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.