By John A. Sparks

The Supreme Court has just rendered historic decisions in three cases concerning Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex, or national origin. Justice Neil Gorsuch and Chief Justice John Roberts joined the liberal wing of the court to produce a surprising 6-3 majority holding that a gay sky-diving instructor (Altitude Express v. Zarda), a gay child-welfare-services-coordinator (Bostock v. Clayton County), and a male funeral employee transgendering to a woman (Harris Funeral Homes v. EEOC), were illegally fired under Title VII.

The issue of employment protection for gays is the central litigated issue in these cases. However, in order to reach its decision, the majority did considerable harm to one of the most important doctrines of American constitutionalism — the separation of powers. The short and long of it is that the high court converted itself into a super-legislature and in a display of raw “judicial” power inserted “sexual orientation” and “gender identity” into Title VII of the Civil Rights Act. In his dissent, Justice Samuel Alito pointedly observed: “There is only one word for what the Court has done today: legislation.”

On the first page of the Opinion of the Court, written by Justice Gorsuch, there is a foreshadowing of what is to come: “Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result…. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands.”

This is a strange and ominous formulation. Justice Gorsuch seems to be saying that those who passed Title VII of the Civil Rights Act had a list of certain kinds of employment discrimination that they made unlawful, but they lacked the foresight and imagination to expand Title VII’s coverage, which the court now in the year 2020 has supplied for them in its decision.

The dissenters (Brett Kavanaugh and Alito) zero in on the majority’s lack of respect for the separation of powers. Justice Kavanaugh says that Title VII clearly prohibits discrimination based on “race, color, religion, sex or national origin.” However, though the question in this case is whether Title VII should be expanded to include “sexual orientation” and “gender identity,” the more important question is “Who decides?”

Kavanaugh says that the Constitution gives a clear answer: “Under the Constitution’s separation of powers, the responsibility to amend Title VII belongs to Congress and the President in the legislative process, not to this Court.”

The history of the Civil Rights Act supports that view. Whenever Congress wanted to add to this list of protections, it did so by passing new legislation! For example, in 1967 it expanded Title VII protections against age discrimination to employees and later discrimination based on disabilities. Since neither of those categories of employment discrimination were in the original 1964 act, they could only be added by legislation, precisely as called for by the Constitution.

Justice Kavanaugh continues by reminding his colleagues that legislators have attempted to add “sexual orientation” and, more recently, “gender identity” to Title VII, but never successfully. In other words, legislative sponsors were never able to garner enough legislative support. This is undeniable proof that the people’s elected representatives have not seen fit to add these categories to the list found in Title VII.

According to Justice Kavanaugh: “In the face of unsuccessful legislative efforts (so far) to prohibit sexual orientation discrimination, judges may not rewrite the law … may not update the law … may not predictively amend the law just because it believes that Congress is likely to do it soon anyway…. We are judges, not Members of Congress.”

Why is a preservation of the “separation of powers” so important?

First, the American founders believed that dispersing power prevents the concentration of power in one branch which, if left unchecked, leads to repressive rule. The founders also understood that legislative bodies are better suited to engage in nuanced law-making because they can hold hearings, gather and evaluate a variety of conflicting opinions from the citizenry, provide for proper exceptions and exemptions, and better craft enactments which will provide relief but also protect fundamental rights. The judicial branch has a much more limited set of tools which are only properly used to interpret statutes and settle disputes between litigants. The more a court moves away from those essential but limited set of functions — when it dabbles in policymaking, for instance — the more likely it is to fail.

It is apparent that Justice Gorsuch was well aware that the language of Title VII had not been expanded by Congress. Therefore, he attempted to argue that the phrase discrimination “because of sex” had already included “sexual orientation” or “gender identity” since a person’s sexuality was involved. He labored over many pages in the majority opinion in an effort to incorporate “sexual orientation” and “gender identity” into the phrase “because of sex.” It was a determined effort on his part, but it fails to be convincing for several reasons:

First, it ignores legislative history. Did Congress in 1964 mean to outlaw discrimination based upon sexual orientation and gender identity? Justice Alito does not mince words in answering that question: “It indisputably did not.” Instead, the choice of the phrase “discrimination because of sex” was clearly meant to address an employer refusing to hire an applicant simply because the job-seeker was a woman or man. The concern, at the time, was more commonly for women who had qualifications equal to male applicants but who were passed over because they were women. In short, notes Alito, discrimination because of sex “was a familiar and well-understood concept, and what it meant was equal treatment for men and women.”

The second objection to Gorsuch’s effort to equate “sex” to “sexual orientation” or to “gender identity” is that plainly, over the decades, congressional legislators who sought expanded coverage for “sexual orientation” had themselves viewed the two concepts (sex and sexual orientation) as distinct. The bills they introduced called for the addition of a new term to the statutory list; that is, a different concept, namely “sexual orientation.” Such efforts reveal that the phrase “because of sex” already referred to a certain kind of discrimination and therefore, a new concept, encapsulated in the phrase “sexual orientation,” was needed to accomplish what they sought — namely, protection for homosexuals.

Thirdly, of the 20-plus states that have anti-discrimination laws that proscribe sexual orientation, those states, almost universally at the same time, separately outlaw discrimination “because of sex.” State governments obviously recognized these two concepts as different types of forbidden conduct.

Finally, Justice Kavanaugh points to the findings of the appellate courts on the federal level: “Until the last few years, every U.S. Court of Appeals to address this question concluded that Title VII does not prohibit discrimination because of "sexual orientation.” Plainly and simply, the category had not been added to Title VII’s list of outlawed employer behavior. Though Gorsuch’s efforts convinced some of his judicial colleagues, his reasoning flies in the face of substantial evidence to the contrary. Discrimination “because of sex” that appeared in the 1964 act did not include “sexual orientation” or “gender identity.”

In summary, the majority’s opinion in this trilogy of cases is a gain for gay rights, but it is most certainly a setback for the separation of powers and for a judiciary dedicated “to interpret statutory terms to mean what they conveyed to reasonable people at the time they were written.”

Dr. John A. Sparks is the retired Dean of Arts & Letters, Grove City College and a Fellow in the Institute for Faith and Freedom. He is a member of the state bar of Pennsylvania and a graduate of Grove City College and the University of Michigan Law School. Sparks writes regularly for the Institute on Supreme Court developments.