Bostock v. Clayton County, the Supreme Court’s latest adventure in legislating, has already seen enough compelling analysis to raise some troubling questions. Here’s a quick overview.
Justice Kavanaugh, one of three dissenting justices, amply showed that the majority opinion did not interpret Title VII of the 1964 Civil Rights Act. Rather it rewrote it. In so doing, the Court arrogated to itself the authority to insert language into law that multiple previous congresses have decidedly rejected.
Those old enough to have been taught civics in school easily recognize this as a blatant “transgression of the Constitution’s separation of powers.” The Court’s bid, beginning with Marbury v. Madison, to be the final interpreter of the Constitution has reached the end of the line. It has rendered the Constitution incapable of limiting the Court.
The dissenting opinion of Justices Alito and Thomas was even more adamant. “There is only one word for what the Court has done today: legislation.” It emphasizes that our elected congressional representatives are currently considering legislation to address the very issue involved in Bostock. But rather than waiting for the legislative outcome of H.R. 5, the so-called “Equality Act,” the Court short-circuited this process.
In so doing, it effectively vacated more than 360 million ballots cast over the past six years. American voters elected 535 representatives to do the sensitive and gargantuan task of updating hundreds of lines of federal code.
The majority not only arrogated this task to themselves, but they did a lazy and ham-handed job of it. They rewrote a single line of the U.S. Code, sending shock waves through 167 different paragraphs of the same federal laws — but gave absolutely no attention to reconciling the contradictions they created.
Among the 167 questions left unanswered are whether men’s access to women’s dressing rooms and sports leagues will be mandated. We will have to wait to know if colleges, battered-women’s shelters and communal housing will force females to sleep in rooms with men. Patients will sue doctors both for removing healthy sex organs and for refusing to remove healthy sex organs. Only a future ruling will determine which one is discrimination on the basis of sex.
Any competent legislator would have been diligent to treat the law as an integrated whole and update it uniformly. The Bostock majority proved its incompetence by blandly asserting that all these “are questions for future cases.”
The Court acted like the worst of internet trolls. You know the type. You write a lengthy and detailed explanation of your position, then the troll comes along and twists a single word of your post, causing it to contradict every other sentence you wrote. By this sleight of hand, the troll pretends that you contradict yourself.
Here is a simple rule for attentive listening: When your interpretation of a single word is inconsistent with 167 separate statements from the same speaker, you should consider the possibility that your interpretation, not the speaker, is wrong. The prudent thing to do is to allow the plain meaning of 167 paragraphs to correct your misinterpretation of one statement.
But prudence is in short supply these days. Had Justice Gorsuch applied this rule, he might have looked more carefully at his own syllogism and seen that the opening paragraph of the Bostock opinion contains an equivocation that invalidates the entire opinion.
He wrote, “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions [namely acting contrary to his/her own nature] it would not have questioned in members of a different sex [nature]. Sex [nature] plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
As evident from the last sentence, Gorsuch understands “sex” to be a person’s unalterable nature. Transgenderism, and Gender Theory more generally, assert that “sex” is not a person’s nature, but an alterable trait. Indeed, the entire opinion argues that persons who declare themselves to be a sex different from what chromosomes, hormones and bodily organs indicate, have in fact changed natures.
Gorsuch’s foundational claim that sex is unalterable is precisely the position that recently caused the outrage mob to lash out at J.K. Rowling. True believers in Gender Theory want her canceled (a term used in pop culture meaning to make someone or something irrelevant) for saying “sex is determined by biology.”
How Justices Kagan, Breyer, Ginsburg and Sotomayor could have signed onto this opinion without incurring the wrath of the same mob should be puzzling. But, of course, no one is surprised by this contradiction. Contradictions are par for the course.
There is, however, a supremely greater puzzle that needs solving. How is it that six members of the highest court in the land, could not see this laundry list of inconsistent claims, illogical arguments, and unconstitutional usurpations of power? Millions of Americans with average intelligence saw them immediately.
What is more, the American public has had less than a week to digest the Bostock opinion. The Court’s majority has been arguing with Alito, Thomas and Kavanaugh since last October.
Gorsuch vehemently asserts that his opinion is driven by strict and principled “textualism” and that he had no choice in the matter. It is notable that he does not describe his position as “originalism.” By substituting textualism for originalism, he betrays that he has no intention of determining the original meaning of the text. It would be more aptly named, “pre-textualism.”
Still, his argument falls flat for three reasons.
First, neither “homosexual,” nor “transsexual” is, in fact, in the text. What is in the text has never been universally understood in the way that he claims. Only a small minority of gender theorists began to advance this argument in 2017 — 53 years after the text was written.
Second, Congress has acted on multiple occasions to reconsider the text precisely because it recognized that the text as written does not address homosexuality and transsexuality.
Third, of the six justices who signed on to Gorsuch’s opinion, the progressive block of Kagan, Breyer, Ginsburg and Sotomayor have a long and proud history of defying textualism at every turn. Is the American public supposed to believe that all four suddenly saw the truth of the late Justice Scalia’s wisdom?
So, what would possess the majority to write and join such an outlandish opinion? They knew full well that the constitutional arguments for judicial restraint were overwhelming. They knew full well that the language theory behind their opinion was the thinnest pablum of recent contrivance. They knew full well that they were overturning 56 years of settled law and offering nothing in its place.
They knew full well that their opinion would require decades of litigation costing millions upon millions of dollars, and would require suing countless doctors, churches, businesses and charities into oblivion. They knew full well that their opinion would adversely affect the most fundamental of freedoms to think, speak and act in accordance with reality.
So what possible goal could be so important that it is worth running roughshod over all these weighty considerations? The American people deserve a better answer than the majority opinion supplies. Bostock increasingly appears to be a pretext for the raw exercise of judicial power.
Jonathan Lange is an LCMS pastor in Evanston and Kemmerer and serves the Wyoming Pastors Network. He can be reached at [email protected] Follow his blog at OnlyHuman-JL.blogspot.com.