In his dissent in Bostock
v. Clayton County, in which the Supreme Court held that the Civil Rights
Act of 1964 prohibits employment discrimination against gay people, Justice
Alito offered the following argument:
“it is imperative to
consider how Americans in 1964 would have understood Title VII’s prohibition
of discrimination because of sex. To get a picture of this, we may imagine this
scene. Suppose that, while Title VII was under consideration in Congress, a
group of average Americans decided to read the text of the bill with the aim
of writing or calling their representatives in Congress and conveying their
approval or disapproval. What would these ordinary citizens have taken
“discrimination because of sex” to mean? Would they have thought that this
language prohibited discrimination because of sexual orientation or gender
identity?”
He concludes: “The answer could not be clearer. In 1964,
ordinary Americans reading the text of Title VII would not have dreamed that
discrimination because of sex meant discrimination because of sexual
orientation, much less gender identity.”
The source of statutory interpretation that is proposed
here goes beyond the text of the statute, and even beyond the legislative
history and publicly understood purposes of the Act, to the entire background
culture at the time the law was enacted.
That culture then becomes the basis for subtracting meaning
from the statute. This comes packaged as
a recipe for judicial restraint – Alito accuses the majority of “legislation” –
but it actually demands quite a lot of creativity.
Alito evidently expects the interpreter to understand all
the background beliefs that the modal member of Congress had at the time, and
then predict how that member would have reacted to an unforeseen circumstance.
It is essentially the technique of Method Acting, pioneered by Constantin
Stanislavski:
“During every moment we are on the stage, during every
moment of the development of the action of the play, we must be aware either of
the external circumstances which surround us (the whole material setting of the
production), or of an inner chain of circumstances which we ourselves have
imagined in order to illustrate our parts. . . . these inner images create a
corresponding mood, and arouse emotions, while holding us within the limits of
the play.” An Actor Prepares 60 (1936).
Alito is evidently imagining the thinking of a member of
Congress the way that an actor imagines Othello or Lear. What would they do in these circumstances?
But of course acting is a creative enterprise. There are lots of valid
ways to imagine those characters, consistent with the text. Many of them
would have surprised Shakespeare. Stanislavski’s claim is that, in order
for an actor to do his job well, he must rely on (in the words of Gorsuch in
Bostock) “extratextual sources and our own imaginations.”
The trouble is that counterfactual questions are
unanswerable. If Congress knew everything we now know about LGBT
discrimination, what would it say? David Hackett Fischer writes:
“No amount of empirical research will ever suffice to prove that Timothy
Pickering, had he by some horrible twist of fate been elevated to the
presidential chair, would or would not have done precisely what Jefferson did.
His perverse opinions on Louisiana are well known, but the opinions which he
might have held in different circumstances are utterly unknowable, and
irrelevant to a proper historical inquiry.” Historians’ Fallacies, 18
(1970). Conjecture can get you into trouble. Fischer again:
“On the eve of World War II, German leaders played a war game among themselves,
in which they demonstrated to their own satisfaction that England could
not and would not intervene in Poland's interest.” Id., 20.
It's true that, in 1964, overwhelming majorities of
Americans disapproved of homosexual sex.
They probably disapproved of transgender people too. But the argument
proves too much. Americans also had
other attitudes that, if one applies Alito’s method, produce awkward results
for him. In 1958, for example, 4 percent of Americans approved of interracial
marriage. That number had risen to 20
percent in 1968, but it was still the case that 73 percent disapproved. https://news.gallup.com/poll/163697/approve-marriage-blacks-whites.aspx.
In 1965, 48 percent of Americans
approved of laws criminalizing interracial marriage. 46 percent were opposed. https://news.gallup.com/vault/212717/gallup-vault-americans-slow-back-interracial-marriage.aspx.
There’s plenty of reason to think that most Americans in 1964 would have been
surprised to learn that the statute would protect employees who are in
interracial relationships. Alito’s
argument, taken to its logical conclusion, prevents law from ever doing more
than ratifying existing prejudices.
Stanislavski’s central claim is that acting demands creativity. In a play’s text, you may just find a
direction that someone exits the stage.
“But one cannot appear out of the air, or disappear into it. We never believe in any action taken ‘in
general’ . . .” An Actor Prepares,
52. The actor’s job is to “embroider
facts with details drawn from our own imaginations.” 53. But of course this method will yield
different results with different actors, who need to know how to work with
their own idiosyncrasies. “When you know
the inclinations of your own nature it is not difficult to adapt them to
imaginary circumstances.” (65) What is
adapted is the actor’s own personality.
“Our art demands that an actor’s whole nature be actively involved, that
he give himself up, both mind and body, to his part.” (66) Different actors will make different valid
possible inferences from the text: one Hamlet has suppressed incestuous
longings for Gertrude, another doesn’t, both are worth seeing. This is a swell way of thinking about
theatre. That’s why Stanislavskian
methods continue to be taught in acting classes. In statutory interpretation it won’t do.
It is particularly problematic as an approach to a
broadly transformative statute like the Civil Rights Act, whose terms, Gorsuch
observed, “virtually guaranteed that unexpected applications would emerge over
time.” One question a good actor will
ask about his character is whether this person is capable of growth and
change. Hamlet is; Polonius isn’t. Justice Alito’s argument presumes that when
Congress spoke, it was more like Polonius – and this while interpreting a
statute that, more than almost any other legislation in American history,
displays a willingness and ability to grow and change.