Katie R. Eyer (Rutgers, The State University of New Jersey - Rutgers Law School) has posted Statutory Originalism and LGBT Rights (Wake Forest Law Review, Forthcoming) on SSRN. Here is the abstract:
In the wake of marriage equality, LGBT claims to employment rights have taken center stage in the struggle for LGBT equality. Raising claims under federal sex discrimination law, advocates have argued that anti-LGBT discrimination is, necessarily, also sex discrimination under Title VII. Such claims have seen increasing success in the federal courts as biases against the LGBT community have receded, allowing courts to recognize the textual and doctrinal logic of such sex discrimination claims. As victories in the lower courts have accumulated, the LGBT employment discrimination issue has increasingly seemed poised to be the next major LGBT equality issue to reach the Supreme Court.
But a new argument has also arisen to dispute LGBT Title VII claims: “statutory originalism.” Arguing that the meaning of Title VII ought to be judged by reference to its “original public meaning”—and that the original public in 1964 would not have thought that anti-LGBT discrimination was proscribed—opponents of LGBT inclusion have contended that such sex discrimination claims cannot be allowed. In making these arguments, opponents have endeavored to sidestep well-established textualist case law that rejects virtually identical arguments when made under the rubric of Congressional expectations or intent.
This Article contends that the “original public meaning” approach raised by opponents of LGBT inclusion is neither so distinctive, nor so uncontroversial, as its proponents have suggested. “Original public meaning” itself is a modality of statutory interpretation that has essentially no pedigree in the federal statutory interpretation case law. And yet the arguments of its proponents do bear a striking resemblance to another well-established, but now discredited approach: looking to the expectations or intent of Congress to limit broad statutory text. Moreover, the specific approach to “original public meaning” taken by opponents of LGBT inclusion—looking to “original expected applications”—is one that should concern both civil rights advocates and originalists alike. Thus, courts ought to reject the novel “statutory originalism” arguments that have been raised in opposing LGBT employment equality claims.
Highly recommended. The ideas embraced by public meaning originalism in the constitutional sphere are usually presented as "plain meaning textualism" in the sphere of statutory interpretation. Whether the plain meaning of a statute is its public meaning depends on the situation of statutory communication. The plain meaning of statutes intended to communicate to the public would be their public meaning--the meaning communicated by the statute to the public at the time it was drafted and enacted. Application expectations are relevant evidence of plain meaning, but they are only evidence. Application expectations may not reflect plain meaning if they are based on false factual beliefs or if the facts have changed.