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JUSTICEBut cases aren’t supposed to be decided by ideology. In cases
like these, justices say they ground their decisions on the text of
the statute in question and the precedents interpreting it. For at
least 20 years, conservative jurists, led by the late Justice Antonin
Scalia, have championed a doctrine of statutory interpretation
called “textualism,” which purports to provide an objective de-
cision-making methodology that transcends ideology. It hinges
on the plain meaning of a statute’s words, rather than on the
subjective intent or expectations of the legislators who enacted it.
Those rules now dictate an outcome in favor of the LGBTQ em-
ployees, they and their allies insist. “This is a moment of truth for
textualists,” Yale Law School professor William Eskridge Jr. said.
“It’s either put up or shut up.” Eskridge co-authored a friend-of-
the-court brief supporting the employees. “Either give Title VII’s
text and structure the effect its breadth demands, or admit that
textualism does not free statutory interpretation from ideology.”
Four former U.S. solicitor generals sounded the same theme in
their own brief, co-authored by constitutional scholar Laurence
Tribe of Harvard Law School. “These cases are simpler
than they seem,” Tribe wrote. “Here, all that is necessary
to decide the questions presented is a direct application
of textualist principles to the plain language of Title VII.”
Tribe wrote on behalf of Walter Dellinger III (acting SG
under Bill Clinton), Seth Waxman (SG under Clinton),
Theodore Olson (SG under George W. Bush) and Neal
Katyal (acting SG under Barack Obama).
The employers and their allies respond that the 1964 law
was obviously never intended to address these forms of al-
leged discrimination, that Congress has repeatedly rebuffed
invitations to amend the law to do so and that the employ-
ees are, therefore, effectively inviting the Court to rewrite
that law by illegitimate judicial fiat. “Federal courts should
not usurp Congress’s authority by judicially amending the
word ‘sex’ in federal nondiscrimination law to include
‘transgender status,’” writes John J. Bursch, vice president of
appellate advocacy for the conservative nonprofit Alliance
Defending Freedom, which represents R.G. and G.R. Harris Funeral
Homes, the employer accused of discriminating on the basis of gender
identity in one of the three cases to be argued. (ADF describes itself
as advocating “for the right of people to freely live out their faith.”)
“For more than 40 years,” assert Justice Department lawyers in
their brief supporting the employers accused of discriminating
against two gay employees, “Congress has repeatedly declined to
pass bills adding sexual orientation to the list of protected traits
in Title VII.” (“What Congress hasn’t done shouldn’t affect inter-
pretation of the statute,” responds American Civil Liberties Union
staff attorney Gabriel Arkles. “It should be interpreted for what
it says.” The ACLU is co-counsel for two of the three plaintiffs in
these cases, Donald Zarda and Aimee Stephens.)SERVING JUSTICE
Clockwise from top:
Current members of the
Supreme Court; protester
campaigns against the
repeal of transgender
bathroom rights; Associate
Justice Antonin Scalia.BILLS
TO THE LIST
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