The sun was shining on the sea,
Shining with all his might:
He did his very best to make
The billows smooth and bright–
And this was odd, because it was
The middle of the night.
The current contretemps about ENDA reminds me of this famous poem by Lewis Carroll, in the characters all say they believe one thing, but, in fact, they believe another. In the end, the oysters, who believed that the Walrus and the Carpenter were their friends, all end up getting eaten as the Walrus and the Carpenter shed tears over the sad fate of their freinds.
A few days ago, I discussed in detail a Volokh Conspiracy post criticizing Lambda Legal's legal analysis in favor of an inclusive ENDA, as opposed to what is now being called SPLENDA, short for Split ENDA, after the popular sugar substitute that tastes like real sugar, but is not. (Nosubstitutes.org is the website that started a petition drive against splitting ENDA.) Lambda suggested that SPLENDA would not fully protect the gay community. They suggested this because federal courts might interpret the failure to include “gender identity and expression” as a signal that Congress only intended to prohibit firings and refusals to hire grounded on explicitly anti-gay animus.
The author, Dale Carpenter, a graduate of Yale Law School, and a highly-respected law professor at the University of Minnesota, suggested that courts would never interpret statutes as Lambda suggests, because he has never seen a case in which mere failure to include a phrase in Statute A, such as SPLENDA, is used to interpret Statute B, such as Title VII's prohibition of sex discrimination, which has been interpreted by courts in some cases to include gender expression. “There is no precedent I have ever seen for that style of statutory interpretation,” said Professor Carpenter. “That is why Lambda, long a respected voice for its legal acumen and honesty, is on such thin ice.” Representative Frank, in his screed on the House floor a few nights ago, used Professor Carpenter's arguments to full effect (I think it's paragraph 62 of the text).
In fact, Professor Carpenter suggested, a bit gratuitously I thought, that I have a “basic misunderstanding” of statutory interpretation. For the record, I would like to suggest that, even though I didn't graduate from Yale and couldn't get hired to teach in a law school (ask me sometime about my interview at AALS – quite entertaining ), I understand statutory interpretation quite well, thank you. In fact, I was an editor of my alma mater’s Seton Hall Legislative Journal, and graduated in the top 10% of the class, after which I practiced litigation for a decade (until I went back to work as a secretary – another ‘entertaining’ story.)
It is not Lambda which is on thin ice, but Professor Carpenter and Representative Frank.