Why have Congress?
This past week, the U.S. Supreme Court handed down its decision in Bostock v. Clayton County. Hailed as a landmark decision for LGBT Americans, the 6-3 opinion written by Associate Justice Neil Gorsuch concludes that the use of the word "sex" in Title VII of the 1964 Civil Rights Act protects gay and transgender people from workplace discrimination.
This seems like a straightforward question with an easy answer: Should gay and transgender people be discriminated against in hiring and firing decisions? Most would say no. Why should a bank teller be fired for being gay? Why shouldn't an accounting firm hire a qualified, competent CPA without regard to how he or she identifies?
But no sooner was the decision announced than the questions exploded: Does this ruling apply to schools? Bathrooms? Health clubs? Women's shelters? Prisons? What about churches, parochial schools and other religiously affiliated organizations? How does Bostock affect the Hosanna-Tabor case, a 2012 decision in which the Supreme Court unanimously held that religiously affiliated organizations are protected by a "ministerial exception" when making hiring and firing decisions? What about the cases being litigated under Title IX relating to women's participation in sports (among other issues)?
These questions -- and countless others -- are not answered in or by the Bostock case.
Critics of the Bostock decision -- including the three dissenting justices, Samuel Alito, Brett Kavanaugh and Clarence Thomas -- argue that it is not the court's job to rewrite legislation but only to interpret it. Gorsuch says that's precisely what the court did; it interpreted the meaning of the word "sex."
Even if you're inclined to agree with Gorsuch that the court interpreted what the statute means, there's still one important caveat: in this case . This should drive home a very important difference between case law and legislation.
It's not simply a constitutional debate over separation of powers, or a philosophical question about governance by elected representatives -- although those are important issues. There are also practical concerns with this method of crafting the laws that govern our daily lives.
When legislation is drafted by Congress or state legislatures, it goes through committee hearings, opportunities for public comment, countless drafts and even multiple versions introduced in the House and Senate (at least for those states with a bicameral legislature). Legislators take months -- often years -- to consider the implications and execution of the legislation they intend to pass. They ask questions of their constituents, of experts and thought leaders in the field. They put in explanations, conditions and exceptions in response to the input and feedback they have received as the legislation moves through the process of enactment.
What is passed is never perfect. But it is typically comprehensive. (This is why statutes can run hundreds or even thousands of pages.) While legislators cannot possibly anticipate every question or future application of the law, those that they or others have thought of will be incorporated into the statutory text.
Not so with case law.