Thread: Gorsuch applies Humpty Dumpty Theory of Language to Title VII, Civil Rights Act 1964

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Justice Gorsuch’s majority opinion in Bostock v. Clayton County, Georgia, ignored the rules of statutory construction by ignoring the distinction between "sexual orientation discrimination" and "sex discrimination"___ the latter being the intended object of protection under Title VII of the Civil Rights Act of 1964, while protection for the former was considered for protection on various occasions, but never agreed upon and written into law.


As pointed out in Justice Kavanaugh’s dissent "For several decades, Congress has considered numerous bills to prohibit employment discrimination based on sexual orientation. But as noted above, although Congress has come close, it has not yet shouldered a bill over the legislative finish line."



Kavanaugh continues with emphasizing the distinction between sexual orientation and a firing because of sex discrimination.

”As to common parlance, few in 1964 (or today) would describe a firing because of sexual orientation as a firing because of sex. As commonly understood, sexual orientation discrimination is distinct from, and not a form of, sex discrimination. The majority opinion acknowledges the common understanding, noting that the plaintiffs here probably did not tell their friends that they were fired because of their sex. Ante, at 16. That observation is clearly correct. In common parlance, Bostock and Zarda were fired because they were gay, not because they were men.


Contrary to the majority opinion’s approach today, this Court has repeatedly emphasized that common parlance matters in assessing the ordinary meaning of a statute, because courts heed how “most people” “would have understood” the text of a statute when enacted.”

The fact is, Justice Gorsuch attempts in his written opinion, with unusual and extraordinary effort, to articulate, or to be more accurate invent, the idea that there is no distinction between "sexual orientation discrimination" and "sex discrimination" within the meaning of Title VII of the Civil Rights Act of 1964

While sex discrimination, under Title VII of the Civil Rights Act of 1964, obviously refers to biological distinctions of an individual identified at birth, sexual orientation refers to an individual’s mental yearning or belief that their physical attributes do not align with their emotional sexual proclivities. And it is this distinction that has been considered for protection under Title VII of the Civil Rights Act of 1964, but without success.


So, instead of Gorsuch and the majority accepting the distinction between sexual orientation and sex discrimination, and following time honored rules for interpreting statutory law requiring the meaning of “sex”, a biological attribute intended to have protection under Title VII of the Civil Rights Act of 1964, Gorsuch and the Majority resort to the Humpty Dumpty Theory of Language being applied to Title VII of the Civil Rights Act of 1964, and pretend there is no distinction between sexual orientation, a mental or emotional state, and sex discrimination which refers to a biological distinction under Title VII.


"When I use a word," Humpty Dumpty said, in rather a scornful tone, "it means just what I choose it to mean- neither more nor less."


But, the fact is, words or terms used in legislation must be understood in the sense most obvious to the common understanding at the time of its adoption!

Unfortunately, Gorsuch and the Majority, in applying the Humpty Dumpty Theory of Language, and doing for the Legislature what it has refused to do or was unwilling to do, has likewise usurped legislative power which borders on judicial tyranny as described by Madison:

”The accumulation of all powers, legislative, executive, and judiciary, in the same hands [our Supreme Court] . . . may justly be pronounced the very definition of tyranny.” ___ Madison, Federalist Paper No. 47



JWK

As nightfall does not come at once, neither does oppression. In both instances there is a twilight where everything remains seemingly unchanged. And it is in such twilight that we all must be aware of change in the air - however slight - lest we become unwitting victims of darkness. __Supreme Court Justice William Douglas

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Senator Hawley has the courage to speak out against the majority opinion in Bostock v. Clayton County, Georgia





JWK

Gorsuch’s opinion is based upon Title VII of the Civil Rights Act of 1964, i,e, that part which makes it “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.”

The first question which comes to my mind is, under what wording in our federal Constitution is Gorsuch asserting that Congress is authorized to make it “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.”

I wonder if someone can shed some light on this fundamental question.



JWK

In Gorsuch’s written opinion we find:

“This Court normally interprets a statute in accord with the ordinary public meaning of its terms at the time of its enactment. After all, only the words on the page constitute the law adopted by Congress and approved by the President. If judges could add to, remodel, update, or detract from old statutory terms inspired only by extratextual sources and our own imaginations, we would risk amending statutes outside the legislative process reserved for the people’s representatives. And we would deny the people the right to continue relying on the original meaning of the law they have counted on to settle their rights and obligations. See New Prime Inc. v. Oliveira, 586 U. S. ___, – (2019) (slip op., at 6–7).”

“With this in mind, our task is clear. We must determine the ordinary public meaning of Title VII’s command that it is “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” §2000e–2(a)(1). To do so, we orient ourselves to the time of the statute’s adoption, here 1964, and begin by examining the key statutory terms in turn before assessing their impact on the cases at hand and then confirming our work against this Court’s precedents.”

Gorsuch is absolutely correct in pointing out the Court “… normally interprets a statute in accord with the ordinary public meaning of its terms at the time of its enactment.” And the explanation Gorsuch gives for doing so is only too obvious to create any contention. But every now and then a word or term used in legislation may be construed in a manner that if applied to the statute, would pervert the evil intended to be addressed by the legislation at the time of its adoption, and it would allow judicial decisions which neither the legislature or public at large would have embraced at the time of the legislation’s adoption. In other words, it would allow our judicial branch of government to force upon the people that which neither the legislature nor public was willing to do at the time the legislation was adopted.

So, the real question to be answered is, did the legislature, when passing the Civil Rights Act of 1964, intend to provide protection in the workplace for employees displaying and/or engaged in sexual deviant conduct? To this, the obvious answer is a resounding no!

Let us not forget the fundamental principle requiring the above question to be answered is emphasized by our very own Supreme Court. In Hawaii v. Mankichi, 190 U.S. 197 (1903), in which the Court confirms the historical validity of enforcing legislative intent as a priority of the Court:

”But there is another question underlying this and all other rules for the interpretation of statutes, and that is what was the intention of the legislative body? Without going back to the famous case of the drawing of blood in the streets of Bologna, the books are full of authorities to the effect that the intention of the lawmaking power will prevail even against the letter of the statute; or, as tersely expressed by Mr. Justice Swayne in 90 U.S. 380 :

“A thing may be within the letter of a statute and not within its meaning, and within its meaning, though not within its letter. The intention of the lawmaker is the law.”

Gorsuch’s’ novel approach, parsing the meaning of “sex” within the statute in a manner which perverts the narrow evil being addressed at the time of the legislation’s adoption, opens the door for judges to “add to, remodel, update, or detract” from the original evil being addressed, and allows “amending statutes outside the legislative process reserved for the people’s representatives.” And this denies “the people the right to continue relying on the original meaning of the law they have counted on to settle their rights and obligations.”

JWK

Our Supreme Court has usurped legislative functions, set itself up as an unelected, omnipotent and unreviewable, policy making branch of government, and pretends our Constitution means whatever it chooses it to mean.