On the Basis of Text: SCOTUS Deals Victory for LGBTQ Rights Through the Words on the Page

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In a 6-3 opinion released on June 15, 2020, the U.S. Supreme Court held that Title VII of the Civil Rights Act of 1964 prohibits employment discrimination against LGBTQ workers. The ruling was delivered by an unlikely majority led by conservative Justice Neil Gorsuch using a legal methodology that has frequently been criticized for conservative bias. The decision is a landmark victory for LGBTQ rights in the United States. It is also a victory for the independence, and perceived independence, of the Court, which many predicted would vote along partisan lines. The decision casts doubt on charges that textualism—which has never been fully embraced in Canada—is an inherently conservative methodology.

Bostockv. Clayton County[1] involved three cases where an employer fired a long-term employee shortly after the employee revealed being homosexual or transgender. The majority opinion (joined by Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan) was authored by Justice Gorsuch, a Trump appointee and widely considered to be one of the most conservative members of the Court.

Justice Gorsuch based his opinion on the text of Title VII, which prohibits employment discrimination that occurs “because of [an employee’s] race, color, religion, sex, or national origin.” Discrimination “because of… sex”, held Justice Gorsuch, occurs whenever an employer “intentionally relies in part on an individual employee’s sex when deciding to discharge the employee” or “if changing the employee’s sex would have yielded a different choice by the employer”.[2] Justice Gorsuch explained 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 members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.[3]

Thus, firing a gay male employee, “for no reason other than the fact he is attracted to men... discriminates against him for traits or actions it tolerates in his female colleague.”[4] Similarly, firing a transgender employee “intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth.”[5]

Justice Gorsuch has long promoted the type of uncompromising textualism[6] popularized by his predecessor, Justice Scalia.[7] True to form, in Bostock, Justice Gorsuch held that the United States “is a society of written laws” which means that “judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations.”[8] There was no serious debate in Bostock that “[t]hose who adopted the Civil Rights Act might not have anticipated their work would lead” to the result reached by the Court.[9] But Justice Gorsuch explained that this was irrelevant as the Court was a faithful servant to the words that Congress chose:

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.[10]

Justice Gorsuch’s reasoning was sharply criticized in separate dissents by Justice Alito (Justice Thomas concurring) and Justice Kavanaugh. Both accused Justice Gorsuch of distorting the textualist method. Justice Alito called the majority opinion “curious” as it “purports to apply the purest and highest form of textualism” while “effectively amend[ing] the statutory text.”[11] Justice Kavanaugh said Justice Gorsuch conflated textualism with literalism,[12] a methodology that Justice Scalia rejected.[13] According to Justice Kavanaugh, the majority was legislating through a “novel form of living literalism to rewrite ordinary meaning and remake American law.”[14]

The debate in Bostock thus centred primarily on who was applying textualism correctly. As the so-called “Scalia Wisperer” and the former Justice’s co-author Bryan Garner tweeted, “[t]he important thing is that all the opinions [in Bostock] were TEXTUALIST.”[15]

Textualism has occupied such a prominent place in U.S. legal theory that even liberal Justice Elena Kagan conceded in a 2015 speech to Harvard law students honouring Justice Scalia that “we are all textualists now.”[16]

In Canada, textualism in its pure form has never really been taken seriously. While divided results on questions of statutory interpretation at the Supreme Court of Canada are by no means uncommon, there is no serious debate about the principles of statutory interpretation that Canadian courts should apply. In 1998, the Supreme Court of Canada effectively codified the following statement from Driedger’s seminal work on statutory interpretation in Rizzo & Rizzo Shoes Ltd.:[17]

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.[18]

This “modern approach” is now so entrenched that it is repeated as self-evident by the Supreme Court of Canada in virtually every case involving the interpretation of federal or provincial law.

Driedger’s principle necessarily entails a rejection of pure textualism. As the Rizzo Court explained, Driedger “recognize[d] that statutory interpretation cannot be founded on the wording of the legislation alone.”[19] Statutory words are but one method to glean Parliament’s “true intent”.[20] While expressing caution on its utility,[21] Canadian courts thus routinely admit extrinsic evidence such as Parliamentary debates,[22] committee reports,[23] and other extrinsic evidence of the legislative “mischief” or intent.[24] And they routinely undertake wide, contextual analyses of the entire statutory scheme extending beyond the ordinary meaning of the words at issue at the time of enactment, with a view to ascertaining Parliamentary intent.[25]

The “modern approach” is so ingrained that the minority in Wellman accused the majority of returning to the textualist approach that Rizzo rejected.[26] As Abella and Karakatsanis JJ. held in Wellman, in Canada, “[w]e do not just look at the words.”[27]

Critics of textualism in the U.S. have argued that it is a politically conservative methodology that has narrowed federal law to favour Republican interests.[28] Defenders of textualism, including Justice Scalia and Justice Gorsuch, have vigorously denied that charge and argued that the objective methods of textualism offer protection against ideological judging.[29]

Bostock demonstrates that deciding cases on the basis of text is not inherently conservative. As ACLU attorney Josh Block tweeted in response to conservative criticisms of Justice Gorsuch’s opinion, “[t]he argument that textualism is only textualism when it aligns with conservative policy preference is saying the quiet part out loud.”[30]

[1]590 U.S. ___ (2020) [Bostock].

[2]Ibid. at 9.

[3]Ibid. at 2.

[4]Ibid. at 9.

[5]Ibid. at 10.

[6] Neil Gorsuch, A Republic, If You Can Keep It (New York: Penguin Random House, 2019) [Gorsuch].

[7] See Antonin Scalia and Bryan A. Garner, The Interpretation of Legal Texts (St. Paul: West, 2012) [Scalia and Garner].

[8]Bostock, supra at 33.

[9]Ibid. at 2.

[10]Ibid. at 2.

[11]Ibid. at 13, Alito J., dissenting.

[12]Ibid. at 6, Kavanaugh J., dissenting.

[13] Antonin Scalia, “Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws A Matter of Interpretation,” in The Tanner Lectures on Human Values, delivered at Princeton University (8-9 March 2015), at p. 99, online: https://web.archive.org/web/20060911103004/http://www.tannerlectures.utah.edu/lectures/scalia97.pdf.

[14]Bostock, supra at 27, Kavanaugh J., dissenting.

[15] Quoted in Colin Kalmbacher, “Attorneys Criticize Conservatives Who Slammed Gorsuch’s Landmark Opinion on ‘Textualism’ Grounds: ‘Saying the Quiet Part Out Loud’,” Law & Crime (15 June 2020), online: https://lawandcrime.com/supreme-court/attorneys-criticize-conservatives-who-slammed-gorsuchs-landmark-opinion-on-textualism-grounds-saying-the-quiet-part-out-loud/ [Kalmbacher].

[16] 2015 Scalia Lecture, A Dialogue with Justice Elena Kagan on the Reading of Statutes (25 November 2015), online: https://www.youtube.com/watch?v=dpEtszFT0Tg.

[17][1998] 1 S.C.R. 27 [Rizzo].

[18] E. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87.

[19]Rizzo, supra at para. 21.

[20]Century Services Inc. v. Canada (Attorney General), 2010 SCC 60, at para. 44.

[21]Rizzo, supra at para. 35.

[22]See e.g. Orphan Well Association v. Grant Thornton Ltd., 2019 SCC 5, at para. 80; Ostiguy v. Allie, [2017] 1 S.C.R. 402, at para. 58.

[23]See e.g. R. v. Wust, [2000] 1 S.C.R. 455, at para. 36.

[24]See e.g. Bell Canada v. Canada (Attorney General), 2019 SCC 66, at paras. 54-56.

[25]See e.g. R. v. Rafilovich, 2019 SCC 51, at paras. 20-51.

[26]TELUS Communications Inc. v. Wellman, 2019 SCC 19, at para. 107, Abella and Karakatsanis JJ. (Wagner C.J. and Martin JJ. concurring), dissenting [Wellman].

[27]Ibid. at para. 109.

[28] Frank H. Easterbrook, Judicial Discretion in Statutory Interpretation (2004), 57 Okla L. Rev. 1, at pp. 18-19 (“One theme you hear in the press, the halls of Congress, and the legal academy is that the move to textualism is political, a conservative reaction to laws enacted by Congresses to the left of those appointing the judges.”); Alexander Volokh, Choosing Interpretive Methods: A Positive Theory of Judges and Everyone Else (2008), 83 N.Y.U. L. Rev. 769, at p. 771 (“Textualism is a ‘conservative’ method of statutory interpretation, according to the conventional wisdom.”).

[29] See Scalia and Garner, supra; Gorsuch, supra.

[30] Quoted in Kalmbacher, supra.

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