Bostock and short summers

by Curt Bentley

I’m sure all of us have had the experience of revisiting a place we knew well in our youth and being surprised at how small it seemed.  Or perhaps we’ve experienced the phenomenon of time seemingly flying by as we age — those endless summers of our childhood seem more like long weekends of yesteryear.

Of course, it’s not place and time that have changed, it’s our perspective that has shifted.  A childhood summer that comprised a large fraction of our entire existence to that point seemed endless; as the years pass, it comprises a smaller portion of our total experience and time seems to speed up accordingly.

But we don’t generally perform this analysis in order to understand of differing perceptions.  The way we experience things seems perfectly natural to us, our perspective usually shifts gradually, almost imperceptibly.  One day, we look around, taking in our current perspective, and not only are things different than they once were, but it seems impossible to imagine things any other way.

And all this takes me, somewhat awkwardly, to the United States Supreme Court and Bostock v. Clayton County.

The conservative majority Trump Administration Supreme Court hands down a victory for LGBTQIA+ (sorry if I missed the latest approved acronym)!  What happened here?! How can a question that once seemed so divisive and controversial be dismissed almost breezily by the second coming of Antonin Scalia?!  Maybe Gorsuch isn’t Scalia 2.0 — perhaps he’s Souter 2.0? Have the conservatives suddenly gotten (or lost) religion?  By interpreting sexual orientation into the Civil Rights Act of 1964, have they abandoned originalism and adopted living constitutionalism?

I think the explanation is actually much simpler than any of these questions would suggest.  I don’t think it has much at all to do with judicial philosophy.  I think this decision is 95% explained by our collective perspective shift on sexual orientation, and perhaps 5% explained by judicial philosophy.

Let me explain what I mean.

In his opinion, Justice Gorsuch sets out the following hypothetical:

Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause of his discharge. 

This likely seems self-evident to you.  It did to Justice Gorsuch.  But consider the assumptions that likely underlie — even though not necessarily compel — this conclusion.  Perhaps the most significant assumption is that sexual orientation is not a choice, not a disease to be treated, but an innate, personal characteristic.  Assumption number two is the complete absence of any countervailing societal harm consideration.  Ten years ago, these assumptions were anything but self-evident to a majority of Americans.  Fifteen years ago, a majority of Americans would likely have disagreed with these assumptions.  Today, they barely merit discussion because they are so widely accepted.

Sure, the straightforward statutory anti-discrimination analysis has always been there, for any judge to pick up and use, but it’s been complicated by assumptions that suggested that discrimination based on sexual orientation was categorically different than discrimination based on sex.  These assumptions are no longer widely held, and, among certain demographics, no longer held at all.

And when we all — or at least the vast majority of us — arrive at the same foundational conclusion, something that was once so divisive can seem stupendously uncontroversial and obvious, even to those who disagree as to judicial philosophy!

It was much less a Supreme Court that switched course yesterday as opposed to a society that has switched course over the past decade. The societal perspective shift preceded the legal shift, not the other way around.

And this is as it should be.

Lost amidst all the battles over constitutional interpretation and judicial philosophy, over the conflict between originalism and living constitutionalism, is the fact that much more important than legal theory and judicial philosophy is the perspective from which one approaches a judicial decision.

This is all I have to say about Bostock, but I want to offer a few general words about perspectives, premises, and understanding.

One of the perceptive lines in Atlas Shrugged (a book that, as a general matter, I detest), is “check your premises.”  The idea is that differing conclusions derive principally from different starting places.  What divides us far more than logic, science, and philosophy are the foundational assumptions that each of us holds — the places from where we begin our value judgments, deductive reasoning, and decision making.  It’s not that I can reason and that you can’t that causes us to disagree; it’s that we start from such fundamentally different places.  If we can reconcile — or even at least understand — those differences, we can begin to understand and appreciate differing viewpoints, rather than shaking our head and wondering how someone else can possibly be so stupid.

These foundational perspectives, premises, and viewpoints are the result of lived experience.  Appreciating different foundational assumptions requires work–but it doesn’t mean we shouldn’t try.

One of the things I hate most about our current political “discourse” is the tendency to wield the fact of different lived experiences as a weapon to silence opinions.  I think nothing good comes of this.  It discourages people from trying to understand each other and from trying to identify commonalities.  We end up so hyperfocused on differences that it obscures our common humanity.

If one side is doing all the listening and the other side is doing all the talking, both sides are poorer for the exchange.

I hope we can listen to each other, but also talk to each other in a meaningful way. That will open the door for convergence of perspective — at least as to the very most important points.  I hope we realize that the assumptions we share about life, work, love, and human dignity are much more significant than the assumptions we don’t share.  And I hope that we realize that the points on which we continue to disagree are based much more on assumptions resulting from different life experiences than personal animus or character failings.

If we can understand and accept that much about each other, I think we’ll have come a long way.

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