From 2016 to 1964 and Back Again
It’s not easy to watch a bunch of unelected men and women burn down a law you helped protect.
It’s not easy to watch a bunch of unelected men and women burn down a law you helped protect. Senator Jeff Sessions ought to know. The former U.S. attorney general was the man helping the president roll back the redefinition of “sex” after Barack Obama took an ax to it in 2016. How does it feel to see the Supreme Court upend all the good the Justice Department did? Not great, the Alabaman says.
Like most people, Senator Sessions had a pretty good idea of what Congress meant by the word “sex” in 1964. And it wasn’t, as Kevin Williamson wrote, “transgender people.” How could it, he asked? The word hadn’t even been invented. Now, almost 60 years later, it hasn’t just been invented – the rest of our words have been reinvented to suit it.
Five and a half decades ago, Senator Sessions pointed out, they didn’t think this law “was going to alter bathrooms… or that biological males could compete against females [in sports]. They never would have passed [it].” No one, he insists, can come to that conclusion by any fair reading of the text.
And for years, no one had. President Obama was the first one, who took the radical position that the law somehow covered people who identified as transgender. When people sued to correct it, the Obama administration defended their wild interpretation of the law. “When I became attorney general under President Trump, we reversed it and took the position that the statute did not mean [anything except]… simply biological sex.”
Three years later, he was just as shocked as anyone that the court supposedly full of textualists can’t even be trusted to define one word. “It’s just a very, very dangerous and frustrating decision because… it was preposterous. And it was a brazen abuse of the court’s power.” How is it, he wondered, that we’ve gotten to this point where judges “seem to feel it’s upon themselves to decide social policy questions that Congress has rejected?” That’s the legislature’s job. “And as you know, there was a lot of talk about changing the law to include ‘transgender.’ And Congress has not done it. They refused to do so. So they got the courts to do that which the people’s representatives would not…”
“Justices,” he insisted, “take an oath. And that oath is to serve under the Constitution and the laws of the United States – under them. They’re not above them. Their oath is to serve the law as it is, not as they might wish it to be.” And he and John Roberts, who he met with in his office before his confirmation hearings, talked about that. “He said a judge is a ‘neutral umpire, calls balls and strikes, does not take sides in the game.’ I remember that, and I don’t think he honored that.”
For a lot of Americans, this Bostock ruling is a wake-up call. There are a lot of “good and dutiful Americans,” Senator Sessions said, who have accepted opinions they don’t agree with. “But I tell you, these two cases [Monday] and [Thursday on DACA], have made me rethink it. I cannot have the same degree for the court as I used to have. And I think the court is on a dangerous path. They lost the confidence of the American people. And the rule of law is in danger.”
Originally published here.
This Equality’s All an Act
After Monday’s wildly off-base decision, most liberals should have been out celebrating. But despite being handed a judicial gift – an LGBT victory they’d have never managed democratically – Democrats didn’t stop to party. They were already back on the Senate floor, demanding more. Now that they’ve got the Supreme Court taking a match to religious liberty, they’re apparently hoping Congress will finish the job.
They’re the Party of Never Satisfied. Democrats, who couldn’t get Congress to go where SCOTUS did, isn’t even stopping to savor the moment. Like Obergefell, they’re already on to phase two: turning what’s left of Americans’ freedom to a pile of smoldering ash. As far as they’re concerned, it wasn’t enough that six justices magically redefined human biology. Or that faith-loving Americans are about to be legally tormented like never before. After Monday their goal is bigger: using the court’s decision to bash through whatever religious barriers to their agenda still exist. And the “Equality” Act is the way they plan to try.
There’s just one problem – Americans were never on board with these changes in the first place. And if they wanted Congress to act, it certainly wouldn’t be to make things worse. But this is about tolerance, the Left will say. Americans want to end discrimination, they’ll argue. Well, of course they do. We all do. But not when “ending discrimination” means a drag queen in every library, a man in every girls’ restroom, or an atheist teacher in every Christian school. As most conservative senators argued yesterday, the only “equal” thing about this idea is how much damage it does to every facet of American life.
Senate Democrats, who apparently believe six people’s opinion makes a national consensus, tried on Thursday to fast-track their bill to wipe religious freedom off the map. It was a bold move, considering that most Americans were still in shock over the fact that the court bypassed Congress to elevate “sexual orientation” and “gender identity” in the first place. That will already, FRC’s Travis Weber pointed out on “Washington Watch,” spark years of litigation. But liberals want to eat their cake and force you to bake it too.
Fortunately, under the Senate’s rules, you can’t hotline a bill if even one Senator objects. And Senators Josh Hawley (R-Mo.), Mike Lee (R-Utah), and James Lankford (R-Okla.) dutifully pushed on the brakes. In stirring speeches that spelled out the scope of this devastation, they looked at their colleagues across the aisle and asked what happened to civil disagreement? What happened to coexistence? Why, Senator Lankford asked, are you pushing a piece of legislation that decides the rights of one side matter more than the rights of the other? “We in America have tried to be able to find those spots, where the rights collide of the two individuals and to be able to work it out among each other.” That’s impossible, he points out, when you take religious freedom off the table.
And protecting religious freedom, Hawley points out, wasn’t just conservatives’ idea. “[The Religious Freedom Protection Act] was sponsored in the House by then-Representative Chuck Schumer (D-N.Y.), and it was sponsored in this chamber by Senator Edward Kennedy (D-Mass.) and signed by President Bill Clinton into law… It was bipartisan is my point. To put it mildly…” Now, he shakes his head, Democrats are the ones who want to “steamroll” it as part of this process. Why, he wanted to know? So that liberals can force taxpayers to pay for abortions and gender reassignments against their will? So that doctors and nurses will have to participate against theirs?
What about adoption agencies, Hawley pressed on, “some of which had been helping birth mothers find a safe and loving and permanent home for more than 100 years? It would force them out of business. It would coerce those who don’t want to speak or who hold different beliefs into adopting this set of practices and principles and beliefs at work… These doctors, these nurses, these faith-based agencies, I submit to you that this is not the way to find consensus in America. This shunting aside of the constitutional rights of sincere, well-meaning people of faith is not the way to proceed.”
“We, in America,” Senator Lankford insisted, “have tried to work together in all of our differences… to accommodate one another. The Equality Act does not do that. I wish it did. It changes everything dramatically.” And Americans are no more ready for that than they were for a handful of unelected judges to change the course of history. This lawlessness has to stop, and it’s Congress’s job to try.
Originally published here.
DOJ Plays Offense on Girls’ Sports
When Idaho went to the mat to protect women’s sports, the ACLU vowed to see Governor Brad Little ® in court. One group they didn’t expect to see there is the U.S. Justice Department. But thanks to an administration that isn’t going to let the Supreme Court dictate gender roles, that’s exactly who will be waiting – for the ACLU and anyone else on the hunt to destroy fair competition.
In an announcement Friday morning, the DOJ made it clear the president isn’t letting up on its mission to give women a level playing field. Just two weeks after the Department of Education jumped into the fray with its own funding threats in states like Connecticut, attorneys at Justice have filed a statement of interest in Idaho federal court warning the Left that a fierce battle awaits for anyone who doesn’t respect gender differences.
“Allowing biological males to compete in all-female sports is fundamentally unfair to female athletes,” Attorney General William Barr spelled out in the agency’s announcement. “Under the Constitution, the Equal Protection Clause allows Idaho to recognize the physiological differences between the biological sexes in athletics. Because of these differences, the Fairness Act’s limiting of certain athletic teams to biological females provides equal protection. This limitation is based on the same exact interest that allows the creation of sex-specific athletic teams in the first place – namely, the goal of ensuring that biological females have equal athletic opportunities. Single-sex athletics is rooted in the reality of biological differences between the sexes and should stay rooted in objective biological fact.”
States, the DOJ insists, shouldn’t abandon their efforts to give girls fair treatment. And thanks to groups like Save Women’s Sports, more legislators understand the threat to competition than ever. State Rep. Barbara Ehardt (R-Idaho), one of the main reasons Idaho has a law for the DOJ to help defend, says that if the ACLU or NCAA try to punish the state for taking this stand that’s disappointing. But they aren’t backing down – and other legislators shouldn’t either.
Plenty of major businesses and groups tried to convince Governor Little to veto the bill. “Chobani, Nike, and others with money… they tried to use their influence to say that [this law] would keep people from coming flocking here. But,” she points out, when you look at the most successful tourism states – places like North Carolina, Georgia, Utah, and Texas – “these are all states that have decided to take a stand at protecting the rights of girls and women…” Frankly, “This is a pretty benign stance, defending Title IX,” Barbara argued. “A no-brainer.” The people of Idaho agree. And fortunately for America, so does this administration.
Originally published here.
This is a publication of the Family Research Council. Mr. Perkins is president of FRC.
