Amidst the Covid-19 pandemic, the protests arising out of the George Floyd murder, the Presidential election, and the President’s attempt to stop the publication of John Bolton’s book (even though prior restraint has been disfavored since before the Declaration of Independence),[1] we have this week a breath of fresh air from, of all places, the United States Supreme Court. We have Justice Roberts’ opinion holding that the administration didn’t go through all the proper steps when it repealed DACA; we also have the Court declining to jump into two politically volatile cases, involving the California rule allowing for sanctuary cities, and a New Jersey statute restricting the right to carry a handgun outside the home. However, one opinion in particular is almost startling both in its clarity of thought and the principles that lie behind it.

Bostock v. Clayton County, holds that Title VII of the Civil Rights Act of 1964, which prohibits an employer from discriminating against an individual because of the individual’s sex, prevents firing someone because they are homosexual or transgender. The facts were undisputed. The employers admitted that they fired the plaintiffs of their sexual orientation.[2] They contended, however, that this was not a firing because of “sex,” because sexual orientation is not the same thing as sex. Judge Gorsuch, writing for the Court, says, in effect, “let’s look at that proposition.” He starts with a fairly conservative notion, that the term sex, in the statute, refers to the biological distinction between male and female. He then says, what are the facts behind these cases? Two men reveal to their employer that they are gay, and are promptly fired. What does it mean, Justice Gorsuch asks, that they are gay? Well, it means, for instance, that they prefer intimate relations with men. Would these employers fire a woman for preferring intimate relations with men? Of course not. Therefore, the gender of these male employees was a “but-for cause” of their firing; women who sleep with men don’t get fired, but men who sleep with men do. In the third case, an employee who originally presented as male when she was hired was discharged after informing her employer that she planned to “live and work full-time as a woman.” Judge Gorsuch says, wait a minute, you don’t fire biological females for wearing dresses and makeup. Therefore, this employee’s biological gender was a cause of the firing. The statute prohibits that, so all these firings were illegal.

There are several things to like about Judge Gorsuch’s opinion. First, it’s written just about as plainly as the way in which I’ve summarized it. One doesn’t need a law degree to understand it. Second, it rejects the “legislative intent” argument so frequently used to defeat progressive readings of a statute. Justice Gorsuch says he has a trump (no pun intended) card for legislative intent: the plain meaning of the statute. He admits that Congress didn’t have LGBTQ discrimination in mind when it enacted the statute in 1964. But, he says, sex means sex, and sex was undeniably a factor in these firings. This is a sort of jurisprudential jiu-jitsu by Justice Gorsich. “Plain meaning” as a rule of statutory construction is usually a way to avoid an expansive reading of a statute. Here, Justice Gorsuch uses the plain-meaning canon as a way to reach a result that is not only far beyond what Congress consciously intended but is also much more progressive than anyone currently expected. [3]  

Third, the opinion is admirably organized. It almost reads syllogistically: (1) Firings based on gender are illegal; (2) Bostock, et al, were fired because of behavior deemed “unacceptable” only in persons of their gender; therefore (3) Bostock’s firing, and the others, were illegal. One suspects that Justice Gorsuch got an “A” in undergraduate logic.

Fourth, the opinion, refreshingly, first and foremost decides the case before the Court, and the rights and obligations of these parties under this statute, rather than making broad policy pronouncements. It is a final ruling in a piece of litigation, not a law review paper. Thus, in response to Justice Alito’s dissent warning of an infringement on religious liberty, Justice Gorsich says that while another case might present that question, this case does not, so the religious liberty issue will have to wait for another day.

Finally, and most important, is the generosity of the opinion. It’s been said that the underlying theme for many employment discrimination cases is that the plaintiff was a pain in the butt at work. Perhaps, but in this opinion not only is there no hint of that,[4] but Justice Gorsuch goes out of his way to make clear that it wouldn’t matter: “the plaintiff’s sex,” he writes, “need not be the sole or primary cause of the employer’s adverse action.” Reasonableness and generosity, in fact, are two of the elements of legal equity so long missing in our jurisprudence. Equity is designed to achieve results that satisfy the conscience of the community at its most noble, and presumes, when possible, not to impute an ignoble intent to the legislature. The reason that Justice Gorsuch is comfortable in making the “plain meaning” argument is that it is the generous reading of the statute. Of course, you can hear him say, firing gay persons just because they are gay is discriminatory: what do you think? He writes “(A)pplying protective law to groups that were politically unpopular at the time of the law’s passage…often may be seen as unexpected. But to refuse enforcement just because of that, because the parties before us happened to be unpopular at the time of the law’s passage, would not only require us to abandon our role as interpreters of statutes; it would tilt the scales of justice in favor of the strong or popular and neglect the promise that all persons are entitled to the benefit of the law’s terms.”

Notably, there is no mention in Justice Gorsuch’s opinion of the constitutional right to privacy – the right, Justice Douglas called it “to be left alone,” which certainly makes it one of the gloomiest of all fundamental rights. Justice Alito, dissenting from Justice Gorsuch’s opinion and arguing that the statute did not prohibit the firings, brings the right of privacy up, claiming that the majority opinion poses a threat to it (along with freedom of religion and freedom of speech). I suppose that’s true, if an employer’s right of privacy includes the right to be a jackass. (This makes the case notable for another reason, as it represents the only time that Justice Alito wrote an opinion expressing a concern for the right of privacy.)

Justice Alito goes on to say “No one should think that the Court’s decision represents an unal­loyed victory for individual liberty.” An odd comment, because Justice Gorsuch’s opinion is not founded on any conception of individual liberty. At heart, Justice Gorsuch invokes a different, old-fashioned, and perhaps even nobler principle; people have a right to be treated decently, and (because every right imposes a corresponding duty on someone else) we are all obligated to treat others decently. The opinion doesn’t say that, but it’s clearly what it means. We are to put the most generous interpretation reasonably possible on our laws, and in this case the most generous interpretation is that you can’t fire someone because of their romantic attractions.

So, we have two principles, one substantive and one procedural, that underly Justice Gorsuch’s opinion. People have a right to be treated decently, and when we read a statute we should impute the most generous intentions to the legislature that enacted it. Both of these principles transcend liberal and conservative, Democrat and Republican, black and white, gay and straight, and all the other divisions that so plague us today. We hope for more of the same from our newest Justice.

[1] See 4 Blackstone’s Commentaries 151 (1770)

[2] The opinion consolidates three separate cases, all of which presented essentially the same legal issue.

[3] Justice Alito, in dissent, accuses Justice Gorsich of reading the statute too broadly. Justice Kavanaugh, in a separate dissent, says that Justice Gorsich reads it too literally. That alone suggests that Justice Gorsich got it right.

[4] The opinion notes that Mr. Bostock led a department that won national awards, and the other two plaintiffs were fired almost immediately after their employers learned of their sexual orientation.