It’s the biggest LGBT story you’re not following. It may be the biggest story you’re not following.
Transgender military service and Texas’s bathroom bill are trifles before the Trump Administration’s amicus brief arguing that the 1964 Civil Rights Act does not cover sexual orientation. That’s because the resolution of that dispute (part of a federal lawsuit) could undermine our democracy, particularly given our president’s mixed signals toward our constitutional system.
The 1964 Civil Rights Act bars “race, color, religion, sex, or national origin” discrimination. Sexual orientation wasn’t discussed during the debate, and virtually everyone knows the bill would have failed if it covered gays and lesbians. Since then, Congress expanded the law in 1978 and 1991, but only to cover pregnancy and adjust some of the details of its implementation.
And it’s not like Congress has never considered protecting gays and lesbians. Some version of gay rights has been presented in every session since Reps. Bella Abzug (D-N.Y.) and Ed Koch (D-N.Y.) introduced the first federal gay rights bill in 1974. Twice – in the House in 2007 and in the Senate in 2013 – an Employment Non-Discrimination Act (ENDA) passed one house of Congress.
Given that Congress has been awfully clear, for better or worse, that it rejects gay rights protections, why are we even discussing it? Honestly, much of the credit – or discredit – goes to one person: commissioner Chai Feldblum of the Equal Employment Opportunity Commission (EEOC). A lifelong lesbian activist, she was appointed by president Obama in 2009 and returned for a second term in 2013. Once she joined the EEOC she pioneered the peculiar theory that the word “sex” in the civil rights act also means sexual orientation.
Although she wrote ENDA, and thus knows Congress must pass a law to add a category to the civil rights act, she has performed acrobatic acts of pilpul (Talmudic hairsplitting) that would bring pride (more likely shame) to the generations of esteemed rabbis in her lineage. Here’s a quick summary of each of her three arguments, and if they don’t make sense to you, that’s kind of the point:
Gay men charging discrimination wouldn’t have been treated unfairly if they loved women, so the discrimination is actually sex-based, she says. Further, the courts have disallowed discrimination based on failing to meet gender norms, and gays are the ultimate victims of “sex stereotyping,” which is a kind of sex discrimination. Finally, allowing discrimination against gays punishes them for their associations (a man with another man, for instance), which wouldn’t exist if the association was with a woman. Thus, it’s sex discrimination.
These dubious theories garnered the support of the EEOC, tentative sympathy from the Obama Administration, and approval by a few lower courts. Now that the Trump Justice Department is saying “no way,” gay activists are charging that the president actively supports employment discrimination against gays.
Well, no. The legislative history of gay rights in America is unambiguous: Over and over, Congress could have protected gays and did not. For our democracy to stay a democracy, laws must mean precisely what they say they mean – no more and no less.
I’m not addressing the “living Constitution” theory, though that too is of dubious merit. Broad latitude for the Supreme Court to reinterpret the essence of our founding document is very different from the president’s minions nitpicking the language of laws they don’t like and declaring they mean something different – perhaps even their opposite.
In fact, this kind of legal hanky-panky is much worse than executive orders, which generally cover matters Congress hasn’t addressed. Supporters of gay rights want executive agencies like the EEOC, supported by friendly administrations, to cut-copy-paste the text of our laws as much as they want – so long as no judge stops them.
What flabbergasts me isn’t the chutzpah of extremists like Feldblum – it’s their timing. Have they forgotten who is president? What would happen to all their liberal positions on immigration, health care, criminal justice and, yes, civil rights if the Trump Administration could expand and contract the meaning of legal clauses at will? Cemented by Trump-appointed judges, those de facto amendments might never get restored to what Congress (and by extension the people) originally intended.
Sure, I get it. LGBT people really, really want federal employment protections. However, we don’t adjust our democratic system to achieve today’s goals. We do it to protect generations of Americans from out-of-control leaders.
These days even some conservatives are saying Trump is out of control. Should the president someday fixate on a goal that terrifies liberals, does anyone think he’d forgo any tool with a solid precedent?
How about this: let Republicans in Congress pass a gay civil rights law (with limited but robust religious-liberty provisions) and let Democrats leave our democracy alone.