Is Neil Gorsuch the New Anthony Kennedy?

Before Justice Anthony Kennedy retired from the Supreme Court, the routine near the end of a number of decisive terms became familiar: The nation would look to him for the pivotal vote in any and all decisions granting greater legal protections to gay and lesbian people, who would then rejoice that all of those rulings happened to come down around the same time during Pride Month. But Kennedy seemed unwilling to give them one more victory in 2018, the same year he bowed to Donald Trump as he stepped down. His middling ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission resolved nothing on what many saw as the next frontier after marriage equality in the battle for expanded rights for LGBT people: whether existing laws protect them from discrimination at work or in public spaces. If you were gay, you could get married on Sunday as a matter of constitutional law, but then be fired on Monday as a matter of statutory law, advocates liked to warn.

Very few expected Neil Gorsuch, a former law clerk for Kennedy, to step into the shoes of a judicial gay rights icon, let alone to expand on that legacy — although his own sparse record on LGBT rights made him hard to pigeonhole. But in the months since the Supreme Court considered whether federal law protects LGBT workers, a whisper network consisting of columns and editorials in conservative outlets all suggested that Trump’s first Supreme Court appointee may be waffling on the question. The rumors turned out to be right: Gorsuch added a monumental entry to his civil-rights record on Monday by leading a solid 6-to-3 majority in a landmark ruling extending the antidiscrimination protections in Title VII of the Civil Rights Act of 1964 to gay, lesbian, and transgender workers. Predictably, right-wing commentators and legal activists are now decrying Gorsuch’s role in the decision — much as they tended to deride the otherwise conservative Kennedy whenever he exercised independent judgment on some, but not all, social issues.

Title VII, as written, says nothing about discrimination on the basis of sexual orientation or gender identity. Instead, the law forbids discriminatory employment practices, such as firing or refusing to hire, against anyone “because of such individual’s … sex,” as well as other categories such as race, religion, and national origin. The federal Equal Employment Opportunity Commission, which tends to do its own thing independent of the administration in power, determined a long time ago that discrimination against gay or transgender workers constitutes discrimination on the basis of sex — a reading that a number of federal judges and appeals courts began adopting in later years.

Not surprisingly, the Trump administration, back when Jeff Sessions was in charge of the Justice Department, vehemently disagreed with this reading of the law. And since, forces within it have been trying to push the notion that sex discrimination does not encompass discrimination against gay, lesbian, and transgender people. The Justice Department even tried, unsuccessfully, to get the EEOC to change its stance before the Supreme Court.

With Bostock v. Clayton County, a trio of cases from different parts of the country, Gorsuch — joined by Chief Justice John Roberts and the Supreme Court’s more liberal members — has now decisively short-circuited those efforts, including the Trump administration’s broader anti-LGBT agenda in other federal agencies. From the outset of the opinion, he pulls no punches: “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex,” Gorsuch writes. “Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

As an avowed proponent of textualism — an approach to law which favors interpreting a statute solely on the basis of the text, rather than the purported intent behind it — Gorsuch, like Justice Antonin Scalia before him, was willing to read Title VII in ways that no one who voted for it in 1964 did. No one really expected Title VII would later cover transgressions such as discrimination against mothers, or against “butch” women who didn’t comport to female stereotypes, or against men harassed by other men for not being tough enough. Sexual harassment has existed since time immemorial, yet as a legal term of art it wasn’t something people used or filed lawsuits over in the ‘60s. And yet that and other ills are precisely what the Supreme Court has gone on to recognize as protected under Title VII, as advocates began to press these and other claims in the lower courts. Judges began to think big. As Scalia put it in an 1998 decision Gorsuch cites, “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”

Bostock is such a case, and coming from Gorsuch, it is remarkable not only because he blesses the arguments that LGBT lawyers and advocates, to say nothing of the EEOC, have been advancing for years. He also does so with some of the sweeping, florid language that Kennedy was fond of using for such occasions. Since ascending to the Supreme Court, the justice from Colorado has been needled for writing in #GorsuchStyle — that is, in a folksy and sometimes insufferably pedantic manner — and this new opinion contains some of that.

The real import of Bostock, though, is that Gorsuch — and Roberts, who joined him — can now claim that textualism, as a methodology for interpreting the law, isn’t some results-oriented device conservative legal theorists invented to get what they want in the courts, as liberals have long feared. This new ruling, going against current right-wing orthodoxy as it does, lays those worries to rest. As Gorsuch explains, all he’s doing, at least as far as Title VII is concerned, is some good, old, conservative judging — not legislating from the bench, which Justices Samuel Alito and Brett Kavanaugh accuse the majority of doing in their separate dissents, or unleashing “massive social upheaval,” as Gorsuch himself suggested might happen back in October, when the Supreme Court held oral arguments in these cases. The following key passage is worth reading in full, because in it Gorsuch acknowledges that he and his colleagues are doing something incredibly consequential — and yet the move is modest and unsurprising in the broader scheme of how Title VII has been interpreted over the years:

We can’t deny that today’s holding — that employers are prohibited from firing employees on the basis of homosexuality or transgender status — is an elephant. But where’s the mousehole? Title VII’s prohibition of sex discrimination in employment is a major piece of federal civil rights legislation. It is written in starkly broad terms. It has repeatedly produced unexpected applications, at least in the view of those on the receiving end of them. Congress’s key drafting choices — to focus on discrimination against individuals and not merely between groups and to hold employers liable whenever sex is a but-for cause of the plaintiff ’s injuries — virtually guaranteed that unexpected applications would emerge over time. This elephant has never hidden in a mousehole; it has been standing before us all along.

Yet no one should rush to christen Neil Gorsuch as Kennedy’s heir. His own concurrence in Masterpiece Cakeshop left little doubt that he’d side with a Christian wedding vendor rather than a gay couple claiming discrimination, and who knows where he’d stand on controversies like bathroom discrimination against transgender students, or broader exclusion of transgender athletes. One thing Bostock does leave no doubt about is that the Trump administration’s newly announced rule aimed at shutting out from coverage transgender patients under the Affordable Care Act is, as one law professor put it, dead in the water. And in the realm of discrimination because of sex, the Supreme Court has now sounded loud and clear that LGBT people now have far more protections under federal law than they did yesterday, even without Congress lifting a finger. Time will only tell the elephants waiting to be discovered in the laws we already have.

Originally Appeared on GQ