Deuteronomy 1:16 references a sacred command: “And I charged your judges at that time, ‘Hear the disputes between your people and judge fairly, whether the case is between two Israelites or between an Israelite and a foreigner residing among you.’” Sadly, fair and dutiful judgment is something that seems to be far from the minds of modern justices who all too often overstep their authority.
Although Justice Neil Gorsuch described himself during his confirmation hearings as an “originalist” the majority opinion that he wrote in the LGBTQ Title VII case of Bostock v. Clayton County does not reflect those sentiments. Some feel that Gorsuch has failed to “judge fairly” because his ruling centers on an interpretation of Title VII that ignores the meaning it held at the time it was written. [1]
Under Gorsuch’s opinion, Title VII protections have been extended to LBGTQ individuals based on the legal reasoning that “but for” an employee’s biological sex, employers would not discriminate against them based on their relations with members of the same-sex or the employee’s gender presentation. In his decision, Gorsuch openly disregards any concerns that the word “sex” would not have included sexual orientation or transgenderism at the time that the law was written. These definitions, which are referenced in Appendix A of the opinion, come from dictionaries like Webster’s Third New International Dictionary 2081 (1966), which define “sex” as “one of the two divisions of organic esp. [sic] human beings respectively designated male or female.” [2]
Gorsuch’s rejection of this definition flies in the face of his self-proclaimed “originalism” which, definitionally, means “a legal philosophy that the words in documents and especially the U.S. Constitution should be interpreted as they were understood at the time they were written.” [3]
Gorsuch’s hypocritical reasoning is but another instance of Supreme Court justices becoming de facto writers (or re-writers) of laws that would never be passed by an actual legislature. This kind of theory gives them the power to reinterpret laws in a way that is on par with the kind of power that belonged to the kings of old!
As an article by the President of the Family Research Council explained regarding the recent decision, “not a single president questioned [the meaning of Title VII] until Barack Obama, who decided he didn't care about the plain text of the law. Now, six justices have done the dirty work for him, rewriting a law that liberals could never convince Congress -- or the public -- to change.” [4]
Judicial decisions like Bostock corrupt the roles of the legislature and judiciary, twisting them in a way that contradicts the balance of power that was supposed to be established.
In Federalist No. 78, Alexander Hamilton defined the limited role of the judiciary, “The legislature…prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary…can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL [sic], but merely judgment.” Despite his fierce defense, Hamilton still conceded, “there is no liberty, if the power of judging be not separated from the legislative and executive powers.” [5]
Sadly, this worst-case scenario is being realized before our eyes.
This means that now the courts freely legislate, infringing on the God-given liberties of ordinary Americans. The nation is held hostage by justices who stand on a high pedestal, shrouded in black robes.
In Proverbs 31:8 it says “Speak up for those who cannot speak for themselves, for the rights of all who are destitute.” This is precisely what the justices should be doing. Instead of defending the rights of the people they are meant to serve, Supreme Court justices who depart from originalism and venture forth into the realm of judicial activism have introduced a new kind of tyranny.
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[1] Ariane de Vogue, “Why Trump's Supreme Court appointee Neil Gorsuch just protected LGBTQ rights,” CNN (June 15, 2020), https://www.cnn.com/2020/06/15/politics/neil-gorsuch-supreme-court-lgbtq-rights/index.html
[2] “Bostock v. Clayton County, Georgia,” SupremeCourt.gov (June 15, 2020), https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf
[3] “Originalism,” Merriam-Webster (n.d.), https://www.merriam-webster.com/dictionary/originalism
[4] Tony Perkins, “Splinters in the Bench,” FRC Action (June 16, 2020),
[5] “The Federalist Papers: No. 78,” Yale Law School (2008), https://avalon.law.yale.edu/18th_century/fed78.asp
