This week, the Supreme Court issued its decision in Bostock v. Clayton County, Georgia and two related cases, holding that an employer who discriminates against or fires an individual for being gay or transgender violates Title VII of the Civil Rights Act of 1964. This episode explores this landmark decision with Joshua Matz, a constitutional lawyer who wrote a key amicus brief in support of the employees in these cases, and Dr. Matthew Franck of Princeton University. They dive into the “weeds” of Justice Gorsuch’s majority opinion, the dissenting opinions by Justices Alito and Kavanaugh, and the reasoning behind them—then take a step back and examine the “forest” view of how this ruling may affect LGBTQ people as well as religious groups and others more broadly.
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PARTICIPANTS
Joshua Matz is a partner at Kaplan Hecker & Fink LLP. He recently rejoined Kaplan Hecker from the House Judiciary Committee, where he served among counsel for the impeachment and trial of President Trump. He is also an adjunct professor at Georgetown University Law Center. Matz co-wrote an amicus brief with Professor Larry Tribe in support of the employees in these cases on behalf of former solicitors general. He is also co-author with Tribe of To End a Presidency: The Power of Impeachment.
Matthew Franck is the Associate Director of the James Madison Program in American Ideals and Institutions, and Lecturer in Politics, at Princeton University. He is also a Senior Fellow of the Witherspoon Institute in Princeton and Professor Emeritus of Political Science at Radford University in Virginia, where he taught constitutional law, American politics, and political philosophy. He is the author, editor of, or contributor to several books on religious freedom, constitutional law, the Supreme Court, and American politics.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
ADDITIONAL RESOURCES
This episode was engineered by the National Constitution Center's AV team and produced by Jackie McDermott. Research was provided by Maggie Gillespie and Lana Ulrich.
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TRANSCRIPT
This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.
Jeffrey Rosen: [00:00:00] I'm Jeffrey Rosen, President and CEO of the National Constitution Center. And welcome to We the People, a weekly show of constitutional debate. The national constitution center is a nonpartisan nonprofit chartered by Congress to increase awareness and understanding of the constitution among the American people.
This week, the Supreme court handed down Bostock versus Clayton County, Georgia, and two related cases. They held that an employer who fires an individual merely for being gay or transgender violates title seven of the Civil Rights Act of 1964. On today's episode, we'll discuss this landmark decision with two leading scholars of the Supreme Court.
Joshua Matz is a partner at Kaplan Hecker and Fink LLP. He recently rejoined the firm from the house judiciary committee where he served as counsel for the impeachment and trial of President Trump. He is the author with professor Lawrence Tribe of "To End a Presidency" and he filed a brief in this case, in support of the employees on behalf of former solicitors general, Joshua, it's great to have you back on the show.
Joshua Matz: [00:01:10] Thank you for having me.
Rosen: Matthew Franck is the associate director of the James Madison program in American ideals and institutions and lecture and politics at Princeton University. He's also a senior fellow at the Witherspoon Institute at Princeton and professor emeritus of political science at Radford University. Matthew, thank you so much for joining.
Matthew Franck: [00:01:30] Great to be with you, Jeff. Thanks.
Rosen: [00:01:31] Let's jump right into the decision. Joshua, what did the Court hold and what was Justice Gorsuch's legal theory for the holding.
Matz: [00:01:42] Well, these cases came to the court presenting a pretty clear question, which is whether the Civil Rights Act of 1964 in particular title seven of that act, which prohibits discrimination and employment because of race, color, religion, national origin, or as relevant here, sex, whether that statute prohibits discrimination on the basis of sexual orientation or transgender status.
And the Court gave a very clear answer to those questions. It said that title seven does prohibit such discrimination. To reach that conclusion, Justice Neil Gorsuch, who inherited Justice Antonin Scalia's seat on the Court reached for a theory of statutory interpretation, most famously articulated and championed by Justice Scalia.
A theory known as textualism, which holds that in reading a statute, you really should focus on the plain meaning of the language, the ordinary meaning of the words as understood by those who enacted it rather than accounting for other considerations, like legislative history or the underlying purpose of the law.
And as Justice Gorsuch explained for a six justice majority, which included the four more left leaning justices, as well as Chief Justice, John Roberts, the plain meaning of the words in title seven, which prohibits discrimination because of such individuals sex clearly does prohibit firing people just because they are gay or lesbian or transgender.
Rosen: [00:03:13] Matthew help us understand the nature of the disagreement between Justice Gorsuch and the dissenters. Justice Gorsuch said this Court normally interprets a statute in accord with the ordinary public meaning of its terms at the time of its enactment, but the dissenters, including Justices Alito and Kavanaugh said that when title seven was passed in 1964, the ordinary public meaning would not have been understood as encompassing discrimination based on sexual orientation or transgender status. What's the difference between those two versions of textualism?
Franck: [00:03:49] I think actually there's less of a distance between the dissents by Alito and Kavanaugh and the majority opinion by Gorsuch then at first appears. Here's how I read Gorsuch. He proceeds on the assumption, he says this early in the opinion that the statute prohibits discrimination on the basis of sex understood as a biological category, the biological sex of the plaintiffs is what matters. In this, I think he's actually correct. That is the plain reading of the text and the original public meaning. On this I think all three of the opinions in the case agree. What he then proceeds to do, however, is to apply that, textual meaning to an employment situation, using a logic that the dissenters question, the logic runs, something like this.
If an employer has two employees, one of whom is a man attracted to men. And the other of whom is a woman attracted to men and he fires the man. It is on the basis of his sex that he's been fired. Because what you do is you hold steady the attraction to men of the two employees.
Similarly, with a transgender case, the logic is that if an employer has two employees, one of whom is a woman who identifies as a woman. And the other of whom is a biological man who identifies as a woman. And the man is let go, that is the transgender woman is let go. It's because that person is actually biologically male and discrimination on the basis of biological sex has occurred. In fact, one of the strange predicates of Gorsuch's reasoning is that transgender persons are actually the biological sex that they were identified as having at birth.
Rosen: [00:05:48] Joshua your response. Do you agree with Matthew that both the majority and the dissent are trying to interpret original public meaning in 1964, but disagree about the meaning of the word sex or do you see it differently?
Matz: [00:06:03] I see it very differently, actually, you know, the way that the majority reasons about it, the important analytical work isn't even really being done by the word sex, what the majority says is there's a conflict over what sex might have meant in 1964.
You know, there are some possibilities that it meant something broader that might capture more, obvious concepts like sexuality and gender identity. And there are some who think that it means something very narrow, something assigned at birth on the basis of perceived anatomical or genetic characteristics.
And he says, we don't have to answer that because even on the narrower version firing somebody because they're gay or transgender is necessarily because of that individual's sex. And here, I think Matthew articulated the reasoning, fairly effectively, you know, and he says, look, you know the word because of his doing a lot of the heavy lifting here. Because in the statute, because of, is a very broad idea. If you're taking account of sex, if you're taking account of sex-based considerations in deciding whether to fire somebody, then your reasoning is because of sex. And the word individual in the statute tells you that you need to really focus on whether the employer is taking account of the individual's sex or some sex linked trait relating to the individual. And the way Justice Gorsuch reasons about it is to say, well, look, if I fire somebody for being gay, I am firing them in part because of, I am motivated in some respect by features of sex relating to that individual, namely their sex and the sex of people to whom they are attracted. And by the same token, if I fire somebody on the ground that they are transgender, I am firing them because of my beliefs about what their sex assigned at birth is, or should be, what their sex as they identify it is or should be. And my belief that there's a mismatch between those things that I consider unacceptable. And in either case you are very clearly firing somebody because of their sex and because of sex linked considerations that are at the heart of the analysis. And to me, that just seems obviously correct.
Now what Justices Alito and Kavanaugh say in dissent is that, that misses the point. And they come at it from slightly different perspectives.
Justice Kavanaugh says, it's kind of a form of phrasal textualism. What he says is don't look at the individual words because of, such individuals, sex. He says sex discrimination as a phrase, as an idea, was well understood to the public and to Congress in the 1960s and ordinary public meaning has to account for the ordinary public meaning of phrases. And the way he puts it is that Seneca Falls was not Stonewall. Everybody knew in the 1960s, he says that sex discrimination and sexual orientation discrimination are different. And so it's just a mistake, even if Gorsuch's reasoning, formally tracks, it's just the wrong way to do it, according to Justice Kavanaugh. You have to look at the phrase and what the phrase meant, and in his view, the phrase meant treating men or women worse than each other as a group because they're men or women and not what Justice Gorsuch says.
Justice Alito reason slightly differently. For him, it's not the phrase that really matters so much. For him, it's the point, as he articulates it, that you could, in fact, in theory, fire, somebody for being gay, without knowing anything about their sex and without taking account of sex at all in his view. As he puts it, you're sort of noticing sex related traits, but you're not actually finding them because of their sex. You're firing them because they're gay. And so to Justice Alito, Justice Gorsuch has just made an analytical error. And then Justice Alito builds on that argument by saying, no one, if you polled every American alive in the 1960s, no one would have thought this meant that no one has thought it meant that according to him for decades and you know, the way he puts it is that it's arrogant of the Court to assume that it has suddenly been able to read this language in a way that apparently alluded everybody for decades and has reached a conclusion that is inalterably right. That there's no possible other reading of this statute. And so for Justice Alito, at the very least, it's ambiguous. At the very least the text doesn't require Justice Gorsuch's conclusion. In his view, it probably requires the opposite.
But given that there's some ambiguity, you've got to look to context and legislative history and social meaning. And in his view that settles it. And so across all of their opinions, you know, they're engaged in textualist reasoning. But a lot of their disagreement is over what textualism means and what it should look like and how to operationalize it as an interpretive principle.
Rosen: [00:10:53] Thank you very much for that. And for identifying three different versions of textualism, picking up on your categories, I'll call them; the literal textualism of Justice Gorsuch's majority opinion, which says that an employer who fires an individual for being homosexual or transgender fires, that person for traits or actions it would not have questioned in a member of a different sex. Then what you called phrasal textualism of Justice Kavanaugh, which treats the phrase as a whole and asks whether women or men are being treated worse as a group. And then what you suggested might be Justice Alito's contextual textualism that says that when the text is ambiguous, you look at its context, including what people would have thought at the time. So Matthew, we got three categories on the table, literal textualism, phrasal textualism, and contextual textualism. What do you think of those categories? Would you amend them in any way?
Franck: [00:11:47] They make a good deal of sense. And I liked Joshua's explanation of the opinions very much. Justice Kavanaugh, it's interesting, in Justice Kavaugh's dissent, he begins by saying let's assume for the sake of argument that Justice Gorsuch has a literal or a literalist interpretation of the Civil Rights Act's, title seven. And then by the time he is starting to wrap up about 20 pages later, he seems to have forgotten that he said, let's take this as something assumed for the sake of argument and he simply concedes or avows in his own name that what Justice Gorsuch has is a literal or literalist interpretation. I'm not sure I can agree with that characterization of Gorsuch's interpretation of the title seven as the literal one. I think he's made an analytical error. I agree with Justice Alito about that. Alito has a passage in his opinion, in which he attempts to show, I think quite persuasively, that it's not sex, but the category sexual orientation, which is not in title seven that determines the cause of employers discharge of their employees, when he gives on pages 16 and 17 of his dissent the following example of a man attracted to men, a woman attracted to men, a woman attracted to women and a man attracted to women. These four employees being all in the same workplace. And if the employer lets go, the man attracted to men and the woman attracted to women, no one Alito says would conclude that the basis of their discharge was their sex.
Because both a man and a woman were let go. The basis of their discharge was their attraction to persons of the same sex. In other words, it's orientation, a term, not in the statute and not sex, which is the determining variable in their discharge. That seems to me to pretty effectively rebut the avowal of Justice Gorsuch that since 1956, the term sex has been lurking here with this implication that sexual orientation is somehow encompassed in it, and we've only just now noticed.
Rosen: [00:14:15] Joshua, what is Justice Gorsuch's response and what is yours?
Matz: [00:14:18] I think Justice Gorsuch has a powerful and indeed a devastating response to that argument. Because the way that Justice Gorsuch and he does in fact offer this very specific response, you know, Justice Alito's example is, you know, we're firing a gay man and a lesbian, but not their straight counterparts. And so that proves it's not sex discrimination. But that gets everything wrong about the meaning of the statute, and in particular, it's focus on the idea of such individual, because, you know, if just, I mean, think about what the employer would say if they were to spell out their reasoning to those male and female employees. He would go to the gay man and say, because you are a man and because you are attracted to men, I'm firing you. I'm firing you because of your sex and the sex of those to whom you're attracted. And if he went to the lesbian employee, he'd say the same thing. I'm firing you because of the combination of your sex and the sex of people to whom you're attracted. And it's a total mystery to me, how, in each of those cases, you know, you could say that those employers have not been fired in part because of sex.
You literally can't articulate the reasons they've been fired without it. Or take a case of a transgender individual, you know, to fire somebody on the premise that they got their sex wrong, to fire somebody on the premise that you disapprove of the way in which they understand their gender identity, or to fire them on the premise that you were assigned one sex at birth and you are failing to conform to that, and I actually think that you're just wrong about what your sex or gender is, is so obviously about sex, that I actually kind of struggle to understand how a person could think otherwise. And so, you know, I think Justice Gorsuch has clear responses to that. And you know, obviously underlying Justice Alito's argument is a suggestion, you know, well, if that's so clear, how did everybody miss it? Why wasn't it more obvious, sooner? And Justice Gorsuch has some really good responses there too. Responses that go to the heart of, you know, a theory of why textualism would make sense, as a theory of statutory interpretation.
For starters, he says in the very context of title seven, the statute has repeatedly been read in ways that nobody who enacted it, thought it would apply. It has been read to prohibit separate job listings for men and women, even if the employer thinks that won't in fact disadvantage either sex or gender in hiring. It's been read to prohibit, you know, treating women who have children worse than men who have young children, even if an employer claims that overall women are advantaged in the workplace. It's been held to prohibit sexual harassment in the workplace, which was literally not even defined as a term in the 1960s and which was widespread rather than something that was understood to be unlawful and prohibited. It's been read to prohibit male on male sexual harassment in the workplace, which almost certainly would have come as a huge surprise to those who wrote and enacted the law. And in Price Waterhouse Coopers, it was read to prohibit gender stereotyping, or at least to treat such gender stereotyping as powerful evidence of underlying sex-based discrimination, firing a woman, because you don't think she's acting enough like a woman or firing a man because you don't think they're acting enough like a man.
In all of the cases I just described, it's possible that men and women are not as a group, worse off in the workplace. But in all of those cases, it's very obvious that each individual employee who is affected by that form of discrimination is being treated worse at work because of that individual's sex or because of some dimension of their sex that is inextricably caught up in what the statute means when it talks about discrimination because of sex.
And so what Justice Gorsuch says in response to this argument is this isn't a novelty. Congress wrote a really broad law. They may not have understood all of its implications at the time that they wrote it, but we are not going to turn our back on decades of jurisprudence and artificially limit the meaning of the words, just because in the 1960s, they didn't foresee every possible interpretation or application of the law.
And then he goes further and he says, if we did that, it would entrench original expectations about how it would apply in ways that actually may really disadvantage those who are vulnerable and less powerful in our politics, but who are nonetheless covered by the plain language of the law. And it's not only the powerful, it's not only the interest groups that Congress thinks a law will apply to that are allowed to invoke its protections if the letter of the law actually covers them. And what's more, and then this will be my last point, I promise on this, you know, but what's more, he says, this is really just a Trojan Horse for sneaking legislative history and purposivism into textualism. Because if you're going to say, we're only going to consider the plain language of the law, but then the plain language is the plain language, as it was understood by those who wrote it. But then the understanding of those who wrote it is really just going back and trying to figure out how and where exactly they thought it would apply. You end up pretty far away from the language of the law and even pretty far away from maybe what the people who wrote it, thought the words meant. And you end up just trying to reconstruct exactly all of the ways that the people who wrote it thought that its purpose and its applications would be driven.
And that's exactly what the project of textualism is supposedly to get away from. And so Justices Alito and Kavanaugh want to claim the mantle of Justice Scalia, and in some ways, this opinion is a fight over Justice Scalia's textualist legacy, but they claim the mantle of textualism in a way that it seems to me, blast gaping holes in the entire project.
And Justice Gorsuch calls them on it. And I think does so very powerfully.
Rosen: [00:20:00] Matthew, Josh said many things including that this is a debate over the legacy of Justice Scalia and Justice Gorsuch claims that Justice Scalia's textualism requires interpreters to ask how the words were understood and then apply them in ways that may not have been anticipated by those who wrote them. Whereas Justice Alito criticizes Justice Gorsuch for this says it is our duty to interpret statutory terms to mean what they conveyed to reasonable persons at the time they were written. And then he says that the Court's opinion is like a pirate ship, it's sails under a textualist flag, but what it actually represents is the theory of statutory interpretation that Justice Scalia excoriated the theory that the Court should update old statutes, so they better reflect the current values of society. So how do you believe that Justice Scalia would have ruled in this case and respond if you will, to Joshua's claim that the ambiguities show the flaws in his theory of textualism
Franck: [00:21:03] As for the last part, I think that, textualists and originalists would all assent to the proposition that these are not automatic machine-like or mechanical methods of interpreting statutes or constitutions, and that variations, different conclusions are of course, in principle, possible in every case. It is one of the most interesting features of the Bostock case that we have all three opinions quarrelling over the legacy of Justice Scalia who was more responsible than any justice of the modern age for bringing this method of interpretation to the fore. He famously propounded the theory in his book, A Matter of Interpretation, which originated as lectures here at Princeton. And of course in Reading Law, his coauthored book with Brian Garner, he and Garner propounded, all sorts of canons of construction, canons of interpretation of statutes and, all three of the opinions cite these works of Justice Scalia's as well as opinions of his on the bench. For my part, I think that Scalia probably would have sided with Alito and Kavanaugh in this case, but my assertion that, that is how he would have ruled is only that it's an assertion, and Scalia could have been wrong about that. What we have to do is not rely on the authority or the would haves or could haves of a deceased Supreme Court Justice, but to examine the categories and applications of textualism ourselves.
I continue to think Joshua's very well presented, Justice Gorsuch's opinion. I continue to think that Gorsuch has made a grievous analytical error in characterizing these cases as discrimination on the basis of, or because of, or owing to a, but for cause that we can say is described as sex. I think that sexual orientation and gender identity are the causal variables, in the discharges, in these cases. I think that Alito shows that very clearly and as he says, at one point in his opinion, textualists do not read statutes as if they were messages picked up by a powerful radio telescope from a distant and utterly unknown civilization, statutes consist of communications between members of a particular linguistic community. One that existed in a particular place and at a particular time. And these communications must therefore be interpreted as they were understood by that community at that time. That's not a kind of a hidebound or history-bound form of textualism, nor is it purposivism. I think that all of Joshua's examples, all of which get discussed in these opinions, Pricewaterhouse, Oncale, these other cases that involve unforeseen implications of a ban on sex discrimination, they all indisputably had to do with sex. This quite disputably has to do with sex. And I think more persuasively is understood as a case, not about sex, but about other features of the human person, namely orientation and gender identity.
Rosen: [00:24:31] Joshua have we seen these divisions among textualists before? You put three versions on the table, literalism, contextualism, and purposivism. Some of the Justices who joined Justice Gorsuch have sounded more like purposivists in the past. In particular, when Chief Justice Roberts decided to decide with the liberal justices in a five to four decision in the second healthcare case, upholding Obamacare in 2015, he was more interested in the purpose of the law than in its plain meaning. So help us put this debate in context, and in particular, was there anything in Justice Gorsuch's past to suggest that he would be a literalist while the other Justices would be contextualists or purposivists?
Matz: [00:25:13] Sure. Well, I'm happy to offer a few thoughts on that. And then I should flag that I do also look forward to discussing the fact, you know, part of my view of the cases that you know, what's happening here are these debates over textualism that we're talking about. And that I think we're exploring very generatively, but obviously underlying this opinion, are generations of social movement struggle to help the Court and society understand that what, you know, that limitations on the text that may once have seemed obvious are not only non-obvious, but in fact, invidious.
And so I look forward to also having that dimension of this conversation, but you know, in this sort of vein of textualism, you know, I also don't know what Justice Scalia would do. I most certainly do not wake up every morning and think, God, you know, WWSD, like that's not how I roll. I, you know, I do think he would enjoy, whether he likes the outcome or not, he would enjoy a world in which the entire Court is battling under the aegis of his interpretive theory and his legacy. Justice Scalia spent much of his time on the Court, sort of howling from the wilderness at colleagues, many of whom he had alienated in various respects and you know, much of his great influence for part of his career was beyond the Court in the conservative legal movement, and among theorists and practitioners of statutory interpretation. And you know, now he and his legacy and his book, which I have on my shelf right behind me, are at the heart of an interpretive battle in the Court, in a case of great historic moment. And so I think he'd be pleased about the terms of the debate, whether he'd be pleased about the outcome.
You know, and the fact is it's easy to sort of refer to textualism broadly as though it's a monolith, but textualism is vast and it contains multitudes and apparently at least three, versions of itself. And it doesn't surprise me at all because, you know, Justice Gorsuch and Justice Kavanaugh are both professed textualists, quite zealously. So, you know, Justice Kagan famously said, we are all textualists now. Justice Alito is occasionally a textualist. I have to say, he's never struck me as sort of one of the great champions of the theory. Although in this case, he seems to feel fairly strongly about it. And the Chief Justice, your right, there are cases, I think his basic orientation is textualist, but there are cases like King versus Burwell. The case that you mentioned, the second Obamacare case, I don't think he would say he wasn't textualist there. I think that what he'd say is textualism allows you to read text in the context of the statutory plan, which is the word that he uses. Now the dissent in that case, accused him of using the word statutory plan to smuggle in claims about purpose. But that's sort of always what's going on in textualism, right?
People read a sentence or two, they have different beliefs about what it means. And then they accuse the other of looking outside of textualism and trying to smuggle in various things that are supposedly forbidden into the textualist analysis. And that's exactly what's happening in the majority and both dissents here. It's what happens in many cases. And in some ways, you know that so long as the terms of debate are textualist, what we will find is divisions within the textualist worldview. Even as there are several justices on the court who joined Justice Gorsuch's opinion, most obviously Justice Breyer, and I think Justice Sotomayor who would not hold themselves out as textualists, but are happy to engage in that mode of reasoning, where it sort of by its force, applies and controls the outcome. Right? Everyone agrees, you start with the text. And everyone agrees, you end there if the text is unambiguous. And here you have six justices saying, that's what's going on and you have three justices saying that is quite, definitely not what's going on, or if it is it's going in the opposite direction.
And so I think we will see further divisions within the textualist camps. I think we'll see competing views over how it ought to apply, but in many ways, this is a triumph of textualism. Not as some, I think have suggested a moment of it's great defeat. Unless you view textualism as nothing more than a fancy legal guise for achieving conservative policy preferences.
If that's what you think textualism is, then I can understand why this might seem like quite a defeat, but if you are genuinely committed to textualism as an interpretive principle, I would think that you would view the three opinions here as the high water mark of textualism in the history of the Supreme Court.
Rosen: [00:29:22] Matthew, do you agree with that strong statement that this is a high water Mark for textualism and the history of the Court? It certainly is an example of justices reaching legal results that may not correspond to their policy preferences, which was one of Justice Scalia's promises about textualism. And in the course of answering, I wonder what you could tell our listeners, many of whom write and ask why was Justice Scalia an originalist when it came to constitutional interpretation, but a textualist when it came to statutory interpretation he was less interested in looking at original understanding when the language was clear?
Franck: [00:30:01] Yeah. That, I'll come back to that last question. I do think that people are going to study the Bostock case, for quite some time, to try and understand how a professed attachment to the method known as textualism and statutory interpretation could lead to two or three such different styles of reasoning and two such different outcomes.
As for whether textualism is going to gain adherence from this, it's hard to say some people upset with the opinion in Bostock are saying, look, you know, if this is where textualism leads us, it's a failed project and we need, to turn somewhere else.
On the side of someone who's actually happy with the outcome, Cass Sunstein argued, yesterday, in his Bloomberg column, that if textualism is the governing mode for interpreting title seven of the Civil Rights Act, maybe on those grounds, we have to worry about affirmative action, which, entails, racial preferences that run afoul of the literal understanding of the text.
I frankly wouldn't worry about that outcome so much if I were Professor Sunstein, but you see that. He's concerned that the justices who are not professed textualists, Breyer, Ginsburg, Sotomayor, Kagan may be, you know, half drawn to it half not. But Sunstein is concerned that they've signed onto an opinion by Gorsuch that may commit them to textualist principles in reading the statute in future in other contexts where maybe the outcome would not be so happy for their preferences.
Now the last part of your question. Justice Scalia's textualism and statutory interpretation and originalism in the Constitution. The short answer for that, is that, Scalia understood statutes to be fairly detailed legislative directives to go forth and do this, that, or the other thing to the government or to private actors in the society.
Whereas the Constitution speaks more in generalities and principles without the level of detail and specificity that one normally encounters in a statute. The Constitution's total word count is something under 8,000 words, and it covers an awful lot of ground in such brevity. And so therefore, while I think Scalia would affirm that wherever the text of the Constitution is plain on its face and has a certain undeniable textual meaning we should follow that. Constitutional law seems to require a bit more resort to extrinsic sources of understanding the original public meaning of 1789, 1791, 1868, and so forth. He was famously, famously, excoriating about legislative history and the interpretation of statutes. He would even you know, especially, write concurring statements to cases in which he agreed with the outcome, if there was one section of an opinion that did legislative history, he would say, I join the opinion except for that section, you know, because I just won't attach myself to that. So he was much tougher on his textualism, but I think it's because he understood statutes and constitutions to have different levels of specificity.
Rosen: [00:33:54] Joshua does this case call into question Justice scalia's confidence that statutory text is often clearer and more specific than constitutional attacks, given the very profound disagreement about what the word sex means? And more generally, what would you say to our, We The People listeners who are confused by Justice Scalia's different treatment of context when it comes to statutory and constitutional interpretation?
Matz: [00:34:20] Gosh. Well, I, you know, I have to be honest that I've never troubled myself over much with that question about, you know, a perceived inconsistency in Justice Scalia's approach. You know, my impression was his approach was in many ways consistent, which is in reading both the Constitution and texts, he tries to understand their original public meaning. When it comes to, you know, statutes that might mean looking to understand the ordinary meaning of the words as used in the text, but that might give you a more particular answer because statutes tend to answer more precise questions. Whereas with the Constitution, you necessarily resort to considerations much further afield from the text to understand its original public meaning. Because as Matthew pointed out, the text is a lot shorter and speaks in majestic generalities. And so I've never, you know, felt overly concerned about that. I mean, I think there's plenty of wrong in Justice Scalia's approach to interpretation of the Constitution, but that isn't one that I would sort of flag as top of my list. Now, you know, I do think, you know, it's interesting, you know, this is a decision of just unbelievable historical importance and, you know, we we've, I feel like we started in the weeds and I hope you won't mind that I'm going to try to drag us a little bit out, up into the forest.
Because, you know, it's kind of hard to overstate the real world, practical importance of this decision and the importance of this decision to a lot of people, many of whose lives will be made considerably better as a result of it, but others of whom in our society will surely feel all the more anxious and uncomfortable, and set upon by powerful institutions who they think don't properly account for and reflect their view of the world when it comes to these matters. And who may be particularly anxious about matters like religious freedom and personal privacy. And so, you know, it's a hugely important decision. It advances the cause of LGBT rights in tremendous ways. It raises and engages and conflicts with preexisting fault lines in our society in ways that will surely incite further conflict in questioning. You know, the fact that textualism doesn't definitively resolve that question one way or the other, the fact that good faith practitioners of textualism may have different outcomes may have different views about the outcome of the case, that doesn't seem to me to be a huge problem for textualism. If anything, what it suggests is that textualism as an interpretive theory will sometimes present hard questions as any worthwhile interpretive theory will. It suggests that good faith applications of textualism will continue to give rise to some disagreements. And that as you pointed out, Jeff, you know, in some of its applications, it will do in part what it's supposed to do, which is lead judges to policy outcomes they may otherwise not favor. You know, Justice Kavanaugh, all but suggests in his dissent that he prefers a world in which there are protections against employment discrimination for gays and lesbians, but then says that the separation of powers doesn't leave the choice to him.
I don't know what Neil Gorsuch or John Roberts think, but I very much doubt they have so strong a policy preference for it that they cast the law to the side and wrote this opinion in bad faith. You know, I very much think that what we're seeing is a theory of interpretation playing out in good faith, but in ways that lead to understandable disagreement.
I think if anything that reinforces the validity of the Court's opinion and the legitimacy of the Court's opinion, because it shows the justices not engaged in a sort of uninteresting political or partisan project, but genuinely engaged in an effort within the bounds of the law to get the statute right. You know, and the fact that they disagree doesn't prove the futility of the effort. In some ways it may prove the success. And so, you know, I think that this is a decision that will stand and will come to be respected. I think it's a decision that reflects a Court that is now able to see what the text means, because it is not blinkered by prejudices that previously led people to fail to appreciate the meaning of the plain words. And I think it's a decision that will come to be seen as one of the great triumphs of the LGBT rights movement. But also will come to be seen as a decision that itself sparked further conversation and conflict over these issues. And that was, you know, maybe not the first, but definitely not the last word on the subjects that it addresses.
Rosen: [00:38:40] Matthew, Joshua has taken us from the weeds, which we thoughtfully trudged through to the forest. And as he suggests, the decision opens up many questions, including those raised at the end of Justice Gorsuch's opinion about a possible objection by religious employers about complying with title seven's requirements. Justice Gorsuch says we also are deeply concerned with preserving the promise of the free exercise of religion, that worries about how title seven may intersect with religious liberties are nothing new. And, he says that the Court can decide those in future cases. In light of the decision, how do you think that some of those disputes might be adjudicated?
Franck: [00:39:26] How they might be adjudicated is a really interesting and fairly open ended question. I'm not much of a prognosticator. I didn't predict this outcome on Monday. Let me back up for just a second and say that I agree with Joshua about the magnitude of this case's importance.
And I think that I can agree too that when we encounter a case like this by a divided Court, and we struggle to understand the reasoning of the side we disagree with, we should take it as a judicial exercise undertaken in good faith. And when we conclude, if we do conclude that this or that opinion of this or that justice is wrong, is analytically erroneous or treats legal principles in a mistaken way, the next thing we might do is speculate about why, but, you know, we're not usually going to discern just why that is. I take it as given that Justice Gorsuch and Chief Justice Roberts joined the more liberal justices of majority, for reasons they found to be legally compelling and that they weren't simply doing politics. Why they came out the way they did is something that those of us who disagree with the outcome can torture ourselves about, but it won't get us very far. I do, I am concerned about the separation of powers aspect here that, that Justice Kavanaugh, pointed to as did Justice Alito. I think that LGBTQ advocates were, before this decision, very close to getting congressional legislation that a Democratic Congress and the next Democratic president, a president we may have very soon, would enact and sign. And I, you know, if that is the kind of legal regime ahead of us in any event, I would prefer that it come from the Congress. As a political scientist, I'm more inclined, to hope for reasonable accommodations of dissent, reasonable accommodations of space for religious liberty, reasonable accommodations of academic freedom in universities on these questions of sexual orientation and gender identity, then we're going to get out of the kind of binary winner, loser environment that jurisprudence typically delivers.
So, you know, I think this is a momentous case. The Court, you might say, stole a base here. I would say they stole a base here and delivered a victory that might've been in the offing anyway, in the legislative process. And now I think real cases of religious liberty and other kinds are awaiting us.
The Hosanna-Tabor case of several years ago, carves out of ministerial exemption, for instance. A number of Catholic bishops around the country began immediately after Hosanna-Tabor, to require that the annual contracts of parochial school teachers in their dioceses, identify those teachers as ministerial employees of the schools, no matter what they taught. Those were some farsighted bishops. Whether those contracts will be understood to trigger Hosanna-Tabor protection, remains to be seen. Some bishops didn't do it and may want to claim that protection, going forward. But I think we're in for a lot of litigation on questions like this.
Rosen: [00:43:30] Joshua, Matthew, borrowing Justice Alito's concern about separation of powers, says the Court stole a base because Congress was in the midst of considering protection for gay, lesbian and transgender people and hadn't yet passed it. And that this may have taken the wind out of that legislative sail. What's the relevance for you, of the fact that Congress considered, but didn't pass this legislation? And then although the religious liberty exemption is a large question, which we'll certainly examine on a future podcast, how does this decision change the analysis about when the ministerial exemption applies and when religiously motivated employers are able to seek exemptions from title seven, if at all?
Matz: [00:44:13] I don't assign a great deal of significance to the fact that Congress had considered legislation that would do what the Court did, but hadn't previously enacted it. Neither does the Supreme Court, every member of the Court has joined opinions, explaining why as a matter of law, the fact that Congress didn't pass a bill generally has very little weight in the analysis. And as Justice Gorsuch points out in his majority, you know, if the text means what it means, the fact that Congress might be considering legislation to clarify that or to confirm it doesn't make the text mean what it says any less.
And so, you know, the correct role for the Court under the separation of powers is to interpret the statute. And the fact that another branch of government may be proposing legislation that would achieve a similar result, does not obviate the judiciary's independent obligation under Article Three of the Constitution to adjudicate cases and controversies and here to decide whether the statute already provides such protections properly read.
And so I don't see the separation of powers concerns looming quite as forcefully. And I take Matthew not to be really making a point about the separation of powers, although he calls it that, I take him to be making a point about politics, which is wouldn't it just be better if Congress could sort of have a single bill that accounted for all of this and try to strike a few balances within it, instead of sort of saying, affirm, you know, the Court, reading the statute in a way that affirmatively provides protection and then having to sort of figure out all the implications and accommodations that might follow from that on a case by case manner.
That for what it's worth in my mind is not a point about the separation of powers. It's a point about, it's a policy argument that it would be better for these issues to be decided one way rather than another. And it's certainly not a good reason to give the statute an unnatural or incorrect interpretation. If you think that by its terms, it just does protect LGBTQ people.
But you know, I'm also not sure about the policy argument even taken on its own terms. You know, Matthew says, you know, gay people, you know, sort of, wouldn't it be better, you know, for Congress to do this and make the decision itself, you know, whether to protect LGBTQ people or they were probably gonna get a statute like that anyway, so what's the big deal if they just wait a few years and hope for the best with the election. You know, I have to tell you, there are a lot of people out there who, you know, were born just like I was and who as a result of that risk their entire livelihoods. And risk suffering, a great deal of harm and pain. They can exercise their constitutional right to marry on Monday and be fired for it on Tuesday. So I've always felt a little bit less sanguine about suggestions that we should just wait and hope for the best, particularly if there's a statute that given its fair terms already provides protection. But moreover, you know, the defaults here shouldn't necessarily be that gays and lesbians lose until Congress provides otherwise, if there's already a statute in which Congress has provided otherwise. What should happen in that case is the statute should be interpreted correctly. And then if there's a need for further accommodation and further nuance in how that statute works in different contexts or a need to account for countervailing considerations, Congress is just as capable of taking up that bill, as it would have been of taking up the bill that Matthew has proposed.
And so it seems to me that the separation of powers provides a pretty clear answer to this circumstance. Which is the Court should read the statute to mean what it says, and if that raises policy concerns that have political purchase, you know, Congress is free to account for that in it's future legislation. And to the extent it raises legal concerns of statutory or constitutional salience, the court can adjudicate them as they arise. And I'm sure that Matthew's right, I'm sure they will arise.
You know, and Jeff, you asked what significance this decision has, you know, for the constitutional religious freedom cases at the Court. You know, formally the answer I think is none, right? This is just an interpretation of title seven. It doesn't really purport to interpret the Constitution. It remarks briefly upon the Federal Religious Freedom Restoration Act, but doesn't necessarily give it an authoritative interpretation. You know, the practical effect is obviously that it will lead to the generation of hard questions. Because there are going to be as Matthew, very reasonably and rightly points out, people, whether religious or otherwise, who for any number of reasons are uncomfortable with applications of this statute or of other statutes that similarly prohibit discrimination because of sex, they will seek to present countervailing interest in arguments and will argue that those statutes should be read differently or should be read to allow accommodations. And the courts will do what they always do, what they're supposed to do, under the separation of powers, which is hear those cases and decide them under the law. And I suspect that given the current majority on the court, there will be some momentum in favor of either statutory or constitutional accommodations or limitations in at least some circumstances, and certainly within the core religious setting that Matthew talks about, of civil rights protections. And so that's all to say in a very big way. I think the Court got it right. I think the Court did what it's supposed to do, which is it read the law to mean what it says. And if there are consequences that follow from that either illegally or policy-wise that folks are uncomfortable with, and obviously people will have different feelings about that. Those can be handled in their own turn. But the only question before the Court here is whether title seven means a particular thing. The Court got it right. And saying that it did. And that's exactly what the Court was supposed to do.
Rosen: [00:49:42] Matthew, the last word in this fascinating debate is to you, tell our listeners why you believe that the Court got it wrong and what you think that the implications for the conservative legal movement and for the Supreme Court will be.
Franck: [00:49:58] The second, the first part of your question, Jeff, asked me to reiterate things I said, 40-45 minutes ago. Why do I think the Court got it wrong? I do think that there's simply an analytical error in Justice Gorsuch's, but for reasoning regarding the discharge of employees who are gay or transgender, that in fact, it's not on the basis of their sex or because of their sex, that they're let go, but because of some other characteristic of theirs, which is not a protected characteristic in law. So Joshua and I simply disagree about whether the Court read the statute correctly or the statute's application to these cases correctly.
As for the cries of anguish I'm already hearing in the conservative legal movement, I have to say that there are some who are saying the game is up textualism and originalism are failed projects. What we need to do is a kind of right-wing Dorkinianism of moral reading of the law in the name of conservative values. Adrian Vermeule, of Harvard Law School, I think is leading the charge on that. I disagree vehemently with that path ahead. I think that if the Bostock case represents a failure of the rule of law, as I believe it does, a failure of statutory interpretation and of Supreme Court jurisprudence, the answer is not to abandon the neutral principles of the rule of law and go for a kind of moral purposivism in reading statutes and constitutions. I think that's an invitation to all kinds of trouble in the law and all kinds of trouble with the pillars of republican government in our constitutional order.
Rosen: [00:52:09] Thank you so much Joshua Matz and Matthew Franck for a illuminating, rigorous and thoughtful discussion of one of the most important Supreme Court decisions of the term. Very grateful to both of you for educating me and our We The People listeners. Joshua, Matthew, thank you so much for joining.
Matz: [00:52:29] Thank you very much for having us.
Franck: [00:52:31] Thank you, Jeff.
Rosen: [00:52:34] Today's show was engineered by the National Constitution Center's crack AV team and produced by Jackie McDermott, our superb podcast producer. Research was provided by Maggie Gillespie and Lana Ulrich. The homework of the week, you know what it is, dear We The People friends, read the Bostock decision! Both the majority opinion and the dissent. And if you're so moved right to me and tell me whose vision of statutory textualism you found most persuasive and why.
And always rate, review and subscribe to We The People on Apple podcasts and recommend the show to friends, colleagues, or anyone, anywhere who is hungry for constitutional enlightenment and debate. And don't, we all need so much of that enlightenment during these challenging times.
And always remember when you wake and when you sleep that the National Constitution Center is a private nonprofit. We rely on the generosity, passion, engagement, and devotion to lifelong learning of people from across the country, like you who are inspired by our nonpartisan mission of constitutional education and debate. You can support the mission by becoming a member at constitutioncenter.org/membership. Or give a donation of any amount to support our work, including this podcast, at constitutioncenter.org/donate. On behalf of the National Constitution Center, I'm Jeffrey Rosen.
