The Bostock Court adopted an argument I’ve been making for years, and that I pressed upon it in an amicus brief: that discrimina-tion against gay people is necessarily sex discrimination. I defended Justice Neil Gorsuch’s opinion for the Court in my article, Bostock, LGBT Discrimination, and the Subtractive Moves, which catalogues various common but unsuccessful strategies for evading the force of the sex discrimination argument. That piece, originally drafted before the Supreme Court’s decision as a critique of arguments by Court of Appeals judges, was easy to revise and update. The dissenters, Justices Samuel Alito (joined by Clarence Thomas) and Brett Kavanaugh, mostly repeated arguments that I had addressed in my earlier version. All I needed to do was note that they made the same mistakes as the lower court judges.
Berman and Krishnamurthi respond to me as well as to Gorsuch. They, too, make errors that I have already catalogued, though they combine them in novel ways. Both are major scholars. Berman is one of the smartest constitutional theorists writing today, and a skillful deflater of bad arguments. To take only one example, his article, Originalism Is Bunk, remains the single most devastating critique of that school of thought. Until now, I cannot recall ever disagreeing with him about anything. Guha Krishnamurthi’s earlier coauthored article, Bostock and Conceptual Causation, is an insightful analysis of the but-for causation issue that is key to that decision. Since they are unpersuaded, I must not have been clear, so I will use this occasion to restate the argument.
Part I of this response explains why their clarification of the cau-sation question casts no doubt on Bostock. Part II exposes the error of taking the linguistic happenstance of a separate term for gender-atypical behavior—here, “homosexuality”—to subtract those whom the term describes from the statute’s protection. Part III takes up the fallacy that parallel conjunctions of discriminations balance out, so that there is no violation if male and female homosexuals are both discrim-inated against. The fallacy is an old one: it was deployed in 1883 to uphold prohibitions of interracial sex, in a decision that was overruled in 1964, the same year the Civil Rights Act was passed. Part IV critiques Berman and Krishnamurthi’s deployment of their proposed Principle of Conservation in Motivational Analysis. The Principle is no objection to Bostock, because in LGBT discrimination, the victim’s sex is always among the actor’s motivating reasons (or reasons delegated to a subordinate, for which the actor is responsible). Part V addresses their claim that discrimination law should target practices that reinforce racial and gender hierarchy. I agree with that claim, and with their rejection of textualism. But given the Court’s commitment to textualism, Bostock is correctly reasoned.
Bostock and Textualism: A Response to Berman and Krishnamurthi,
Notre Dame L. Rev. Reflection
Available at: https://scholarship.law.nd.edu/ndlr_online/vol98/iss2/2