June 16, 2020 - Tuesday
Splinters in the Bench
June 16, 2020
It's a Supreme Court ruling that would have stung no matter what. But the timing of this one, when Americans are desperately waiting for something in 2020 to make sense, seemed to deliver a much more painful blow. In a country hurting for stability, the court only brought more chaos. Instead of common sense, more confusion. Where there should have been reassurances about basic truths, there was only shock and disappointment. Six justices, against the laws of science, history, and morality, decided to create their own Autonomous Zone -- where humanity's laws about male and female no longer apply.
In the last 24 hours, people across the spectrum have scrambled to make sense of the cultural IED. If the court decided to dramatically rewrite the 1964 Civil Rights Act, most experts assumed it would have been because loose cannon Chief Justice John Roberts defected -- not because one of the president's new originalists did. To most Americans, the sellout of Neil Gorsuch, who not only voted with the liberal members on the Harris case but authored the majority opinion, will be the lingering horror. If even he can't bring himself to agree that the word "sex" means male and female -- not the Left's wild reinterpretations of "sexual orientation" or "gender identity," who will? And, more importantly, what will it mean for privacy, pronouns, Christian schools and businesses, public housing, adoption, girls' sports, and a basket of major issues confronting America?
It will mean, like Roe v. Wade did, years and years of hard-fought, deeply passionate debate. And more division. When the Supreme Court decided Monday to blow the doors off the meaning of "sex," it's important to understand: the justices didn't resolve anything. Not really. America is 47 years into court-sanctioned abortion, and it's probably a bigger issue today than it was in 1973. As much authority as these justices have, they don't have the final say on truth -- especially not when their opinion runs counter to history, biology, and morality.
Is it devastating? Absolutely. This is the type of activism the president was trying to move away from with his nominees. Instead, Gorsuch, who probably worked under Anthony Kennedy's tutelage a little too long, has helped give the court a license to redefine the most basic human terms. "There is only one word for what the Court has done today: legislation," writes Justice Samuel Alito in a dissent Justice Clarence Thomas joined. "...A more brazen abuse of our authority to interpret statutes is hard to recall." Even Gorsuch himself seemed to understand his overreach, admitting that the people who drafted the Civil Rights Act "might not have anticipated their work would lead to this particular result" of special transgender protections.
As Alliance Defending Freedom's David Cortman explained on "Washington Watch," one of the most dangerous things about this ruling is that there seems to be this concession that the law is "living and breathing" -- even among the textualists -- and it's okay to "[change] it as we go." But by that logic, you could pull any word out of the Constitution and redefine it based on today's understanding. "Even though," David argues, "when you look back in 1964... no one would have ever guessed that 'sex' meant sexual orientation and transgender status." In fact, not a single president questioned it until Barack Obama, who decided he didn't care about the plain text of the law. Now, six justices have done the dirty work for him, rewriting a law that liberals could never convince Congress -- or the public -- to change.
The question now is, where do we go from here? Let's start by putting the ruling in context. Will it mean a ferocious fight on religious liberty from here on out? Almost certainly -- but to be fair, any result would have done the same. LGBT activists weren't going to surrender to the justices' opinion and abandon their cause no matter what the court decided. Nor should we. A positive ruling might have kept some of the fiercest questions at bay -- and given faithful Americans some much needed relief -- but let's face it: the waves of extremism never stop.
What about Gorsuch and President Trump? Can we trust them? While the Harris case has given Gorsuch fans cause for concern, we don't have to guess where this president stands. For three and a half years, his administration has taken every opportunity to protect religious freedom in executive orders, rules, and guidance that reaffirm the politically incorrect truth about sexual orientation and gender -- often at great political cost. Every agency from HHS, Defense, and Education to HUD, Agriculture, and Justice have stuck their necks out to roll back the radicalism of the president who first opened this Pandora's box.
As for Trump's judicial nominees, voters have to ask themselves: would they rather have some uneasy feelings about one -- or know with certainty that every single pick is a died-in-the-wool liberal activist, like we would under Joe Biden? This is a single, devastating judgment in what has so far been a stellar couple of years for Trump's first Supreme Court pick. It may confirm concerns that some had about Gorsuch, but this should set the stage for the next nominee to be beyond reproach when it comes to the meaning of words and adherence to the constitutionally defined role of the court.
In the meantime, we probably feel like the Trump campaign: "It's bizarre, it's ridiculous, and it's disappointing." But it's also not the end of the story. Unlike Obergefell and same-sex marriage, the good news is: this wasn't a constitutional question. Monday's ruling was on a statute -- and statutes change. "The court is legislating what they think is good policy. And that," Senator Josh Hawley (R-Mo.) argued, "[is] not their role. The right answer is 'over to Congress' to do something about it."
Our job is making sure Congress has the courage to try. We can't keep electing people who shrink back and let the courts decide these issues. Too many politicians "prefer to give rousing speeches about our rights at conventions like CPAC while scapegoating our continued loss of these rights on the judges and the bureaucracy they're supposed to oversee," Joy Pullman fumes at the Federalist. "That needs to end, and for it to end, all constitutional hypocrites need to be made uncomfortable until they do the right thing." "I'm going down," she insisted, "fighting as hard as I can." It's time to find leaders who will do the same.
For more in-depth analysis on what this ruling means, don't miss FRC's Travis Weber and Mary Beth Waddell on Monday's "Washington Watch."
Tony Perkins's Washington Update is written with the aid of FRC Action senior writers.