(June 15) The Supreme Court’s Monday decision in a job discrimination case is one of the worst pieces of robed sophistry since Chief Justice John Roberts invented a new meaning of the word “tax” to save Obamacare. As legal reasoning goes, it is garbage.

In a 6-3 decision penned by Justice Neil Gorsuch, the court ruled in Bostock v. Clayton County that when Title VII of the Civil Rights Act of 1964 banned employment discrimination based on “sex,” it also forbade discrimination based on sexual preference or sexual identity. This decision flies in the face of 56 years of copious evidence that Title VII did no such thing.

Before looking at the details, please allow a disclaimer. If I were in Congress and were asked to amend Title VII to outlaw employment discrimination against homosexuals, then as long as there were a clear carve-out for faith-based employers, I would unreservedly vote for such a bill. That, though, is exactly the point: Title VII does not already outlaw such discrimination, which is why it would take an act of Congress to forbid it. That is precisely why Congress has introduced bill after bill to do just that: To change a law, one must actually, yes, write a new law, not just rely on judges to invent, from thin air, new meanings for old phrases.

Yet, as Justice Brett Kavanaugh notes in one of two excellent dissenting opinions (Justice Samuel Alito wrote the other, even better one), “Although both the House and Senate have voted at different times to prohibit sexual orientation discrimination, the two Houses have not yet come together with the President to enact a bill into law.”

Thus, the law still should stand as it has been understood, almost universally, for 56 years….

[For the rest of this column about not “what” the policy should be, but who should make it, please read here.]


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