, that "sex" in 1964 referred only to biological distinctions between male and female, which is how the employers argued the word should be read. He accepted that few in 1964 expected the statute to cover sexual orientation or gender identity. Then he argued that none of that decides the case.

1. The phrase "because of" invokes the ordinary but-for test of causation. An event can have many causes. Title VII is violated if sex was a but-for cause of the employer's action, even if it was not the only cause and not the main one. The Court had already adopted that reading of the phrase, in other statutory settings, in earlier cases.
2. Apply the test. Take an employer with two employees who are alike in every way, including that each is attracted to men. One is a man and one is a woman. The employer fires the man for being attracted to men and keeps the woman. The man's sex is a but-for cause of the firing. Change his sex and the outcome changes. The same logic applies to a person who was identified as male at birth, presents as a woman, and is fired for it, while an employer keeps an otherwise identical employee who was identified as female at birth.
3. The text does not carve out exceptions for unforeseen applications. Employers argued that Congress in 1964 never thought about this. Gorsuch answered that the limits of the drafters' imagination are not the limits of the law. When the words are clear, the fact that an application was not expected is no reason to refuse it. Statutes often reach beyond the minds of the people who wrote them.

The sentence everyone quotes is the summary: it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. If you read the opinion as a structure of logic and not as a political statement, the central move is the "but-for" test applied to a hypothetical pair of employees.

The dissents

Alito: ordinary meaning in 1964

Justice Alito's dissent, joined by Justice Thomas, is long and it is serious. It starts with a charge: the majority claims to be a textualist opinion, but it is in fact an exercise in legislation. Alito's line is among the most-quoted in the case: there is only one word for what the Court has done, and that word is "legislation."

His argument is about method. Under textualism, he said, the question is how a reasonable person would have understood the statutory words when they were enacted, and the term "discrimination because of sex" in 1964 was understood as treating women worse than men or the reverse. Nobody in that era used the phrase to mean what the majority said it means. In 1964, "sex" and "sexual orientation" were two different concepts in ordinary speech, and the legislative history, the state of the law and the practice of the time all reflected that. Congress had considered adding sexual orientation to civil rights bills in later decades and had not passed it. A rule of interpretation that overrides all that evidence because of a clever syllogism is not textualism, Alito said. It is a stratagem for rewriting the law.

Kavanaugh: literal meaning versus ordinary meaning

Justice Kavanaugh's dissent makes a different and narrower argument, and it is worth separating from Alito's. He charged that the majority seized on literal meaning and mechanically put the individual words back together, and he argued that literal meaning is not the whole of statutory interpretation. The Court's task is to find the ordinary meaning, the way a typical user of English would understand the phrase, not the meaning you can extract by breaking it into parts. The distinction is a familiar one in the law of language. His examples were phrases such as "American flag," "three-pointer" and "washing machine," each of which means something narrower than its words taken one at a time.

Kavanaugh argued that the ordinary meaning of "discriminate because of sex" does not cover sexual orientation, and that ordinary speech treats the two as different categories. In his framing, if the people want sexual orientation added, the Constitution gives them a route: persuade Congress. He ended by noting that the Court's role is to interpret, not to amend.

Why two textualists split

Both sides invoked the same philosophy. The disagreement lies in three places.

What counts as "the text." The majority treated the text as the words and their logical combinations. The dissents treated the text as the words as ordinary speakers understood them. Gorsuch's reading follows the law's logic wherever it leads. Alito's and Kavanaugh's treat the public's understanding as a limit on where the logic may go.

How much weight to give to expected applications. For Gorsuch, the fact that Congress did not expect a result does not matter if the words produce it. For Alito, the fact that no one in 1964 would have understood the words to produce that result is strong evidence that the words do not produce it. Both are known positions in textualist writing. Antonin Scalia and Bryan Garner, in their book on interpretation, defend giving words their ordinary meaning at the time of enactment. And Scalia was equally known for arguing that statutes often reach beyond the situations their drafters had in mind. In an earlier case about prisoners, Pennsylvania Department of Corrections v. Yeskey in 1998, a unanimous Court under his pen applied a disability law to state prisons although Congress had not considered the question. He said the fact that a statute can be applied in situations not expressly anticipated "demonstrates breadth." So the majority could cite Scalia, and the dissenters could cite Scalia too.

The role of consequences and process. Kavanaugh in particular stressed that a result of this magnitude should come through the elected branches. The majority replied that this is not the role of the Court's own policy views: a judge may not refuse to enforce the words because the result is large.

That is why the case is useful. It shows that "apply the text" is a method and not an algorithm. The method requires judgment about what the text is.

The questions Bostock left open

Gorsuch said the Court was not deciding a number of matters, and conservatives who worry about the decision should read this part before they read any commentary.

The opinion did not address sex-segregated bathrooms, locker rooms or dress codes. It noted that employers had raised such concerns and said those questions were not before it. It did not address how Title VII interacts with other statutes. And it spoke to religious liberty directly. The majority noted three sources of protection for religious employers: the ministerial exception that keeps courts out of the hiring and firing of clergy and similar religious roles (recognized in Hosanna-Tabor in 2012), the Religious Freedom Restoration Act of 1993, which can require an exemption from a federal law that substantially burdens religious exercise, and the First Amendment itself. The Court said those doctrines might supply defenses in future cases and said that it was not deciding how.

Weeks later, in Our Lady of Guadalupe School v. Morrissey-Berru in July 2020, the Court extended the ministerial exception to teachers at religious schools who carry out religious functions. So the decision is not a closed book. Religious organizations that face claims under Title VII still have arguments grounded in the First Amendment and in RFRA, and the courts have been working out their reach ever since. If you want to follow the current state of those questions, read the federal appeals court decisions on Congress's and the Court's websites, not summaries.

Which reading is sounder?

Here is my view, as an argument and not a mood. I will number it, because the question deserves discipline.

1. Textualism is a theory of constraint. Its point is to stop judges from substituting their own preferences for the law. A method that lets a judge reach a sweeping result by pure logic from a single word, in the face of a mountain of evidence that the word was not used that way, raises the same concern it was invented to address.
2. The but-for argument is stronger than critics admit. It is hard to deny that, as a matter of formal logic, a man fired for loving men and a woman not fired for loving men differ only in sex. The dissents have not answered the syllogism so much as argued that the syllogism does not capture the meaning of the statute. That is a fair reply, but it is a reply about meaning and not about logic.
3. Ordinary public meaning is the better anchor. A statute is a communication to the public, to employers and employees who must read it and follow it. The question that respects both the text and the people it governs is how a reasonable reader would have understood the words when they were enacted. On that test, the dissents have the stronger case about 1964.
4. Method matters most when the stakes are high. This is the same argument conservatives make against judges who find new rights in vague clauses. They are right to ask that the standard be applied consistently, including when the result is one they might favor. A principle that holds only when it produces the outcome you like is a preference with a vocabulary.
5. The remedy was always legislative. Congress can amend Title VII at any time. If the majority's reading was wrong, Congress could say so. If it was right, Congress has had years to act. The branch that wrote the statute is still there.

I come out with the dissenters on method and with the majority on one point: the opinion was written in good faith, with real textualist tools, by a justice who has paid the price for applying the law the way he reads it when it does not suit his own side. Both judgments can be true at once. A movement that claims to value principle ought to be able to say "I think this opinion's method is wrong" without saying "the author is a traitor."

What it means beyond this case

The deeper lesson is that textualism does not remove the need for judgment. It moves the judgment from "what outcome do I prefer" to "what did these words mean to those who used them." That is a real improvement, and it is why conservatives are right to prefer it. But a method this important deserves the most careful use, and Bostock shows how two honest users can differ.

For citizens, the practical lesson is about where to fight. If you do not like what a court did with a statute, the statute can be amended. That route, the one that runs through your representative's office, is the one the Founders designed. You can read more about how the Court weighs its own past decisions in Stare Decisis Explained, and the Factors Justices Weigh Before Overruling, and about the difference between the two schools in Textualism and Originalism Are Cousins, Not Twins, and the Difference Matters. The case for judges who are bound by the text is set out in Why Originalism Is the Only Method That Binds the Judge as Well as the Citizen. For a view of how the press framed the decision, see How the Press Covers Supreme Court Decisions, and What the Stories Leave Out, and for the objection that conservative judges are the real activists, see Are Conservative Justices the Real Activists? A Rebuttal in Six Points.

The case in brief

1. Title VII bars discrimination "because of ... sex," and the word "because of" invokes but-for causation.
2. In Bostock (2020), Gorsuch's majority granted the 1964 meaning of "sex" and still held that firing a person for being gay or transgender is discrimination because of sex, by a but-for argument.
3. Alito's dissent said ordinary meaning in 1964 excludes that reading and called the result legislation. Kavanaugh's said literal meaning is not ordinary meaning.
4. Both sides were textualists, so the split shows that the method requires judgment about what counts as the text, and that ordinary public meaning is the sounder anchor.
5. The religious liberty questions are open, protected by the ministerial exception, RFRA and the First Amendment, and any amendment of Title VII belongs to Congress.

What you can do: read the text of 42 U.S.C. 2000e-2 on Congress.gov, then read the first two pages of Gorsuch's opinion and of Alito's dissent side by side, and decide for yourself where they part ways.