The Trump Subpoena Cases: More Losses Than Wins for the President, but No One Is Going to See His Tax Returns Soon

This column originally appeared in the George Washington Law Review.

From the perspective of the public, they want to know who won and who lost in the two cases decided by the Supreme Court on July 9^th, both by votes of 7-2, and both written by Chief Justice John Roberts. The answer depends on whether you look at the results in the short term, an intermediate horizon, or the long run. But first, a summary of both rulings in Trump v Vance¹ and Trump v. Mazars USA, LLP.²

Until he became President, Donald Trump resided and filed tax returns for his family and the Trump Organization in New York. In Vance, a grand jury sitting in Manhattan issued a subpoena for a wide range of financial records that might bear on whether Mr. Trump or his organization committed tax fraud, in particular whether payments shortly before the 2016 election to two women with whom then private citizen Trump had extra-marital relations were improperly deducted on either his personal or business tax returns. Trump claimed that New York could not investigate a sitting President at all, and every justice except Clarence Thomas agreed that the President had no such immunity, and, with the exception of Justice Samuel Alito, that no special rules make it more difficult to subpoena private records of the President than anyone else.

The Court did not order the records turned over immediately to the grand jury because, as the appeals court recognized, Trump had some sub-constitutional defenses that had not been decided by the district court. These include whether the subpoena was too broad or whether any of the records are privileged. That litigation will take a while to conclude, but it is unlikely to reach the Supreme court again. On the other hand, the grand jury is unlikely to see any, and surely not most, of these records before Election Day, with public access way down the road. Thus, if the President’s main goal was—as it seems to be more generally—to avoid all bad news until after November 3^rd, he is a winner on that score. But if he is re-elected, he will be back in court if New York tries to indict him, let alone take him to trial as a sitting President. In the long run, this is a win for state prosecutors and also for future independent counsels like Robert Mueller if a President seeks to block even an investigation as Donald Trump did here.

The House subpoenas did not fare as well, at least as issued. They had been issued by three separate committees, two of which wanted the information to be able to legislate on the general subject of money laundering and the other on the subject of conflicts of interest, broadly understood. Like the New York grand jury subpoena, they were very broad and directed to companies that had the financial records of the President and his businesses. The President claimed total immunity, and the House argued that judicial review should be very minimal; the Court found that the answer lay somewhere in the middle. It rejected the President’s claim because that would have seriously undercut the ability of the House to legislate. As for the House position that this subpoena was not different from any other, the Court observed:

“We would have to be “blind” not to see what “[a]ll others can see and understand”: that the subpoenas do not represent a run-of-the mill legislative effort but rather a clash between rival branches of government over records of intense political interest for all involved.”³

The Court’s response, which Justice Alito criticized as vague and too favorable to the Congress, was to create a “balanced” four-part test that imposed significant, but by no means impossible burdens to enforce a congressional subpoena.⁴ Those requirements include:

“First, courts should carefully assess whether the asserted legislative purpose warrants the significant step of involving the President and his papers . . .
Second, to narrow the scope of possible conflict between the branches, courts should insist on a subpoena no broader than reasonably necessary to support Congress’s legislative objective. . .
Third, courts should be attentive to the nature of the evidence offered by Congress to establish that a subpoena advances a valid legislative purpose. . .
Fourth, courts should be careful to assess the burdens imposed on the President by a subpoena.”⁵

These are not the only relevant considerations because “one case every two centuries does not afford enough experience for an exhaustive list.”⁶

Although the Court did not hold that the congressional subpoenas here failed that test, that is almost certainly what the lower courts should conclude on remand. In essence, the Court told the House to go back and do a better job if it wanted to enforce these subpoenas. Although the contexts are different, the Chief Justice’s insistence here in requiring the House to follow what some would call legal niceties is reminiscent of his 5-4 rulings in the census case in 2019⁷ and the DACA case this year⁸ when he set aside agency actions of the Trump administration for failing to follow the basic requirements of administrative law.

In the short run, this is a loss for the House. It has to go back almost to square one, and it will surely not get any of these records before Inauguration Day next January. But if it still wants to try to get some (but surely not all) of these records, it can continue the fight (although it may have to re-issue the subpoenas) and seems likely to prevail on the most significant records, whether or not Donald Trump is still President, provided that it is willing to put together a coherent set of reasons why it wants and needs these documents. Even more significant is that Congress now has a roadmap that it can follow when it wants to obtain documents from the public at large, as well as the executive branch. Although the ruling does not deal with official as opposed to private records, it is hard to imagine that if Congress meets the four-part test set forth above, it will not be able to gain access to records that it needs from federal agencies. And with the right to go to court, it will be in a much better bargaining position with the President than it has been to date.

In some ways, the Mazars majority opinion is most interesting because it mentioned “impeachment” only once in passing,⁹ as did Justice Alito.¹⁰ By contrast, Justice Thomas’ dissent was based on his reading of the Constitution under which subpoenas can only be used by Congress in connection with an impeachment, so that if the House had wanted these records, it would have had to announce that it was doing so for that purpose, which Justice Thomas said was more than a “mere formality.”¹¹ The conclusion that I draw is that enforcing a subpoena in connection with impeachment by the House, or trial by the Senate, will be standard and subject to requirements no more strenuous than the four-part test announced in this case—and quite possibly less. That is a major victory for Congress, not for now, but in its long running battle with the President.

So, if you are keeping score, the President won the short-term battle to keep his tax returns and other information away from those who want to see them. But in the long run Congress has been armed with the tools it needs to gather the information that it wants to carry out its legislative responsibilities, although it will have to do a better job of justifying what it wants and why it needs it.

Dean Morrison is the Lerner Family Associate Dean for Public Interest Law at The George Washington University Law School, where he teaches constitutional law and civil procedure.

Trump v. Vance, No. 19-635 (U.S. July 9, 2020).
Trump v. Mazars USA, LLP, No. 19-175 (U.S. July 9, 2020).
Mazars, slip op.at 16-17 (quoting Child Labor Tax Case, 259 U.S. 20, 37 (1922)).
Id. at 18.
Id. at 19–20.
Id. at 20.
139 S. Ct. 2551 (2019).
140 S. Ct. 1891 (2020).
Mazars, slip op. at 6.
Id. at 2 (Alito, J., dissenting).
Id. at 21 (Thomas, J., dissenting).

Recommended Citation
Alan B. Morrison, Response, The Bottom Lines in the Trump Subpoena Cases: More Losses Than Wins for the President, but No One Is Going to See His Tax Returns Soon, Geo. Wash. L. Rev. On the Docket (July 9, 2020), https://www.gwlr.org/the-bottom-lines-in-the-trump-subpoena-cases-more-losses-than-wins-for-the-president-but-no-one-is-going-to-see-his-tax-returns-soon/.

Judicial Legitimacy and the Future of Congress's Impeachment Power: The Mueller Report Goes to Court

Last Thursday, the Supreme Court granted certiorari in Department of Justice v. House Committee on the Judiciary, which presents the issue of the Judiciary Committee's demand for grand jury material underlying the Mueller Report. Federal law establishes a general rule that grand jury material must be kept secret. Federal Rule of Criminal Procedure 6(e)(3)(E)(i) creates an exception where the material is sought in connection with a "judicial proceeding." The House Judiciary Committee requested access to the grand jury material underlying the Mueller Report in connection with its impeachment inquiry. The Justice Department denied the request on the grounds that impeachment is not a "judicial proceeding." The House filed a lawsuit to enforce its demand for the material. The D.C. District Court ruled in favor of the House, issuing a lengthy opinion explaining that the founders understood impeachment to be a judicial proceeding, that the Constitution's text embraces that understanding, and that impeachment in fact functions as a judicial proceeding. The D.C. Circuit affirmed the District Court, over a dissent by Judge Neomi Rao.

The Justice Department's argument is weak, bordering on frivolous. To be sure, the substance of impeachment -- the issue of what are impeachable "high crimes and misdemeanors" -- involves political rather than legal judgment. But the Constitution's text plainly regards the impeachment process as judicial. The House's authority to indict is and always has been understood to be the equivalent of a grand jury's authority to indict. The Senate's role is expressly denominated as being to "try all impeachments" and provides that "when the President of the United States is being tried, the Chief Justice shall preside." If indictment and trial are not "judicial proceedings," I honestly have no idea what a judicial proceeding is. More to the point, the framers would have had no idea either. Remarkably, this was precisely the position of the President's lawyers during the impeachment. From the premise that impeachment is a judicial proceeding, they argued the non sequitur that the protections of an ordinary criminal proceeding must be observed.

It is, of course, likely that the drafters of the Federal Rules of Criminal Procedure were not thinking about impeachments when they promulgated the phrase "judicial proceeding." After all, the paradigmatic application for the rules is ordinary criminal proceedings in federal courts. But even if the Federal Rules were not drafted with impeachment in mind (if, in fact that is so) it does not follow that "judicial proceedings" do not include impeachments. Rather, it becomes a question of statutory interpretation and the Supreme Court's ruling in this Term's Title VII cases, Bostock v. Clayton County, Georgia, made clear what the approach should be to questions of statutory interpretation when it held that just because the drafters of Title VII did not contemplate employment protections for LGBTQ persons does not mean the law lacks those protections. Indeed, this is the essence of textualism. If the words of a law comprehend a thing (whether it is LGBTQ protection or impeachments), then the law includes those things regardless of what its authors expected.

The issue in this case is not an interesting one. What is interesting is the question of why the Court granted certiorari. I do not profess to know the answer, but the obvious possibilities are all disturbing. Perhaps the Court simply wants to affirm the D.C. Circuit's obviously correct disposition of the case. But then, why grant certiorari? The Supreme Court only takes cases where it has something important to say and a simple affirmance won't serve that purpose. Moreover, the grant of certiorari will have the effect of ensuring that the information in the grand jury materials will not be available to the House or importantly, to the public, before the next election. That, of course, may be the reason the Court granted certiorari -- to protect the President from such disclosure. But such a move would risk obliterating the Court's legitimacy and, just as importantly, the public's perception of its legitimacy. It is difficult to imagine Chief Justice Roberts, who has so assiduously attended to the perception of the Court, sitting idly by as the Court makes such a move. That leaves the possibility that the Court is interested in limiting Congress's ability to demand information even in the context of impeachment. What precisely this might be is anyone's guess and we will have to wait and see. But it leaves me anticipating the imminent decision in the consolidated Mazars cases (the subpoenas for the President's tax returns) with real dread.

Severability, Robocalls, and the Legacy of Marbury v. Madison: Why the Challenge to the ACA Must Fail

Next term, the Supreme Court will be hearing California v. Texas, the latest in the long line of attacks on the Affordable Care Act (“ACA”). Seeking to weaponize the doctrine of severability, Texas, joined by the Trump administration, are urging the Supreme Court to strike down the ACA in its entirety. They claim the ACA’s individual mandate is unconstitutional because, in 2017, Congress reduced the tax payment for failing to comply with the individual mandate to zero. Shockingly, they insist the proper remedy is to strike down the law in its entirety, even though Congress left the ACA in place when it zeroed out the shared responsibility payment. As the Supreme Court wraps up its current term, a pair of rulings make clear that this is not how severability doctrine works. Courts must save, not destroy, partially valid statutes. These rulings make clear that it would be a flagrant violation of settled legal principles to strike down the ACA even if the Court were to wrongly conclude that the mandate is now unconstitutional.

Earlier this week, in Barr v. American Association of Political Consultants, the Supreme Court struck down part of a federal statute prohibiting robocalls, concluding that Congress violated the First Amendment when it amended the statute to permit robocalls to collect government debts. This introduced an unconstitutional content-based distinction into the law. But rather than striking down the statute in its entirety, seven Justices agreed that the remedy was to sever the unconstitutional government-debt exception, leaving the robocall ban in place.

The lead opinion, written by Justice Brett Kavanaugh, made clear that courts must “presume[] that an unconstitutional provision in a law is severable from the remainder of the law or statute.” This “keep[s] courts from unnecessarily disturbing a law apart from invalidating the provision that is unconstitutional.” While courts must ensure that the remainder of the statute is “capable of functioning independently,” he noted, “it is fairly unusual for the remainder of a law not to be operative.”

Justice Kavanaugh traced these basic principles of judicial restraint all the way back to Marbury v. Madison, insisting that, for centuries, the Court’s severability doctrine has “reflect[ed] a decisive preference for surgical severance rather than wholesale destruction, even in the absence of a severability clause.” Justice Kavanaugh continued, “Constitutional litigation is not a game of gotcha against Congress, where litigants can ride a discrete constitutional flaw in a statute to take down the whole, otherwise constitutional statute. If the rule were otherwise, the entire Judiciary Act of 1789 would be invalid as a consequence of Marbury v. Madison.” This is exactly what Texas and the Trump administration are trying to do. Justice Kavanaugh’s ruling in Barr shows that throwing out the entire ACA would turn severability doctrine on its head.

The parallels to the upcoming ACA case go even deeper. Barr made clear that when a court strikes down a later-enacted amendment to a constitutionally valid law, it should not strike down the law in its entirety. Rather, the “unconstitutional statutory amendment ‘is a nullity’ and ‘void’ when enacted, and for that reason has no effect on the original statute.” Justice Kavanaugh laid out a number of the Court’s precedents applying severability doctrine in the context of unconstitutional amendments to a law. As these cases teach, if a statutory amendment has a constitutional flaw, courts should not use that as an excuse to invalidate the law in its entirety. The implications for California v. Texas are clear: The Supreme Court has no basis for striking down the entire ACA.

Barr is not the only important severability precedent of late. In Seila Law v. Consumer Finance Protection Bureau, the Supreme Court refused to strike down the Dodd-Frank Act in its entirety after holding that the CFPB’s leadership structure violated separation of powers. In an opinion by Chief Justice John Roberts, the majority refused to “junk our settled severability doctrine,” recognizing its duty to save as much of the statute as possible. As in Barr, the Supreme Court recognized that it was required to “use a scalpel rather than a bulldozer in curing the constitutional defect we identify today.”

The severability question in California v. Texas is an easy one. It should be even easier now that the conservative wing of the Supreme Court has reaffirmed that the whole point of severability doctrine is to save, not destroy, partially valid statutes. The Supreme Court should, once again, reject the ACA’s opponents’ efforts to have the Court strike down the ACA.

For more on severability please read David Gans’ ACS Issue Brief To Save and Not to Destroy: Severability, Judicial Restraint, and the Affordable Care Act.

Five Thoughts on Espinoza

No one should have been surprised by the Supreme Court’s 5-4 decision yesterday in Espinoza. It represented the continuation of an ongoing constitutional program, launched years ago by members of the majority, to weaken the Establishment Clause and strengthen the Free Exercise Clause. Here are five initial takeaways.

First, the Court has now decisively moved from the rule that school choice programs are permitted by the Establishment Clause to include religious schools to a rule that these tax programs are required by the Free Exercise Clause to include religious schools whenever they benefit private schools. After the Court ruled in 2002 that school voucher programs could include religious schools, several governments established voucher programs that supported only secular schools. Courts upheld these programs, reasoning that the “play between the joints” between the two religion clauses gives governments discretion to adopt a vision of separationism that is not required by nonestablishment, just as they can adopt a vision of religious liberty that’s not required by free exercise. I provided theoretical support for these decisions in an article in the Penn Law Review. But in Espinoza the Supreme Court has constrained governmental discretion as a matter of federal constitutional law—taking the matter out of the hands of states and localities, and out of the hands of voters and the officials they elect.

Second, Chief Justice Roberts, writing for the majority, purports to constrain the majority’s holding in Espinoza by arguing that it only applies to government support programs that exclude religious entities, not to exclusions of religious uses. (This distinction between status and conduct was foreshadowed in footnote 3 of Trinity Lutheran, a 2017 decision, where the distinction seemed to have been required by Justice Kagan and was pointedly not joined by Justices Gorsuch and Thomas.) But in Espinoza, Roberts is careful to avoid committing the Court to the status/conduct distinction. In his dissent, Justice Breyer argues that excluding religious schools from funding programs is tantamount to excluding religious practices, since many or most parochial and sectarian schools include theological instruction, prayer practices, and even worship services. Roberts rejects this view, holding that Montana’s exclusion of religious schools from its school choice program “discriminated” against them on the basis of status, not sectarian activity. “None of this is meant to suggest,” Roberts nevertheless insists, “that we agree with [Montana] that some lesser degree of scrutiny applies to discrimination against religious uses of government aid.”

Roberts’ reluctance is understandable, because the status/use distinction is unstable. Imagine that, after Espinoza, a government adopted a school choice program that prohibited funding for core sectarian practices like theological instruction, prayer, or worship. Would such a program really escape a presumption of unconstitutionality? The Court would likely reason that there is no tradition against funding for religious instruction, just as it found in Espinoza that there was no founding-era prohibition on funding religious schools. (Never mind that this way of telling the story privileges a time when states had established churches and ignores the nineteenth century, when Americans decisively rejected those establishments, when public schools came into existence, and when Reconstruction amendments to the Constitution incorporated the religion clauses against the states.) The Roberts Court would then overrule Locke v. Davey, reasoning that its legal foundations have been undermined by subsequent legal developments—chiefly, Trinity Lutheran and Espinoza. Any earlier attempt to forestall a rule that school choice programs are constitutionally obligated to direct tax support to core religious uses has failed.

Technically, Espinoza concerns only “indirect aid”—government support that flows to religion only via the independent choices of private citizens. But my third point is that the decision has implications for direct aid, as well. Under current law, the constitutional rule is that tax dollars, and other forms of public aid, cannot flow directly to religious practices. But Roberts Court is moving unmistakably toward a different rule, namely that tax dollars may flow directly to prayer and worship, so long as the aid is neutral among religions, and between religion and nonreligion, and so long as the aid is nonreligious in content. In Espinoza, Roberts points toward this outcome in dicta when he says “the Establishment Clause is not offended when religious observers and organizations benefit from neutral government programs.” While it’s unclear whether Espinoza itself is the marker, or whether we should point instead to Congress’s decision to direct hundreds of millions of dollars toward clergy salaries in the PPP program, it is clear that the era of American separationism has ended. The United States is headed for a system much more like the one in Europe, where religious schools can be funded alongside secular ones, and where even congregations themselves can receive tax support.

Fourth, the Espinoza decision creates tensions with other areas of constitutional law. For some time, it’s been the rule that while government may not unduly burden the exercise of fundamental liberties, it need not support or subsidize them. So government cannot censor speech, but it is not constitutionally compelled to subsidize the expression of private speakers. And, crucially, the government is not obligated to support the ability to terminate a pregnancy, even though reproductive freedom is a constitutional right. An implication of Espinoza, however, is that government is actually compelled to subsidize free exercise whenever it supports comparable secular activity. Otherwise, it’s engaged in “discrimination.” Now, members of the majority will argue that the Free Exercise Clause contains an equality requirement that’s missing from due process doctrine. Yet reproductive freedom supports the equal citizenship status of women in an obvious way. While I have concerns about the rule that fundamental rights need not be subsidized, I find it hard to see how that rule is being applied coherently across constitutional law.

Finally, Espinoza deepens difficulties surrounding the specialness of religion in constitutional law. If Chief Justice Roberts is right that free exercise “protects religious observers against unequal treatment and against laws that impose special disabilities on the basis of religious status,” then the principle of nonestablishment is itself in constitutional question. It suggests that religion can never be singled out for special burdens, or even denied support, without triggering a presumption of unconstitutionality. But of course that is what the Establishment Clause does—it insists that there are special difficulties with government support for commitments of conscience. Not only has the Court narrowed the “play in the joints” between the religion clauses, in other words, but it has created tensions between the principles driving the clauses themselves.

The United States has long been seen as exceptional among constitutional democracies—exceptionally committed to the separation of church and state, and exceptionally religious in its people’s private practices. It’s far from clear that this description is correct, that these two characteristics are causally related, or that the strictest forms of separationism have ever been workable or attractive. But regardless, the country now is moving into a new constitutional arrangement, one that carries dangers of religious preferentialism, government entanglement in religious affairs, and political conflict along religious lines. We should begin the work of adjusting to that new reality.

New Brain Science Shows Future Dangerousness Cannot Be Predicted in Defendants Under 21

By Dr. Adriana Galván, Dr. Terrie Moffitt, and Dr. Russell Poldrack

Almost three decades have passed since 1993, when Billy Joe Wardlow, who was 18 years old with no prior history of violence conviction, killed Carl Cole in a burglary gone wrong. On July 8, Texas plans to execute him unless the United States Supreme Court intervenes. When Billy went to trial in 1995, Texas law directed that the jury could only sentence a person to death if they did something that we now know to be scientifically impossible: determine that Billy would forever pose a danger to others, even if he never stepped foot outside prison walls.

But in light of what science has now shown about the developing brain, there is a broad consensus in the scientific community that, at the present time, it is impossible to predict whether an 18-year-old‹even one that has committed an act of deadly violence‹is likely to commit acts of violence as a mature adult, or in the words of the Texas statute, pose a ³continuing threat to society.². Therefore, the Texas statute under which Mr. Wardlow was sentenced to death turned on a determination that cannot be made in any objectively reliable or scientific manner.

New technology, and especially brain imaging technology, allows us to study changes in the developing brain, which in turn permits better understanding of the physiological underpinnings for the emotional reactivity and risky decision-making that are characteristic of young people. In particular, our understanding of ³emerging adulthood²‹loosely defined as the teenage years through the early 20s‹has undergone a complete evolution, and there is widespread agreement in the scientific community: the brains of emerging adults are undergoing ongoing maturation in fundamental ways related to emotional regulation, decision-making, and risk-evaluation, even though people in this age range may look (and sometimes act) like adults.

Most importantly for Billy Wardlow is the simple fact that how a person behaves in their teens and early twenties has very limited predictive value for how they will behave once their brain is mature. Almost all adolescents and emerging adults who engage in antisocial or violent conduct desist as a byproduct of the maturation process. Between 25 and 50% of young people who engage in criminal conduct are ³instantaneous desisters,² meaning their first offense is also their last, and the percentage of juvenile offenders who desist from crime by their mid-20s ranges from 85 to 90%, regardless of offense type. Ultimately, of the many young people who engage in crime, no more than 6% are ³lifecourse-persistent offenders² according to co-author of this piece, psychologist Terrie Moffit. And although we can be sure that some young people will remain dangerous, the problem for the criminal-legal system is that there is no way for courts to predict which particular young individuals will fall into that category.

Recent, important neuroimaging studies help explain why. The prefrontal cortex‹an area of the brain associated with reasoning and executive function‹remains developmentally immature until the mid-20s, while at the same time, the brain¹s reward centers are relatively more responsive. Specifically, between early adolescence and emerging adulthood, the ventral striatum within the basal ganglia matures in a way that promotes reward- and sensation-seeking behavior, while developments in the amygdala elevate the brain¹s sensitivity to emotional triggers. At the same time, transformations in the prefrontal cortex and its communication circuitry radically alter the ability of a young person¹s brain to regulate emotions and decision-making. Imaging studies confirm that the development of the function and wiring of the prefrontal cortex develops throughout emerging adulthood, as the brain fine-tunes connections within and between the prefrontal cortex and the basal ganglia.

The results for behavior will be familiar to any parent of a college student: adolescents and emerging adults tend to be more susceptible to emotional reactions and more prone to make impulsive choices‹even when they know better. Some may also be less likely than adults to envision the future and apprehend the consequences of their actions. And importantly, emerging adults are uniquely susceptible to peer influence, and especially when it concerns risky behavior. For these reasons, many types of risky behavior‹for example, binge drinking, criminal conduct, and drug use‹peak in the early- to mid-20s. It is exactly these tendencies that have likely led to noncompliance with pandemic directives and the recent increase in COVID-19 cases among young adults.

What Billy¹s jury in Texas was asked to do in 1995‹predict whether an 18-year-old would be dangerous in the future‹was not possible with any known technology or methodology in existence at the time or available today. It may in fact never be possible, because the human brain is simply not finished growing after 18 years of development. There is no scientific basis from which anyone, the leading scientists in the world included, can predict whether any given adolescent or emerging adult will pose danger years down the road. We hope that the Supreme Court soon recognizes this fact too.

Dr. Adrianna Galván is a Professor of Psychology at the University of California, Los Angeles and the Jeffrey Wenzel Term Chair in Behavioral Neuroscience, and author of ³The Neuroscience of Adolescence² (Cambridge University Press). Dr. Terrie E. Moffitt is Nannerl O. Keohane University Professor of Psychology and Neuroscience at Duke University, and author of ³The Origins of You: How Childhood Shapes Later Life² (Harvard University Press). Dr. Russell Poldrack is the Albert Ray Lang Professor in the Department of Psychology and Professor (by courtesy) of Computer Science at Stanford University and author of ³The New Mind Readers: What Neuroimaging Can and Cannot Reveal about Our Thoughts² (Princeton University Press). Drs. Galván, Moffitt, and Poldrack are signatories to an amicus brief filed in Wardlow¹s case currently pending in the Supreme Court of the United States.

Bostock: A Statutory Super-Precedent for Sex and Gender Minorities

The late Aimee Stephens, Plaintiff in Bostock

The Supreme Court’s 6-3 decision in Bostock v. Clayton County, Georgia found that Title VII’s bar to employment discrimination against an individual “because of such individual’s sex” protects gay men, lesbians, and transgender persons. The Court held that Title VII’s text applies whenever an employer considers the individual’s sex as a motivating factor in deciding to fire or refuse to hire that person. If an employer fires a transgender woman such as the late Aimee Stephens because her sex does not match that assigned at birth, the adverse action is, legally, “because of” her “sex.” Likewise, if an employer fires a gay man such as Gerald Bostock because he dates other men, but would not fire a woman for dating the same men, the adverse action is, legally, because of his male “sex.”

Because the Court’s reasoning was sweeping and normatively powerful, Bostock will be a foundational decision with broad ramifications for a wide array of Americans. Indeed, we expect it to be a super precedent, a judicial landmark debated, celebrated, taught to law students, and interpreted for years to come. There are, however, some likely applications that we can identify right now.

To begin with, employees protected by this ruling are not just lesbians, gay men, and transgender persons, but also other sex and gender minorities. Intersex persons, with both male and female biological markers, ought to enjoy job protections now, as firing them for their biological sex ambiguity would fall under the Court’s rationale that an employer who considers an employee’s sex in firing her/him/them has discriminated against that individual “because of such individual’s sex,” contrary to Title VII.

Participants at the Fourth International Intersex Forum, April 2017

Gender-nonconforming persons—the “effeminate” man, the “macho” woman—are also clearly protected, as the Court had said when it addressed the sex-stereotyping claims of Ann Hopkins 31 years ago. Four plurality Justices and one concurring Justice were in agreement that (as the concurring Justice put it) “failure to conform to [sex] stereotypes” is discrimination because of sex under Title VII. Because Justice Gorsuch’s Bostock opinion cited Price Waterhouse v. Hopkins, and because neither dissenting opinion questioned its authority, we believe that Hopkins’ gender-stereotyping rule is entrenched in Title VII law.

None of the dueling Bostock opinions revealed an awareness of the many nonbinary and genderqueer Americans in schools and workplaces—but in our view, they are likewise protected under Title VII. The Court’s rule that an employer violates Title VII when it “intentionally fires an individual employee based in part on sex” applies to nonbinary persons whose sex identity is neither male nor female, is ambiguous, or is evolving, for the same reason that it applied to Aimee Stephens: the employer is making a sex-based characterization and imposing its norm and a rigid and unwelcome sex identity on the employee.

The Identity Project, photos of our diversity by Sarah Deragon

Ironically, the sex or gender minority that demographers tell us contains the most Americans was completely unmentioned in the dozens of pages of analysis by the three opinions: bisexuals. Bostock is yet another example of what Kenji Yoshino calls bisexual erasure. They get left out of the discussion, and a lot of people don’t even know how to talk about bisexuality. This is an important issue, as bisexual workers deserve fair treatment—yet a 2016 study found they make, on average, more than ten percent less money for comparable work than straight or gay employees.

How will judges apply Bostock to bisexual employees? Employers have argued that the employee’s sex does not matter when she/he/they are attracted to both men and women. But bisexuals are similar to nonbinary persons in having a “sex” identity that defies gender pigeonholing and are like transgender persons when they are penalized for flipping the “sex” of their romantic objects. For many bisexual employees, it is their same-sex attraction that triggers workplace harassment or other penalties.

The legal consequences of Bostock are broad as well as deep, because there are many federal statutes—more than 100 listed in Appendix B to Justice Alito’s dissent—that prohibit discrimination “because of” or “on the basis of” sex without explicitly referencing sexual orientation or gender identity. The majority opinion did not dispute that its reasoning gives a boost to claims by sex and gender minorities—lesbians, gay men, transgender and nonbinary persons, intersex individuals, and perhaps bisexuals—that those laws (and state laws with similar language) protect them against discrimination.

Important laws barring discrimination because of sex include the Fair Housing Act of 1968, as amended in 1974, 42 U.S.C. §§ 3604-3606, 12 U.S.C. § 4545(1); the Public Works and Economic Development Act Amendments of 1971, 42 U.S.C. § 3123; Title IX of the Equal Education Amendments of 1972, 20 U.S.C. § 1681; the Equal Credit Opportunity Act of 1974, 15 U.S.C. § 1691(a)(1), (d); the Local Public Works (etc.) Act of 1976, 42 U.S.C. § 6709; and the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601(a)(6), (b)(1), as well as dozens of other federal laws.

Especially important is the likely interpretation of Title IX to protect LGBTQI+ teachers and students against harassment and other forms of discrimination by schools receiving federal funds. Some such students and teachers have already been successful in Title IX lawsuits, based upon a Hopkins-like claim of gender-stereotyping. Judges should immediately carry over the Bostock reasoning into Title IX.

Section 1557 of the Affordable Care Act of 2010 protects people against discrimination on the basis of sex in any health program or activity any part of which received federal funds, all health programs or activities administered by HHS, and health insurance marketplaces and all plans offered by issuers that participate in those marketplaces. Just a few days before Bostock, the Trump Administration’s HHS revoked an Obama Administration rule interpreting the ACA’s sex discrimination provision to bar discrimination based on sex-stereotyping, gender identity, and sexual orientation, but did not insert a definition of its own.

Following the lead of HRC’s Charlotte Clymer, we objected to the administration’s harsh and premature action, which introduced more turmoil into health care in this country. In light of Bostock, the Obama Administration’s rule applying the ACA to a broad range of sex and gender minorities is probably required as a matter of law—whatever the HHS position might be.

Finally, Bostock’s statutory ruling will have constitutional echoes. The Supreme Court has long interpreted the Fifth and Fourteenth Amendments to subject government sex discriminations to heightened scrutiny. The Court has not said exactly what level of scrutiny should apply to government action discriminating against sex and gender minorities, but after Bostock the case for heightened scrutiny is compelling. Thus, the administration’s effort to exclude transgender persons from service in the armed forces ought to be subjected to constitutional heightened scrutiny. The government ought to explain and document why it is so important to exclude these loyal Americans.

There are many explicit discriminations against sex and gender minorities in state and local governments. Although negated by a judicially approved consent agreement, North Carolina’s notorious “bathroom law” requires transgender persons to use only those bathrooms allowed for their sex assigned at birth—a requirement that would inevitably subject them to violence and harassment. A 2016 law in Mississippi authorizes and encourages employers and schools to limit restrooms in this manner. After Bostock, the constitutional case against these regulatory sex-based restrictions is much stronger.

Many discriminatory rules and regulations involve public schools, including laws or policies barring any kind of discussion or tolerance of homosexuality in public schools. Utah and North Carolina recently repealed their “no promo homo” laws, but Alabama still requires public schools to teach that “homosexuality is not a lifestyle acceptable to the general public and that homosexual conduct is a criminal offense under the laws of the state.” In other states, school boards adopt similar postures and discipline teachers and counselors who show the least amount of compassion for sex and gender minorities. Bostock provides a starting point for constitutional challenges, such as the recently settled litigation over anti-gay sex education in South Carolina.

Sex and gender minorities are valuable employees all over America. Lesbians, gay men, bisexuals, transgender and intersex persons, nonbinary and genderqueer people should not be able to get married on Sunday and face losing their jobs on Monday. Bostock protects these workers against sexual harassment, bullying and name-calling, refusals to hire, discharges, failures to promote, and lower salaries and wages. The Supreme Court’s landmark decision will have reverberations in the workplace, in schools, and elsewhere in society and government for years to come.

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Eskridge is a professor at Yale Law, Riano is the Executive Director of the Center for Civic Education and a lecturer at Columbia. Their forthcoming book is Marriage Equality: From Outlaws to In-Laws (Yale Press Aug. 2020).

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