Tuesday, June 16, 2020

Part I

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The Flawed Legal Logic in Yesterday’s Supreme Court Decision on LGBTQ and Discrimination

On Monday’s edition of The Briefing, I concluded by talking about the fact that so many of our cultures most contentious issues end up before some court and eventually, often before the Supreme Court of the United States. I did not intend to be a prophet, but the very next morning, the Supreme Court of the United States made that point emphatically by handing down a decision in bundled cases—the lead case was known as Bostock v. Clayton County, Georgia—in which a majority of the Supreme Court decided that civil rights protections going back to 1964 against sex discrimination now apply to LGBTQ persons, and in particular to gay and transgender persons.

It’s a stunning decision, not so much stunning in the fact that the Supreme Court addressed the issue, we knew the court had taken the case and oral arguments were heard in the closing months of 2019. We knew that a decision was coming before the court broke for its summer recess. We knew what had been at stake in the oral arguments, but very few people could have foreseen that this would be a 6-3 decision with the liberal justices of the Supreme Court joined by two justices, often categorized as conservative, appointed by Republican presidents. That would include the Chief Justice of the United States John G. Roberts, Jr., appointed to that post by President George W. Bush and Associate Justice Neil Gorsuch, appointed to the Supreme Court by President Donald Trump. And it was Gorsuch indeed, who ended up writing the majority opinion, the decision for the entire court.

Observers looking at the case may argue over this point or that, but they cannot deny that this case has massive precedential effect. That is to say it establishes a precedent. Now, putting that in context, this was not a decision over the Constitution of the United States as the governing text. That wasn’t the background. This was a case that had to do with statutory law. And the statute that was in question is the Civil Rights Act of 1964 and what is known as Title VII of that act. And that is the section of the law that bans discrimination on the basis of sex or sex discrimination.

Now, as was obvious and as even the majority of the court had to recognize, if you go back to 1964, it is not imaginable that anyone had in mind the LGBTQ revolution. Indeed, everyone would have had in mind that sex in this case refers entirely to a biological reality, definable as male or female. We’ll be looking further at this because in many ways it is the central issue in this case, the fact that sex means male or female, that it meant such in 1964, and as most of the justices recognized in most cases, it still means exactly the same thing today.

Nonetheless, six justices of the nation’s highest court proceeded to legislate from the bench that the 1964 act is now to be evaluated as including transgender and same-sex orientation as protected classes. They admit that wasn’t what was intended in 1964, but nonetheless, that is what the act must be interpreted to mean now. And the complications of that, the implications of the precedent, are absolutely massive. It’s going to be interesting by the way, to see how many attorneys, including some identified with evangelical or conservative Christianity argue against the fact that this decision will have a massive impact as precedent, but understand why they’re going to be making that argument. It is because they expect to be back in court very soon, making the argument that this case should not prevail in every engaging issue thereafter. But as we’re going to see, Justice Samuel Alito, in a scathing dissent understood exactly what is at stake.

Gorsuch for the majority said this, “We agree that homosexuality and transgender status are distinct concepts from sex, but as we’ve seen, discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex. The first cannot happen without the second.”

Now, what kind of sense does that make? Let’s just try to understand those words in the English language and try to figure out what sense is implied. Difficult as it is, let’s look at the inner thinking of the majority of the Supreme Court as now demonstrated in this lamentable precedent. Here’s what they decided: If you are a man in love with a man and you suffer discrimination for being romantically involved with a man romantically or sexually, or perhaps even marrying a man, insofar as same-sex marriage is now declared to be legal, if you are a man that has a relationship with a man and you lose your job or some other benefit for it, a woman in love with a man would not have lost the same opportunity. Therefore, it is discrimination on the basis of sex.

Now again, wait just a minute. You’re saying that it’s not on the basis of sex as to whether or not the man is a man or the woman is a woman, but rather the fact that now we are told that the Civil Rights Act of 1964 read through Title VII of that act means that what wasn’t even on the mind of the legislators who adopted the act nor the president of the United States, who signed it into law, that is now the prevailing doctrine of the Supreme Court of the United States. And we’re being told that the word “sex” actually in this context means sex, the majority says, at least in terms of something meant by those legal authorities and political leaders in 1964. Because again, if a woman loves a man, she is not punished for it. But if a man loves a man, he is. Therefore, it’s sex discrimination. That’s absolute nonsense, but it is now the prevailing doctrine of the Supreme Court of the United States and it’s going to have vast implications.

Almost immediately we recognize that this throws wide open the gates to a continual flood of litigation, in which cases are made that any policy undertaken by a Christian college or a university or an employer or a church, you just go down the list, private Christians engaged in business. Now you’re going to see that all of these issues become the focus of litigation with those who are pushing for the sexual revolution pointing to this case and saying, “Yes, look, they just declared that the Civil Rights Act of 1964 includes gay and lesbian, bisexual, transgender, all of those relationships and activities and lifestyles, you name it, all those orientations, it’s all included.” So, you have Justice Alito pointing out that this could quickly mean the elimination eventually of women’s sports in high schools and colleges who participate in Title IV funding. You could go down the list.

One of the big questions is after this, can you have restroom facilities or locker rooms that are designated by sex or gender as we say these days? The issue is, if the Civil Rights Act of 1964 Title VII is now read that any kind of discrimination on the basis of sexual orientation, including transgender identity is illegal discrimination, then how can any of these things stand?

Furthermore, we as Christians have to understand that this is a head-on collision when it comes to religious liberty and the sexual revolution. And in this case, it is aided and abetted indeed even accelerated by the six justice majority of the US Supreme Court, with none other than the Trump-appointed Justice Neil Gorsuch, writing the majority opinion.

Before leaving the majority opinion, I want to point out the in effect it just takes the Equality Act, which was brought forward before the Democratic majority in the House of Representatives. It could not have possibly gotten through the United States Senate, but nonetheless, it’s effectively now the law of the land by edict of the Supreme Court of the United States. This is exactly what the federal courts are not to do. They are not to usurp the entire political process, but that is what they have done.

And once again, the liberal progressives in this culture who have pressed for abortion rights, and you just go down the list, the legalization of same-sex marriage, they have won in the courts, what they could not win through the legitimate legislative process. And thus, they went to the courts and the courts will be long remembered in the course of American history, however long that history may last, as the eventual engines of loosening this country from its constitutional sanity and from the separation of the three branches of government, basically eroding the entire constitutional structure of the United States.

And conservatives in this country had believed that we were making headway on these issues by electing conservative presidents who would appoint conservative judges and justices. And by the way, that argument is not destroyed by the decision that was written by Neil Gorsuch yesterday and joined by the chief justice, but it is significantly weakened. It reminds us that on the left, liberals operate on the basis of an ideology. That’s a part of what makes the left in the modern sense the left. It has an ideology. It has a ticker of issues. But when it comes to conservativism, it is more a disposition or a set of principles. And furthermore, there’s more to this issue.

As you think about the Supreme Court of the United States or the role of the courts, conservatives have argued along with the founders of this nation for decades, that we should not be looking for outcome-based law. That is to say conservatives operating by conservative principles are not supposed to see judges and justices who will rule a certain way on a certain question, but rather will have a just understanding of the Constitution and commitments to our constitutional order and an understanding of how a text like the Constitution or law is to be read, which would eventually produce conservative results precisely because they would take away the courts power to operate without regard for the text.

In one of the most reckless portions of the majority opinion written by Justice Gorsuch. He writes this, “If anything, the employer’s new framing may only add new problems.” Now, the employers in this case were arguing against the fact that the Civil Rights Act of 1964 included sexual orientation in rendering illegal sexual discrimination. But then Gorsuch writes, “The employers assert that no one in 1964 or for some time after would have anticipated today’s result. But is that really true?” Gorsuch asked, “Not long after the law’s passage, gay and transgender employees began filing Title VII complaints, so at least some people foresaw this potential application.”

But yes, guess what, Justice Gorsuch? Those claims were considered absolutely wrong and illegitimate and were turned back both by the legislature and by the courts. Trying to be cute, he entangles himself in his own culpability for very flawed legal logic.

Part II

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What Is the Proper Role of the Supreme Court? Hint: It’s Not What It Did Yesterday — Legislate

Justice Alito, writing a dissent that was joined by Justice Clarence Thomas wrote, “There was only one word for what the court has done today, legislation. The document that the court releases is in the form of a judicial opinion, interpreting a statute, but that is deceptive,” he says. “Look at it. It is legislation.” He goes on to say, “Neither sexual orientation nor gender identity appears on that list,” that is Title VII of the Civil Rights Act in 1964. “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.”

Justice Alito says this, “Many will applaud today’s decision because they agree on policy grounds with the courts updating of Title VII. But the question in these cases is not whether discrimination because of sexual orientation or gender identity should be outlawed, the question is whether Congress did that in 1964. It indisputably did not.”

Now, the big warning that Justice Alito joined by Justice Thomas and later in a separate dissent Justice Kavanaugh made many of the same points. The central issue here is that the judiciary in general and the Supreme Court specifically is not charged in our Constitution to make law nor to correct law. It is assigned the responsibility to rule according to the Constitution of the United States and the statute. It is not to extend the logic of laws. It is not to do what Congress profoundly has been unwilling to do.

Justice Alito later writes, “If sex in Title VII means biologically male or female, then discrimination because of sex means discrimination because the person in question is biologically male or biologically female, not because that person is sexually attracted to members of the same sex or identifies as a member of a particular gender.” Profoundly true, explicitly true, self-evidently true, but denied by the six-person majority of the Supreme Court.

Justice Alito makes another very important historical point. If you go back to 1964, if you make the claim that sexual orientation, including the array now identified, not then, of course, but now identified as LGBTQ, the argument that somehow sexual orientation or same-sex orientation was to be included in that list of protected categories is undercut by a very simple fact, ignored by the majority of the court. In most states at that time, such sexual activities were actually illegal.

Justice Alito got right to the religious liberty issue when he wrote, “The position that the court now adopts will threaten freedom of religion, freedom of speech, and personal privacy and safety. No one,” said Justice Alito, “should think that the court’s decision represents an unalloyed victory for individual liberty.”

Justice Alito then outlined some of what he called the potential consequences of the court’s decision. But let’s recognize these really aren’t potential, at least in terms of claims that will be made in court against many employers, including Christian employers. Amongst these issues are bathrooms, locker rooms, and other things of that kind. “The court may wish to avoid this subject, but it is a matter of concern to many people who are reticent about disrobing or using toilet facilities in the presence of individuals whom they regard as members of the opposite sex.”

Justice Alito then said, “Under the court’s decision, however, transgender persons will be able to argue that they are entitled to use a bathroom or locker room that is reserved for persons of the sex with which they identify. And while the court does not define what it means by a transgender person, the term may apply to individuals who are gender fluid. That is individuals whose gender identity is mixed or changes over time.” Thus, he says, “A person who has not undertaken any physical transitioning may claim the right to use the bathroom or locker room assigned to the sex of which the individual identifies at that particular time.”

He goes on to talk about the complexities of this issue when it comes to education, elementary education, secondary education, and college and university education, especially for any of those schools that take any federal funds. That includes all the public schools at every level, public colleges and universities. That also includes the vast majority of private institutions who come under Title IX, precisely because they participate in federal student loan and aid programs.

And almost directly, Justice Alito then goes to the issue of women’s sports writing, “Another issue that may come up under both Title VII and Title IX is the right of a transgender individual to participate on a sports team or in an athletic competition previously reserved for members of one biological sex.” He says the issue’s already coming up under Title IX. Given the court’s majority opinion yesterday, it’s going to come up under Title VII.

He goes on from there to talk about challenges to housing and employment by religious organizations. He even goes so far as to say that the right of religious institutions, churches, and schools even to hire teachers consistent with the organization’s convictions is now very much in question. Once again, people may tell you this is not a big decision. Understand we’re going to be looking back for the rest of our lives to this decision handed down on June the 15th of 2020.

Justice Brett Kavanaugh on a separate descent wrote, “Many Americans will not buy the novel interpretation unearthed and advanced by the court today. Many will no doubt believe that the court has unilaterally rewritten American vocabulary and American law, a statutory amendment, courtesy of unelected judges.”

But I want to look at one further issue of the majority’s opinion that is particularly troubling and enormously revealing. The majority argues that, yes, it is true that the word “sex” in 1964 didn’t mean what they argue that it means now. Yes, they can see sexual orientation wasn’t included and nor was the transgender identity, nor was that even imaginable. Yes, they say. But nonetheless, when you are talking about a transgender person or you’re talking about a homosexual person, it is still an issue of sex discrimination. They’re holding to that. Six to three in this case.

But at this point, I would just like to introduce Justice Neil Gorsuch of the Supreme Court of the United States to Justice Neil Gorsuch of the Supreme Court of the United States, who in 2016, in an address to an audience at Case Western Reserve University said that the key issue for federal judges is understanding that they are to look backward, not so much to the president nor to the future. He says, the legislature looks forward. It adopts laws that are going to bind the people of the United States for years to come. Judges he says, or he said then, are not to do that. They are to look backward. The entire judiciary he says is to look backward. Now let’s just remind ourselves looking backward in time means, oh, history. Yes, so history is important. The majority said yesterday, the history is not so important, but Justice Gorsuch said in 2016, that it is.

Instead he wrote this, “Judges should instead strive if humanly and so imperfectly to apply the law as it is, focusing backward not forward and looking to the text structure and history to decide what a reasonable reader at the time of the events in question would have understood the law to be.” He continued, “Not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best.”

Again, notice what he said. He said that laws are rightly to be interpreted as would be commonly understood by a reasonable reader at the time of the events in question. That time would be 1964. That time might reasonably be extended even into the early 1970s, as you’re looking at revisions to the law. But there is no way to reconcile what the court did yesterday in the majority opinion written by Neil Gorsuch with what the very same justice told us is his understanding of how the court and a judge or justice is to interpret the law. Again, he said this, “The judge and the court are to look to the law as it is focusing backward, not forward.” And he went on to say, “Looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be.”

I repeat that sentence simply to make the point, Justice Gorsuch was profoundly right in that address in 2016. He is profoundly wrong along with five other of his colleagues in the decision that was handed down yesterday. And not just wrong, but dangerously wrong because of the impact that this precedent will establish. Furthermore, it sends a very clear signal that even when you have conservative justices who are supposedly operating out of an originalist or strict constructionist or textualist interpretation, they don’t always act consistently.

Part III

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Textualism? Originalism? Strict Constructionism? The Differences in the Terms Really Matter

But this raises another issue of massive significance. Back at the end of 2019, when the oral arguments for these cases were heard before the court, there were those then, and I was one of those who recognized that there was a play being made to Justice Gorsuch and to his form of textualism to try to draw him into this argument.

The Editorial Board of The Wall Street Journal on November the 21st of 2019 wrote, “Enter Justice Elena Kagan, bearing a different definition of the text of the statute, updated for current mores.” And the editors continued, “During oral arguments, she sought to redefine sex in Title VII to mean more than the binary choice of a man or woman.” And later they wrote, “Justice Kagan is a shrewd court politician and her goal in politically significant cases is to attract one of the conservative justices to form a 5-4 liberal majority. She succeeded more than once,” they wrote, “with Chief Justice John Roberts, who’s above all an institutionalist who wants to preserve the court’s public standing.” But the editors then wrote this, “Her main target on the Title VII cases is Justice Gorsuch. And sure enough, in oral arguments, he suggested that he might agree with Justice Kagan’s nouveau interpretation of sex. At one point he said, ‘The textual evidence is really close, really close, and we’re not talking about extra textual stuff.’” So Justice Gorsuch tipped his hand back in November of 2019, prodded by Justice Elena Kagan.

The editors wrote back at the end of 2019 that if this is what textualism means, then textualism can become just another name for a progressivist interpretation of the Constitution. So as we come to a close, recognize that those terms are not exactly the same. Originalist, strict constructionist, and textualist. All of those are used by conservatives as discussing how the Constitution of the United States is to be interpreted.

Justice Gorsuch’s understanding of textualist in this case is a rather dangerous understanding and it flies in the face of the justice he replaced on the Supreme Court, Justice Antonin Scalia. Scalia said that textualism means that the words are to be read as they would have been understood by “reasonable people at the time.” As Justice Alito explains, “Textualists do not read statutes as if they were messages picked up by a powerful radio telescope from a distant and utterly unknown civilization.”

And this reminds Christians as we think, not only about the Constitution and law, but as we think about the far higher responsibility to read and to understand the Bible as God’s Word, this is why evangelicals come down to the historical grammatical method of interpretation. That’s a form of textualism, but notice the word “history” there is important. We want to understand the Bible, the Old Testament, the New Testament, every single text, the way a reader would have understood that text from the beginning. From the point of the Holy Spirit inspiring the author, until the point at which the first audience would have read it or heard it or received it.

Yes, we pay attention to the grammar. That’s why we call it historical grammatical interpretation. But grammar alone is not enough as if the texts were written in 2020. No, it’s “historical grammatical,” and for very important reasons, consistent with the nature of Scripture as the inspired and inerrant Word of God.

Now, the Constitution and laws of the United States of America are not inspired or inerrant, but they are the Constitution and the statutes and the laws of this nation. And they too must be interpreted. Yes, in terms of the words, the sentences and the propositions, but yes, also in terms of the history in which those words were written. What did they mean to a reasonable person at that time?

Here’s the bottom line. If you are now going to insist they mean something different, it is you and not they who are being unreasonable and dangerously so.