Media Mention

Conway: Scalia + Supreme Court’s Title VII decision

June 16, 2020

Note: this piece was originally published in The Washington Post, and was written by Checks & Balances member George Conway. 

The 6-to-3 Supreme Court decision on Monday in Bostock v. Clayton County, which applied Title VII of the Civil Rights Act of 1964 to gay and transgender workers, represents far more than a landmark civil rights precedent. It represents a victory for textualism in the interpretation of statutes. And it effectively inters, perhaps once and for all, a 128-year-old decision that illustrates exactly how laws should not be construed.

The misbegotten 1892 case was Church of the Holy Trinity v. United States. In 1885, concerned about an influx of foreign labor, Congress had passed the Alien Contract Labor Law, which prohibited “the importation” of “foreigners … under contract to perform labor or service of any kind in the United States.” The law contained exceptions for actors, artists, singers and others. It didn’t exempt clergy.

Holy Trinity Church in Manhattan had hired a new pastor — from England. The government claimed a violation of the law, and the case went up to the Supreme Court. And despite the text of the statute, the church won.

Yes, the court conceded, the pastor’s hiring came “within the letter” of the law. He was, after all, a foreigner and imported under contract to serve in the United States. But the court held that Congress couldn’t really have intended to prohibit hiring clergy. And that was because “we are a Christian people” and “this is a Christian nation.” The court asked: “Shall it be believed that a Congress of the United States intended to make it a misdemeanor for a church of this country to contract for the services of a Christian minister residing in another nation?”

Continue reading at The Washington Post.