The Supreme Court’s holding this week in Bostock v. Clayton County that Title VII of the Civil Rights Act bars discrimination based on a person’s sexual orientation or status as a transgender person had two nominally conservative justices, John Roberts and Neil Gorsuch, joining the court’s liberals in expanding federal protections for the LGBT community. Even Justice Brett Kavanaugh, who dissented from the ruling, effectively apologized for doing so and congratulated gay and transgender Americans for their historic “victory.”
While reasonable people can disagree (presumably) about whether it is appropriate or necessary for federal law to prohibit such workplace discrimination—especially when many local and state laws, to say nothing of corporate policies and procedures, already do so—the fact remains that the high court’s decision advances a disturbing trend: it does violence both to the law and to the principle of the rule of law by twisting the original and clear meaning of Title VII of the Civil Rights Act.
The authors of the Civil Rights Act of 1964 were unambiguous: they criminalized discrimination based on “sex.” A person’s sex—as they understood it and as is, in fact, the case—is biologically determined and falls into one of only two categories: male or female.
In the mid-1960s, attitudes towards homosexuality and towards “transvestites” and “cross-dressers,” as they were then widely called, were almost uniformly hostile. These may be considered “identities” now, but in the 1960s their activities were considered criminal acts, clear signs of mental instability, or both. Thus, no one in Congress would have proposed legal protections for homosexuals or transgender persons, and, if they had, such legislation would not have passed.
These are facts. One can like them or dislike them, but one cannot will them to be something other than they are.
The Supreme Court’s recent reinvention of the meaning of the Civil Rights Act relies on the doctrine that the original wording of the legislation, and the intent of the lawmakers who passed it, doesn’t matter. All that matters is what contemporary society wants to use the 56-year old law for right now.
The political, cultural, and economic elite is virtually unanimous in viewing discrimination against gays and transgender people as obscene.
Therefore, since in the minds of the elite it would be nice if the Civil Rights Act of 1964 had abolished discrimination on the basis of sexual orientation and transgender status, the Supreme Court made the decision to pretend that it did. “Sex” now means whatever we want it to mean. In this case, we want it to mean that gay and transgender Americans will receive the same protections in the workplace as women do.
To the objection that the Supreme Court merely broadened the concept of “sex,” I would reply that anyone who is fired for having sex in the office break room, or for having sex with his boss’s wife, will quickly find that the broad-mindedness of federal judges has distinct limits.
The bigger problem here is that if no law or Constitutional provision has a fixed, static meaning, then every aspect of our legal and Constitutional system operates at the sole discretion of black-robed social justice warriors—for that is what most judges have become. We can expect that the law and the Constitution will be used time and time again to advance a “progressive” agenda, which the American people may or may not be ready to embrace, and which their elected legislators have declined to advance themselves.
This is a trend that began as early as the 1950s, when the Supreme Court mandated the desegregation of public schools nationwide, based primarily on the repurposing of the 14th Amendment. Those efforts gathered steam in the 1960s and ’70s when a whole host of political and social reforms were pioneered by activist judges.
Now, with the Supreme Court’s endorsement of gay marriage in 2015, and its recent prohibition of employment discrimination against gays and transgender Americans, the beat goes on.
The widespread celebration of the LGBT community’s “victory” must therefore be tempered by a rising concern that the integrity of our legal and constitutional system has been sacrificed on the altar of social progress and political expediency. After all, passing controversial legislation enshrining the rights of new groups is hard. Conjuring those rights into being by judicial fiat is comparatively easy. Doing that, however, begets an entirely new and potentially worse problem: the easier we make it for unelected judges to revolutionize our way of life and overturn the will of the people’s representatives, the more often they will do it.
If we are not already, we may someday find ourselves living in an America where the views of the voters and of the men and women in Congress are irrelevant, and the Justices of the nation’s highest court reign supreme over all of us.
In that case, we had better hope that Justices Roberts, Gorsuch, and Kavanaugh are familiar with the saying “Absolute power corrupts absolutely,” because their self-restraint may be the only hope we have of preventing a judicial tyranny from taking root on American soil.