With Nod To Scalia, Surprise Plain Meaning Carries Day for LGBT Plaintiffs

Walter OlsonToday the Supreme Court held that the 1964 Civil Rights Act, by barring discrimination on the basis of sex, also forbids discrimination against gay and transgender employees. “When the express terms of a statute give us one answer and extratextual considerations suggest another, it ’s no contest,” Justice Neil Gorsuchwrote for a 6 –3 majority that included Chief Justice John Roberts as well as the four liberals. “Only the written word is the law, and all persons are entitled to its benefit.”As a matter of legal interpretation, the cases show textualism that de ‐​emphasizes legislative intent and legislative history, instead looking within the four corners of the statute, does not always favor one side or the other on policy. As a committed textualist, Gorsuch had already signaled at oral argument that he found merit in what I ’ve called a “surprise plain meaning” reading of the law, even one that might have shocked the drafters. Critics who discounted Justice Gorsuch’s independence of mind are looking foolish.When the Court agreed to hear the cases a year ago I wrote:The strongest case for this reading rests on an ambitious, yet not frivolous, plain meaning approach toTitle VII ’s text. The law bans any discrimination against an employee “because of… sex.” Now suppose that the employer would never fire Ginger for taking a romantic interest in men, but does fire George when it learns that he does so...
Source: Cato-at-liberty - Category: American Health Authors: Source Type: blogs