BOSTOCK WAS BOGUS: TEXTUALISM, PLURALISM, AND TITLE VII.

• Author: Berman, Mitchell N.

INTRODUCTION 68 I. BOSTOCK IN BRIEF 73 A. The Decisions Below 71 B. The Supreme Court Resolves 76 II. TORTURED TEXTUALISM 79 A. Ordinary Meaning 80 1. A First Pass 81 2. A Disanalogy Noted and Discarded 85 3. Litigation 86 4. Reception 91 B. Counterfactual Confusions 98 1. On Motivational and Non-Motivational Causation 99 2. On Not Changing "One Thing at a Time" 101 3. Why This Way Rather than That Way? 103 4. Of Bisexuals and Pansexuals 108 5. The Root of the Problem 108 6. Possible worlds and the principle of conservation in motivational analysis 111 C. And Gender Identity ? 116 III. OF PURPOSES AND PLURALISM 120 CONCLUSION 125 INTRODUCTION

In Bostock v. Clayton County, (1) the Supreme Court held that federal antidiscrimination law prohibits employment discrimination on grounds of sexual orientation and gender identity. (2) Writing for a majority that included Chief Justice John Roberts and the four liberals, Justice Neil Gorsuch reasoned that that's just what Title VII's "meaning" requires. Justices Clarence Thomas, Samuel Alito, and Brett Kavanaugh dissented in two separate opinions, one calling Justice Gorsuch's reading of the text "preposterous." (3) Bostock was a landmark event for lesbian, gay, and transgender people, and a powerful blow for greater social justice. Many pundits and commentators think itjust as important for what it reveals about statutory interpretation on the Roberts Court. (4)

Most commentators from the legal academy and mainstream media believe the Court reached the right result. (5) So if Justice Gorsuch's textualist approach to statutory interpretation gets you there, well, that's one big point for textualism--and for Justice Gorsuch too. Professor Michael Dorf proclaimed Justice Gorsuch's opinion "[m]agnificent" and wondered why it wasn't unanimous. (6)

Professor Tara Grove channeled a common reaction when observing, in a comment on the decision published in the Harvard Law Review's Supreme Court issue, that Bostock's "result may be reason enough to reexamine some assumptions about textualism." (7) Popular commenta-1 from both sides of the aisle claimed that Bostock showed that textualism could be applied neutrally, and at times deliver liberal results. (8)

But if Justice Gorsuch's opinion won plaudits from many conservatives and liberals alike, at least some conservatives demurred. Professors Josh Blackman and Randy Barnett declared themselves "surprised and disappointed" by Justice Gorsuch's "halfway textualism," (9) while Professor Nelson Lund derided the majority opinion as an "analytically untenable" and "outlandish judicial performance," one whose "application of textualist principles is fatally flawed." (10) The junior Senator from Missouri, a former Roberts clerk, denounced Bostock as "represent[ing] the end of the conservative legal movement." (11) "[I]f textualism and originalism gives [sic] you this decision," he charged, then "those phrases don't mean much at all." (12)

The debate over the textualist bona fides of Bostock is important and far-reaching. (13) To start, many difficult and significant questions remain regarding the scope of Title VII itself, in relation not only to sex discrimination but also to discrimination "because of race, color, religion, or national origin. (14) Indeed, commentators are already debating Bostock's implications for challenges to affirmative action university admissions programs under Title VII. (15) Furthermore, particular statutes and disputes aside, there remains the overarching need to better understand textualism and its place in the Court's general jurisprudence and interpretive methodology. (16)

We think the textualist critics of the Bostock opinion are largely right: textualism and originalism do mean something, and they do not license the results that Justice Gorsuch reached in Bostock regarding sexual orientation discrimination. (We believe that the Court's holding regarding transgender identity was defensible on textualist premises, and will explain the difference between the cases.) (17) But, unlike these critics, we don't start from the premise that textualism is correct. There are good reasons to conclude that the result in Bostock was right--legally correct, not (only) morally. If those reasons are persuasive, then so much the worse for textualism.

The Article unfolds over three parts. Part I reviews the facts and opinions in Bostock. Part II mounts our critique of Justice Gorsuch's opinion. That critique has two components. First, we contend that the dissents were correct that the statutory ban on "discriminat[ion]... because of [an] individual's... sex" (18) does not cover discrimination taken by reason of a person's sexual orientation as a matter of ordinary meaning or common parlance. Second, we argue that the statutory phrase also does not cover discrimination by reason of sexual orientation when given the "technical" legal meaning that Justice Gorsuch would assign it, (19) namely one that interprets "because of as incorporating but-for causation. (20) Simply put, Justice Gorsuch reached his conclusion that Bostock's sex was a but-for cause of his firing by operationalizing the but-for test in an illicit manner, one that violates fundamental constraints on counterfactual reasoning. Our demonstration that the Bostock result was not truly reachable via Justice Gorsuch's purportedly textualist route is this Article's most important and original contribution. If correct, it renders unavailable the happy outcome that many readers of Bostock seemed eager to embrace--that you could have ruled for the Bostock plaintiffs and be a good textualist too.

Part III briefly explores what follows if our analysis in Part II is correct. One possibility was embraced by the Bostock dissents and by other socially conservative commentators: textualism is the correct theory of statutory interpretation, and Bostock was wrongly decided. We believe, to the contrary, that the legal result in Bostock was likely correct, and that the substantial plausibility of its holding testifies to the falsity of textualism as a theory of statutory interpretation. In presenting this argument, we press two points that are of fundamental importance to debates over contemporary statutory interpretation but are curiously and routinely overlooked in the academic literature that sets forth "textualism" and "purposivism" as the main contending theories of, or approaches to, statutory interpretation. First, the kinds of goals, ends, or intentions that scholars call "legislative purposes" fall into (at least) two quite distinct conceptual categories, what we'll call "legal intentions" and "policy goals." Second--and of much greater importance to this interpretive dispute--whether legislative purposes be associated with legal intentions or policy goals or anything else, any classificatory scheme that would oppose purposivism to textualism misleads by ignoring a fundamental asymmetry in interpretive approaches: textualists are overwhelmingly monist in their foundations; non-textualists are not. The more revealing classificatory scheme would contrast textualism not with purposivism, but with pluralism. We close by distilling ironic support for a pluralist approach to statutory interpretation from Justice Alito's purportedly textualist Bostock dissent.

1. BOSTOCK IN BRIEF

   Title VII of the Civil Rights Act of 1964 makes it unlawful "for an employer... to discriminate against any individual... because of such individual's... sex." (21) The first appellate decision to address whether discrimination on the basis of sexual orientation was barred by Title VII was Blum v. Gulf Oil Corp., in 1979. (22) The Fifth Circuit dismissed the contention in a single sentence. (23) Over the next thirty years, the issue was litigated in eight Circuits and all followed Blum in rejecting the claim. (24) Strikingly, every panel appeared to find the question easy: four expended no more than a sentence on the issue, and not one elicited a dissent. (25)

   Then, shortly after 2010, four cases--Zarda v. Altitude Express, (26) Bostock v. Clayton County, (27) EEOC v. R.G. & G.R. Harris Euneral Homes, (28) and Hively v. Ivy Tech (29)--were filed and would wend through the courts over the next decade. The first three would become consolidated at the Supreme Court.

   1. The Decisions Below

      In Zarda, filed in 2010, plaintiff David Zarda, a skydiving instructor, alleged that his employer had terminated him for being gay (30) and thus violated Title VII and New York state law. (31) The district court granted summary judgment against Zarda on the Title VII claim, on factual grounds that did not feature the fact of his sexual orientation. (32) On appeal, a panel of the Second Circuit affirmed. (33) Thereafter, a majority of the Second Circuit sitting en banc reversed the district court's decision, holding that Zarda could raise a claim of sexual orientation discrimination under Title VII as a form of sex discrimination. (34) In so doing, the majority appealed to the "sex-dependent nature" of sexual orientation discrimination, gender stereotyping, examining employer motivation, and associational discrimination. (35) The majority also reasoned that the but-for causation test showed that sexual orientation discrimination was discrimination "because of... sex." (36) Judges Gerard Lynch and Debra Ann Living-1 each dissented, contending principally that the ordinary meaning of sex discrimination, both in 1964 and in the present day, did not encompass sexual orientation discrimination. (37)

      Similarly, Bostock, filed in 2013, concerned allegations by plaintiff Gerald Bostock that he had been terminated for being gay. (38) Bostock was a Child Welfare Services Coordinator for Clayton County, Georgia, with a record of strong job performance. (39) He was fired shortly after joining a gay recreational softball league, a job action he alleges was taken because of his sexual orientation. (40) The district court...