Robin Fretwell Wilson is the Roger and Stephany Joslin Professor of Law and director of the Program in Family Law and Policy and the Epstein Health Law and Policy Program at the University of Illinois College of Law. Wilson, who in 2015 helped Utah state lawmakers pass anti-discrimination legislation that balances religious liberty and LGBT rights, spoke with News Bureau business and law editor Phil Ciciora about Supreme Court nominee Neil Gorsuch.
How closely will Supreme Court nominee Neil Gorsuch hew to the late Justice Antonin Scalia?
Like Scalia, Gorsuch is a textualist, meaning that he strictly interprets the text of a law and all but ignores legislative intent. Gorsuch is similar to Scalia in that regard, but there are places where he will not map directly to Scalia.
In particular, I think this question of deference to federal agencies may be very impactful, perhaps more than any other thing that has received attention surrounding Gorsuch. When Congress writes a statute, it cannot account for every subsidiary question, especially with all the complex issues we have today. There are gaps and ambiguities to most every law. The guiding decision that allows agencies to fill in those gaps grew out of a 1984 case in which the Chevron corporation sued the Natural Resources Defense Council. The Chevron precedent articulates the idea that courts should give deference to agency interpretations when gaps arise, but not when the statute itself is unambiguous on a point.
So the basic question is a very academic one: Who decides what the law means?
What effect might Gorsuch have on gay rights?
In the gay rights context, there is one question on which administrative agencies under President Obama did a lot of interpretative work in the last two years: namely, what is the meaning of the word “sex” in two of our foundational civil rights acts, Title VII of the Civil Rights Act of 1964 and Title IX of the Education Amendments Act of 1972?
Title VII bans discrimination in employment on the basis of sex, and Title IX generally bans discrimination in educational opportunities on the basis of sex. Both of those laws have the magic word “sex” in them, which has been interpreted by federal agencies as meaning sexual orientation, gender identity or both. A narrower reading, taken by some courts, would read sex as one’s biological sex or the gender listed on one’s birth certificate.
Assuming the statutes are “ambiguous,” this kind of gap-filling is appropriately committed to agencies under the Chevron precedent.
In Gutierrez-Brizuela v. Lynch, a case in the U.S. Court of Appeals for the 10th Circuit that garnered a lot of attention last year, Judge Gorsuch questioned whether agencies’ interpretation should receive such deference and asked in particular whether an agency’s interpretation should take precedence over a prior decision by a court interpreting the statute – which sometimes occurs, as it did with Title VII, before the agency articulates its position.
In the school context, this issue is already on its way to the high court, which will hear oral arguments in Gloucester County School Board v. G.G. on March 28. Front and center in the case is the question “Does ‘sex’ only mean biology?” I have a new paper that discusses protections for LGBT persons on just this issue.
How will “deference” factor into that case?
If you believe in Chevron deference, it puts a thumb on the scale for a decision that was made in the Obama administration that schools cannot discriminate on the basis of one’s gender identity – a decision that, as of this writing, is carrying forward under the Trump administration. It would also mean that employers cannot fire or refuse to hire people because they are gay or transgender.
If you credit Gorsuch’s view of deference, which is that the courts decide these things, then advocates start with more of a blank slate, so an agency would not receive the weight of deference behind its positions.
And that may well matter. The Hobby Lobby-ACA debate hinged upon what the word “person” even meant. And in that case, Justice Alito defaulted to the dictionary definition of person, which included a closely held corporation, and not the agency’s interpretation, which would have limited persons to individuals and religious nonprofits.
In close cases, this fairly obscure matter of administrative law can be outcome-determinative. It matters. And it’s not just on LGBT issues where this is relevant. In health care law and environmental law in particular, so much policy depends on agency interpretations and regulations, where subtle filling of gaps can have considerable reverberations.
President Trump’s litmus test for a Supreme Court justice was someone who would “strictly construe the Constitution and not legislate from the bench.” Does Gorsuch fit that profile?
He does. If you are a group trying to leverage the judicial system to get things you are not able to get out of Congress or statehouses, then you would most likely see a Justice Gorsuch as problematic. I think he’s going to be a state’s rights judge, which means the courts as an avenue of attack for groups pressing constitutional claims may be closing or at least greatly narrowing. I think a Justice Gorsuch on the Supreme Court is going to want to see these issues worked out politically at the state level first before the high court intervenes.
It is worth noting that Justice Scalia, who authored the majority decision in Employment Division v. Smith, the famous peyote case, showed a healthy skepticism for claims grounded in the U.S. Constitution. In Smith, the court rejected the claim that the government must show a compelling interest when impinging on religious beliefs or practices, concluding that strict scrutiny would make every believer a “law unto himself.”
But Scalia also emphasized that “a society that believes in (the value of) religious belief can be expected to be solicitous of that value in its legislation.” Like Justice Scalia, one might expect a Justice Gorsuch to look to legislatures to do the complicated weighing of competing interests that constitutional litigation does not, and cannot, produce.