SCOTUS Weighs In Or Legislates? You Decide.

Today’s SCOTUS opinion on Bostock v. Clayton County will be the most discussed and debated by both political parties. Why? Because we live in the times of –isms. This particular decision was about employment and sexual orientation.

If you read the majority opinion, written by Justice Gorsuch, almost any 21st century citizen will understand his intent. Moreover, I would wager that a super majority would agree with the opinion. The court sided with Bostock and said that his termination, based on his sexual orientation, was unlawful.

The question or the immediate debate will be, did the court, in ruling the way it did, ensure that the Pandora’s Box that was opened as early as the first controversial ruling of the court, remain, at least for now, open!

‘What do I mean?

The Act or Law at issue is Title VII of The Civil Rights Act of 1964. The dissent states that the court is adding to the text of the law, and thereby overstepping it’s role. As a non-legislative body, it has to adhere to the original text and intent of the law at the time the act was passed.

This is where passions get enflamed. Reasonable people will disagree. The disagreement will not hinder on the “unfairness” of employment decisions solely on the basis of “sex” or in this current case, “sexual orientation.” The disagreement will be on whether it was the role of the court to infer a text and therefore an intent that wasn’t there to begin with. Why? Because sexual orientation was not included in Title VII.

Of course there will the usual permutations that would be debated. What if an employer, let’s say the NBA, denies a WNBA player from trying out for a team and therefore the franchise that has been traditionally male – does that violate Title VII? Stuff like that. Oh, don’t think that that’s far fetched. In 1964, there was no debate to using a restroom based on what you thought your gender was.

There were three decisions today. It is for certain, that almost all three will be criticized by members of the citizenry, on merits but ultimately, jurisdiction. As of today June 15, 2020, they are the law of the land. That is until a future SCOTUS opinion reverses them.

This ultimately proves that the check on the three bodies of our governmental structure, Our Constitution, ARE THE PEOPLE.