LGBTQ Rights and the Supreme Court

To discuss this landmark case, we are joined by Professor Bill Eskridge. Bill is quite literally the perfect guest to discuss these topics. He's a professor at Yale Law School. He's a pioneer in the study and the teaching of gay rights law, and he spent much of his career focusing on the interpretation of statutes. He's also the author of a forthcoming book, Marriage Equality From Outlaws to in Laws. Bill,

thank you so much for being here this morning. It's very rare for there to be an exactly ideal guest in response to an important news story. But in the wake of the Supreme Court's landmark decision on antidiscrimination law for gains transgender people. I knew you were the exact guest, because not only are you a pioneer in the law of gay rights, you're also one of our leading experts

in statutory interpretation. So literally, the two topics of the moment are both squarely within the domain of your expertise. So I guess I want to start by saying, congratulations. You must be feeling happy about the decision in Bostock against Clayton County. That probably understates it. Very surprised it was six to three, not at all surprised that if we one as we did, it would be a textualist opinion. I've been saying this for two years. The cases have

been coming for two years. My mantra to all the LGBT groups that would listen to me is that we need to understand thoroughly the text and structure as well as the precedents surrounding Title seven. And I think Justice Course Hage got it so great for the Supreme Court and maybe great for the country too, and for gaining transgender people. Let's start with a little bit of background history here on why the decision. It was a surprise

to many. How long has it been since people in the gay rights movement have been arguing that Title seven, which prohibits discrimination because of sex, properly interpreted, ought to also include within that discrimination against gain lesbian people or

against transgender people. Well, for most of my lifetime, LGBTQ people didn't even dare come out as gay or lesbian or whatnot at work, So there were not a lot of arguments for most of my lifetime, I would say in the nineteen nineties, the argument becomes prominent because by the nineteen nineties there were a lot of lgbt and

increasingly Q people who were out of the workplace. And then the Bayer and Lewin case in Hawaii said that if you exclude from marriage a woman because she's marrying a woman rather than marrying a man, well that's sex discrimination in the same way that it's race discrimination if you exclude a white woman from marriage because she's marrying

a black man. And so the confluence of both the social factors and this legal development in Bayer and Lewan generated a lot of talk within the LGBTQ and academic communities. So this has been an argument that's been going on by a conservative measure for thirty years. As many as

thirty years. From the perspective of someone who's not a lawyer, it might seem kind of weird that a right to have sex as a gay person was decided by the Supreme Court in the early two thousands, that a right to gay marriage was decided by the Supreme Court in the middle of the two tens, and yet it took until twenty to achieve something that one might have imagined, at least as a non lawyer, was more obvious, namely a statutory right not to be discriminated against in the workplace.

Lawyers know that the difference has something to do with a constitutional decision, which all the Supreme Courts gay rights decisions until now of great consequence had been and a decision interpreting federal law, which is what this case was. Why do you think it took longer for the Supreme Court to reach this conclusion with respect to a federal

statute and it did with respect to the Constitution. Well, unfortunately, that's an easy win to answer, and that is that the whole gay marriage issue arose again in the nineteen nineties. There had been some gay marriage cases in the seventies, and they'd all lost. In the nineteen nineties, there was

a revival of interest. I actually was the attorney in the first case, one in DC, and then the Hawaii case, which was also unsuccessful but got a lot of good publicity, was also in the mid nineteen nineties, and once marriage got on the horizon, both as an aspiration for the LGBTQ movement and as something to react to, the marriage issue sort of sucked up most of the oxygen. So

the sex discrimination argument was there. It was made in the Vermont case in nineteen ninety nine, was made in the Massachusetts case in two thousand and three, and in some of the subsequent cases, but judge were afraid to pick up on it because of the negative reaction to Bayer and Lewa in the Hawaii case in nineteen ninety three, and so the argument sort of existed in the ether, but judges and even attorneys were afraid to raise it

because it did sound orthogonal to the basic equality arguments that we were making in cases like Roma versus Evans in nineteen ninety six, Lawrence versus Texas, and the sodomy case in two thousand and three, and even Windsor in the United States, the defensive marriage ACKed case that was decided in twenty thirteen, followed as you know by Obergefeld. The marriage case, it seems on the surface again to a non lawyer, if I can pretend to be when for a minute, if I can try to unlearn what

I learned in law school, they're both about equality. The marriage equality argument was an argument for equal treatment. The antidiscrimination argument is an argument for equal treatment. Why was it that for political reasons or complex jurisprudential reasons? The one argument, and the marriage quality argument was not only pushed but was successful, with Justice Kennedy himself a Republican appointee, making the relevant crucial decisions along the way writing them.

But the equality argument in the context of equal treatment in the workplace antidiscrimination law wasn't a successful Well. I think it's actually easy to understand in retrospect, and that is that the average gay, friendly, straight person literally could not understand the argument. And I think lawyers had a harder time than others because lawyers love symmetry. So if you make an equal protection argument to a lawyer or to a judge, and you say this group Roman Catholics

are discriminated against because of their religion. There is a perfect correlation in your mind between the classification religion and the group Catholics. If women are being excluded because of their sex, you can understand that, whether you're in favor of striking it down or not, because the group the class matches up perfectly to the classification. For LGBT claims under the sex discrimination argument, the classification sex did not seem to match up with the group lesbians, gay men,

and bisexuals in the minds of many judges. Almost twenty years ago, I was at a conference where there was a Supreme Court justice present, and I and another judge made a presentation of the sex discrimination argument almost twenty years ago. And this judge was gay friendly, fine, and we explained the argument, and the judge says, no, no, no, that doesn't make sense to me. And I said no,

it's like Loving versus Virginia. Just remind people Loving against Virginia is the case in which the Supreme Court held that it was unconstitutional for the state to prohibit black and white people from being married in Virginia exactly. And the argument was, if you prohibit a woman from a white woman from marrying a black man, the variable the classification that changes the result is the race either of

the woman or of the spouse. We were making that argument and it took three link the explanations by the ball professor before the judge even understood it, a liberal judge and then just oh, I finally now get it. Well knowing would ever accept that? Can you say if that liberal justice was still on the court and voted in this case? Maybe maybe? Okay, good answer. And indeed that brings us to the argument that Justice Neil Gorsuch,

Trump appointee self professed textualists. And we're going to come to textualism in just a moment made for the court joined in this case by the liberals on the court plus Chief Justice John Roberts, so a six to three decision. Why don't you just lay out that argument for us, just for people who may not have had a to read one hundred and seventy five pages of the opinion yet, because it's more or less the argument that you were advancing twenty years ago. Yeah, it's a very simple argument.

The statutory text says the following employers cannot and here I'm pretty much quoting the statute cannot discriminate against any individual because of such individuals sex. And the argument is very simple. If an employer has a female employee and the employer fires hers as well, I'm really tired of having women in the workplace, that's obviously a violation of

the statue. If the employer says, oh, well, I'm okay with having women employees, but I'm not okay with having women employees who date women, then that is discrimination because of sex. The classification, the regulatory variable the changes is the sex of the employee. The employee were a man who dated women, that would be fine. So any discrimination against an individual group and an individual because of that individual sex, even if it's just a motivating factor among others,

that violates the statute. They could have disposed of it nine to nothing in a three page opinion where they says, this is what the statute says, and here's how it applies to mister Bostock or mister Zardav And then for transgender plaintiff Stevens, then it applies in the same sort of way, but with a slightly different analysis. When you say it applies individuals but not necessarily to groups. That was an issue that came up at oral argument in

this case, how do you read the holding here? Would it be lawful under the statute after this interpretation for an employer to say I don't hire anyone who happens to be gay lesbian, it seems that would not be lawful under this holding. I think that would not be lawful.

But again, remember there's no Title seven lawsuit usually until there's an employee who says I was fired or not given a job or for some of the recent discriminated against because my sex basically right, So, yeah, an employer can say that, but wow, that's an employer asking to be sued. That's an employer sort of handing on a silver platter. Here is your settlement. How much do I owe you? Well, we may see test cases of that sort by employers who operate the basis of principle. The

test cases will see will not be that at all. Instead, at the end of the opinion, Justice Corsage said at least one of the cases that was a religious allowance claim raised by the employer, and Justice Gorgon said that was not an issue on review, We're not going to address it. But then he sort of throws in, hey, bringing those lawsuits on and so that's left hanging. It's like a hanging chad. Where is that going to leave us?

So I think those are the kinds of cases that will now see that will be test cases of some sort. Just to be clear, I think it's fairly explicit in the opinion about where it's going to leave us. The Religious Freedom Restoration Act is overwhelmingly likely be interpreted to produce an exception to this anti discrimination principle for an employer or an organization who can make a case of

sincere religious motivation. I mean, of course, it is now the swing vote on this with Roberts, and it's very hard to imagine, giving what he said, that he would reach any other conclusion than the one he already hinted at. I think it's hard to predict how this is going to play out for several reasons. And one reason is that most religious employers do not want to discriminate, and so it's going to be interesting to see where we find employers that want to get out a limb on

this particular issue. But you're right, I think that we're going to see some of those cases. It is perilous to predict exactly what the Supreme Court is going to do with them, but it is very safe to say that Justice Corsitch is open to these claims as his chief Justice Roberts, as are some of the liberals as well. We'll be right back. Let's shift now to talking about the issue that's major here for lawyers beyond the huge win for the LGBTQ community, namely the ascendance of the

theory of statutory interpretation known as textualism. And to give the listener context, the argument for textualism using that term more or less begins with Justice Scalia and has been The cause has been taken up by a group of academics, including my dean at Harvard Law School, John Manning, and you and your co author at the time, Phil FRICKI were engaged in what I would call an academic battle royale for years, with the textualists offering your own alternative,

which you guys called dynamics statutory interpretation, and others have attached different names to it. I have been watching this with great fascination and attention for many, many years now, really since I was a student. I've always been on your side of the debate. I'm still on your side of the debate, but now the Supreme Court seems to be almost entirely on the other side of the debate.

So I wonder if you would start by just giving us a one oh one on what you think textualism is according to its proponents, and then you can tell us why the textualists are wrong, even though in this case they've given you just what you wanted. Well, Noah, I'm with the spirit of your question. It's very interesting. This is a great debate in the US Supreme Court, and it's entirely a textual debate. With course, it's writing for the majority, Kavanaugh writing for himself, and descent, Aledo

writing for himself, and Thomas and Descent. So textualism, it seems to me, is the dominant mode of discourse in all three of the opinions, but they have different inflections. They all start the proposition that the only thing that's enacted in law is the text of the statue. The job of the judge is to interpret the text as an ordinary reader would do, full stop. Don't look at

legislative history. You don't care if it goes against the statutory purpose, though you might follow some statutory precedence, and there's some division in the textualist camp on that, and just to explain that again for non lawyers. The idea is that when you're interpreting a statute, if you're a judge, instead of asking, gee, what are the people who passed this statute think? What did they say to each other? What are they put in the congressional record? What were

their purposes? What can we reconstruct about what they thought or should have thought or might have thought, You should ignore all of that, according to textualism and just look at the words. The strictest textualists would say exactly that, and they would say that it doesn't matter subjectively what the enacting legislators thought or what their goal was. All that matters is the way that it's received by the body politic. We the people are the audience and ought

to control the meaning of the statute. That's their argument. I would characterize Phil Fricky and my approach as a pragmatic approach, and I think that is still the reigning approach in the Supreme Court, and that is that any very hard case of statutory interpretation involves looking at a number of sources, the text of the statute, statutory precedence, and then you also in our opinion, ought to consider legittive history, agency and regulatory history, and larger norms. Now,

I believe the Gorsage opinion. And this is exactly the argument made by Justice Alito in his descent. The Gorsage opinion is a brilliant synthesis of textualism and what you're calling and I call sometimes dynamic statutory interpretation, because Aldo points out this is a very wildly evolutive approach to these words. And Aldo says, in nineteen sixty four, if you'd asked a member of Congress, you're protecting women and ships? Sure?

Are you protecting men? Sometimes they might scratch their head and say, well, maybe, And how about homosexuals? Are you're protecting them? And just as the Lado jumps up and down from dozens of pages and said no, they were considered psychopaths and criminals and all sorts of other things. So he says, this cannot be the original ordinary meaning of the statute. And Gorsage's response is, no, you look at the words and then you apply the words to

today's circumstances. Now here's the step that's missing, but that he and the majority are making. Between sixty four, when the statute is passed, and today when we have the decision, the object of the discussion has changed. Indeed, language has changed. In nineteen sixty four, if you'd asked a member of Congress what about those gay people, member of Congress have said, I like happy constituents. That's all it would have meant.

But if you'd said, what about homosexuals and other sex perverts, Congress says, oh, yeah, they're a very big danger to society and so forth. So literally, what's going on in the background, and this is always what's going on with textualism, is that society has changed, language has changed, and they're not unrelated to one another. So let me pause you there, because at this point I think someone who is not taking the advanced Eskridge course on statutor interpretation, I think

might be forgiven for feeling a little confused. Let's walk people through it. The Supreme Court majority here, Justice Coursitch says, I am a textualist. I am not doing what Eskridge says I am doing. He says, I am not looking at the evolving meaning of the statute. I'm not looking at a changed sociocultural context. I'm just reading the words and Gorsitch insists, I'm reading them exactly the way a person would have read them had they been exposed to

this logic. In nineteen sixty four, when the law was passed, the descent Alito and Justice Kevna, in two different to sens say no, that's not true, gore such, you're actually doing the very thing that is bad from our perspective, namely s grid style statutory interpretation that looks beyond the words, and Gorsuch's responses, no, I'm not. The upshot is that all of the opinions for the court, everybody claims that the worst thing you can do is to engage in

dynamic statutory interpretation. The official orthodoxy, the stated orthodoxy of all of the justices here is textualism. Textualism, textualism, textualism ascendant. Now I hear you making the argument, which is fascinating, that in fact, the majority is not doing textualism. It thinks it's doing textualism, but it's not really doing textualism.

And therefore that the dissenters are correct in their characterization with a majority opinion, and that Gorsuch is just wrong or possibly in your view, lying about what he's in fact doing so, let me ask you a psychological question. Do you really think that Gorsach, who's trying very hard to take up the mantle of justice Scalia, is deceived about what he's doing, that he thinks he's doing textualism and he doesn't. Or do you think he's doing something

different than that and maybe a little more secretive. Well, I'm not going to psychoanalyze poor Justice Gorsage, but what I will say is I think it's a synthesis. He's both a textualist and a dynamic interpreter. Let me give your audience a very simple example. Nineteen sixty four, you pass a statute saying no motor vehicles in the park, and there are a number of predictable applications. In some close cases twenty twenty, a segue is zipping through the park. Well,

that didn't exist in nineteen sixty four. Are you being a dynamic interpreter to say we're going to apply vehicle to this new fangled gadget? And Scalia would answer no, that's still textualism. Textualism can be applied to things that happen after in nineteen sixty four, Well, what about things that are existed in sixty four, but have changed motorized wheelchairs ninety sixty four, and I said, well, there's some motorized wheelchairs, but we're not going to apply it because

it goes so slowly. People of disabilities need them, and so on twenty twenty, there's a thing called the bach Auto Super four, which is a motorized wheelchair that looks like a little car that can go up rough terrain and can go pretty fast. Fifteen to twenty miles an hour might apply to that. So that's something that existed in sixty four but has changed in the intervening however many years it's been since sixty four. And the same thing is true of gay people. I existed, and I

was gay in nineteen sixty four. I would not have called myself gay. I didn't know what that word met in nineteen sixty four. Literally, the language to describe people like me is not the same today as it had been sixty four. And I'm a different person. I'm like the segue, I'm either new or unlike the bach Auto super four. I'm a ramped up version of what I

was in nineteen sixty four. So you can say you're a textualist, but What has changed and how can this not affect text is that people of men and women who have sex or date people of the same sex are now conceptualized completely differently. There's a different language to describe them, and therefore their relationship to that language discriminate against any individual because of such individual sex has correlatively changed.

So textualism and dynamism at the same time, let's talk a little bit about where this is all going to go in the future. I am fascinated to see Justice course making a bid for the conservative intellectual leadership of the Court through a holding that on the surface is being embraced by liberals and will not be at least

immediately embraced by conservatives. My own view is at Gorsuch is playing the long game, and he expects and believes that conservatives won't be that angry about this opinion in three or four years. That it's liberals who make judicial reputation because most law professors are liberal. That's an unsurprising fact, and most law professors who care about the Supreme Court spend some of our time making judicial reputations. And we're now all going to have to look at Neil Gorsuch,

Trump appointee and say, wow, pretty good. You know, he followed his interpretation of the law to a place that did not necessarily match his political preconditions. So liberals will now have to be nice to Gorsuch whether they like it or not. Conservatives will get over their frustration. Over time, Gorsuch's position as the replacement for Justice Scalia as the conservative intellectual leader of the court will be consolidated. That's

my hypothesis that that's his game plan. I want to ask you, do you think the conservatives will get beyond this opinion and will especially if there are a Religious Freedom Restoration Act or other religious exemptions for religious groups. Well, I would say the conservative reaction has been very mixed. Donald Trump says he's a conservative and he praised the decision. Sounds good to me. Mitt Romney not a liberal, he said, you know, sounds pretty good. So I would say two things.

Number one, is it in the interest of American conservative politics to demonize lesbian, gay, bisexual, and transgender people. Seventy eight of the American people think that sexual orientation and gender identity should not be the basis for losing your job. So I think the country has really moved beyond that including conservatives, and that's the smart thing for conservatives to do.

On the other hand, I think it's a smart thing for conservatives, Noah and liberal to sort of say we should have space for religious employers who need to be accommodated on these kinds of issues. So I think there's gonna be a learning curve for liberals as well. And I'm not going to cycleanalyze, but I'm going to say this is a smart interpretation of Gorsage, and he's smart.

Here's what he's doing. The academics, the Feldman's and the Eskridges all think and sometimes right, you know, the new textualism Scalia, Gorsage, Thomas, it's just simply a shell game. It's a cover for smuggling in right wing Republican platform views into statutes in the Constitution. Just as gors I think his crusade is no, I am setting forth a rule of law methodology which will be neutral and which

will actually make the country better. Now, Eskridge and Feldman keeps saying you cannot have a rule of law methodology which reaches results that you want to reach and then bends the methodology to reach them. That's not a methodology. That's an ideological position. Gorsage is saying, I'm not going to be predictable except methodologically predictable. I'm going to be consistent, surprised. I'm gonna be consistent, and that means that you can't

count on me based on ideology. So bravo Neil Gorsich. Last question, Bill, what's left for the legal wing of the LGBTQ rights movement? Now? Marriage rights established, legal equality under the statute established. Yes, there will be some fights over just how much religious liberty exemptions must exist, but that's sort of after the fact. You've won the battle. That's some minor negotiation over the terms of your victory.

For the brilliant young LGBTQ lawyer who are out there, ready to be at the frontlines, what is the issue that they will be working on for the rest of their careers or should they redirect themselves to racial injustice or other topics where sadly we've made very very little systematic progress relative to what's happened in the LGBTQ context. Now a great question. I would not pose it as either or. Racial justice overlaps enormously with lgbt justice. The

people in my community. Who suffer the most tend to be LGBTQ, people who are people of color, people without resources, people who are most gender bending, all of those features, and they are subject to violence. They're subject to discrimination and education. They're subject to discrimination public accommodations in housing for the poor. They're subject to harassment and bullying in schools.

So most LGBTQ discrimination occurs not for abstract reasons, but because vulnerable people are physically and emotionally attacked and there's no one there to stand up for them. And Glad the Game Lesbian Advocates of Boston, which was the hero in the marriage cases, you know, I talked to Glad

and I'd say, well, what are you all doing? And Glad says, there is as much discrimination and violence as there ever has been, and these people do not have lawyers if we don't come in and try to protect them. So yes, I think you're doing God's mission to continue to protect the vulnerable, and I think that ought to be the mission going forward, to get statutory and regulatory

protections for those people. You know, I want to thank you not only for your clear analysis and your willingness to talk about ideas and play with them, but also for your extraordinary work that contributed to the outcome here, and for your long dedication to the tin topics of LGPTQ rights and statutory interpretation, which magically and perfectly came together. Thank you so much. Thank you, Noah. It was a

real pleasure. Well there you have it. A hugely important day in the history of the game transgender rights movements in the United States, as explained and described by an expert who has been at the heart of the process.

On top of that, we delved into the usually arcane topic of how you should go about interpreting a statute, and the debate between textualism, which is now the official orthodox doctrine of just about the entire Supreme Court, and the alternative view, according to which we should do more than just look at the words of the statute. Where we are now is that all of the opinions issued by the Supreme Court majority and descent insist that you

should only interpret the Constitution according to its text. But Bill Eskridge, not giving up the fight, claims that what's really going on is that other factors are still in play. We're going to continue to watch this issue as further debates emerge about exemptions from civil rights law on the basis of religion when it comes to discrimination against gay, lesbian, and transgender people. And maybe, just maybe, someday we'll come

back to the topic of statutory interpretation. Until the next time I speak to you, be careful, be safe, and be well. Deep background is brought to you by Pushkin Industries. Our producer is Lydia Jane Cott, with mastering by Jason Gambrell and Martin Gonzalez. Our showrunner is Sophie mckibbon. Our theme music is composed by Luis GERA special thanks to the Pushkin Brass, Malcolm Gladwell, Jacob Weisberg, and Mia Lobel.

I'm Noah Feldman. I also write a regular column for Bloomberg Opinion, which you can find at bloomberg dot com slash Feldman. To discover Bloomberg's original slate of podcasts, go to Bloomberg dot com slash Podcasts. And one last thing. I just wrote a book called The Arab Winter, a Tragedy. I would be delighted if you checked it out. If you liked what you heard today, please write a review or tell a friend. You can always let me know what you think. On Twitter, my handle is Noah R. Feldman.

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