April 6, 2017
Andrew Schlafly, Esquire
Co-Founder, Phyllis Schlafly Eagles
The full U.S. Court of Appeals for the Seventh Circuit issued a devastatingly sweeping decision to rewrite the Civil Rights Act of 1964 for homosexuals on Tuesday in Hively v. Ivy Tech Cmty. Coll. of Ind., No. 15-1720 (7th Cir. Apr. 4, 2017). The Seventh Circuit presides over Indiana, where this case arose, and Illinois and Wisconsin.
This is another case of judicial overreach and tyranny, right on the back of the 2015 Obergefell decision which granted homosexuals the right to “same-sex marriage,” more rightly termed “mirage” because it is a condition that does not really exist. The federal courts have dictated by judicial edict without any checks and balances by the executive or legislative branches of government, or by the People. Until the claim of judicial supremacy by the federal judicial branch is rejected, there will be no limit to the rewriting of laws and of our Constitution by a small group of unelected federal judges.
The false claim of judicial supremacy is the misguided view that unelected judges are supreme over the other two branches of government, legislative and executive, and over the People. Under the claim of judicial supremacy, courts establish the “law of the land,” not Congress. Ever since the activist Warren Court of the 1950s, the federal judiciary has expanded its power without any pushback by Congress or the President.
The Seventh Circuit’s en banc, 8-3 decision pushed judicial supremacy to new heights. These judges, most of whom have held power for decades on the bench, declared, out of thin air, that homosexuals have special civil rights and minority status under federal law due to nothing more than their alleged sexual behavior.
The Seventh Circuit rewrote the 53-year-old federal ban on discrimination against “race, color, religion, sex, or national origin” to also prohibit discrimination based on “sexual orientation,” even though Congress has repeatedly considered and consistently declined to grant a special right to sue for being homosexual. Seventh Circuit Chief Judge Diane Wood wrote for the majority, “It is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex. It would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation.”
No one thinks that Congress ever intended to create special rights for homosexuals in the Civil Rights Act of 1964, which applies nationwide to companies having at least 15 employees. All of the judges on the Seventh Circuit, and virtually every judge elsewhere, recognizes that the original meaning of the Civil Rights Act did not include sexual orientation within its scope.
But judicial supremacy, left unchecked, knows no bounds. Courts simply reinvent the meaning of words, such as “sex”, to include whatever they want at any particular time, and thereby amend statutes in ways that Congress never would.
The Seventh Circuit ruled contrary to nearly every other appellate court that has addressed this same issue. The weight of judicial precedent against it did not deter the Seventh Circuit from making this outlandish decision. It is hard to imagine that the Congress or the President will dare oppose its ruling. The Supreme Court may cave in, as well.
If this decision stands, then a new minority class will have been created based upon a person’s chosen sexually deviant behavior.
This is lunacy. Consider the ramifications. What about men who are “sexually oriented” to having sexual relations with children, known as pedophilia? What about prostitution? What about transgenderism? Will men and boys, as well as sexual perverts, who claim to be women, be allowed to enter women’s and girls’ public and school bathrooms, showers and locker rooms? What about bestiality? What about adulterers and pornographers? Will these people also be included under the term “sexual orientation’ and given minority status, with associated affirmative action programs?
The homosexual political movement will demand that homosexuality and other perverted sexual behaviors be taught as normal and acceptable in the public schools, which is already occurring throughout the country. What about the free speech rights of ministers, individual Christians and others who believe that homosexuality is a sin and speak out against this activity? What about wedding planners, and bakers and the Y.M.C.A.?
The goal of the homosexual movement has been to create moral and sexual anarchy in society and destroy the Biblical teachings which condemn homosexual activity as immoral and a sign of a reprobate mind. (See Romans 1:18-32). The homosexual movement wants to use the power of the courts to force you, churches, businesses, school and civil government to accept, affirm and celebrate the deviant homosexual lifestyle and other sexual perversions. Committing a moral wrong can never be a legitimate basis for creating a new minority class with special privileges.
Courts have recently blocked common-sense travel bans issued by President Trump without any significant pushback on that judicial overreach. The Marxist liberals continue to push for judicial overreach on issues that the vast majority of citizens oppose.
By creating a broad new federal right for “sexual orientation,” the Seventh Circuit opens the floodgates to lawsuits by nearly any fired employee willing to play the “sexual orientation” card. Some federal court will have to decide what activities are included in the term “sexual orientation.”
Unlike race, which cannot be changed to create a legal cause of action, sexual orientation is in the eye of the beholder. Courts have no practical way of proving what someone’s sexual orientation is, and the Seventh Circuit has just created a powerful financial incentive for millions of people to claim a homosexual or other types of sexual orientation in order to benefit from a new special federal right.
What about the rest of us? What about our first amendment free speech and religious liberty rights? It seems obvious that the federal courts will run roughshod over these to advance the homosexual political agenda.
Five of the eight judges who rendered this decision were appointed by Republican presidents, and only three dissented from their breathtakingly liberal ruling. The average age of the dissenters is 76 years old, and their objection was more of a deference to Congress than a criticism of creating new rights for sexual orientation.
The remedy in the Constitution for judicial supremacy is found in the 1800s, when strong presidents did push back against and halt judicial supremacy. When the federal courts overstepped their bounds during the presidency of Andrew Jackson and leading up to the election of Abraham Lincoln, these presidents properly rejected and halted the judicial overreach.
It took the courts a century to recover their credibility before they overreached again. Congress and President Trump should withdraw jurisdiction from the courts and decline to fund and enforce their unconstitutional orders, which are the remedies the Constitution provides to “check and balance” overreach by the federal judiciary.
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