At the Bulwark, Walter Olson offers an interesting post about the trio of cases argued before the Supreme Court this week, characterizing the issue as the “surprise plain meaning” approach to textualism.
The argument is this: If an employer would never fire Ginger for taking a romantic interest in men, but does fire George when it learns that he does so, it has treated him differently because of his sex. Similar arguments can reach the case of an employee’s gender identity.
You might call the phenomenon “surprise plain meaning”—a meaning of the text that the drafters did not intend or notice at the time. Every law student learns about this early on, as with the question of whether a “No Vehicles in the Park” rule covers bicycles, skateboards, or a statue of the general in his Jeep.
And, indeed, every law student learns, or at least used to learn, about the blunt weapon of words, meant to convey one meaning, one purpose, but resulting in unintended applications despite the non-lawyer’s retort, “but you know that’s not what they meant.” That’s why writing law is hard, and why recognizing how words often encompass things not intended, but unavoidable, when they’re later used to apply in way that are entirely within the word’s ambit while being completely beyond the law’s intended reach. It happens all the time.
But what does not happen all the time is that the unduly passionate lose their heads over the question of whether the surprise plan meaning won’t be adopted when it serves their purpose.
Nobody’s humanity is up for debate. The question isn’t whether one can go out and beat up, or worse, people for being gay or transgender, as if they’re subhumans. But if the issue is hyped as a referendum on their existence, it will provoke the passionate to action. Isn’t that really the issue?
But whichever way the Court rules, no one’s humanity hangs in the balance. Memes like the one pictured at top, though couched in terms of concern for young people who are different from their peers, don’t really help if they instill in their subjects needless fear, unhappiness, and the belief that the world is out to get them.
Wally’s point is that rather than use this opportunity to explain how law is made, how law works, and how societal changes imposed via lawfare rather than legislation, where the nuances could theoretically be addressed, we’ve become a nation built on fear-evoking memes of catastrophe and victimhood.
Nor—lest you think I’m picking on the one meme—does it help for the website Bustle to advise readers to “create an action plan” for “self-care” against “the strain, anxiety, and agony of being told that who you are makes you unqualified to support yourself and your family.”
That’s not the issue before the Court. And lest one still feel the “strain, anxiety and agony” of the law not being all about your issue and taking cognizance of its implications on the unworthy rest of society, there was a time, not too long ago, when being gay was a crime, when engaging in gay sex could get you imprisoned, if not killed.
We’ve come a long way, baby, and in many ways for the best by realizing that people can love whomever they choose. But working out the details of how it all fits together isn’t well served by the hysterics of claiming your humanity is at risk. If anything, this stoking of fear serves to make it harder to achieve a viable society that’s tolerant of all and works for everyone’s benefit. Like it or not, we’re all human, and how to maintain our shared humanity is a subject worthy of debate. You’re not helping.