Opinion

Don’t Allow Gay Rights To Enter Through The Back Door

David Benkof Contributor
Font Size:

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.

David Benkof is a columnist for the Daily Caller. Follow him on Twitter (@DavidBenkof) and Muckrack.com/DavidBenkof, or E-mail him at DavidBenkof@gmail.com.

PREMIUM ARTICLE: Subscribe To Keep Reading

Sign up

By subscribing you agree to our Terms of Use

You're signed up!

Sign up

By subscribing you agree to our Terms of Use

You're signed up!
Sign up

By subscribing you agree to our Terms of Use

You're signed up!

Sign up

By subscribing you agree to our Terms of Use

You're signed up!
Sign up

By subscribing you agree to our Terms of Use

You're signed up!

Sign Up

By subscribing you agree to our Terms of Use

You're signed up!
Sign up

By subscribing you agree to our Terms of Use

You're signed up!
Sign up

By subscribing you agree to our Terms of Use

You're signed up!
BENEFITS READERS PASS PATRIOTS FOUNDERS
Daily and Breaking Newsletters
Daily Caller Shows
Ad Free Experience
Exclusive Articles
Custom Newsletters
Editor Daily Rundown
Behind The Scenes Coverage
Award Winning Documentaries
Patriot War Room
Patriot Live Chat
Exclusive Events
Gold Membership Card
Tucker Mug

What does Founders Club include?

Tucker Mug and Membership Card
Founders

Readers,

Instead of sucking up to the political and corporate powers that dominate America, The Daily Caller is fighting for you — our readers. We humbly ask you to consider joining us in this fight.

Now that millions of readers are rejecting the increasingly biased and even corrupt corporate media and joining us daily, there are powerful forces lined up to stop us: the old guard of the news media hopes to marginalize us; the big corporate ad agencies want to deprive us of revenue and put us out of business; senators threaten to have our reporters arrested for asking simple questions; the big tech platforms want to limit our ability to communicate with you; and the political party establishments feel threatened by our independence.

We don't complain -- we can't stand complainers -- but we do call it how we see it. We have a fight on our hands, and it's intense. We need your help to smash through the big tech, big media and big government blockade.

We're the insurgent outsiders for a reason: our deep-dive investigations hold the powerful to account. Our original videos undermine their narratives on a daily basis. Even our insistence on having fun infuriates them -- because we won’t bend the knee to political correctness.

One reason we stand apart is because we are not afraid to say we love America. We love her with every fiber of our being, and we think she's worth saving from today’s craziness.

Help us save her.

A second reason we stand out is the sheer number of honest responsible reporters we have helped train. We have trained so many solid reporters that they now hold prominent positions at publications across the political spectrum. Hear a rare reasonable voice at a place like CNN? There’s a good chance they were trained at Daily Caller. Same goes for the numerous Daily Caller alumni dominating the news coverage at outlets such as Fox News, Newsmax, Daily Wire and many others.

Simply put, America needs solid reporters fighting to tell the truth or we will never have honest elections or a fair system. We are working tirelessly to make that happen and we are making a difference.

Since 2010, The Daily Caller has grown immensely. We're in the halls of Congress. We're in the Oval Office. And we're in up to 20 million homes every single month. That's 20 million Americans like you who are impossible to ignore.

We can overcome the forces lined up against all of us. This is an important mission but we can’t do it unless you — the everyday Americans forgotten by the establishment — have our back.

Please consider becoming a Daily Caller Patriot today, and help us keep doing work that holds politicians, corporations and other leaders accountable. Help us thumb our noses at political correctness. Help us train a new generation of news reporters who will actually tell the truth. And help us remind Americans everywhere that there are millions of us who remain clear-eyed about our country's greatness.

In return for membership, Daily Caller Patriots will be able to read The Daily Caller without any of the ads that we have long used to support our mission. We know the ads drive you crazy. They drive us crazy too. But we need revenue to keep the fight going. If you join us, we will cut out the ads for you and put every Lincoln-headed cent we earn into amplifying our voice, training even more solid reporters, and giving you the ad-free experience and lightning fast website you deserve.

Patriots will also be eligible for Patriots Only content, newsletters, chats and live events with our reporters and editors. It's simple: welcome us into your lives, and we'll welcome you into ours.

We can save America together.

Become a Daily Caller Patriot today.

Signature

Neil Patel