We’re not going to go as far as some conservative commentators in writing off the entire Trump presidency based on one Supreme Court decision, but there’s no denying that Monday’s landmark LGBT decision – authored by Trump nominee Neil Gorsuch – was a significant blow to common sense, judicial sanity, the Constitution, and our hopes for this particular iteration of the nation’s high court. In ruling that gays and transgenders are protected by the 1964 Civil Rights Act, Gorsuch, Chief Justice John Roberts, and the liberals on the court made a crucial error in judgment.
“In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee,” Gorsuch wrote in his majority opinion. “We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.”
Gorsuch’s ruling drew harsh condemnation from conservatives who were hoping for a return to originalism and textualism from this Justice and his colleagues.
“All those evangelicals who sided with Trump in 2016 to protect them from the cultural currents, just found their excuse to stay home in 2020 thank to Trump’s Supreme Court picks,” tweeted conservative pundit Erick Erickson.
Carrie Severino of the Judicial Crisis Network was no happier.
“Justice Scalia would be disappointed that his successor has bungled textualism so badly today, for the sake of appealing to college campuses and editorial boards,” she sneered. “This was not judging, this was legislating—a brute force attack on our constitutional system.”
While Gorsuch defended the majority’s ruling by saying that it was in line with the text of the original law, Justice Samuel Alito sharply disagreed, accusing the court of exceeding its mandate in a blistering dissent.
“The Court attempts to pass off its decision as the inevitable product of the textualist school of statutory interpretation championed by our late colleague Justice Scalia, but no one should be fooled,” Alito wrote. “The Court’s opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated — the theory that courts should ‘update’ old statutes so that they better reflect the current values of society.”
Exactly. We guarantee that if we rounded up every congressperson who voted for the Civil Rights Act and asked them if “sex” included “sexual orientation,” they would look at us as if we’d grown a third eye. If we extended that question to ask if their legislation was meant to include “gender identity,” they literally wouldn’t know what the hell we were talking about. Hell, that latter point would hold if we rounded up the congresspeople of 2004, much less 1964.
This is another ridiculous step towards stripping codified rights away from all Americans so that we can grant special rights to special, trendy, “oppressed” minority groups. It brings us no closer to a fair and equal society; in fact, it does the opposite.
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