Gorsuch the Pharisee and Textualist Tomfoolery

The Supreme Court’s recent opinion that the 1964 Civil Rights Act’s prohibition against “sex” discrimination offers protections for LGBT identity groups has raised eyebrows and ire. But it’s not surprising: The decision’s author, Justice Neil Gorsuch, long ago made clear that he operates from false premises. One of these is what’s called “textualism,” which is not at all the same as originalism. Conservatives also err, in my view, in claiming that Gorsuch has “redefined ‘sex.’” In reality, his ruling is instead based on a certain rationalization. Harvard law professor Noah Feldman, while essentially applauding Gorsuch’s lawyer-craft, explained it well. “As applied to Title VII, the classic 1964 anti-discrimination law, the textualist idea is very simple,” he wrote June 15. “The law prohibits discrimination ‘on the basis of sex.’ To discriminate against somebody...(Read Full Article)
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