Bench Memos

Law & the Courts

Re: Title VII, Compositionality and ‘Discriminate Against’

Three weeks ago, I highlighted an interesting new paper by James C. Phillips, a scholar at Stanford law school’s Constitutional Law Center, that bears on the question whether Title VII’s bar on “discriminat[ion] against any individual … because of such individual’s … sex” bars discrimination on the basis of sexual orientation or gender identity. Phillips has called to my attention his response to a critique, so I direct interested readers to the exchange.

On Phillips’s rejoinder to the charge that he has “effectively incorporate[d] purpose into the very meaning of the words of the statute,” I’d simply add this passage from Justice Scalia:

The term purposivism suggests, wrongly, that its supposed antonym—namely textualism—precludes consideration of a text’s purpose. That is not so. It is untrue that a textualist judge must “put on blinders that shield the legislative purpose from view.” As we will demonstrate, the textualist routinely takes purpose into account, but in its concrete manifestations as deduced from close reading of the text. It is when an abstract purpose is allowed to supersede text that the result is what Justice Felix Frankfurter cautioned against: “interpretations by judicial libertines” who “draw prodigally upon unformulated purposes or directions.” [Reading Law: The Interpretation of Legal Texts 20 (co-authored with Bryan A. Garner).]

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