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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Furman v. Georgia, 408 U. S. 238, 467 (1972) (Rehnquist,
J., dissenting).
   I have the greatest, and unyielding, respect for my col-
leagues and for their good faith. But when this Court
usurps the role of Congress, as it does today, the public un-
derstandably becomes confused about who the policymak-
ers really are in our system of separated powers, and inev-
itably becomes cynical about the oft-repeated aspiration
that judges base their decisions on law rather than on per-
sonal preference. The best way for judges to demonstrate
that we are deciding cases based on the ordinary meaning
of the law is to walk the walk, even in the hard cases when
we might prefer a different policy outcome.
                          *     *     *
   In judicially rewriting Title VII, the Court today cashiers
an ongoing legislative process, at a time when a new law to
prohibit sexual orientation discrimination was probably
close at hand. After all, even back in 2007—a veritable life-
time ago in American attitudes about sexual orientation—
the House voted 235 to 184 to prohibit sexual orientation
discrimination in employment. H. R. 3685, 110th Cong., 1st
Sess. In 2013, the Senate overwhelmingly approved a sim-
ilar bill, 64 to 32. S. 815, 113th Cong., 1st Sess. In 2019,
the House voted 236 to 173 to amend Title VII to prohibit
employment discrimination on the basis of sexual orienta-
tion. H. R. 5, 116th Cong., 1st Sess. It was therefore easy
to envision a day, likely just in the next few years, when the
House and Senate took historic votes on a bill that would
prohibit employment discrimination on the basis of sexual
orientation. It was easy to picture a massive and celebra-
tory Presidential signing ceremony in the East Room or on
the South Lawn.
   It is true that meaningful legislative action takes time—
often too much time, especially in the unwieldy morass on
                  Cite as: 590 U. S. ____ (2020)           27 KAVANAUGH, J., dissenting

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