CORTMAN: Justice Alito And The Supreme Court’s Textualist ‘Pirate Ship’

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David Cortman Contributor
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Writing in dissent from the majority decision in Bostock v. Clayton County, U.S. Supreme Court Justice Samuel Alito summed up the proper reaction to his colleagues’ rewriting of federal law to shoehorn “sexual orientation” and “gender identity” to the longstanding definition of sex:

“There is only one word for what the Court has done today: legislation,” Justice Alito wrote, before penning more than 100 pages to prove his point.

Since 1964, Title VII of the Civil Rights Act has guarded specific classes of people in the employment context from being treated worse than their fellow citizens on the basis of protected characteristics, including sex — a definition that has been universally understood as biological in nature until very recently.

Rather than allowing Congress to decide the appropriateness of any changes through the proper legislative process,  the Supreme Court in Bostock decided to rewrite federal law. With Justice Neil Gorsuch writing a 6-3 decision for the majority, the court expanded the original meaning of the law beyond its original intent or understanding.

Tom Rost is a prime example of the real victims this sweeping redefinition creates. As the fifth-generation owner of R.G & G.R Funeral Homes, Tom hired a male funeral director in 2007. Although the employee agreed to and abided by a sex-specific dress code for several years, in 2013, this same employee informed Tom of an intent to violate the policy by dressing and presenting as a woman when serving grieving families.

When Tom, in accordance with federal law as well as the Equal Employment Opportunity Commission’s employer manual, enforced his company’s long-standing dress code, a complaint was filed against him. That complaint, picked up by the American Civil Liberties Union after the federal government changed its position, led in part to today’s decision.

That decision, Justice Alito made clear, contorts the originalist principles pioneered by the late Justice Antonin Scalia into their polar opposite. Rather than interpreting a law for what it says, the majority opinion’s version of “textualism” is an imaginative form of legislation from the bench. It adopts a view of sex so subjective and changeable that it would be completely alien to Congress in 1964, and even most people today.

That’s bad news for Americans who, like Tom, believe they can rely on the law as Congress wrote it. It also could be bad news for women and girls, such as those competing in sports, whose rights could now be deemed subservient to those of men claiming a female gender identity.

“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,” Justice Alito writes. “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 value of society.”

That “pirate ship” has now set sail, and it’s difficult to know just where the high winds of change will take us. But what we do know is that there are more questions than answers as to how this could impact women, employers, and the meaning of sex in other federal laws. We also know that many more lawsuits will result from this decision and all the questions that it raises.

Biology is not bigotry, disagreement is not discrimination, and we must be careful not to allow the current to pull us so quickly toward an outcome desired by some that we bypass our constitutional system of government.

David Cortman is vice president of U.S. litigation and senior counsel for Alliance Defending Freedom (@AllianceDefends), which represents Harris Funeral Homes.