The Constitution outlines the role of the courts, but for some time they have been operating beyond their proper function. We must change how we see them, understand their appropriate role, and stop allowing the growth of power. Each new interpretation of plain text that widens the judiciary’s authority is a dangerous violation of the separation of powers. If executive overreach concerns you, judicial overreach doubly should.
—Benjamin R. Dierker—
Key point: Liberty and chaos cannot coexist. Therefore, when chaos, or the freedom to do whatever one has an urge to do, is mistaken for liberty, authentic liberty cannot long survive. This is where we are in America today.
Title VII of the Civil Rights Act of 1964 “prohibits employment discrimination based on race, color, religion, sex and national origin.” This does not mean, however, that employers are unable to establish reasonable guidelines for employees while they are on the job.
Small businesses are allowed under the law to differentiate between men and women in their dress codes. Even the EEOC’s compliance manual states that a “dress code may require male employees to wear neckties at all times and female employees to wear skirts or dresses at all times.”
Tom Rost is the owner of R. G. and G. R. Harris Funeral Homes in Michigan. Six years ago, Anthony Stephens, an employee who had been a funeral director at Harris Funeral Homes for six years, decided to identify as a woman. While what he did on his own time was his own business, Stephens insisted on dressing as a woman during work hours, even while “helping” grieving families make arrangements for their deceased loved ones. The implications of honoring Stephens’s demands were weighty, not just for the families the funeral home would serve, but also for its employees. The women, in particular, would be profoundly affected, as a biological male identifying as a woman would be using the women’s restroom.
What would you have done had you been Tom Rost?
Tom considered Stephens’s request from every angle. In the audio clip below (taken from this ADF video), hear ADF attorney John Bursch explain what occurred—then hear Tom and his wife Nancy share how heavily the matter weighed on him.
In the end, Tom felt he had no choice but to terminate Stephens’s employment. The Equal Employment Opportunity Commission, a government agency, sued Tom for violating Title VII of the Civil Rights Act of 1964. At the U.S. District Court level, Judge Sean F. Cox sided with Rost, declaring that the Religious Freedom Restoration Act protected him and his business.1 That was in August of 2016. Unfortunately, a year and a half later, a panel of three judges from the Sixth Circuit Court of Appeals overturned the lower court’s ruling.
While the government under the Trump Administration has reversed its position and now sides with Tom and his business, The American Civil Liberties Union (ACLU) is continuing to pursue Tom and Harris Funeral Homes in court. Alliance Defending Freedom (ADF) is representing Tom and his business in this case, which has now made its way to the Supreme Court. Oral arguments will be heard on Tuesday, October 8. Tom’s case is one of three the Court will consider. All three involve “people who say they were fired because of their sexual orientation or gender identity.”
The Supreme Court will hear oral arguments in Tom Rost’s case on Tuesday, October 8, 2019.
What Is the Meaning of the Term Sex?
At issue is the definition of the word “sex” in Title VII. Does the law prohibiting employment and workplace discrimination based on sex also prohibit employment and workplace discrimination based on gender identity? In other words, does the term “sex” include gender identity? Certainly it didn’t in 1964. If the term sex is reinterpreted by the Supreme Court to include gender identity, the Supreme Court effectively will have rewritten, not merely interpreted, the law. Constitutionally, in the United States, only legislative bodies such as Congress have the authority to write or rewrite laws.
In an op-ed piece in The Detroit News dated April 25 of this year, Tom Rost explained some of the far-reaching implications of the courts’ rewriting the law in this manner. He wrote in part,
“[S]ex” and “gender identity” are not the same thing. Businesses have the right to rely on what the law is at the time that they make business decisions. Employers like me shouldn’t risk incurring punitive damages for following existing laws.
The EEOC [the original entity taking legal action against me] is usurping the role of Congress, hoping to create drastic change through the courts. Amongst other things, those changes would put employers in difficult situations. As my former employee testified, employers would have to treat men who believe themselves to be women as women unless those employees don’t “meet the expectations” of what females “typically” look like.
As ADF has pointed out, “This is an impossible standard that would force employers to engage in the very stereotypes the law is supposed to prohibit.” ADF continues,
Beyond that, changing the meaning of “sex” would greatly impact women and girls. It would allow for women’s scholarships to be given to men who perceive themselves to be women. It would force girls to compete in sports against boys who identify as girls, which denies them a level playing field. And it would force organizations to open women’s shelters, locker rooms, restrooms, and showers to men who perceive themselves to be women.
Liberty Can Exist Only In the Context of Order and a Mutual Recognition of Rights
Make no mistake. All of this is tied inextricably to the successful effort on the part of LGBT activists to redefine marriage in the United States to include same-sex couples. In a Word Foundations post from 2016, I wrote this about laws that would force professionals like bakers and florists to use their creative efforts, against their consciences, to commemorate same-sex “weddings.”
[R]ather than leveling the playing field, laws that force participation in same-sex ceremonies give the proponents of same-sex marriage a legal wedge to coerce those with whom they disagree to celebrate with them. Christian merchants, therefore, can easily be targeted and punished for their beliefs. Whatever happened to the provision that “Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof”?
Significantly, in Tom Rost’s case, we aren’t talking about a newly enacted law, but about one that has been on the books for decades and that has had nothing to do with what we now know as “gender identity.” Moreover, we’re not talking just about special events, but about business interactions and services performed on a regular basis. If LGBT activists succeed in getting the court to redefine the meaning of the word sex in Title VII, they will have succeeded in getting it to do what it absolutely is unauthorized to do under the Constitution. Further, they will have convinced it to hand them a club they can use, not only against Christian employers, but also against employers who don’t claim to be Christians, yet who merely wish to conduct their businesses efficiently, without being burdened with peripheral issues. This isn’t equality. It’s tyranny. Liberty in a nation can exist only in the context of order—mutually agreed upon boundaries that respect the rights of all.
Liberty in a nation can exist only in the context of order—mutually agreed upon boundaries that respect the rights of all.
It Isn’t About Equality
A year and a half ago, I wrote an article about how the “live-and-let-live” myth pushed by homosexual activists led to the recognition of same-sex “marriage” in the United States. The article is part of a series addressing 18 such myths. This particular post highlighted the implications of same-sex marriage for society at large. I wrote,
It is now clear that “marriage equality” has not been the only goal of militant homosexual activists—and probably this has not even been the primary goal. Now that the government recognizes same-sex unions as marriage, activists can use that very fact as a crowbar to pry open a great many other “opportunities,”—legal and otherwise—for themselves and for other LGBT individuals. In other words, as important as marriage is, we are wise to see the Supreme Court’s marriage ruling as about a great deal more than marriage alone. It is about marriage—but it’s also about everything else! If you don’t realize this, you have been hibernating during the last two-and-a-half years as marriage debate has given way to debates over whether biological males can use women’s restrooms and whether children who express discontent with their biological sex should be given puberty-blocking drugs or other hormone therapy.
Now the debate involves whether a funeral home serving grieving families can have reasonable expectations of its employees who work directly with those families—a notion we’ve always taken for granted in this country. As ADF has said, “This should have been an open-and-shut case.”
Please Pray
So, as you can see, a great deal is at stake. Accordingly, ADF attorney John Bursch, and ADF as a legal organization as well, are asking for prayer. Watch Bursch make this request in this video, posted on You Tube on July 18 of this year.
This coming Tuesday, October 8, is a critical day. Will Americans soon say their final farewells to authentic liberty? The answer may depend in part on what happens in oral arguments in just a few days.
Stay tuned, and thank you for bombarding heaven for the sake of true liberty and freedom in America.
Copyright © 2019 by B. Nathaniel Sullivan. All rights reserved.
top image credit: Photo by Rhodi Lopez on Unsplash
Note
1Also go here.
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