ContractsProf Blog

Editor: Jeremy Telman
Oklahoma City University
School of Law

Friday, June 26, 2020

Concluding Guest Post by Joshua Silverstein on Bostock


Silverstein  Josh -- Official PictureFinal Guest Post (for now) by Joshua Silverstein (left)

Part I is here.

Part II is here.

Part III is here.

Part IV is here.

Part V: Textualism vs. Original Expected Application and Some Concluding Thoughts.

There is one other argument in Bostock that warrants analysis.  The defendants and Justice Alito (below, right) contend that no person in 1964 and for many years after anticipated that Title VII bars employment discrimination based on sexual orientation and transgender status.  Maj. Op. at 23, 26; Alito Dis. at 4, 6, 33, 35.  But statutes (and constitutional provisions) are regularly applied beyond the scope of circumstances “expressly anticipated” by the enactors, especially when the statute is broadly written, as is the case with most civil rights laws.  Maj. Op. at 24, 30.  And Title VII in particular “has repeatedly produced unexpected applications,” including results that were long rejected by the courts before being accepted.  Maj. Op. at 29-30.  For example, courts denied claims of sexual harassment brought under Title VII for years before finally concluding that sexual harassment in indeed unlawful under the statute.  There is thus nothing that unusual about federal courts finally realizing today that Title VII bans discrimination based on sexual orientation and transgender status as forms of sex discrimination after rejecting that position for more than five decades.  And to find otherwise by relying on the expectations of the enactors and/or the public at large “seeks to displace the plain meaning of the law in favor of something lying beyond it,” Maj. Op. at 26, which is improper under textualist statutory interpretation.

AlitoThe idea that a law can apply in ways that a legislature could never have intended or in ways the public could not have foreseen strikes some people as surprising.  But it is a natural feature of any practice employing general rules of conduct, including both law and games. 

Consider a very simple example.  Suppose a state legislature passes a law saying that all buildings made of concrete are entitled to a tax break.  Suppose further that the legislature and every citizen in the state is absolutely convinced at the time of enactment that there are only fifteen concrete buildings in the state.  Thus, they all expect the tax break to apply exclusively to the fifteen existing concrete buildings.  Five years after the law is passed, another building is discovered that was made of concrete.  Everyone missed it previously because the building was constructed decades ago and the concrete was covered by a metal sheath that was subsequently removed.  Under the language of the statute, the owners of that building are entitled to the tax break.  And the fact that the legislature and the populace never expected any other concrete buildings to receive the tax break is simply irrelevant.

Here is a more sophisticated example.  The 14th amendment to the U.S. Constitution, which provides that all persons are entitled to equal protection of the laws, generally bars racial discrimination.  But the drafters of the amendment believed that this prohibition did not bar racially segregated schools.  Indeed, the very same Congress that drafted the 14th Amendment, segregated the schools in Washington DC.  This reflected the general understanding of the equal protection clause held throughout the country in 1868.  And thirty years later in 1896, the Supreme Court ruled that racial segregation was constitutional in Plessy v. Ferguson.  But the Court reversed this decision in Brown v. Board of Education in 1954.  Living constitutionalists have no trouble explaining that result because they believe that constitutional text can change in meaning over time.  But even originalists, who contend that the meaning of each constitutional provision is fixed at the time of its adoption (much like a statute), generally accept that Brown was correctly decided.

While originalists have developed a number of arguments for why Brown is right under their theory, the one I find most persuasive is analogous to my concrete building example.   The drafters of the 14th Amendment, the general American citizenry in the late 1860s, and the Supreme Court in 1896, all believed that the 14th amendment allowed segregated schools not because of the meaning of the words “equal protection of the laws,” but because they believed as an empirical matter that it was possible for racially segregated schools to be equal.  How can segregated schools violate equal protection if the schools are in fact equal?  By 1954, however, we had learned that, as an empirical matter, racially segregated schools are essentially always unequal.  And the Supreme Court expressly relied on social science evidence in arriving at this conclusion in the Brown opinion.  The meaning of “equal protection” did not change between 1868 and 1954.  Rather, our factual understanding changed, just as in my concrete building example.  In the case of racially segregated schools, we learned that separate-but-equal schools are effectively an impossibility.  And thus, to treat people of all races equally, as required by the Fourteenth Amendment, segregated schools must be outlawed.  Likewise, in the case of tax breaks for concrete houses, we learned that another concrete building existed.  Thus, to comply with the law as written, the sixteenth building that no one believed existed must receive the tax break.

The concrete building example and Brown v. Board demonstrate a basic point about statutory and constitutional interpretation: laws can apply in ways never contemplated by the enactors and society at large because those persons were mistaken about key facts relating to the law.  In these types of cases, the meaning of the law doesn’t change.  The ordinary meaning of the words is exactly the same at the point of enactment and the subsequent point of application.  What changes in the intervening period is our understanding of the facts.  Put simply, unchanged legal meaning combined with changed facts often leads to different and unanticipated legal results.

This analysis extends to Bostock and discrimination based on sexual orientation and transgender status discrimination.  The mistake Congress, lawyers, judges, and most everyone else made in 1964 (and for decades afterwards) was that we failed to appreciate that, as a conceptual matter, it is impossible to discriminate on the basis of sexual orientation or transgender status without also discriminating on the basis of sex.  That is a conceptual mistake rather than an empirical mistake.  But a mistake is a mistake, and the impact on legal analysis generally will be the same regardless of the precise type of mistake.  To use phrasing that parallels what I wrote in the last paragraph, unchanged legal meaning combined with changed concepts often leads to different and unanticipated legal results.  Hence the holding in Bostock.

One might ask in response, how could so many people have missed a conceptual problem like this for so long?  See Kav. Dis. at 20 (“Did the Court in all of those sexual orientation cases just miss the obvious answer—and overlook the fact that sexual orientation is actually a form of sex discrimination?  That seems implausible.”).  The answer is that we make mistakes all the time as a society generally and within the legal system specifically, including over points we now deem obvious.  Isn’t it now clear that racially segregated schools can never be equal?  We got that one wrong for 90 years.  Isn’t it now obvious that sexual harassment is a form of sex discrimination?   We got that one wrong for several years too.  Universal or nearly universal mistakes are all too common in our culture, particularly when it comes to outsider groups, such as racial minorities and sexual minorities that have faced striking levels of discrimination throughout history.

Indeed, Justice Alito explained that the concept of “gender identity . . . was essentially unknown” in 1964.  Alito Dis. at 3.  Likewise, he wrote that “in 1964, homosexuality was thought to be a mental disorder, and homosexual conduct was regarded as morally culpable and worthy of punishment.”  Alito Dis. at 28; see also Alito Dis. at 28-33 (offering multiple examples of the poor treatment homosexuals have faced in America).   Given these points, it would be surprising if America of the last 50 years was not critically mistaken about numerous aspects of sexual orientation and gender identity, including their relationship to sex.  And because our understanding of sexual orientation and transgender status is constantly and rapidly evolving, we should expect that many more “obvious” factual and conceptual beliefs concerning these subjects will be overturned in the coming years.

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