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In Bostock v. Clayton, the Supreme court decided that discrimination against gay employees violates Title VII of the Civil Rights Act of 1964. (The case also applies to trans employees, but the logic is parallel, so this discussion will refer only to homosexuals.) I am happy with the decision reached in the case, but I do not believe Justice Gorsuch’s opinion adequately makes the case for that decision. And, although Bostock may prove to be as important as Griswold v. Connecticut — even Justice Gorsuch calls it an “elephant” — I was saddened that not one other justice saw fit to offer a concurring opinion. Justice Kavanaugh felt moved to write his own dissent, but the Court’s liberals declined to offer a better case for the result than Justice Gorsuch’s wordplay. Maybe they were content to take the win, and maybe they didn’t want to rock the boat. But they may come to regret their silence.
Writing for the Court, Justice Gorsuch applies the “but for” test used in other cases where membership in a protected class was not the sole or primary reason for an action challenged under Title VII. Applying that test, Justice Gorsuch reasons that if an employer does not fire women who prefer men, but does fire a man who prefers men, the employer discriminates against each such man “because of [his] sex.” As Justice Gorsuch wrote (p. 9) “if changing the employee’s sex would have…