Textual Healing

Yesterday, the Supreme Court held that you cannot be fired for being gay or transgender.

It was a landmark victory for the LGBTQ community. And for many, the makeup of the 6–3 majority—with Chief Justice Roberts and Justice Gorsuch (who also authored the majority opinion) joining the liberal faction—was as stunning as the end result. 

The decision has been hailed as a leftward shift by the majority-conservative Court. It has been criticized as too cramped a view of LGBTQ rights. And it sure doesn’t end the constant threat to trans lives

But besides the crucial importance of expanding Title VII’s anti-discrimination protections to gay and transgender employees, there’s another key aspect here: Neil Gorsuch (and Roberts) chose textualism over knee-jerk conservatism. 

Five years ago, Justice Kagan declared “we’re all textualists now.” Yesterday, Justice Gorsuch demonstrated that the Court (or at least a sizeable, non-credibly-accused-of-sexual-assault majority of the Court) would adhere to this interpretative tool, even if it led the justices in a direction they might not individually agree with. Or, as another former Maryland resident put it, “A man gotta have a code.”

As the late gabagool himself liked to say, “the text is the law.” When the text is clear, we’re done—legislative intent or real-world consequences be damned. For Gorsuch, the text of Title VII was clear, even if the logical progression of it could result in “massive social upheaval” (whatever that would look like). The Civil Rights Act of 1964 bans discrimination “on the basis of . . . sex.” Firing somebody for “traits or actions” that don’t conform to societal norms about their genetically assigned sex is discrimination on the basis of sex. That’s it. Now let’s all tap elbows and go home and crank through five episodes of Queer Eye and celebrate RBG as the progressive icon we want her to be but not the employer she actually is

What is heartening for me about Gorsuch’s opinion is its intellectual consistency. It means that liberal and progressive causes aren’t dead on arrival at the Supreme Court; they just need to have a persuasive textual hook. Granted, textualism has serious limits, may be based on a flawed and inherently conservative premise, and can lead to plenty of illiberal rulings in the future. And just because you self-satisfiedly tout yourself as a textualist while you steal Merrick Garland’s seat doesn’t mean you’ll have the testicular fortitude to adhere to that doctrine when the rubber meets the road. 

But, for the moment at least, Gorsuch has demonstrated something that the Court often appears to lack: a willingness to keep its legal philosophy consistent in the face of results that the justices themselves may not approve of.

We’ve been playing in the same court. Now it feels like maybe we’re all playing by the same set of rules. 

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