Trolling Is a Terrible Way to Write Laws
Today, the Boston Supreme Court ruled against Clayton County that the words “discriminate against everyone. . . because of such people. . . Gender ”in Title VII of the Civil Rights Act of 1964 means discrimination based on sexual orientation or transgender status. There are many different aspects here, some of which involve major debates on the role of the courts, reading laws and the expectations of conservative voters for conservative judges. Instead, I want to focus on two lessons that Congress can learn from the decision.
Be careful what you troll for
The word "gender" was added to the Civil Rights Act in an amendment proposed by an opponent of the law, 80-year-old Virginia Dixiecrat Howard Smith, chair of the House Rules Committee:
Opponents of Smith's amendment, led by Emanuel Celler from Brooklyn, the 75-year-old chairman of the House Justice Committee and the chairman of the law, viewed it either as a prank to expose the limits of liberal egalitarianism or as a poison pill that makes it more difficult would hand over the bill in the house. . . . Smith made his move in a jocular mind. He read a letter from a member asking him to submit an additional amendment to the demographic imbalance between men and women - a "grave injustice" that suspended every woman's right to have a husband. [Celler] replied that he knew everything about women's equality. He had been married for forty-nine years, he said, and he usually had the last two words: "Yes, dear." The jokes continued until [Representative Martha] Griffiths spoke up. "If it had been necessary to point out that women are second class sex," she said, "laughter would have shown it."
Most of the vocal opposition to Smith's amendment came from liberal advocates of civil rights who feared that he would lower the bill as a similar amendment did in 1950, although some determined women in the house seriously supported him. There are some scientific debates that the majority opinion and the two dissidents have noted today about exactly what to do with Smith's intentions and those of others who support his amendment. Much of the debate in Bostock revolved around the split between Justice Gorsuch, who read the legal language quite literally, with little regard to what it would have understood at the time of its existence, and judges Alito and Kavanaugh, who argued that the Die Majority had rewritten the originally understood meaning of the law.
Whichever side of this debate you are on, it is clear that much of the responsibility for today's decision - and for the years of litigation and divisions in the lower courts that were required to get here - lies at the feet of Howard Smith. Congress in 1964 could have bothered to better explain what it was doing, but since "sex" was a one-word change offered by a bitter opponent of the bill, there was no serious effort to do so to examine what the word meant. As Gorsuch wrote: "Whatever his reason, thanks to the broad language that Representative Smith introduced, many, perhaps most, of the uses of Title VII's title determination were" unexpected "at the time the law was passed."
The king is dead
In this connection, the Court, in its silence today, reaffirmed that it does not regard its 2015 decision in the King v Burwell case as law. King refused to read a provision of the Affordable Care Act to mean what was obviously said: Obamacare subsidies went to state-run exchanges. In fact, it confirmed an IRS regulation that explicitly applied such subsidies to exchanges "regardless of whether they were set up by states. The language in question, as in Bostock, undoubtedly caused a lawsuit because Congress had not done its job properly. The crux of Chief Justice Roberts' opinion in King was that the literal language of the statute had to give way to an understanding of the legal purposes. As I noted in 2018, the Court unanimously refused to cite King as a precedent, even if almost the same subject was dealt with in almost a less controversial area of the law (even if the case's precedents followed him) and came a directly opposite result. The same thing happened today: Roberts and the four Court liberals (all in the royal majority) signed a statement saying:
Those who have passed the Civil Rights Act may not have expected their work to lead to this particular result. They are unlikely to have thought about many of the consequences of the law that have become apparent over the years, including the ban on discrimination based on motherhood or the sexual harassment of male workers. However, the writers' imagination limits give no reason to ignore the law's demands. If the express provisions of a statute give us an answer and extratextual considerations suggest another, this is not a competition. Only the written word is the law, and everyone is entitled to his or her benefit.
King was never mentioned, which reflected the tacit agreement between the judges that it should not be discussed again. In fact, Gorsuch's opinion explicitly argues - again sharply in opposition to King - that the Court should limit itself to checking the legal language instead of taking the results of reading the language into account in this way:
Instead of pointing out that the legal language has a different meaning, employers and dissidents are simply suggesting that we should not dare to admit that it inevitably follows from the legal text, as only a few expected today's result in 1964. When a new application emerges that is both unexpected and important, it seems that all we have to do is refer to the question, refer the matter back to Congress, and refuse to enforce the simple provisions of the law in the meantime. The Court has long rejected precisely this argument.
In other words, none of the judges who signed the king's decision actually believed it.
If Congress screwed it up, the Supreme Court was sometimes asked to pick up the pieces. We should not be surprised if different standards are used in different cases and conservative arguments reach the short end of the staff each time.
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