Category Archives: Gross v. FBL Fin. Servs.

The Supreme Court’s misinterpretation of the word “because”

[This post has been revised; see my note at the bottom.]

The post before this one, dealing with the dueling canons in Lockhart v. United States, was my first after a gap of more than two years. In my last post before that gap, I wrote about an amicus brief I had just filed in the Supreme Court in Nassar v. University of Texas Southwestern Medical Center. The brief dealt with the meaning of the construction because of X. Specifically, it dealt with whether that construction incorporates the notion of but-for causation as part of its meaning. My brief argued that it does not.

The Supreme Court had previously reached the opposite conclusion, in a case involving the Age Discrimination in Employment Act: Gross v. FBL Financial Services. In Nassar, the question was whether the holding in Gross should be extended to a different statute that similarly used the formulation because of X. I argued that the Court should not follow Gross because Gross had been wrong about what because means. Some might regard such an argument as quixotic; I preferred to think of it as audacious.

The core of my argument was based on real-world sentences like Example (1) (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.

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