A Supreme Disappointment

Jun 17, 2020

Monday's Supreme Court ruling on "sexual orientation" and "gender identity" has major implications. Read on to learn about this landmark ruling...

On Monday, the Supreme Court released its ruling on the employment cases. The decision is deeply troubling and portends difficult days ahead for those of us who love the rule of law and hold a Judeo-Christian worldview.

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The question at hand was whether Title VII of the Civil Rights Act of 1964, which references "sex" as a protected category for non-discrimination, should also cover "sexual orientation" and "gender identity."

Oddly, the 6-3 Court opinion began with the assumption that Title VII refers to biological definitions of being male or female. It seems like that should have ended the discussion.

However, the Court's majority opinion goes on to characterize sex in the gender identity case as how the individual was "identified at birth," as if there is a lottery at birth in which a baby's gender is randomly assigned. Scientifically, such a premise is blatantly false, as sex is determined by biology and physiology, not mere preferences.

Regardless, the majority determined that, yes, the law does include sexual orientation and gender identity in the word "sex," even though no such words or implications are mentioned in the law at all. And therein lies the disturbing problem with this ruling.

As part of the constitutional separation of powers, only Congress – not the Supreme Court – has the power to create law. Yet, creating a new law is exactly what the Supreme Court did Monday.

Justice Kavanaugh's dissent noted that the majority ruling is effectively an "end run" around the separation of powers. And that the Court is to interpret the law as written, not as the judges wish it were written.

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Justice Alito's dissent delivered a far more stinging rebuke of the majority decision. Alito wrote:

"There is 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."

Alito continued, "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."

Alito went on to emphasize...

"A more brazen abuse of our authority to interpret statutes is hard to recall. The Court tries to convince readers that it is merely enforcing the terms of the statute, but that is preposterous."

Justice Alito notes that the majority rests its opinion on the fact that "sex" in Title VII refers to a biological sex of male and female. He then writes:

"If that is so, it should be perfectly clear that Title VII does not reach discrimination because of sexual orientation or gender identity. 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. . . .The Court's argument is not only arrogant, it is wrong."

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Justices Kavanaugh and Alito are correct. Rarely have we seen such flagrant judicial activism from the Supreme Court. The first ten Courts of Appeal and 30 separate judges all previously upheld the Title VII law as written. Decades of law and interpretation agreed, and in all that time Congress could never get the votes necessary to change the law to conform to their new (and bizarre) ideas on sex and gender.

Yet now, six unelected judges have effectively usurped Congress and the people by rewriting the 1964 Civil Rights Act to fit their personal view of the world.

The implications here are far reaching. Though this case was about employment, from here it is just a short step to public accommodations like restrooms, changing rooms, college dormitories, locker rooms and showers. We anticipate there will be much litigation defending the right of people not to have to expose themselves or their children to men "identifying" as women, or vice versa, in the most personal and private of settings.

The only bright light in the ruling this week is the statement in the majority opinion that this newly minted opinion will, "likely not apply to religious employers."

The First Amendment free exercise of religion providing ministerial exception protects certain religious employers in this instance. Additionally, the federal Religious Freedom Restoration Act (RFRA) is mentioned by the Court majority as a "super statute" that should protect any religious employer. But we anticipate that this, too, will have to be litigated.

Liberty Counsel has recently been deeply embroiled in the fight to keep churches open and keep pastors, who followed their consciences to open their churches, out of jail. Now, we will be working with religious employers to guide them on policies to protect themselves against this terrible ruling.

Rest assured, we will keep fighting for religious freedom as America wrestles with the fallout from this latest misguided Supreme Court decision!

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Finally, I know I ask this a lot, but please pray for our country. Times may seem dark, but our Lord hears our prayers and He will heal our land if we will only humble ourselves and pray.

In Christ,

Mat Staver
Founder and Chairman

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