Courthouse Steps Decision Teleforum: Title VII Cases

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Greg Walsh:  Welcome to The Federalist Society's teleforum conference call. This afternoon's topic is titled Courthouse Steps Decision Teleforum: The Title VII Cases. My name is Greg Walsh and I'm Assistant Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the expert on today's call.

 

      Today we are fortunate to have with us Curt Levey, the President of the Committee for Justice. After our speaker gives his opening remarks, we will go to audience Q&A.  Thank you for sharing with us today. Curt, the floor is yours.

 

Curt Levey:  Thank you Greg.  We're talking about a decision that came down yesterday where the Court, by a 6-3 vote, interpreted Title VII's prohibition against sex discrimination in employment to encompass discrimination based on sexual orientation or sexual identity. The case is Bostock v. Clayton County and Gorsuch wrote the majority opinion.

 

      Now, I think a decade or two ago, probably most of the debate would have been about the very notion of such rights. Should gay and transgender people have rights? I think by 2020, most Americans agree that discrimination against LGBT folks is wrong. In fact, most people that I talk to seem to think it's already banned by federal law. They're surprised to hear Title VII doesn't cover it. Now, that's not to say that there were no complications, like religious liberty issues, but I think most people support the general proposition and even the defenders acknowledged that there is good policy reasons for wanting to expand Title VII. I believe Kavanaugh said that policy arguments were very wavy and Alito mentioned that it's painful to be reminded of the way that our society once treated gays and lesbians, just certainly within the last several decades.

 

      So instead of focusing on whether there should be such rights, the debate is really focused on whether courts are the proper branch for expanding Title VII. As Justice Kavanaugh put it in dissent, this case boiled down to one sentimental question, who decides? And his answer was that the responsibility to amend Title VII belongs to Congress and the President and not the Supreme Court, or any court. And I agree with him. But Gorsuch, in his majority opinion, saw it differently. He said he wasn't doing anything like amending Title VII. He was doing nothing more than interpreting the text of Title VII. And he does focus on textual analysis but his analysis is strained.

 

      The opinion might be easy to dismiss as just another example of politics masquerading as interpretation. If it had been written by one of the Court's liberal justices, or even by Chief Justice Roberts. But it deserves to be taken more seriously because Gorsuch is a principled textualist. He's been consistent about that since he's been on the Court. And again, Gorsuch does rely on detailed textual arguments, which conservatives should at least be happy with that. Kennedy probably would have written the opinion a few years ago and would have gotten something about the right to define one's own concept of existence. For those not lawyers or old enough to remember, that was the wording in the '92 case decision that affirmed Roe v. Wade. But Kennedy has used language like that since, and like I say, probably would have again.

 

      Now, the case hinges on Title VII's command that it's unlawful for an employer to discriminate against any individual because of the individual's race, color, religion, sex, or national origin. Now note, sexual orientation and identity are not on that list. But Gorsuch reasons that discrimination based on sexual orientation or gender identity is really discrimination based on sex. The example he gives is, if a gay man is fired because he's gay, he's fired because he's attracted to men, even though a similarly situated woman would not be fired for being attracted to men.

 

      But that's a stretch, as Alito points out in dissent. Because employers’ real objection is not that he's attracted to men. It's the whole of sexual orientation. He would, in all likelihood, be equally upset about, or prejudiced towards a woman who is attracted to women. And Alito, I think very well, refutes Gorsuch's argument by pointing out that you could have an employer who didn't ask the biologicals, or any type of sex of job applicants, but did ask whether they were homosexual or transgender and refused to hire them if they were. And that would be discrimination based on sexual orientation or gender identity. But it couldn't be discrimination based on sex because the employer wouldn't even know their sex.

 

      As Kavanaugh said in dissent, really anyone familiar with the use of the English language understands that the ordinary meaning, which is what we look at when we're talking about textual analysis, the ordinary meaning of sexual orientation or gender identity discrimination is different and distinct from the ordinary meaning of sex discrimination. Federal law distinguishes the two. States that do ban sexual orientation discrimination explicitly distinguish the two. The Court, in its cases, have distinguished the two. The advocacy groups that pushed for the expansion of Title VII distinguished the two.

 

      So Gorsuch reading of the text is not completely indefensible but it's certainly not the most natural one. And Kavanaugh, in his dissent, quotes Scalia quoting Learned Hand that “a sterile literalism"—or one could substitute textualism—“loses sight of the forest through the trees.” And I think that's sort of what's going on here. You can maybe say that Gorsuch's reading of the text is correct or plausible in some very technical sense. But it really loses sight of the forest through the trees.

 

      But even if we were to give Gorsuch the benefit of the doubt and say that his reading is as plausible as the alternative, he runs into the problem that his interpretation is completely at odds with the legislative intent. Not even the plaintiffs in this case claim that anyone in Congress, in 1964 when Title VII was enacted, intended the text to mean what Gorsuch says it means. Now Gorsuch is correct, that legislative history should never defeat unambiguous statutory text. But his claim that no ambiguity exists and that the answer here is clear really strains credulity. I mean, it certainly wasn't clear to the lower courts. Until just a few years ago, every single court of appeals, 10 different panels I believe, so that's 30 different judges, saw it the other way. So not only is it not clear, but it wasn't even close.

 

      Gorsuch's interpretation had a record of zero wins and 30 losses. Were the text as clear as Gorsuch imagined it to be, all the bills introduced in Congress over the last 45 years to protect gay, and more recently, transgender Americans from employment discrimination, would have been redundant. But the advocate for those bills, and I remember them testifying in front of Congress, including Civil Rights officials from the Obama administration, they all recognized that Title VII needed amending to protect against LGBT discrimination. And protecting against that discrimination is a noble goal, but the separation of powers and general democratic principles, instruct us that the job of amending Title VII to do that belongs to the elected branches, not the courts. Alito said that in a more fired up way. The quote here said, "there's only one word for what the Court has done today: legislation."

 

      Now public opinion on gay and transgender rights are rapidly evolving. Congress would likely have extended Title VII to LGBT discrimination in the near future. And it would have had the imprimatur of wide public support. But instead, now the expansion of Title IX has the taint that comes from being imposed by unelected judges. So it really would have been better for all concerned to have gone the legislative route and that requires a little bit of patience, but that's true of all legislation.

 

      Moreover, courts are not equipped to engage in complex policy compromises that are necessary when expanding something like Title VII. Instead, we get a binary decision, which in this case, left difficult questions about, for example, whether sex-segregated bathrooms and locker rooms would be legal in the workplace that agree to which there can be accommodation of employers religious convictions. And it may even spill over to Title IX, which bans sex discrimination in educational institutions. For example, it could make it a lot easier for men to play on and perhaps displace women on women's teams. I just saw an article just a few hours ago in a higher education publication that said that yesterday's decision could transform Title IX.

 

      Now Gorsuch said these are all questions for future cases, not the cases before the Court. And yeah, it's put off for now. But these questions are sure to cause divisive battles precisely because they haven't been addressed in a thoughtful, or really any way, as they would have been had this been done legislatively.

 

      So I know a lot of conservatives are disappointed with Gorsuch after tomorrow. I guess the question is, should we be? We certainly shouldn't be because we don't like the outcome, for those who don't like the outcome. Let's leave the outcome oriented judging of Supreme Court opinions to progressives, they're good at that. In fact, I think Gorsuch's opinion is really a dramatic illustration that conservative judicial principles, like textualism, are not just an excuse, a cover for outcome oriented judging, as liberal legal academics always like to claim they are. Sometimes they lead to results that the judge using them would not have wanted if it had been up to him. That being said, you can be principled and wrong. Those aren’t mutually exclusive. In this case, I think Gorsuch is probably wrong. I think the defense had the better argument here.

 

      Finally, I don't think we should let the focus on Gorsuch, following this decision, obscure the fact that Roberts, once again, sided with the Court’s four liberals. And he's making a habit of that. I mean, he did it on the census citizenship question, the New York gun case, Auer deference to the administrative state. Those are the most prominent examples over the last 12 months. So if he wasn't already, he's now firmly established as a moderate swing vote that's really up for grabs. So next time you hear a Democrat screaming about the Supreme Court being captured by conservative ideologues and threatening to pack the Court, just remember, there are at least as many reliable liberals on the Court as there are conservatives, and maybe more.

 

      Anyway, that's probably a good place for me to stop and see if you, Greg, or the audience have any questions.

 

Greg Walsh:  Well, I'm sure the audience does. I definitely do, as well. Let's go to audience questions. We'll now go to the first question.

 

Prashon (sp):  Hi. Good morning. My name's Prashon. I'm from UCLA. I want to ask about the idea of legislative intent. There's one argument that says that legislature did not -- that Congress did not fairly contemplate this idea. What do you make of the larger legislative intent of this case -- in the [inaudible 00:13:04], which is the idea that most [inaudible 00:13:07] should not be the ones defining your employment status or how you’re treated at work? What about that larger, broader understanding of legislative intent? Thank you.

 

Curt Levey:  I'm not sure that I understood every word you said, but I think you were saying something along the lines of, that you could read the legislative intent in a broader sense to say that Congress was banning every type of irrational discrimination at work. Is that what you were asking?

 

Prashon:  Yes.

 

Curt Levey:  I mean, I guess if the statute was written differently, you could say that. But it does give a very specific list. Race, color, religion, sex, or national origin. So I think in this particular case, it's hard to make that argument.

 

Prashon:  Thank you.

 

John Vecchione:  Hi. John Vecchione. I have two quick questions. One, I don't have any evidence that this isn't Gorsuch's preferred outcome. So the argument that you go against what your preferred outcome is, I have no evidence of that. But my second question is, where does this put bisexuals? It strikes me that even under Gorsuch's opinion, the way he writes it, if someone is equally attracted to men and women, there is no discrimination on sex either way by the employer. And I'm wondering if that's a future problem.

 

Curt Levey:  Yeah, I mean, there's definitely holes in Gorsuch's reasoning that you've just pointed out one, and Alito pointed out another one. What if the employer doesn't know the gender of the applicant? But let me guess -- and there's other holes in it that people have pointed out that you have to make certain assumptions about the fact that one of the plaintiffs here actually was a -- I've already forgotten, I think it was originally a man who became a woman.

 

      You have to already, in a sense, partly answer the question posed to the Court by saying it's a genuine woman. But as to what was in Gorsuch's mind, I don't know. I just don't. I mean it's certainly possible. And I would jump to that conclusion for several of the justices on the Court. But I'm not ready to jump to that for Gorsuch because I think he has been very principled. So I mean, I am convinced that he had the worst of the argument and I see yours as well, but he's probably at least as smart as us. Probably smarter. And so we have to open ourselves to the possibility that he sees it differently. Or even that he's just wrong.

 

      Again, you can be principled and wrong. So again, maybe this is the beginning of a drift to Roberts-land by Gorsuch. But my instincts tell me it's way too soon to conclude that and that he certainly deserves the benefit of the doubt. And I think this is the good -- let's use it for what it probably is, which is an example of where textualism certainly doesn't always lead the place that conservatives would like it to lead. Let's put it that way.

 

Greg Walsh:  Let's go to our next caller.

 

Caller 3:  Hello. Thank you all for having this call. I had a question about the implications of the method that Gorsuch used to make a determination about the meaning of sex and how that can apply to other areas of discrimination that are prohibited. So because he writes that discrimination based on homosexuality or transgender status necessarily entails discrimination on the basis of sex, does that kind of expanded view of the discrimination translate to other areas? For example, in the case of religion or national origin, a potential expansion of seeing attributes or actions inextricably bound with the individual's religion or national origin, then, can also be seen as discriminatory as opposed to only actions or attributes blatantly associated with their national origin, religion, or what have you?

 

Curt Levey:  You know, could you give me a concrete example? 'Cause I'm not sure I'm completely seeing what you're getting at here.

 

Caller 3:  Well, I haven't thought of a concrete example, exactly either. But really, just the idea that if the understanding of sex is going out one step further than what you would naturally, like you mentioned, assume is included in the term, sex. Can that going one step further potentially be drawn out in other areas of prohibited discrimination, like religion, national origin, race, that the discrimination prohibited can include things related to those attributes of a person, even if it's not the most natural and specific version of that attribute of the person?

 

Curt Levey:  As you're talking, the example that comes to mind, and I'm not sure it's analogous to Gorsuch's reasoning, is when people talk about, for example, is anti-Semitism covered by Title VI? That's the racial version of Title IX that applies to -- well, not just to educational institutions, but entities getting federal funding. And some people view Judaism -- being Jewish as a race, and then there's issues about, well how about if you're Israeli, an Israeli citizen. Maybe it's not your national origin, but you're an Israeli citizen, is that kind of like being Jewish? And then people will even argue that if you're against the State of Israel, that means you're anti-Semitic.

 

      I think that maybe gets at sort of what you're talking about. I'm not sure it's analogous here because I don't think Gorsuch is saying that these things are related to sex, although he does say that, also. That part of the opinion, I'm not really quite sure why he brought that in. Maybe he just felt like he needed extra ammunition. What he's really saying is, this is just inherently sex discrimination. That sexual orientation and gender identity discrimination is sex discrimination. It's not related to it.

 

      Now he does do the other thing that comes to mind, as you asked your questions, is he does rely very heavily on the fact that, under Title VII, it doesn't have to be the only cause. So he says, really, in his example, there's two causes. One is that the person is a man, the employee is a man. If it was a woman that was attracted to men, you wouldn't care. And then the second characteristic is who they're attracted to. Again, I didn’t find that argument particularly persuasive, but I mean, he's right. It doesn't have to be -- if it's a but-for cause, it doesn't have to be the only cause. So he kind of maybe hints at what you're talking about. But again, I don't -- I'm not even really sure why he got into that. I mean, at the end of the day, I think he just needed to stick to his theory that it's inherently sex discrimination.

 

Greg Walsh:  Let's go to the next caller.

 

Caller 4:  I just had a question about how you would square the Chief Justice's vote in this case, with his vote in Obergefell because it seems like the same argument that would apply that discrimination against homosexuality is discrimination based on sex would’ve also equally apply to an equal protection argument with regard to the same-sex marriage laws. It seems like there's an inconsistency in his reasoning and that's unexplained.

 

Curt Levey:  Well, of course you know Obergefell wasn’t decided on equal protection. It's always hard to know, as I talked about with Kennedy talking about the meaning of one's existence, hard to know exactly what constitutional provision it was grounded in. But due process -- substantive due process of anything, so maybe the easy answer to your question is that there wasn't any equal protection analysis.

 

      But I can't remember who, in dissent, pointed this out, but if it had been true all along, since 1964, that sexual orientation discrimination was sex discrimination, then it's too bad the Court didn't know that because there's a lot of cases within the last 20 years, or 25 years, where they've struggled with issues—Obergefell, and cases before that—where it would have been really easy. If it was sex discrimination, we have a long body of law on that.

 

      So I get your point and I think you're right. In a sense, Gorsuch's argument proves too much.

 

Greg Walsh:  Let's now go to the next caller.

 

Tom LoBianco:  Yes, hi. Thank you for doing this. This is Tom LoBianco with Business Insider. You said questions, I guess sort of the campaign implications of this, one of the reasons that many conservatives came back into the fold with Donald Trump in 2016 was on the Supreme Court question. I'm wondering if this raises any questions or any concerns about the reelection just a few months from now, whether this tamps down any enthusiasm for Trump?

 

Curt Levey:  Well, I'm sure we won't be hearing Biden argue, “Don’t vote for Trump because he appointed someone who's not as conservative as we thought.” But you're saying, will it dull enthusiasm? I don't know. I mean, it really shouldn't. Gorsuch has been very good. On average, GOP appointees have been not always very disappointing, but maybe on average, a little bit to the left of what was expected and I think Gorsuch has, if anything, probably been a little bit more conservative than we expected. I certainly, I would hope that conservatives are not looking for an appointee who, again, always -- certainly that will always give them the policy outcome they want. That wouldn't be a conservative judicial philosophy. That's just activism. And not even one where they agree with the legal reasoning every time. Like I said, Gorsuch is a smart guy. I don't think, because we disagree with him once, we can say that there's something sinister going on or Trump made the right pick.

 

      So again, we'll see what happens. A bunch of big decisions still come in the next few weeks, but based on this, I would be surprised if Trump loses many conservative votes.

 

Tom LoBianco:  Awesome, thank you.

 

Greg Walsh:  Let's now go to the next caller.

 

Bob Fitzpatrick:  Hi. This is Bob Fitzpatrick. At oral argument, Justice Ginsberg --

 

Greg Walsh:  I'm sorry, caller, would you mind speaking into the mic a little bit more?

 

Bob Fitzpatrick:  Oh, I'm sorry. Can you hear me now?

 

Greg Walsh:  Yes sir, thank you.

 

Bob Fitzpatrick:  Okay. Sorry about that. Bob Fitzpatrick here, in D.C. At oral argument, a number of the Justices, including, as I recall, Justice Ginsberg was concerned about sports and I'm probably not using my terminology politically correct now, but a man who has now become a woman has legally been allowed to participate in female sports and people are pushing back complaining women who started as women and still are women, that they're being beaten by people who are, essentially, females carrying male hormones. That issue, I gather, that can was kicked down the road for the future. Can you give us some idea of how, given Gorsuch's holding on sex covers all this, how they might work their way out of that problem in the sports arena?

 

Curt Levey:  Yeah, I mean most of the cases going on are going on under Title IX. The most prominent one is in Connecticut and that's being litigated right now. The Justice Department and the Office of Civil Rights and Education are litigating. And there, it's really a matter of conjecture how this case would affect Title IX, since it doesn't -- didn't directly address Title IX. But I suppose professional sports -- I haven't really thought it through, to be honest, but in professional sports, you're an employee. So I don't know how that could be a more immediate effect. I'm not sure why we have -- why most of the cases have been in school rather than professional sports. Maybe it's just a simple answer that is a lot less professional athletes than there are people playing sports in schools and you have to be really, really, really good to be a professional athlete. But maybe we'll see more of those cases after this decision.

 

      That's one of the -- When I said early on that I think most people support the general proposition, that it's wrong to discriminate against gay and transgender people, and most people support that general proposition. It's because normally there's not someone hurt, assuming there's not belligerent objections and we're not talking affirmative action, where you're taking someone else's job, who is really hurt if you're not discriminated against. Probably no one.

 

      But when it comes to sports, if you're a woman and you have to compete against someone who was previously a man, potentially there's real harm there. And those are exactly the types of things that could have been dealt with in legislation. Probably would have been dealt with in legislation, I'm going to guess that there might have been a carve-out for that. But again, when you have these binary decisions by the Court, you can't deal with those things and so these are -- rather than being solved, these are going to plague us. And again, Gorsuch can kick it down the road, but he can't make it go away permanently.

 

Greg Walsh:  Let's now go to the next caller.

 

Cliff Kincaid:  Hi. My name is Cliff Kincaid. I'm a columnist. I'd like to get your reaction to what I'm hearing from the conservative grass-roots and that is that they're very, very disappointed, even angry, over this decision. They compare it to Roe v. Wade, the gay marriage decision, now this. And frankly, a number of them are telling me that they expect conservative legal groups, and people like Curt Levey and Carrie Severino, The Federalist Society and Heritage to apologize for pushing somebody like Gorsuch, getting him nominated, getting his nomination confirmed, after telling us all in the conservative grass-roots that he was a great conservative. Curt Levey said he was results oriented conservative. And now we see that he misuses Antonin Scalia's legacy, he totally twists the idea of being a principled textualist in making this sweeping decision, wiping out the laws in almost half the states in the United States. Why don't you, Curt, and the others who pushed this nomination down our throats, have the decency to apologize?

 

Curt Levey:  Well, I certainly didn't say that -- or tout him as a results-oriented conservative, because that's not something I believe. And I don't want a results-oriented conservative. That's just conservative judicial activism. Carrie, I know. I mean, I saw her tweet something, I think I saw a statement. She is very upset about this. I'm not saying I'm happy with it. I'm just saying, for example, you compared it to Roe v. Wade, I'm not telling you that this is a brilliant piece of legal reasoning. But let me remind you that, at least he took a textualist approach. If you remember Kagan's favorite words where, we're all textualists now. That may not be true, but I'd still prefer them to attempt a textualist approach, even if they're going to go off the rails.

 

      Again, if Kennedy had been on the Court, you would not have gotten the textualist approach if he was writing the opinion. You would have gotten something about -- some gibberish, frankly, about the right to define the meaning of your existence. And let me also remind you, nobody -- abortion is a very emotional issue for people because there are, whether you think it's a human life or not, there is a living thing that's dying. And the good thing about gay and transgender rights is, like I said, in most cases, it's not going to hurt someone. The fact that someone is not discriminated against is not going to take a job away from somebody else.

 

      Again, there are exceptions that we talked about. Religious issues and men on women's teams. So no. I don't feel like I have anything to apologize -- even if this is a terrible decision, I wouldn't have anything to apologize because we're not -- again, I don't know, can you point to a justice who's always right? It's pretty hard to find. If they can get it right 90 percent, even 80 percent of the time, I'd be happy. Let's compare it, sort of, to what's happened in my lifetime. There's been a lot of GOP appointees who were moderate, at best. Many of them liberal, like Souter and Stevens and even worse before that, the Eisenhower appointees. So if we can get a judge who's a principled conservative 80, 90 percent of the time, I'll be delighted. I mean, that's really the best we can do. Especially because you don't know in advance. You can't get inside somebody's mind. I don't think -- the people that we nominate, I don't think they even know what's going to happen once they're inside Washington with all the pressures involved. So again, I'm happy with Gorsuch, overall, and maybe I'll be proven wrong, but right now, there's no reason to apologize.

 

Greg Walsh:  Let's now go to the next caller.

 

Caller 8:  Well, don't throw me into the "demand an apology" camp. But the language of that here sounds an awful lot like the language we heard after Roberts made the decision in the Obama Care case and four or five years later, I think we have a clearer picture of what Justice Roberts was really all about. And I fear, deeply, that that's what we're now seeing with Gorsuch. Particularly, I would ask -- you've heard the phrase, you can be principled and wrong but that's especially the case if you apply the principle the wrong way. I don't, for the life of me, see how you can define sex as binary and then call this a textual application of the word "sex."

 

Curt Levey:  Again, I think I've already forgotten the first -- Oh, I know. You were talking Roberts. Now, if you look back, when Roberts made that Obama Care decision, I immediately excoriated him. That was just an obvious attempt to split the baby. A very bad attempt at it, because he may have split the baby conceptually, but he certainly didn't, in terms of the result. And we immediately suspected that was due to pressure.

 

      Again, you're asking me based on one, what I think, not well-reasoned opinion to assume that Gorsuch is completely off the rails and that there was some sort of pressure there, whether imagined by him or actually applied, I just think you're assuming way too much. But for what it's worth, back in, what was it, 2012 when we had the Obama Care decision. I feared the worst then, and we got the worst. Well, it's not the worst. I mean he could have been Stevens or Souter. So it's not the worst. But we got what I feared, at the time, which is a moderate, and in a sense, worse than a moderate, a very sort of politically minded moderate.

 

Caller 8:  Yeah, that was a harbinger. That's my point. It was a harbinger. And at the time, I did hear a lot of language, well that was just a one bad day at the office. It turned out to be a hell of a lot worse than that. It was a trend, or the beginning of a trend.

 

Curt Levey:  Yeah, I didn't think it was one bad day at the office. I don't know if you can Google it, but I was one of his harshest critics at the time. And my feeling is different now. Again, maybe I'll be proved wrong, but I just don't have the feel that this is the beginning of Gorsuch becoming a Roberts.

 

Greg Walsh:  Let's now go to the next question.

 

Teresa Manning (sp):  Hi. This is Teresa Manning. So one comment and one question with respect to the Republican or liberal conservative divide. If the left wing ideological judges never veer right, but the so-called conservatives do sometimes veer left, in effect, you get a Court that is always, even if only incrementally, veering left, which is what we've had for how many decades now. That's the comment.

 

      The question is that the Exceptions Clause of Article III Section 2 of the Constitution authorizes Congress to amend or strip jurisdiction from the federal courts, including the appellate jurisdiction of the United States Supreme Court. So the question is, why are we never discussing how Congress is complicit in this grotesque overreach by our Supreme Court, even if only for the sake of education, civics education to the public, that there is, in fact in the Constitution, a check on Supreme Court overreach? Why are we not having that conversation for the sake of education, even if that's the only benefit?

 

Curt Levey:  Well, I think your first point true. Conservatives are often at a disadvantage because they're more principled. Even liberal political scientists will tell you the Democratic Party is basically a coalition of interest groups that keeps itself together by winning as many battles as it can, whereas Republicans are more a party of principles. That doesn't mean they're always good principles, but it's held together by certain core beliefs. And in some sense, that's something to be proud of, and in other sense, it hampers us because we're, in a sense, fighting with one hand tied behind our back. And that applies not just to politics but to the Court, as you point out. But I'm not sure what the alternative is. I mean, if the alternative is to be a conservative judicial activist, if that's what you're suggesting, that's not a road that I want to go down.

 

      Now the main people -- I actually, if you remember, when Gingrich ran for president, he actually talked about ways, Constitutional ways, that we could push back. And I actually wrote a Wall Street Journal op-ed saying, you know I think this is a good idea. If nothing else, it gets the discussion going, reminds judges that they're not completely unaccountable. And I got a lot of push back from my conservative friends. So I'm not sure how much, at least in the conservative legal community, how much support there is for any of that.

 

      But you know there has been talk, you also mentioned jurisdiction stripping. Now, of course, there are debates about the constitutionality of that and who ultimately will get to determine the constitutionality of that. Well, the courts. And they have. They have pushed back against it when it's been in front of us. But that's not to say that they would strike down all jurisdictions -- I'm sorry, all jurisdiction stripping, but that's a dangerous game to play. Maybe for exactly the reason you said, the left is going to be better at it. So we'll probably never agree on -- conservatives that is, on what areas we want to strip jurisdiction, but I'll bet you, if we go down that road, I'll bet you I can guess one where Democrats will all agree. They'll want to strip the Court's jurisdiction on campaign -- on evaluating campaign finance reform.

 

      So again, I think it's a dangerous road to go down. But I certainly understand your temptation. And look back at some of the things that Gingrich suggested. I think there are ways in which we can push back without resorting to, for example, court packing. Which I suppose you can make an argument for a certain form of -- people call term limits court packing. It's really a little bit different, but the idea is you'd be opening up more spots with term limits. If something like that is done in a principled way, maybe it's a good idea. Of course, if court packing is used, I think as the Democrats use it, as a threat to basically say to people like Roberts, that's a very nice court you have. If you don't want us to restructure it, as Senator Whitehouse said, you better stop being so evil.

 

      So anyway, I don't know if that answers your question, but I am sympathetic to a couple things you said. I just, again, don't want us to throw away our principles.

 

Greg Walsh:  Let's go to the next caller.

 

Barbara Haskins (sp):  Hi. My name's Barbara Haskins. I'm seeking clarification and you'll see why. The way I understand this ruling is that whatever my lived gender is, if I feel I'm male, I'm male. If I'm female, if I'm bisexual, or non-binary, whatever, that employer cannot discriminate against me based on my lived experience of my gender. And the reason I'm saying this is because I got quite confused when I started hearing about who somebody wanted to have sex with. I totally lost the conversation at that point. Why does who I want to have sex with many any difference in this case?  Thank you.

 

Curt Levey:  Yeah, no, trust me. This can get very complicated quickly. And I've even had a discussion with a transgender person about this and ultimately, their answer was basically, we shouldn't label things. That was their answer because it was really too complicated to figure out. So I can't even remember now what your question is, but yes, this all gets very complicated.

 

      And I thought you were originally going to ask what about somebody identifying as a different race. Are they protected and it's a somewhat different standard under Title VII for minorities than there is for the majority. It's not supposed to be a huge difference. But in practice it is and maybe if you identify with the minority, then you're in better shape if you bring an employment discrimination suit. So I thought you were going to go down that road, but I guess even just sticking to gender identity, there's a lot of complications. And again, as the dissent mentioned, that's why you want to deal with these things legislatively where you can actually look ahead and say, there could be a problem here. Let's deal with it before we expand Title VII.

 

Greg Walsh:  Let's go to the next caller.

 

Gerald Gruber (sp):  Hello. I'm Gerald Gruber in Fulton, Maryland. The very first woman that was on the phone said -- she had a question, would Gorsuch's opinion follow on to perhaps Title IX and things even different, like religion and so forth. And I think what she was referring to was Gorsuch's argument. Which, in part, I quote here, "discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex. The first cannot happen without the second." Well that, to me, is no argument at all. That's just gibberish. That doesn't say anything. Let me explicate it. Instead of talking about homosexuality, let's talk about left-handedness. Discrimination based on left-handedness entails sex. Got to have a sex first. Male or female and then you can talk about left-handedness. Well, that's stupid.

 

Curt Levey:  Yeah, again, I didn't really follow, at least on convincing -- where Gorsuch gets into well, there's two factors that you're discriminating based on, and again, he even talks at some point about sexual orientation and gender identity being related to sex. I'm not really sure what that adds. Like I said, I think he just should stick to his argument. I think there's logical roles in it, but he should just stick to it that this is necessarily sex discrimination because you treat a man dating a man different than you treat a woman dating a man.

 

Greg Walsh:  Perfect. Let's go to the next caller.

 

Maritza Bolero (sp):  Yes, hi. My name Maritza Bolero and I'm calling because this decision that Justice Gorsuch came down with is actually, in my view, a very important decision for all Americans to really think about and consider the implications of where our society is and where it's going. My understanding is -- I haven't had a chance to read the decision, but my understanding is that it is really tailored to workplace discrimination. There were other decisions involving gays and transgender issues, such as the wedding cake decision, which I believe it was a Gorsuch decision, where they found that that's a different case to have a religious objection to making a cake. This is not about religious exceptions, or religious discrimination. This is about workplace. And the reality is, is that gay and lesbians, transgendered people need to be able to make a living and they have a right in this country to make a living and not lose their employment simply because --

 

Greg Walsh:  Ma'am, I don't mean to cut you off, but would you mind getting to your question?

 

Maritza Bolero:  So my question is that given that this is workplace discrimination, why is the objection from conservatives so virulent? I happen to be a lesbian, and I am also a conservative. And I uphold religious rights and freedoms. But I also have the right to make a living. And that's really my question, is would someone speak to the workplace issues? 'Cause that's what this case is about.

 

Curt Levey:  Yeah, you're right. Title VII deals with employment discrimination. So yes, at least on its face, it's limited to the workplace, and in most cases, there are not going to be religious issues. But when there are, we already have a framework for dealing with it. The so-called ministerial exemption and that's being fleshed out as we speak, there's going to be an opinion coming down on that in the next few weeks. So we can debate how broad that is. But it's certainly the exception and the vast majority of jobs that gay and lesbian and transgendered people hold, there's not going to be a serious religious issue.

 

      And as to why conservatives are so upset by this decision, I think frankly, it falls under two categories. I think it's people -- or maybe even three. There are legal purists who just don't like the fact that Gorsuch's opinion was a stretch. There are people who may not care that much about this opinion, but are worried about Gorsuch running off the rails 'cause we've seen it with so many nominees. And then there are people who, just as a policy matter, don't think there should be protection for transgender and gay people in the workplace. But I think that's not -- I mean, they're entitled to their view, but it's not a good reason to object to the decision.

 

      Just like you shouldn't make a decision, judges shouldn't make decisions based on their policy preferences, you shouldn't criticize them based on your policy preferences either. I mean, that's not to say you have to like them, but to attack the judge because he followed a principled method of analysis and got an outcome you didn't like, that's not legit. Saying that it wasn't principled, that is legit. If you wanna say Gorsuch was not sincere and he was up to something else, like I say, I'm not convinced. But, that's a legitimate argument. But I disagree with conservatives who are just like, I don't like it as a matter of policy therefore I'm mad at Gorsuch. I mean, again, you're entitled, but you're not a true judicial conservative if you judge things by outcome.

 

Greg Walsh:  Let's go to the next caller.

 

Pepper Crutcher:  Hi. It's Pepper Crutcher down in Mississippi. I'm an employment lawyer and I'm intrigued by something. I want to ask you how would you rule if you were a federal judge who had this situation in front of him. You had a defendant who just won a summary judgment in a Title VII case and applied for prevailing party in attorney fees in her Title VII. You now have a method of interpreting Title VII, which seems to be irreconcilable with the Christiansburg Garment Company decision from 1978, but nevertheless, you have that old Supreme Court opinion that says, prevailing party means prevailing party if the plaintiff wins. But prevailing party doesn't mean defendant if defendant wins unless the case is also frivolous when brought. So you write up the two Supreme Court precedents in front of you. One, how to read Title VII, and one, how the Court read Title VII, and what do you do, Judge?

 

Curt Levey:  Well, as a trial lawyer, you probably know the answer better than I do. But I don't even -- I guess it doesn't seem difficult to me because it was not frivolous when brought, correct?

 

Pepper Crutcher:  That's my hypothetical. So what you say is, I'm going to abide by Christiansburg Garment Company 1978 because that was the outcome in that case, even though the outcome was achieved by a selection of policy choices based on the thinnest cherry-picked legislative history without regard for the text, or how the same words were used under other federal statutes. And then you've got the Gorsuch opinion, reading Title VII, saying how to read Title VII, contrary, exactly, contrary to Christiansburg Garment Company.

 

      I think -- what I'm suggesting here is I think Gorsuch's opinion is going to possibly -- we know there are two votes for reversal on the Court right now, possibly lead to reversal of Christiansburg Garment Company. What do you think?

 

Curt Levey:  I have no predictions. I'm sorry, but I just don't know enough about their track records to really make a prediction there. By their track records, I mean the justices.

 

Greg Walsh:  Let's go to the next caller.

 

Jenny Robbins (sp):  Hello. My name is Jenny Robbins.  I wanted to just comment on a couple things quickly. I do think that this was a thoroughly unprincipled decision. I don't even see the argument that this was a textualist decision. So I don't know what Gorsuch is doing. I don't know if he's just -- I don't speculate on that. But you said a couple of times that this -- people generally are okay with laws against discriminating against homosexuals or transgendered people or whatever, because they generally don't hurt anybody. But of course, especially in the area of people who identify as transgendered, it does hurt someone. A specific would be an employee of a school who does not -- of a private Christian school who does not -- is not covered by the ministerial exception. So obviously that is a problem, if you've got a male who is presenting as a female around children. So that's a specific.

 

      But a broader one is that this is a cultural embrace of a delusion, of falsehood. There is no scientific evidence supporting the idea that people can have a gender identity different from their sex. It is a delusion. It's a psychological issue and that is just the scientific fact. And so when the Court imposes that, that we now all have to affirm that, it's not only hurting society, it's hurting the individual who is in the grip of that delusion. Because now, the whole world is affirming, yes, you are -- you think you're a woman, yes you are a woman. It's like the whole world affirming a girl who has anorexia. Yes, you are fat, you do need to do something. It's a step down such a dangerous road and I am just stunned that Gorsuch didn't see that.

 

Curt Levey:  I think you've mentioned a few things. I don't know that -- well, we don't know how the Court is going to deal with the religious implications here, but it won't necessarily be limited to the ministerial exception.

 

      Two, I think you're talking about -- I think you're saying that for some people it's just not healthy to be transgendered and I'm not an expert there, but I think that's a separate question from whether  they should be fired, or not hired based on that. If I thought of my own child, I might be very upset if they became transgendered because I might think it's not good for them, health-wise or psychologically, but I wouldn't necessarily want them to not be able to be employed because of that.

 

      And again, I don't think anyone -- you don't have to, in your personal life, view somebody who switched from being a man to a woman as a real woman. But that's, again, a separate question of should that person be -- suffer adverse employment consequences. I mean, I can certainly imagine -- and I understand the arguments that maybe you'll say something at work and that will be viewed as sexual harassment. And those are one of the complications we're going to have to deal with. I mean, I'm a big supporter of free speech. So again, as [inaudible 00:54:12] I would be very upset if merely expressing your views that you are the sex that you were born with, if that's enough to say that you violated Title VII. But I think that's a different question than should you be able to fire somebody because they're transgendered.

 

Greg Walsh:  I think we have time for two or three more questions. Let's go to the next caller.

 

Caller 15:  Hi. I'd be interested in hearing your thoughts on whether Gorsuch is for causation loss that would be applicable to race, even if Gorsuch was wrong to apply it to sex. It's just that I imagine those who agree that Title VII would prohibit employment discrimination to a person in an interracial [inaudible 00:54:55] as a form of discrimination based on race. But I'm not sure how we can get there without using Gorsuch's logic, or something similar. I think Alito touched on the differences between race and sex in his dissent and he said the historical context was to apply different standards or something like that.

 

Curt Levey:  Yeah, I mean Alito did deal with that. Certainly people have made -- people who wanted the Court to be the one to amend Title IX certainly made the analogy to race. And I think Alito was right, that it's not -- it may not be a completely nonsensical argument, but it's not the same. Because if you asked somebody -- if you don't want to hire someone, or you fire someone based on the race of their spouse, I think everyone would say that's racial discrimination.

 

      But if you don't hire someone, or fire them, because of their sexual orientation, I think just about everyone in the common, ordinary meaning, would say you're discriminating based on a sexual orientation, not their sex. So in that sense, it's different. The race of your spouse, we'd still consider that racial discrimination. We really don't consider sexual orientation discrimination to be one in the same as sex discrimination. And that's the whole point I was trying to make, why I think that Gorsuch's opinion is a stretch. But it's not -- again, I don't think it's crazy to bring up the racial analogy. I just think it's not very convincing to me, and I don't think it should have won the day. And I don't think the racial analogy won the day.

 

      One of the reasons it came out the way it did is because there's four liberals on the Court and they would have voted that way, no matter what the reasoning. And so it really came down to all you needed was Gorsuch and Roberts and again, I am sorry that it took the Court to do this. I mean, I think this is something that could have been done legislatively in a way that would have had more popular support and could have dealt with all the problems we've been discussing. But again, with four liberals on the Court, it only takes one so-called conservative to wander away and you get bad decisions.

 

Greg Walsh:  Let's go to our next caller.

 

Larry Joseph (sp):  Hi. This is Larry Joseph. I had two comments and a question. First on the Chief Justice. It's at least conceivable that if he were the only judge deciding this case, he would have gone the other way, but as the Chief Justice, if he joins the majority, he gets to pick the opinion writer, and so it was a choice, perhaps, to him of either Justice Ginsberg's going to pick the opinion writer, if it's a five to four decision, or if I join, I get to pick the decision writer and it becomes Gorsuch. So that's just one comment.

 

      Second comment, on Title IX versus Title VII in the Connecticut Sports thing. It's at least possible that Title IX would come out differently because it's Spending Clause legislation, which requires a clear statement, whereas this is -- Title VII is, I believe, equal protection clause legislation and it's entitled to a broad meaning and whatever. So those are my two comments. Welcome any response.

 

      And then a question is, what bathroom do transgender people use? I get that you're not allowed to fire them for this, and that's called sex discrimination if you do. But how does that affect which bathroom they use?

 

Curt Levey:  Like I said, that is clearly one of the issues that the Court is going to have to deal with at some point because I think there's still a lot of broad public support for having sex segregated bathrooms and I don't think that most people, certainly I don't think that most of our legislators, would have included -- desegregating bathrooms, so to speak, if this had been done legislatively.

 

      I'm trying to remember your other questions. One about spending clause -- By the way, Title VII is Commerce Clause, not Equal Protection. And yes, plain meaning for Spending Clause legislation, but shouldn't it be, really, the same standard for if you're going to not defer to Congress, I think there should have to be plain meaning. I think if it's ambiguous -- of course Gorsuch tried to say it wasn't ambiguous. But if it's ambiguous, that's when you really have to defer to Congress. I mean, either Congress's intent or leaving it to Congress to amend. So I realize on paper it's a different standard, but I do think this is going to have ramifications for Title IX. Like I said, people in the education community are already expecting it to. And certainly, when lower courts try to predict to some extent, lower courts are always trying to predict how the Supreme Court might rule on things that it hasn't ruled on. And I think it probably wouldn't be wrong to think that sex discrimination might also be broadly interpreted under Title IX.

 

      I think there were a few questions you asked me. Did I hit them all or did I miss one?

 

Larry Joseph:  Just that the Chief Justice might have voted strategically rather than --

 

Curt Levey:  I've heard that. Again, I tend to prefer simple explanations to, I don't know if you'd call it a conspiracy theory, but sort of one fouled bank shot. Now, if you've heard evidence to the -- I have not heard evidence that that happened. If you know of evidence, then you know, maybe we should talk about a bank shot. But again, given Roberts' track record, I'm not -- I don't think you need a complicated theory of why he went the way he went.

 

Larry Joseph:  Thanks

 

Greg Walsh:  Let's go to the next caller.

 

Barbara Haskins:  Hey. I spoke to you earlier and you forgot what my question was, so I called back. But in the meantime, I have a different thing to say, instead. Which is, whoever says that gender dysphoria is a hundred percent delusional, I would take issue with.  I'm a psychiatrist and that's -- she said there's no scientific evidence, that's incorrect.  I think there's a spectrum of pathology from people. If there's no other pathology it's just, that's how they feel, and other people might have a coexisting personality disorder or something, so that's all I'm going to say.  Thanks.

 

Curt Levey:  Yeah. I guess I would just say, I mean if it's a personality disorder, then it's a disability and then you're already protected under the ADA. Again, I just -- maybe I'm missing something here, but I just think it's two separate questions about whether you think changing your gender identity is healthy and whether you should be able to suffer adverse employment consequences because of it.

 

Greg Walsh:  Let's go to our final caller.

 

Caller 17:  Yes. Good afternoon. Great topic and thanks for covering it. And just wanted to ask, you mentioned several times the primary issue here is sort of there's no one else hurt. And as a business lawyer that's practiced for over 20 years, I've frequently had to advise employers about these kinds of issues, and I think there definitely is a couple of classes of individuals who are going to be impacted by this. The employers, themselves, number one. I mean, freedom of association is a legitimately grounded right in the Constitution. And since we spend most of our time at work, I think having some degree of latitude over who you choose to work with is a legitimate consideration.

 

      The other piece to that is other employees or potential employees. The number of times I've had clients who've been confronted with the hiring decision and one of them is of a protected class and the other is not and the advice I've had to render is, look the safe horse is to hire, or promote, or retain the employee with the protected status. So I think it's a little disingenuous to say that there are -- that there's no harm, no foul here. Law inherently involves balancing of interests and the Court has clearly put its thumb on the scale in one direction here.

 

Curt Levey:  First of all, I didn't mean to say that there can be no harms. All I really said was that I think most people support the general proposition and that there are all sorts of complications and that those are things that Congress can deal with. And I don't really have an opinion about if we're going to expand Title VII, exactly where the boundaries should be. I'm just basically saying I think most people these days, well, most people think it already covers discrimination against at least gay people.

 

      Freedom of association as an original matter, I mean I agree with you. But those of us who are big on free speech and freedom of association, we lost that battle in the '60s. That has nothing to do with gay and transgender people. That first came up in the context of race and the Court decided that that wasn't a defense. And maybe it should be. I mean, I certainly understand the arguments, but again I think the public, at this point -- even if you can make sort of a purely legal argument for it, I think the public is -- does not think that freedom of association trumps the anti-discrimination laws.

 

      And then, as to I get what you say. I don't know if it's occurring yet with gay -- well, this decision just came down so I guess it isn't occurring yet. Whether it will happen that, in a sense, there's sort of an implicit affirmative action because people are afraid to not hire or to fire someone who's gay or transgender. But again, that's really not a new issue. We've been dealing with that under the other categories covered by Title VII for a long time. I don't support preferences, which is basically what you're talking about, racial preferences or gender preferences and I would hope that doesn't happen here, but you're right. There's always the harm that it could. I agree with you there.

 

Greg Walsh:  On behalf of The Federalist Society I want to thank our speaker for the benefit of his valuable time and expertise today. We welcome listener feedback by email at [email protected]. Thank you all for joining us. We are adjourned.

 

[Music]

 

Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.