Amicus Curiae Brief — R.G. & G.R. Harris Funeral Homes, Inc., Petitioner v. Equal Employment Opportunity Commission, et al.

No. 18-107

IN THE

Supreme Court of the United States

_________

R.G. & G.R. HARRIS FUNERAL HOMES, INC.,

Petitioner,

v.

EQUAL OPPORTUNITY EMPLOYMENT COMMISSION,

Respondent,

and

AIMEE STEPHENS,

Respondent-Intervenor.

_________

On Writ of Certiorari to the United States

Court of Appeals for the Sixth Circuit

_________

BRIEF OF AMICUS CURIAE

JUDICIAL WATCH, INC.

_________

Robert D. Popper

Counsel of Record

Eric W. Lee

JUDICIAL WATCH, INC.

425 Third Street SW

Washington, DC 20024

(202) 646-5172

rpopper@judicialwatch.org

Counsel for Amicus Curiae

Dated: August 23, 2019

LEGAL PRINTERS LLC, Washington DC ! 202-747-2400 ! legalprinters.com

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...................................... ii

INTERESTS OF THE AMICUS CURIAE .................1

SUMMARY OF ARGUMENT.....................................1

ARGUMENT ...............................................................2

The Fact That 71 Bills to Amend Title VII to

Include Sexual Orientation and GenderRelated Categories Have Failed in the Past

45 Years Confirms That Those Categories

Are Not Included in Current Law. .....................2

CONCLUSION ............................................................9

ii

TABLE OF AUTHORITIES

Cases

Page(s)

Bob Jones University v. United States,

461 U.S. 574 (1982) ............................ 3, 4, 5, 6, 8

Bruesewitz v. Wyeth LLC, 562 U.S. 223 (2011) ..........4

Caraco Pharm. Labs., Ltd. v. Novo Nordisk A/S,

566 U.S. 399 (2012) ............................................4

Heckler v. Day, 467 U.S. 104 (1984) .......................4, 8

Pension Benefit Guar. Corp. v. LTV Corp.,

496 U.S. 633 (1990) ............................................2

Solid Waste Agency v.

United States Army Corps of Engineers,

531 U.S. 159 (2001) .....................................3, 4, 6

Federal Statutes

Title VII of the Civil Rights Act of 1964,

42 U.S.C. §§ 2000e, et seq. ....................... passim

For a list of the 71 failed federal

amendments referenced in this brief,

please see footnote 3 and 4 ............................. 5-6

Other Authorities

H.R. Rep. No. 96-1546 (1980) .....................................7

H.R. Rep. No. 110-406 (2007) .....................................7

iii

S. Rep. No. 107-341 (2002) ..........................................7

142 Cong. Rec. 9986 (1996) .........................................7

153 Cong. Rec. 13230 (2007) .......................................7

159 Cong. Rec. 78945 (2013) .......................................8

165 Cong. Rec. 3935 (2019) .........................................8

1

INTERESTS OF THE AMICUS CURIAE 1

Judicial Watch, Inc. (“Judicial Watch”) is a nonpartisan, public interest organization headquartered

in Washington, D.C. Founded in 1994, Judicial

Watch seeks to promote accountability, transparency

and integrity in government, and fidelity to the rule

of law. Judicial Watch regularly files amicus curiae

briefs and lawsuits related to these goals.

Judicial Watch has an interest in this lawsuit

as it is a classic example of parties asking a court to

impose a legislative outcome that was not obtained by

appeals to Congress. Judicial Watch believes that

this approach is contrary to the true rule of law.

SUMMARY OF ARGUMENT

In general, Congress’ failure to pass a

particular bill has questionable value in establishing

Congress’ intent with respect to the laws it has

passed. The Court’s precedents provide an exception

to this rule, however, where evidence derived from

persistent, failed attempts to amend legislation is

“overwhelming.” The last case before the Court to

effectively invoke this exception involved 13 failed

bills submitted over the course of 12 years.

1 Judicial Watch states that no counsel for a party to this case

authored this brief in whole or in part; and no person or entity,

other than amicus and its counsel, made a monetary

contribution intended to fund the preparation and submission of

this brief. Judicial Watch sought and obtained the consent of all

parties to the filing of this amicus brief.

2

The instant case is far more compelling.

Seventy-one bills seeking to amend Title VII to

include sexual orientation and gender-related

categories have been submitted to Congress, and have

failed, over the course of the past 45 years. These

bills, and related House and Senate Reports, and floor

statements by the bills’ sponsors, show that it was

commonly understood that Title VII did not refer to

sexual orientation. In these circumstances, this

decades-long pattern of failed legislation shows that

what all of these bills proposed is not a part of existing

law. It is, therefore, wrong to argue that Title VII

applies to sexual orientation.

ARGUMENT

The Fact That 71 Bills to Amend Title VII

to Include Sexual Orientation and

Gender-Related Categories Have Failed

in the Past 45 Years Confirms That

Those Categories Are Not Included in

Current Law.

Before the Court is one of the exceptional cases

where it is appropriate to conclude that Congress’

persistent failure to enact a particular amendment

means that existing law does not include what is in

that amendment.

In general, the Court has cautioned against

drawing inferences from failed attempts to pass

legislation. Thus, in Pension Benefit Guar. Corp. v.

LTV Corp., 496 U.S. 633, 650 (1990) the Court noted

that “subsequent legislative history” is “a particularly

3

dangerous ground on which to rest an interpretation

of a prior statute when it concerns . . . a proposal that

does not become law.” (citations omitted).

“Congressional

inaction

lacks

‘persuasive

significance’ because ‘several equally tenable

inferences’ may be drawn from such inaction,

‘including the inference that the existing legislation

already incorporated the offered change.’” Id. at 650

(citation omitted); see Solid Waste Agency v. United

States Army Corps of Eng’rs, 531 U.S. 159, 170 (2001)

(“A bill can be proposed for any number of reasons,

and it can be rejected for just as many others.”).

Notwithstanding this general rule, the Court has

on occasion drawn inferences from the failure to enact

a bill where the sheer number of legislative attempts

to pass it and the clarity of the issue presented make

such inferences reasonable. Bob Jones University v.

United States, 461 U.S. 574 (1982) concerned an IRS

interpretation of a provision of the tax code that

Congress had chosen not to amend. The Court

observed that “[o]rdinarily, and quite appropriately,

courts are slow to attribute significance to the failure

of Congress to act on particular legislation.” Id. at

600. (citation omitted). Yet the Court also noted that

“Congress was, by its own studies and by public

discourse, constantly reminded” of the controversial

interpretation. Id. at 599. Further, while “[n]onaction

by Congress is not often a useful guide . . . the

nonaction here is significant. During the past 12

years there have been no fewer than 13 bills

introduced to overturn” the IRS’ interpretation. Id. at

600. It was “hardly conceivable that Congress . . . was

not abundantly aware of what was going on.” Id. at

4

600-01. The Court concluded that “Congress’ failure

to act” provided “added support for concluding that

Congress acquiesced in the IRS rulings.” Id. at 601

(citations omitted); see Heckler v. Day, 467 U.S. 104,

113 (1984) (finding it statutorily significant that,

although a particular amendment had “been proposed

almost annually since 1975, and congressional

concern over the [] problem has remained high,”

Congress had refused to act).

The decision in Solid Waste Agency is often cited

for the fact that, in the case before it, the Court

rejected inferences from legislative inaction. 531 U.S.

at 169-70.

However, that same decision

acknowledged that legislative inaction might be

appropriately used to show legislative intent in the

right circumstances.

In particular, the Court

approved the approach taken in Bob Jones University,

citing the “overwhelming evidence of [Congress’]

acquiescence” to the IRS’ ruling in that case,

including Congress’ acute awareness of the key issue

and the 13 bills that had been proposed to alter the

statute. Id. at 169 n.5. The principle in Bob Jones

University and Heckler, that legislative inaction can

be an appropriate aid to discerning legislative intent

in the right circumstances, has never been overruled. 2

2 In Bruesewitz v. Wyeth LLC, 562 U.S. 223, 242 (2011), the Court

made the sweeping statement that “Post-enactment legislative

history (a contradiction in terms) is not a legitimate tool of

statutory interpretation.” (citations omitted). Yet the “postenactment” history cited in that case consisted only of the

contents of two House committee reports. Id. This is a far cry

from the abundant evidence of failed legislative efforts discussed

below. Subsequently, in Caraco Pharm. Labs., Ltd. v. Novo

Nordisk A/S, 566 U.S. 399, 422 (2012), the Court again had to

5

In the instant case, the number of congressional

attempts to amend Title VII to include sexual

orientation eclipses anything seen in Bob Jones

University or in any other case of which amicus is

aware. The first such bills were submitted in the 93rd

Congress in 1974. Bills to amend Title VII to include

homosexuality, bisexuality, sexual orientation, or

“affectional or sexual preference” have been

submitted in each of the 24 sessions of Congress since

then. In all, 71 such bills have been submitted—and

have failed to pass Congress—over a span of 45

years. 3 At least 14 of these bills sought to amend Title

consider the argument that the failure to pass legislation—in

that case, one bill—shed light on the meaning of current law.

The Court did not treat the point as an illegitimate argument,

but established instead that the proposed interpretation of that

failed bill was not persuasive. Id.

3 H.R. 14752, 93rd Cong. (1974); H.R. 15692, 93rd Cong. (1974);

H.R. 16200, 93rd Cong. (1974); H.R. 166, 94th Cong. (1975); H.R.

5452, 94th Cong. (1975); H.R. 10389, 94th Cong. (1975); H.R.

2667, 94th Cong. (1975); H.R. 13019, 94th Cong. (1976); H.R.

13928, 94th Cong. (1976); H.R. 451, 95th Cong. (1977); H.R.

2298, 95th Cong. (1977); H.R. 4794, 95th Cong. (1977); H.R.

5239, 95th Cong. (1977); H.R. 7775, 95th Cong. (1977); H.R.

8268, 95th Cong. (1977); H.R. 8269, 95th Cong. (1977); H.R.

10575, 95th Cong. (1978); H.R. 12149, 95th Cong. (1977); H.R.

2074, 96th Cong. (1979); S. 2081, 96th Cong. (1979); H.R. 1454,

97th Cong. (1981); H.R. 3371, 97th Cong. (1981); S. 1708, 97th

Cong. (1981); H.R. 427, 98th Cong. (1983); S. 430, 98th Cong.

(1983); H.R. 2624, 98th Cong. (1983); H.R. 230, 99th Cong.

(1985); S. 1432, 99th Cong. (1985); H.R. 709, 100th Cong. (1987);

S. 464, 100th Cong. (1987); S. 2109, 100th Cong. (1988); H.R.

655, 101st Cong. (1989); S. 47, 101st Cong. (1989); H.R. 1430,

102nd Cong. (1991); S. 574, 102nd Cong. (1991); H.R. 423, 103rd

Cong. (1993); H.R. 431, 103rd Cong. (1993); H.R. 4636, 103rd

Cong. (1994); S. 2238, 103rd Cong. (1994); H.R. 382, 104th Cong.

(1995); H.R. 1863, 104th Cong. (1995); S. 932, 104th Cong.

6

VII to include gender identity,

mannerisms, or characteristics. 4

appearances,

These 71 bills amount to more than five times

the number of failed bills that persuaded the Court in

Bob Jones University and that the Court in Solid

Waste Agency, 531 U.S. at 169 n.5, described as

“overwhelming evidence.”

All of this activity

concerning this one issue, moreover, has guaranteed

that Congress is “abundantly aware of what [is] going

on.” Bob Jones University 461 U.S. at 600-01.

(1995); S. 2056, 104th Cong. (1996); H.R. 365, 105th Cong.

(1997); H.R. 1858, 105th Cong. (1997); S. 869, 105th Cong.

(1997); H.R. 311, 106th Cong. (1999); H.R. 2355, 106th Cong.

(1999); S. 1276, 106th Cong. (1999); H.R. 217, 107th Cong.

(2001); H.R. 2692, 107th Cong. (2001); S. 1284, 107th Cong.

(2001); H.R. 214, 108th Cong. (2003); H.R. 3285, 108th Cong.

(2003); S. 1705, 108th Cong. (2003); H.R. 288, 109th Cong.

(2005); H.R. 3685, 110th Cong. (2007); H.R. 2015, 110th Cong.

(2007); H.R. 3017, 111th Cong. (2009); H.R. 2981, 111th Cong.

(2009); S. 1584, 111th Cong. (2009); H.R. 1397, 112th Cong.

(2011); S. 811, 112th Cong. (2011); H.R. 1755, 113th Cong.

(2013); S. 815, 113th Cong. (2013); H.R. 3185, 114th Cong.

(2015); S. 1858, 114th Cong. (2015); H.R. 2282, 115th Cong.

(2017); S. 1006, 115th Cong. (2017); H.R. 5, 116th Cong. (2019);

S. 788, 116th Cong. (2019). Amicus notes that it cannot verify

that this is a complete list.

4 H.R. 2015, 110th Cong. (2007); H.R. 3017, 111th Cong. (2009);

H.R. 2981, 111th Cong. (2009); S. 1584, 111th Cong. (2009); H.R.

1397, 12th Cong. (2011); S. 811, 112th Cong. (2011); H.R. 1755,

113th Cong. (2013); S. 815, 113th Cong. (2013); H.R. 3185, 114th

Cong. (2015); S. 1858, 114th Cong. (2015); H.R. 2282, 115th

Cong. (2017); S. 1006, 115th Cong. (2017); H.R. 5, 116th Cong.

(2019); S. 788, 116th Cong. (2019). Amicus cannot represent that

this list is exhaustive.

7

House and Senate reports accompanying these

bills demonstrate that it was commonly understood

that Title VII’s definition of sex does not encompass

sexual orientation. The House Report accompanying

the Civil Rights Amendments Act of 1979 explained

that it would, if enacted, “add homosexuals to the

protected classes under various civil rights laws,

including Title VII of the 1964 Civil Rights Act.” H.R.

Rep. No. 96-1546, at 41 (1980). The House Report on

the Employment Non-Discrimination Act (ENDA) of

2007 stated that “[d]espite a growing awareness that

anti-discrimination law should include protections

based on sexual orientation, Title VII did not extend

such protection to GLB [gay, lesbian, and bisexual]

workers.” H.R. Rep. No. 110-406 at 12 (2007); see id.

at 11 (“under Title VII, discrimination based on

sexual orientation is currently an unprotected class”).

The 2001 Senate Report on ENDA observed that

“Title VII prohibits discrimination based on race,

color, religion, sex, and national origin—but not

sexual orientation.” S. Rep. No. 107-341, at 13 (2002).

The sponsors of each bill that made it to a

chamber floor admitted that sexual orientation or

gender identity is not a protected class under Title

VII. In his opening remarks on the ENDA of 1996,

Senator Edward Kennedy stated that in the case of

sexual orientation “the law offers no protection or

recourse.”

142

Cong.

Rec.

9986

(1996).

Representative Barney Frank, the sponsor of the

ENDA of 2007, lamented the fact that there is no

federal protection on the basis of sexual orientation.

153 Cong. Rec. 13230 (2007). Senator Patrick Leahy,

a co-sponsor of the ENDA in 2013, explained that

8

“there are no Federal protections from discrimination

on the basis of sexual orientation or gender identity.”

159 Cong. Rec. 78945 (2013). Representative David

Cicilline, sponsor of the Equality Act of 2019, stated

on the House floor that the bill “adds sexual

orientation and gender identity as protected classes

through existing civil rights law.” 165 Cong. Rec.

3935 (2019).

In sum, Congress’ repeated, failed attempts over

half a century to amend Title VII to include sexual

orientation or gender-related classifications reveals

Congress’ understanding that existing law does not

include those categories. This understanding was

further confirmed in the reports and speeches

accompanying the many failed bills. In an ordinary

case, as the Court has emphasized, Congress’ motive

in not adopting legislation is ambiguous, and trying

to draw inferences from this inaction is risky. But

this is not an ordinary case.

Indeed, amicus

respectfully submits that this is the most compelling

example the Court has seen of the special

circumstances, described in Bob Jones University and

Heckler, which justify relying on legislative inaction

to derive legislative intent.

Where 71 bills over the course of 45 years

attempted to include sexual orientation or gender

identity in Title VII’s definition of sex, it is singularly

unpersuasive, after all those bills have failed, to argue

that these categories were “in there all along.” Any

such statute should be passed by Congress, not

ordered by the Court.

9

CONCLUSION

For the foregoing reasons, amicus Judicial

Watch respectfully requests that the Court reverse

the judgment of the District Court.

Respectfully submitted,

Robert D. Popper

Counsel of Record

Eric W. Lee

JUDICIAL WATCH, INC.

425 Third Street SW

Washington, DC 20024

(202) 646-5172

rpopper@judicialwatch.org

Counsel for Amicus Curiae

August 23, 2019