Another Bad Abortion Ruling

Everything the Supreme Court has not yet ruled on comes out today or tomorrow, since their end of term is the end of June.

It’s the divisive cases that get the attention. Today’s is an abortion case: June Medical Services v. Russo. Russo is the Interim Secretary of the Louisiana Department of Health, so we could call it June Medical Services v. Louisiana Dept. of Health.

The case is very similar, according to the plurality (not majority) opinion, to the case from Texas in Whole Woman’s Health v. Hellerstedt. The essence is that each state legislated a law requiring doctors at abortion services to have admitting privileges at a nearby hospital, for the sake of women’s health.

That part of the Texas law was overturned in 2016, based on the possibility that too many abortion facilities would close, which, using the Casey standard (Planned Parenthood v. Casey in 1992), was deemed to have placed an undue burden on women seeking abortions.

Justice Roberts dissented in that case. But, now that it has been precedent for a whole four years, he concurs with the plurality (winning) opinion because of stare decisis:

I joined the dissent in Whole Woman’s Health and continue to believe that the case was wrongly decided. The question today however is not whether Whole Woman’s Health was right or wrong, but whether to adhere to it in deciding the present case.

Chief Justice John Roberts
image: Leah Millis/Associated Press, found here

The dissents explain his error, but it’s notable that, of the most controversial cases this session, he as sided with the conservatives only once—on the Seila Law decision, splitting with constitutional textualism on Bostock, DACA, and now June Medical Services. Because of personal interest? 

I wrote several times on the Whole Woman’s Health case, since it was pertinent here in Texas.

·         Texas Abortion Ruling (November 1, 2013)

·         Angels of Death (November 4, 2013)

·         Admitting Bias, Part I (August 7, 2014)

·         Admitting Bias, Part II (August 11, 2014)

·         About That Wrong Abortion Ruling (June 30, 2016)

Here’s some background on the Texas case, from my 2016 piece, which applies also to the Louisiana case:

It was a reaction to the Gosnell case, in which an abortion clinic was filthy, grisly, and engaged in late-term and post-birth abortions (i.e., murder of newborns). There were two basic requirements to make sure Gosnell-like conditions wouldn’t risk the lives of the women receiving abortions. One was that clinics would be required to have doctors with admitting privileges at a relatively nearby hospital (the miles were far enough to offer flexibility in all cases). The other was that the facilities would have to meet the same standards as other ambulatory surgical centers.

So let’s be clear: the abortion industry fought all the way to the Supreme Court to avoid securing basic health care for women.

Both states faced similar infractions in their states. Louisiana, however, wrote the legislation carefully considering the requirements the Court decided to make law following the Texas case. While the evidence below was dismissed by the plurality, Justice Gorsuch, in pointing out why legislatures are better suited to deciding these things, shares with us some of what the Louisiana legislature heard:

The legislature heard, too, from affected women and emergency room physicians about clinic doctors’ record of abandoning their patients. One woman testified that, while she was hemorrhaging, her abortion provider told her, “‘You’re on your own. Get out.’” Eventually, the woman went to a hospital where an emergency room physician removed fetal body parts that the abortion provider had left in her body. Another patient who complained of severe pain following her abortion was told simply to go home and lie down. When she decided for herself to go to the emergency room, physicians discovered a tear in her uterus and a large hematoma containing a fetal head. The woman required an emergency hysterectomy. In another case, a clinic physician allowed a patient to bleed for three hours, yet a clinic employee testified that the physician would not let her call 911 because of possible media involvement. In the end, the employee called anyway and emergency room personnel discovered that the woman had a perforated uterus and a needed a hysterectomy. A different physician explained that she routinely treats abortion complications in the emergency room when the physician who performed the abortion lacks admitting privileges. In her experience, that situation “puts a woman’s health at an unnecessary, unacceptable risk that results from a delay of care… and a lack of continuity of care.”

The dissents agree on this: the plaintiffs lack standing. (The dissents, by the way, are all written singularly, although Justice Kavanaugh concurs with most of Justice Alito’s dissent.) The law is in place to protect the health of women who seek abortions—that is the state’s interest. If there is an undue burden placed on women in order to accomplish that interest, then those women are the damaged party and entitled to be plaintiffs against the state. But there are no such women. Nor were there, I might add, in Texas.

This is a third-party complaint—from abortion providers, whose interest is in avoiding regulation on them that could cost them money or inconvenience.

Justice Gorsuch, in his dissent, points out,

The plaintiffs before us are abortion providers. They do not claim a constitutional right to perform that procedure, and no one on the Court contends they hold such a right. Instead, the abortion providers before us seek only to assert the constitutional rights of an undefined, unnamed, indeed unknown, group of women who they hope will be their patients in the future.

The Court’s granting of standing in these circumstances is extraordinary in its wrongness. Justice Alito, in his dissent, does not mince words about the political reason:

And the idea that a regulated party can invoke the right of a third party for the purpose of attacking legislation enacted to protect the third party is stunning. Given the apparent conflict of interest, that concept would be rejected out of hand in a case not involving abortion.

There are three Louisiana abortion providers in the suit, claiming to be the only providers available, comprising six doctors. And yet, even as the suit was underway before the Court, two additional providers made themselves known—but their existence was ignored in the plurality’s ruling on the case.

The doctors at these clinics were required to get admitting privileges at nearby hospitals. They claimed they made an effort but couldn’t.

Figure 1 from the SCOTUS ruling, page 32.
The numbers in parentheses are the estimation of abortions
done by that abortion doctor annually. 

As Justice Alito points out in his dissent, the plurality depended on the testimony of people who had an interest in not getting privileges:

[T]he factual finding on which the plurality and THE CHIEF JUSTICE rely—that the Louisiana law would drastically reduce access to abortion in the State—depends on the District Court’s finding that the doctors in question exercised “good faith” in their quest for privileges, but that test is woefully deficient….

[I]t primarily rests on the anecdotal testimony of June Medical’s administrator. Neither the plurality nor THE CHIEF JUSTICE explains why it should be accepted….

[T]he doctors had everything to lose and nothing to gain by obtaining privileges….

If these doctors had secured privileges, that would have tended to defeat the lawsuit….

[T]hey had an incentive to do as little as they thought the District Court would demand, not as much as they would if they stood to benefit from success.

I notice in the Texas case as well, the determination wasn’t on whether the law placed an undue burden on women, but on whether it placed a burden on abortion providers, who would then of their own volition stop providing services. The law didn’t shut down the clinics; it required an improved standard, which the providers could choose to meet or not. It they chose not to, then was it incumbent on the state to go out and help recruit providers who would meet the standard? That seems ludicrous. And yet, here we are.

The Whole Woman’s Health case added a burden on states to do some kind of balancing act that was not required in Casey. Justice Alito suggests,

The Court should remand this case for a new trial under the correct legal standards. The District Court should apply Casey’s “substantial obstacle” test, not the Whole Woman’s Health balancing test. And it should require those challenging Act 620 to demonstrate that the doctors who lack admitting privileges attempted to obtain them with the same zeal they would have exhibited if the Act were in effect and they stood to lose by failing in those efforts.

To summarize,

·         The case should never have come forward, because the plaintiffs lack standing.

·         The dependence on the anomalous Whole Women’s Health balancing standard was incorrect, as it overrode the longer-standing Casey test.

·         The case overlooked the benefits of the law for women’s health, a state interest.

·         The case assumed, without question, as fact that the doctors in question could not meet the requirements, and therefore no doctor could be found who could.

There are more. But what fascinated me was Justice Thomas’s dissent, which was very frank:

The plurality and THE CHIEF JUSTICE ultimately cast aside this jurisdictional barrier to conclude that Louisiana’s law is unconstitutional under our precedents. But those decisions created the right to abortion out of whole cloth, without a shred of support from the Constitution’s text. Our abortion precedents are grievously wrong and should be overruled. Because we have neither jurisdiction nor constitutional authority to declare Louisiana’s duly enacted law unconstitutional, I respectfully dissent.

And,

But today’s decision is wrong for a far simpler reason: The Constitution does not constrain the States’ ability to regulate or even prohibit abortion. This Court created the right to abortion based on an amorphous, unwritten right to privacy, which it grounded in the “legal fiction” of substantive due process. As the origins of this jurisprudence readily demonstrate, the putative right to abortion is a creation that should be undone.

He’s not finished. He lays out a pertinent history lesson for us—and for his apparently ignorant colleagues in the plurality:

The Court first conceived a free-floating constitutional right to privacy in Griswold v. Connecticut (1965). In that case, the Court declared unconstitutional a state law prohibiting the use of contraceptives, finding that it violated a married couple’s “right of privacy.” The Court explained that this right could be found in the “penumbras” of five different Amendments to the Constitution—the First, Third, Fourth, Fifth, and Ninth. Rather than explain what free speech or the quartering of troops had to do with contraception, the Court simply declared that these rights had created “zones of privacy” with their “penumbras,” which were “formed by emanations from those guarantees that help give them life and substance.” This reasoning is as mystifying as it is baseless….

Just eight years later, the Court utilized its newfound power in Roe v. Wade (1973). There, the Court struck down a Texas law restricting abortion as a violation of a woman’s constitutional “right of privacy,” which it grounded in the “concept of personal liberty” purportedly protected by the Due Process Clause of the Fourteenth Amendment. The Court began its legal analysis by openly acknowledging that the Constitution’s text does not “mention any right of privacy.” The Court nevertheless concluded that it need not bother with our founding document’s text, because the Court’s prior decisions—chief among them Griswold—had already divined such a right from constitutional penumbras. Without any legal explanation, the Court simply concluded that this unwritten right to privacy was “broad enough to encompass a woman’s [abortion] decision.”…

In 1868, when the Fourteenth Amendment was ratified, a majority of the States and numerous Territories had laws on the books that limited (and in many cases nearly prohibited) abortion. It would no doubt shock the public at that time to learn that one of the new constitutional Amendments contained hidden within the interstices of its text a right to abortion. The fact that it took this Court over a century to find that right all but proves that it was more than hidden—it simply was not (and is not) there.

You go, Justice Thomas!

Justice Clarence Thomas
image: J. Scott Applewhite/AP Photo, found here

In the Texas platform this year, our district is proposing a plank to simply outlaw abortion, in one single bill. No skirting around limits that, on their face, concede the “right” to murder some innocent life under some circumstances. We’ll see how that goes at the convention. But it’s time to stop compromising with evil and boldly go where we should have gone all along.

I’ve already written too much. But I want to add with this opening statement from Justice Gorsuch’s dissent:

The judicial power is constrained by an array of rules. Rules about the deference due the legislative process, the standing of the parties before us, the use of facial challenges to invalidate democratically enacted statutes, and the award of prospective relief. Still more rules seek to ensure that any legal tests judges may devise are capable of neutral and principled administration. Individually, these rules may seem prosaic. But, collectively, they help keep us in our constitutionally assigned lane, sure that we are in the business of saying what the law is, not what we wish it to be.

Today’s decision doesn’t just overlook one of these rules. It overlooks one after another. And it does so in a case touching on one of the most controversial topics in contemporary politics and law, exactly the context where this Court should be leaning most heavily on the rules of the judicial process. In truth, Roe v. Wade (1973), is not even at issue here. The real question we face concerns our willingness to follow the traditional constraints of the judicial process when a case touching on abortion enters the courtroom.

The Choice Is between Freedom and Coercion

There are some things we think are self-evident, such as that we our endowed by our creator with certain inalienable rights, such as life, liberty, and the pursuit of happiness (which includes owning property).

But a whole lot of what was obvious, or self-evident, up until recently may not be so obvious today.

Here at the Spherical Model, we make the assumption that the good things we’re going for are freedom, prosperity, and civilization—rather than the alternatives of tyranny, poverty, and savagery. The choice seems obvious.

And yet there are many people who literally do not value freedom. It may be that they’ve had it redefined out of existence, like so many other truths. But I thought we might do a bit of awareness raising on freedom today.

Here’s how I define terms, using my 1980 Webster’s Dictionary combined with my words: 

Freedom: absence of hindrance, restraint, confinement, repression. In the political sense, it is ownership of one’s own life and the production of wealth and property that results from one’s use of life and effort. A government should protect the freedoms of life, liberty, and property; it does not grant these things, but protects them from infringement. A government that takes life, liberty, or property unjustly—when the person has not unlawfully infringed on those rights of another person—that is a tyrannical government, which is the opposite of freedom.

Political freedom means living in a society in which our God-given rights are protected rather than infringed. These would include freedoms of belief and expression, such as freedom of religion and freedom of the press, as well as freedoms of property and security, such as freedom from illegal searches and seizures and the right to bear arms.

Liberty: synonym of freedom. It is ownership of one’s own life, to pursue as one chooses, and to enjoy the fruits of one’s efforts. No person or government or other entity owns a person or controls how the person pursues happiness.

And yet, in today’s world, we have a rising generation that favors a change from our system of freedom to a tyranny they might call socialism, without knowing what that means either.

There’s another term that is useful here: Agency. Sometimes we combine it with the word free, as in free agency. You’ve probably encountered it when sports professionals leave a team and become free agents, open to a contract with another team. That might be the limit of how you've used it. But it implies the ability to choose. So you can see that agency is related to liberty.

There are various words we use as opposites to the ability to choose: coercion, oppression, tyranny.

When you look at a political ideology, you can simplify the search for the good and true by looking at its closeness to freedom, liberty, ability to choose—or by how dangerously close it is to coercion, oppression, tyranny.

·         Do you get to believe what you choose to believe?

·         Do you get to choose your profession and way of life?

·         Do you get to speak your opinions freely?

·         Do you get to associate with people you choose to associate with?

·         Do you get to enjoy the fruits of your own labors?

It wouldn’t be very convincing to offer you a truthful opposite, such as: “Wouldn’t you rather believe what we the powerful tell you to believe?” Or “Wouldn’t it be better for you if we the powerful decided what work you were allowed to do and for what pay?” Or “Wouldn’t it be better if you were allowed to speak only the words we the powerful told you to?” Or, “Wouldn’t it be better for all of us if you gave us all your earnings and we the powerful dole them out to those we favor?”

No, it has to be done more subtly than that:

·       Let’s stop others from believing things that we believe are just wrong—shut down churches, political groups, nonprofits, businesses, schools, or any individual or organization that does or says things we don’t like.

·       Let’s stop others from making a living in ways we don’t like—like using fossil fuels, or maybe just because the business owners believe things we don’t like.

·       Let’s cancel or coerce others to make them stop hurting us by saying things we don't believe—because their words are violence.

·       Let’s take the money from the rich and give it to the poor, like us, who are more deserving.

You get the idea. To someone with some enlightenment, the “progressive” or “woke” or “socially just” way is pretty dark. It takes away individual choice. It oppresses individuals. It rules over people tyrannically. If that’s OK with you as long as they’re on your side, not only is that evil of you, but it’s also just a matter of time until the powers-that-be come after you for some perceived infraction.

It’s a continuation of a very old war—a war that predates earth history. It’s a war between good and evil, between light and dark. I told this story here.   

Let me tell another old story that maybe we can apply. Versions of it show up in fantasy literature all the time. It’s from the Book of Revelation, the last book in the Bible, chapter 13 mostly. But I’ll be retelling it in a slightly more narrative form.

"La Bete de la Mer" tapestry in France, depicting
John the Revelator observing the dragon and the sea beast
image from Wikipedia

There is an evil force, in the form of a dragon, who is a scourge to all the earth. He is an enemy to light, goodness. He doesn’t build; he destroys. Chaos and coercion are his right- and left-hand weapons. He controls two monsters, hideous in form and function, who do his bidding. One monster comes up from the depths of the waters over all the earth. She is filthiness and all the worldly evils, and she rides and controls the powers of rulers and organizations over all the earth. She seduces them with power, and brings them together in secret oaths, so that they simultaneously threaten and support one another in their schemes to amass greater and greater power, buying and selling the souls of men.

The other monster comes up from the earth. Its form appears much less dangerous than the dragon, but it speaks with the tongue of the dragon. It voices the dragon’s words, which are lies. Some call it the false prophet. Another interpretation might be propaganda. It can be found flowing out of ivory and other towers, in and through the airways—redefining in the dragon’s lying lexicon what is “good” and persuading people to worship the dragon, along with his beasts.

The dragon and his forces will eventually lose in their efforts to harm and destroy all the people of the earth. Bur for now the dragon marshals his forces, stirring them up to larger and louder attacks, knowing his time is short.

What does it mean? Revelation, told in a sort of symbolic dream form, can be confusing. But suppose it does say that there will come a time when the organizations of the earth make secret agreements with one another in an effort to amass power? Is that happening? I don’t think it’s a conspiracy theory; it's not theory. You might try checking these out for a sample: here, here, here, here, and here.

And about that propaganda monster—that seems like a good explanation of how:

Rioters tear down statue of
Father Junipero Serra in CA
screenshot from here

·       Religion becomes “bad,” but lasciviousness and licentiousness become “good.”

·       Treating all lives as equally valuable becomes “racist,” but favoring a particular race above all others is “social justice.”

·       An elderly friend who suggests florists who could help service a same-sex “wedding” when her religion prevents her becomes “intolerant,” but taking away that woman’s business and savings for so doing is done in the name of “tolerance.”

·       Speaking reasoned opinions with data to back them up becomes “hate speech,” but shouting down a speaker for even holding different opinions is supporting “free speech.”

·       Honoring a free nation and its flag is “hateful,” but disrespecting the flag and tearing down monuments is understandable, considering the circumstances.

You get the idea. Look at the news. Almost every story will provide an example.

The lies appeal to a certain uncivilized human characteristic: selfishness. If they’re working on you, or on someone you know, selfishness is an underlying factor, often disguised as “this makes me feel virtuous,” so you won’t look carefully enough to notice the lies.

Whether or not these are the times described in Revelation, the description seems fitting for today. We may not know how each episode will turn out, but we do know how the story ends.

In the meantime, let’s see how much loving truth-telling we can do to rescue those who might want the light of freedom, prosperity, and civilization if only they could see it.

A Time for Truth

Yesterday was Father’s Day. I thought I might approach today’s topic by talking about fathers in the family as an essential ingredient for civilization. That’s true. But the urgent situation doesn’t give us enough time to solve things by means of that necessity only.

So, with that fatherhood idea in the background, this message is for those who already learned enough about living in a civilized world.

Truth is always better.

Jordan Peterson’s Rule for Life #8: Tell the truth, or at least don’t lie.

Also,

Thou shalt not bear false witness against they neighbor.—Exodus 20:16

Some things we’ve known for a very long time, but as humans we keep re-testing. As if, “Maybe it’s different now, for me, in my circumstances.”

Hint: It’s not different. You don’t make things better—in the long run—by lying.

So when some new power monger comes at you with a threat of ruining your life if you don’t bow and speak untruths that they dictate to you, would your life be better off if you lie?

Back in the day, Shadrach, Meshach, and Abednego were told to lie by kneeling to display their worship of the king as their deity. They didn’t. Their honor was at stake. Their standing with the God they worshipped was at stake.

August Landmesser, the man who didn't salute Hitler
image from here

Bowing down has meaning. Often religious meaning. Certainly it is submissive. By doing it you grant power to the entity to whom you are bowing down. If you’re doing that while it is a lie, you are granting power to an entity you do not wish to serve.

Sometimes it’s another gesture, maybe a salute, or taking a disrespectful knee when the national anthem is playing.

What am I referring to? A power-mongering movement disguised as a gesture of goodwill.

Black lives do matter—as well as all other human lives. God is no respecter of persons. God-given rights are granted to all humans. In our country, founded on the idea that all of us are created equal—rather than granting certain classes or individuals special rights before the law, as has been common historically—that should be obvious to us.

But suddenly it’s uncomfortable to say so. More than that, it’s dangerous to say so. People have lost their livelihoods for holding such a belief.

Something is very wrong.

It’s bigger than this issue, but this is one that illustrates our dire straits. Here’s what it is. While black lives matter, Black Lives Matter is a coercive force intent on taking down our civilization and replacing it with a tyrannical racist regime. And they’re working to force you to submit to them.

Bad guys have a pattern that includes depending on people of goodwill to act as expected—to humbly do what it takes to get along, to be sympathetic, to examine themselves and recognize their own imperfections. To say, “excuse me,” even when the other person bumped into them; to assume maybe they were in the way. People of goodwill are expected to be apologetic for the sake of civility.

With the bad guys, your very act of saying, “Maybe you’re right; I’m certainly not perfect” is used, not to improve the relationship between you and the bad guy, but to give the bad guy ammunition to use against you.

The solution? Tell the absolute truth. At the very least, don’t lie about some pretend sin you’re accused of in the hopes of getting exoneration and moving on. You’re not dealing with civilized people; this isn’t a small thing to be dispensed of with an “excuse me.”

If you have never enslaved anyone, you do not help anyone by apologizing for slavery to someone who has never been enslaved. If you’ve been falsely accused, expect to be convicted of the crime once you confess to it. Don’t give a false confession.

If you’ve treated people of all races equally, not only before the law, but as a natural part of your community of friends, acquaintances, and coworkers, then do not say, “Please forgive me for my inherent racism.” Why are you speaking that lie? Your words and life have already revealed your heart. If that isn’t enough, then you’re dealing with something completely outside of civilization.

The bad guys are not looking for ways toward peace; they are looking for ways toward power.

And right now Black Lives Matter is an entity seeking and gaining power—not for the sake of benevolent rule, but for the sake of ruling in violently coercive tyranny.

A few days ago Tucker Carlson discussed this on his show. It was frightening. Polls show this political force actually has higher approval than the president, or the Democrat candidate for president, or really than either party. People have been told by a lying media that approval of Black Lives Matter equals recognizing the struggles of a particular race—and, since you don’t want to appear racist, then of course you must support this movement.

No. Don’t fall for this bait and switch. Having sympathy for a group, instead of individuals, may be unwise in itself, but still it does not require you to give up approval of your nation with its freedoms, prosperity, and civilization. It does not require you to bow down to Marxist thugs whose plan is to dismantle everything you know as civilization and replace it with tyranny—with them in charge—along with the natural results: poverty, and savagery.

That’s the choice you’re making by supporting them. At least have the presence of mind to do it consciously.

Here’s something to think about: blacks do not need you, as a person of a different color, to grant them the right to matter.

There’s a PragerU video out this past week, combining part of a talk by Jordan Peterson on privilege with a 5-minute video by black former cop Brandon Tatum on the wrongness of supporting the idea that you’re required to feel guilty about some invention called “white privilege.”

In Peterson’s part, he says that we have all kinds of privileges, and we shouldn’t apologize for them. Here are his words:

I think the idea of white privilege is absolutely reprehensible. And it’s not because white people aren’t privileged. We have all sorts of privileges. And most people have privileges of all sorts. And you should be grateful for your privileges and work to deserve them, I would say.

But the idea that you can target an ethnic group with a collective crime, regardless of the specific innocence or guilt of the constituent elements of that group—there is absolutely nothing that is more racist than that. It’s absolutely abhorrent.

He talks about the kulaks, farmers in the Soviet Union in the 1920s.

They were the most productive element of the agricultural strata in Russia. And they were virtually all killed and raped and robbed by the collectivists, who insisted that, because they showed signs of wealth, they were criminals and robbers. One of the consequences of the prosecution of the kulaks was the death of 6 million Ukrainians in the famine in the 1930s.

He makes the point, “The idea of collectively held guilt at the level of the individual as a legal or philosophical principle is dangerous.” The 20^th Century has plenty of history to teach us that.

But, as you’ve probably noticed, history is one of the things the thugs are tearing down.

If you’ve paid attention to history, you know that punishing children for the crimes of their fathers was common in the ancient and pagan world; bringing it back is not progress.

Brandon Tatum, in his part, talks directly to those white people who think they’re more sensitive than all. To them he says,

Woke white people, I’d like to ask you a favor: Please stop asking for forgiveness for your white privilege. You’re not fooling anybody. You’re not helping black people, or any other minority. And your public confessions don’t make you look virtuous. They make you look disingenuous, which is a really nice way of saying fake, phony, and fraudulent.

He debunks the white privilege myth. Those things he’s supposed to have suffered? He hasn’t. Not only that, he says,

In many ways, in today’s America, blacks have more privilege than whites. It’s been my experience that whites bend over backwards to give blacks every possible advantage. If two people are equally qualified for a job, the black person will usually get it. Big companies and prestigious universities fall all over one another trying to sign up talented black people. If you deny this, you’re denying reality.

But his main point is that, you people apologizing for your skin color, you’re doing it for self-serving reasons:

To acknowledge your white privilege is supposed to make you feel bad. Only it doesn’t. It makes you feel good, because, by acknowledging your white privilege, you’re declaring yourself to be enlightened. And, as a virtue bonus, it also makes you a better person than those whites who don’t acknowledge their privilege. White privilege, which is supposed to make you feel bad, ends up making you feel good.

Meanwhile, the real damage is to blacks. What makes whites feel good makes blacks angry. More than 50 years after the Civil Rights movement, the message is, “You’re still oppressed.” How can this not create a victim mentality?

He takes on the idea that the type of privilege you get from skin color matters more than plenty of other factors:

screenshot from here

Let’s take this for example. A black lawyer and his wife have a baby. And a meth addict single white woman has a baby. Which kid has privilege? The white one? Because he’s white? Come on, now.

Finally, he tells us what’s really going on:

So let’s be real. White privilege is an attempt by the left to divide Americans by race. It’s all theory, and all nonsense. If you want to fall for it, go ahead. It’s a free country. But don’t try to sell it to me.

I’m an American who deals with my fellow Americans one-on-one. Try it. It works.

screenshot from here

Brandon Tatum feels a lot more a part of my community than a person of my color who is a Marxist America hater. Maybe ideas and behavior matter a whole lot more than melanin content.

Candace Owens has been called a traitor to her “black community” for speaking out against Black Lives Matter, and in favor of personal responsibility. Here’s how she answers:

The criticism that I often get is, “Candace, how can you not support your community?” My answer to that is, How could you think that that represents my community? My community is not a group of men that do drugs. It’s not a group of men who taser police officers. It’s not a group of men who assault police officers, or who don’t want to listen to basic instructions.

My community is the larger American community, the community built on law-abiding citizens, who want to make sure they can raise their children and their families in a country that they recognize. In a country that is not run by radicals. In a country that is free of autonomous cities and states being built of radical individuals and socialists screaming, and demanding justice, and setting fires, and rioting and looting businesses. That is not the America that I recognize. It is not the America that I want to raise my children in. It is not the America that I want to see my family live in. And so I use my voice to speak out against it.

My question is, Why don’t you?

The people trying to sell the “white privilege” idea? They’re the racists. They hate you for your skin color. And they intend to rule over you by force. Do you really think that would be an improvement over our constitutional republic?

My concern is that, while we’re not looking, while too many people are pandering and mollifying and patting themselves on the back for their wokeness, an evil force is gaining power in our country, and that power doesn’t care about laws or elections or civilized expectations.

Don’t give in. Don’t sympathize with their false narrative. Don’t play nice to get along. Don’t kneel and mutter a lie.

Speak up with truth—or at the very least don’t lie.

Ordinary Meaning

Supreme Court building in Washington, DC
I took this photo during our trip there in 2015.

It’s June, the season for Supreme Court rulings, because their annual term ends June 30^th. I’m writing today about the Bostock v. Clayton County case. But this morning another ruling came out—another bad ruling.

We’re supposed to have 5 of the 9 justices who form their opinions based strictly on the law as written, since they were appointed by Republican presidents. Apparently that isn’t so. Which shows why there is danger in allowing the Supreme Court to have so much power.

The Constitution is pretty clear. Article III refers to the Judicial Branch. Section 1 covers judicial service—who can serve, under what conditions. Section 2 covers which types of cases are handled by the federal judiciary. Section 3 describes treason against the United States and how that will be handled.

That covers the entirety of Article III. It doesn’t say that the court gets to determine whether there are hidden meanings, or penumbras of meaning, in the Constitution. It doesn’t say it’s up to the courts to determine when life begins. It doesn’t say it’s up to the courts to change the definition of marriage from what it’s been for several thousand years. It doesn’t say the courts have the right to rewrite a badly written law to make it better, or better able to accomplish a desired outcome.

Surprisingly, it doesn’t even say it is up to the Supreme Court to determine whether a law is constitutional. That didn’t become a thing until Marbury v. Madison, in 1803.

In fact Thomas Jefferson said this:

[T]he opinion which gives to the judges the right to decide what laws are constitutional and what not... would make the judiciary a despotic branch.... [T]he germ of dissolution of our federal government is... the federal Judiciary... working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped.… They are construing our Constitution from a co-ordination of a general and special government to a general and supreme one alone.

In Federalist 78 Alexander Hamilton describes the judicial branch as the weakest of the three branches, because it has "no influence over either the sword or the purse…. It may truly be said to have neither FORCE nor WILL, but merely judgment."

And yet here we are, with these nine unelected persons wearing black robes deciding things that affect our daily lives.

Today’s bad ruling, in short, said that, while there is full agreement that Obama’s executive order concerning DACA (refusing to enforce the law when it comes to a class of individuals the president wanted to favor) was illegal, and there is full agreement that President Trump has the power to rescind that illegal executive order, the Supreme Court is nevertheless ruling that the Trump administration didn’t fully explain their reasoning, or perhaps with the right tone, so the Court is ordering the President to start over and do it the way the Court says—in the meantime letting the illegal executive order stand. Justice Roberts joined the anti-constitutionalists on the Court in that ruling.

Justice Neil Gorsuch wrote the opinion
for Bostock v. Clayton County, GA
image from Wikipedia

The one we’re talking about today, Bostock v. Clayton County, Georgia, concerns the "ordinary meaning" of Title VII, written in 1964, concerning categories of discrimination in employment. The 6-3 Court opinion was written by “textualist” Gorsuch. What a disappointment! 

There are three cases included in the decision, all related to long-time employees being fired for being either homosexual or transgender.

That they were fired at least in part for these reasons is not in dispute. And I am not going to spend much time on the desirability of the outcome of the case; there are multiple states where laws have been written disallowing firing based on these reasons.

The question is, simply, what does Title VII say? As Justice Gorsuch, writing for the majority, says in the opening of his opinion:

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.

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[i].” 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.

We get agreement with that from Justice Kavanaugh, with the additional rationale for this practice:

Judges adhere to ordinary meaning for two main reasons: rule of law and democratic accountability. A society governed by the rule of law must have laws that are known and understandable to the citizenry. And judicial adherence to ordinary meaning facilitates the democratic accountability of America’s elected representatives for the laws they enact. Citizens and legislators must be able to ascertain the law by reading the words of the statute. Both the rule of law and democratic accountability badly suffer when a court adopts a hidden or obscure interpretation of the law, and not its ordinary meaning.

So we think at least all the “conservative” justices understand the process. Did the ordinary public meaning, in 1964, of discrimination because of an individual’s sex mean the same thing as discrimination because of a person’s sexual orientation or sexual identity? Since the answer to that is clearly no, and is still no today, as Gorsuch himself admits, and as is pointed out with masterful clarity in the dissents by Justices Alito, and Kavanaugh’s, you expect certain things.

You expect the Court to say, since the law was not written to include these additional concepts, and since Congress has had ample opportunities to change the law or to show that it was interpreting it differently from the ordinary public meaning when written, it is not in the power of the Court to change the clear meaning, regardless of personally desired outcomes.

Instead, we get a tortured invention of what the text “says.”

Justice Gorsuch says,

By discriminating against homosexuals, the employer intentionally penalizes men for being attracted to men and women for being attracted to women. By discriminating against transgender persons, the employer unavoidably discriminates against persons with one sex identified at birth and another today.

Let’s set aside the transgender portion for a moment. Gorsuch is saying an employer is only against the man’s attraction to men because he is a man, because you’re fine with a woman being attracted to men—so the difference is their sex.

Protesters on this case October 8, 2019
image from Wikipedia

Both Justices Alito (with Justice Thomas joining in his dissent) and Kavanaugh show the short-sightedness of that assumption.

Justice Alito does it graphically, strikethroughs included:

In an effort to prove its point, the Court carefully includes in its example just two employees, a homosexual man and a heterosexual woman, but suppose we add two more individuals, a woman who is attracted to women and a man who is attracted to women. (A large employer will likely have applicants and employees who fall into all four categories, and a small employer can potentially have all four as well.) We now have the four exemplars listed below, with the discharged employees crossed out:

Man attracted to men

Woman attracted to men

Woman attracted to women

Man attracted to women

The discharged employees have one thing in common. It is not biological sex, attraction to men, or attraction to women. It is attraction to members of their own sex—in a word, sexual orientation. And that, we can infer, is the employer’s real motive.

Justice Kavanaugh illustrates with a hypothetical:

Consider the employer who has four employees but must fire two of them for financial reasons. Suppose the four employees are a straight man, a straight woman, a gay man, and a lesbian. The employer with animosity against women (animosity based on sex) will fire the two women. The employer with animosity against gays (animosity based on sexual orientation) will fire the gay man and the lesbian. Those are two distinct harms caused by two distinct biases that have two different outcomes. To treat one as a form of the other—as the majority opinion does—misapprehends common language, human psychology, and real life.

Justice Gorsuch claims that it is impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex, so sexual orientation is contained within the idea of “on the basis of sex.” The dissenting justices quickly and easily point out the fallacy.

Justice Alito writes:

If “sex” in Title VII means biologically male or female, then discrimination because of sex means discrimination because the person in question is biologically male or biologically female, not because that person is sexually attracted to members of the same sex or identifies as a member of a particular gender.

And,

Something that is not sex discrimination cannot be converted into sex discrimination by slapping on that label. So the Court cannot prove its point simply by labeling the employer’s objection as “attract[ion] to men.” Rather, the Court needs to show that its label is the correct one.

Justice Alito calls the Court’s decision arrogant, because it claims that apparently everyone else since 1964 was too stupid to see the “ordinary public meaning” written right there in the law.

Justice Alito attacks the stupidity charge with a verbal eyeroll:

The Court seemingly has the same opinion about our colleagues on the Courts of Appeals, because until 2017, every single Court of Appeals to consider the question interpreted Title VII’s prohibition against sex discrimination to mean discrimination on the basis of biological sex[ii]. And for good measure, the Court’s conclusion that Title VII unambiguously reaches discrimination on the basis of sexual orientation and gender identity necessarily means that the EEOC failed to see the obvious for the first 48 years after Title VII became law[iii]. Day in and day out, the Commission enforced Title VII but did not grasp what discrimination “because of… sex” unambiguously means[iv].

Justice Kavanaugh puts numbers to it:

Because judges interpret the law as written, not as they might wish it were written, the first 10 U. S. Courts of Appeals to consider whether Title VII prohibits sexual orientation discrimination all said no. Some 30 federal judges considered the question. All 30 judges said no, based on the text of the statute. 30 out of 30.

In the face of that kind of clarity, the Court ought to be able to read the law as written and rule as written—and leave any desired changes to the Legislative Branch to accomplish.

One advantage to having the Legislature do their own work is that, theoretically, they have the opportunity to debate, to explore different viewpoints on an issue, and to address possible consequences of any legislation. Justice Alito points out several effects this Court does not address, and offers comments for each. Here is his list:

·         “[B]athrooms, locker rooms, [and other things] of [that] kind.”

·         Women’s sports.

·         Housing.

·         Employment by religious organizations.

·         Healthcare.

·         Freedom of speech.

·         Constitutional claims.

One of my key concerns is religious freedom. Justice Alito says this about the employment by religious organizations question:

This problem is perhaps most acute when it comes to the employment of teachers. A school’s standards for its faculty “communicate a particular way of life to its students,” and a “violation by the faculty of those precepts” may undermine the school’s “moral teaching[v].” Thus, if a religious school teaches that sex outside marriage and sex reassignment procedures are immoral, the message may be lost if the school employs a teacher who is in a same-sex relationship or has undergone or is undergoing sex reassignment. Yet today’s decision may lead to Title VII claims by such teachers and applicants for employment.

I find Justice Gorsuch’s assertion that “An individual’s homosexuality or transgender status is not relevant to employment decisions” offensive. Who are these justices that they get to decide what is or is not relevant to an employer’s decision?

Particularly in a religious school setting the relevance is obvious. But it is also relevant for a religious person who is an employer and may not want a person involved in a particular behavior to represent his business. Suppose such an employer does not employ persons who engage in sex outside of marriage, but today’s Court rules that he must employ such persons if they engage in homosexual sex. Why should the Court have the power to dismiss the relevance of sin to an employer in his hiring practices? At what point do they have the power to decide that honesty is irrelevant, or theft, simply because these are moral considerations?

Consider the transgender case involved in the decision. A family-owned funeral home company fired a biologically male employee who informed them that, after returning from an upcoming vacation time, he would be living and working full-time as a woman. Is that relevant to the employer? To some it might not be, especially if the employee is good at computer coding or at some technical job that doesn’t involve interfacing with the public. But a funeral home is a particular type of business. It deals with people at a sensitive and emotional time. It offers care and comfort. The owner of such a business might sense that forcing discomfort on their clients would go against their purpose and the image they are trying to present. But Justice Gorsuch seems to know, offhand, that the employee’s transgender status is irrelevant to the funeral home’s hiring decisions.

While it may not always be the case, the appearance of many transgender individuals is jarring, confusing, and discomforting. What might bother the business owner is not that a biological male is doing something a biological female could do without a problem, as the Court’s opinion asserts; it is that the biological male will still be a biological male (as sex is defined in the statute) but will be forcing the employer—as well as its sensitive clients—to treat that biological male as the sex that he is not. A biological female dressing as a female is not asking anything discomfiting of either employer or client.

Here we face one of the underlying issues of Title VII in the first place, something libertarians have pointed out all along: A person’s business is their property, and they are entitled to do what they want with that property, including whom they hire and whom they serve. Title VII overrides their natural right.

What if this law had never been enacted? I don’t know. I want to think that we could trust the American people to make choices that would not encourage a business to continue engaging in actual bigoted activities. Society was moving naturally in that direction in most areas, and pressure would have been felt, I think, in those Southern Democrat areas that continued racist practices, for example. Such pressure could have brought about the wanted changes—organically and thoroughly in a way that coercion cannot.

But I could be wrong. I did not live where Jim Crow laws existed. I’ve often been shocked to read of things that were thought normal or acceptable by otherwise decent Americans in those places. Maybe something actually needed to be done by legislation. But the cost of doing it by the coercion of law is something we’re seeing now: no trust that people’s hearts have changed.

Doing the statutory change enacted by the Court in this case is not going to engender better feelings. It is likely to do the opposite—which is what happens any time the government—or any of its branches— steps beyond its proper role.

Look especially to religious freedom. Justice Kennedy tried to say, “That’s not going to happen,” when he ruled as he did in Obergefell. But since that ruling there has been an all-out legal assault on religious people and organizations that don’t fall in line.

Bad Supreme Court rulings have great power to harm Americans. And the remedy would be so simple: justices should read the ordinary meaning of the law.

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[i] I am including the citations as written: §2000e–2(a)(1).

[ii] See Part III–C, infra.

[iii] The EEOC first held that “discrimination against a transgender individual because that person is transgender” violates Title VII in 2012 in Macy v. Holder, 2012 WL 1435995, *11 (Apr. 20, 2012), though it earlier advanced that position in an amicus brief in Federal District Court in 2011, ibid., n. 16. It did not hold that discrimination on the basis of sexual orientation violated Title VII until 2015. See Baldwin v. Foxx, 2015 WL 4397641 (July 15, 2015).

[iv] See Part III–C, infra.

[v] McConnell, Academic Freedom in Religious Colleges and Universities, 53 Law & Contemp. Prob. 303, 322 (1990).