Last week the Supreme Court heard Husted v. A. Philip Randolph Institute, a big voting-rights case that—as I only recently learned—involves a statute raising a linguistic issue similar to the one I argued in my amicus brief in University of Texas Southwestern Medical Center v. Nassar. The statute in each case makes it illegal to take certain action if the action is taken for a prohibited reason. In Husted, the statute prohibits states from removing people from the list of eligible voters “solely by reason of a failure to vote.” In Nassar, it prohibited employers from discriminating against any employee “because he has opposed any practice made an unlawful employment practice by [the statute], or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [the statute].”
The linguistic issue that I want to talk about is whether the boldfaced language in each statute has the effect of requiring “but for” causation. As the lawyers reading this will know, a “but for” cause is a cause without which (i.e., but for which) the result in question would not have occurred. In philosophy, but-for causes are referred to as “necessary causes,” and they are distinguished from “sufficient causes,” which are causes that would be sufficient to bring about the result, but that may co-occur with other sufficient causes.
My amicus brief in Nassar (discussed here and here) challenged the Supreme Court’s earlier holding in Gross v. FBL Financial Services that under a statute prohibiting discrimination “because of” an employee’s age, plaintiffs are required to prove that their age was a but-for cause of the employer’s action against them. The Court in Gross had relied mainly on dictionary definitions (which didn’t actually address the issue, but never mind that), as well as on cases in that had held but-for causation to be required by the various other expressions, including by reason of. My brief argued that Gross was incorrect and that its error should not be extended to the different statute that was at issue in Nassar. I knew that the odds were against my argument being accepted by a majority of the justices, but I figured that at a minimum, the dissenters would pick up on it. As things turned out, that was, shall we say, overoptimistic on my part. The brief went nowhere.
And now along comes Husted, which gives me an excuse opportunity to bring up this issue again.
A few points to note before I explain why the use of because of and by reason of doesn’t necessarily require but-for causation. First, for those of you who’ve noticed that the statute in Husted says “solely by reason of” while the statute in Nassar didn’t say “solely because of”—yes, you’re right, that might make a difference. But since this is LAWnLinguistics, not LAWnLiability, I can safely assume the solely away. (Don’t you wish you could do that in real life?) Second, even with that assumption, I don’t know how much it matters in Husted that under the existing law, the statute requires but-for causation. But again, what I’m talking about here is primarily semantics, and only secondarily law.
SO, ON TO THE SEMANTICS. I’ll start by recapping what I argued in my brief in Nassar. (If the discussion looks familiar, that’s because it’s adapted from a previous post.)
My analysis of what because means is based on real-world sentences like this one (emphasis added):
(1) The Constitution abhors classifications based on race, not only because those classifications can harm favored races or are based on illegitimate motives, but also because every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all.
This sentence gives two reasons for the abhorrence of racial classifications, and it expresses the causal relationships between the reasons and the abhorrence by using the word because: “not only because…but also because….” Yet each of the reasons by itself would presumably have been sufficient to explain the constitution’s antipathy to racial classifications. As a result, neither reason was itself the but-for cause of that antipathy. If it were true that the use of the word because entails but-for causation, the sentence would be anomalous. If the idea of but-for causation is inherent in what because means, it wouldn’t make sense to say that something happened not only because of but-for Cause 1, but also because of but-for Cause 2. After all, part of what it means to say that because entails but-for causation is that the word would not be used in regard to situations where such cause does not exist. But the sentence in (1) uses because in exactly such a situation, and it does so without making the sentence seem weird. Which indicates that contrary to what the Supreme Court has held, because does necessarily express but-for causation.
Further evidence for that conclusion is provided by (2)-(5) below (emphasis added), each of which is similar to (1) in using the word because in situations in which but-for causation was absent (because each of the two causes referred to was itself a sufficient cause):
(2) This Court rejected that proposition, not only because it did not regard Francis as a new rule, but also because the state court did not “plac[e] any limit on the issues that it will entertain in collateral proceedings.”
(3) As a means of protecting children from portrayals of violence, the legislation is seriously underinclusive, not only because it excludes portrayals other than video games, but also because it permits a parental or avuncular veto.
(4) We do not know anything about [Juror Z’s] demeanor, in part because a transcript cannot fully reflect that information but also because the defense did not object to Juror Z’s removal.
(5) Fitzgerald repeatedly emphasized in her briefs and at argument that she was entitled to [final] benefits not just because of the extensive delay, but also because of her indigency and the merits of her case.
Now, examples (1)-(5) were not made up for purposes of illustrating my point. Rather, each sentence represents an actual use of the word because in a real-world document. In fact, you have heard of the people who wrote these sentences. They are as follows, with numbering that corresponds to the numbering of the sentences:
(1) Supreme Court Justice Thomas, who wrote the majority opinion in Gross, stating that because necessarily expresses but-for causation. (Link, p *353.)
(2) Chief Justice Roberts, who joined in the decisions in Gross. (Link, p. *298.)
(3) Justice Scalia, who joined in the decision in Gross. (Link, p. *2742.)
(4) Justice Kennedy, who joined in the decision in Gross. (Link, pp. *1229.)
(5) Justice Alito, who joined in the decision in Gross. (Link, p. * 235.)
So every member of the majority in Gross—every single one of them—has used the word because in a way that proves their collective conclusion to be wrong. Moreover, those weren’t the only times they had done so, and they are by no means the only people who have used because to express non-but-for causation. In my brief I provided dozens of additional real-world examples of such uses.
THE ARGUMENT ABOUT by reason of is the same as the argument about because of, but with a different set of quotes. Here are some of them:
“We start with the proposition that in a federal, criminal case the requirement of unanimity applies not only by reason of F. R. Crim. P., Rule 31(a), but also by reason of the Sixth Amendment.” United States v. Morris (10th Cir. 1979) (cleaned up).
“This item of evidence possesses significance not only by reason of the manner in which it was signed, but also by reason of the nature of its subject matter.” Farmers & Merchs. Bank v. Kirk (Cal. Dist. Ct. App. 1958).
“An issue can be beyond the scope of arbitration not only by reason of language in the arbitration agreement but also by reason of a prior adjudication.” Peregrine Fin. Group v. Ambuehl (Ill. App. Ct. 1999) (cleaned up).
“The judge charged the jury in general terms (among other things) that each defendant could be found guilty on each indictment against him not only by reason of his own individual acts but also by reason of his participation with one or more of the other defendants in a joint venture.” Massachusetts v. Savoy (Mass. App. Ct. 1986).
In addition to by reason of and because of, several other expressions also fall into the category of having been erroneously held to require but-for causation (as shown in my brief): based on, on the basis of, and on account of.
Someday a case will come along in which applying the prevailing interpretation of these expressions leads to a result that the court really doesn’t like. It will be interesting to see whether that will lead to a second look being taken at these erroneous interpretations.