Summary
If there is one thing conservatives have worked hard to sell to the American public and the courts, it is the principle that only the text of a statute controls — that what legislators enacted is the law, and that judges are duty-bound to interpret the words, and only the words, in the legislative language. No more, no less. With Justice Antonin Scalia as the leading advocate for this project, they’ve succeeded, convincing even liberal jurists that textualism in the interpretation of statutes is the way to go.
On Tuesday, as the Supreme Court heard oral arguments in a trio of cases grappling with whether federal employment law already protects gay and transgender workers from discrimination in the workplace, Justice Elena Kagan summarized the success of Scalia’s enterprise. “For many years,” she said from the bench, “the lodestar of this Court’s statutory interpretation has been the text of a statute, not the legislative history, and certainly not the subsequent legislative history.”
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But if you’re a real textualist, all of that is beside the point. As Pamela Karlan, the lawyer for the two gay men at the center of the first half of Tuesday’s session, put it in her straightforward first few minutes at the podium, Title VII as it exists today resolves the case:
When an employer fires a male employee for dating men but does not fire female employees who date men, he violates Title VII. The employer has, in the words of Section 703(a), discriminated against the man because he treats that man worse than women who want to do the same thing. And that discrimination is because of sex, again in the words of Section 703(a), because the adverse employment action is based on the male employee’s failure to conform to a particular expectation about how men should behave; namely, that men should be attracted only to women and not to men.
Karlan’s first few minutes at the podium were so assertive and to the point, she even left the justices speechless for a few seconds. Justice Ruth Bader Ginsburg, herself an early proponent of a slow and incremental understanding of gender equality under the law, asked Karlan to describe why discrimination against gays and lesbians “could not have been in Congress’s mind” at a time when many states outlawed same-sex relationships and homosexuality was considered a mental illness by American Psychiatric Association. Karlan responded: “In 1964, those were the days of Mad Men, so the idea that sexual orientation would have been reached — most courts didn’t find sexual harassment to be actionable until this Court did.”
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