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Alito and Thomas Smack Gorsuch: ‘A More Brazen Abuse of Our Authority to Interpret Statutes is Hard to Recall’

By Terence P. Jeffrey | June 15, 2020 | 3:22pm EDT
Then-Justice Anthony Kennedy administers the oath to Neil Gorsuch, April 10, 2017. (Photo by The Asahi Shimbun via Getty Images)
Then-Justice Anthony Kennedy administers the oath to Neil Gorsuch, April 10, 2017. (Photo by The Asahi Shimbun via Getty Images)

Justice Samuel Alito was joined by Justice Clarence Thomas today in issuing a scathing dissent to the opinion of the court that was written by Justice Neil Gorsuch in the case of Bostock vs. Clayton County.

The question: Whether the ban on employment discrimination based on “sex” that is included Title VII of the Civil Rights Act of 1964 also extends to homosexuality and transgenderism?

The case was decided 6-3, with Gorsuch and Chief Justice John Roberts joining Justice Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan and Stephen Breyer in concluding that—under the 1964 law--discrimination based on homosexuality or transgenderism is legally the same as discrimination based on a person’s sex.

Alito, Thomas and Justice Brett Kavanaugh dissented. Thomas joined in the dissent written by Alito and Kavanaugh filed his own dissent.

“This court has explained many times over many years that, when the meaning of the statute’s terms is plain, our job is at an end,” Gorsuch said in the opinion of the court that declared that homosexuality and transgenderism were protected by the word “sex” in the 1964 Civil Rights Act.

“Not long after the law’s passage, gay and transgender employees began filing Title VII complaints, so at least some people foresaw this potential application,” Gorsuch wrote.

Alito and Thomas accused Gorsuch and his majority colleagues of abusing their judicial power to essentially enact legislation.

“There is only one word for what the Court has done today: legislation,” said Alito in his opinion joined by Thomas. “The document that the Court releases is in the form of a judicial opinion interpreting a statute, but that is deceptive.”

Alito then pointed out that there have been efforts in Congress to amend Title VII to include homosexuality and transgenderism. But, so far, these efforts have failed.

“Last year, the House of Representatives passed a bill that would amend Title VII by defining sex discrimination to include both ‘sexual orientation’ and ‘gender identity,’ H. R. 5, 116th Cong., 1st Sess. (2019), but the bill has stalled in the Senate,” wrote Alito.

“An alternative bill, H. R. 5331, 116th Cong., 1st Sess. (2019), would add similar prohibitions but contains provisions to protect religious liberty,” he wrote. “This bill remains before a House Subcommittee.”

“Because no such amendment of Title VII has been enacted in accordance with the requirements in the Constitution (passage in both Houses and presentment to the President, Art. I, §7, cl. 2), Title VII’s prohibition of discrimination because of ‘sex’ still means what it has always meant,” Alito wrote.

“But the Court is not deterred by these constitutional niceties,” he said.

“Usurping the constitutional authority of the other branches, the Court has essentially taken H. R. 5’s provision on employment discrimination and issued it under the guise of statutory interpretation,” he said in this opinion joined by Thomas.

“A more brazen abuse of our authority to interpret statutes is hard to recall,” he said.

Here is the opening segment of Justice Samuel Alito’s dissenting opinion—joined by Justice Clarence Thomas—in which Alito summarizes their objecting to the majority opinion written by Gorsuch:

“There is only one word for what the Court has done today: legislation. The document that the Court releases is in the form of a judicial opinion interpreting a statute, but that is deceptive.

“Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on any of five specified grounds: ‘race, color, religion, sex, [and] national origin.’ 42 U. S. C. §2000e–2(a)(1). Neither ‘sexual orientation’ nor ‘gender identity’ appears on that list. For the past 45 years, bills have been introduced in Congress to add ‘sexual orientation’ to the list, and in recent years, bills have included ‘gender identity’ as well. But to date, none has passed both Houses.

“Last year, the House of Representatives passed a bill that would amend Title VII by defining sex discrimination to include both ‘sexual orientation’ and ‘gender identity,’ H. R. 5, 116th Cong., 1st Sess. (2019), but the bill has stalled in the Senate. An alternative bill, H. R. 5331, 116th Cong., 1st Sess. (2019), would add similar prohibitions but contains provisions to protect religious liberty. This bill remains before a House Subcommittee.

“Because no such amendment of Title VII has been enacted in accordance with the requirements in the Constitution (passage in both Houses and presentment to the President, Art. I, §7, cl. 2), Title VII’s prohibition of discrimination because of ‘sex’ still means what it has always meant. But the Court is not deterred by these constitutional niceties. Usurping the constitutional authority of the other branches, the Court has essentially taken H. R. 5’s provision on employment discrimination and issued it under the guise of statutory interpretation. A more brazen abuse of our authority to interpret statutes is hard to recall.

“The Court tries to convince readers that it is merely enforcing the terms of the statute, but that is preposterous.

“Even as understood today, the concept of discrimination because of ‘sex’ is different from discrimination because of ‘sexual orientation’ or ‘gender identity.’ And in any event, our duty is to interpret statutory terms to ‘mean what they conveyed to reasonable people at the time they were written.’ A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 16 (2012) (emphasis added). If every single living American had been surveyed in 1964, it would have been hard to find any who thought that discrimination because of sex meant discrimination because of sexual orientation––not to mention gender identity, a concept that was essentially unknown at the time.

“The Court attempts to pass off its decision as the inevitable product of the textualist school of statutory interpretation championed by our late colleague Justice Scalia, but no one should be fooled. The Court’s opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated––the theory that courts should ‘update’ old statutes so that they better reflect the current values of society. See A. Scalia, A Matter of Interpretation 22 (1997). If the Court finds it appropriate to adopt this theory, it should own up to what it is doing.

“Many will applaud today’s decision because they agree on policy grounds with the Court’s updating of Title VII. But the question in these cases is not whether discrimination because of sexual orientation or gender identity should be outlawed. The question is whether Congress did that in 1964.

“It indisputably did not.”

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