Guest Editorial Week of 7/06/20

Has Justice Gorsuch become the Supreme Court jester?

With America once again mired in turmoil, we all needed a good laugh. Justice Neil Gorsuch delivered it. On June 15th, exactly 805 years after the Magna Carta circumscribed the absolute power of King John, the United States Supreme Court once again reasserted its absolute power over us. Gorsuch and five of his colleagues ruled that the definition of sex discrimination in Title VII of the 1964 Civil Rights Act encompassed disparate treatment based on “sexual orientation” and “gender identity,” a humorous concept as the words “sex,” “sexual orientation,” and “gender identity” have always had distinct meanings. But such inventive jurisprudence is not what makes Gorsuch’s majority opinion in Bostock v. Clayton County significant or even really what makes it funny. Americans have grown accustomed absurdist decisions by the High Court. What makes this decision a unique work of comedy is that it is the greatest work of satire since Jonathan Swift’s A Modest Proposal.
Gorsuch’s opinion is a parody of textualism, a theory of statutory interpretation that relies on the ordinary meaning of a statute’s text. That textualism is also the preferred method of statutory construction of the conservative legal movement that incubated Gorsuch’s career is the conceit of his comedic coup. Gorsuch states that if an employer permits a male employee to romantically engage a female but does not permit the same conduct from a female employee, then the employer has violated Title VII’s prohibition on sex discrimination. Likewise, Gorsuch concludes that if a male employee who identifies as a female wants to wear feminine attire, then Title VII demands that the employee be permitted to do so. Under Gorsuch’s interpretation, any disparate treatment based on sexual orientation or gender identity results in the disparate treatment of the sexes, which is prohibited by the very text of Title VII. In the written equivalent of a deadpan delivery, Gorsuch claims to have merely reached his conclusion by following the law as written.
It does not matter that an employer could have a policy of only hiring heterosexuals regardless of and without knowledge of a job applicant’s sex as Justice Samuel Alito pointed out in his dissent. It does not matter that Gorsuch is mistaking literalism for textualism as Justice Brett Kavanaugh observed in his dissent. It does not matter that Gorsuch’s opinion would appear to permit discrimination against bisexual employees or employees who identify as a gender other than male or female as other critics have pointed out. It does not matter that pedophilia and ephebophilia are sexual orientations related to age rather than sex, raising the question of whether an employer who refuses to hire pedophiles or ephebophiles is committing age discrimination. It does not matter that if a plaintiff knowingly misrepresents his sexual orientation or gender identity, it is impossible to disprove his assertions. Jokes do not have to make logical sense.
The interplay between Gorsuch’s majority opinion and the two dissenting opinions effectively turns the Supreme Court into a comedy troupe. With Alito and Kavanaugh playing straight men to Gorsuch’s funnyman, the three partake in what reads like a comedy routine premised on the meaning of the word “sex.” Their differing understandings of the word is reminiscent of the wordplay in old Abbott and Costello routines (e.g. “Who’s on First?”). But the comedic value of Gorsuch’s opinion is much more. By combining humor based on incongruity (Gorsuch’s unexpected authorship of such an opinion), humor based on an obscure reference (the parody of textualism is an inside joke for legal scholars), and humor based on repetition (the leftward drift of Supreme Court justices appointed by Republican presidents is perhaps the longest running joke in history), Gorsuch achieves a comic trifecta. Supreme Court rulings occasionally display wit, but never has anyone brought comedy to the Court quite like this.
Jokes are never universally appreciated. Religiously affiliated employers may understandably feel that Gorsuch’s comic stylings are at their expense (literally, as the Court’s ruling exposes them to litigation). But Alito’s denunciation of Gorsuch’s opinion as “legislation” is incorrect. Politicians and legislators are constrained by legal and political realities. Free of such constraints, Gorsuch’s opinion is more like an edict. Such edicts result from an oversight by the authors of the U.S. Constitution. Their understanding of man’s fallen nature led them to create a system of unconcentrated power divided among different branches and levels of government. But the separation of powers is fully dependent on the judicial branch exercising self-restraint, something which the flawed nature of humanity makes unlikely and infrequent. Given absolute power, most people would not be able to refrain from exercising it. Neil Gorsuch certainly could not. History is repeating itself because human nature is static across time. First as tragedy and now as farce.

Paul F. Petrick is an attorney in Cleveland, Ohio.