SCOTUS Employment law ruling far more significant than DACA ruling (see Bauer article below) and non-action on gun rights this week.
Senator Lee rebukes Gorsuch reasoning (see Perkins article below)
Textualism, a concept of statutory construction championed by Justice Scalia, (RIP) is perverted by Justice Gorsuch to justify imparting meaning to words that were understood narrowly, in legislation that would never have passed had a present day expansive interpretation been the understanding. Gorsuch was incredibly dishonest, warped. We knew about the constitutional perversions of Roberts and the rest but now Gorsuch’s propensity for cross-dressing in liberal robes is apparent.
Articles of note from Jessica Prol Smith at The Federalist and Gary Bauer and Tony Perkins
The Supreme Court Just Turned A Law To Protect Women Into A Weapon Against Them
It’s laughable to argue that anyone who wrote — or read — the Civil Rights Act of 1964 understood ‘sex’ to mean anything other than male or female.
There are few things more ruthlessly differentiated “on the basis of sex” than the maternity ward at a hospital. I gave birth to my first child earlier this year. While I’ll spare you the details, it was an exquisite and exhausting case study in the differences between male and female.
Fifty-six years ago, lawmakers passed a federal employment law — Title VII of the Civil Rights Act of 1964 — to help ensure women wouldn’t be fired “because of sex” or conditions biologically tied to being a woman (specifically, pregnancy and childbirth). On Monday, however, a majority of U.S. Supreme Court justices retroactively redefined that federal law and the words “on the basis of sex” to be interpreted to include the more fluid, subjective, and personal notions of “gender identity” and “sexual orientation.”
With its decision in R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission (bundled with two other cases), a six-justice majority essentially reinvented the meaning of “sex” in federal employment law.
It isn’t plausible to argue — with a straight face at least — that the legislators who wrote the Civil Rights Act in the 1960s or any citizen reading it at the time understood “sex” to mean anything different than being a man or woman. Yet the court just decided to step outside its role as interpreter and revised federal law 50 years after it was enacted.
Justice Samuel Alito clearly said as much in his dissent: “There is only one word for what the Court has done today: legislation. The document that the Court releases is in the form of a judicial opinion interpreting a statute, but that is deceptive.”
My employer, Alliance Defending Freedom, represented R.G. & G.R. Harris Funeral Homes in the case dealing with the question of “gender identity.” The Harris case centers on a family-owned business in the Detroit metro area.
Over five generations, the Harris name served as the gold standard in its community, earning a reputation for serving grieving families with compassion and integrity. Part of that impeccable service included a sex-specific dress code for funeral home employees — muted attire that allowed families to focus on processing their grief. The dress code was an industry standard and one allowed by federal law.
In 2007, the funeral home’s owner, Tom Rost, hired a male funeral director who agreed to — and followed — Harris’s policies. Six years later, however, the funeral director announced intentions to dress and present as a woman when working with grieving families. Tom considered the impact on the employee, the funeral home’s other employees, and the needs of the grieving families.
With a burdened heart, Tom decided he could not accommodate the request and parted ways with the funeral home director. The Equal Employment Opportunity Commission filed a lawsuit on the funeral director’s behalf, deciding to use the funeral home as a test case to rewrite Title VII.
Thanks, in part, to Monday’s decision, attorneys will debate the meaning of “textualist” for years to come. But even if one celebrates the policy achieved by Monday’s decision, the method matters. The majority’s decision leaves Americans, including business owners and employees, unable to rely on what the law says — and that’s a problem for all Americans.
Even if, however, the court had deferred to Congress as it should have, redefining sex to include gender identity and sexual orientation would still create chaos and be unfair to women and girls.
In light of this challenge, progressivefeminists and religious conservatives have found common ground—arguing that being a woman is a biological reality. In a recent, eloquent essay, J.K. Rowling wrote, “But, as many women have said before me, ‘woman’ is not a costume. ‘Woman’ is not an idea in a man’s head. ‘Woman’ is not a pink brain, a liking for Jimmy Choos, or any of the other sexist ideas now somehow touted as progressive.”
Although Monday’s decision focused on a small section of American employment law, the effort to rewrite federal legislation could quickly extend to women’s athletic and educational opportunities protected by Title IX.
Similar reasoning has already been used to sideline women and undermine the privacy and dignity of school-age girls. This logic has nearly forced vulnerable homeless women to choose between sleeping outside in the Alaskan winter or sharing a room with a violent man. It shouldn’t require expert testimony to explain that men and women are different — in athletics, in the maternity ward, or a whole range of other ways.
Neither pregnancy nor childbirth makes me a woman. But these beautiful and brutal tasks are possible only because of my biological make-up — the chromosomal reality imprinted on every cell within my body. Monday’s decision muddles our consensus about human identity and our shared understanding of language.
Many of us expect that women and girls will bear the brunt of this sweeping reinterpretation of the law and human relationships. But, with humility, we’ll keep making the case that true diversity allows for contrasting viewpoints and the ability to respectfully but robustly disagree.
DACA Disappointment – Gary Bauer 6/18/20
John Roberts strikes again. I am loath to include the word “Justice” in his title at this point because his rulings increasingly have little to do with justice.
Today, Roberts once again sided with the Supreme Court’s liberal bloc to prevent President Trump from ending Barack Obama’s quasi-amnesty program for some illegal immigrants. In a 5-to-4 opinion, Roberts ruled that Trump’s order repealing Obama’s order was “arbitrary and capricious [and] in violation of the Administrative Procedures Act (APA).”
Obama’s original order was “arbitrary and capricious.” And Obama essentially said so himself on multiple occasions when he initially resisted radical demands to unilaterally amend our immigration laws. But, as we know, he ultimately did so believing it would benefit him politically during a difficult reelection campaign.
The silver lining is that the majority’s opinion is a narrow ruling in that it was only a process decision that avoided larger constitutional issues. Roberts wrote: “We do not decide whether DACA or its rescission are sound policies. . . The dispute is instead primarily about the procedure the [Department of Homeland Security] followed in [repealing DACA].”
So the Trump Administration can try again to find some justification that will pass muster with John Roberts.
As you may recall, Roberts used this same twisted logic to prevent the Trump Administration from putting a citizenship question on census forms. He’s essentially telling the administration, “Yeah, you CAN do that, but not THAT way.”
But the effect is the same: He’s using process arguments to give liberals a big victory while allowing fundamental principles to fall by the wayside.
Rep. Jim Jordan blasted today’s decision, saying:
“By ruling that President Trump cannot terminate DACA in the same manner that President Obama used to start it, the Court’s decision creates two standards of executive power: One for President Obama and another for President Trump.”
Holding the Court in Contempt Tony Perkins at Family Research Council
At a time when Congress is lucky to scrape together an 11-percent confidence rating, a majority of Americans have expressed an unusual level of faith in our justices. Maybe they still believe SCOTUS is above the political fray. But trust in the court may become increasingly difficult after Monday’s “legislative” decision by six justices to redefine the meaning of biological sex.
The Supreme Court wasn’t built to write laws — so it shouldn’t be any surprise that they’re lousy at it. Justice Neil Gorsuch himself said the court would make rotten legislators, and then, to everyone’s surprise, set about proving it. Together with five other activists, he didn’t just decide to ignore the plain text of the law when he ruled men could be women — he ignored the plain facts of humanity. And, as far as Senator Mike Lee (R-Utah) and others are concerned, set America’s future down a path of absolute chaos.
“Justice Gorsuch took a meat cleaver to the issue of how the Civil Rights Act of 1964 should apply to LGBT individuals,” Senator Lee argued on “Washington Watch.” And because of that, he says, Congress is going to have to “figure out how to clean up the mess.” And it’s a big one. “The biggest problem,” he insisted, “was that he made a legislative determination. He effectively rewrote the law. And when you rewrite the law through a judicial opinion, that’s a very crude way to operate. It’s not precise and it leaves… all sorts of questions [especially for] for religious institutions… completely [unanswered].”
And the justices knew it. The majority was quite clear that all of these other issues their ruling created would have to wait for another day. “Unfortunately,” Senator Lee shook his head, “what that really means is we’re going to leave that for a lot of other days… I’m convinced that not only my children, but my grandchildren’s generation will still not see the end of litigation resulting from the Bostock decision. Because when you take this kind of cleaver to federal law, it’s going to take not just years, but decades to iron out all the details. And there are going to be some real heartbreaking stories in the wake of it.”
How Gorsuch, a man who calls himself a textualist, could even arrive at such a conclusion is astounding. His whole logic, Lee said, is “tortured.” And now the American people are the ones who have to live with the pain. Like Senator Josh Hawley (R-Mo.), who gave a floor speech for the ages on the need for conservatives to rise up and refuse to take this, Senator Lee hopes this is an aberration for Gorsuch. But either way, Republicans in particular have to “go beyond just taking [nominees] at their word… We cannot take chances anymore. There’s too much on the line.”
When these vacancies occur, we can’t just take the establishment’s word for it. We need to know from the nominees’ record that they will not remake the law in their own image. If that makes the appointment controversial, so be it. Otherwise, as Senator Hawley told me on Tuesday, what’s the point in even passing laws? “I mean, we may as well just let the justices tell us what they think should be the right policy in any given case.”
In the meantime, plenty of liberals in Congress are hoping to move forward with laws — dangerous ones like H.R. 5 that build on the court’s extremism. A parade of smug Democrats took turns on the Senate floor this morning demanding that Congress steamroll religious freedom even more by passing the Equality Act, which would mean an end to conscience rights, girls’ sports, privacy, women’s shelters, free speech, parental authority, autonomy in hiring and firing, and mandate for things like transgender surgery and treatment coverage and taxpayer-funded abortion.
“It’s one of the favorite tricks of the Left is to come up with legislation that has a title that… doesn’t sound at all menacing… Equality Act sounds nice until you stop and examine what it would actually do… The fact that this would openly threaten religious institutions and individuals throughout America who dare have divergent views, who dare act in conformity to their religious beliefs. This would end up having a punishing effect on them. To say nothing of what it would do to women’s athletics, what it would do to girls’ and women’s locker rooms, and restrooms in colleges and in public places. [It’s] scary.”
In the aftermath of the court’s legislating, a lot of people are asking: Why do we need Congress? Hopefully, in stopping horrible ideas like the Equality Act, we’re about to find out.
