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Are You Smarter Than a 5th Grader When It Comes to the Branches of Government?

By Marissa Mayer posted on:
August 2, 2019

“Who has the power to make laws?”

It’s a question that could be right out of an episode of Are You Smarter Than a 5th Grader? After all, every elementary school student in the U.S. learns about the American government.

I still remember one of my teachers drawing a tree on the chalkboard that she named government. The government tree had three branches: legislative, executive, and judicial.

I’ll spare you the full lesson, but let’s just say the three branches of government each have a specific job, and all of the branches work together to create a system of checks and balances on political power.

The legislative branch makes the law.
The executive branch enforces the law.
And the judicial branch interprets the law.

It really doesn’t get simpler than that.

That’s why it’s so baffling how many in our society seem completely oblivious of this fact.

Consider the case of Tom Rost of Harris Funeral Homes in Michigan. Tom’s case is at the United States Supreme Court (the judicial branch, of course), which is scheduled to hear arguments on October 8.

Tom’s case started after a male funeral director gave Tom a letter informing him that the funeral director now identifies as a woman and would begin dressing as a woman at work, while interacting with the grieving family members and friends of a deceased loved one. This employee had agreed to and followed the funeral home’s sex-specific dress code for six years.

The dress code is designed to ensure funeral home clients focus on processing their grief, not on the funeral home and its employees. Not to mention the fact that sex-specific dress codes are allowed under the law.

Harris Funeral Homes has always maintained professional codes of dress and conduct because they enable this 100-year family business to serve grieving families with excellence.

So after praying and considering the interests of the funeral director, the other employees, and the grieving families Tom serves, Tom decided that could not agree to the funeral director’s demand.

The story should’ve ended there, but it didn’t.

The male funeral director filed a complaint against Tom. Shortly after, the Equal Employment Opportunity Commission (EEOC) sued Tom for sex discrimination under Title VII of the Civil Rights Act of 1964.

There’s just one problem—sex discrimination requires an employer to treat one sex less favorably than the other. And Tom requires all employees to follow the sex-specific dress, male and female alike.

So, the EEOC claimed that when Congress prohibited “sex” discrimination in 1964, everyone understood that language to include “gender identity,” too. Remarkably, the Sixth Circuit Court of Appeals agreed.

But not so fast.

Congress has never declared “sex” in Title VII to include “gender identity.” And it certainly has never added “gender identity” to Title VII (although some have tried and failed—at least one dozen times).

Yet unelected officials decided to take the law into their own hands, redefining “sex” to mean “gender identity” and punishing Tom as a result. That’s not how the government is supposed to work. Courts are supposed to interpret the law, not make the law.

Thankfully, under the current administration, the federal government changed its position and now agrees with the funeral home. But the ACLU is involved and is representing the former funeral director.

The ACLU continues to push for the U.S. Supreme Court to uphold the lower court decision that redefined “sex” in federal law. That means when Tom appears before the court in October, the ACLU will attempt to convince the justices (judicial branch) to bypass our elected officials in Congress (legislative branch) and rewrite the law to mean what the ACLU wants it to mean.

But that would produce chaos and create widespread consequences for our society, including:

  • Undermining equal treatment for women, including in athletics;
  • Jeopardizing the dignity and bodily privacy of women; and
  • Requiring employers to treat men who believe themselves to be women as if they are actually women.

Such a drastic change should not be made by unelected bureaucrats or courts.

You know it. Tom knows it. But, apparently, some missed this basic civics lesson. Maybe they should talk to a 5th grader.


Marissa Mayer

Marissa Mayer

Senior Copywriter & Editor

Marissa Mayer is an Arizona native who fell in love with the written word at a young age.


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