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Bruce Bialosky

In Defense of Bostock

The Supreme court delivered one of their more controversial rulings in Bostock v. Clayton County. The MSM called it “very surprising” because two Republican appointees voted with the liberal minority with Justice Gorsuch authoring the opinion. Many Republicans and the three Justices who voted against the ruling were very unhappy about it. I am sorry to say in this case I believe they are wrong.

This dispute is between the Originalists and the Textualists. In plain English that is the running dispute between the people who believe judges should not give their own meaning to laws and abide by what the legislative branch wrote and the executive branch signed into law. Typically, Justice Gorsuch believes it is not his job to stray from the written word of the law. I agree with that and abhor left-wing jurists manipulating rulings to meet their own policy goals by not abiding by the written words and giving their own interpretation to those words.

Three examples of what I consider “making up laws from the bench” that I find distasteful are: 1) Roe V. Wade which made up rules to nationalize abortion when the Justices made up the standards out of whole cloth (by the way, I am pro-choice); 2) Obergefell v. Hodges, which made up rules for gay marriage that once again could not get through legislatures and the Justices decided to legislate; and, 3) National Federation of Independent Business v. Sebulius, where Chief Justice Roberts decided a fee that taxpayers must pay was actually a tax when President Obama had argued it was not a tax –a key point to getting the law passed.

Just recently, Chief Justice Roberts abdicated his responsibility to defend the Constitution by his decision in Dept. of Homeland Security v. University of California. In a 5-4 decision, the Justices gave authoritarian rule another major victory by stating that President Obama’s Executive Order, which after innumerable statements the Constitution did not allow him to approve the DACA participants, gave license to DACA participants. The Supreme Court has endorsed this law by executive fiat even after President Trump reversed the EO. Fascinatingly, the four liberal justices and their political allies rail against President Trump’s authoritarian nature even though his reversal of the DACA EO may be the most anti-authoritarian action by a president in ages.

Bostock is not one of those cases. The Civil Rights Act of 1964 defined that employers could not discriminate on the basis of race, color, religion, sex or national origin. Seems specific to some. To me it says you cannot discriminate against employees based on anything other than the quality of their work or their ability to perform their job. Just because it did not name every type of perceived discrimination at the time does not give someone the right to not hire someone or to fire someone because of who they are and not what they do.

The wording of the law did not specifically exclude sexual orientation. Not to be flippant, but it did not mention left-handed, green Eskimos either. And the point is? Why would anyone think that they could discriminate against gays because it is not specified in the act?

One of my favorite columns ever in the Wall Street Journal was written many years back by a manufacturer in Riverside County, CA. He trashed every one of the federal government training programs and the estimated $100 billion annual cost for the programs as a waste. The author asked simply “for employees who are willing to show up to work on time, want to work and want to learn their job. We, the employers, will handle the rest.” He stated many employers had problems getting employees willing to meet these meager criteria.

The Beautiful Wife and I had that exact experience. We hired an assistant who worked for us for six years until she retired. The woman was a certified Leftist. She was told up front during the hiring process there would likely be a lot of political discussion in the office because at the time I served as a presidential appointee by President Bush (43).

She took the job. Almost every day when I passed by her desk on the way to my office, she wanted to engage me in political conversation. She often got highly agitated. I remember one day she followed me into my office and asked me why I was not more upset (like she was) and I stated, “It is just political discourse — exchanging ideas. Why would I get agitated?”

What I cared about was that she showed up every day and did her job. Was she stellar at doing her job? No. But she did more than passable work and she stayed for six years. If she showed up with purple hair, I would have asked her to change that. She was pulling her hair out (metaphorically) about political issues then so I can only imagine what she is commenting about today about President Trump. But I did not care about her political views nor whether she was a woman, whether she was Black (she was not, but one of our assistants had been) or what her sexual orientation was nor did I care. I cared that she showed up every day and did her job and did not upset the customers.

This ruling does not redefine gender. There are two – women and men. Let me also say that I am not naïve about the fact the Left is going to say that this ruling justifies that our world revolves around the minor number of transgender individuals and that all public policy must be ruled by that. They will and we don’t have to allow it either through legislation or court order.

I will remain an Originalist. I will remain someone who does not like judges making up the law. This law is about stopping employers from discriminating against anybody for any reason. I do not understand why any employer would even think of that anyway.