Can Sexual Orientation Be Read into Title VII? SCOTUS Set to Decide

The Supreme Court of the United States (SCOTUS) has garnered less attention than usual lately with COVID-19 monopolizing headlines. However, with the Court’s term ending in June, some of the most controversial decisions are expected to be released any day now. Among the most notable are three cases involving Title VII of the landmark Federal Civil Rights Act of 1964, which prohibits employers from discriminating on the basis of sex. The question is whether Title VII’s ban on sex discrimination also includes decisions based on sexual orientation or gender identity. The cases are Altitude Express, Inc. v. Zarda, Bostock v. Clayton County, and R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission.

Zarda and Bostock involve gay men suing their employers, alleging that they were fired because of their sexual orientation. Harris Funeral Homes involves a transgender employee who formerly worked in a Christian-owned funeral home in Michigan and claims to have been illegally fired after coming out as a transgender woman and starting to wear women’s clothing.

It should be noted that twenty-two states, Illinois included, already prohibit discrimination based on sexual orientation and gender identity. Thus, the Court’s decision will not change employment decisions for nearly half the country. However, the cases are yet another instance of the Federal courts delving into a contentious cultural issue.

Title VII prohibits employment decisions based on certain protected attributes like race, religion, and sex. Yet there has been a push in recent years to interpret Title VII’s prohibition on sex discrimination as including sexual orientation and gender identity. The cases have significant cultural, theological, and moral underpinnings; however, the main question for the U.S. Supreme Court is one of statutory interpretation. Here is how the pertinent part of Title VII reads:

“It shall be an unlawful employment practice for an employment agency to fail or refuse to refer for employment, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin.”

No mention of “gender identity” or “sexual orientation.” Case closed—right? Not necessarily. The Federal courts of appeal have reached different conclusions based on their method of statutory interpretation. The methods have largely centered on “textualism” and “originalism.”

Textualism holds that the plain meaning of the legal text is the only thing you look at in interpreting, with no consideration given to any non-textual sources. Instead of considering the overall purpose of the law, legislative history, or policy arguments, a textualist approach only looks to the four corners of the paper on which the law is written, considering nothing besides the apparent meaning of the text. Textualism has long been heralded by justices like the late Justice Antonin Scalia and Trump-appointed Justice Neil Gorsuch.

One would think that since Title VII’s text does not mention “sexual orientation” or “gender identity,” a textualist approach would be an automatically mean excluding these statuses. However, several courts have used a textualist approach to come to the opposite conclusion. No one disputes that Title VII bans sex discrimination—it says so in the text. But LGBT proponents have developed a clever textualist approach to argue that sex discrimination also includes discrimination based on a LGBT status.

The argument goes that by discriminating based on one’s sexual orientation, you are inevitably discriminating based on his or her sex. For example, imagine that there are two employees: one heterosexual man dating a woman and the other a homosexual woman dating a woman. If the homosexual woman is fired for dating another woman and the man is not, the only reason the woman is fired is because of her sex. Both employees are participating in the same activity (dating a woman); the only difference is that one employee is a woman and the other is man—thus, sex discriminati0n. The argument goes that since Title VII bans sex discrimination, the law also necessarily bans discrimination based on sexual orientation. In the same way, a biological man who is wearing woman’s clothing and using the women’s restroom would not be fired if it were a biological woman doing those same things. LGBT advocates claim that this also is sex discrimination.

There are several weaknesses with this argument. In the first example, the primary reason the employee is fired is her sexual orientation, not her biological sex. Title VII’s inclusion of the term “sex” means just that and nothing more. In this case, sex may be a factor, but it is not the primary reason for the firing. Sex and sexual orientation are different concepts. Sex has to do with one’s genetic makeup and reproductive abilities while sexual orientation is based on one’s sexual attraction to others, and gender identity has to do with whether one’s expression or behavior corresponds with his or her biological sex.

A more compelling reason to reject this argument is that by reading sexual orientation or gender identity into Title VII, courts would essentially be acting as policy-makers. For over fifty years, Title VII has never been understood to include sexual orientation or gender identity. In voting for Title VII in 1964, no member of Congress could have imagined that the word sex would also include gender identity and sexual orientation, which have only recently entered the modern vernacular. The courts would simply be reading modern notions of sexuality into a law that was never intended to be used that way.

For years, LGBT lobbying efforts have tried to pass the Equality Act, which, among other things, would add sexual orientation and gender identity to Title VII’s list of protected classes. The bill has been introduced in Congress for years yet has never been enacted. The U.S. Supreme Court would essentially be adopting a policy that Congress has deliberately decided not to pursue.

There is another form of statutory interpretation called originalism, which some courts have used to come to the conclusion that “sexual orientation” and “gender identity” are excluded from Title VII’s protection. Originalism still focuses on the text of the statute, but a word’s meaning is frozen in time. Instead of incorporating changing meanings of words, as may be allowed under a broader view of textualism, originalism says that a word’s meaning is to be taken from the original public understanding of the text from the time the text was enacted. In other words, if a text was passed in 1950, a court ought to look at what the word meant in 1950–not what it means today.

The wisdom of originalism acknowledges that words change meaning over time, but to ensure a fixed meaning in law, the only meaning that a court will consider is what the public understood the words to mean when it was enacted. This approach is taken in order to avoid changing the law from its intended purpose. In this case, no one seriously argues that Congress or the general public would have understood the term “sex” to include “sexual orientation” or “gender identity.”

The U.S. Supreme Court heard oral arguments for these cases in October, and the decisions are expected to come down any day over the coming weeks. Some observers believe Justice Neil Gorsuch to be the swing vote. Justice Gorsuch admitted that the issue was very close in his mind during oral arguments. Congress, the people’s representative, has so far refused to add gender identity or sexual orientation to Title VII by refusing to enact the Equality Act. Yet the Court may choose to bypass the democratic process and adopt this new reading of Title VII.

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The Electoral College Debate

Written by Walter E. Williams

Democratic socialist Alexandria Ocasio-Cortez, seeking to represent New York’s 14th Congressional District, has called for the abolition of the Electoral College. Her argument came on the heels of the Senate’s confirming Brett Kavanaugh to the U.S. Supreme Court. She was lamenting the fact that Chief Justice John Roberts and Justice Samuel Alito, nominated by George W. Bush, and Justices Neil Gorsuch and Kavanaugh, nominated by Donald Trump, were court appointments made by presidents who lost the popular vote but won the Electoral College vote.

Hillary Clinton has long been a critic of the Electoral College. Just recently, she wrote in The Atlantic, “You won’t be surprised to hear that I passionately believe it’s time to abolish the Electoral College.”

Subjecting presidential elections to the popular vote sounds eminently fair to Americans who have been miseducated by public schools and universities. Worse yet, the call to eliminate the Electoral College reflects an underlying contempt for our Constitution and its protections for personal liberty. Regarding miseducation, the founder of the Russian Communist Party, Vladimir Lenin, said, “Give me four years to teach the children and the seed I have sown will never be uprooted.” His immediate successor, Josef Stalin, added, “Education is a weapon whose effect depends on who holds it in his hands and at whom it is aimed.”

A large part of Americans’ miseducation is the often heard claim that we are a democracy. The word “democracy” appears nowhere in the two most fundamental documents of our nation — the Declaration of Independence and the U.S. Constitution. In fact, our Constitution — in Article 4, Section 4 — guarantees “to every State in this Union a Republican Form of Government.” The Founding Fathers had utter contempt for democracy. James Madison, in Federalist Paper No. 10, said that in a pure democracy, “there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual.”

At the 1787 Constitutional Convention, Virginia Gov. Edmund Randolph said that “in tracing these evils to their origin, every man had found it in the turbulence and follies of democracy.” John Adams wrote: “Remember Democracy never lasts long. It soon wastes, exhausts and murders itself. There never was a Democracy Yet, that did not commit suicide.” At the Constitutional Convention, Alexander Hamilton said: “We are now forming a republican government. Real liberty” is found not in “the extremes of democracy but in moderate governments. … If we incline too much to democracy, we shall soon shoot into a monarchy.”

For those too dense to understand these arguments, ask yourselves: Does the Pledge of Allegiance say “to the democracy for which it stands” or “to the republic for which it stands”? Did Julia Ward Howe make a mistake in titling her Civil War song “Battle Hymn of the Republic”? Should she have titled it “Battle Hymn of the Democracy”?

The Founders saw our nation as being composed of sovereign states that voluntarily sought to join a union under the condition that each state admitted would be coequal with every other state. The Electoral College method of choosing the president and vice president guarantees that each state, whether large or small in area or population, has some voice in selecting the nation’s leaders. Were we to choose the president and vice president under a popular vote, the outcome of presidential races would always be decided by a few highly populated states. They would be states such as California, Texas, Florida, New York, Illinois and Pennsylvania, which contain 134.3 million people, or 41 percent of our population. Presidential candidates could safely ignore the interests of the citizens of Wyoming, Alaska, Vermont, North Dakota, South Dakota, Montana and Delaware. Why? They have only 5.58 million Americans, or 1.7 percent of the U.S. population. We would no longer be a government “of the people”; instead, our government would be put in power by and accountable to the leaders and citizens of a few highly populated states.

Political satirist H.L. Mencken said, “The kind of man who wants the government to adopt and enforce his ideas is always the kind of man whose ideas are idiotic.”

Walter E. Williams is a professor of economics at George Mason University.

This article was originally published at the Creators Syndicate webpage.

A Black-Robed Counterrevolution

Federal judges sit on the bench for life and can either uphold the law or rule like tyrants. This puts judicial appointments right near the top of the most important things a president can do.

The newest U.S. Supreme Court justice, Neil Gorsuch, has already shown what a difference a constitutionalist can make. But we need many more to counter the hundreds of Clinton, Obama and Jimmy Carter-appointed judges who issue zany rulings that override common sense and thwart democratically enacted popular will.

A case in point is U.S. District Judge Carlton Reeves, a 2010 Obama appointee. In March, he issued a temporary restraining order to keep Mississippi’s new, 15-week abortion ban from taking effect.

Judge Reeves buys into the “viability” definition of human life beginning at 23 weeks. By contrast, science has confirmed that from the moment of conception, an entirely unique human being with DNA from mother and father is alive and growing exponentially. By the eighth week, the baby has a beating heart, arms, legs, organs and human shape. The judge’s ruling implies that babies before the 23^rd week are something other than human, and so, practically speaking, ending their lives is no more consequential than getting rid of a mole or skin tag.

“If there is no viability the state has no real interest in telling a woman what to do with her body,” the judge said, deploying the abortion industry’s arbitrary rationale.

In 2014, Judge Reeves struck down Mississippi’s marriage law, which voters had approved by 86 percent to 14 percent. Seeing nothing uniquely valuable in the male-female complementarity central to marriage, he likened resistance to racism. This would be news to black and Hispanic Mississippians who voted overwhelmingly to define marriage as between one man and one woman and reject any comparison to morally neutral racial characteristics.

Throughout his two terms, Barack Obama made good on his goal to stack the federal judiciary with leftwing ideologues like Judge Reeves. His 333 appointees (George W. Bush had 330, Bill Clinton 379 and Ronald Reagan 384), which included two U.S. Supreme Court justices, have been hard at work to “fundamentally transform” America.

One of the most dramatic turns was on the 4th Circuit Court of Appeals, which hears cases from nine federal district courts in Maryland, Virginia, West Virginia, North Carolina and South Carolina and federal administrative agencies. In 2007, Republican appointees held a 7-5 majority. After six Obama appointments plus retirements, Democratic appointees now dominate 9-7 and have made their presence felt.

For example, in April 2016, a three-judge Fourth Circuit panel with two Obama appointees ruled 2 to 1 against school officials in Gloucester County, Va. that a girl identifying as a boy could use boys’ restrooms and the locker room.

Three months after the transgender ruling, a three-judge Fourth Circuit panel comprising two Obama appointees and a Clinton judge struck down North Carolina’s voter ID law on a 3-0 vote, accusing lawmakers of discriminatory intent. The Left has long argued absurdly that requiring voters to show some ID when voting is “racist.”

Another key Obama judicial takeover was at the U.S. Court of Appeals for the District of Columbia, perhaps the second most influential court in the country because it hears cases involving federal power.

In 2008, conservatives had a 6-3 edge. Mr. Obama quickly made four appointments, flipping it to a 7-4 Democrat majority. In June 2016, an Obama appointee and a Clinton appointee on a three-judge D.C. appeals panel upheld the Federal Communications Commission’s power grab of the Internet in the name of “net neutrality.” The ruling was a reversal of the same court’s opinion in 2010, when it ruled unanimously that Congress never gave the FCC jurisdiction over the Internet.

The good news is that President Donald Trump understands the gravity of his opportunity. In 2017, he seated 12 appeals court judges, the most ever in the first year of a presidency. So far, he has seated 30 judges, including Justice Gorsuch, with 61 nominees in the pipeline, another 90 vacancies on top of that, and a likely U.S. Supreme Court appointment looming.

By all accounts, the newly robed Trump judges are restoring balance to the federal courts, which alarms Democrats like California U.S. Sen. Dianne Feinstein, who explained the stakes last December:

“The Supreme Court hears between 100 and 150 cases each year out of the more than 7,000 it’s asked to review. But in 2015 alone, more than 55,000 cases were filed in federal appeals courts. … In a way, circuit courts serve as the de facto Supreme Court to the vast majority of individuals who bring cases. They are the last word.”

When all is said and done, the last word on the Trump presidency may well be his counterrevolution to restore judicial integrity and the rule of law.

This article was originally published at Townhall.com

Smashmouth Incrementalism

A recent development within the pro-life movement has both a heartening and disheartening aspect. I am talking about the rise of the “abolish human abortion now” sentiment. This in one sense is the whole point of being pro-life, and so a clear reaffirmation of the entire raison d’être is always welcome. The other side of it, the disheartening part, is the tendency among some of these “abolitionists” to denounce any pro-life incrementalists as being, by definition, temporizers, vacillators, or compromisers.

So let me begin by granting part of the point, and then offering for your consideration a scenario that is going to upon us relatively soon—a scenario that will identify the plain difference between principled incrementalists and those who are simply using pro-life language as a shield to hide behind. I should say from the outset that I don’t like the name abolitionist because it is too closely associated in my mind with characters like John Brown, a murderous thug. Paul Hill, the man who shot an abortion doctor in Florida years ago, wanted to become the John Brown of the pro-life movement, and I am afraid there are others who might share that desire now. That is not the way to go.

Also, in the abstract, incrementalism is not necessarily ineffective in cultural battles. It has been the central tactic used against us by the Gramscians, and with devastating effect. They have managed their “long march through the institutions.” So incrementalism does not necessarily mean “lose slowly.”

So there are politicians who campaign on a pro-life platform, and who buckle in the face of fierce resistance when a real opportunity arises to turn the tide. Yes. There is such a thing as cowardice, and there is such a thing as hidden sympathies with the other side. That is a problem. And there might be pro-life groups who would be dismayed at the prospect of actual victory—victory might damage the fund-raising prospects. Yes, it is a fallen world, and that kind of thing might well happen. A manufacturer of fighter planes might look forward to peace with no little dismay.

And there might be abolitionists who denounce all previous pro-life efforts as worthless because they did not succeed in attaining the object, which is the abolition of human abortion now. But there is an active pro-life movement in America, numbering in the millions. This is not the case elsewhere in the Western world, and it should not be taken for granted. The movement here has been robust enough and big enough to develop a hardline right wing.

A conscientious abolitionist might grant the distinction I am making, but still be impatient. How can we tell the difference between genuine incrementalism and slow surrender? Glad you asked, and it is almost upon us.

When Neil Gorsuch was nominated to the U.S. Supreme Court, there was a fight, naturally, but it was not the blood bath that the next one will be. Because it was a fight over maintaining the status quo, replacing a conservative with a conservative, it was possible for the Republican leadership to hold U.S. Senate Republicans together. This was possible because everything remained the same afterward. On the pro-life issue, nothing changed. The balance on the Supreme Court stayed the same.

But the next U.S. Supreme Court battle will probably be an appointment that will replace a liberal with a conservative. If a vacancy occurs because a liberal dies or steps down, and the president appoints someone like Gorsuch, then that battle will be over whether or not Roe will be overturned. It would alter the balance.

Now the overturning of Roe, were it to happen, would be a genuine incrementalist victory. Abortion would not become illegal in all fifty states. It would likely be greatly restricted in about 35 states. This would leave 15 states still willing to traffic in human misery. Because it would not be a complete victory, it would be an incrementalist victory. Pro-lifers could then turn their attention to those 15 states—because the final goal of abolishing human abortion has not changed.

So it would be a genuine, pro-life victory, but it would not be complete victory. It would be a genuine incrementalist advance. And that is why the U.S. Senate Republicans would not be able to hold together in numbers sufficient to confirm the man appointed to replace, say, Anthony Kennedy.

This is because compromised Republicans would bail. For the purposes of this scenario, let us say that 5 of them abandoned the pretense of being pro-life, and voted not to confirm the one who would join the Court and bring down Roe. Those 5 would be the legitimate targets of abolitionist ire. The Republicans who voted to confirm a justice who would in fact overthrow Roe would be illegitimate targets of abolitionist ire. But the rhetoric after such a debacle would probably be directed against feckless “Republicans” generally, and not against the 5 who proved themselves feckless.

Now I want everyone to know that this is guaranteed to happen. If a conservative justice comes before the U.S. Senate, one who would enable us to repent of Roe, then you can rest assured that there will not be enough votes to confirm him. The desertions will be declared with fanfare and high-flying rhetoric, and the corrupt media will lionize the traitors for their courage. All that, right?

While I share the goal of abolishing human abortion, I do not like calling myself an abolitionist. I like to call it something more like smashmouth incrementalism. This is what that would look like. Overturning Roe is the way to go, I am convinced. But how?

The president nominates Kennedy’s replacement, say. Kennedy retired in the confidence that what I am saying is true—knowing that the machinery of our corrupt generation would destroy anyone who would seriously attempt to undo Roe. So the outcry begins immediately. The media discovers that “Smith” pushed somebody on the playground in junior high. He is temperamentally unsuited to this high office. The drumbeat of character assassination begins. The confirmation hearings are conducted. His overdue books from the library are produced. His wife’s dating habits in high school are minutely examined. And then, at the moment when maximum damage would be inflicted, the Republican “gang of five” announce that it is with the greatest reluctance that they cannot support the nominee. You could almost see the tears glistening in their eyes.

I believe that the president should not withdraw the nomination. Nor should he allow the vote to go forward. He should announce that he is “pausing” the nomination of Smith, which will be brought forward again in six months’ time. In the meantime, he invites the good people of Arizona, Alaska, Maine, etc. to investigate and act upon all their legal options when it comes to impeachment and/or recall elections. Some of the 5 might see the light right away.

And those who do not should prepare to face the wrath of worked-up incrementalists.

This article was originally posted at Blog & Mablog

Culture War Victory Still Possible for Conservatives

Written by Pastor Scott Lively

What we call the pro-family movement is a component of the larger conservative movement and deals with matters of sexuality and the natural family. Its American roots are in the cultural backlash to the Marxist revolution of the 1960s that turned family-centered society on its head and swapped the Judeo-Christian morality of our founding for Soviet-style “political correctness.”

Before the 1960s there wasn’t any need for a “pro-family” movement because family values had been the overwhelming consensus of the western world for centuries. Indeed, so surprised were Americans about the cultural revolution that it took nearly twenty years for the conservatives to mount a truly effective response to it. That came under Ronald Reagan in the 1980s.

The 60’s revolution was not grounded in the Marxist orthodoxy of Lenin and Stalin, but the Cultural Marxism of Herbert Marcuse’s Frankfort School, which envisioned sexual anarchy, not a “workers revolt,” as the key to dismantling Judeo-Christian civilization. The natural core constituency for this ideology was the underground “gay” movement whose dream of social acceptance was not possible without a complete transformation of American sexual morality. Thus, beginning in the late 1940s, Marxist organizer Harry Hay, so-called “father of the American gay movement” was also “father” of the (then hidden) army of “gay” activists most responsible for the “culture war” that exploded in the 60’s and continues today.

America’s Marxist revolution was therefore a “sexual revolution” whose overwhelming success vindicated Marcuse’s destructive vision and became the primary tool of the one-world government elites for softening resistance to their domination by breaking the family-centered society which is every nation’s greatest source of strength, stability and self-sufficiency.

Importantly, though primarily driven behind the scenes by “gays,” the first goal was not legitimization of homosexual sodomy but the normalization of heterosexual promiscuity. This was the motive and strategy that drove “closeted” 1940s and 50s homosexual activist Alfred Kinsey’s fraudulent “science” attacking the marriage-based sexual ethic as “repressive” and socially harmful. It also drove the launch of the modern porn industry, beginning with Hugh Hefner’s Playboy Magazine (Hefner called himself “Kinsey’s pamphleteer”). It drove and defined the battles in the courts where sexual morality was systematically “reformed” by Cultural Marxist elites on the U.S. Supreme Court: contraception on demand to facilitate “fornication without consequences” (Griswold v Connecticut 1966), abortion on demand as the backup system to failed contraception (Roe v Wade 1973), and finally legalization of homosexual sodomy (Lawrence v Texas 2003).

Note the thirty year gap between Roe v Wade and Lawrence v Texas. That major delay in the Marxist agenda was achieved by the election of Ronald Reagan, under whom the pro-family movement became a major political force. That gap also highlights a critical fact: that “street activism” may be essential to any political cause but the real key to the culture war is the U.S. Supreme Court. By 1981 when Ronald Reagan took power the Marxists had nearly succeeded in collapsing the nation’s family and economic infrastructure and the LGBT juggernaut had come completely out of the shadows and taken its place at the head of the cultural blitzkrieg it had been steering from the beginning. Reagan stopped that juggernaut by putting Antonin Scalia on the U.S. Supreme Court, the lion of constitutional originalism who wrote the majority opinion in Bowers v Hardwick (1986) which affirmed (not created) the constitutional right of states to criminalize homosexual sodomy and other harmful sexual conduct in the public interest.

Reagan and Scalia stopped the sexual revolution in its tracks and made it possible for the pro-family movement to begin restoring family values in society, which we strove diligently to do. I got my start in Christian social activism in those heady days and served as State Communications Director for the No Special Rights Act in Oregon in 1992 which forbade the granting of civil rights minority status based on sexual conduct. We fell short in Oregon but a Colorado version of our bill passed the same year. We had in essence won the culture war with that victory given that the Supreme Court had previously ruled that minority status designation required three things: a history of discrimination, political powerlessness, and immutable (unchangeable) status (such as skin color). We had a slam-dunk win on at least two of the three criteria and it would have been just a matter of time before we passed the No Special Rights law from coast to coast.

However, Reagan had been prevented by the elites from putting a second Scalia on the court in the person of Robert Bork, and was forced by the unprecedented political “borking” of Mr. Bork to accept their man Anthony Kennedy to fill the seat instead. Just ten years later, Kennedy served his function by writing the majority opinion killing the Colorado law in Romer v Evans (1996), audaciously declaring that the court didn’t need to apply its three-part constitution test to the No Special Rights Act because it was motivated by “animus” (hate) and thus did not represent a legitimate exercise of the state’s regulatory authority. The ruling was all the more outrageous given that it was only possibly through a blatant abuse of the court’s own judicial authority. Kennedy’s “disapproval = hate” lie set the tone for the political left from that point forward.

In Lawrence v Texas, Kennedy delivered the coup-de-grace to Justice Scalia by striking down Bowers v Hardwick and brazenly ruling that “public morality” cannot be the basis for law. Anthony Kennedy wrote the majority in all five SCOTUS opinions that have, in essence, established homosexual cultural supremacy in America, including the infamous and utterly unconstitutional Obergefell v Hodges (2015) “gay marriage” decision. He is, in my opinion, the worst and most culturally destructive jurist in the history of the court: the culprit (among many villainous candidates) most responsible for the current dysfunctional state of the family in America.

So where’s the “bright future” amidst this lamentation? It’s in the promise made and so-far kept by President Donald Trump to appoint only constitutional originalists to the supreme court. It is in the pleasantly surprising discovery that his first pick, Neil Gorsuch, seems from his first comments as a “supreme” to be a perfect choice to fill the “Scalia seat” on the court. It is in the hopeful rumors that Anthony Kennedy is about to retire, and the simple fact that ultra-hard leftist Ruth Bader Ginsberg and leftist Steven Broyer are of an age that their seats could at any time be vacated by voluntary or involuntary retirement.

In short, the bright future of the pro-family movement is in the hands of the man we hired to drain the swamp in Washington DC, and who hasn’t yet backed down in that fight despite the remarkable scorched-earth campaign of destruction and discreditation being waged against him by the establishment elites of both parties, Hollywood and the media.

I must admit that after Obergefell I began to think that the pro-family movement had lost the culture war, but I now believe there is real hope, not just for reclaiming some lost ground, but possibly of reversing all of the “gains” of the hard left over the past half century. A solid majority of true constitutional originalists could actually restore the legal primacy of the natural family in America fairly quickly, and our cultural healing could quickly follow.

As the leftist elites and street activists continue their all-hands-on-deck attempted “borking” of President Trump, let’s not forget why they’re doing it. His political survival means the end of theirs. I can’t think of a brighter future than that for our nation.

This article was originally posted at ScottLively.net

A Question of Lawful Authority

Baseball season gets underway this week, a welcome distraction from the political battles in Washington.

Meanwhile, the U.S. Senate is warring over the confirmation of Supreme Court nominee Neil Gorsuch. The Republicans say he’s a stellar nominee, a judicial umpire who calls balls and strikes as he sees them. Democrats, led by New York’s Charles Schumer, however, say the judge is a creature of “special interests” who would slide into a base with spikes up and who deserves to be filibustered.

Who are those “special interests” you might ask? Well, they would be anyone who disagrees with progressives, which the November election indicated is at least half the country if not more.

The Republicans say Judge Gorsuch will help the Court return to constitutional principles. Democrats claim that he will “undo the gains” made by decades of liberal jurisprudence. We can only pray that they’re both right.

Over the years, federal courts – especially the U.S. Supreme Court – acquired an out-sized role in the nation’s affairs, especially during Franklin Roosevelt’s administration. Think of the federal government as a three-bodied creature, with one of the bodies in a black robe towering over the others with a giant Nancy Pelosi gavel.

Restraining the U.S. Supreme Court’s power, even slightly, has been a non-starter. Congress is packed with lawyers who dream of serving on or before the highest bench someday. It’s also an open secret that many politicians are relieved when hot button issues slide off their plates and directly onto the Court’s docket.

Nonetheless, given the Court’s near-omnipotence, the central question of what constitutes lawful authority will dominate public discussion in years to come, especially if there is a conservative majority. Right now, “lawful authority” is in the eye of the beholder on many levels.

For example, progressives applauded a federal judge in Washington State in February for overruling President Trump’s order temporarily barring immigrants from seven terror-prone Muslim-majority nations. The judge snapped his fingers, extending constitutional rights to foreigners not even in this country and accused Mr. Trump of racist motives for good measure. Another judge in Hawaii piled on last week by ruling against Mr. Trump’s re-written order affecting six countries. Progressives again cheered.

On the other hand, when a federal judge in Texas ruled in 2015 that President Obama had usurped congressional authority with executive actions shielding five million illegal immigrants from deportation, progressives pledged resistance and urged people to take to the streets.

Progressives look with favor on the 500 or so “sanctuary” cities that refuse to cooperate with federal immigration laws and procedures. Conscience, they say, overrides mere lawfulness. Except, of course, when it comes to Christian bakers, florists, wedding planners and photographers. They must be forced by law to violate theirs.

Only a few months ago, progressives cheered an edict from the Obama Administration ordering all school systems in America to accommodate female-identified males in girls’ restrooms and locker rooms or risk losing federal funds. Can’t these schools follow the rule of law?

And what about those scoundrels, the Little Sisters of the Poor, or Hobby Lobby and other Christian-owned businesses that don’t want to obey Obamacare’s abortifacient mandate? What are they trying to do, provoke anarchy?

When the U.S. Supreme Court in Citizens United restored collective political free speech, President Obama pilloried the justices in person during the 2010 State of the Union address, badly misrepresenting the facts of the ruling. Fellow progressives vowed to see the opinion overturned.

But when the U.S. Supreme Court in Obergefell v. Hodges invented a “right” to same-sex marriage in the penumbras of the Constitution in 2015, overriding state marriage laws – 31 of them constitutional amendments approved by voters – progressives instantly pronounced it “settled law.”

They said the same about the Roe v. Wade ruling in 1973 that struck down abortion laws in every state – “settled law.”

If these examples leave you confused about what is actually lawful authority, don’t worry. We have an omniscient media to explain it to us. If they feature lots of people “hailing” a ruling or order, you can bet it’s about another judicial or executive demolition job on America’s heritage, the Constitution, founding values and genuine civil rights. If they quote lots of people condemning the ruling or order as an abuse of authority, it’s a clear victory for constitutional governance.

To progressives and the lockstep media, legitimate authority means only advancing progressive causes. If so, it’s no big deal for liberal presidents or judges to run outside the baselines when they need to score some runs.

This article was originally posted at Townhall.com