Daniel Greenfield, a Shillman Journalism Fellow at the Freedom Center, is an investigative journalist and writer focusing on the radical Left and Islamic terrorism.
When peaceful protests injure hundreds and destroy entire neighborhoods, and the coronavirus infects protesters depending on the cause they’re protesting for, words don’t mean very much.
And reality itself is under siege in the minds of the men and women who run the country.
A Southern Democrat segregationist inserted “sex” into the Civil Rights Act as a poison pill.
Rep. Howard Smith had introduced what eventually became Title VII, with a letter which asked, that since there were more women than men, “why the Creator would set up such an imbalance of spinsters, shutting off the ‘right’ of every female to have a husband of her own, is, of course, known only to nature… but I am sure you will agree that this is a grave injustice to womankind and something the Congress and President Johnson should take immediate steps to correct… especially in this election year.”
To add to the already hilarious joke, six Supreme Court justices just decided that what the Southern racist really meant by “sex” was gay and transgender because in Washington D.C. no joke is too funny that it can’t be taken seriously as a basis for judicial activism and lawsuits.
It’s still a joke, but we’re not allowed to laugh anymore.
“Few in 1964 would have expected Title VII to apply to discrimination against homosexual and transgender persons. But legislative history has no bearing here,” Gorsuch writes.
If the actual purpose and meaning of the law doesn’t matter, then what does?
What Gorsuch, Roberts and his leftist colleagues believe matters. Nothing else. Rights are as imaginary as gender and legislative history gets in the way of legislating from the bench.
The Gorsuch decision in Bostock v. Clayton County, Georgia finding that “sex” in Title VII covers any group having anything to do with sex in a trendy way has been described as “textual”. It’s only textual if you think the text of legislation should be read through a contemporary definition rather than the definition of the time. When President Taft’s wife was discussing their “gay season”, it didn’t mean gay any more than “sex” does. Except maybe according to Gorsuch.
But words can mean anything and nobody cares about facts anyway.
Gerald Bostock, who is at the center of this Supreme Court precedent, claims that he was fired for being gay while Clayton County claimed that the child welfare services coordinator had spent money meant for Court Appointed Special Advocates (CASA) at Cowtippers and F.R.O.G.S.: a cantina in Atlanta. Cowtippers does not appear in Gorsuch’s decision though it seems more germane to the question than the Los Angeles Department of Power and Water, which does.
The Gorsuch judicial activist revision of Smith’s legislation is bad news for those organizations protected by that piece of paper known as the First Amendment of the Bill of Rights.
“Compelling a religious organization to employ individuals whose conduct flouts the tenets of the organization’s faith forces the group to communicate an objectionable message,” Justice Alito notes, paraphrasing these groups.
But these days there’s a new faith in town and people are being fired left and right for flouting it. If you run afoul of social justice mobs, your job will be gone because the company that employs you will blame you for “communicating an objectionable message”. Like the worth of all lives.
There’s a new heresy in town and the social justice inquisition is always waiting. The essential premise of that faith is that everyone must be made to kneel to it or lose their heads.
“These questions are going to create a tsunami of new litigation and create a huge amount of uncertainty going forward,” Carrie Severino, president of the Judicial Crisis Network, cautioned.
“Can a Catholic school deny employment to a teacher whose sexual lifestyle blatantly flouts millennia of Catholic moral teaching? Can an Orthodox Jewish day school refuse to hire a male teacher who self-identifies as a woman, contravening traditional teaching rooted in Genesis?” Josh Hammer, Of Counsel at the First Liberty Institute, asked.
The answer is obvious and the lawsuits are inevitable. And thus Smith’s old joke translates into the effective criminalization of traditional religious morality at the institutional level. That’s the problem with writing jokes into legislation, they end up packing a hell of a punchline.
The Gorsuch decision has put the Bible on the same level as the code of the Klu Klax Klan and that great legislator’s response to the First Amendment question is that it will be settled in future cases. There’s little doubt that it will, and on the terms of Bostock v. Clayton County, Georgia.
Our constitutional legacy, like our religious foundations, is based on the belief that words matter. Judicial activism is based on the opposite belief that words can and do mean anything.
“Legislators actually won’t know what they are voting to pass—because words might change cultural meaning dramatically between the time of passage and some future court case,” Russell Moore, of the Southern Baptist Ethics & Religious Liberty Commission, warns.
When words mean nothing, rights mean nothing. Rights derive not from foundational documents grounded in eternal truths, but from social trends and the whims of political appointees.
Bill Clinton had famously debated the meaning of “is” and of sex. Gorsuch and his five accomplices claim that they’ve settled the question of “sex”. Now comes the battle over defining “religion” and the “free exercise” of it. Are teachers in religious schools exempted? What about bookkeepers? Civil rights has long since become a zero sum game with winners and losers.
The winners advance to the next stage of suing people and the losers retreat to defending them.
Religious organizations will be forced to defend the religious role of teachers. And, once that battle is lost, the religious role of rabbis and ministers. Then they’ll be told to ‘bake the cake’.
The larger question, the one that Gorsuch so casually loses sight of in Bostock v. Clayton County, Georgia, is where do rights come from. The Declaration of Independence had a compelling answer to that question that enabled Americans to defy the will of a king.
“All men are created equal,” wrote a long-dead Virginian whose statues are being toppled, “that they are endowed by their Creator with certain unalienable Rights.” Equality was not in contradiction with religion, but derived from it. Our common origin as children of G-d made us equal. The whim of a court or any human ruler could not make or unmake our equality.
Contemporary judicial activism has pitted religion against equality and we are less equal for it.
Judicial activism began by taking away the equality of Natural Law and replacing it with the inequality of judicial whim which inevitably nullifies whatever good it sets out to create.
Bostock v. Clayton County, Georgia reinvents the meaning of sex, based on the deeply serious work of a Dixiecrat trying to make a joke of the Civil Rights Act, while treating the First Amendment, that is the work of our Founding Fathers, as an awkward footnote. Title VII requires treating Rep. Howard Smith’s joke more seriously than the work of James Madison, and then dismissing Smith as irrelevant to the question of what sex was meant to mean.
What then is this whole thing based on beyond the prejudices of 6 contemporary justices?
As the crank said to William James, “it’s turtles all the way down.”
“Some of those who supported adding language to Title VII to ban sex discrimination may have hoped it would derail the entire Civil Rights Act. Yet, contrary to those intentions, the bill became law. Since then, Title VII’s effects have unfolded with far-reaching consequences, some likely beyond what many in Congress or elsewhere expected,” Gorsuch’s opinion concedes.
Take Title VII, which was blown up out of a segregationist’s joke into the ultimate expression of protecting women as a “sex” against discrimination, which now eliminates womanhood.
As Justice Alito notes, “The effect of the Court’s reasoning may be to force young women to compete against students who have a very significant biological advantage, including students who have the size and strength of a male.”
That’s far-reaching alright compared to Smith giggling about an entitlement to husbands. Some half a century later we live in a strange new world in which the dominant elite consensus is that women don’t exist except as a set of outfits, injectable hormones and a state of mind. The most popular children’s author in the world is under attack for asserting that women really do exist.
Our elites used to mock Galileo’s interrogators only to deny the existence of something far more real and obvious than the motions of planetary bodies. And the Supreme Court is on board.
Bostock v. Clayton County, Georgia continues the process of ushering in a world in which rights are as fluid as the definitions of words and the shifting nature of ideas in a society going mad.
Title VII helped make womens’ sports, now it will help unmake them. If words don’t mean anything, neither do rights. And rights then unmake themselves. Jokes have nasty punchlines.
Smith’s joke continues to resound long after his death by not merely wiping out the Civil Rights Act, but the entire Bill of Rights. That old segregationist’s joke is now set to destroy, as Alito pointed out, Freedom of Religion, Freedom of Speech and women’s rights.
The joke hath given. Now it taketh everything away.
Civil rights have come so far that women and religion both have to defend their right to exist.