(Article by Joy Pullman republished from TheFederalist.com)
The 6-3 majority included Chief Justice John Roberts, appointed by Republican President George W. Bush, and Associate Justice Neil Gorsuch, appointed by Republican President Donald Trump. These presidents promised voters their justices would uphold the rule of law and the Constitution, and were elected in significant part based on these now-broken promises.
This decision is a disgrace to these bedrocks of Western civilization, our nation built upon them, the voters who vote for them, and to these men’s honor. President Trump ran promising judges who wouldn’t murder America, and Gorsuch just gave him and everyone who voted for him a giant middle finger. The court’s newfound weakness will also be exploited and explored by leftist legal agitators whose goal is the destruction of the American system.
“There is only one word for what the Court has done today: legislation,” writes Justice Samuel Alito in a dissent Justice Clarence Thomas joined. “…A more brazen abuse of our authority to interpret statutes is hard to recall.”
“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,” Gorsuch wrote in the majority opinion. Alito torches this argument in numerous ways. Here’s just one:
At oral argument, the attorney representing the employees, a prominent professor of constitutional law, was asked if there would be discrimination because of sex if an employer with a blanket policy against hiring gays, lesbians, and transgender individuals implemented that policy without knowing the biological sex of any job applicants. Her candid answer was that this would ‘not’ be sex discrimination. And she was right.
“Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result… [But] [w]hen the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest,” Gorsuch asininely claims: You simply rewrite the “express terms of the statute” as a majority of justices please, just as the Supreme Court did in Roe v. Wade, and reason your way backwards into a politically predetermined conclusion no matter the meanings of the words Congress thought they were writing into law. “Sex” therefore transforms into “sexual orientation and gender identity,” concepts unknown when the 1964 law was passed.
“The precedents set here will have major implications… This will mean that legislators actually won’t know what they are voting to pass—because words might change cultural meaning dramatically between the time of passage and some future court case,” writes Russell Moore, president of the Ethics and Religious Liberty Commission.
Courts are not supposed to legislate because citizens cannot consent to legislation imposed by courts, and have no direct means for altering Supreme Court decisions like we can alter laws through our elected representatives. When courts legislate, they disenfranchise the people. They invalidate our votes, our God-given natural right to rule ourselves. By adding words to statute that Congress did not put there, and has repeatedly and explicitly refused to add, these judges are destroying our Constitution, our way of life, the people’s sovereignty, and thus our human dignity.
This is a salient example of what Christopher Caldwell calls the United States’ second constitution, which is at war with its first: the identity politics laws and regulations passed largely since the 1960s in the name of “antidiscrimination.”
“Just as assuming that two parallel lines can meet overturns the whole of Euclidean geometry, eliminating freedom of association from the U.S. Constitution changed everything,” Caldwell writes in “Age of Entitlement.” At the time, it wasn’t obvious how “extra rights” could destroy natural rights. But it is now.
As Alito notes, the Supreme Court’s addition of “gender identity” to protected employment classes may cause lawsuits claiming “that the failure to use [transgender people’s] preferred pronoun violates one of the federal laws prohibiting sex discrimination. The Court’s decision may also pressure employers to suppress any statements by employees expressing disapproval of same-sex relationships and sex reassignment procedures.”
In other words, “antidiscrimination” and free speech cannot coexist. Neither can legal identity privileges coexist with freedom of association: “if a religious school teaches that sex outside marriage and sex reassignment procedures are immoral, the message may be lost if the school employs a teacher who is in a same-sex relationship or has undergone or is undergoing sex reassignment. Yet today’s decision may lead to Title VII claims by such teachers and applicants for employment,” writes Alito.
Given all that has happened after Obergefell v. Hodges, which we were vociferously told was ridiculous to forecast — transgenderism immediately going mainstream, pushing religion inside the closet LGBT people were vacating, limiting people’s ability to freely express their faith and ideas, forcing education institutions to promote LGBT politics and behavior — it’s naive to think such scenarios will not quickly become reality as a result of this court decision.
This decision also cements public schools’ status as social enforcers and subsidizers of far-left politics, as they can have no potential legal defense against a teacher switching genders in front of students, putting boys in girls’ locker rooms and sports, or teaching preschoolers that Heather can have two or even three mommies. Queer theory is now reigning U.S. employment law. This means it must also dominate all institutions of higher education that are not explicitly religious, both public and private.
Religious schools and homeschooling now offer the only potential safe haven to parents who don’t want their children indoctrinated to believe it’s awesome to amputate healthy penises and breasts. Even those options are under threat, and it will take oodles of litigation to work out the details.
Rod Dreher has more on this: “John Bursch of Alliance Defending Freedom, which represented one of the losing plaintiffs in one of the SCOTUS cases, …points out that religious liberty is still very much in play, and will be at issue in future cases. But what SCOTUS has done today is to redefine ‘sex’ to include ‘sexual orientation and gender identity.’ Because of that, he said, ‘there is no end in sight to that kind of litigation.'”
This is litigation LGBT activists are very well-prepared, motivated, and well-financed to pursue. Given Republican politicians’ history of cravenly sacrificing Americans’ constitutional rights to gaslighting from identity politics agitators who don’t vote for Republicans, most notably when Vice President Mike Pence was governor of Indiana, we’d all better redirect any donation from Republican campaigns to legal protection like ADF and The Becket Fund.
This is a time to redouble pressure on Republicans to stop helping Democrats shred the Constitution and Americans’ natural rights, withdrawing support from them if they do not. This decision makes Congress irrelevant, unless they decide to make themselves relevant again by eliminating the underlying law on which this decision is based.
The last century of abdicating their responsibilities when in power shows Republicans are not keen on defending our rights. They’d prefer to give rousing speeches about our rights at conventions like CPAC while scapegoating our continued loss of these rights on the judges and the bureaucracy they’re supposed to oversee. That needs to end, and for it to end, all constitutional hypocrites need to be made uncomfortable until they do the right thing.
We must learn how to be effective in expressing our ideas. People need to frequently contact their representatives about this issue, and get on the email lists of state and national groups working on this issue — like Mass Resistance, the Hands Across the Aisle Coalition, the Americian Family Association, Family Research Council, 4thWaveNow, and Transgender Trend — to read up on this issue and take action on bills.
All elected officials and candidates need to start being asked in public, on videos immediately posted to social media, why they aren’t doing anything to keep naked men from getting access to naked girls in showers, bathrooms, and locker rooms. Republicans need to be asked how they can tell us to vote for them “because judges” when their Supreme Court nominees just passed an LGBT version of Roe v. Wade that will lead to teaching preschoolers the confusing, anti-science lie that “boys can have girl brains.”
They need to be asked on camera whether they support the Constitution’s unconditional guarantees of freedom of association, freedom of speech, and the freedom to worship, and if not, how they can take an oath of office swearing fealty to that Constitution. They should be asked how they can justify not voting to eliminate Title VII now that the Supreme Court has made it a Trojan horse for forcing lingerie shops to hire men to fit women’s bras and female beauticians to wax a man’s genitals. They should be asked what effective steps they are taking to ensure that taxpayer dollars do not finance genital mutilation, and that medical and therapeutic professionals lose their licenses if they mutilate the healthy bodies of underage boys and girls.
They should also be asked these questions in private from major donors, and primaried out of office when they answer the wrong way. Campaign donors’ businesses should be boycotted if they do not withdraw support for Republicans who can’t tell the difference between a man and a woman.
Fighting this may not work. That two-thirds of our nation’s highest court clearly despise the Constitution and the way of life it protects, and which it is their sole job to defend, may be yet another indication that the United States we know and love is heading into a dark night of oblivion, like all empires before it. If that is the case, however, I’m going down fighting as hard as I can.
Read more at: TheFederalist.com