Law & the Courts

The Emperor’s New Law

Justice Neil Gorsuch participates in taking a new group photo with his fellow justices at the Supreme Court building in Washington, D.C., June 1, 2017. (Jonathan Ernst/Reuters)
Magical thinking replaces jurisprudence at the Supreme Court.

In the television series Mrs. America, which dramatizes Phyllis Schlafly’s fight against the so-called Equal Rights Amendment, one character sneers that Mrs. Schlafly doesn’t know what is actually in the proposed amendment, that she is making exaggerated claims about what it would do if enacted. Another sneers that Schlafly has no legal education, treating her as a simpleton housewife. In fact, Schlafly already had a master’s degree from Radcliffe — Harvard, not having yet caught up socially to Hillsdale, was still excluding women when Schlafly was in graduate school — and after the ERA fight she went on to earn a law degree at age 54. By my count that puts her two graduate degrees ahead of Gloria Steinem, whose lack of a formal legal education does not seem to have been counted against her in public life.

Of course Hollywood is wrong about Phyllis Schlafly. But was Phyllis Schlafly wrong about the ERA?

Nobody knows. Except maybe Neil Gorsuch.

If some conservative critic had said in 1964 that the civil-rights bill then under consideration would outlaw discrimination against men who wish to undergo voluntary genital amputation in service of a persistent fantasy that they are in some transcendent sense female, Lyndon Johnson would have looked at him a little funny. Even Barry Goldwater did not think such a thing. There is not a word about sexuality, homosexuality, or the contemporary phenomenon politely known as transgenderism in the Civil Rights Act of 1964.

The law does forbid discrimination based on “sex.” From that modest material, a Supreme Court majority, led by Justice Gorsuch, has constructed a vast new edifice of civil-rights law under which a man’s desire to wear a dress (I am not being snarky — the issue in R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC was an employer’s maintenance of separate dress codes for male and female employees) is protected by the same law, to the same extent, and under the same principles as African Americans seeking to maintain their political and economic rights after centuries of chattel slavery and ruthless official repression.

Justice Gorsuch’s reasoning is, of course, impeccable: If you wouldn’t fire a woman for wearing a dress, you can’t fire . . . well, wait: The transgender ideology insists that a biologically male individual who identifies as a woman is female in the same sense your mother is, so it cannot be that sex is genuinely the issue — the issue is that one of the ladies in the office is being treated differently from the others. Justice Gorsuch squares this all with a nice dose of hocus-doofus: You wouldn’t be homosexual if you weren’t the same sex as the people to whom you are sexually attracted, ergo discrimination against homosexuals is discrimination on the basis of sex. In parallel: If you really weren’t a member of the sex you say you are not a member of, you wouldn’t be transgender, ergo sexual discrimination, QED.

“Textualism,” Justice Gorsuch calls this.

And he has a point. His reading of the text is entirely sophomoric, but it is in its daft way literal and, if you are willing to be persuaded, persuasive. There is that niggling question of democratic legitimacy: Nobody who voted for the Civil Rights Act of 1964 thought he was voting for a bill to equate the situation of transgender people, of whom no one had heard of then since the word had not yet found its way into English, with the situation of African-American people, and to place the whole mess under rigorous federal monitoring. Nobody who voted for the 1964 bill was voting for that, and none of the people who voted for those representatives thought he was voting for such a thing, either. It is a law that nobody agreed to, but, if we are to credit Justice Gorsuch et al., the plain fact of it has been sitting there, awaiting discovery, since Gorsuch was toddling around his kindergarten in Denver.

This is not jurisprudence. This is magical thinking. The law says whatever the wizards in the black robes say it says, and they are not very particular about distinguishing between what it says and what they think it should say. If a few lawyers can pretend to be persuaded by an argument, and everybody who wants the outcome it would produce also can pretend to be persuaded by it, then who are you to hold out? Did you go to law school?

And so we must rely on the ladies and gentlemen in Washington to interpret the scriptures for us. Can we trust them to be honest brokers and evenhanded? Consider that the day before yesterday, gathering for a church service was a crime against humanity and getting a haircut in Georgia was to offer human sacrifice to Mammon. And then — poof! — gathering in gigantic crowds of non-socially distanced, sweaty protesters chanting and looting and rioting and burning was an absolute necessity for the survival of democracy and the cause of genuine justice. Consider that the right to keep and bear arms, which is actually found in the Constitution, is severely limited (unless you are leading a left-wing militia uprising in Seattle!), but the right to an abortion, which is found nowhere in the Constitution, is considered virtually absolute. “You can’t see the emperor’s new clothes? Well, we know what you are, then!”

Phyllis Schlafly was wrong about a lot of things. She was right not to trust these charlatans.


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