Justice Neil Gorsuch made the right decision in Bostock v. Clayton County in which he applied the civil rights act to prohibit discrimination against LGBTQ citizens. He just did so for the wrong reasons.

Liberals, Democrats, and I rejoiced at the Supreme Court decision in Bostock v. Clayton County,written by Justice Neil Gorsuch, declaring that Title VII of the Civil Rights Act prohibited discrimination in employment against LGBTQ citizens. Title VII is a statute passed by Congress in 1964 outlawing discrimination based on race, color, religion, sex, and national origin. This legislation expanded the right of Americans to be served in facilities that are open to the public—hotels, restaurants, theaters, retail stores, real estate, and similar establishments—as well as greater protection for the right to vote. Thus, the question before the court was whether discrimination based on “sex” would apply to “sexual orientation” or “sexual identity,” that is, to lesbians, gays, and transgendered individuals. Justice Gorsuch wrote the majority opinion endorsing this application. Justice Samuel Alito wrote an eloquent dissenting opinion.

Justice Alito’s fifty-four page dissent makes a compelling argument that Justice Gorsuch could not legitimately base his opinion on a theory of statutory interpretation called “textualism” or “originalism,” a theory upon which Justice Gorsuch claimed to rely.

In Justice Alito’s description of textualism, he quotes from Antonin Scalia and Bryan Garner’s book Reading Law: The Interpretation of Legal Texts 16 (2012), which states: “Our duty is to interpret statutory terms to mean what they conveyed to reasonable people at the time they were written.” This book also states: “Look for meaning in the governing texts, ascribe to the text the meaning that it has borne from its conception, and reject judicial speculation about both the drafters’ extra textually derived purposes and the desirability of the fair reading’s anticipated consequences.”

Using this definition, Justice Alito correctly points out that the term sex was not the same as sexual identity or sexual orientation. Sex is determined by the organs of the person, not by conscious sexual preference or how one sexually identifies oneself. Sexual orientation is a thought process of consciousness—for example, that men or women prefer to love and have sex with someone of the same sex. Thus, the literal meaning of Title VII would cover only discrimination against men, women, hermaphrodites, and eunuchs. Sexual orientation might refer to someone who prefers blondes to brunettes. Thus, to deny a job to someone who prefers to love someone of the same sex doesn’t make any more sense than any other reason that someone chooses a sex partner. It is principally because of supernatural religious prohibitions that people have been disparaged for their minority status in their sexual orientation that does not contribute to procreation. There is no secular justification for obstructing a person’s ability to earn a living or purchase a home because of whom they love. We are a secular nation; as citizens, we reason with one another based on experiential moral arguments that appeal to our sense of fairness. In contrast, faith-based reasons are not debatable in this context because they are infallible. They cannot be proven wrong.

In the 1930s, during the New Deal, most Supreme Court justices gradually shifted their legal theory to allow for greater government regulation of the private sector under the Commerce Clause, thus paving the way for the federal government to enact civil rights laws prohibiting both public and private sector discrimination. It was this shift in legal theory, which offended Justices Antonin Scalia and Lewis Powell, that produced the theory of originalism to counteract the pragmatic, living-Constitution’s theory of interpretation.

Justice Alito points out in his dissent that Congress for forty-five years had introduced bills to add “sexual orientation” to the Civil Rights Act. In recent years, bills have included “gender identity.” None of these bills passed. This meant that Congress recognized that the word sex in Title VII is inadequate for protecting people on the basis of sexual orientation or sexual identity. Justice Alito then asserts that it is the job of the legislature, not the courts, to make that law.

Justice Alito captured the fallacy of Justice Gorsuch’s many arguments asserting that his decision was based on textualism/originalism. It is understandable that Justice Gorsuch attempted to base his opinion on that theory; after all, he had been recently selected as a judge from a list prepared by the Federalist Society because of its commitment to this flawed theory of constitutional interpretation.

A principal reason for President Donald Trump’s support among his base is his supporters’ belief that Trump would select judges committed to applying the law as it was understood at the time it was passed, not give the law a meaning based on contemporary values. This is what is meant by “originalism.”

The theory of originalism was created by Judge Robert Bork, Edwin Meese (Reagan Attorney General), and Justice Scalia as a theory of constitutional interpretation. It served as the foundation for the Federalist Society, which sought to reverse the liberal direction of the court and prioritize business interests and a preference for Christianity over secularism (on the false assumption that our nation is a Christian country). However, originalism should be abandoned for the following reasons:

1. To apply originalism to interpret the constitution, it is necessary to understand what the authors of the Constitution intended about constitutional interpretation to reflect their original intent. The theory of originalism was not accepted by the authors of the Constitution. As James Madison (a principal author of the Constitution) stated in The Federalist No. 37, “All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications.” The meaning of the Constitution, then, was to be found in a continuing process of interpretation, not in some specific set of intentions injected into the text at its inception. “Whatever veneration might be entertained for the body of men who formed our Constitution,” Madison stated on the floor of Congress in 1796, “the sense of that body could never be regarded as the oracular guide in expounding the Constitution.”

2. James Madison, as a representative in the first Congress, opposed a bill to establish a Second National Bank because he believed that Congress had no constitutional right to establish a national bank. But later, when he became president and was required to sign the Second Bank Bill that had passed over his objections, he recognized that “Congress, the President, the Supreme Court, and (most importantly, by failing to use their amending power) the American people had for two decades accepted the bank’s existence and made use of the services of the First [National] Bank,” and he viewed this widespread acceptance as “a construction put on the Constitution by the nation, which, having made it, had the supreme right to declare its meaning.”

3. James Madison, Edward Livingston, and Albert Gallatin, among the coauthors of the Constitution, agreed that the Constitution should be read in the context of later times. This defeats the argument that contemporary judges are bound to determine the intent of the authors at the time the Constitution was written, which is the principal tenet of originalism.

4. If the founders had wanted later courts to be guided by what they specifically had in mind by phrases such as cruel and unusual or due process, they would not have used such general language but offered more evidence of their conceptions, if not in great detail. They would have done more than merely name the concepts themselves. We have direct evidence that the Framers themselves tried to block access to their deliberations in part because they did not intend their original intent to play an “authoritative” role in subsequent efforts to interpret the meaning of the text.

5. If there were problems with an attempt to recover the intentions of a small group of authors who met together in the summer of 1787, the problems are compounded by the practical difficulties of trying to figure out what went through the minds of the representatives who attended the various state conventions. Furthermore, it is necessary to shift attention away from the understanding of the document shared by those in Philadelphia to the understanding of those who eventually adopted it. In one of the first lengthy discussions in Congress over how to resolve ambiguities in the Constitution, the House debated a resolution calling on President George Washington to hand over the record of Chief Justice John Jay’s treaty negotiations with Great Britain. Edward Livingston of New York, who introduced the resolution, argued that original intent could not be “conclusive … because … we are not as capable at least of determining the true meaning of that instrument, as the Conventions were called in hast, they were heated by party, and many adopted the Constitution from expediency.”
   
   Albert Gallatin of Pennsylvania said he was surprised to hear a view that “the opinions and constructions of those persons who had framed and proposed the Constitution, opinions given in private constructions unknown to the people when they adopted the instrument, should, after a lapse of eight years, be appealed to.”

6. A profound embarrassment for textual originalists was the decision in Brown v. Board of Education (1954). In 1868, when the Fourteenth Amendment was ratified, had the provision been imagined to forbid racial desegregation of public schools it would not have been ratified. “Separate but equal” was then consistent at the textual, originalist perspective with “equal protection.” Thus, the Brown court took the conception of “equality” and gave it new meaning in terms of contemporary norms. If not for this, we would still have a segregated nation.

7. Justice Scalia, the principal proponent of textualism, claimed that his judicial votes reflected an objective interpretive methodology (the only objective methodology, he claimed) and that because it was objective, ideology played no role. Textual originalists demand that the legislature think through myriad hypothetical scenarios and provide for all of them explicitly, rather than rely on courts to be sensible. Thus, originalism is flawed insofar as it does not appreciate the limitations of foresight, much less the fact that a statute is a collective product that may leave many questions of interpretation unanswered precisely because the enacting legislators didn’t agree on the answers. Furthermore, textual originalism assumes that it would encourage legislators to make statutes crystalline, but there is no evidence that it has that effect. Because of the collective nature of legislation, that aspiration is infeasible.

8. The quest for original meaning rarely dispels ambiguity. Judges are not competent historians. However, originalism requires speculation about how people who lived long ago would have answered a question that had never been put to them, and never could have been because it concerned a practice, concept, or technology that did not exist and was not foreseen during their lifetimes. Justice Scalia ignored this approach with respect to technological change in his interpretation of the Second Amendment (the amendment that circumscribed the right to gun ownership); otherwise it would be read to create a right to keep and bear only eighteenth-century weapons. Furthermore, no responsible historian could give an answer to the question of how an eighteenth-century mind would react to twenty-first century technologies of surveillance, criminal investigation, marketing, financial regulation, mass media, or modern weapons (for example, machine guns).

9. Fourteen distinguished professional historians signed a court brief in the Heller case (which decided that gun ownership restrictions violated the Second Amendment). Their brief considered the weight of the historical evidence to be against the existence of a right to have weapons for purposes unrelated to militia duty. The court ignored their evidence. Therefore, if historian scholars are not reliable interpreters of historical events, then history is not a good candidate for bringing objectivity to constitutional decision-making, contrary to the thesis of originalism.

10. Judge Richard A. Posner, in his book Reflections on Judging, points out Justice Scalia’s hypocrisy in his application of originalism/textualism on several counts:

1. Justice Scalia emphatically denounces the use of legislative history as a tool of statutory interpretation (which he characterized as “garbage”), although he joins conservative (and not liberal) opinions that invoke legislative history.
2. Justice Scalia is derisive of “purposive” interpretations of statutory text; nevertheless, he joined a purposive, anti-textualist conservative dissent in NASA v. Federal Labor Relations Authority, 527 U.S. 229, 253–254 (1999).
3. The fifty-seven “canons of construction” that Justice Scalia endorses provide him with the room needed to generate whatever case outcome conforms to his strongly felt views on such matters as abortion, homosexuality, illegal immigration, states’ rights, and the death penalty. He is not consistent in his application of the canons. Many are not just nontextual but anti-textual. For example, he says that “textualism in its purest form begins and ends with what the text says and fairly implies.” Yet he is not committed to the “purest form” when he declares that “determining what is reasonably implied [about the words of a statute] takes some judgment.”
4. Justice Scalia considers himself a “faint hearted originalist,” illustrating the point by saying that he would hold that flogging was forbidden by the cruel and unusual punishment clause of the Eighth Amendment, even though it was considered neither cruel nor unusual at the time the Bill of Rights was ratified. Thus, Justice Scalia isn’t committed to textual originalism. Many of the interpretive principles he endorses are not textualism or originalism.
5. In conclusion, “the canons of textual originalism don’t discipline Justice Scalia’s judicial votes or those who follow his theory, which appears to reflect their personal beliefs (such as Justice Gorsuch’s opinion) more than they do any politically neutral analytical system.”

Justice Gorsuch could have reached the same decision by applying emotional intelligence and the common contemporary understanding of fairness to the purpose of Title VII of the Civil Rights Act. The Civil Rights Act was designed to prohibit discrimination in public places based on factors that have no bearing on meritocracy. Just as it is commonly understood that one’s skin color is irrelevant to one’s quality of job performance, so too it is irrelevant whom a person loves to a person’s need to earn a living based on job performance, or to a person’s right to purchase a home. It should not be necessary to defer to the legislature to make that judgment. Consequently, the word sex should be given the broadest possible meaning to fulfill the purpose of Title VII, regardless of what the authors of the law believed. Any behavior related to sex, other than sex crimes, is irrelevant to whether a citizen should be protected from discrimination in public places. It should not be necessary for Justice Gorsuch, or any judge, to contort textualism/originalism to justify this position. It is a matter of common sense. To deny LGBTQ citizens protection against discrimination in public places would undermine the reputation of the court as an instrument of fairness and justice. Concern for the public trust is an essential duty of judicial decisions.

Justice Alito, in his dissenting opinion, states:

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. If the Court finds it appropriate to adopt this theory, it should own up to what it is doing. That is what Judge Posner did in the Seventh Circuit [appellate court] case holding that Title VII prohibits discrimination because of sexual orientation. See Hively v. Ivy Tech Community College of Ind., 853 F. 3d 339 (2017) (en banc). In that case Judge Posner agreed with the result in a concurring opinion, but wrote: “I would prefer to see us acknowledge openly that today we, who are judges rather than members of Congress, are imposing on a half-century old statute a meaning of ‘sex discrimination’ that the Congress that enacted it would not have accepted.” Ibid., at 357.

Thus, Justice Posner’s language above in Hively is further proof that the word sex in Title VII is not equivalent to sexual orientation, although his conclusion was the same as Justice Gorsuch’s based on a different theory of constitutional interpretation called “pragmatism.”

Although it would be preferable for Congress to have updated Title VII (as stated by Justice Posner), that doesn’t exempt the judiciary from fulfilling the responsibility of their sworn oath of office as described in their Judicial Oath, found at 28 U.S.C. § 453, which reads:

I, _________, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as _________ under the Constitution and laws of the United States. So help me God.

Consequently, their oath of office requires an administration of justice “without respect to persons.” This requires a recognition that LGBTQ citizens deserve equal respect because they are “persons.” The provision about equal right to the poor and the rich is a metaphor that was intended to encompass any irrational distinction among citizens. To acknowledge the equal right to the poor and the rich is no more morally justified that extending equal right to people of color or sexual orientation.

The judiciary has a duty to ensure that its decisions are fair and understandable. Otherwise our citizens will lose confidence in our legal system and take the law into their own hands. Thus, Judge Posner’s reasoning that public attitudes toward LGBTQ citizens have shifted since Title VII was written served to justify his decision. In 1964, when Title VII was written, LGBTQ citizens were afraid to publicly acknowledge their sexual preference or identity because of dangerous social consequences. Thus, as LGBTQ citizens have become more honest in acknowledging their identity, they should not be victimized by bigots with the court’s permission.

Judges are human beings with human emotions, such as empathy, disgust, happiness, and personal fulfillment, which provide direction to their sense of justice. They are not automata or robots who merely rubber-stamp opinions based on what someone said two hundred years ago. We can have machines that can stamp old laws to new conditions without regard to context or new understandings about the human personality. For example, in Brown v. Board of Education, the court was influenced by social-study reports that indicated that segregating children in schools undermined their self-respect and for that reason could not satisfy the criteria of “equal protection.”

The value of “we the people” in the preamble of the Constitution was a recognition that we can create a “more perfect union” based on the collective judgment of our varied life experiences, rather than relying on a king or pope who claim to speak for God. The Constitution was a product of the Enlightenment, which provided a secularization of the ethical debate. The American Revolution was a rejection of any theological basis for laws as manifested by King George. An ethical debate recognized that it had become commonplace that humans, through secular debate, had the capacity for self-government. Therefore, it followed that the pursuit of such pleasure was the divinely ordained end of human life. This was reflected in Jefferson’s phrasing, self-evident. Thus, the route to ethical understanding was to discover from distinct human qualities of fairness, such as empathy, compassion, emotional intelligence, and reason. Our accumulated experience would lead us to the values we desired. That pursuit could be accomplished in terms of our natural desire to protect society and maximize human fulfillment through government.

The informed pursuit of secular discourse led us to moral excellence. The easiest route to the pursuit of human fulfillment was the study of human nature and the dynamics of the human condition. Enlightenment thinkers believed that toleration was an indispensable route to human well-being. Thus, the disparagement of a class of persons by society constituted a diminishment of the democratic enterprise.

The Enlightenment philosophers recognized the human capacity for emotional intelligence, empathy, and the collective wisdom of secular discourse to provide the tools for governmental discernment of “the general welfare.” They recognized that contemporary morality changes over time as we learn new understandings about the human personality from the social sciences and life experience. Judges can both read and give deference to the clear meaning of the words of the Constitution, as well as interpret its ambiguous meanings in terms of contemporary understandings of “fairness” without imposing their personal preferences. There are objective standards for understanding contemporary fairness that are as easy to understand as the meaning intended by people who lived when the Constitution was written. These are objective standards, based on rational discourse, for discerning fair decisions that do not suggest that judges are “legislating from the bench.”

The preamble to the Constitution is a statement of its purpose: to provide a common currency, provide a common defense, and create a more perfect union by employing the life experience of our citizens’ common consciousness (“we the people”). The body of the Constitution provides the means for achieving that purpose as stated in its preamble.

The public confidence in our legal system and courts is poor today because the public perceives that our judges make their decisions based on partisan agendas rather than on independent judgment of fairness. Court decisions of the past were respected and won the public trust because they resonated with our collective sense of justice. This is one of the most important tasks of judicial decisions: the embodiment of the public trust, as mentioned in Justice David Breyer’s book Active Liberty: Interpreting Our Democratic Constitution (2013).

Selecting judges based on an ideology of originalism, which appears to be used as a justification for pursuing partisan political objectives, undermines the public trust in the judiciary. Selecting judges based on a criterion of how they would rule on cases that would come before the court poisons the public’s confidence in the independence of the judiciary. Similarly, selecting judges on the basis of a commitment to a theory of constitutional interpretation that is not justified also undermines the confidence of the public in a judiciary it perceives as partisan.

The selection of qualified judges used to be based upon screening of the education, scholarship, understanding of the law, and experience in making judgments by an independent, nonpartisan body such as the American Bar Association. This is preferred to the selection of candidates by a partisan political organization with an agenda that favors religious favoritism or business and moneyed interest in the political process.

All the worst cases decided by the U.S. Supreme Court that are considered embarrassing mistakes of justice are judged as mistakes by our contemporary understanding of fairness, not because they were technically incorrect in their time. Those cases include:

• Buck v. Bell (1927): The Court upheld the forced sterilization of the mentally ill.
• Dred Scott (1857): Scott, a slave, claimed to be free based on his residence in either Illinois, a free state, or Wisconsin, a free territory. The Court found that he was not considered a person when the Constitution was drafted in 1787, therefore he did not have a right to bring his claim under the U.S. Constitution according to Justice Taney, who wrote the opinion.
• Korematsu v. U.S. (1944): The Court upheld internment of Japanese Americans during World War II for their ethnicity.
• Plessy v. Ferguson(1896): The Court upheld the constitutionality of separate but equal facilities for Black and White citizens as compatible with the “equal protection” clause.
• Civil Rights Cases(1883): The Court struck down the Civil Rights Acts of 1875, which banned racial discrimination in business and public accommodation, because this was not intended by the authors of the Fourteenth Amendment.
• Bowers v. Hardwick (1986): The Court upheld as constitutional sodomy laws that criminalized sexually active gay and lesbian relationships.
• Lochner v. New York (1905): The Court struck down a New York law limiting bakery workhours to ten hours a day based on the Constitution’s provision for freedom of contract.
• Hammer v. Dagenhart (1918): The Court ruled that congress could not ban child labor in intrastate commerce because it violated the freedom of children to contract.
• Citizens United v. FEC (2010): The Court held that political dollars are speech protected by the first amendment, which made unlimited personal and corporate donations to “super pacs” permissible.

Conclusion

Originalism is a flawed theory of Constitutional interpretation. It reflects a hierarchical, top-down, deductive, and outdated perspective. This theory prioritizes rule-following over human thriving.

Originalism ignores the wisdom of the words “We the People” in the Constitution as a reflection of the collective conscience of all the people—rich or poor, Black or White, gay or straight—and their contributions of distinct life experience in service of the general welfare. It implies that wisdom ended with the founders and that those most qualified to govern themselves are White, male, powerful, property owners. However, by respecting the influence of those who are powerless because of their lack of finances to afford lobbyists or substantial campaign contributions, our society is handicapped on several contemporary concerns, such as environmentalism, extreme wealth and income disparities, unfair treatment of racial minorities, and disparities of income based on irrelevant factors of identity.

Our nation has lost its worthiness of being identified by the term American Exceptionalism (an exemplary nation and model of a just society). We are not exceptional because of the accident of our birth here. We are worthy of that term only because of our living up to our reputation as a land of opportunity, resourcefulness, and concern for the welfare of those who are disadvantaged by the accident of their birth. This is the message engraved on our Statue of Liberty.

A solution to this dilemma is to bring together most legal scholars and distinguished teachers of Constitutional Law who recognize that originalism is a flawed theory of constitutional interpretation. By our activism, we can inform the public of the danger of this flawed theory to the democratic enterprise.