Writing Law Is Hard; Unwriting Even Harder

It’s anticipated that the Supreme Court will hand down its decision in the trio of Title VII sex discrimination cases any day now, Zarda, Stephens and Bostock, involving two gay men and a transgender woman. The cases involve the meaning of the word “sex” in a law written in 1964 that no one seriously argues was intended to relate to sexual orientation and, despite repeated efforts to expand the language over the past few decades, has been rejected by Congress time and time again.

Had Congress chosen to amend Title VII to include discrimination on the basis of sexual orientation, a phrase that was never uttered when the law was enacted, it would not only reflect the valuable growth in our societal norms, but could have been amended in such a way as to address the myriad unintended and/or collateral consequences of the change. But Congress, being Congress, couldn’t (or wouldn’t) do its job, preferring to leave it to the courts to do its dirty work.

In her argument before the Supreme Court, Pamela Karlan did not only an admirable job, but a smart job, not pushing the notion that the “sex” in the law meant something other than sex, but rather that the same understanding of the word as it existed in 1964 covered the situation that exists now. Karlan went down the textualist path.

When an employer fires a male employee for dating men but does not fire female employees who date men, he violates Title VII. The employer has, in the words of Section 703(a), discriminated against the man because he treats that man worse than women who want to do the same thing. And that discrimination is because of sex, again in the words of Section 703(a), because the adverse employment action is based on the male employee’s failure to conform to a particular expectation about how men should behave; namely, that men should be attracted only to women and not to men.

The more conservative approach to interpreting law, as Nino Scalia tirelessly argued, is textualist, that the words mean what they mean without regard to Congress’ intent. There are two arguments for this, that Congress, as a whole, will explain its intent for the purpose of “selling” a law to the public, such that its expressed intent isn’t true or reliable. It’s selling law like laundry detergent, new and improved, when it’s nothing of the sort.

Then there’s the secret intent of the individual members of Congress voting for the law. No one really knows why a senator voted for a law, so ascribing a meaning to the vote isn’t legitimate. It may have been horse trading, self-interest, or what they ate for breakfast. Who knows?

Consequently, the most legitimate understanding of a law is what the law says, the words say, rather than any external magic about the purpose or intent of the law. As I’ve argued many times, writing law is hard. Words are a blunt tool, often have multiple meanings and carry connotations for some that aren’t shared by others. Making matters worse, meanings change over time, and in the case of “sex,” and the new-found nuances of gender and orientation, how can a word chosen in 1964 be understood as redefined 50 years later?

At Volokh Conspiracy, Jonathan Adler provides some deep dives on the corpus linguistic aspects of textualism in determining what the word “sex” means. First, there’s “James Phillips, a fellow at the Stanford Constitutional Law Center, argument that there is textual evidence supporting the employers’ position that the prohibition of “discrimination . . . because of such individual’s ‘sex’ does not cover sexual orientation discrimination.”

Title VII makes it unlawful “to discriminate against any individual . . . because of such individual’s . . . sex.” Many observers seem to drop the word “against” and focus just on “discriminate.” Or if they do take “against” into account, they nonetheless fail to read the whole operative statutory phrase—including “discriminate,” “against,” and the relevant trait (in this case, sex)—as an indivisible whole. The argument for the plaintiffs, in particular, would require us to give “discriminate” and “against” the meaning each of them would have if it existed apart from the rest of the phrase. This “dissection” approach is most obvious in the most precise and careful formulations of the plaintiffs’ central textualist argument, as this Essay will show.

In contrast, Jon offers “Ryan Nees, a rising 3L at Stanford Law School, takes issue with Phillips account, and has authored an extensive post on the blog of the American Constitution Society.”

Phillips’s intriguing argument is worth carefully considering, and is an instructive application of the larger project urging judges to make greater use of corpus linguistics to derive contemporaneous meaning. He argues, in summary, that the petitioners’ textualist reading depends upon “separately analyzing and then amalgamating . . . three parts” – namely, the words “discriminate,” “against,” and “sex.” Analyzed in that way, the LGBTQ petitioners may have a point, and  Justice Gorsuch seemed to acknowledge as much at oral argument. The better approach, Phillips says, would be to assess the distinct meaning of the phrase “discriminate against,” which has its own highly specific connotation entailing prejudice as a motivation, especially when the phrase is paired with a suspect class.

While academics may spend their lives diving deep into such weeds, it occurred to me that we have constructed a paradigm that turns writing laws from hard to impossible. What more could Congress have written into Title VII to anticipate that 50 years from now arguments like this would be made, and taken seriously, when the settled on the word “sex,” which everyone understood at the time and was an entirely uncontroversial word choice?

This is where we’re at now, with the Supreme Court left to rewrite legislation because Congress lacks the interest or gumption to clean up the mess, Based on this level of analysis, would we have it incumbent on Congress to not only write laws that state affirmatively what the law is, but also expressly state what the law is not? How can any Congress anticipate what shifts society will take decades in the future and pre-empt Supreme Court justices from reinventing their words into flavors of meaning no one could have possibly anticipated?

9 thoughts on “Writing Law Is Hard; Unwriting Even Harder

  1. Richard Kopf


    Congress could have been more precise at the time by referring to discrimination against any person because of such individual ‘s “biological sex” or even more precisely “biological sex at birth.” But when the law was written so many years ago such a formulation would have seemed both redundant and silly to virtually anyone.

    For a legal realist, these cases, to the extent counsel seek to impute a Congressional desire to protect the gay or transgender (etc.,) by purposely misreading the plain meaning* of the words when they were written, should be easy. I too hope the Court does not take on the responsibility that belongs to Congress as you so aptly warn against.

    All the best.


    *Please don’t misunderstand. I am not advocating originalism or formalism, just good old horse sense.

    1. SHG Post author

      I wonder if anyone under 40 can appreciate just how absurd it would have been to write “sex” in 1964 and have someone say, “can you be more specific?”

    2. Skink

      Since the day code met case, which was long before this country was formed, the first rule of statutory interpretation has been that the words of the statute are given their usual meaning when enacted. Only if those words lead to ambiguity, absurdity or impossibility are the other rules employed. For the unwashed or uninformed lawyers, this is a many-hundred-year-old rule. It’s there to keep the courts from legislating. It’s probably the most important rule in law.

      Mischief with the first rule is constant with lawyers. Ignorance, purposeful or negligent, is common. When it infects judges, we get the decision from Judge Blue: a horse can be a bird.*

      *Rich, you know this parable. For the unwashed or uninformed, it’s an instruction on interpretation gone wrong. It’s also a cautionary tale: though fiction, it’s been cited as real. You can find it on your own.

    3. Freedom for Alibi Billy

      Just because you say so, …we take you at your word, Judge. Cause you’re the judge.

  2. B. McLeod

    Words don’t really mean anything to the modern court. The justices decide what they think is “fair,” in the context of “evolving standards,” and then read the words however they must be read to show that the “fair” conclusion what the law (or constitution) already provides.

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