Neil Gorsuch

The Supreme Court did it again. Once, they created a “right” to abortion out of whole cloth. Another time, they redefined the word “marriage”. Now they’ve redefined the word “sex” in such a way that it could very well bleed through to other parts of law and culture.

Is this how a “representative republic” is supposed to work? (Hint: No.)

Mentioned links:

Quote by James Madison

A Dilemma for Gorsuch’s Core Reasoning in Bostock

Alito: Court’s ‘Preposterous’ Trans Ruling Threatens Religion, Speech, Privacy, and Safety

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Show transcript

I want to start with a quote from James Madison from Federalist number 62. The Federalist Papers were written to persuade the public at the time of the founding of the United States of the benefits and potential pitfalls of the representative republic that was being proposed. Madison was honest about these issues, and here’s one of them.

It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?

OK, so the modern paraphrase of that might go something like this. “It won’t matter that the people elected their representatives if those representatives write and rewrite laws such that they are incomprehensible and constantly changing.”  With that in mind, I’d like to discuss the recent Supreme Court decision on Title 7 of the Civil Rights Act.

This section of the law guarantees equal treatment with regards to employment, based on factors including sex. Neil Gorsuch wrote the opinion for the majority where he turns himself into knots by redefining the word “sex” to also mean sexual preference and gender identity. While claiming to be a strict textualist and originalist, he first acknowledges that the writers of the law would not have meant anything other than biological sex. And then he goes on to base his decision on something other than that. But here’s the thing. Sex or gender is the reality of what you are. You have a specific set of chromosomes, period. When you speak of sexual preference, you’re adding what you do to that definition. And when you add gender identity to that, you’re adding how you feel, today, to that definition.

So if Madison were writing today, he might warn as well that if the meanings of words change, that too works against the rule of law. Also, that change was not made by our elected representatives, but by 6 unelected justices. What’s worse, this change to Title 7 is likely to bleed over into how courts interpret other laws.

For example, you may sometimes hear about Title 9. This is a section of what are called the Education Amendments (not the Civil Rights Act, which, to be honest, was news to me as I was researching this). Here’s what it says, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” There’s that word “sex” again. One result of Title 9 was equity between male and female sports, but if the definition here becomes as malleable as the one in Title 7, this is the beginning of the end of women’s sports. We’ve already seen examples here and there where biological males simply say they identify as females and then go on to dominate the sport. This ruling will very easily be seen as federal permission to do that everywhere. Either we’ll see capitulation at the local level, which Gorsuch guessed would not actually happen, or we’ll get a series of lawsuits trying to clarify Gorsuch’s lexical gymnastics. Either way, by redefining one word, he has introduced chaos while claiming to have given consistency.

But the worst part about this ruling has nothing to do with the subject of the case. Whether you agreed or disagreed with the outcome, how that momentous outcome was obtained should really bother you if you respect the Constitution. A ruling that makes a significant change to what the legislative branch of the federal government said should be left to the legislative branch, not the judicial one; to our elected representatives, not those appointed for life by whichever party was in power at one moment in time. Is that really a representative republic?  And all it takes is a 5-vote majority to get your way across the country. If you really do care about the Constitution, this judicial activism should worry and, yes, even anger you, again regardless of the particulars of the case. So take a look around; anyone cheering the ruling without the slightest bit of concern over how government is being twisted can, in the future, no longer honestly say that they care about the Constitution.

But of course, the signs have been there for a long time as to who does and who doesn’t care about the Constitution. Watch who was cheering this time around. The Obergefell decision that refined the word “marriage” was cheered by most, if not all, the same people. The Roe v Wade decision, which created a “right” to abortion or of whole cloth, was cheered by the same group of people. Sure, a lot of people cheering today weren’t even born then (though thankfully their mothers didn’t take advantage of the choice that Roe offered, which is rather ironic) but the crowd then and the crowd now have something in common; for the most part, they are on the Left. You knew that was coming, but how do you avoid it? If you respect the Constitution, you ought to respect the government it establishes. If you cheer when the latter is abused, you can’t then say you respect the former. If the republic is governed by 5 unelected people in black robes deciding what the law will say today, it’s no longer representative and it may no longer be a republic.

You know who I blame the most for this situation? Not those cheering it, and not the justices who vote for it, but rather the Congress that let it happen. Various bills have tried and failed to get the law changed through the people’s representatives, so instead the Left did an end-run around an entirely undefended left flank. Congress could have at least tried to shore up what Title 7 meant when they saw those challenges to the definition of “sex”, but they didn’t.

Those who skip out on their job are to blame. Those in the judiciary who get away with legislating and those who applaud when they do it, are worthy of criticism (a lot of criticism), but not worthy of blame.

Filed under: HomosexualityHuman SexualityJudiciaryTransgender