Justice Neil Gorsuch error and betrayal

Justice Neil Gorsuch, Trump’s first addition to the nation’s highest court, wrote the majority opinion for the ruling, which concluded that “sex discrimination” in Title VII of the 1964 Civil Rights Act should be interpreted to mean sexual orientation and gender identity, in addition to its original biological meaning.

"An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex,” Gorsuch wrote. “Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids."

Trump’s reaction did not discuss any of the details of the ruling and did not address the fact that his own administration weighed in against the position Gorsuch ultimately chose, by filing an amicus brief that argued that Title VII 

“simply does not speak to discrimination because of an individual’s gender identity or a disconnect between an individual’s gender identity and the individual’s sex.”

The majority’s reasoning flies in the face of both the plain statutory meaning of “sex” in 1964 and the clear legislative intent of the lawmakers who drafted and passed the Civil Rights Act, as explained by Alliance Defending Freedom (ADF) senior counsel John Bursch. “There is little dispute that, in 1964, the term ‘sex’ was publicly understood, as it is now, to mean biological sex: male and female,” he wrote. “After all, the term ‘gender identity’ wasn’t even part of the American lexicon at the time. Its first use was at a European medical conference in 1963. And no semblance of it appeared in federal law until 1990.”



But Gorsuch’s opinion panned the notion of authorial intent, a bedrock principle of judicial originalism, by declaring that judges “are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations. In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee.”

Justices Samuel Alito and Clarence Thomas dissented, panning the majority opinion as “legislation” written under the “deceptive” guise of “interpreting a statute,” reminding the majority that the court’s duty “is limited to saying what the law is” rather than adding to it.



Trump’s other Supreme Court appointee, Justice Brett Kavanaugh, wrote his own dissenting opinion, in which he noted that the “responsibility to amend Title VII belongs to Congress and the President in the legislative process, not to this Court.” 

He also wrote, however, that the majority opinion represented an “important victory achieved today by gay and lesbian Americans,” who “advanced powerful policy arguments,” displayed “extraordinary vision, tenacity, and grit,” and “can take pride in today’s result”... “notwithstanding my concern about the Court’s transgression of the Constitution’s separation of powers.”



A few conservative voices raised doubts about the reliability of both Gorsuch and Kavanaugh during their respective confirmation hearings, though their warnings fell largely on deaf ears among conservative pundits and pro-life, pro-family organizations.

Conservatives warn that today’s ruling will not merely protect homosexual or gender-confused Americans from tangible harm. Rather, it will require churches to recognize same-sex “marriages”; force photographers, florists, and bakers to participate in same-sex “weddings”; compel employers to fund drugs and surgeries to help people imitate members of the opposite sex; and make women and girls share sleeping quarters, showers, changing areas, and restrooms with gender-confused males (or men simply claiming a trans status to get close to vulnerable women).




Counselor to the president Kellyanne Conway addressed the ruling a bit more directly on Fox News, praising Alito’s dissenting opinion and declaring that 

“it’s very important though to stick to a statute or a law as it is written when that is before the United States Supreme Court. If people want to change the law, they should go to Congress.”