In my initial post on today’s ruling in Bostock v. Clayton County, I contrasted Justice Gorsuch’s majority opinion with Justice Alito’s dissent. Justice Kavanaugh also wrote an excellent dissent, one that is, I think, fully compatible with Alito’s. I’ll briefly offer some highlights here.
Kavanaugh draws the important distinction between “literal meaning” and “ordinary meaning” and emphasizes that judges are bound by the latter. (Pp. 6-11.) He argues that the ordinary meaning of the phrase “discriminate because of sex” plainly does not encompass discrimination because of sexual orientation: “In common parlance, Bostock and Zarda were fired because they were gay, not because they were men.” (Pp. 11-22.) (His dissent focuses on discrimination because of sexual orientation; he observes in a footnote that his analysis would apply “in much the same way” to discrimination on the basis of gender identity.)
Kavanaugh also points out that in the Court’s many previous cases involving sexual-orientation discrimination, “[n]ot a single Justice stated or even hinted that sexual orientation was just a form of sex discrimination.” That observation ought to apply to special force to the Chief Justice: How could he have dissented in Obergefell v. Hodges without addressing and rejecting the claim that laws that define marriage as the union of a man and a woman constitute sex discrimination subject to heightened scrutiny under the Equal Protection Clause?
Kavanaugh notes that in the first ten federal appellate cases to consider the issue “all 30 federal judges agreed that Title VII does not prohibit discrimination because of sexual orientation. Although the majority opinion “insists that it is not rewriting or updating Title VII, but instead is just humbly reading the text of the statute as written…., that assertion is tough to accept.” Yes, indeed.