There’s a right way and a wrong way to change a law. The Constitution doesn’t provide that the Courts make the big decisions, leaving the inconsequential matters to Congress. And yet, nominally “textualist” Supreme Court Justices Gorsuch and Roberts joined with the”living document” Progressives to do it the wrong way.
Gorsuch wrote the majority opinion in Bostick v. Clayton County and got at least two points right:
- “When the express terms of a statute give us one answer and the extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.” and,
- There’s no way that the 1964 Congress would have intended for the word “sex” to include sexual orientation or gender identity.
In his 37 page argument, Gorsuch stuffed and fluffed strawman after strawman to fit an extratextual interpretation of “because of …sex” into the redefinition of “sex.” As noted in the dissents by Justices Alito & Kavenaugh, his is a redefinition that wasn’t even attempted when SCOTUS redefined “marriage” in Obergefeld.
In other words, as Justice Alito wrote in his dissent, Gorsuch and the majority “legislated.”
I agree that this law needed changing to give more protection to employees in the public market place. Congress should have been encouraged to work out those protections, while also preserving religious freedoms and single-sex spaces and even women-only sports. I can’t help but wonder whether – perhaps – both political Parties took a dive, hoping the Supreme Court would do exactly what they did.
And the Country will witness lawsuits, year after year, that might have been averted.
In the meantime, though, I’ll bet Senator Chuck Schumer feels caught in a whirlwind of his own. What price, now, Chuck?