The misbegotten 1892 case was Church of the Holy Trinity v. United States. In 1885, concerned about an influx of foreign labor, Congress had passed the Alien Contract Labor Law, which prohibited “the importation” of “foreigners … under contract to perform labor or service of any kind in the United States.” The law contained exceptions for actors, artists, singers and others. It didn’t exempt clergy.
Holy Trinity Church in Manhattan had hired a new pastor — from England. The government claimed a violation of the law, and the case went up to the Supreme Court. And despite the text of the statute, the church won.
Yes, the court conceded, the pastor’s hiring came “within the letter” of the law. He was, after all, a foreigner and imported under contract to serve in the United States. But the court held that Congress couldn’t really have intended to prohibit hiring clergy. And that was because “we are a Christian people” and “this is a Christian nation.” The court asked: “Shall it be believed that a Congress of the United States intended to make it a misdemeanor for a church of this country to contract for the services of a Christian minister residing in another nation?”
So the court not only ruled for the church, but also established a general principle of interpretation: “A thing may be within the letter of the statute and yet not within the statute, because not within its spirit nor within the intention of its makers.”
With the revival of judicial textualism by conservatives in recent decades, the Holy Trinity axiom fell increasingly into disrepute. None other than Justice Antonin Scalia, who led that revival, sounded the charge against Holy Trinity: His book on statutory interpretation, written with Bryan A. Garner, called the decision “infamous,” condemning it for its “philosophy that it is the function of the courts to improve faulty legislation.” The decision could not be squared with textualism, which Scalia said “begins and ends with what the text says and fairly implies.”
Which brings us to Bostock. If you were a law professor dreaming up a 21st-century version of Holy Trinity, you couldn’t do better than this case. Just as Congress broadly prohibited hiring foreigners in 1885, so, too, it broadly prohibited sex discrimination in 1964. And just as it was inconceivable that Congress had meant to bar the hiring of Christian pastors, so, too, it was absurd to think that, 56 years ago, Congress wanted to protect gays, lesbians and transgender people.
But just look at what Congress wrote. Title VII makes it “unlawful” for an employer “to fail or refuse to hire or to discharge … or otherwise to discriminate against any individual … because of such individual’s … sex.” Categorical words. No relevant exceptions — none, in particular, for sexual orientation.
So if employees John and Joanne both have crushes on Sarah, and Joanne but not John gets the boot, how could Joanne not have suffered illegal discrimination on the basis of her being female, her biological sex? Or if John, biologically male, becomes Jane and comes in wearing a dress like Joanne’s, and is fired for it, while Joanne, born female, keeps her job, how is that not illegal sex discrimination as well? Justice Neil M. Gorsuch’s textualist answer for the court: Both cases describe wrongs. Gorsuch writes, “The employer intentionally singles out an employee to fire based in part on the employee’s sex,” period — and like it or not, by the plain terms of the statute, that’s not allowed.
It was up to the dissenters to devise a textual justification for the contrary result. They came up short. Justice Samuel A. Alito Jr. invoked the “social context in which a statute was enacted” to limit the effect of Title VII’s text — but that’s just what Holy Trinity had done with the social context of American religiosity in the late 1800s. Hostile 1960s’ attitudes toward gay men and lesbians inform the meaning of “discriminate” and “sex” no more than the nation’s Christian roots illuminated “importation,” “foreigners” and “service.”
For his part, Justice Brett M. Kavanaugh said “it was Congress’s role, not this Court’s, to amend Title VII.” But his separation-of-powers argument actually cuts the other way. Congress has already commanded courts to apply the prohibition on sex discrimination — without exception. In a 1987 dissent, Scalia made a similar point when he railed against the court’s earlier invocation of Holy Trinity to create, for affirmative-action programs, an exception to Title VII’s broad prohibition against racial discrimination.
All of this illustrates one of Scalia’s main assertions about textualism: that “a textualist reading will sometimes produce ‘conservative’ outcomes, sometimes ‘liberal’ ones.” It’s a “slander,” he wrote, to call textualism “a device calculated to produce socially or politically conservative outcomes.”
Apart from laying Holy Trinity to rest, Gorsuch’s exemplarily textualist opinion in Bostock has proven Scalia’s point for all time.
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