Catflaps
Written by Noel Erinjeri
There’s a scene in Douglas Adam’s novel Dirk Gently’s Holistic Detective Agency where the title character and his friend Gordon are discussing Sir Isaac Newton. They gently praise Newton as the inventor of the catflap (British for “pet door”).
Gordon: “There was also the small matter of gravity.”
Dirk: “Gravity was there to be discovered. Someone was bound to notice it eventually. But the catflap…ahg, there is a very different matter. Invention, pure creative invention.”
Gordon: “I would have thought it was quite obvious. Anyone could have thought of it.”
Dirk: “Ah. It is a rare mind indeed that can render the hitherto nonexistent blindingly obvious.”
We saw an example of that this week when the Supreme Court decided Bostock v. Clayton County, a landmark decision that held discrimination against gay and transgender people violated Title VII’s ban against sex-based discrimination.
The argument against that interpretation can be boiled down to this: Congress passed that law in 1964. At the time, homosexuality was seen by almost everyone as a mental disorder (at best) or a crime against nature (at worst). While society’s views on homosexuality may have changed, the law hasn’t—and until Congress amends the law, discrimination against homosexuals isn’t illegal.
The lawyers for the employees came up with a simple (and brilliant) counter: suppose you fire a man because he is dating a man, but you did not fire a woman because she’s dating a man; you have discriminated against the man on the basis of sex—that is, you wouldn’t have fired him but for the fact that he was a man. That’s sex-based discrimination, as the term was understood in 1964, and precisely the evil forbidden by Title VII.
The employees’ argument was so convincing that Justice Gorsuch basically adopted it for the majority opinion. More impressive, though, is that it seems to have caused Chief Justice Roberts to do a 180. Roberts had dissented in Obergefell v. Hodges (the gay marriage case):
If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.
Beyond being a victory for basic human decency, Bostock was a victory of straight-up good lawyering. The employees’ counsel came up with an argument so simple and clear that it’s more than just persuasive—like the catflap, it makes it correctness seem blindingly obvious. It was so convincing that it caused no less a personage than the Chief Justice of the United States to change his mind.
The search for these “catflap” moments isn’t only applicable in the legal system’s tallest ivory tower. They can be equally compelling down here in the trenches. We’ll talk more about them in the coming weeks, but two of the biggest victories we’ve ever had at Rockind Law turned on making arguments that, in the end, were just as simple. First, that you can’t be guilty of leaving the scene of an accident if you weren’t aware of an accident in the first place; and second, that a crime had to be prosecuted in the county where the crime was committed.
Simple enough, right? But, to quote Clausewitz, “Everything in war is simple. But the simplest thing is very difficult.” The same goes for us.