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Rh statute’s individual terms, mechanically puts them back together, and generates an interpretation of the phrase “discriminate because of sex” that is literal. See, ,. But to reiterate, that approach to statutory interpretation is fundamentally flawed. Bedrock principles of statutory interpretation dictate that we look to ordinary meaning, not literal meaning, and that we likewise adhere to the ordinary meaning of phrases, not just the meaning of words in a phrase. And the ordinary meaning of the phrase “discriminate because of sex” does not encompass sexual orientation discrimination.

The majority opinion deflects that critique by saying that courts should base their interpretation of statutes on the text as written, not on the legislators’ subjective intentions. , . Of course that is true. No one disagrees. It is “the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75, 79 (1998).

But in my respectful view, the majority opinion makes a fundamental mistake by confusing ordinary meaning with subjective intentions. To briefly explain: In the early years after Title VII was enacted, some may have wondered whether Title VII’s prohibition on sex discrimination protected male employees. After all, covering male employees may not have been the intent of some who voted for the statute. Nonetheless, discrimination on the basis of sex against women and discrimination on the basis of sex against men are both understood as discrimination because of sex (back in 1964 and now) and are therefore encompassed within Title VII. Cf. id., at 78–79; see Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U. S. 669, 682–685 (1983). So too, regardless of what the intentions of the drafters might have been, the ordinary meaning of the law demonstrates that harassing an employee because of her sex is discriminating against the employee because of her sex with respect


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 Consul Lucien Memminger, Bordeaux, letter, September 23, 1927:

Per 100 kilos

Dry Chestnuts <a ais cov sveausesaawewans 230 francs Wheat isucssuarouaewacarecncey anne 155 francs Indian corns. (25 Ja6 Sessiees SSR 170 francs

I think it is accurate to say that in this district of systematic chestnut farming, which covers many square miles of gently rolling country, one-third of the area is in trees, ninety-nine percent of the trees are chestnut, and virtually all the chestnuts are grafted. It is the regular rule of the country that one-third of a man's farm is in chestnut for nut crop with a by-product of wood; one-third of the farm is in tilled fields; one-third is in pasture and hay meadows.

I have seen other French localities in which the fields were small and every fence row or boundary was bordered by a solid row of great chestnut trees, which thus covered a substantial percentage of the area.

The area of cultivated chestnuts seems to be declining in most of the French districts, especially Corsica. The following reasons are cited:

1. Such a large income is to be derived from sending the trees to tannin factories, a comparatively new industry.

2. The ravages of a disease called "maladie de l'encre" (Blepharospora cambivora).

3. A great increase in cost of gathering them, which now amounts to fifty percent of their value. This is due to the increasing scarcity of hired labor.

A chestnut grove of, say, four hundred trees (about twenty-five acres) costs as follows to harvest:

Labor for 45 days to clear away shrubs, etc.... 600 francs 40 loads of wood as fuel for drying........... 250 francs 200 days' labor, mostly women and children, for

harvesting chestnuts............0 0000s ees 2,000 francs

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/

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292 oak comes into flower and leaf later by some days than the other species, and it is less liable to attacks of the roller moth. It bears shade better, and on this account can be grown closer as a forest tree. It grows naturally on drier soils, and on the Continent ascends to higher altitudes than Quercus pedunculata. It is different in habit, the terminal bud being stronger than the others, so that the shoot is continued in the same direction, and the branches keep straight; whereas in Q. pedunculata the lateral buds at the apex often develop more vigorously and a crooked branch results, with the leaves much more tufted.

At first the seedling differs little from that of Q. pedunculata, though the young leaves are more distinctly stalked; but towards the end of the first year, the characters shown in the adult stage are well marked, namely -—the stem, leaves, and terminal bud are pubescent, and the leaves have a cuneate base and short but distinct stalks.

1. Var. longifolia, Dippel, Laubh. ii. 67 (1892).—This is also known as macrophylla. The leaves are variable, but are as a rule very long, as much as eight inches, and narrow in proportion to their length, the lobing being never constant. The base of the leaf is always cuneate.

2. Var. laciniata, Koehne, Dendrol. 130 (1893).— Leaves small with deeply-cut segments, which are directed forwards; base cuneate.

3. Var. mespilifolia, Wallroth, ''Sched. Crit.'' 494 (1822).—Leaves, with a petiole of one inch, lanceolate, long, and narrowed at both ends, averaging five inches long by one inch broad at the widest part; quite entire in margin or very slightly lobed. This form has been found wild at Nordhausen in the Harz mountains, at Wolgast in Pomerania, and in various places in Austria and Hungary. Var. Louetti, is a somewhat pendulous sub-variety, which is considered by most authors to be identical with var. mespilifolia.

4. Var. sublobata, Koch, Dendrol. ii. 2, 32 (1873). Quercus sublobata, Kitaibel, in ''Schult. Oest. Fl.'' i. 619 (1814).—This is nearly the same as the last variety, but the leaves are slightly and regularly lobed. It came into commerce from the Royal nursery at Geltow near Potsdam, and hence is often known as var. geltoviana.

5. Var. cochleata, Petzold et Kirchner, 47. ''Arb. Musc.'' 630 (1864).—This resembles the common form, except that the edges of the leaf are curved upwards, so that the centre of it is rendered concave. It is said to be a free-growing variety.

6. Var. afghanistanensis, Hort.—This variety, as cultivated at Kew, has obovate leaves very similar to the common form, except that the lobes of the leaf are more shallow and more numerous, and its bluish under surface is covered with a fine pubescence which extends to the petioles. It is considered by Zabel to be a hybrid between Q. lanuginosa and Q. sessiliflora. It was sent out by Messrs. Booth of


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 The crop would amount to 1,200 decaliters (or 12,000 liters) of dried chestnuts, worth at four francs per decaliter a total of 4,800 francs. (Letter, Wesley Frost, American Consul General in Charge, Marseilles, August 4, 1927.)

The franc here referred to was worth about 19.3 cents of a dollar that is no more.

These facts of decline should be considered in connection with the following facts. There has been recent decline of rural population in all the chestnut districts of France as well as in nearly all the other districts of France. This is accompanied by a decline of acreage of nearly all other crops in the chestnut localities and also the closing down of mines in Corsica. It should also be remembered that during the period 1920-1926 there was a very sharp decline in rural population in nearly every American state, and many farms were abandoned, as much, for example, as five hundred thousand acres of land in the state of Ohio alone. (Information on chestnuts from Lucien Memminger, American Consul, Bordeaux, letter, September 23, 1927; and from Hugh H. Watson, American Consul, Lyons, France, letter, October 12, 1927.)

Japan has a species of chestnuts, Castanea crenata, different from those of America, C. dentata, or those of Europe, C. sativa. They are larger than any of the American or European chestnuts, are less sweet, but like the sweet potato they are full of starch and nourishment. The chestnuts of Japan, like those of Europe, are used for both forage and human food, almost invariably cooked. The Japanese laugh at us for eating them raw. Japanese government bulletins recommend the use of chestnuts for hillside planting and grafting as it is done in Europe and in America. In one of the best-known chestnut localities in the Japanese mountains, which I visited, about forty miles northwest of Kyoto, the value of the poorest chestnut land (30 to 35 yen per tan) was more than that of the poorest rice

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 lized. We will say no more now, sir, for there are listeners; but a secret has this evening been revealed to me, 'duke, that is of more consequence to your welfare, than all your estates united."

Marmaduke laughed at this important intelligence, to which in a variety of shapes he was accustomed, and the Sheriff, with an air of great dignity, as if pitying his want of faith, proceeded in the business more immediately before them. As the labour of drawing the net had been very great, he directed one party of his men to commence throwing the fish into piles, preparatory to the usual division, while another, under the superintendence of Benjamin, prepared the seine for a second haul.

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294

A small tree, rarely attaining 60 feet in height, and often, in the wild state, a dense shrub with a twisted stem. Bark rather rougher and more scaly than that of the common oak. Twigs and buds densely pubescent, the scales of the latter being ciliate on the margin and pubescent all over their surface. Leaves small, about 3 inches long, variable in shape, wrinkled in margin, cuneate or cordate at the base, with four to eight pairs of rounded lobes variable in depth; always densely pubescent underneath; petiole tomentose, ½ to 1 inch long. Axis of male flowers pubescent. Female flowers with sessile stigmas and tomentose ovary. Fruits, one to four, crowded on a short thick stalk, or sessile; cups tomentose and often tubercular.

This oak occurs on dry soils, especially those of limestone formation, in the south of France, Corsica, Spain, Portugal, Italy, Alsace, south Baden, Thuringia, Austria, Hungary, southern and western Switzerland, Turkey, Greece, Crimea, Caucasus, and Asia Minor. In Provence it forms dense, low thickets covering extensive areas of the very dry lower parts of the limestone mountains. In Corsica it appears to be the only deciduous species of oak; and was seen by me forming scattered groves in the mountains below the zone of Pinus Laricio, at about 2000 feet elevation. I observed no trees larger than a foot in diameter; and it is evident that it is very distinct from Q. sessiliflora, which, if it occurred, would grow to a large size in the Corsican humid climate. The tree is of no importance in Corsica as a source of timber; and Mr. Rotgès of the forest service considered that it should always be treated as coppice.

It produces hybrids with both Q. sessiliflora and Q. pedunculata, and differs markedly from both these species in its habit of producing root-suckers, and moreover the bark is different.

Loudon incorrectly states that it occurs in the New Forest, and Sussex. There is a tree of this form growing at Syon with a remarkably curved bole of about 18 feet long and 5 feet 10 inches in girth. If upright this tree might have been 50 feet high. Elwes has seen this species growing wild in the forest of Fontainebleau, which Hickel informed him was about its northern limit as a wild tree; here it is usually small and stunted, so far as he saw, and of no economic value.

1. Var. Hartwissiana, Hort. Leaves with six or seven pairs of lobes, which are mucronate at the tips.


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296

Owing to the general opinion of English botanists that there is only one indigenous species of oak, with two inconstant varieties, there are few accurate records of the distribution of the two species, and in the majority of cases it is impossible to say whether the specimens in our great herbaria are from wild or cultivated trees. Moreover, owing to the great changes caused by the spread of cultivation and the cutting down of most of the original woodland, the correct distribution of the two species can scarcely be made out. It is probable, however, that in ancient times the pedunculate oak occupied the alluvial lands and the better soils, now almost entirely devoted to agriculture and pasture. Hedgerow trees are invariably of this species. The sessile oak occupied the hilly land and the poorer soils; and in existing oak-woods occurring in such situations, which have never been touched by the plough, it is always the species met with, as in the Wyre Forest, the Forest of Dean, in the district about Burnham Beeches, in Lord Cowper's woods near Welwyn, Herts, which are on high-lying poor gravel soil, etc. In Scotland, judging from a specimen at Kew, the famous Birnam wood consisted of Quercus sessiliflora. In Ireland, the ancient wood of Shillelagh, in Wicklow, of which a remnant still exists, was the same species. The Cratloe wood near Limerick is of pure sessile oak; and it is the only species in the wilder parts of Kerry. All the specimens of Q. pedunculata which I have received from Ireland, are from planted trees.

In England the oak ascends to 1200 feet in Yorkshire. In an interesting paper by H.B. Watt on the "Altitude of Forest Trees in the Cairngorm Mountains" in Scotland, 700 to 800 feet is given as the highest level at which the oak was observed; but Mr. Watt says, in a MS. note, that he found in July 1903 a small oak at Corriemulzie at an elevation of 1200 feet. The same author gives many interesting particulars of the oak in Scotland, in a paper published in the Annals of the Andersonian Naturalists' Society, ii. 89 (1900). In Ireland the oak ascends in Derry to 1480 feet. There are remains of virgin forest in Donegal, on Sir Arthur Wallace's property near Lough Esk; and a very large oak wood, which is of great antiquity, occurs at Clonbrock, the seat of Lord Clonbrock, in Co. Galway, on the limestone formation. There are smaller woods in many of the mountain glens, and Mr. Welch of Belfast says that where these primitive bits of forest have never been touched by tillage, peculiar and local forms of land-shells occur, and the Clonbrock oak forest contains rare plants, moths, etc., unknown elsewhere. The oak was in early times much more widely spread; it has been found, e.g., in a peat moss in the Orkneys. Mr. T.T. Armistead found a young oak growing in a sheltered ravine on the coast


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298 Tula, and Penza, to Sergievsk near the southern Ural, in lat. 54°. The eastern limit commencing here, extends southwards, taking in the Crimea and Cilicia in Asia Minor. The southern limit extends through Greece, southern Italy, Sardinia, Catalonia, and the northern provinces of Spain to Asturias.

Asa wild tree it does not occur in low-lying plains and alluvial ground; but is met with on the hills and lower ranges of the great mountain chains of Europe. It ascends in Hanover to 1900 feet, in the Alps to 3900 feet, in the Carpathians to 3300 feet, and in the Pyrenees to 5300 feet. In all these localities it ascends considerably higher than the pedunculate oak, reaching, e.g., in the Alps 1500 feet higher than that species.

The oak produces acorns in great abundance in some seasons, generally about one year in three; but this varies very much in different parts of the country; and, so far as I have noticed, fruit occurs oftener and more abundantly in the south and west of England. It begins to bear at a very early age in some cases; and I received, in 1906, a packet of acorns from Miss Woolward, which she assured me were taken from oaks only ten years old from seed. Mr. Emerton, the head gardener at Belton Park, Notts, where they grow, confirms this. In the same season I saw acorns on the Billy Wilkin's Oak, which must be 700 to 800 years old; and was told that the Cowthorpe Oak, which is possibly much older, still bore a few. Acorns are greedily eaten by all domestic animals, but are injurious to cattle if taken in very large quantities. Pheasants and pigeons also consume a great many, and rooks are credited with dropping most of the acorns which so often spring up as seedlings in places far from their parent tree.

The raising of oaks from seed is so easy, and the plants obtained are, as a rule, so much superior to what one can buy, that no one who wishes to plant them should fail to try the experiment by selecting acorns from the best oaks in the neighbourhood. These ripen in October, and should be gathered from the ground as soon as they fall, as dry as possible. They will not keep if stored damp, and my own experience is that they make stronger growth the first year if sown as soon as gathered, because the radicle will then bury itself deep in the ground before winter, and the germination will take place earlier. But if it is desired to sow the acorns where the tree is to grow, they must be protected against mice, rooks, pheasants, and wood-pigeons, all of which are very fond of them. Red lead or paraffin is sometimes used, but the latter is liable to injure the acorn, and it is said that chopped furze placed over the acorn is the best means of protecting them against mice. They should be covered with at least an inch of soil, and, if dibbled, care must be taken that they do not fall in the hole end downwards, but lie on their side in their natural position.

In 1901 I made experiments on the growth of oaks from acorns produced by


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300 Billington's account of the immense losses which were caused by mice to the oaks sown in the Forest of Dean, which is quoted at length by Loudon, pp. 1805–7, shows that in places where mice are numerous it is more economical to plant than to sow; and I have on my own property failed to get anything like a good stand of young oaks by sowing, on account of the ravages of mice and rooks, though every precaution which experience could suggest was taken. I tried dibbling in wheat, and sowing in lines and patches, both on cultivated and uncultivated ground, and have only partial or complete failures to record. In better and lighter soils, and especially in woods of large size where rabbits are kept down, I have seen splendid results from self-sown acorns; and Mr. A.C. Forbes's prize essay on the natural reproduction of woods from seed, published in the Transactions of the English Arboricultural Society, v. 239, should be consulted, as well as Loudon's remarks on the same subject, pp. 1804–5.

Mr. Stafford Howard, C.B., who probably knows more about forestry and has done more to improve the management of the Royal Forests than any Commissioner who preceded him, except, perhaps, Lord Glenbervie, has sent me an excellent photograph of a grove of self-sown oaks on his property at Thornbury Castle, Gloucestershire, which has originated from acorns, self sown, in what used to be an osier bed, and which are now about thirty to forty years old. Plate 81 shows their present appearance. On December 29, 1904, Mr. Howard showed me this grove, of which about an acre, containing 139 trees, has been wired in and underplanted with beech at about 6 feet apart. Six trees have been measured and marked with the object of showing whether the future increase of the oaks will pay for the cost of under-planting. As I am not aware that this practice, which in Germany and France is considered good forestry, has ever been properly tested in England, I hope that the results of this experiment will be recorded.

The best illustration of the possibility of converting coppice with standards, into pure oak wood, was shown me in 1900 by Mr. A.C. Forbes in a wood called Derry Hill, on the property of the Marquess of Lansdowne, three miles from Chippenham. In this case the coppice was cut early in the winter, after a good crop of acorns, and completely cleared before the following May. The constant presence of workmen faggoting and cleaning the coppice, not only kept away pheasants and pigeons, but also buried a good many of the acorns; and the soil being suitable for oaks, their growth was so good in the next three years that by cutting away the shoots of the coppice wherever it crowded and overgrew the young oaks, a stand was obtained far thicker, cleaner, and more vigorous than I have ever seen from planted trees. If carefully attended to until the seedlings overtop and smother the remains of the underwood, and provided also the remaining standards are cut and removed before they damage the seedlings, I should expect this wood to become one of the best of its sort in England.

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 land, while the best (irrigated) rice land was twice as valuable as the best mountainside chestnut land above it.

Japan's mountain chestnut orchards do not differ greatly from those of Europe. As I observed the mountainsides of Japan, the conspicuous thing about them seemed to be the small area given to tree crops. This seems unfortunate when one considers the great proportion of Japanese land that is not tillable and the great need for food in that crowded land. Perhaps the chief reason for the small extension of hillside chestnut growing in Japan is to be found in the widespread practice of cutting grass and herbage from the hillsides annually and carrying it down to fertilize the rice fields in the flat lands. The mountainside cannot yield fertilizer and wood and also nuts, as the Koreans have so sadly proved. It erodes.

Orchards of either nuts or fruit are not common in China, but scattered trees for fruit and nuts are widespread in many hilly localities. The Chinese chestnuts are more like the American nut in flavor, and many are larger in size. Chinese chestnuts hold great promise as a basis for an American crop that is now in its very early but unexpectedly promising youth.

A Chinese chestnut tree, leaving a stump 6 inches in diameter, cut in the spring of 1949, showed in 12 months 23 suckers more than five feet long—several of them were eight feet. It grew in fair circumstances, with no cultivation or fertilization. I incline to the belief that the Chinese chestnut is as keen a sprouter as was the old American.

The American chestnut is a fine tree for timber, and also a good producer of tannin. It has the good timber qualities of swift growth and ability to throw up shoots or suckers from the stump, if cut in the dormant season. The value of this is seen by comparison with pine. Cut down a pine, and it dies; cut down a chestnut and at the end of the first year the stump will have twenty or fifty shoots, some of them six feet high. At the end of the second year the suckers may well be eight to ten feet

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Rh

FTER such a Day as Yesterday, I might well have thought it hard, when I awak'd the next Morning, to find my-self under positive Engagements of proceeding in the same philosophical way, without intermission, and upon harder terms than ever. For 'twas no longer the agreeable Part of a Companion which I had now to bear. Your Conversation,, which had hitherto supported me, was at an end. I was now alone; confin'd to my Closet; oblig'd to meditate by my-self; and reduc'd to the hard Circumstances of an Author, and Historian, in the most difficult Subject.

here, methought, propitious Heaven, in some manner, assisted me. For if Dreams were, as teaches, sent from the Throne Rh


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340

T yet deep Night (as I imagin'd) when I wak'd with the noise of People up in the House. I call'd to know the matter; and was told that had a little before parted with his Friends; after which he went out to take his Morning-Walk, but wou'd return (they thought) pretty soon: For so he had left word; and that no-body in the mean time shou'd disturb my Rest.

was Disturbance sufficient, when I heard it. I presently got up; and finding it light enough to see the Hill, which was at a little distance from the House, I soon got thither; and at the foot of it, overtook ; to whom I complain'd of his Unkindness. For I was not certainly (I told him) so effeminate and weak a Friend, as to deserve that he shou'd treat me like a Woman: Nor Rh


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 in height. In a very few years they will have attained a size sufficient to make them useful as poles.

This quality of rapid growth of the suckers is also a great advantage in the production of nuts. When the trees are cut for lumber, the resulting shoots can be grafted in a year. Fruit can be had as quickly as from the apple tree, or even more quickly in many varieties of chestnuts. I cannot definitely compare the American with the Chinese chestnut, but my experience with molissima shows it also to be a vigorous maker of suckers, and certainly not far behind the American.

The native American chestnut has a delicious flavor, but very little use was made of these nuts, considering the fact that they once grew wild to the extent of millions of bushels scattered over hundreds of thousands of square miles of the eastern United States. The Indians mixed chestnut and acorn meal to make bread baked in cornhusks, but for the European population of this country, the small size of the chestnuts was against them, in addition to the weevil worms. The nuts were a source of income for the Appalachian mountaineer in many sections and for boys on farms from Maine to Georgia. Looking for the beautiful brown nuts under the trees in the woods, on farmsteads and in fence rows is a lure to the hunting instincts of man.

Only a few million pounds were sent to American markets. These nuts were eaten along the street, at Hallowe'en parties, and beside the open fire after supper; perhaps we should not omit their service in school to alleviate for country boys the tedium of lessons. American wild chestnuts were important to the Indian, the squirrel, the opossum, the bear, and the frontiersman's hog; but a century and a quarter after the Declaration of Independence, they rotted by the million bushels in the forests from Vermont to Alabama.

The great drawback of the American chestnut was its small size and the added disadvantage that many nuts stuck fast in the bur and had to be removed by force. These disadvantages helped to make the Indian's corn preferable as the frontiersman's chief crop. For the same reason the large nuts of Europe

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the fishermen were employed in making the preparations for an equitable division of their spoils, Elizabeth and her friend strolled to a short distance from the group, along the shores of the lake. The shades of evening had been gradually gathering around the scene, during the draught of the net, and, while the objects in the vicinity of the fire were still distinct, and even vivid, the surrounding darkness became deeper, both by the contrast, and the advancing dominion of the night. After reaching a point, to which even the brightest of the occasional gleams of light from the fire did not extend, the ladies turned, and paused a moment, in contemplation of the busy and lively party they had left, and of the obscurity, which, like the gloom of oblivion, seemed to envelope the rest of the creation.

"This is indeed a subject for the pencil!" exclaimed Elizabeth. "Observe the countenance of that wood chopper, while he exults in presenting a larger fish than common to my cousin Sheriff; and see, Louisa, how handsome and considerate my

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24 to the “terms, conditions, or privileges of employment,” as this Court rightly concluded. Meritor Savings Bank, FSB v. Vinson, 477 U. S. 57, 64 (1986) (internal quotation marks omitted). An amicus brief supporting the plaintiffs suggests that the plaintiffs’ interpretive approach is supported by the interpretive approach employed by the Court in its landmark decision in Brown v. Board of Education, 347 U. S. 483 (1954). See Brief for Anti-Discrimination Scholars as Amici Curiae 4. That suggestion is incorrect. Brown is a correct decision as a matter of original public meaning. There were two analytical components of Brown. One issue was the meaning of “equal protection.” The Court determined that black Americans—like all Americans—have an individual equal protection right against state discrimination on the basis of race. (That point is also directly made in Bolling v. Sharpe, 347 U. S. 497, 499–500 (1954).) Separate but equal is not equal. The other issue was whether that racial nondiscrimination principle applied to public schools, even though public schools did not exist in any comparable form in 1868. The answer was yes. The Court applied the equal protection principle to public schools in the same way that the Court applies, for example, the First Amendment to the Internet and the Fourth Amendment to cars.

This case raises the same kind of inquiry as the first question in Brown. There, the question was what equal protection meant. Here, the question is what “discriminate because of sex” means. If this case raised the question whether the sex discrimination principle in Title VII applied to some category of employers unknown in 1964, such as to social media companies, it might be a case in Brown’s second category, akin to the question whether the racial nondiscrimination principle applied to public schools. But that is not this case.

By contrast, this case involves sexual orientation discrimination, which has long and widely been understood as distinct from, and not a form of, sex discrimination. Until now, federal law has always reflected that common usage and recognized that distinction between sex discrimination and sexual orientation discrimination. To fire one employee because she is a woman and another employee because he is gay implicates two distinct societal concerns, reveals two distinct biases, imposes two distinct harms, and falls within two distinct statutory prohibitions.


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 To Face Supplementary Plate No. 369.

plate shows a remarkable instance of witches' broom, growing on a larch, which I first heard of from Col. Malcolm of Poltalloch, Argyllshire, to whom I am much indebted for the photograph. This tree grows in a wood called Bar-na-sluid, about two miles from Poltalloch, at perhaps 200 ft. above sea-level, and is believed to be 60 or 70 years old. When I saw it in September 1911, it appeared to be quite healthy, and was about 48 ft. by 5 ft. The dense mass of twigs forming the witches broom was about 15 ft. wide and 10 ft. deep. A stunted spruce grew close to the base of the tree, which was cut away in order that the photograph might be taken.


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Rh To be sure, as Judge Lynch appropriately recognized, it is “understandable” that those seeking legal protection for gay people “search for innovative arguments to classify workplace bias against gays as a form of discrimination that is already prohibited by federal law. But the arguments advanced by the majority ignore the evident meaning of the language of Title VII, the social realities that distinguish between the kinds of biases that the statute sought to exclude from the workplace from those it did not, and the distinctive nature of anti-gay prejudice.” 883 F. 3d, at 162 (dissenting opinion).

The majority opinion insists that it is not rewriting or updating Title VII, but instead is just humbly reading the text of the statute as written. But that assertion is tough to accept. Most everyone familiar with the use of the English language in America understands that the ordinary meaning of sexual orientation discrimination is distinct from the ordinary meaning of sex discrimination. Federal law distinguishes the two. State law distinguishes the two. This Court’s cases distinguish the two. Statistics on discrimination distinguish the two. History distinguishes the two. Psychology distinguishes the two. Sociology distinguishes the two. Human resources departments all over America distinguish the two. Sports leagues distinguish the two. Political groups distinguish the two. Advocacy groups distinguish the two. Common parlance distinguishes the two. Common sense distinguishes the two.

As a result, many Americans will not buy the novel interpretation unearthed and advanced by the Court today. Many will no doubt believe that the Court has unilaterally rewritten American vocabulary and American law—a “statutory amendment courtesy of unelected judges.” Hively, 853 F. 3d, at 360 (Sykes, J., dissenting). Some will surmise that the Court succumbed to “the natural desire that beguiles judges along with other human beings into imposing their own views of goodness, truth, and justice upon others.”


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26 Furman v. Georgia, 408 U. S. 238, 467 (1972) (Rehnquist, J., dissenting).

I have the greatest, and unyielding, respect for my colleagues and for their good faith. But when this Court usurps the role of Congress, as it does today, the public understandably becomes confused about who the policymakers really are in our system of separated powers, and inevitably becomes cynical about the oft-repeated aspiration that judges base their decisions on law rather than on personal preference. The best way for judges to demonstrate that we are deciding cases based on the ordinary meaning of the law is to walk the walk, even in the hard cases when we might prefer a different policy outcome.

In judicially rewriting Title VII, the Court today cashiers an ongoing legislative process, at a time when a new law to prohibit sexual orientation discrimination was probably close at hand. After all, even back in 2007—a veritable lifetime ago in American attitudes about sexual orientation—the House voted 235 to 184 to prohibit sexual orientation discrimination in employment. H. R. 3685, 110th Cong., 1st Sess. In 2013, the Senate overwhelmingly approved a similar bill, 64 to 32. S. 815, 113th Cong., 1st Sess. In 2019, the House voted 236 to 173 to amend Title VII to prohibit employment discrimination on the basis of sexual orientation. H. R. 5, 116th Cong., 1st Sess. It was therefore easy to envision a day, likely just in the next few years, when the House and Senate took historic votes on a bill that would prohibit employment discrimination on the basis of sexual orientation. It was easy to picture a massive and celebratory Presidential signing ceremony in the East Room or on the South Lawn.

It is true that meaningful legislative action takes time—often too much time, especially in the unwieldy morass on


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 dear father looks, by the light of that fire, where he stands viewing the havoc of the game. He seems really melancholy, as if he actually thought that a day of retribution was to follow this hour of abundance and prodigality! Would they not make a fine picture, Louisa?"

"You know that I am ignorant of all such accomplishments, Miss Temple."

"Call me by my Christian name," interrupted Elizabeth; "this is not a place, neither is this a scene, for the observance of forms."

"Well, then, if I may venture an opinion," said Louisa, timidly, "I should think it might indeed make a picture. The selfish earnestness of that Kirby over his fish, would contrast finely with the—the—expression of Mr. Edward's face. I hardly know what to call it; but it is—a—is you know what I would say, dear Elizabeth."

"You do me too much credit, Miss Grant," said the heiress; "I am no diviner of thoughts, or interpreter of expressions."

There was certainly nothing harsh, or even cold, in the manner of the speaker, but still it repressed the conversation, for a moment, and the maidens continued to stroll still further from their party, retaining each other's arm, but observing a profound silence. Elizabeth, perhaps conscious of the improper phraseology of her last speech, or perhaps excited by the new object that met her wandering gaze, was the first to break the present awkward cessation in the discourse, by exclaiming, in all the richness of her animated and animating voice—

"Look, Louisa! we are not alone; there are fishermen lighting a fire on the other side of the lake, immediately opposite to us: it must be in front of the cabin of the Leather-stocking!"

For some cause or other, Miss Grant had kept

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 her eyes bent in the direction of the pebbles, over which she was walking; probably because, being less adventurous than her companion, she was disposed to view what could be faintly discerned, without attempting the gloom, in a vain effort to pierce its mysteries; or probably for some better reason, that we leave our readers to imagine; but thus awakened, she looked up, in the direction pointed out by her friend, and saw, at once, the cause of her sudden exclamation.

Through the obscurity, which prevailed most immediately under the eastern mountain, a small and uncertain light was plainly to be seen, though, as it was occasionally lost to the eye, it seemed struggling for its existence. They observed it to move, and sensibly to lower, as if carried, down the descent of the bank, to the shore. Here, in a very short time, its flame gradually expanded, and grew brighter, until it became of the size of a man's head, when it continued to shine, a steady and glaring ball of fire.

Such an object, lighted as it were by magic, under the brow of the mountain, and in that retired and unfrequented place, gave double interest to the beauty and singularity of its appearance. It did not at all resemble the large and unsteady light of their own fire, being much more clear and bright, and retaining its size and shape with perfect uniformity.

There are moments when the best regulated minds are, more or less, subjected to the injurious impressions which few have escaped in infancy, and Elizabeth smiled at her own weakness, while she remembered the idle tales which were circulated through the village, at the expense of the Leather-stocking. The same ideas seized her companion, and at the same instant, for Louisa pressed nearer to her friend, as she said, in a low

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Rh Capitol Hill. But the Constitution does not put the Legislative Branch in the “position of a television quiz show contestant so that when a given period of time has elapsed and a problem remains unsolved by them, the federal judiciary may press a buzzer and take its turn at fashioning a solution.” Rehnquist, The Notion of a Living Constitution, 54 Texas L. Rev. 693, 700 (1976). The proper role of the Judiciary in statutory interpretation cases is “to apply, not amend, the work of the People’s representatives,” even when the judges might think that “Congress should reenter the field and alter the judgments it made in the past.” Henson, 582 U. S., at ___–___ (slip op., at 10–11).

Instead of a hard-earned victory won through the democratic process, today’s victory is brought about by judicial dictate—judges latching on to a novel form of living literalism to rewrite ordinary meaning and remake American law. Under the Constitution and laws of the United States, this Court is the wrong body to change American law in that way. The Court’s ruling “comes at a great cost to representative self-government.” Hively, 853 F. 3d, at 360 (Sykes, J., dissenting). And the implications of this Court’s usurpation of the legislative process will likely reverberate in unpredictable ways for years to come.

Notwithstanding my concern about the Court’s transgression of the Constitution’s separation of powers, it is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans. Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result. Under the Constitution’s separation of powers, however, I believe that it was Congress’s role, not this Court’s, to amend Title VII. I therefore must respectfully dissent from the


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 voice, stealing a timid glance towards the bushes and trees that overhung the bank near them—

"Did you ever hear the singular ways of this Natty spoken of, Miss Temple? They say that, in his youth, he was an Indian Warrior, or, what is the same thing, a white man leagued with the savages; and it is thought he has been concerned in many of their inroads, in the old wars."

"The thing is not at all improbable," returned Elizabeth; "but he is not alone in that particular."

"No, surely; but is it not strange, that he is so cautious with his hut? he never leaves it, without fastening it in a remarkable manner; and, in several instances, when the children, or even the men of the village have wished to seek a shelter there from the storms, he has been known to drive them from his door, with rudeness and threats. That surely is singular in this country!"

"It is certainly not being very hospitable; but we must remember his aversion to the customs of civilized life. You heard my father say, a few days since, how kindly he was treated by him on his first visit to this place." Elizabeth paused, and smiled, with an expression of peculiar archness, though the darkness hid its meaning from her companion, as she continued:—"Besides, he certainly admits the visits of Mr. Edwards, whom we both know to be far from a savage."

To this speech Louisa made no reply, but continued gazing on the object which had elicited her remarks. In addition to the bright and circular flame was now to be seen a fainter, though a vivid light, of an equal diameter to the other at the upper end, but which, after extending downward, for many feet, gradually tapered to a point, at its lower extremity. A dark spare was plainly visible between the two, and the new illu-

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 mination was placed beneath the other, the whole forming an appearance not unlike an inverted note of admiration. It was soon evident that the latter was nothing but the reflection, from the water, of the former, and that the object, whatever it might be, was advancing across, or rather over the lake, for it seemed to be several feet above its surface, in a direct line with themselves. Its motion was amazingly rapid, the ladies having hardly discovered that it was moving at all, before the waving light of a flame was discerned, losing its regular shape, while it increased in size, as it approached them.

"It appears to be supernatural!" whispered Louisa, beginning to retrace her steps towards the party.

"It is beautiful!" exclaimed Elizabeth.

A brilliant, though waving flame was now plainly visible, gracefully gliding over the lake, and throwing its light on the water in such a manner as to tinge it slightly; though, in the air, so strong was the contrast, the darkness seemed to have the distinctness of material substances, as if the fire were embedded in a setting of ebony. This appearance, however, gradually wore off, and the rays from the torch struck out, and enlightened the atmosphere in front of it, leaving the back-ground in a darkness that was more impenetrable than ever.

"Ho! Natty, is that you?" shouted the Sheriff—"paddle in, old boy, and I'll give you a mess of fish that is fit to place before the Governor."

The light suddenly changed its direction, and a long and slightly-built boat hove up out of the gloom, while the red glare fell on the weather-beaten features of the Leather-stocking, whose tall person was seen erect in the frail vessel, wielding, with all the grace of an experienced

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 boatman, a long fishing spear which he held by its centre, first dropping one end and then the other into the water, to aid in propelling the little canoe of bark, we will not say through, but over the water. At the farther end of the vessel, a form was faintly seen, guiding its motions, and using a paddle with the ease of one who felt there was no necessity for extraordinary exertions. The Leather-stocking struck his spear lightly against the short staff which upheld, on a rude grating framed of old hoops of iron, the knots of pine that composed the fuel; and the light, which glared high, for an instant fell on the swarthy features, and dark, glancing eyes of Mohegan.

The boat glided along the shore until it arrived opposite to the fishing-ground, when it again changed its direction, and moved on to the land, with a motion so graceful, arid yet so rapid, that it seemed to possess the power of regulating its progress by its own volition. The water in front of the canoe was hardly ruffled by its passage, and no sound betrayed the collision, when the light fabric shot on the gravelly beach, for nearly half its length, Natty receding a step or two from its bow, in order to facilitate the landing.

"Approach, Mohegan," said Marmaduke: "approach, Leather-stocking, and load your canoe with the bass. It would be a shame to assail the animals with the spear, when such multitudes of victims lie here, that will be lost as food for the want of mouths to consume them."

"No, no, Judge," returned Natty, his tall figure stalking over the narrow beach, and ascended to the little grassy bottom where the fish were laid in piles; " I eat of no man's wasty ways. I strike my spear into the eels, or the trout, when I crave the creaters, but I would'nt be helping to such a

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 sinful kind of fishing, for the best rifle that was ever brought out from the old countries. If they had fur like a beaver, or you could tan their hides, like a buck, something might be said in favour of taking them by the thousands with your nets; but as God made them for man's food, and for no other disarnable reason, I call it sinful and wasty to catch more than can be eat."

"Your reasoning is mine," cried Marmaduke; "for once, old hunter, we agree in our opinions; and I heartily wish we could make a convert of the Sheriff. A net of half the size of this would supply the whole village with fish, for a week, at one haul."

The Leather-stocking did not relish this alliance in sentiment, and he shook his head doubtingly, as he answered—

"No, no; we are not much of one mind, Judge, or you'd never turn good hunting grounds into stumpy pastures. And you fish and hunt out of rule; but to me, the flesh is sweeter, where the creater has some chance for its life; for that reason, I always use a single ball, even if it be at a bird or a squirrel; besides, it saves lead, for, when a body knows how to shoot, one piece of lead is enough for all, except hard-lived animals."

The Sheriff heard these opinions with great indignation, and when he completed the last arrangement for the division, by carrying, with his own hands, a trout of a large size, and placing it on four different piles in succession, as his changeful ideas of justice required, he gave vent to his spleen by exclaiming—

"A very pretty confederacy, indeed! Judge Temple, the landlord and owner of a township, with Nathaniel Bumppo, a lawless squatter, and professed deer-killer, in order to preserve the

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