Our Founding Fathers created a framework of government to protect every American’s individual rights. Unfortunately, the Supreme Court issued a decision on Monday that could erode that framework.
The founders of our nation gave the powers of writing law, enforcing law, and interpreting law to three different branches of government. This wasn’t an accident. They knew that if one branch held more than one of these powers, it would make the people’s God-given rights more vulnerable.
Unfortunately, the Supreme Court’s decision in Bostock v. Clayton County allows an executive branch agency to rewrite a law passed by Congress, then enforce that new law against unsuspecting business owners.
The opinion, which included a decision in the Harris Funeral Homes v. Equal Employment Opportunity Commission case, ruled that the word “sex” in Title VII of the Civil Rights Act of 1964 includes the terms “gender identity” and “sexual orientation.”
What does this mean?
Practically speaking, it means that a law that has worked to ensure women equal employment opportunities may now do the opposite because, under the Court’s ruling, “sex” is no longer based on biology.
But more to the point, this decision gives certain branches of government more power than the Constitution says they should have.
Do not think for a moment that this is only an issue on paper with no bearing in the real world. The erosion of the separation of powers in Bostock will affect Americans like you in three ways:
1. Americans won’t be able to rely on the law as it is written.
Every American should be able to rely on what the law, as written, says. That was one of the central issues of the case involving Tom Rost, the owner of Harris Funeral Homes. In 2007, Tom hired a male funeral director who agreed to, and followed, Harris’ sex-specific dress code. That dress code was in accord with federal law and the Equal Employment Opportunity Commission's (EEOC) guidance documents.
Nearly six years later, the funeral director planned to violate that dress code by dressing and presenting as a woman when serving grieving families. The dress code is important to Harris Funeral Homes because it allows families to focus on processing their grief. After careful consideration of his clients and other employees, Tom decided he could not agree to the employee’s plan.
Then, the unelected bureaucrats at the EEOC got involved. They attempted to punish Tom even though he was following existing employment law as written.
In order to do this, the EEOC had to redefine “sex” to include “gender identity” under Title VII of the Civil Rights Act.
This is wrong—Tom should have been able to rely on the law, as written, said, not as some unelected officials wish Congress had wrote it. Unfortunately, the Supreme Court sided with the officials over Tom.
Even though Tom acted in accordance with the law as it was written, he and his small family business are being punished.
2. It will be easier for those in positions of authority to abuse their power.
The framers of the Constitution did not separate the legislative, executive, and judicial powers into three separate branches on accident. They knew that if any one branch had more than one of these powers, it would be easier for that branch to punish enemies and benefit friends.
It makes sense. Think about it. If every Internal Revenue System (IRS) agent was permitted to rewrite tax law, would that make it easier for those agents to abuse their authority? Of course! If the entity creating laws is the same entity enforcing them, it becomes easier for that entity to use the law as a weapon.
Essentially, the Supreme Court’s decision allowed for this to happen today. The decision in Harris Funeral Homes allows the branch tasked with enforcing the laws to rewrite those laws, therefore participating in the act of legislating or lawmaking. As Justice Samuel Alito says at the beginning of his dissenting opinion, “There is only one word for what the Court has done today: legislation.”
Courts should tell us what the law means, not allow an agency to rewrite the law. This jeopardizes the separation of powers instituted by our founders and puts the American people’s rights at risk.
3. The power to make laws will be removed one step further from the people.
The founders also took great care to place the authority of lawmaking in the hands of the branch closest to the people. Congress is elected by the people and therefore answers directly to them.
But if those in unelected positions are permitted to rewrite laws, they are not directly accountable to the people. It is worth noting, as Justice Alito does in his dissent, that Congress has attempted to pass a law including “gender identity” under “sex” in employment law many times, but none of those attempts were successful.
“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.”
Unfortunately, the Supreme Court effectively did an end-run around the people’s representatives to change a law that’s over 50 years old.
Those who want to include “gender identity” in federal employment law could do so by lobbying their congressman or voting for legislators that hold their same view. This is a completely acceptable and constitutional way of working for that policy change.
But instead, activists invited the courts to allow an executive agency rewrite the law. Justice Brett Kavanaugh notes this in his dissent adding that “Under the U.S. Constitution and laws of the United States, this Court is the wrong body to change American law in that way.”
Our Country was founded with the worthy goal of being a “government of laws and not of men.” It is concerning to see that the Constitution’s structural protections, which the Founding Fathers intended to realize that goal, have been worn down by a Supreme Court decision.
But one thing is for sure. We must continue the good fight to protect our Constitution—our country, and our individual rights, depend on it.
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