New on NRO: “Justice Gorsuch’s Half-Way Textualism Surprises and Disappoints in the Title VII Cases”
Randy Barnett and I published a new essay in National Review Online, titled “Justice Gorsuch’s Half-Way Textualism Surprises and Disappoints in the Title VII Cases.” We spent some time thinking about Bostock, and recognized precisely where Justice Gorsuch went wrong.
Here is the introduction:
Title VII of the Civil Rights Act of 1964 made it unlawful for employers to “discriminate against” employees “because of . . . sex.” Did that landmark statute also prohibit discrimination against employees because of their sexual orientation or gender identity? In Bostock v. Clayton County, the Supreme Court answered yes by a 6–3 vote. Justice Neil Gorusch wrote the majority opinion, which was joined by Chief Justice John Roberts, and the Court’s four progressives. Justices Alito, Thom
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