Section 7

Citation: Section 7
Parent Document: Bostock v. Clayton County, 590 U.S. 644 (2020)
Jurisdiction: United States (federal)
Effective Date: 2020-06-15
Original Source: https://www.courtlistener.com/opinion/4760997/bostock-v-clayton-county/ ↗

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should be expanded to prohibit employment discrimination
because of sexual orientation. Under the Constitution’s
separation of powers, the responsibility to amend Title VII
belongs to Congress and the President in the legislative pro-
cess, not to this Court.
   The political branches are well aware of this issue. In
2007, the U. S. House of Representatives voted 235 to 184
to prohibit employment discrimination on the basis of sex-
ual orientation. In 2013, the U. S. Senate voted 64 to 32 in
favor of a similar ban. In 2019, the House again voted 236
to 173 to outlaw employment discrimination on the basis of
sexual orientation. Although both the House and Senate
have voted at different times to prohibit sexual orientation
discrimination, the two Houses have not yet come together
with the President to enact a bill into law.
   The policy arguments for amending Title VII are very
weighty. The Court has previously stated, and I fully agree,
that gay and lesbian Americans “cannot be treated as social
outcasts or as inferior in dignity and worth.” Masterpiece
Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 584 U. S.
___, ___ (2018) (slip op., at 9).
   But we are judges, not Members of Congress. And in Al-
exander Hamilton’s words, federal judges exercise “neither
Force nor Will, but merely judgment.” The Federalist No.
78, p. 523 (J. Cooke ed. 1961). Under the Constitution’s
separation of powers, our role as judges is to interpret and
follow the law as written, regardless of whether we like the
result. Cf. Texas v. Johnson, 491 U. S. 397, 420–421 (1989)
(Kennedy, J., concurring). Our role is not to make or amend
the law. As written, Title VII does not prohibit employment
discrimination because of sexual orientation.1

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