This week’s appeals-court decision that sex discrimination includes sexual-orientation discrimination is a landmark case.
It also just raised the stakes of the nomination of Judge Neil Gorsuch to the Supreme Court. Because this is just the kind of case that shows how Gorsuch’s “textualism” dictates conservative social policies.
The question at the center of the case is relatively simple. Kim Hively was fired from her job at a community college when someone saw her kissing another woman, and reported it. If that was really the reason she was fired, was it against the law?
Survey after survey has revealed that most Americans think it is. But most Americans are wrong. The Civil Rights Act of 1964 covers racial and sex discrimination, but it’s never been expanded—despite many attempts—to include sexual orientation or gender identity. The laws in 29 states are similar.
In those 29 states, my boss can march me into his office and say “Jay, you’re gay, and we don’t like that. You’re fired.” Perfectly legal.
Or is it?
Hively’s lawyers at Lambda Legal, the leading LGBT-focused activist law firm, argued that if you think about it, she was discriminated on the basis of sex. If a man were seen kissing a woman, he wouldn’t be fired. But because she’s a woman seen kissing a woman, she was. (Again, assuming the evidence bears her out at trial.)
That position has been rejected by two other appeals courts, but this week, by an 8-3 vote, the Seventh Circuit Court of Appeals agreed with it, writing “Hively represents the ultimate case of failure to conform to the female stereotype.”
Because of the circuit split, the Hively case, or one just like it, is almost certain to go to the Supreme Court—where, if all goes according to prediction, it will encounter Justice Neil Gorsuch and his philosophy that a judge’s job is to say “what the words on the page mean.”
That phrase sounds innocent enough, and Gorsuch repeated it over and over again during his confirmation hearing. But the Hively case shows why it’s a con.
Is “sexual orientation” among the “words on the page” of the Civil Rights Act? No. Was Hively fired for being female? No. Therefore, according to the “textualists,” she loses.
But wait a minute. Is the “plain meaning” the right meaning? To take a clichéd example, the First Amendment says that Congress shall make no law “abridging the freedom of speech.” That’s pretty unequivocal: No law abridging the freedom of speech. Those are the words on the page, right there in their plain meaning. No exceptions are provided.
So does that mean that you can yell “fire” in a crowded theater? Does it mean you can libel and slander other people? Does it mean you can lie about what your product does, or how safe it is, or what it’s made of?
Of course not. In fact, no one interprets statutes or the Constitution according to “what the words on the page mean.” That would be ridiculous, and no less ridiculous for being claimed by a smart man like Judge Gorsuch.
For that matter, where on the pages of the Constitution does it say that corporations are to be given the same rights as people? That’s a bedrock principle of Citizens United, Hobby Lobby, and the run of recent cases expanding corporate power. But you won’t find it on the pages of the Constitution. On the contrary, the Founders hated corporations and wanted them strictly limited, with hardly any rights at all. Where “on the page” is it written that corporate money is a form of political speech?
Now let’s come back to Hively. We know that the “words on the page” are ambiguous; that’s why there’s a lawsuit. So how do we understand discrimination on the basis of sex? Hively was doing something that, if she were a man, would have been totally unobjectionable. But because she’s a woman, she gets fired. Isn’t that sex discrimination?
Moreover, Hively’s claim is based on actions, not identity. She’s not claiming that her sexual orientation got her fired; she’s claiming that certain acts in which she engaged did. That’s actually a crucial difference. Hively isn’t making her case as a lesbian; she’s making her case as a woman who did something that her boss thinks a woman shouldn’t do.
Now, reasonable people can disagree about how to interpret the Civil Rights Act in this kind of case. But one thing is for sure: The “words on the page” are the beginning, not the end, of the inquiry. If the words on the page were so clear, there’d be no need for judges.
Nor can we rely on the original intent of the people who wrote the law back in 1964. I have no doubt that a majority of the members of Congress who voted for the Civil Rights Act would be appalled to see it used to protect the rights of the people they called “homosexuals.” But that’s irrelevant. Ironically—since most “textualists” are also Originalists but forget their textualism when it’s inconvenient—what matters is how to understand the words on the page: how to apply them to novel cases that the writers of the law (or the Constitution) hadn’t thought of.
Original intent may be part of that process of understanding, but it surely isn’t the whole of it. Otherwise, the Second Amendment would only protect the “arms” that the Founders knew about in 1789, and any weapon they didn’t know about could be banned outright. Which, come to think of it, might be a good idea.
Hively being decided just as Gorsuch’s nomination is being debated highlights what’s at stake for the Supreme Court, and why the non-confirmation of Judge Merrick Garland is not water under the bridge. If Gorsuch is confirmed, the case will, like so many others, come down to Justice Kennedy deciding whether to side with the court’s four liberals or the court’s four conservatives.
And if the next justice to retire is one of those liberals, or Kennedy himself, cases like Hively are open and shut. That’s why, absent some kind of last-minute compromise, Democrats are going to the mat to block Gorsuch, no matter how nice of a guy he is.
To laypeople watching the hearings, Gorsuch’s aw-shucks manner and plain-spoken appeals to the “words on the page” seem like good old common sense. But they aren’t that at all—they’re an ideology that leads to very specific, very conservative results.
And women like Kim Hively pay the price.