For the past 45 years, bills have been introduced in Congress to add “sexual orientation” to the list,1 and in recent years, bills have included “gender identity” as well.2 But to date, none has passed both Houses. Last year, the House of Representatives passed a bill that would amend Title VII by defining sex discrimination to include both “sexual orientation” and “gender identity,” H. R. 5, 116th Cong., 1st Sess. (2019), but the bill has stalled in the Senate. An alternative bill, H. R. 5331, 116th Cong., 1st Sess. (2019), would add similar prohibitions but contains provisions to protect religious liberty.3 This bill remains before a House Subcommittee.
Because no such amendment of Title VII has been enacted in accordance with the requirements in the Constitution (passage in both Houses and presentment to the President, Art. I, §7, cl. 2), Title VII’s prohibition of discrimination because of “sex” still means what it has always meant. But the Court is not deterred by these constitutional niceties. Usurping the constitutional authority of the other branches, the Court has essentially taken H. R. 5’s provision on employment discrimination and issued it under the guise of statutory interpretation.4 A more brazen abuse of our authority to interpret statutes is hard to recall.
The Court tries to convince readers that it is merely enforcing the terms of the statute, but that is preposterous. Even as understood today, the concept of discrimination because of “sex” is different from discrimination because of “sexual orientation” or “gender identity.” And in any event, our duty is to interpret statutory terms to “mean what they conveyed to reasonable people at the time they were written.”
Justice Samuel Alito, Dissent
The Republic is never safe when the Supreme Court is sitting:
Republican-appointed Justices John Roberts and Neil Gorsuch joined the U.S. Supreme Court’s liberals Monday in ruling that longstanding anti-discrimination law should be reinterpreted to cover homosexuality and gender confusion, in a case that will have drastic ramifications on religious liberty and force Americans to adopt a “fluid” understanding of biological sex in scores of policies.
Gorsuch, President Donald Trump’s first addition to the nation’s highest court, wrote the majority opinion for the 6-3 ruling, which concluded that “sex disicrimination” in Title VII of the 1964 Civil Rights Act should be interpreted to mean sexual orientation and gender identity, in addition to its original biological meaning.
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“Today, we must decide whether an employer can fire someone simply for being homosexual or transgender,” Gorsuch wrote. “The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
The majority’s reasoning flies in the face of both the plain statutory meaning of “sex” in 1964 and the clear legislative intent of the lawmakers who drafted and passed the Civil Rights Act, as explained by Alliance Defending Freedom (ADF) senior counsel John Bursch. “There is little dispute that, in 1964, the term ‘sex’ was publicly understood, as it is now, to mean biological sex: male and female,” he writes. “After all, the term ‘gender identity’ wasn’t even part of the American lexicon at the time. Its first use was at a European medical conference in 1963. And no semblance of it appeared in federal law until 1990.”
But Gorsuch’s opinion panned the notion of authorial intent, a bedrock principle of judicial originalism, by declaring that judges “are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations. In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee.
Justices Samuel Alito and Clarence Thomas dissented, panning the majority opinion as “legislation” written under the “deceptive” guise of “interpreting a statute,” reminding the majority that the court’s duty “is limited to saying what the law is” rather than adding to it.
Trump’s other appointee, Justice Brett Kavanaugh, wrote his own dissenting opinion, in which he noted that the “responsibility to amend Title VII belongs to Congress and the President in the legislative process, not to this Court.”
Kavanaugh also wrote, however, that the majority opinion represented an “important victory achieved today by gay and lesbian Americans,” who “advanced powerful policy arguments,” displayed “extraordinary vision, tenacity, and grit,” and “can take pride in today’s result”… “notwithstanding my concern about the Court’s transgression of the Constitution’s separation of powers.”
More on this after I have read the decision, but what I have read is very dispiriting. The idea that the term sex can be stretched in this way makes a mockery of Congressional intent, and Kavanaugh’s gratuitous celebration of the result makes it apparent he is angling for the approval of the DC cocktail party set. Appalling. The idea that we have a conservative majority on the Court took a death blow today.
Most establishment republicans are more terrified by the thought of being called a bigot than losing their business to a lawsuit (or just plain having it burned to the ground).
So now we need a constitutional amendment defining sex?
Impeach and remove the 6 justices in the majority for legislating from the bench?
Maybe we should just elect the Supreme Court and let them appoint the Congress and the President.
Maybe we should just elect the Supreme Court and let them appoint the Congress and the President.
A judicial oligarchy might be the best description of our current system. “Least dangerous branch” my foot!
I’m not surprised Chief Justice Roberts would go the wrong way, but Gorsuch? Yes.
That loud whirling sound you hear is Antonin Scalia turning in his grave. His own protégée besmirches his legacy.
It’s another indication, in case you needed one, that our political class and our academic class is chock-a-bloc with people who have very little integrity. The appellate courts are the intersecting set of these two collections of fraudsters. Next to these people, the worst sort of car salesman is a paragon of decency.
Break up and redistribute the state’s in the 8th, 9th and 10th circuit courts by adding 2 additional circuits. Appoint a Supreme Court justice to oversee one circuit each, not including the Chief Justice. That gives you a court of 15 associates plus the Chief Justice. All cases appealed to the Supreme Court are heard by the Chief Justice plus 8 associates chosen by lottery.
Justices are appointed to a 25 year term and may be reappointed to a 2nd, 10 year term. 35 years is enough.
That won’t take the politics out. I hope it might reduce the intensity, because of the random factor.
I wonder how many establishment Republicans in Congress are actually small business owners?
DMcC, looking forward to your commentary on this decision.
It is abundantly clear that no one in this world is coming to save us. Not even the majority of so-called conservatives are willing to stand up to the New World Order, whether in the secular arena or the hierarchy of the Church.
I wonder how many establishment Republicans in Congress are actually small business owners?
I imagine quite a few among the rank and file. Not in the leadership.
John Boehner had a small business background. I haven’t been able to discover much about the work life of Kevin McCarthy and Steven Scalise ‘ere they entered politics. Paul Ryan’s work life from age 22 to age 29 consisted of political staff jobs. Dennis Hastert was a schoolteacher / coach for 16 years. Newt Gingrich was a college teacher for about 8 years. After he was discharged from the military, Robert Michel’s work life consisted of political staff jobs and elected office, forty years worth. John Rhodes was associated with the military for a decade or more before being elected to public office; his time as a working lawyer was spent in the JAG corps. Yurtle McConnell alternated between political staff jobs and law jobs for about 10 years ‘ere being elected to public office, never building much of a client list. Trent Lott was an employee of the US Congress from the time he received his law degree at age 25 (first on staff, then in office) to the time he departed Congress at age 64, after which he landed a lobbying gig. From the age of 29 (when he’d completed his rehabilitation program and his law degree) to the age of 73, Robert Dole was on public payrolls. His experience as a working lawyer consisted of the six years he spent as corporation counsel of a small county. Hugh Scott was on public payrolls from the age of 25 to the age of 76; his experience as a working lawyer was in the district attorney’s office in Philly. Howard Baker was a lawyer in private practice for 17 years and Bill Frist was a surgeon for about 15 years. That’s as close to ‘small business as you get in regard to the adult life of those in charge of the Republican congressional caucuses the last 40-odd years (Boehner the notable exception).
Well if we were able to save ourselves we wouldn’t need a real Saviour now, would we?
It’s probably worth pointing out that the people driving this believes they are saving us –from ourselves –as Kavanaugh’s dissent demonstrates.
That comes from not believing in a Saviour.
I find this interesting:
https://www.usatoday.com/story/opinion/2019/09/10/liberal-supreme-court-justices-vote-in-lockstep-not-the-conservative-justices-column/2028450001/
But..but…but. we were told Catholic HAD to support Gorsuch and that we HAVE to vote for Trump b/c of nominations like Gorsuch.
https://catholicsforbiden.blogspot.com/2020/06/gorsuch-writes-opinion-on-major-supreme.html
Please Katherine, we need no
input from Catholics for Moloch.
As if Merrick Garland would have ruled differently.
As I’ve said before, maybe we should have kept the king?
Is law that goes against God and nature binding? Just asking.
The witness of psychological wreckage by persons with gender dysphoria having undergone surgical procedures and by children without a biological mother or father will eventually…. correct this. Unfortunately much human misery need now be endured before that happens.
David,
A giant flaming asteroid from the sky “will eventually…. correct this.”
I suspect less than that will have little “impact”.
Inconceivable.
We live under an oligarchy not a republic. We have a class of appointed for life – not elected, not answerable to we the people – issuing diktats based on whims, unicorn farts, and emptions.
Preposterous.
John F. Kennedy,
God promised Noah He wouldn’t send another flood. He didn’t promise no repeat of more divinely, eternally just deployment of fire and brimstone.
More likely than the flaming asteroid, the Yellowstone caldera will blow its stack and kill off what? 95% of us. It’s thousands of years overdue.
Sister Lucia wrote, “Father, a time will come when the decisive battle between the kingdom of Christ and Satan will be over marriage and the family.”
I doubt there’s sufficient time left for the Yellowstone caldera.
Years from now we will be seeing consequences from this ruling that we cannot imagine today.
Not to mention the chilling prospect of SCOTUS taking it upon itself to redefine other words, thus changing our laws. What’s next? “Speech”? “Life”?
A few years ago, ruling on the Obamacare mandate, the Court simply stretched the idea of what constitutes a “tax” to get a result it desired…
The idea of the Supreme Court legislating is disheartening, but we already crossed that bridge before this. At least in this decision they point to the language of the legislation, even if the way that they do so makes no sense whatsoever. In Obergefell v. Hodges (the same-sex marriage case) there wasn’t even much of an attempt to tie the decision into existing law. They broadly referred to the equal protection clause of the fourteenth amendment, but that begs the question about same-sex marriage being something that the government regulates and gives benefits to in the first place. This right was not developed out of any precedent or explicit language from previous legislation, but merely asserted into existence by the court.
In truth the Supreme Court justices can say whatever they want. They will usually give some polite fiction about merely interpreting the existing law, but that’s all it is. In fact they are ruling like the despots that they think that they are.
The only way to stop them is for the president and congress to give them Andrew Jackson’s reply.
I’d be happy if President Trump directed the executive branch to ignore the ruling, and dare the Congress to impeach him (again).
Once Scalia wrote Oncale, it was difficult to see how you could have same-sex harassment but not discrimination. The drafters of Title VII could not have reasonably foreseen outlawing that activity, either.
Yep, a bad call by Scalia in Oncale, proving once again that even Homer, the poet not the doofus, nods on occasion. Scalia of course was careful to limit his decision to harassment, as commentators noted at the time. The length of the Gorsuch monstrosity proves once again my belief that the longer a judicial decision the more sophistical it is going to be.
The Left always seeks control through the bastardization of language. For the Left, words “mean what I say they mean, neither more nor less.” This decision is another step on the path to tyranny.
Will this day be remembered as the day Trump lost the 2020 election?
Not trying to demoralize anyone, and I realize the alternative is worse, etc., but I can’t help but think he has just lost a decisive advantage (at least from the point of view of Catholic and/or pro-life voters). If the Supreme Court Judges he nominates are no better than the existing ones, him nominating judges ceases to be something to support and look forward to. History does seem to repeat itself: Republican-nominated judges are always a great victory for the Constitution, common sense and the defense of the unborn… until they actually vote (with a few notable exceptions, of course).
Yesterday was a very bad day, but a Biden victory, or the victory of whatever puppet master is pulling his senile strings, would be a very bad four years.
Well, Kavanaugh and Gorsuch will be in the Supreme Court for decades, so we can now expect those decades to be significantly worse.
Not that Democrat-nominated justices would have been better, of course.
Is it really that difficult to find reasonably decent justices who do not want to rule the country as judicial tyrants?
The problem with the Court is institutional and will probably be resolved only by constitutional amendment or revolution. I hope it is constitutional amendment.
The problem with the Court is institutional and will probably be resolved only by constitutional amendment or revolution. I hope it is constitutional amendment.
Institutional in part, cultural in part. The elite bar in this country is plain awful, and it’s hard to know whether the law professoriate or the appellate judiciary is worse. There’s a notional solution to this problem, but no means to implement it.
“The length of the Gorsuch monstrosity proves once again my belief that the longer a judicial decision the more sophistical it is going to be.”
I hate to be That Guy, but Gorsuch’s opinion takes up only 31 of the 172 pages of the Bostock pdf. The rest is the syllabus and the dissenting opinions. Whatever else it does, the majority opinion succinctly shows how we got from there to here with clarity.
Interestingly enough, Gorsuch inserts a discussion about the Religious Freedom Restoration Act, and the decision of one of the defendants to waive that defense on certiorari.
The litigation mills will need to add additional shifts, it appears.
The majority opinion is nowhere nearly as alarming or outrageous as the author, and others, suggest. Simply stated, Title VII bans discrimination based on sex. Having one dress code for men and another for women or one set of standards or permissible behaviors for women and another for men is clearly discrimination based solely on an individual’s sex. Furthermore, neither have any bearing on a. person’a ability to perform just about any job imaginable. Just as integrating gay people into the military caused none of the mass resignations predicted by opponents and equal marriage rights hasn’t led to the cascade of polygamy and beastiality predicted by opponents, society will survive this ruling on workplace discrimination.
Simply stated, Title VII bans discrimination based on sex. Having one dress code for men and another for women or one set of standards or permissible behaviors for women and another for men is clearly discrimination based solely on an individual’s sex.
Yes, and that has bupkis to do with the decision.
“Having one dress code for men and another for women”
….is not a problem under Title VII, so long as they do not involve unequal burdens for one sex or the other.
https://www.catholicculture.org/commentary/bostock-living-lie/
so long as they do not involve unequal burdens for one sex or the other.
I gather Mrs. Price is practical and isn’t collecting shoes and handbags.