BOSTOCK V. CLAYTON COUNTY AND THE FOLLY OF TEXTUALISM: A UTAH CASE STUDY.

• Author: Vanderhooft, Christian

Table of Contents ABSTRACT 2 INTRODUCTION 3 I. TEXTUALISM AS DEFINED BY BOSTOCK V. CLAYTON COUNTY 5 A. What Is Textualism? 5 B. Textualism Applied 8 1. Interp retin g Sex 8 2. Reading the Precedent 10 C. What are the Values of Textualism? 15 II. THE UTAH COMPROMISE 17 III. APPLYING BOSTOCK'S TEXTUALISM TO UTAH 23 A. Justice Gorsuch's Version of Textualism 25 B. Justice Alito's and Justice Kavanaugh's Versions of 31 Textualism CONCLUSION 35 INTRODUCTION

On June 15, 2020, the Supreme Court dramatically expanded the reach of Title VII of the Civil Rights Act of 1964. (1) It held, in Bostock v. Clayton County, that by prohibiting "discriminat[ion] against any individual... because of such individual's... sex," Congress had also necessarily prohibited discrimination based on an individual's sexual orientation or gender identity. (2)

The decision, written by Justice Neil Gorsuch, was heralded as "the triumph of textualism" by Jonathan Skrmetti, a deputy attorney general from Tennessee. (3) Daniel Hemel, a law professor from the University of Chicago, used the exact same phrase two days later in a Washington Post article. (4) "We're all textualists now," declared Ilya Shapiro of the libertarian-leaning CATO Institute, (5) invoking Justice Elena Kagan's famous remark from 2015. (6) Mr. Shapiro was somewhat skeptical of the outcome, but nevertheless viewed the case as a cause for celebration because what mattered was how the justices approached the case, not what they ultimately decided. (7)

In short, the verdict is clear: Bostock v. Clayton County has cemented textualism as the central--and perhaps exclusive--theory of statutory interpretation. After all, it was not just the majority opinion that adhered to textualist precepts; the dissents of Justice Samuel Alito and Justice Brett Kavanaugh also embraced textualism, even though they vigorously disputed the specific application of textualism to the actual facts of this case. Textualism, in other words, has won the war. (8)

But the textualists on the Supreme Court, both in the majority and the dissents, could hardly have chosen a worse case in which to declare victory. All three opinions assure us that textualism encourages democratic accountability, ensures fair notice, and promotes judicial restraint. (9) In reality, Bostock reveals that textualism--whether Justice Gorsuch's version or the dissents' versions--actually accomplishes none of these goals.

To demonstrate just how ineffective textualism is at achieving the very goals that it purports to embrace, this Article takes each of the Bostock opinions and applies their logic to a different situation: Utah's prohibition of sex discrimination in its public accommodations law.

In 2015, Utah made history. It became the first (and so far only) Republican-led state to add sexual orientation and gender identity to its nondiscrimination laws through the legislative process. (10) Utah's amended laws were also unique for a second reason: Utah made it illegal to discriminate on the basis of sexual orientation and gender identity, but only with respect to employment and housing. (11) The Church of Jesus Christ of Latter-day Saints (the dominant religion in the state) and Equality Utah (the primary LGBTQ advocacy group pursuing the legislation) were unable to reach a mutually satisfactory compromise in the realm of public accommodations. (12) In other words, it is illegal in Utah for any public accommodation to discriminate on the basis of sex, as has been true for decades, but the law remains silent on the issue of sexual orientation or gender identity. (13) For employers and landlords, by contrast, discrimination on the basis of sexual orientation and gender identity is explicitly prohibited. Utah is the only state in the country to make this distinction. (14)

Assume that a hypothetical gay couple was kicked out of a Utah hotel, or that a Utah restaurant refused to serve a trans woman. If a lawsuit were to argue that this conduct violated Utah's public accommodations law, how might a textualist Utah Supreme Court respond? If it followed Justice Gorsuch's majority opinion from Bostock, it would likely side with the plaintiffs. If it instead followed the dissents of Justice Alito and Justice Kavanaugh, the hotel and restaurant would prevail. But as this Article demonstrates, under either scenario, the supposed benefits of textualism--democratic accountability, fair notice, and judicial restraint--would remain unrealized. The problem is not which version of textualism one applies; the problem is textualism itself. Far from reading Bostock as the triumph of textualism, we should read it as the ultimate proof of textualism's folly.

This Article proceeds in three parts. First, it examines the Bostock decision, with the goal of answering three questions: (1) How do these justices define textualism? (2) How did they apply textualism to the facts of the Bostock case? and (3) What do they believe are the values of textualism? Then, in Part Two, the Article reviews the history of what became known as the Utah Compromise, the legislative decision to add sexual orientation and gender identity to some--but not all--of Utah's nondiscrimination laws. Finally, Part Three examines how a hypothetical, textualist Utah Supreme Court could interpret Utah's public accommodations law in light of Bostock and concludes that trying to use textualism to interpret that law inevitably violates the principles of democratic accountability, fair notice, and judicial restraint--the very values that Justice Gorsuch, Justice Alito, and Justice Kavanaugh all agree are the end goal of textualism.

1. TEXTUALISM AS DEFINED BY BOSTOCK V. CLAYTON COUNTY

   1. What Is Textualism?

      Like all schools of thought, textualism has several variations and nuances, at least at its margins. (15) Rather than thoroughly investigate every possible permutation, this Article limits its focus to textualism as it is understood by three specific practitioners: Justice Gorsuch, Justice Alito, and Justice Kavanaugh. And it narrows its focus even further by addressing only the definition of textualism invoked by the justices in their 2020 decision, Bostock v. Clayton County. (16)

      In that case, the three justices largely agreed on the definition of textualism. Per Justice Gorsuch's majority opinion, a good textualist "interprets a statute in accord with the ordinary public meaning of its terms at the time of its enactment." (17) Similarly, "our duty," wrote Justice Alito in dissent, "is to interpret statutory terms to 'mean what they conveyed to reasonable people at the time they were written.'" (18) And Justice Kavanaugh embraced an identical definition in his own dissent. (19)

      To this seemingly straightforward definition, Justice Gorsuch adds a lengthy list of things that textualists do not consider. What the legislators were trying to accomplish, (20) legislative expectations about how the law would operate in practice, (21) and any other information that might be gleaned from legislative history (22) must all be disregarded. (23) The consequences of a court's ruling, whether for other cases or for society more generally, also do not matter. (24) After all, "when Congress chooses not to include any exceptions to a broad rule, courts apply the broad rule." (25) Finally, neither unenacted proposals considered but rejected by Congress, nor actual laws enacted by Congress in later years, have any bearing on how to interpret the original statute. (26) In sum, "none of these contentions about what the [parties] think the law was meant to do, or should do, allow us to ignore the law as it is." (27)

      Justice Alito and Justice Kavanaugh both disagree with the conclusion reached by the majority opinion. But they do not particularly disagree with either the way Justice Gorsuch frames the textualist inquiry or with the lengthy list of things Justice Gorsuch says should not be considered. (28)

      To the extent the dissenters do disagree with Justice Gorsuch's approach to textualism, their complaint is limited to what they claim is an incorrect application of the "ordinary meaning" inquiry, and the possibility that certain evidence rejected by Justice Gorsuch could be relevant to making that determination. Justice Alito, for example, invokes state constitutions, state laws, federal statutes, the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, federal security clearance procedures, executive orders, army regulations, numerous dictionaries, and a 1969 survey of American physicians as part of his dissent. (29) Similarly, Justice Kavanaugh's dissent references various proposed laws (some rejected and some enacted), executive orders, federal regulations, and nearly a dozen earlier decisions from the circuit courts. (30) But in citing these sources, the justices carefully avoid actually disagreeing with Justice Gorsuch's summary of what textualism requires. Justice Alito emphasizes that these sources are relevant solely to understand what "reasonable people at the time" would have understood "sex" to mean. (31) And Justice Kavanaugh is simply trying to understand how words would be used in "common parlance" at the time. (32) Both justices assure us that these sources are not being used to investigate legislative intent, legislative history, or any other inquiry prohibited by textualism. (33)

      In short, the justices all essentially agreed on how textualism is supposed to work in the abstract. But strong disagreements arose once their apparently unanimous definition of textualism was actually put the test.

   2. Textualism Applied

      1. Interpreting Sex

         The case now known as Bostock v. Clayton County actually began as three separate cases. In the first, Gerald Bostock was fired from his job as a child welfare advocate after his bosses discovered that he had been participating in a gay recreational softball league. (34) In the second, Donald Zarda was fired from his...