Et Tu, Gorsuch?

No matter what goes wrong during President Donald Trump’s time in office, his die-hard supporters will tell you that it’s all worth it for the judges he appoints. He put conservative originalists Neil Gorsuch and Brett Kavanaugh on the Supreme Court, and that alone is enough to satisfy the fans.

The Supreme Court’s recent ruling on the case of Bostock v. Clayton County, however, has soured some of the faithful on Gorsuch. After hearing the case the Supreme Court concluded that the Civil Rights Act of 1964 says lesbians, homosexual men and transgendered people cannot be fired because of their sexual activities or what sex they consider themselves to be, which is making many religious right types unhappy, and Gorsuch not only joined the court’s four liberal justices in the majority but also wrote the opinion.

Some of the religious conservatives who support the conspicuously irreligious president will admit they oppose the decision because they want to be able to fire any sexual deviants they might have inadvertently hired, and needlessly worry that churches won’t have the exceptions they’ve always enjoyed, but others couch their complaints in terms of judicial overreach. We don’t see any reason for anybody to fire anyone for their private sexual conduct or their opinions about their sex, but there is some merit to the argument about the court amending laws by judicial fiat.

The Civil Rights Act of 1964 makes no mention whatsoever about homosexuality or transgenderism, which is not surprising given the time when it was passed. Back in ’64 gay rights weren’t a big issue, and nobody had even heard of transgenderism, and if the bill did include such language it would have been so controversial the bill wouldn’t have passed. A more up-to-date Congress could have added those protections to the law, but has declined to do so, so our strictly constitutionalist sensibilities are also offended by any court usurping the legislature.

In his writings and speeches and past rulings Gorsuch has long claimed to be a “textualist,” meaning that the believes courts should interpret a statute by it’s plain and not infer any intentions the lawmakers might have had, and certainly not assume what they might have thought after 56 years of social evolution, so his siding with the majority in this case is surprising. Our reading of the lengthy opinion doesn’t provide us with a convincing explanation for his change of mind.

Conservatives have long been disappointed with Republican-appointed Supreme Court justices, going all the way back to President Dwight Eisenhower’s choice of Chief Justice Earl Warren, who presided over a court that expanded civil rights and limited police powers, and continued with President George W. Bush’s choice of Chief Justice John Roberts, who infuriated conservatives by declining to find “Obamacare” unconstitutional. Gorsuch is just the latest in a long line of Republican appointees who have disappointed Republicans.

Should Gorsuch get back to his textualist roots, though, he might wind up disappointing Republicans even further. Trump has a number of legal cases involving everything from his immigration policies to his tax returns and alleged cases of sexual misbehavior winding their way through the court system, and a strict textualist might rule against him in several of those cases. There’s a nearly 100-year-old and long upheld law that lets Congress look at any American’s tax return, for instance, and the text does not include any exception for presidents, so it will be interesting to see how the Trump appointees rule in that case.

There are countless federal statutes that are very liberal, and the Constitution also has some very liberal language, and a sincerely originalist and textualist jurist would leave it to the legislative and executive branches to rectify that, even if the Trump era sort of conservatives would prefer that the courts bang a gavel and return America to 1964, or better yet 1954, before all that civil rights legislation and litigation. Most people don’t care so much about constitutional arguments and just want the courts to deliver their preferred policy, so our guess is that Republicans will once again be disappointed in their party’s Supreme Court picks, and Trump supporters will be disheartened.

— Bud Norman

A Good Day at the Court

The Supreme Court has ruled that Michigan doesn’t have to practice racial discrimination if it doesn’t want to, and this is a double dose of good news.

By upholding a ballot measure banning affirmative action in state university admissions, which passed by a 58 to 42 percent margin, the court has struck yet another legal blow to that insipid policy. These thinly-vieled quota systems exacerbate racial tensions, diminish the accomplishments of the most capable minorities, funnel less capable minorities into failure at elite colleges rather than success at more suitable institutions, punish meritocratic notions in the process, produce a less educated country as a result, and are an affront to the essential ideal of a color-blind society. They do little to rectify the past injustices they are meant to atone for, and add new ones by punishing Asians and Jews and other historically oppressed minority groups that nonetheless produce students deserving of admission in numbers greater than their share of the overall population. They certainly do nothing to address the continuing failure of America’s public schools to educate their black and Hispanic students as well they do their white and Asian charges, a social catastrophe which affirmative action implicitly acknowledges, and enables the failure to continue without provoking the wrath of the teachers’ unions.

The court’s decision does not ban the practice of affirmative action, but it does affirm the right of the people of Michigan or any other state to do so. This is a heartening development, too, as it represents an all-too-rare victory for public opinion over the supposedly superior wisdom of the judiciary. There are certain fundamental rights explicitly enumerated in the Constitution which no popular vote can revoke, and the courts have a duty to thwart any temporary public passions about these matters, but on issues ranging from same-sex marriage to affirmative action to environmental regulations the courts routinely substitute their judgment for the clearly stated desires of legislatures and even public referenda. When a priestly caste of black-robed men and women can discern that the Constitution confers an absolute to homosexual marriage or a student of one race’s right to admission to a state university over a more qualified applicant of another race or the Environmental Protection Agency’s right to regulate the exhalations of every citizen, all of which would have been anathema to men who wrote and ratified that Constitution, the document ceases to have any meaning. When the court defers to public opinion, as it did on Tuesday, there’s still a chance of restoring some semblance of constitutional order.

It’s bad news that such a commonsensical ruling seems such welcome good news, and those inclined to worry can note that two justices dissented and a third would have had she not been forced to recuse herself because of a previous involvement in the case. Justice Sonia Sotomayor wrote a 58-page dissenting opinion that asserted those 58 percent of Michiganders who voted for the ban are nasty old racists, and argued that a ballot measure which states that Michigan may not “discriminate against, or grant preferential treatment to, any individual on the basis of race, sex, ethnicity, or national origin” is somehow a violation of the 14th Amendment. In keeping with the currently fashionable sensibilities she added some balderdash about how affirmative action had benefited her own career, although she stopped short of admitting that she owes her appointment to the court to the practice, but a majority of people in Michigan and the other 49 states are entitled to conclude that she’s another persuasive argument against it.

— Bud Norman

Gay Rights and Other Rights in Kansas

Kansas is one of a few states considering a bill that would allow businesses to decline service to homosexuals, and all the bien pensant around here are in even higher than usual dudgeon about it. The local hipster weekly is calling the bill a step back into the dark ages and seems to expect the imminent return of burnings at the stake and papal pears, the more restrained corporate daily paper has run an editorial merely likening it to Jim Crow, and our Facebook page is filled with postings from vaguely familiar “friends” who are once again declaring their shame at living in the state.

At the risk of sounding even more than usual like provincial prairie bumpkins, we are not at all embarrassed to be in Kansas. We don’t believe the dire predictions that if the bill became law homosexuals would be unable to find a seat in a restaurant in Kansas, a possibility even more remote than encountering a heterosexual waiter at the better eateries in this or any other state, and in those extremely rare cases when it might apply we think it would do more good than harm. The bill was inspired by a couple of highly-publicized stories about a baker and a photographer who chose not to involve their businesses in a same-sex wedding ceremony, and we see no reason why Kansas’ bakers and photographers and other businesses with similar moral objections shouldn’t be free to do the same without fear of legal consequences. In the interests of tolerance and diversity, the two values the bien pensant most love to blather on about, diverse opinions regarding same-sex marriage must be tolerated.

Setting the controversy about the advisability of state-sanctioned same-sex marriages aside, there is a more consequential matter of allowing citizens to conduct their businesses according to the dictates of their own consciences. The estimable Kevin Williamson over at the venerable National Review proposed an intriguing thought experiment in which the notoriously homosexual-hating Fred Phelps and his cult at Topeka’s Westboro Baptist Church insisted that a rainbow flag-flying member of the Gay and Lesbian Chamber of Commerce rent out its party room for one of his frequent “God Hates Fags” rallies, and we don’t have to wonder if those criticizing the proposed bill would defend the business’ right to refuse. We’d certainly defend anyone’s right to not deal with Phelps, and we’ve had enough dealings with the man over the years that we’d be especially adamant about it, but we can’t endorse any law that would protect that right without denying it to those who still hold to the traditional idea of marriage.

An actual face-to-face friend whose opinions we take seriously argued over a recent beer that the law should be vigilant in protecting the rights of embattled minorities, a point well-taken, so we noted that these days it seems to be the fuddy-duddy photographers and bakers who are in need of protection from the rhetorical and legal lynch mobs. That traditional idea of marriage extended through the past several millennia, prevailed in every world civilization until quite recently, and was even endorsed by the oh-so-bien-pensant President of the United States until the polls allowed him to back out, but the current fashion for same-sex marriage seems to have overwhelmed such long-established civilizational inclinations. For some reason a similar bill in Arizona seems to be getting all the headlines, with such former bastions of traditionalism as the last Republican presidential candidate and the National Football League heaping on their condemnation, and the Attorney General of the United States is urging the attorneys general of the various united states to ignore their laws against same-sex marriage. Anyone willing to defy such official opprobrium is entitled to feel a wee bit embattled and minor.

Unfashionable as it may be, we’ll stick with freedom of association. It’s good for the baker or photographer who doesn’t want to be involved in a same-sex marriage, won’t prevent a same-sex couple from finding another baker or photographer, and if the fashions change as they are wont to do it will be good for that rainbow flag-flying Gay and Lesbian Chamber of Commerce member who doesn’t want to work for Fred Phelps.

— Bud Norman