Justice Gorsuch’s Halfway Textualism Surprises and Disappoints in the Title VII Cases
Title VII of the Civil Rights Act of 1964 made it unlawful for employers to “discriminate against” employees “because of . . . sex.” Did that landmark statute also prohibit discrimination against employees because of their sexual orientation or gender identity? In Bostock v. Clayton County, the Supreme Court answered yes by a 6–3 vote. Justice Neil Gorusch wrote the majority opinion, which was joined by Chief Justice John Roberts and the Court’s four progressives. Justices Alito, Thomas, and Kavanaugh dissented.
But we were both surprised and disappointed by Justice Gorsuch’s majority decision. And after some reflection, we think we know where he went wrong. Justice Gorsuch’s analysis did not begin with first principles. Rather, he simply assumed that decades of case law accurately interpreted Title VII. Indeed, he treated decades of precedent as part of the “law’s ordinary meaning” in 1964. Moreover, Justice Gorsuch failed to recognize the relationship between two essential phrases in Title VII: “discriminate against” and “because of.” These terms cannot be considered in splendid isolation. When combined, they reference discrimination based on bias or prejudice. In short, Justice Gorsuch built an elaborate textualist framework on a shaky foundation. Regrettably, this halfway textualism led Justice Gorsuch astray.
Through the Civil Rights Act of 1964, Congress took momentous steps to eradicate prejudice and bias in the workplace. Title VII of that landmark law made it unlawful for employers 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.” Despite how some critics characterized Bostock, all nine Justices agreed — at least for purposes of this case — that “sex” referred to the “biological distinctions between male and female.” The meaning of the word “sex” did not evolve, and the majority did not “update” or “rewrite” the statute. What fractured the Court was the relationship between two critical terms: “discriminate against” and “because of.”
Let’s start with the first term. How was the phrase “discriminate against” understood in 1964? Justice Gorsuch cites the definition of “discriminate” from Webster’s 1954 New International Dictionary: “To make a difference in treatment or favor (of one as compared with others).” But that’s not the entire phrase used in the statute. Title VII refers to “discriminate against.” And the additional word “against” modifies the meaning.
To define “discriminate against,” Justice Gorsuch relied on a 2006 decision by Justice Breyer, which stated “no one doubts that the term ‘discriminate against’ refers to distinctions or differences in treatment that injure protected individuals.” However, Justice Breyer was interpreting a different provision of Title VII that governed retaliation. Moreover, Justice Breyer made no effort to understand how “discriminate against” was understood in 1964. Instead, he relied on a 1989 decision by Justice William Brennan. But this decision did not turn on the meaning of “discriminate against.” Rather, Justice Brennan considered the phrase “because of.” Justice Gorsuch’s research trail slammed into a brick wall. Yet despite this incomplete analysis, Justice Gorsuch concluded that the phrase “to ‘discriminate against’ a person, then, would seem to mean treating that individual worse than others who are similarly situated.”
Justice Gorsuch committed errors of both source and time. He determined the ordinary public meaning of a 1964 statute by relying on case law from decades later. In 1964, there was another sense of “discriminate against” that Justice Gorsuch did not consider. Professor James Phillips conducted a thorough study of how the phrase “discriminate against” was used in the 1950s and 1960s. That phrase did not merely refer to differential treatment. Rather, “discriminate against” referred to differential treatment “based on some trait [that is] motivated by prejudice, or biased ideas or attitudes.” Webster’s New World Dictionary from 1960 accurately captured this sense: “to make distinctions in treatment; show partiality (in favor of) or prejudice (against).” And Funk & Wagnalls Standard Dictionary from 1963 provides a similar definition: “to act toward someone or something with partiality or prejudice: to discriminate against a minority.”
Recently, a biopic was made about the life of Ruth Bader Ginsburg. Its title, On the Basis of Sex, was an homage to the widespread understanding of what it meant to discriminate against a woman on the basis of sex. In 1973, Ginsburg, then an ACLU attorney, argued Frontiero v. Richardson (1973). At the time, the Air Force granted certain benefits to a male officer’s wife, but denied those benefits to a female officer’s husband. Ginsburg contended that the law was premised on a stereotype. During oral argument, she told the all-male Court that the government “assumes that all women are preoccupied with home and children.” Such prejudices, she explained, “help keep [a] woman in her place, a place inferior to that occupied by men in our society.” That bias and prejudice formed the core of sex discrimination.
Had Justice Gorsuch relied on the ordinary meaning of “discriminate against” in 1964, he would have recognized that bias or prejudice had to play some role in the differential treatment. It wasn’t enough to merely treat people differently “because of” sex. Regrettably, Justice Gorsuch cherry-picked dictionary definitions. And he did not acknowledge contrary evidence. (Justice Alito’s dissent cited Professor Phillips’s survey). Moreover, Justice Gorsuch treated judicial decisions from decades after the enactment of the Civil Rights Act as part of the statute’s ordinary meaning. As a result, Justice Gorsuch stripped the phrase “discriminate against” of its essential elements — bias or prejudice.
The second essential component of Title VII is “because of.” How was “because of” understood in 1964? To define this term, Justice Gorsuch relies on a 2013 decision by Justice Kennedy. Once again, however, Justice Kennedy was interpreting a different provision of Title VII that concerned when an employer retaliates against an employee. Such retaliatory decisions do not involve traditional allegations of bias or prejudice. And in turn, Justice Kennedy’s decision relied on a 2009 decision by Justice Thomas interpreting the Age Discrimination in Employment Act, yet another different statute. Justice Thomas’s decision, in turn, relied on Webster’s Third International Dictionary from 1966, which defined “because of” as “by reason of: on account of.” By this route, in Bostock, Justice Gorsuch viewed Webster’s Third’s definition as the “ordinary meaning” of “because of.”
Yet Justice Gorsuch then pivots. He abandons that “ordinary meaning” in favor of a specialized, technical legal meaning — what lawyers refer to as a term of art — not found in Webster’s Third. He writes that “in the language of law . . . Title VII’s ‘because of’ test incorporates the ‘simple’ and ‘traditional’ standard of but-for causation.” Gorsuch’s quick retreat from ordinary meaning is perplexing. Either a term has an “ordinary meaning,” or it has a specialized meaning. He cannot have it both ways. Gorsuch’s pivot to a “but-for” theory of causation to understand “because of” was the key move. Indeed, this choice dictated the outcome of Gorsuch’s entire textualist analysis.
With that legal meaning, Justice Gorsuch explained that the “but-for test directs us to change one thing at a time and see if the outcome changes.” Would an employee still have been fired if she was male, instead of female? For Gorsuch, if the employee’s “sex” made the difference, “we have found a but-for cause.” Justice Gorsuch offered an easy-to-understand example. An employer hires a gay man and a straight woman; both employees are attracted to men. The employer then fires the male employee because he is attracted to men, but he retains the female employee who is also attracted to men. Gorsuch reasons, “the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause of his discharge.” He adds, “sex is necessarily a but-for cause when an employer discriminates against homosexual or transgender employees.” With this hypothetical, it is not necessary to show that the employer was homophobic; the mere fact that sex served as an ingredient in the termination is sufficient.
This example works well enough as a logic game. Indeed, Justice Kagan teased these sorts of hypotheticals during oral arguments. And we can see how this airtight reasoning may have appealed to Justice Gorsuch’s meticulous sensibilities. Alas, the premise underlying this logic was doubly flawed. First, this analysis relies on precedents that did not take the text seriously. Second, and more importantly, it is a mistake to consider “because of sex” in splendid isolation. The full construct is discriminate against an employee because of sex. The halfway nature of Justice Gorusch’s textualism is what led him astray.
Title VII cannot be dissected like a frog in freshman biology. The phrases “discriminate against” and “because of” are closely intertwined. By the 1960s, the phrase discriminate against because of sex had formed a single linguistic unit. The whole conveyed more meaning than the sum of its parts. This concept did not merely refer to blindly treating a man differently than a woman. Rather, this standard made bias or prejudice an essential element of the casual injury.
During oral arguments in October, Justice Gorsuch suggested that this “case is really close, really close, on the textual evidence.” Something apparently changed between October and June, when he concluded that the “law’s ordinary meaning” in 1964 was “unambiguous.” But that meaning only seemed unambiguous because it was premised on a faulty foundation: moving from the ordinary meaning of the phrase “discriminate against because of sex” to a technical meaning of “because of.”
In the wake of Bostock, some political conservatives have started to question the merits of textualism itself. We understand the visceral reaction to this surprising decision, but we think this criticism is overstated. Textualism provides the strongest basis to criticize Justice Gorsuch’s majority’s decision in Bostock.
In dissent, Justice Alito charged that Justice Gorsuch’s opinion “sails under a textualist flag,” but is more like a “pirate ship.” Justice Alito’s metaphor is half-right. Justice Gorsuch flew the textualist flag at half-mast.
Randy E. Barnett is the Carmack Waterhouse Professor of Legal Theory at the Georgetown University Law Center. Josh Blackman is a constitutional law professor at the South Texas College of Law Houston. They authored An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should Know.
