Speaker 1: Pushkin from Pushkin Industries. This is Deep Background, the show
Speaker 1: where we explore the stories behind the stories in the news.
Speaker 1: I'm Noah Feldman. Until Monday of this week, it was
Speaker 1: lawful in more than half of the US states to
Speaker 1: fire an employee for being gay, bisexual, or transgender. That
Speaker 1: is no longer true. The Supreme Court has now ruled
Speaker 1: the Title seven of the nineteen sixty four Civil Rights Act,
Speaker 1: which prohibits employment discrimination because of sex protects such workers.
Speaker 1: To discuss this landmark case, we are joined by Professor
Speaker 1: Bill Eskridge. Bill is quite literally the perfect guest to
Speaker 1: discuss these topics. He's a professor at Yale Law School.
Speaker 1: He's a pioneer in the study and the teaching of
Speaker 1: gay rights law, and he spent much of his career
Speaker 1: focusing on the interpretation of statutes. He's also the author
Speaker 1: of a forthcoming book, Marriage Equality From Outlaws to in Laws. Bill,
Speaker 1: thank you so much for being here this morning. It's
Speaker 1: very rare for there to be an exactly ideal guest
Speaker 1: in response to an important news story. But in the
Speaker 1: wake of the Supreme Court's landmark decision on antidiscrimination law
Speaker 1: for gains transgender people. I knew you were the exact guest,
Speaker 1: because not only are you a pioneer in the law
Speaker 1: of gay rights, you're also one of our leading experts
Speaker 1: in statutory interpretation. So literally, the two topics of the
Speaker 1: moment are both squarely within the domain of your expertise.
Speaker 1: So I guess I want to start by saying, congratulations.
Speaker 1: You must be feeling happy about the decision in Bostock
Speaker 1: against Clayton County. That probably understates it. Very surprised it
Speaker 1: was six to three, not at all surprised that if
Speaker 1: we one as we did, it would be a textualist opinion.
Speaker 1: I've been saying this for two years. The cases have
Speaker 1: been coming for two years. My mantra to all the
Speaker 1: LGBT groups that would listen to me is that we
Speaker 1: need to understand thoroughly the text and structure as well
Speaker 1: as the precedents surrounding Title seven. And I think Justice
Speaker 1: Course Hage got it so great for the Supreme Court
Speaker 1: and maybe great for the country too, and for gaining
Speaker 1: transgender people. Let's start with a little bit of background
Speaker 1: history here on why the decision. It was a surprise
Speaker 1: to many. How long has it been since people in
Speaker 1: the gay rights movement have been arguing that Title seven,
Speaker 1: which prohibits discrimination because of sex, properly interpreted, ought to
Speaker 1: also include within that discrimination against gain lesbian people or
Speaker 1: against transgender people. Well, for most of my lifetime, LGBTQ
Speaker 1: people didn't even dare come out as gay or lesbian
Speaker 1: or whatnot at work, So there were not a lot
Speaker 1: of arguments for most of my lifetime, I would say
Speaker 1: in the nineteen nineties, the argument becomes prominent because by
Speaker 1: the nineteen nineties there were a lot of lgbt and
Speaker 1: increasingly Q people who were out of the workplace. And
Speaker 1: then the Bayer and Lewin case in Hawaii said that
Speaker 1: if you exclude from marriage a woman because she's marrying
Speaker 1: a woman rather than marrying a man, well that's sex
Speaker 1: discrimination in the same way that it's race discrimination if
Speaker 1: you exclude a white woman from marriage because she's marrying
Speaker 1: a black man. And so the confluence of both the
Speaker 1: social factors and this legal development in Bayer and Lewan
Speaker 1: generated a lot of talk within the LGBTQ and academic communities.
Speaker 1: So this has been an argument that's been going on
Speaker 1: by a conservative measure for thirty years. As many as
Speaker 1: thirty years. From the perspective of someone who's not a lawyer,
Speaker 1: it might seem kind of weird that a right to
Speaker 1: have sex as a gay person was decided by the
Speaker 1: Supreme Court in the early two thousands, that a right
Speaker 1: to gay marriage was decided by the Supreme Court in
Speaker 1: the middle of the two tens, and yet it took
Speaker 1: until twenty to achieve something that one might have imagined,
Speaker 1: at least as a non lawyer, was more obvious, namely
Speaker 1: a statutory right not to be discriminated against in the workplace.
Speaker 1: Lawyers know that the difference has something to do with
Speaker 1: a constitutional decision, which all the Supreme Courts gay rights
Speaker 1: decisions until now of great consequence had been and a
Speaker 1: decision interpreting federal law, which is what this case was.
Speaker 1: Why do you think it took longer for the Supreme
Speaker 1: Court to reach this conclusion with respect to a federal
Speaker 1: statute and it did with respect to the Constitution. Well, unfortunately,
Speaker 1: that's an easy win to answer, and that is that
Speaker 1: the whole gay marriage issue arose again in the nineteen nineties.
Speaker 1: There had been some gay marriage cases in the seventies,
Speaker 1: and they'd all lost. In the nineteen nineties, there was
Speaker 1: a revival of interest. I actually was the attorney in
Speaker 1: the first case, one in DC, and then the Hawaii case,
Speaker 1: which was also unsuccessful but got a lot of good publicity,
Speaker 1: was also in the mid nineteen nineties, and once marriage
Speaker 1: got on the horizon, both as an aspiration for the
Speaker 1: LGBTQ movement and as something to react to, the marriage
Speaker 1: issue sort of sucked up most of the oxygen. So
Speaker 1: the sex discrimination argument was there. It was made in
Speaker 1: the Vermont case in nineteen ninety nine, was made in
Speaker 1: the Massachusetts case in two thousand and three, and in
Speaker 1: some of the subsequent cases, but judge were afraid to
Speaker 1: pick up on it because of the negative reaction to
Speaker 1: Bayer and Lewa in the Hawaii case in nineteen ninety three,
Speaker 1: and so the argument sort of existed in the ether,
Speaker 1: but judges and even attorneys were afraid to raise it
Speaker 1: because it did sound orthogonal to the basic equality arguments
Speaker 1: that we were making in cases like Roma versus Evans
Speaker 1: in nineteen ninety six, Lawrence versus Texas, and the sodomy
Speaker 1: case in two thousand and three, and even Windsor in
Speaker 1: the United States, the defensive marriage ACKed case that was
Speaker 1: decided in twenty thirteen, followed as you know by Obergefeld.
Speaker 1: The marriage case, it seems on the surface again to
Speaker 1: a non lawyer, if I can pretend to be when
Speaker 1: for a minute, if I can try to unlearn what
Speaker 1: I learned in law school, they're both about equality. The
Speaker 1: marriage equality argument was an argument for equal treatment. The
Speaker 1: antidiscrimination argument is an argument for equal treatment. Why was
Speaker 1: it that for political reasons or complex jurisprudential reasons? The
Speaker 1: one argument, and the marriage quality argument was not only
Speaker 1: pushed but was successful, with Justice Kennedy himself a Republican appointee,
Speaker 1: making the relevant crucial decisions along the way writing them.
Speaker 1: But the equality argument in the context of equal treatment
Speaker 1: in the workplace antidiscrimination law wasn't a successful Well. I
Speaker 1: think it's actually easy to understand in retrospect, and that
Speaker 1: is that the average gay, friendly, straight person literally could
Speaker 1: not understand the argument. And I think lawyers had a
Speaker 1: harder time than others because lawyers love symmetry. So if
Speaker 1: you make an equal protection argument to a lawyer or
Speaker 1: to a judge, and you say this group Roman Catholics
Speaker 1: are discriminated against because of their religion. There is a
Speaker 1: perfect correlation in your mind between the classification religion and
Speaker 1: the group Catholics. If women are being excluded because of
Speaker 1: their sex, you can understand that, whether you're in favor
Speaker 1: of striking it down or not, because the group the
Speaker 1: class matches up perfectly to the classification. For LGBT claims
Speaker 1: under the sex discrimination argument, the classification sex did not
Speaker 1: seem to match up with the group lesbians, gay men,
Speaker 1: and bisexuals in the minds of many judges. Almost twenty
Speaker 1: years ago, I was at a conference where there was
Speaker 1: a Supreme Court justice present, and I and another judge
Speaker 1: made a presentation of the sex discrimination argument almost twenty
Speaker 1: years ago. And this judge was gay friendly, fine, and
Speaker 1: we explained the argument, and the judge says, no, no, no,
Speaker 1: that doesn't make sense to me. And I said no,
Speaker 1: it's like Loving versus Virginia. Just remind people Loving against
Speaker 1: Virginia is the case in which the Supreme Court held
Speaker 1: that it was unconstitutional for the state to prohibit black
Speaker 1: and white people from being married in Virginia exactly. And
Speaker 1: the argument was, if you prohibit a woman from a
Speaker 1: white woman from marrying a black man, the variable the
Speaker 1: classification that changes the result is the race either of
Speaker 1: the woman or of the spouse. We were making that
Speaker 1: argument and it took three link the explanations by the
Speaker 1: ball professor before the judge even understood it, a liberal
Speaker 1: judge and then just oh, I finally now get it.
Speaker 1: Well knowing would ever accept that? Can you say if
Speaker 1: that liberal justice was still on the court and voted
Speaker 1: in this case? Maybe maybe? Okay, good answer. And indeed
Speaker 1: that brings us to the argument that Justice Neil Gorsuch,
Speaker 1: Trump appointee self professed textualists. And we're going to come
Speaker 1: to textualism in just a moment made for the court
Speaker 1: joined in this case by the liberals on the court
Speaker 1: plus Chief Justice John Roberts, so a six to three decision.
Speaker 1: Why don't you just lay out that argument for us,
Speaker 1: just for people who may not have had a to
Speaker 1: read one hundred and seventy five pages of the opinion yet,
Speaker 1: because it's more or less the argument that you were
Speaker 1: advancing twenty years ago. Yeah, it's a very simple argument.
Speaker 1: The statutory text says the following employers cannot and here
Speaker 1: I'm pretty much quoting the statute cannot discriminate against any
Speaker 1: individual because of such individuals sex. And the argument is
Speaker 1: very simple. If an employer has a female employee and
Speaker 1: the employer fires hers as well, I'm really tired of
Speaker 1: having women in the workplace, that's obviously a violation of
Speaker 1: the statue. If the employer says, oh, well, I'm okay
Speaker 1: with having women employees, but I'm not okay with having
Speaker 1: women employees who date women, then that is discrimination because
Speaker 1: of sex. The classification, the regulatory variable the changes is
Speaker 1: the sex of the employee. The employee were a man
Speaker 1: who dated women, that would be fine. So any discrimination
Speaker 1: against an individual group and an individual because of that
Speaker 1: individual sex, even if it's just a motivating factor among others,
Speaker 1: that violates the statute. They could have disposed of it
Speaker 1: nine to nothing in a three page opinion where they says,
Speaker 1: this is what the statute says, and here's how it
Speaker 1: applies to mister Bostock or mister Zardav And then for
Speaker 1: transgender plaintiff Stevens, then it applies in the same sort
Speaker 1: of way, but with a slightly different analysis. When you
Speaker 1: say it applies individuals but not necessarily to groups. That
Speaker 1: was an issue that came up at oral argument in
Speaker 1: this case, how do you read the holding here? Would
Speaker 1: it be lawful under the statute after this interpretation for
Speaker 1: an employer to say I don't hire anyone who happens
Speaker 1: to be gay lesbian, it seems that would not be
Speaker 1: lawful under this holding. I think that would not be lawful.
Speaker 1: But again, remember there's no Title seven lawsuit usually until
Speaker 1: there's an employee who says I was fired or not
Speaker 1: given a job or for some of the recent discriminated
Speaker 1: against because my sex basically right, So, yeah, an employer
Speaker 1: can say that, but wow, that's an employer asking to
Speaker 1: be sued. That's an employer sort of handing on a
Speaker 1: silver platter. Here is your settlement. How much do I
Speaker 1: owe you? Well, we may see test cases of that
Speaker 1: sort by employers who operate the basis of principle. The
Speaker 1: test cases will see will not be that at all. Instead,
Speaker 1: at the end of the opinion, Justice Corsage said at
Speaker 1: least one of the cases that was a religious allowance
Speaker 1: claim raised by the employer, and Justice Gorgon said that
Speaker 1: was not an issue on review, We're not going to
Speaker 1: address it. But then he sort of throws in, hey,
Speaker 1: bringing those lawsuits on and so that's left hanging. It's
Speaker 1: like a hanging chad. Where is that going to leave us?
Speaker 1: So I think those are the kinds of cases that
Speaker 1: will now see that will be test cases of some sort.
Speaker 1: Just to be clear, I think it's fairly explicit in
Speaker 1: the opinion about where it's going to leave us. The
Speaker 1: Religious Freedom Restoration Act is overwhelmingly likely be interpreted to
Speaker 1: produce an exception to this anti discrimination principle for an
Speaker 1: employer or an organization who can make a case of
Speaker 1: sincere religious motivation. I mean, of course, it is now
Speaker 1: the swing vote on this with Roberts, and it's very
Speaker 1: hard to imagine, giving what he said, that he would
Speaker 1: reach any other conclusion than the one he already hinted at.
Speaker 1: I think it's hard to predict how this is going
Speaker 1: to play out for several reasons. And one reason is
Speaker 1: that most religious employers do not want to discriminate, and
Speaker 1: so it's going to be interesting to see where we
Speaker 1: find employers that want to get out a limb on
Speaker 1: this particular issue. But you're right, I think that we're
Speaker 1: going to see some of those cases. It is perilous
Speaker 1: to predict exactly what the Supreme Court is going to
Speaker 1: do with them, but it is very safe to say
Speaker 1: that Justice Corsitch is open to these claims as his
Speaker 1: chief Justice Roberts, as are some of the liberals as well.
Speaker 1: We'll be right back. Let's shift now to talking about
Speaker 1: the issue that's major here for lawyers beyond the huge
Speaker 1: win for the LGBTQ community, namely the ascendance of the
Speaker 1: theory of statutory interpretation known as textualism. And to give
Speaker 1: the listener context, the argument for textualism using that term
Speaker 1: more or less begins with Justice Scalia and has been
Speaker 1: The cause has been taken up by a group of academics,
Speaker 1: including my dean at Harvard Law School, John Manning, and
Speaker 1: you and your co author at the time, Phil FRICKI
Speaker 1: were engaged in what I would call an academic battle
Speaker 1: royale for years, with the textualists offering your own alternative,
Speaker 1: which you guys called dynamics statutory interpretation, and others have
Speaker 1: attached different names to it. I have been watching this
Speaker 1: with great fascination and attention for many, many years now,
Speaker 1: really since I was a student. I've always been on
Speaker 1: your side of the debate. I'm still on your side
Speaker 1: of the debate, but now the Supreme Court seems to
Speaker 1: be almost entirely on the other side of the debate.
Speaker 1: So I wonder if you would start by just giving
Speaker 1: us a one oh one on what you think textualism
Speaker 1: is according to its proponents, and then you can tell
Speaker 1: us why the textualists are wrong, even though in this
Speaker 1: case they've given you just what you wanted. Well, Noah,
Speaker 1: I'm with the spirit of your question. It's very interesting.
Speaker 1: This is a great debate in the US Supreme Court,
Speaker 1: and it's entirely a textual debate. With course, it's writing
Speaker 1: for the majority, Kavanaugh writing for himself, and descent, Aledo
Speaker 1: writing for himself, and Thomas and Descent. So textualism, it
Speaker 1: seems to me, is the dominant mode of discourse in
Speaker 1: all three of the opinions, but they have different inflections.
Speaker 1: They all start the proposition that the only thing that's
Speaker 1: enacted in law is the text of the statue. The
Speaker 1: job of the judge is to interpret the text as
Speaker 1: an ordinary reader would do, full stop. Don't look at
Speaker 1: legislative history. You don't care if it goes against the
Speaker 1: statutory purpose, though you might follow some statutory precedence, and
Speaker 1: there's some division in the textualist camp on that, and
Speaker 1: just to explain that again for non lawyers. The idea
Speaker 1: is that when you're interpreting a statute, if you're a judge,
Speaker 1: instead of asking, gee, what are the people who passed
Speaker 1: this statute think? What did they say to each other?
Speaker 1: What are they put in the congressional record? What were
Speaker 1: their purposes? What can we reconstruct about what they thought
Speaker 1: or should have thought or might have thought, You should
Speaker 1: ignore all of that, according to textualism and just look
Speaker 1: at the words. The strictest textualists would say exactly that,
Speaker 1: and they would say that it doesn't matter subjectively what
Speaker 1: the enacting legislators thought or what their goal was. All
Speaker 1: that matters is the way that it's received by the
Speaker 1: body politic. We the people are the audience and ought
Speaker 1: to control the meaning of the statute. That's their argument.
Speaker 1: I would characterize Phil Fricky and my approach as a
Speaker 1: pragmatic approach, and I think that is still the reigning
Speaker 1: approach in the Supreme Court, and that is that any
Speaker 1: very hard case of statutory interpretation involves looking at a
Speaker 1: number of sources, the text of the statute, statutory precedence,
Speaker 1: and then you also in our opinion, ought to consider
Speaker 1: legittive history, agency and regulatory history, and larger norms. Now,
Speaker 1: I believe the Gorsage opinion. And this is exactly the
Speaker 1: argument made by Justice Alito in his descent. The Gorsage
Speaker 1: opinion is a brilliant synthesis of textualism and what you're
Speaker 1: calling and I call sometimes dynamic statutory interpretation, because Aldo
Speaker 1: points out this is a very wildly evolutive approach to
Speaker 1: these words. And Aldo says, in nineteen sixty four, if
Speaker 1: you'd asked a member of Congress, you're protecting women and ships? Sure?
Speaker 1: Are you protecting men? Sometimes they might scratch their head
Speaker 1: and say, well, maybe, And how about homosexuals? Are you're
Speaker 1: protecting them? And just as the Lado jumps up and
Speaker 1: down from dozens of pages and said no, they were
Speaker 1: considered psychopaths and criminals and all sorts of other things.
Speaker 1: So he says, this cannot be the original ordinary meaning
Speaker 1: of the statute. And Gorsage's response is, no, you look
Speaker 1: at the words and then you apply the words to
Speaker 1: today's circumstances. Now here's the step that's missing, but that
Speaker 1: he and the majority are making. Between sixty four, when
Speaker 1: the statute is passed, and today when we have the decision,
Speaker 1: the object of the discussion has changed. Indeed, language has changed.
Speaker 1: In nineteen sixty four, if you'd asked a member of
Speaker 1: Congress what about those gay people, member of Congress have said,
Speaker 1: I like happy constituents. That's all it would have meant.
Speaker 1: But if you'd said, what about homosexuals and other sex perverts,
Speaker 1: Congress says, oh, yeah, they're a very big danger to
Speaker 1: society and so forth. So literally, what's going on in
Speaker 1: the background, and this is always what's going on with textualism,
Speaker 1: is that society has changed, language has changed, and they're
Speaker 1: not unrelated to one another. So let me pause you there,
Speaker 1: because at this point I think someone who is not
Speaker 1: taking the advanced Eskridge course on statutor interpretation, I think
Speaker 1: might be forgiven for feeling a little confused. Let's walk
Speaker 1: people through it. The Supreme Court majority here, Justice Coursitch says,
Speaker 1: I am a textualist. I am not doing what Eskridge
Speaker 1: says I am doing. He says, I am not looking
Speaker 1: at the evolving meaning of the statute. I'm not looking
Speaker 1: at a changed sociocultural context. I'm just reading the words
Speaker 1: and Gorsitch insists, I'm reading them exactly the way a
Speaker 1: person would have read them had they been exposed to
Speaker 1: this logic. In nineteen sixty four, when the law was passed,
Speaker 1: the descent Alito and Justice Kevna, in two different to
Speaker 1: sens say no, that's not true, gore such, you're actually
Speaker 1: doing the very thing that is bad from our perspective,
Speaker 1: namely s grid style statutory interpretation that looks beyond the words,
Speaker 1: and Gorsuch's responses, no, I'm not. The upshot is that
Speaker 1: all of the opinions for the court, everybody claims that
Speaker 1: the worst thing you can do is to engage in
Speaker 1: dynamic statutory interpretation. The official orthodoxy, the stated orthodoxy of
Speaker 1: all of the justices here is textualism. Textualism, textualism, textualism ascendant.
Speaker 1: Now I hear you making the argument, which is fascinating,
Speaker 1: that in fact, the majority is not doing textualism. It
Speaker 1: thinks it's doing textualism, but it's not really doing textualism.
Speaker 1: And therefore that the dissenters are correct in their characterization
Speaker 1: with a majority opinion, and that Gorsuch is just wrong
Speaker 1: or possibly in your view, lying about what he's in
Speaker 1: fact doing so, let me ask you a psychological question.
Speaker 1: Do you really think that Gorsach, who's trying very hard
Speaker 1: to take up the mantle of justice Scalia, is deceived
Speaker 1: about what he's doing, that he thinks he's doing textualism
Speaker 1: and he doesn't. Or do you think he's doing something
Speaker 1: different than that and maybe a little more secretive. Well,
Speaker 1: I'm not going to psychoanalyze poor Justice Gorsage, but what
Speaker 1: I will say is I think it's a synthesis. He's
Speaker 1: both a textualist and a dynamic interpreter. Let me give
Speaker 1: your audience a very simple example. Nineteen sixty four, you
Speaker 1: pass a statute saying no motor vehicles in the park,
Speaker 1: and there are a number of predictable applications. In some
Speaker 1: close cases twenty twenty, a segue is zipping through the park. Well,
Speaker 1: that didn't exist in nineteen sixty four. Are you being
Speaker 1: a dynamic interpreter to say we're going to apply vehicle
Speaker 1: to this new fangled gadget? And Scalia would answer no,
Speaker 1: that's still textualism. Textualism can be applied to things that
Speaker 1: happen after in nineteen sixty four, Well, what about things
Speaker 1: that are existed in sixty four, but have changed motorized
Speaker 1: wheelchairs ninety sixty four, and I said, well, there's some
Speaker 1: motorized wheelchairs, but we're not going to apply it because
Speaker 1: it goes so slowly. People of disabilities need them, and
Speaker 1: so on twenty twenty, there's a thing called the bach
Speaker 1: Auto Super four, which is a motorized wheelchair that looks
Speaker 1: like a little car that can go up rough terrain
Speaker 1: and can go pretty fast. Fifteen to twenty miles an
Speaker 1: hour might apply to that. So that's something that existed
Speaker 1: in sixty four but has changed in the intervening however
Speaker 1: many years it's been since sixty four. And the same
Speaker 1: thing is true of gay people. I existed, and I
Speaker 1: was gay in nineteen sixty four. I would not have
Speaker 1: called myself gay. I didn't know what that word met
Speaker 1: in nineteen sixty four. Literally, the language to describe people
Speaker 1: like me is not the same today as it had
Speaker 1: been sixty four. And I'm a different person. I'm like
Speaker 1: the segue, I'm either new or unlike the bach Auto
Speaker 1: super four. I'm a ramped up version of what I
Speaker 1: was in nineteen sixty four. So you can say you're
Speaker 1: a textualist, but What has changed and how can this
Speaker 1: not affect text is that people of men and women
Speaker 1: who have sex or date people of the same sex
Speaker 1: are now conceptualized completely differently. There's a different language to
Speaker 1: describe them, and therefore their relationship to that language discriminate
Speaker 1: against any individual because of such individual sex has correlatively changed.
Speaker 1: So textualism and dynamism at the same time, let's talk
Speaker 1: a little bit about where this is all going to
Speaker 1: go in the future. I am fascinated to see Justice
Speaker 1: course making a bid for the conservative intellectual leadership of
Speaker 1: the Court through a holding that on the surface is
Speaker 1: being embraced by liberals and will not be at least
Speaker 1: immediately embraced by conservatives. My own view is at Gorsuch
Speaker 1: is playing the long game, and he expects and believes
Speaker 1: that conservatives won't be that angry about this opinion in
Speaker 1: three or four years. That it's liberals who make judicial
Speaker 1: reputation because most law professors are liberal. That's an unsurprising fact,
Speaker 1: and most law professors who care about the Supreme Court
Speaker 1: spend some of our time making judicial reputations. And we're
Speaker 1: now all going to have to look at Neil Gorsuch,
Speaker 1: Trump appointee and say, wow, pretty good. You know, he
Speaker 1: followed his interpretation of the law to a place that
Speaker 1: did not necessarily match his political preconditions. So liberals will
Speaker 1: now have to be nice to Gorsuch whether they like
Speaker 1: it or not. Conservatives will get over their frustration. Over time,
Speaker 1: Gorsuch's position as the replacement for Justice Scalia as the
Speaker 1: conservative intellectual leader of the court will be consolidated. That's
Speaker 1: my hypothesis that that's his game plan. I want to
Speaker 1: ask you, do you think the conservatives will get beyond
Speaker 1: this opinion and will especially if there are a Religious
Speaker 1: Freedom Restoration Act or other religious exemptions for religious groups. Well,
Speaker 1: I would say the conservative reaction has been very mixed.
Speaker 1: Donald Trump says he's a conservative and he praised the decision.
Speaker 1: Sounds good to me. Mitt Romney not a liberal, he said,
Speaker 1: you know, sounds pretty good. So I would say two things.
Speaker 1: Number one, is it in the interest of American conservative
Speaker 1: politics to demonize lesbian, gay, bisexual, and transgender people. Seventy
Speaker 1: eight of the American people think that sexual orientation and
Speaker 1: gender identity should not be the basis for losing your job.
Speaker 1: So I think the country has really moved beyond that
Speaker 1: including conservatives, and that's the smart thing for conservatives to do.
Speaker 1: On the other hand, I think it's a smart thing
Speaker 1: for conservatives, Noah and liberal to sort of say we
Speaker 1: should have space for religious employers who need to be
Speaker 1: accommodated on these kinds of issues. So I think there's
Speaker 1: gonna be a learning curve for liberals as well. And
Speaker 1: I'm not going to cycleanalyze, but I'm going to say
Speaker 1: this is a smart interpretation of Gorsage, and he's smart.
Speaker 1: Here's what he's doing. The academics, the Feldman's and the
Speaker 1: Eskridges all think and sometimes right, you know, the new
Speaker 1: textualism Scalia, Gorsage, Thomas, it's just simply a shell game.
Speaker 1: It's a cover for smuggling in right wing Republican platform
Speaker 1: views into statutes in the Constitution. Just as gors I
Speaker 1: think his crusade is no, I am setting forth a
Speaker 1: rule of law methodology which will be neutral and which
Speaker 1: will actually make the country better. Now, Eskridge and Feldman
Speaker 1: keeps saying you cannot have a rule of law methodology
Speaker 1: which reaches results that you want to reach and then
Speaker 1: bends the methodology to reach them. That's not a methodology.
Speaker 1: That's an ideological position. Gorsage is saying, I'm not going
Speaker 1: to be predictable except methodologically predictable. I'm going to be consistent, surprised.
Speaker 1: I'm gonna be consistent, and that means that you can't
Speaker 1: count on me based on ideology. So bravo Neil Gorsich.
Speaker 1: Last question, Bill, what's left for the legal wing of
Speaker 1: the LGBTQ rights movement? Now? Marriage rights established, legal equality
Speaker 1: under the statute established. Yes, there will be some fights
Speaker 1: over just how much religious liberty exemptions must exist, but
Speaker 1: that's sort of after the fact. You've won the battle.
Speaker 1: That's some minor negotiation over the terms of your victory.
Speaker 1: For the brilliant young LGBTQ lawyer who are out there,
Speaker 1: ready to be at the frontlines, what is the issue
Speaker 1: that they will be working on for the rest of
Speaker 1: their careers or should they redirect themselves to racial injustice
Speaker 1: or other topics where sadly we've made very very little
Speaker 1: systematic progress relative to what's happened in the LGBTQ context.
Speaker 1: Now a great question. I would not pose it as
Speaker 1: either or. Racial justice overlaps enormously with lgbt justice. The
Speaker 1: people in my community. Who suffer the most tend to
Speaker 1: be LGBTQ, people who are people of color, people without resources,
Speaker 1: people who are most gender bending, all of those features,
Speaker 1: and they are subject to violence. They're subject to discrimination
Speaker 1: and education. They're subject to discrimination public accommodations in housing
Speaker 1: for the poor. They're subject to harassment and bullying in schools.
Speaker 1: So most LGBTQ discrimination occurs not for abstract reasons, but
Speaker 1: because vulnerable people are physically and emotionally attacked and there's
Speaker 1: no one there to stand up for them. And Glad
Speaker 1: the Game Lesbian Advocates of Boston, which was the hero
Speaker 1: in the marriage cases, you know, I talked to Glad
Speaker 1: and I'd say, well, what are you all doing? And
Speaker 1: Glad says, there is as much discrimination and violence as
Speaker 1: there ever has been, and these people do not have
Speaker 1: lawyers if we don't come in and try to protect them.
Speaker 1: So yes, I think you're doing God's mission to continue
Speaker 1: to protect the vulnerable, and I think that ought to
Speaker 1: be the mission going forward, to get statutory and regulatory
Speaker 1: protections for those people. You know, I want to thank
Speaker 1: you not only for your clear analysis and your willingness
Speaker 1: to talk about ideas and play with them, but also
Speaker 1: for your extraordinary work that contributed to the outcome here,
Speaker 1: and for your long dedication to the tin topics of
Speaker 1: LGPTQ rights and statutory interpretation, which magically and perfectly came together.
Speaker 1: Thank you so much. Thank you, Noah. It was a
Speaker 1: real pleasure. Well there you have it. A hugely important
Speaker 1: day in the history of the game transgender rights movements
Speaker 1: in the United States, as explained and described by an
Speaker 1: expert who has been at the heart of the process.
Speaker 1: On top of that, we delved into the usually arcane
Speaker 1: topic of how you should go about interpreting a statute,
Speaker 1: and the debate between textualism, which is now the official
Speaker 1: orthodox doctrine of just about the entire Supreme Court, and
Speaker 1: the alternative view, according to which we should do more
Speaker 1: than just look at the words of the statute. Where
Speaker 1: we are now is that all of the opinions issued
Speaker 1: by the Supreme Court majority and descent insist that you
Speaker 1: should only interpret the Constitution according to its text. But
Speaker 1: Bill Eskridge, not giving up the fight, claims that what's
Speaker 1: really going on is that other factors are still in play.
Speaker 1: We're going to continue to watch this issue as further
Speaker 1: debates emerge about exemptions from civil rights law on the
Speaker 1: basis of religion when it comes to discrimination against gay, lesbian,
Speaker 1: and transgender people. And maybe, just maybe, someday we'll come
Speaker 1: back to the topic of statutory interpretation. Until the next
Speaker 1: time I speak to you, be careful, be safe, and
Speaker 1: be well. Deep background is brought to you by Pushkin Industries.
Speaker 1: Our producer is Lydia Jane Cott, with mastering by Jason
Speaker 1: Gambrell and Martin Gonzalez. Our showrunner is Sophie mckibbon. Our
Speaker 1: theme music is composed by Luis GERA special thanks to
Speaker 1: the Pushkin Brass, Malcolm Gladwell, Jacob Weisberg, and Mia Lobel.
Speaker 1: I'm Noah Feldman. I also write a regular column for
Speaker 1: Bloomberg Opinion, which you can find at bloomberg dot com
Speaker 1: slash Feldman. To discover Bloomberg's original slate of podcasts, go
Speaker 1: to Bloomberg dot com slash Podcasts. And one last thing.
Speaker 1: I just wrote a book called The Arab Winter, a Tragedy.
Speaker 1: I would be delighted if you checked it out. If
Speaker 1: you liked what you heard today, please write a review
Speaker 1: or tell a friend. You can always let me know
Speaker 1: what you think. On Twitter, my handle is Noah R. Feldman.
Speaker 1: This is deep background