Friday, July 10, 2020

Bostock and mindlessness

Andrew Koppelman

Steven D. Smith argues, at Law and Liberty, that the Supreme Court’s Bostock v. Clayton County decision, which held that discrimination against gay and transgender people is sex discrimination prohibited by the Civil Rights Act of 1964, is “mindless in a quite literal sense.”  His attack on the decision rests on a faulty conception of how rules of law work.

Smith observes that the authors of the Act did not decide that protection should thus be extended, and would have been surprised by the Court’s decision. Neither did Justice Gorsuch, the opinion’s author, who disavows any policymaking discretion.  Rather, Smith writes, Gorsuch’s textualism “makes the content of our law the product not of mindful decision-making, but of a sort of semantic accident. In this approach, the legislators, supposedly endowed by the Constitution with the power to make law, can only cast their semantic bread on the waters and then wait to see what those words turn out to mean (which might be something utterly different from what the legislators wanted and intended the words to mean).”

Smith acknowledges that sometimes “Congress will exercise its legislative authority by adopting a legal category that will cover instances that Congress did not imagine, and that may not even have existed at the time of enactment. Suppose, for example, that Congress prohibits the sale of some defined category of ‘poisons.’ The prohibition will apply to poisonous substances that members of Congress may never have heard of, and that may not even have been invented when the prohibition was adopted.”  But Smith thinks that’s not the case in Bostock, because the Congress of 1964 was quite familiar with sexual orientation discrimination.

Part of what Smith is complaining about is inherent in law’s use of rules rather than more flexible standards or principles.  Rules, Frederick Schauer writes in the leading book on the subject, are “crude probabilistic generalizations that may thus when followed produce in particular instances decisions that are suboptimal or even plainly erroneous.”  (Playing By the Rules, xv.)  There are circumstances in which these costs are worth it: prescriptive rules sometimes allocate power appropriately, and give clear notice about how power will be deployed.  But the obvious costs are the reason why we do not guide ourselves entirely by rules.  To the extent that law uses rules, it is necessarily mindless in just the way Smith complains of.

The more fundamental question is whether Bostock reached a suboptimal result.  My judgment on that question differs from Smith’s, because we have differing judgments of whether LGBT discrimination is related to the purpose of the statute.  He thinks it isn’t.  I think that it is like the case of “poisons” that he describes.  When Congress created the Environmental Protection Agency, it didn’t know that some chemicals then in common use – chemicals it knew about - were poisonous.  It did not specifically intend those chemicals to be regulated.  Similarly, it knew what antigay discrimination was, but it didn’t think that this was a form of sex discrimination. 

As a matter of cultural fact, gender nonconformity is associated with homosexuality, and vice versa.  Each is a placeholder for the other.  I wrote in 1994:

“Most Americans learn no later than high school that one of the nastier sanctions that one will suffer if one deviates from the behavior traditionally deemed appropriate for one's sex is the imputation of homosexuality. The two stigmas, sex-inappropriateness and homosexuality, are virtually interchangeable, and each is readily used as a metaphor for the other. There is nothing esoteric or sociologically abstract in the claim that the homosexuality taboo enforces traditional sex roles. Everyone knows that it is so. The recognition that in our society homosexuality is generally understood as a metaphor for failure to live up to the norms of one's gender resembles the recognition that segregation stigmatizes blacks, in that both are ‘matters of common notoriety, matters not so much for judicial notice as for the background knowledge of educated men who live in the world.’”  (Why Discrimination Against Lesbians and Gay Men Is Sex Discrimination, 69 N.Y.U. L. Rev. 197, 235 (1994), quoting Charles L. Black, Jr., The Lawfulness of the Segregation Decisions, 69 Yale L.J. 421, 426 (1960).)

As it turns out, they can’t be pulled apart.  An exception for alleged homosexuality can swallow the rule.  The association is close enough that a sophisticated defendant who has discriminated on the basis of gender nonconformity – and in particular, has discriminated against women in high paying jobs - will always be able to offer a colorable defense that it associated such nonconformity with homosexuality.  “It’s true, your honor, that I don’t hire any women on my construction site.  But that’s because I think that any woman who wants to be a construction worker must be dyke.”

In short, heterosexism is an instance of the poison that the statute targets.  It is the attempt to subtract from the plain meaning of the statute that is mindless.

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