Counterfeit Textualism

(Brendan McDermid/Reuters)

How to think about the Title VII cases

In 1964, Congress adopted Title VII, which forbids employers to discriminate based on sex. No one suggests that any member of Congress or the public then understood Title VII to ban discrimination based on “sexual orientation” or “gender identity.” Did generations of Americans miss something hidden in plain sight? Justice Elena Kagan thinks so. And she believes she can prove it with a knockdown “textualist” argument. But that argument fails for a decisive reason — one foreshadowed by Justice Neil Gorsuch’s expert dismantling of Kagan’s analysis in an earlier anti-discrimination case, Masterpiece Cakeshop v. Colorado Civil Rights Commission.

In the Title VII cases, Kagan proposes to test for sex discrimination by asking what would happen if an employee’s sex were flipped and all else were held constant. Thus, she would say, a company that fires Riley for being a woman who dates women is discriminating based on sex, because it would have kept Riley on if she were a man who dates women.

Clever, right? But the argument is fallacious. If it seems like a knockdown, that’s only because the objectionable moves were made offstage and then smuggled into the argument’s setup, diverting our gaze from the only fair reading of Title VII.

The whole appeal of Kagan’s argument is that it purports to flow directly from the text (“discriminate”), without any contestable moves along the way. Once you see that this is false, the argument loses all appeal, and its proponents have to fall back on dubious premises that cut against the only reasonable reading of the text. As we’ll see, the “textual” part of Kagan’s “textualist” case is doing no work whatsoever.

The hypothetical scenario described above doesn’t actually hold “all else constant.” In changing Riley’s sex while holding constant the sex of Riley’s dating partners, it flips a second factor, too: Riley’s “sexual orientation,” which has gone from homosexual to non-homosexual (or, if you prefer, from “gay” to “straight”).

As this shows — and here’s the decisive point — it’s impossible to hold all but sex fixed in these cases. In designing a hypothetical to use for comparison, we have two options: (1) change the employee’s sex and her orientation (but not her partners’ sex), or (2) change her sex and her partners’ sex (but not her orientation). Only the first path leads to Kagan’s preferred result, but nothing in the text compels it. On the contrary, only the second hypothetical keeps constant all the details that reasonable readers of Title VII would deem relevant based on the law’s text, logic, and history.

​When it comes to orientation-based employment practices, the closest opposite-sex analogue to a woman of a certain orientation is a man of that orientation — whom the employer would treat the same. So the employee’s sex isn’t among the employer’s reasons for action, or motivations. And motivations are decisive because the text of Title VII plainly picks out certain employers by their practical reasoning (those who “discriminate against” people “because of” a trait). Thus, race-based discrimination under the law will reflect reasoning or motivations involving some generalization or other belief or attitude about people of a particular race. Even supposedly “race-neutral” anti-miscegenation policies were motivated by certain beliefs — reprehensible beliefs — about African Americans’ “proper place” in society.

Likewise, the reasoning or motivations of someone discriminating by sex will include some generalization or other belief or attitude specifically about women, or (less often) men. That explains why the Title VII plaintiffs, in their briefs and oral arguments, ultimately had to fall back on a major non-textual (and manifestly implausible) premise: that opposition to homosexual conduct is necessarily patriarchal or misogynistic. The truth, of course, is that no sexism need figure in the reasoning or motivations of an employer opposed to, say, hiring those engaging in same-sex sexual relations (as confirmed by myriad intellectual traditions, historically and today, that oppose homosexual conduct for everyone, on moral grounds that give no special exceptions or advantages to men). And so the American public has not, after all, been missing the plain import of Title VII for over half a century.

In short, to make their conclusion seem inescapable, the plaintiffs had to manipulate the hypothetical scenario meant to test for sex discrimination without even acknowledging, much less defending, their dubious choice.

There was similar misdirection in Masterpiece Cakeshop. There Kagan and Gorsuch debated whether a Christian baker, by declining to work for same-sex wedding celebrations, had unlawfully denied to people of one orientation the “same product” he had sold to others. Kagan said yes, identifying the “product” as a wedding cake, plain and simple. But Gorsuch’s rigorous logical analysis proved that Kagan’s description stacked the deck.

There were, he noted, many ways to define the product: “a mixture of flour and eggs,” a “generic wedding cake,” or a cake celebrating this same-sex couple’s wedding. The state picked a description hostile to the Christian baker’s conscience claims but chose a more conscience-friendly description in cases involving progressive bakers refusing to make cakes offensive to their values and principles. A putatively formalist rule — requiring vendors to sell everyone the “same product” — was cloaking the state’s substantive policy preferences.

​Here, too, policy views are driving a supposedly “formalist” choice of the hypothetical scenario used to detect sex discrimination — and, in the process, driving us away from the only fair reading of Title VII. The Court should reject this dialectical sleight-of-hand as a sophistical mockery of textualism and leave the power to rewrite Title VII where it belongs — with Congress.

Robert P. George is the McCormick Professor of Jurisprudence at Princeton University.

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