This week the U.S. Supreme Court, in Bostock v. Clayton County, Ga., ruled 6-4 that Title VII of the 1964 Civil Rights Act, which bans workplace discrimination on the basis of various categories (race, religion, color, sex, etc.), by implication also covers discrimination on the basis of sexual orientation (i.e., homosexual and transgender persons). The case was really two cases, one involving the county government, the other a private company.
The ruling has brought the usual conservative gnashing of teeth about unelected justices’ making law rather than doing their proper job, interpreting law. Note this delicious fact: the majority opinion was written by Justice Neil “But” Gorsuch, Trump’s first pick for the court.
If I am asked what I think of the ruling, I will say this: I favor repeal of Title VII (and other parts of the law that restrict private persons), but I also favor the ruling. That will strike some as incoherent, but it’s not.
Gorsuch held, “An employer who discriminates against homosexual or transgender employees necessarily and intentionally applies sex-based rules.” He noted that the employers “seem to say when a new application [of a law’s language] is both unexpected and important, even if it is clearly commanded by existing law, the Court should merely point out the question, refer the subject back to Congress, and decline to enforce the law’s plain terms in the meantime. This Court has long rejected that sort of reasoning.”
That seems right: sexual-orientation discrimination is sex discrimination — even if those who wrote and voted for the bill did not understand this. We often fail to see implications of the positions we hold. (Pointing that out was Socrates’s occupation.) In the case of legislation, why should we be bound by the narrow understanding of its authors and those who voted for it? Thomas Paine would call that being ruled by the dead.
Most people don’t understand that in the 18th century, free press meant freedom from prior restraint, not freedom from ex post punitive action by the government. Should we have stuck with the narrower meaning? I don’t think so. (But conservatives might.)
I say all this as one who rejects the state and its monopoly court system. But as James M. Buchanan liked to say, we have to start where we are. Sorry, abolishing the state isn’t on today’s menu. So what do we want that we can have? And what do we do?
Of course I would repeal the 1964 Civil Rights Act as it applies to private persons. I despise bigotry and invidious discrimination, but we don’t need the government to fight it. On the other hand, such discrimination by governments ought to be banned. The 1964 act struck down state Jim Crow laws, which mandated racial discrimination in both the private and government sectors.
But repeal of that law is not on today’s menu either. Yet that should not keep us from applauding the court for recognizing the clear fact that sex discrimination includes sexual-orientation discrimination regardless of what some political hacks might have thought in 1964. (Maybe they just didn’t think.)
By the same reasoning, good-faith libertarians should oppose removal of individual categories from Title VII. Who would favor striking out race or sex from the list if it were proposed on ostensibly libertarian grounds? Not I.
