1 00:00:15,396 --> 00:00:23,916 Speaker 1: Pushkin from Pushkin Industries. This is Deep Background, the show 2 00:00:23,956 --> 00:00:27,156 Speaker 1: where we explore the stories behind the stories in the news. 3 00:00:27,676 --> 00:00:32,196 Speaker 1: I'm Noah Feldman. Until Monday of this week, it was 4 00:00:32,276 --> 00:00:35,716 Speaker 1: lawful in more than half of the US states to 5 00:00:35,876 --> 00:00:40,716 Speaker 1: fire an employee for being gay, bisexual, or transgender. That 6 00:00:40,876 --> 00:00:45,356 Speaker 1: is no longer true. The Supreme Court has now ruled 7 00:00:45,436 --> 00:00:48,436 Speaker 1: the Title seven of the nineteen sixty four Civil Rights Act, 8 00:00:48,676 --> 00:00:53,676 Speaker 1: which prohibits employment discrimination because of sex protects such workers. 9 00:00:54,396 --> 00:00:58,956 Speaker 1: To discuss this landmark case, we are joined by Professor 10 00:00:58,996 --> 00:01:04,036 Speaker 1: Bill Eskridge. Bill is quite literally the perfect guest to 11 00:01:04,116 --> 00:01:07,196 Speaker 1: discuss these topics. He's a professor at Yale Law School. 12 00:01:07,476 --> 00:01:10,076 Speaker 1: He's a pioneer in the study and the teaching of 13 00:01:10,196 --> 00:01:12,996 Speaker 1: gay rights law, and he spent much of his career 14 00:01:13,076 --> 00:01:17,996 Speaker 1: focusing on the interpretation of statutes. He's also the author 15 00:01:17,996 --> 00:01:26,116 Speaker 1: of a forthcoming book, Marriage Equality From Outlaws to in Laws. Bill, 16 00:01:26,196 --> 00:01:28,356 Speaker 1: thank you so much for being here this morning. It's 17 00:01:28,476 --> 00:01:31,556 Speaker 1: very rare for there to be an exactly ideal guest 18 00:01:31,676 --> 00:01:34,236 Speaker 1: in response to an important news story. But in the 19 00:01:34,276 --> 00:01:38,476 Speaker 1: wake of the Supreme Court's landmark decision on antidiscrimination law 20 00:01:38,516 --> 00:01:42,276 Speaker 1: for gains transgender people. I knew you were the exact guest, 21 00:01:42,356 --> 00:01:44,956 Speaker 1: because not only are you a pioneer in the law 22 00:01:44,996 --> 00:01:47,596 Speaker 1: of gay rights, you're also one of our leading experts 23 00:01:47,596 --> 00:01:50,796 Speaker 1: in statutory interpretation. So literally, the two topics of the 24 00:01:50,876 --> 00:01:53,756 Speaker 1: moment are both squarely within the domain of your expertise. 25 00:01:53,996 --> 00:01:56,836 Speaker 1: So I guess I want to start by saying, congratulations. 26 00:01:57,076 --> 00:01:59,556 Speaker 1: You must be feeling happy about the decision in Bostock 27 00:01:59,556 --> 00:02:04,956 Speaker 1: against Clayton County. That probably understates it. Very surprised it 28 00:02:05,036 --> 00:02:08,796 Speaker 1: was six to three, not at all surprised that if 29 00:02:08,836 --> 00:02:12,836 Speaker 1: we one as we did, it would be a textualist opinion. 30 00:02:12,876 --> 00:02:15,036 Speaker 1: I've been saying this for two years. The cases have 31 00:02:15,116 --> 00:02:18,796 Speaker 1: been coming for two years. My mantra to all the 32 00:02:19,036 --> 00:02:23,036 Speaker 1: LGBT groups that would listen to me is that we 33 00:02:23,116 --> 00:02:27,636 Speaker 1: need to understand thoroughly the text and structure as well 34 00:02:27,636 --> 00:02:31,636 Speaker 1: as the precedents surrounding Title seven. And I think Justice 35 00:02:31,676 --> 00:02:35,156 Speaker 1: Course Hage got it so great for the Supreme Court 36 00:02:35,476 --> 00:02:37,876 Speaker 1: and maybe great for the country too, and for gaining 37 00:02:37,916 --> 00:02:41,876 Speaker 1: transgender people. Let's start with a little bit of background 38 00:02:41,996 --> 00:02:45,556 Speaker 1: history here on why the decision. It was a surprise 39 00:02:45,636 --> 00:02:49,756 Speaker 1: to many. How long has it been since people in 40 00:02:49,796 --> 00:02:53,076 Speaker 1: the gay rights movement have been arguing that Title seven, 41 00:02:53,276 --> 00:02:58,516 Speaker 1: which prohibits discrimination because of sex, properly interpreted, ought to 42 00:02:58,636 --> 00:03:02,676 Speaker 1: also include within that discrimination against gain lesbian people or 43 00:03:02,716 --> 00:03:07,996 Speaker 1: against transgender people. Well, for most of my lifetime, LGBTQ 44 00:03:08,276 --> 00:03:13,956 Speaker 1: people didn't even dare come out as gay or lesbian 45 00:03:14,036 --> 00:03:16,836 Speaker 1: or whatnot at work, So there were not a lot 46 00:03:16,876 --> 00:03:19,836 Speaker 1: of arguments for most of my lifetime, I would say 47 00:03:19,876 --> 00:03:23,916 Speaker 1: in the nineteen nineties, the argument becomes prominent because by 48 00:03:23,956 --> 00:03:27,796 Speaker 1: the nineteen nineties there were a lot of lgbt and 49 00:03:27,876 --> 00:03:32,476 Speaker 1: increasingly Q people who were out of the workplace. And 50 00:03:32,516 --> 00:03:36,636 Speaker 1: then the Bayer and Lewin case in Hawaii said that 51 00:03:37,316 --> 00:03:42,516 Speaker 1: if you exclude from marriage a woman because she's marrying 52 00:03:42,556 --> 00:03:45,956 Speaker 1: a woman rather than marrying a man, well that's sex 53 00:03:46,036 --> 00:03:50,716 Speaker 1: discrimination in the same way that it's race discrimination if 54 00:03:50,716 --> 00:03:53,676 Speaker 1: you exclude a white woman from marriage because she's marrying 55 00:03:53,716 --> 00:03:58,116 Speaker 1: a black man. And so the confluence of both the 56 00:03:58,316 --> 00:04:04,236 Speaker 1: social factors and this legal development in Bayer and Lewan 57 00:04:04,836 --> 00:04:08,716 Speaker 1: generated a lot of talk within the LGBTQ and academic communities. 58 00:04:09,156 --> 00:04:10,836 Speaker 1: So this has been an argument that's been going on 59 00:04:11,076 --> 00:04:15,356 Speaker 1: by a conservative measure for thirty years. As many as 60 00:04:15,356 --> 00:04:19,236 Speaker 1: thirty years. From the perspective of someone who's not a lawyer, 61 00:04:19,436 --> 00:04:23,276 Speaker 1: it might seem kind of weird that a right to 62 00:04:24,396 --> 00:04:26,676 Speaker 1: have sex as a gay person was decided by the 63 00:04:26,716 --> 00:04:29,156 Speaker 1: Supreme Court in the early two thousands, that a right 64 00:04:29,196 --> 00:04:32,436 Speaker 1: to gay marriage was decided by the Supreme Court in 65 00:04:32,476 --> 00:04:35,276 Speaker 1: the middle of the two tens, and yet it took 66 00:04:35,356 --> 00:04:39,076 Speaker 1: until twenty to achieve something that one might have imagined, 67 00:04:39,076 --> 00:04:41,956 Speaker 1: at least as a non lawyer, was more obvious, namely 68 00:04:42,156 --> 00:04:46,956 Speaker 1: a statutory right not to be discriminated against in the workplace. 69 00:04:47,996 --> 00:04:49,836 Speaker 1: Lawyers know that the difference has something to do with 70 00:04:49,876 --> 00:04:53,156 Speaker 1: a constitutional decision, which all the Supreme Courts gay rights 71 00:04:53,196 --> 00:04:56,196 Speaker 1: decisions until now of great consequence had been and a 72 00:04:56,236 --> 00:05:00,556 Speaker 1: decision interpreting federal law, which is what this case was. 73 00:05:01,596 --> 00:05:04,396 Speaker 1: Why do you think it took longer for the Supreme 74 00:05:04,436 --> 00:05:07,876 Speaker 1: Court to reach this conclusion with respect to a federal 75 00:05:07,956 --> 00:05:13,276 Speaker 1: statute and it did with respect to the Constitution. Well, unfortunately, 76 00:05:13,276 --> 00:05:15,876 Speaker 1: that's an easy win to answer, and that is that 77 00:05:16,076 --> 00:05:20,836 Speaker 1: the whole gay marriage issue arose again in the nineteen nineties. 78 00:05:21,156 --> 00:05:23,396 Speaker 1: There had been some gay marriage cases in the seventies, 79 00:05:23,396 --> 00:05:26,516 Speaker 1: and they'd all lost. In the nineteen nineties, there was 80 00:05:26,556 --> 00:05:28,636 Speaker 1: a revival of interest. I actually was the attorney in 81 00:05:28,676 --> 00:05:33,236 Speaker 1: the first case, one in DC, and then the Hawaii case, 82 00:05:33,756 --> 00:05:37,076 Speaker 1: which was also unsuccessful but got a lot of good publicity, 83 00:05:38,196 --> 00:05:43,796 Speaker 1: was also in the mid nineteen nineties, and once marriage 84 00:05:43,836 --> 00:05:47,156 Speaker 1: got on the horizon, both as an aspiration for the 85 00:05:47,276 --> 00:05:52,756 Speaker 1: LGBTQ movement and as something to react to, the marriage 86 00:05:52,796 --> 00:05:56,676 Speaker 1: issue sort of sucked up most of the oxygen. So 87 00:05:56,716 --> 00:06:00,276 Speaker 1: the sex discrimination argument was there. It was made in 88 00:06:00,316 --> 00:06:03,196 Speaker 1: the Vermont case in nineteen ninety nine, was made in 89 00:06:03,236 --> 00:06:06,116 Speaker 1: the Massachusetts case in two thousand and three, and in 90 00:06:06,116 --> 00:06:09,996 Speaker 1: some of the subsequent cases, but judge were afraid to 91 00:06:10,036 --> 00:06:13,076 Speaker 1: pick up on it because of the negative reaction to 92 00:06:13,156 --> 00:06:16,196 Speaker 1: Bayer and Lewa in the Hawaii case in nineteen ninety three, 93 00:06:16,916 --> 00:06:20,116 Speaker 1: and so the argument sort of existed in the ether, 94 00:06:21,156 --> 00:06:24,556 Speaker 1: but judges and even attorneys were afraid to raise it 95 00:06:25,516 --> 00:06:29,756 Speaker 1: because it did sound orthogonal to the basic equality arguments 96 00:06:29,756 --> 00:06:32,396 Speaker 1: that we were making in cases like Roma versus Evans 97 00:06:32,396 --> 00:06:35,236 Speaker 1: in nineteen ninety six, Lawrence versus Texas, and the sodomy 98 00:06:35,276 --> 00:06:39,116 Speaker 1: case in two thousand and three, and even Windsor in 99 00:06:39,116 --> 00:06:42,956 Speaker 1: the United States, the defensive marriage ACKed case that was 100 00:06:42,996 --> 00:06:46,316 Speaker 1: decided in twenty thirteen, followed as you know by Obergefeld. 101 00:06:46,356 --> 00:06:49,316 Speaker 1: The marriage case, it seems on the surface again to 102 00:06:49,356 --> 00:06:51,836 Speaker 1: a non lawyer, if I can pretend to be when 103 00:06:51,876 --> 00:06:53,196 Speaker 1: for a minute, if I can try to unlearn what 104 00:06:53,196 --> 00:06:56,036 Speaker 1: I learned in law school, they're both about equality. The 105 00:06:56,076 --> 00:06:58,836 Speaker 1: marriage equality argument was an argument for equal treatment. The 106 00:06:58,876 --> 00:07:02,796 Speaker 1: antidiscrimination argument is an argument for equal treatment. Why was 107 00:07:02,876 --> 00:07:08,476 Speaker 1: it that for political reasons or complex jurisprudential reasons? The 108 00:07:08,556 --> 00:07:11,636 Speaker 1: one argument, and the marriage quality argument was not only 109 00:07:11,836 --> 00:07:16,916 Speaker 1: pushed but was successful, with Justice Kennedy himself a Republican appointee, 110 00:07:17,436 --> 00:07:20,476 Speaker 1: making the relevant crucial decisions along the way writing them. 111 00:07:21,076 --> 00:07:24,076 Speaker 1: But the equality argument in the context of equal treatment 112 00:07:24,076 --> 00:07:28,356 Speaker 1: in the workplace antidiscrimination law wasn't a successful Well. I 113 00:07:28,396 --> 00:07:31,916 Speaker 1: think it's actually easy to understand in retrospect, and that 114 00:07:32,116 --> 00:07:38,276 Speaker 1: is that the average gay, friendly, straight person literally could 115 00:07:38,356 --> 00:07:40,716 Speaker 1: not understand the argument. And I think lawyers had a 116 00:07:40,716 --> 00:07:44,756 Speaker 1: harder time than others because lawyers love symmetry. So if 117 00:07:44,756 --> 00:07:47,236 Speaker 1: you make an equal protection argument to a lawyer or 118 00:07:47,236 --> 00:07:51,676 Speaker 1: to a judge, and you say this group Roman Catholics 119 00:07:52,156 --> 00:07:57,156 Speaker 1: are discriminated against because of their religion. There is a 120 00:07:57,236 --> 00:08:01,636 Speaker 1: perfect correlation in your mind between the classification religion and 121 00:08:01,756 --> 00:08:05,596 Speaker 1: the group Catholics. If women are being excluded because of 122 00:08:05,596 --> 00:08:09,516 Speaker 1: their sex, you can understand that, whether you're in favor 123 00:08:09,636 --> 00:08:12,756 Speaker 1: of striking it down or not, because the group the 124 00:08:12,956 --> 00:08:19,036 Speaker 1: class matches up perfectly to the classification. For LGBT claims 125 00:08:19,156 --> 00:08:25,636 Speaker 1: under the sex discrimination argument, the classification sex did not 126 00:08:25,716 --> 00:08:29,556 Speaker 1: seem to match up with the group lesbians, gay men, 127 00:08:29,596 --> 00:08:34,076 Speaker 1: and bisexuals in the minds of many judges. Almost twenty 128 00:08:34,156 --> 00:08:37,956 Speaker 1: years ago, I was at a conference where there was 129 00:08:37,956 --> 00:08:41,636 Speaker 1: a Supreme Court justice present, and I and another judge 130 00:08:42,116 --> 00:08:45,156 Speaker 1: made a presentation of the sex discrimination argument almost twenty 131 00:08:45,236 --> 00:08:50,556 Speaker 1: years ago. And this judge was gay friendly, fine, and 132 00:08:50,636 --> 00:08:53,076 Speaker 1: we explained the argument, and the judge says, no, no, no, 133 00:08:53,356 --> 00:08:54,996 Speaker 1: that doesn't make sense to me. And I said no, 134 00:08:55,036 --> 00:08:57,836 Speaker 1: it's like Loving versus Virginia. Just remind people Loving against 135 00:08:57,876 --> 00:09:01,196 Speaker 1: Virginia is the case in which the Supreme Court held 136 00:09:01,276 --> 00:09:04,316 Speaker 1: that it was unconstitutional for the state to prohibit black 137 00:09:04,316 --> 00:09:06,756 Speaker 1: and white people from being married in Virginia exactly. And 138 00:09:06,796 --> 00:09:11,556 Speaker 1: the argument was, if you prohibit a woman from a 139 00:09:11,636 --> 00:09:15,276 Speaker 1: white woman from marrying a black man, the variable the 140 00:09:15,356 --> 00:09:18,276 Speaker 1: classification that changes the result is the race either of 141 00:09:18,316 --> 00:09:20,676 Speaker 1: the woman or of the spouse. We were making that 142 00:09:20,796 --> 00:09:26,476 Speaker 1: argument and it took three link the explanations by the 143 00:09:26,476 --> 00:09:30,316 Speaker 1: ball professor before the judge even understood it, a liberal 144 00:09:30,396 --> 00:09:34,156 Speaker 1: judge and then just oh, I finally now get it. 145 00:09:34,676 --> 00:09:37,356 Speaker 1: Well knowing would ever accept that? Can you say if 146 00:09:37,396 --> 00:09:40,716 Speaker 1: that liberal justice was still on the court and voted 147 00:09:40,796 --> 00:09:46,916 Speaker 1: in this case? Maybe maybe? Okay, good answer. And indeed 148 00:09:46,916 --> 00:09:50,116 Speaker 1: that brings us to the argument that Justice Neil Gorsuch, 149 00:09:50,316 --> 00:09:53,836 Speaker 1: Trump appointee self professed textualists. And we're going to come 150 00:09:53,836 --> 00:09:56,516 Speaker 1: to textualism in just a moment made for the court 151 00:09:56,716 --> 00:10:00,156 Speaker 1: joined in this case by the liberals on the court 152 00:10:00,876 --> 00:10:03,916 Speaker 1: plus Chief Justice John Roberts, so a six to three decision. 153 00:10:04,556 --> 00:10:07,436 Speaker 1: Why don't you just lay out that argument for us, 154 00:10:07,476 --> 00:10:09,356 Speaker 1: just for people who may not have had a to 155 00:10:09,356 --> 00:10:11,396 Speaker 1: read one hundred and seventy five pages of the opinion yet, 156 00:10:11,396 --> 00:10:12,756 Speaker 1: because it's more or less the argument that you were 157 00:10:12,756 --> 00:10:15,796 Speaker 1: advancing twenty years ago. Yeah, it's a very simple argument. 158 00:10:16,356 --> 00:10:20,996 Speaker 1: The statutory text says the following employers cannot and here 159 00:10:21,036 --> 00:10:25,436 Speaker 1: I'm pretty much quoting the statute cannot discriminate against any 160 00:10:25,556 --> 00:10:31,796 Speaker 1: individual because of such individuals sex. And the argument is 161 00:10:31,916 --> 00:10:36,716 Speaker 1: very simple. If an employer has a female employee and 162 00:10:36,756 --> 00:10:39,276 Speaker 1: the employer fires hers as well, I'm really tired of 163 00:10:39,316 --> 00:10:42,196 Speaker 1: having women in the workplace, that's obviously a violation of 164 00:10:42,236 --> 00:10:46,436 Speaker 1: the statue. If the employer says, oh, well, I'm okay 165 00:10:46,436 --> 00:10:49,676 Speaker 1: with having women employees, but I'm not okay with having 166 00:10:49,716 --> 00:10:54,676 Speaker 1: women employees who date women, then that is discrimination because 167 00:10:54,716 --> 00:10:59,316 Speaker 1: of sex. The classification, the regulatory variable the changes is 168 00:10:59,396 --> 00:11:02,636 Speaker 1: the sex of the employee. The employee were a man 169 00:11:02,756 --> 00:11:07,356 Speaker 1: who dated women, that would be fine. So any discrimination 170 00:11:07,436 --> 00:11:10,996 Speaker 1: against an individual group and an individual because of that 171 00:11:11,116 --> 00:11:16,036 Speaker 1: individual sex, even if it's just a motivating factor among others, 172 00:11:16,116 --> 00:11:19,436 Speaker 1: that violates the statute. They could have disposed of it 173 00:11:19,636 --> 00:11:23,676 Speaker 1: nine to nothing in a three page opinion where they says, 174 00:11:23,756 --> 00:11:25,756 Speaker 1: this is what the statute says, and here's how it 175 00:11:25,796 --> 00:11:30,076 Speaker 1: applies to mister Bostock or mister Zardav And then for 176 00:11:30,156 --> 00:11:34,636 Speaker 1: transgender plaintiff Stevens, then it applies in the same sort 177 00:11:34,676 --> 00:11:37,316 Speaker 1: of way, but with a slightly different analysis. When you 178 00:11:37,356 --> 00:11:40,716 Speaker 1: say it applies individuals but not necessarily to groups. That 179 00:11:40,796 --> 00:11:42,596 Speaker 1: was an issue that came up at oral argument in 180 00:11:42,636 --> 00:11:45,356 Speaker 1: this case, how do you read the holding here? Would 181 00:11:45,356 --> 00:11:47,876 Speaker 1: it be lawful under the statute after this interpretation for 182 00:11:47,916 --> 00:11:52,396 Speaker 1: an employer to say I don't hire anyone who happens 183 00:11:52,436 --> 00:11:54,636 Speaker 1: to be gay lesbian, it seems that would not be 184 00:11:54,796 --> 00:11:57,836 Speaker 1: lawful under this holding. I think that would not be lawful. 185 00:11:58,636 --> 00:12:02,356 Speaker 1: But again, remember there's no Title seven lawsuit usually until 186 00:12:02,436 --> 00:12:05,596 Speaker 1: there's an employee who says I was fired or not 187 00:12:05,676 --> 00:12:07,956 Speaker 1: given a job or for some of the recent discriminated 188 00:12:07,956 --> 00:12:11,996 Speaker 1: against because my sex basically right, So, yeah, an employer 189 00:12:12,076 --> 00:12:14,396 Speaker 1: can say that, but wow, that's an employer asking to 190 00:12:14,436 --> 00:12:17,716 Speaker 1: be sued. That's an employer sort of handing on a 191 00:12:17,756 --> 00:12:20,396 Speaker 1: silver platter. Here is your settlement. How much do I 192 00:12:20,436 --> 00:12:23,156 Speaker 1: owe you? Well, we may see test cases of that 193 00:12:23,276 --> 00:12:26,836 Speaker 1: sort by employers who operate the basis of principle. The 194 00:12:26,916 --> 00:12:30,436 Speaker 1: test cases will see will not be that at all. Instead, 195 00:12:30,476 --> 00:12:33,996 Speaker 1: at the end of the opinion, Justice Corsage said at 196 00:12:34,076 --> 00:12:36,876 Speaker 1: least one of the cases that was a religious allowance 197 00:12:36,996 --> 00:12:40,116 Speaker 1: claim raised by the employer, and Justice Gorgon said that 198 00:12:40,236 --> 00:12:42,756 Speaker 1: was not an issue on review, We're not going to 199 00:12:42,756 --> 00:12:45,756 Speaker 1: address it. But then he sort of throws in, hey, 200 00:12:46,116 --> 00:12:50,596 Speaker 1: bringing those lawsuits on and so that's left hanging. It's 201 00:12:50,636 --> 00:12:53,516 Speaker 1: like a hanging chad. Where is that going to leave us? 202 00:12:53,916 --> 00:12:55,796 Speaker 1: So I think those are the kinds of cases that 203 00:12:55,836 --> 00:12:59,236 Speaker 1: will now see that will be test cases of some sort. 204 00:13:00,036 --> 00:13:03,236 Speaker 1: Just to be clear, I think it's fairly explicit in 205 00:13:03,596 --> 00:13:06,116 Speaker 1: the opinion about where it's going to leave us. The 206 00:13:06,196 --> 00:13:10,636 Speaker 1: Religious Freedom Restoration Act is overwhelmingly likely be interpreted to 207 00:13:10,636 --> 00:13:15,876 Speaker 1: produce an exception to this anti discrimination principle for an 208 00:13:15,876 --> 00:13:19,156 Speaker 1: employer or an organization who can make a case of 209 00:13:19,316 --> 00:13:22,316 Speaker 1: sincere religious motivation. I mean, of course, it is now 210 00:13:22,316 --> 00:13:24,876 Speaker 1: the swing vote on this with Roberts, and it's very 211 00:13:24,876 --> 00:13:26,676 Speaker 1: hard to imagine, giving what he said, that he would 212 00:13:26,676 --> 00:13:28,996 Speaker 1: reach any other conclusion than the one he already hinted at. 213 00:13:29,756 --> 00:13:31,676 Speaker 1: I think it's hard to predict how this is going 214 00:13:31,716 --> 00:13:35,356 Speaker 1: to play out for several reasons. And one reason is 215 00:13:36,116 --> 00:13:41,236 Speaker 1: that most religious employers do not want to discriminate, and 216 00:13:41,316 --> 00:13:44,596 Speaker 1: so it's going to be interesting to see where we 217 00:13:44,716 --> 00:13:48,356 Speaker 1: find employers that want to get out a limb on 218 00:13:48,396 --> 00:13:52,836 Speaker 1: this particular issue. But you're right, I think that we're 219 00:13:52,836 --> 00:13:55,876 Speaker 1: going to see some of those cases. It is perilous 220 00:13:55,916 --> 00:13:58,116 Speaker 1: to predict exactly what the Supreme Court is going to 221 00:13:58,156 --> 00:14:00,676 Speaker 1: do with them, but it is very safe to say 222 00:14:00,716 --> 00:14:04,036 Speaker 1: that Justice Corsitch is open to these claims as his 223 00:14:04,116 --> 00:14:06,796 Speaker 1: chief Justice Roberts, as are some of the liberals as well. 224 00:14:07,556 --> 00:14:20,556 Speaker 1: We'll be right back. Let's shift now to talking about 225 00:14:21,036 --> 00:14:25,596 Speaker 1: the issue that's major here for lawyers beyond the huge 226 00:14:25,636 --> 00:14:30,796 Speaker 1: win for the LGBTQ community, namely the ascendance of the 227 00:14:30,796 --> 00:14:36,316 Speaker 1: theory of statutory interpretation known as textualism. And to give 228 00:14:36,356 --> 00:14:40,756 Speaker 1: the listener context, the argument for textualism using that term 229 00:14:40,796 --> 00:14:43,396 Speaker 1: more or less begins with Justice Scalia and has been 230 00:14:43,876 --> 00:14:47,076 Speaker 1: The cause has been taken up by a group of academics, 231 00:14:47,076 --> 00:14:50,116 Speaker 1: including my dean at Harvard Law School, John Manning, and 232 00:14:50,396 --> 00:14:53,556 Speaker 1: you and your co author at the time, Phil FRICKI 233 00:14:53,996 --> 00:14:56,716 Speaker 1: were engaged in what I would call an academic battle 234 00:14:56,836 --> 00:15:02,716 Speaker 1: royale for years, with the textualists offering your own alternative, 235 00:15:02,756 --> 00:15:06,396 Speaker 1: which you guys called dynamics statutory interpretation, and others have 236 00:15:06,476 --> 00:15:09,036 Speaker 1: attached different names to it. I have been watching this 237 00:15:09,236 --> 00:15:12,276 Speaker 1: with great fascination and attention for many, many years now, 238 00:15:12,356 --> 00:15:14,876 Speaker 1: really since I was a student. I've always been on 239 00:15:14,916 --> 00:15:17,196 Speaker 1: your side of the debate. I'm still on your side 240 00:15:17,236 --> 00:15:20,036 Speaker 1: of the debate, but now the Supreme Court seems to 241 00:15:20,076 --> 00:15:23,156 Speaker 1: be almost entirely on the other side of the debate. 242 00:15:23,316 --> 00:15:24,876 Speaker 1: So I wonder if you would start by just giving 243 00:15:24,916 --> 00:15:28,476 Speaker 1: us a one oh one on what you think textualism 244 00:15:28,676 --> 00:15:31,876 Speaker 1: is according to its proponents, and then you can tell 245 00:15:31,916 --> 00:15:34,316 Speaker 1: us why the textualists are wrong, even though in this 246 00:15:34,396 --> 00:15:38,116 Speaker 1: case they've given you just what you wanted. Well, Noah, 247 00:15:38,116 --> 00:15:41,316 Speaker 1: I'm with the spirit of your question. It's very interesting. 248 00:15:41,556 --> 00:15:43,916 Speaker 1: This is a great debate in the US Supreme Court, 249 00:15:44,516 --> 00:15:48,276 Speaker 1: and it's entirely a textual debate. With course, it's writing 250 00:15:48,276 --> 00:15:51,956 Speaker 1: for the majority, Kavanaugh writing for himself, and descent, Aledo 251 00:15:52,036 --> 00:15:55,996 Speaker 1: writing for himself, and Thomas and Descent. So textualism, it 252 00:15:56,076 --> 00:16:00,356 Speaker 1: seems to me, is the dominant mode of discourse in 253 00:16:00,436 --> 00:16:03,516 Speaker 1: all three of the opinions, but they have different inflections. 254 00:16:04,156 --> 00:16:07,116 Speaker 1: They all start the proposition that the only thing that's 255 00:16:07,156 --> 00:16:09,756 Speaker 1: enacted in law is the text of the statue. The 256 00:16:09,876 --> 00:16:12,756 Speaker 1: job of the judge is to interpret the text as 257 00:16:12,796 --> 00:16:16,836 Speaker 1: an ordinary reader would do, full stop. Don't look at 258 00:16:16,916 --> 00:16:19,956 Speaker 1: legislative history. You don't care if it goes against the 259 00:16:19,996 --> 00:16:24,356 Speaker 1: statutory purpose, though you might follow some statutory precedence, and 260 00:16:24,396 --> 00:16:27,756 Speaker 1: there's some division in the textualist camp on that, and 261 00:16:27,796 --> 00:16:30,956 Speaker 1: just to explain that again for non lawyers. The idea 262 00:16:31,076 --> 00:16:33,036 Speaker 1: is that when you're interpreting a statute, if you're a judge, 263 00:16:33,036 --> 00:16:35,476 Speaker 1: instead of asking, gee, what are the people who passed 264 00:16:35,556 --> 00:16:37,436 Speaker 1: this statute think? What did they say to each other? 265 00:16:37,516 --> 00:16:39,716 Speaker 1: What are they put in the congressional record? What were 266 00:16:39,756 --> 00:16:42,156 Speaker 1: their purposes? What can we reconstruct about what they thought 267 00:16:42,236 --> 00:16:43,956 Speaker 1: or should have thought or might have thought, You should 268 00:16:43,996 --> 00:16:47,316 Speaker 1: ignore all of that, according to textualism and just look 269 00:16:47,316 --> 00:16:51,236 Speaker 1: at the words. The strictest textualists would say exactly that, 270 00:16:52,076 --> 00:16:55,796 Speaker 1: and they would say that it doesn't matter subjectively what 271 00:16:55,916 --> 00:16:59,956 Speaker 1: the enacting legislators thought or what their goal was. All 272 00:16:59,996 --> 00:17:03,436 Speaker 1: that matters is the way that it's received by the 273 00:17:03,676 --> 00:17:08,036 Speaker 1: body politic. We the people are the audience and ought 274 00:17:08,076 --> 00:17:10,476 Speaker 1: to control the meaning of the statute. That's their argument. 275 00:17:11,196 --> 00:17:15,156 Speaker 1: I would characterize Phil Fricky and my approach as a 276 00:17:15,156 --> 00:17:18,196 Speaker 1: pragmatic approach, and I think that is still the reigning 277 00:17:18,196 --> 00:17:20,996 Speaker 1: approach in the Supreme Court, and that is that any 278 00:17:21,516 --> 00:17:25,076 Speaker 1: very hard case of statutory interpretation involves looking at a 279 00:17:25,156 --> 00:17:28,516 Speaker 1: number of sources, the text of the statute, statutory precedence, 280 00:17:29,316 --> 00:17:31,716 Speaker 1: and then you also in our opinion, ought to consider 281 00:17:31,836 --> 00:17:37,956 Speaker 1: legittive history, agency and regulatory history, and larger norms. Now, 282 00:17:38,156 --> 00:17:40,676 Speaker 1: I believe the Gorsage opinion. And this is exactly the 283 00:17:40,756 --> 00:17:45,276 Speaker 1: argument made by Justice Alito in his descent. The Gorsage 284 00:17:45,276 --> 00:17:52,116 Speaker 1: opinion is a brilliant synthesis of textualism and what you're 285 00:17:52,156 --> 00:17:57,396 Speaker 1: calling and I call sometimes dynamic statutory interpretation, because Aldo 286 00:17:57,516 --> 00:18:02,836 Speaker 1: points out this is a very wildly evolutive approach to 287 00:18:02,876 --> 00:18:07,356 Speaker 1: these words. And Aldo says, in nineteen sixty four, if 288 00:18:07,356 --> 00:18:10,636 Speaker 1: you'd asked a member of Congress, you're protecting women and ships? Sure? 289 00:18:11,036 --> 00:18:13,436 Speaker 1: Are you protecting men? Sometimes they might scratch their head 290 00:18:13,476 --> 00:18:16,516 Speaker 1: and say, well, maybe, And how about homosexuals? Are you're 291 00:18:16,556 --> 00:18:18,876 Speaker 1: protecting them? And just as the Lado jumps up and 292 00:18:18,916 --> 00:18:21,716 Speaker 1: down from dozens of pages and said no, they were 293 00:18:21,716 --> 00:18:25,076 Speaker 1: considered psychopaths and criminals and all sorts of other things. 294 00:18:25,596 --> 00:18:28,996 Speaker 1: So he says, this cannot be the original ordinary meaning 295 00:18:28,996 --> 00:18:33,636 Speaker 1: of the statute. And Gorsage's response is, no, you look 296 00:18:33,636 --> 00:18:37,836 Speaker 1: at the words and then you apply the words to 297 00:18:37,836 --> 00:18:41,836 Speaker 1: today's circumstances. Now here's the step that's missing, but that 298 00:18:41,996 --> 00:18:45,596 Speaker 1: he and the majority are making. Between sixty four, when 299 00:18:45,596 --> 00:18:48,716 Speaker 1: the statute is passed, and today when we have the decision, 300 00:18:49,676 --> 00:18:55,836 Speaker 1: the object of the discussion has changed. Indeed, language has changed. 301 00:18:56,916 --> 00:18:59,276 Speaker 1: In nineteen sixty four, if you'd asked a member of 302 00:18:59,276 --> 00:19:02,796 Speaker 1: Congress what about those gay people, member of Congress have said, 303 00:19:02,956 --> 00:19:06,516 Speaker 1: I like happy constituents. That's all it would have meant. 304 00:19:06,836 --> 00:19:10,036 Speaker 1: But if you'd said, what about homosexuals and other sex perverts, 305 00:19:10,196 --> 00:19:12,676 Speaker 1: Congress says, oh, yeah, they're a very big danger to 306 00:19:12,756 --> 00:19:16,916 Speaker 1: society and so forth. So literally, what's going on in 307 00:19:16,916 --> 00:19:20,196 Speaker 1: the background, and this is always what's going on with textualism, 308 00:19:20,476 --> 00:19:25,596 Speaker 1: is that society has changed, language has changed, and they're 309 00:19:25,636 --> 00:19:29,316 Speaker 1: not unrelated to one another. So let me pause you there, 310 00:19:29,316 --> 00:19:31,436 Speaker 1: because at this point I think someone who is not 311 00:19:31,516 --> 00:19:35,596 Speaker 1: taking the advanced Eskridge course on statutor interpretation, I think 312 00:19:35,876 --> 00:19:38,956 Speaker 1: might be forgiven for feeling a little confused. Let's walk 313 00:19:39,036 --> 00:19:44,036 Speaker 1: people through it. The Supreme Court majority here, Justice Coursitch says, 314 00:19:44,076 --> 00:19:47,796 Speaker 1: I am a textualist. I am not doing what Eskridge 315 00:19:47,836 --> 00:19:50,996 Speaker 1: says I am doing. He says, I am not looking 316 00:19:50,996 --> 00:19:53,916 Speaker 1: at the evolving meaning of the statute. I'm not looking 317 00:19:53,916 --> 00:19:57,956 Speaker 1: at a changed sociocultural context. I'm just reading the words 318 00:19:57,996 --> 00:20:01,956 Speaker 1: and Gorsitch insists, I'm reading them exactly the way a 319 00:20:02,076 --> 00:20:04,316 Speaker 1: person would have read them had they been exposed to 320 00:20:04,356 --> 00:20:07,196 Speaker 1: this logic. In nineteen sixty four, when the law was passed, 321 00:20:07,876 --> 00:20:11,116 Speaker 1: the descent Alito and Justice Kevna, in two different to 322 00:20:11,196 --> 00:20:15,916 Speaker 1: sens say no, that's not true, gore such, you're actually 323 00:20:15,956 --> 00:20:20,556 Speaker 1: doing the very thing that is bad from our perspective, 324 00:20:21,076 --> 00:20:24,916 Speaker 1: namely s grid style statutory interpretation that looks beyond the words, 325 00:20:25,076 --> 00:20:28,316 Speaker 1: and Gorsuch's responses, no, I'm not. The upshot is that 326 00:20:28,396 --> 00:20:32,516 Speaker 1: all of the opinions for the court, everybody claims that 327 00:20:32,556 --> 00:20:35,876 Speaker 1: the worst thing you can do is to engage in 328 00:20:35,956 --> 00:20:40,316 Speaker 1: dynamic statutory interpretation. The official orthodoxy, the stated orthodoxy of 329 00:20:40,476 --> 00:20:45,356 Speaker 1: all of the justices here is textualism. Textualism, textualism, textualism ascendant. 330 00:20:45,716 --> 00:20:48,836 Speaker 1: Now I hear you making the argument, which is fascinating, 331 00:20:49,596 --> 00:20:53,996 Speaker 1: that in fact, the majority is not doing textualism. It 332 00:20:54,076 --> 00:20:57,716 Speaker 1: thinks it's doing textualism, but it's not really doing textualism. 333 00:20:57,756 --> 00:21:00,636 Speaker 1: And therefore that the dissenters are correct in their characterization 334 00:21:00,636 --> 00:21:04,316 Speaker 1: with a majority opinion, and that Gorsuch is just wrong 335 00:21:04,556 --> 00:21:07,836 Speaker 1: or possibly in your view, lying about what he's in 336 00:21:07,876 --> 00:21:10,116 Speaker 1: fact doing so, let me ask you a psychological question. 337 00:21:10,156 --> 00:21:12,476 Speaker 1: Do you really think that Gorsach, who's trying very hard 338 00:21:12,516 --> 00:21:16,796 Speaker 1: to take up the mantle of justice Scalia, is deceived 339 00:21:16,836 --> 00:21:18,916 Speaker 1: about what he's doing, that he thinks he's doing textualism 340 00:21:18,956 --> 00:21:21,316 Speaker 1: and he doesn't. Or do you think he's doing something 341 00:21:21,676 --> 00:21:24,316 Speaker 1: different than that and maybe a little more secretive. Well, 342 00:21:24,316 --> 00:21:27,636 Speaker 1: I'm not going to psychoanalyze poor Justice Gorsage, but what 343 00:21:27,756 --> 00:21:31,156 Speaker 1: I will say is I think it's a synthesis. He's 344 00:21:31,196 --> 00:21:34,556 Speaker 1: both a textualist and a dynamic interpreter. Let me give 345 00:21:34,876 --> 00:21:38,196 Speaker 1: your audience a very simple example. Nineteen sixty four, you 346 00:21:38,196 --> 00:21:41,636 Speaker 1: pass a statute saying no motor vehicles in the park, 347 00:21:41,916 --> 00:21:44,196 Speaker 1: and there are a number of predictable applications. In some 348 00:21:44,236 --> 00:21:50,596 Speaker 1: close cases twenty twenty, a segue is zipping through the park. Well, 349 00:21:50,636 --> 00:21:53,676 Speaker 1: that didn't exist in nineteen sixty four. Are you being 350 00:21:53,676 --> 00:21:56,996 Speaker 1: a dynamic interpreter to say we're going to apply vehicle 351 00:21:57,156 --> 00:22:01,276 Speaker 1: to this new fangled gadget? And Scalia would answer no, 352 00:22:01,396 --> 00:22:06,396 Speaker 1: that's still textualism. Textualism can be applied to things that 353 00:22:06,516 --> 00:22:09,716 Speaker 1: happen after in nineteen sixty four, Well, what about things 354 00:22:09,796 --> 00:22:13,636 Speaker 1: that are existed in sixty four, but have changed motorized 355 00:22:13,676 --> 00:22:16,796 Speaker 1: wheelchairs ninety sixty four, and I said, well, there's some 356 00:22:16,836 --> 00:22:18,956 Speaker 1: motorized wheelchairs, but we're not going to apply it because 357 00:22:18,956 --> 00:22:21,716 Speaker 1: it goes so slowly. People of disabilities need them, and 358 00:22:21,716 --> 00:22:25,996 Speaker 1: so on twenty twenty, there's a thing called the bach 359 00:22:26,196 --> 00:22:29,676 Speaker 1: Auto Super four, which is a motorized wheelchair that looks 360 00:22:29,716 --> 00:22:32,156 Speaker 1: like a little car that can go up rough terrain 361 00:22:32,196 --> 00:22:34,676 Speaker 1: and can go pretty fast. Fifteen to twenty miles an 362 00:22:34,676 --> 00:22:38,236 Speaker 1: hour might apply to that. So that's something that existed 363 00:22:38,236 --> 00:22:43,196 Speaker 1: in sixty four but has changed in the intervening however 364 00:22:43,236 --> 00:22:45,956 Speaker 1: many years it's been since sixty four. And the same 365 00:22:45,996 --> 00:22:49,356 Speaker 1: thing is true of gay people. I existed, and I 366 00:22:49,436 --> 00:22:52,676 Speaker 1: was gay in nineteen sixty four. I would not have 367 00:22:52,676 --> 00:22:54,636 Speaker 1: called myself gay. I didn't know what that word met 368 00:22:54,636 --> 00:22:58,876 Speaker 1: in nineteen sixty four. Literally, the language to describe people 369 00:22:58,956 --> 00:23:02,716 Speaker 1: like me is not the same today as it had 370 00:23:02,716 --> 00:23:06,036 Speaker 1: been sixty four. And I'm a different person. I'm like 371 00:23:06,356 --> 00:23:12,356 Speaker 1: the segue, I'm either new or unlike the bach Auto 372 00:23:12,516 --> 00:23:16,076 Speaker 1: super four. I'm a ramped up version of what I 373 00:23:16,196 --> 00:23:19,916 Speaker 1: was in nineteen sixty four. So you can say you're 374 00:23:19,956 --> 00:23:23,876 Speaker 1: a textualist, but What has changed and how can this 375 00:23:23,956 --> 00:23:28,956 Speaker 1: not affect text is that people of men and women 376 00:23:28,996 --> 00:23:31,596 Speaker 1: who have sex or date people of the same sex 377 00:23:32,436 --> 00:23:37,036 Speaker 1: are now conceptualized completely differently. There's a different language to 378 00:23:37,116 --> 00:23:43,036 Speaker 1: describe them, and therefore their relationship to that language discriminate 379 00:23:43,116 --> 00:23:48,316 Speaker 1: against any individual because of such individual sex has correlatively changed. 380 00:23:48,676 --> 00:23:54,796 Speaker 1: So textualism and dynamism at the same time, let's talk 381 00:23:54,796 --> 00:23:57,636 Speaker 1: a little bit about where this is all going to 382 00:23:57,756 --> 00:24:02,076 Speaker 1: go in the future. I am fascinated to see Justice 383 00:24:02,116 --> 00:24:06,436 Speaker 1: course making a bid for the conservative intellectual leadership of 384 00:24:06,476 --> 00:24:10,676 Speaker 1: the Court through a holding that on the surface is 385 00:24:10,716 --> 00:24:13,316 Speaker 1: being embraced by liberals and will not be at least 386 00:24:13,316 --> 00:24:16,516 Speaker 1: immediately embraced by conservatives. My own view is at Gorsuch 387 00:24:16,636 --> 00:24:19,996 Speaker 1: is playing the long game, and he expects and believes 388 00:24:19,996 --> 00:24:22,516 Speaker 1: that conservatives won't be that angry about this opinion in 389 00:24:22,556 --> 00:24:27,036 Speaker 1: three or four years. That it's liberals who make judicial 390 00:24:27,076 --> 00:24:30,556 Speaker 1: reputation because most law professors are liberal. That's an unsurprising fact, 391 00:24:30,876 --> 00:24:33,916 Speaker 1: and most law professors who care about the Supreme Court 392 00:24:33,956 --> 00:24:37,476 Speaker 1: spend some of our time making judicial reputations. And we're 393 00:24:37,476 --> 00:24:39,476 Speaker 1: now all going to have to look at Neil Gorsuch, 394 00:24:39,556 --> 00:24:43,156 Speaker 1: Trump appointee and say, wow, pretty good. You know, he 395 00:24:43,236 --> 00:24:46,956 Speaker 1: followed his interpretation of the law to a place that 396 00:24:47,036 --> 00:24:51,436 Speaker 1: did not necessarily match his political preconditions. So liberals will 397 00:24:51,436 --> 00:24:53,236 Speaker 1: now have to be nice to Gorsuch whether they like 398 00:24:53,276 --> 00:24:58,116 Speaker 1: it or not. Conservatives will get over their frustration. Over time, 399 00:24:58,196 --> 00:25:01,836 Speaker 1: Gorsuch's position as the replacement for Justice Scalia as the 400 00:25:01,876 --> 00:25:05,596 Speaker 1: conservative intellectual leader of the court will be consolidated. That's 401 00:25:05,596 --> 00:25:08,596 Speaker 1: my hypothesis that that's his game plan. I want to 402 00:25:08,596 --> 00:25:11,276 Speaker 1: ask you, do you think the conservatives will get beyond 403 00:25:11,996 --> 00:25:14,876 Speaker 1: this opinion and will especially if there are a Religious 404 00:25:14,916 --> 00:25:19,676 Speaker 1: Freedom Restoration Act or other religious exemptions for religious groups. Well, 405 00:25:19,756 --> 00:25:22,596 Speaker 1: I would say the conservative reaction has been very mixed. 406 00:25:23,196 --> 00:25:27,276 Speaker 1: Donald Trump says he's a conservative and he praised the decision. 407 00:25:27,756 --> 00:25:32,636 Speaker 1: Sounds good to me. Mitt Romney not a liberal, he said, 408 00:25:32,756 --> 00:25:38,156 Speaker 1: you know, sounds pretty good. So I would say two things. 409 00:25:38,716 --> 00:25:43,716 Speaker 1: Number one, is it in the interest of American conservative 410 00:25:43,716 --> 00:25:50,276 Speaker 1: politics to demonize lesbian, gay, bisexual, and transgender people. Seventy 411 00:25:50,356 --> 00:25:54,396 Speaker 1: eight of the American people think that sexual orientation and 412 00:25:54,476 --> 00:25:57,196 Speaker 1: gender identity should not be the basis for losing your job. 413 00:25:57,796 --> 00:26:00,316 Speaker 1: So I think the country has really moved beyond that 414 00:26:00,396 --> 00:26:04,356 Speaker 1: including conservatives, and that's the smart thing for conservatives to do. 415 00:26:04,996 --> 00:26:07,156 Speaker 1: On the other hand, I think it's a smart thing 416 00:26:07,156 --> 00:26:10,996 Speaker 1: for conservatives, Noah and liberal to sort of say we 417 00:26:11,036 --> 00:26:14,356 Speaker 1: should have space for religious employers who need to be 418 00:26:14,396 --> 00:26:17,836 Speaker 1: accommodated on these kinds of issues. So I think there's 419 00:26:17,836 --> 00:26:20,836 Speaker 1: gonna be a learning curve for liberals as well. And 420 00:26:20,876 --> 00:26:23,316 Speaker 1: I'm not going to cycleanalyze, but I'm going to say 421 00:26:23,636 --> 00:26:26,636 Speaker 1: this is a smart interpretation of Gorsage, and he's smart. 422 00:26:27,396 --> 00:26:31,196 Speaker 1: Here's what he's doing. The academics, the Feldman's and the 423 00:26:31,316 --> 00:26:35,516 Speaker 1: Eskridges all think and sometimes right, you know, the new 424 00:26:35,556 --> 00:26:40,836 Speaker 1: textualism Scalia, Gorsage, Thomas, it's just simply a shell game. 425 00:26:40,876 --> 00:26:45,436 Speaker 1: It's a cover for smuggling in right wing Republican platform 426 00:26:45,556 --> 00:26:49,556 Speaker 1: views into statutes in the Constitution. Just as gors I 427 00:26:49,556 --> 00:26:54,556 Speaker 1: think his crusade is no, I am setting forth a 428 00:26:54,676 --> 00:26:59,556 Speaker 1: rule of law methodology which will be neutral and which 429 00:26:59,596 --> 00:27:04,396 Speaker 1: will actually make the country better. Now, Eskridge and Feldman 430 00:27:04,596 --> 00:27:07,916 Speaker 1: keeps saying you cannot have a rule of law methodology 431 00:27:08,556 --> 00:27:11,956 Speaker 1: which reaches results that you want to reach and then 432 00:27:12,036 --> 00:27:15,956 Speaker 1: bends the methodology to reach them. That's not a methodology. 433 00:27:16,036 --> 00:27:21,356 Speaker 1: That's an ideological position. Gorsage is saying, I'm not going 434 00:27:21,436 --> 00:27:28,036 Speaker 1: to be predictable except methodologically predictable. I'm going to be consistent, surprised. 435 00:27:28,076 --> 00:27:32,876 Speaker 1: I'm gonna be consistent, and that means that you can't 436 00:27:33,076 --> 00:27:37,956 Speaker 1: count on me based on ideology. So bravo Neil Gorsich. 437 00:27:39,636 --> 00:27:43,836 Speaker 1: Last question, Bill, what's left for the legal wing of 438 00:27:43,876 --> 00:27:51,436 Speaker 1: the LGBTQ rights movement? Now? Marriage rights established, legal equality 439 00:27:51,516 --> 00:27:55,876 Speaker 1: under the statute established. Yes, there will be some fights 440 00:27:55,956 --> 00:27:59,956 Speaker 1: over just how much religious liberty exemptions must exist, but 441 00:28:00,036 --> 00:28:02,396 Speaker 1: that's sort of after the fact. You've won the battle. 442 00:28:02,716 --> 00:28:05,636 Speaker 1: That's some minor negotiation over the terms of your victory. 443 00:28:06,396 --> 00:28:10,996 Speaker 1: For the brilliant young LGBTQ lawyer who are out there, 444 00:28:10,996 --> 00:28:13,996 Speaker 1: ready to be at the frontlines, what is the issue 445 00:28:14,036 --> 00:28:16,276 Speaker 1: that they will be working on for the rest of 446 00:28:16,276 --> 00:28:19,916 Speaker 1: their careers or should they redirect themselves to racial injustice 447 00:28:20,076 --> 00:28:24,156 Speaker 1: or other topics where sadly we've made very very little 448 00:28:24,196 --> 00:28:28,276 Speaker 1: systematic progress relative to what's happened in the LGBTQ context. 449 00:28:28,876 --> 00:28:31,076 Speaker 1: Now a great question. I would not pose it as 450 00:28:31,116 --> 00:28:38,036 Speaker 1: either or. Racial justice overlaps enormously with lgbt justice. The 451 00:28:38,116 --> 00:28:41,276 Speaker 1: people in my community. Who suffer the most tend to 452 00:28:41,276 --> 00:28:46,956 Speaker 1: be LGBTQ, people who are people of color, people without resources, 453 00:28:47,676 --> 00:28:51,196 Speaker 1: people who are most gender bending, all of those features, 454 00:28:52,076 --> 00:28:55,596 Speaker 1: and they are subject to violence. They're subject to discrimination 455 00:28:55,636 --> 00:29:00,996 Speaker 1: and education. They're subject to discrimination public accommodations in housing 456 00:29:01,036 --> 00:29:05,476 Speaker 1: for the poor. They're subject to harassment and bullying in schools. 457 00:29:06,716 --> 00:29:12,916 Speaker 1: So most LGBTQ discrimination occurs not for abstract reasons, but 458 00:29:13,076 --> 00:29:18,476 Speaker 1: because vulnerable people are physically and emotionally attacked and there's 459 00:29:18,476 --> 00:29:21,716 Speaker 1: no one there to stand up for them. And Glad 460 00:29:21,996 --> 00:29:24,756 Speaker 1: the Game Lesbian Advocates of Boston, which was the hero 461 00:29:24,876 --> 00:29:27,436 Speaker 1: in the marriage cases, you know, I talked to Glad 462 00:29:27,436 --> 00:29:29,236 Speaker 1: and I'd say, well, what are you all doing? And 463 00:29:29,316 --> 00:29:32,996 Speaker 1: Glad says, there is as much discrimination and violence as 464 00:29:33,036 --> 00:29:35,956 Speaker 1: there ever has been, and these people do not have 465 00:29:36,076 --> 00:29:39,316 Speaker 1: lawyers if we don't come in and try to protect them. 466 00:29:39,996 --> 00:29:44,396 Speaker 1: So yes, I think you're doing God's mission to continue 467 00:29:44,396 --> 00:29:48,356 Speaker 1: to protect the vulnerable, and I think that ought to 468 00:29:48,396 --> 00:29:51,436 Speaker 1: be the mission going forward, to get statutory and regulatory 469 00:29:51,436 --> 00:29:55,076 Speaker 1: protections for those people. You know, I want to thank 470 00:29:55,076 --> 00:29:58,836 Speaker 1: you not only for your clear analysis and your willingness 471 00:29:58,876 --> 00:30:01,076 Speaker 1: to talk about ideas and play with them, but also 472 00:30:01,156 --> 00:30:05,996 Speaker 1: for your extraordinary work that contributed to the outcome here, 473 00:30:06,316 --> 00:30:09,956 Speaker 1: and for your long dedication to the tin topics of 474 00:30:10,116 --> 00:30:14,756 Speaker 1: LGPTQ rights and statutory interpretation, which magically and perfectly came together. 475 00:30:14,876 --> 00:30:16,956 Speaker 1: Thank you so much. Thank you, Noah. It was a 476 00:30:16,996 --> 00:30:21,276 Speaker 1: real pleasure. Well there you have it. A hugely important 477 00:30:21,316 --> 00:30:24,516 Speaker 1: day in the history of the game transgender rights movements 478 00:30:24,556 --> 00:30:27,796 Speaker 1: in the United States, as explained and described by an 479 00:30:27,796 --> 00:30:30,676 Speaker 1: expert who has been at the heart of the process. 480 00:30:31,276 --> 00:30:33,836 Speaker 1: On top of that, we delved into the usually arcane 481 00:30:33,836 --> 00:30:37,156 Speaker 1: topic of how you should go about interpreting a statute, 482 00:30:37,316 --> 00:30:40,436 Speaker 1: and the debate between textualism, which is now the official 483 00:30:40,556 --> 00:30:43,716 Speaker 1: orthodox doctrine of just about the entire Supreme Court, and 484 00:30:43,796 --> 00:30:46,596 Speaker 1: the alternative view, according to which we should do more 485 00:30:46,636 --> 00:30:49,356 Speaker 1: than just look at the words of the statute. Where 486 00:30:49,356 --> 00:30:51,276 Speaker 1: we are now is that all of the opinions issued 487 00:30:51,276 --> 00:30:54,316 Speaker 1: by the Supreme Court majority and descent insist that you 488 00:30:54,356 --> 00:30:57,876 Speaker 1: should only interpret the Constitution according to its text. But 489 00:30:58,196 --> 00:31:00,956 Speaker 1: Bill Eskridge, not giving up the fight, claims that what's 490 00:31:01,036 --> 00:31:04,476 Speaker 1: really going on is that other factors are still in play. 491 00:31:04,956 --> 00:31:07,236 Speaker 1: We're going to continue to watch this issue as further 492 00:31:07,356 --> 00:31:11,876 Speaker 1: debates emerge about exemptions from civil rights law on the 493 00:31:11,876 --> 00:31:15,236 Speaker 1: basis of religion when it comes to discrimination against gay, lesbian, 494 00:31:15,236 --> 00:31:19,356 Speaker 1: and transgender people. And maybe, just maybe, someday we'll come 495 00:31:19,396 --> 00:31:23,436 Speaker 1: back to the topic of statutory interpretation. Until the next 496 00:31:23,436 --> 00:31:26,556 Speaker 1: time I speak to you, be careful, be safe, and 497 00:31:26,636 --> 00:31:31,196 Speaker 1: be well. Deep background is brought to you by Pushkin Industries. 498 00:31:31,556 --> 00:31:34,596 Speaker 1: Our producer is Lydia Jane Cott, with mastering by Jason 499 00:31:34,636 --> 00:31:39,156 Speaker 1: Gambrell and Martin Gonzalez. Our showrunner is Sophie mckibbon. Our 500 00:31:39,196 --> 00:31:42,396 Speaker 1: theme music is composed by Luis GERA special thanks to 501 00:31:42,396 --> 00:31:45,836 Speaker 1: the Pushkin Brass, Malcolm Gladwell, Jacob Weisberg, and Mia Lobel. 502 00:31:46,436 --> 00:31:49,436 Speaker 1: I'm Noah Feldman. I also write a regular column for 503 00:31:49,476 --> 00:31:52,876 Speaker 1: Bloomberg Opinion, which you can find at bloomberg dot com 504 00:31:52,876 --> 00:31:57,396 Speaker 1: slash Feldman. To discover Bloomberg's original slate of podcasts, go 505 00:31:57,516 --> 00:32:01,836 Speaker 1: to Bloomberg dot com slash Podcasts. And one last thing. 506 00:32:02,156 --> 00:32:04,996 Speaker 1: I just wrote a book called The Arab Winter, a Tragedy. 507 00:32:05,396 --> 00:32:07,796 Speaker 1: I would be delighted if you checked it out. If 508 00:32:07,796 --> 00:32:10,276 Speaker 1: you liked what you heard today, please write a review 509 00:32:10,716 --> 00:32:12,956 Speaker 1: or tell a friend. You can always let me know 510 00:32:12,956 --> 00:32:16,076 Speaker 1: what you think. On Twitter, my handle is Noah R. Feldman. 511 00:32:16,676 --> 00:32:18,316 Speaker 1: This is deep background