I Say Hogwash

2017 | Week of April 10 | #1198

“Yeah, yeah. Judicial activist judges are judges that disagree with you. We know. We get it.”  I’ve been told that countless times. In essence, the scoffers and mockers are saying judicial activism is just in my head and is a defense mechanism I use when a court hands down a decision I don’t like.

Let me put this simply. That’s a bunch of poppycock, hogwash, baloney or balderdash. I hope that’s clear enough. Judicial activism—when a judge issues an opinion that in essence makes law—is very real.

The role of the judicial branch of the government is interpretation of the law within the bounds of what the law and, in particular, the constitution says. Making law is outside their jurisdiction. Interpreting the law or the constitution in a way that creates new law is wrong too. But it happens all the time these days with a stunning example of it coming out of the 7th Circuit Court of Appeals last week. This federal court has jurisdiction over Indiana, Illinois and Wisconsin, which means its decisions are binding on us in The Badger State.

The case in question originated in Indiana where a woman who asserts she is a Lesbian sued a tech college when she was denied a full-time position at the college. The plaintiff said she was denied the position because she was a Lesbian and the school had violated her rights under Title VII of the 1964 Civil Rights Act. Title VII protects employees from discrimination based on sex, race, color, national origin, and religion. It does not include sexual orientation or gender identity.

All the lower courts ruled in favor of the school. But not the 7th Circuit Court of Appeals. Last week, the Court issued its opinion, revealing that in an 8-3 vote, the Court overturned the lower courts’ decisions and ruled in favor of the plaintiff, Kimberly Hively.

What’s stunning about this decision is the basis for their conclusion.  Basically their argument is that the 1964 law needed updating because those lawmakers didn’t really know what the word “sex” means. So in a sweeping, completely unconstitutional wave of their judicial magic wand, the court changed the meaning of “sex” as used in Title VII to include “sexual orientation” and one can also reasonably assume “gender identity” as well.  The transgender activists certainly believe that’s the case.[1]

Judge William Posner, writing a concurring majority opinion, said, “It’s true that even today if asked what is the sex of plaintiff Hively, one would answer that she is female or that she is a woman, not that she is a lesbian. Lesbianism denotes a form of sexual or romantic attraction; it is not a physical sex identifier like masculinity or femininity. A broader understanding of the word ‘sex’ in Title VII than the original understanding is thus required in order to be able to classify the discrimination of which Hively complains as a form of sex discrimination.”

That’s an amazing statement. Judge Posner calls this judicial contortion “judicial interpretive updating.” Seriously, Judge? I say hogwash. You just wanted to change the definition of “sex” and you did. That’s raw judicial activism.

Judicial activism isn’t innocuous. It has real life implications. In this recent decision, we will soon see religious freedom being pitted against this unconstitutional judicial wizardry.

Title VII does have an exception for some religious organizations and therefore limits the impact of the court’s decision. However, constitutional experts are arguing that this decision could result in a situation where expressing religious views against or in favor of some forms of behavior—such as same-sex marriage—could come to be treated as illegal discrimination in the workplace. People could be accused of creating a hostile work environment. Unreal.

Fortunately, some other circuit courts of appeals have recently ruled that “sex” even today actually means male and female as the framers of the Civil Rights Act intended 53 years ago. These differing decisions make it quite likely this issue will ultimately go to the US Supreme Court.  Now, that will be interesting especially since earlier this week, Neil Gorsuch was sworn in as a member of the US Supreme Court.  Based on what I heard Justice Gorsuch say in his confirmation hearings last month, I believe he dislikes and disagrees with judicial activism as much or more than I do.  I don’t know that he’d use words like “hogwash” or “baloney,” but I wouldn’t be surprised.

For Wisconsin Family Council, I’m Julaine Appling, reminding you the prophet Hosea said, “My people are destroyed for lack of knowledge.”

[1] http://www.slate.com/blogs/outward/2017/04/05/_7th_circuit_decision_in_hively_is_great_news_for_trans_rights.html

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