Despite my reservations about judicial over-reach, the political response is certainly worth noting. This would be sure to drive the GOP-haters and the Trump-demonizers up the wall, if they bothered to consider it:
Author Archives: Stephen H. Miller
Reflections on the Ruling
Many progressive activists and their media allies, in cheering the Supreme Court’s ruling in Bostock v. Clayton County, suggest that the decision is great and good because ending anti-LGBT employment discrimination is great and good. There is an absence of qualms about the fact that the Supreme Court is not meant to be a super-legislature, overriding Congress when that body fails to do what’s right. Ultimately, that’s not a good thing for our nation.
As I noted previously, a ruling extending the Civil Rights Act to LGBT Americans is preferable to passing the awful Equality Act, which would gut the religious freedom protections in the bipartisan Religious Freedom Restoration Act, although the Fairness for All Act would strike a better balance. That said, I tend to agree with the dissents to the ruling.
While Justice Alito goes overboard in his hostility to the majority’s legal analysis, he is correct in his central point:
Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on any of five specified grounds: “race, color, religion, sex, [and] national origin.” 42 U. S. C. §2000e–2(a)(1). Neither “sexual orientation” nor “gender identity” appears on that list. For the past 45 years, bills have been introduced in Congress to add “sexual orientation” to the list, and in recent years, bills have included “gender identity” as well. 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. 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.
Justice Kavanaugh makes a similar argument but acknowledges some important realities:
The policy arguments for amending Title VII are very weighty. The Court has previously stated, and I fully agree, that gay and lesbian Americans “cannot be treated as social outcasts or as inferior in dignity and worth.” Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 584 U. S. ___, ___ (2018) (slip op., at 9).
But we are judges, not Members of Congress. And in Alexander Hamilton’s words, federal judges exercise “neither Force nor Will, but merely judgment.” The Federalist No. 78, p. 523 (J. Cooke ed. 1961). Under the Constitution’s separation of powers, our role as judges is to interpret and follow the law as written, regardless of whether we like the result. Cf. Texas v. Johnson, 491 U. S. 397, 420–421 (1989) (Kennedy, J., concurring). Our role is not to make or amend the law. …
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 Court’s judgement.
Walter Olson noted in his commentary:
As a policy matter, extending anti‐discrimination law further into private employment decisions invades further the realm of private choice and individual liberty. As Alito notes in his dissent, it is especially hazardous to do so without the sort of conscious legislative back‐and‐forth that might result in the negotiation of thresholds and exemptions so as to handle controversial or burdensome cases. In the longer run, when Congress revisits this area in legislation, it will have a chance to rethink these points.
However, when “Congress revisits this area” it is likely to be with Democratic Party majorities that will remove any “thresholds and exemptions” that acknowledge historic rights of religious dissent from the majority.
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The Supreme Court Rules
WASHINGTON: The high court, in a 6-3 decision, said the broad language of the Civil Rights Act of 1964, which outlaws workplace discrimination on the basis of sex, should be read to cover sexual orientation as well. Conservative Justice Neil Gorsuch wrotehttps://t.co/cV3lQg3lBX
— LGBTory Canada (@LGBToryCanada) June 15, 2020
Please remember that Democrats almost all voted against Neil Gorsuch and warned in apocalyptic terms that he would assault LGBT rights and repeal gay marriage.
— Brad Polumbo ?? ?️? (@brad_polumbo) June 15, 2020
Gorsuch’s left-wing critics look more ridiculous than ever.
I have said that a ruling extending the Civil Rights Act to LGBT Americans would be far preferable to passing the awful Equality Act, which would gut the religious freedom protections in the bipartisan Religious Freedom Restoration Act. However, the Fairness for All Act would strike a better balance.
Worth repeating:
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Conflicting Rights
From the Log Cabin Republicans’ fact sheet on the HHS Obamacare Revisions:
“The Government can’t force doctors to perform procedures that they are medically, professionally or morally opposed to performing. Remember, this is a ruling on the type of procedures, not the type of patients.”
Also from the LCR fact sheet:
So was anything “rolled back?” No – you can’t ‘roll back’ something that was never actually implemented.
So this isn’t LGB, just T(ransgender)? Yes, just gender identity.
So do medical care providers now have license to discriminate against transgender individuals for things like cancer, a broken arm or the common cold? The latitude now allowed is not in the patient – it’s in the course of treatment.
Update: Following the U.S. Supreme Court decision in Boystock v. Clayton County, it’s likely the revised rule will fall. That will make activists happy but means continued conflict with faith-based healthcare providers who the state will require to perform gender-reassignment procedures that violate deeply held faith convictions. As Justice Alito wrote in his dissent:
Healthcare benefits may emerge as an intense battleground under the Court’s holding. Transgender employees have brought suit under Title VII to challenge employer-provided health insurance plans that do not cover costly sex reassignment surgery. Similar claims have been brought under the Affordable Care Act (ACA), which broadly prohibits sex discrimination in the provision of healthcare.
Such claims present difficult religious liberty issues because some employers and healthcare providers have strong religious objections to sex reassignment procedures, and therefore requiring them to pay for or to perform these procedures will have a severe impact on their ability to honor their deeply held religious beliefs.
To the secular left, that is of no consequence, but it should be to those who value the liberties historically protected by the U.S. Constitution.
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Pride 2020
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GOP Moves Forward, with Pockets of Resistance
Not your father’s GOP:
BREAKING: Rep. Denver Riggleman, who became a target of conservatives after officiating a same-sex wedding last year, was ousted Saturday by GOP voters in a drive-thru district convention https://t.co/oVezKLetG2
— POLITICO (@politico) June 14, 2020
VA GOP: Our state has turned blue. Let’s put a tiny number of hardcore right-wing activists in charge of selecting our candidates. This will allow us to fulfill cartoonish stereotypes by purging an incumbent, without a primary, because he officiated friends’ same-sex wedding.? https://t.co/YSNlhCLIXQ
— Guy Benson (@guypbenson) June 14, 2020
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Facts of Life
Exactly. https://t.co/50TUXiucH8
— LGB Alliance (@ALLIANCELGB) June 6, 2020
Rowling has never made an ‘anti-trans’ tweet. This is ridiculous hyperbole and people are starting to wake up to the mass hysteria of “I saw Goody JK with the devil!” https://t.co/XkttxPe54M
— Lily Maynard (@LilyLilyMaynard) June 7, 2020
The children’s book industry is witnessing the most horrific onslaught of abuse towards a much-loved, measured, brave & generous woman author. The overwhelming silence from other authors, publishers, book organisations etc is disgraceful. You should all be ashamed of yourselves
— Rachel Rooney (@RooneyRachel) June 9, 2020
Update: In her own words:
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The Current Moment
these types of photos always used to be so bizarre, alien, other worldly, had zero points of reference, couldn’t understand how on earth this could have happened. All makes 100% perfect sense now. Unbelievable how easily tipped into this society can be. pic.twitter.com/YvyIzQaqjB
— animal life (@BasisOf) June 6, 2020
cultish https://t.co/B3O25NwqyO
— Brad Polumbo ?? ?️? (@brad_polumbo) June 7, 2020
The Religious Right was never even this obscenely authoritarian and demanding.
— Chad Felix Greene (@chadfelixg) June 7, 2020
On the moment when ‘anti-racism’ becomes racism: https://t.co/JE3gosqwyZ
— Douglas Murray (@DouglasKMurray) June 5, 2020
NY Mag won’t run Andrew Sullivan’s column, the New York Times can’t run a sitting senator without a woke freakout, the Lancet published a fake study about HCQ, and public health officials have now supported protesting during a pandemic https://t.co/7ACb241mah
— Arthur Bloom (@j_arthur_bloom) June 5, 2020
“The New York liberal press, once home to the most exciting journalism in the world, is being ruined — not from without but within. Its institutions are being taken over and dominated by a new-media generation who don’t care about free speech; who…?? https://t.co/lLJB7Q8VAA
— Christina Sommers (@CHSommers) June 6, 2020
If you think there’s momentum for institutional purges now, wait till some of the most zealous purge promoters are working with triple the budget and staff thanks to corporate guilt and celebrity bandwagon funding.
— Walter Olson ? (@walterolson) June 8, 2020
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Politics at Play
Bruce Bawer, reviewing David Horowitz’s latest book, writes:
“One demographic study after another has shown that the Democrats would never win another presidential election if they lost most of the black vote; and they richly deserve to lose the black vote, because their policies over the last half century have devastated black communities, black families, black schools, and black jobs.”
I think this goes a long way in explaining what we’re now seeing.
#blacklivesmatter pic.twitter.com/wANujAyBNl
— Larry Elder (@larryelder) June 6, 2020
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Conservative Support Grows for Marriage Equality
Related:
#PrideMonth pic.twitter.com/YFkdrbeZnk
— Gregory T. Angelo (@gregorytangelo) June 2, 2020