This week, Tennessee’s attorney general, Herbert Slatery, joined the attorney generals in 15 other states in filing an amicus (friend of the court) brief with the U.S. Supreme Court. As I read the brief, I wanted both to cheer and spit nails. I hope these words will serve the salutary purpose of having Attorney General Slatery (“General Slatery”) correct an egregious constitutional error in another matter that will hasten the constitutional showdown needed between the states and the U.S. Supreme Court.
The Sixth Circuit Merges Biological Sex and Gender Identity
The brief submitted by the attorneys general asks the U.S. Supreme Court to hear an appeal from a decision earlier this year by the U.S. Court of Appeals for the 6th Circuit. The appellate court held that the word “sex,” used by Congress in 1964 when it enacted Title VII’s regulations on workplace discrimination, now includes “gender identity” and “transgender” status. To appreciate the egregiousness of this ruling, a little history is in order.
Before 1955, it was uncommon to use the word gender to refer to anything but grammatical categories. But the attorneys general’s brief notes that in 1955, a terminological distinction was for the first time drawn by sexologist John Money between sex as a biological reality and gender as a societal role. Thereafter, the use of the word gender as distinct from sex became increasingly common.
Consequently, I applaud General Slatery for signing a brief that rightly says:
[A]t the time Congress enacted Title VII, “sex,” “gender identity,” and “transgender” had different meanings. Given all of the above, the use of the term “sex” in Title VII cannot be fairly construed to mean or include “gender identity.” The Sixth Circuit erroneously conflated these terms to redefine and broaden Title VII beyond its congressionally intended scope.
The brief goes on to point out how this error by the appellate court undermines two key constitutional principles that the attorneys general rightly seek to protect.
Protecting State Sovereignty
By the following italicized sentences, the attorneys general’s brief stresses the fact that the 6th Circuit, by rewriting the law, essentially took away from the states the power to decide for themselves what laws should govern the definition of gender and transgender and the relationship of those concepts to discrimination in their state’s workplaces:
It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country. Under our federal system, the States possess sovereignty concurrent with that of the Federal Government, subject only to limitations imposed by the Supremacy Clause. States wish to safeguard the separation of powers undergirding our system of government, a system that encourages the States and the federal government to “control each other” through checks and balances. . . . Unless and until Congress affirmatively acts, our Constitution leaves to the States the authority to determine which protections, or not, should flow to individuals based on gender identity. The Sixth Circuit ignored this fact and essentially rewrote federal law, engaging in policy experimentation.
In other words, Congress did not mean to superimpose on the citizens of Tennessee definitions regarding gender and transgender and determine for us their relevance to workplaces in Tennessee, and courts can’t constitutionally impose that legislative policy on us.
Great job, General Slatery, for signing on to this!
Protecting the Legislative Branch’s Powers
In addition to protecting the sovereignty of the states from judicial encroachment, the attorneys general noted that the 6th Circuit had violated the division of powers that is supposed to exist between the legislative and judicial branches. The judicial branch is not to make public policy in its construction of a law.
To respect this constitutionally required separation, courts have long held that they must be very careful when it comes to interpreting words in law. The interpretation cannot effectively create a new policy, thereby usurping the Legislature’s singular power to determine policy. The Legislature or the people can always “fix” the policy in the law through the exercise of their own powers.
The attorneys general’s brief stated very clearly the two main principles of interpretation by which courts avoid violating the Legislature’s power over policy matters (numbers added for convenience):
Two primary canons of statutory and constitutional interpretation include the ordinary-meaning canon and the fixed-meaning canon. (1) The former canon instructs courts to give words their ordinary, everyday meaning, unless the context shows that they are to be used in a technical sense. See, e.g., Martin v. Hunter’s Lessee, 14 U.S. 304, 326 (1816) (“The words [of the Constitution] are to be taken in their natural and obvious sense, and not in a sense unreasonably restricted or enlarged.”). (2) The latter canon directs courts to give words the meaning they had at the time the document was adopted. (emphasis supplied)
By the italicized words below, you’ll see why the attorneys general’s brief said the 6th Circuit’s interpretation of “sex” as used in 1964 was so wrong:
When Congress enacted Title VII, virtually every dictionary definition of “sex” referred to physiological distinctions between females and males, particularly with respect to their reproductive functions. . . . Even today, “sex” continues to refer to biological differences between females and males. See, e.g., Webster’s New World College Dictionary 1331 (5th ed. 2014) (“either of the two divisions, male or female, into which persons, animals, or plants are divided, with reference to their reproductive functions”). . . Clearly, a biologically-grounded meaning of “sex” is what Congress had in mind when it enacted Title VII, and that is what the public at the time undeniably would have understood from its plain language. (emphasis supplied)
Great job! Point them to the dictionary, General Slatery.
Hoisted on the Double Edge of His Own Petard
The strength and correctness of the preceding argument means its opposite would be weak and wrong. But that’s exactly what General Slatery did last December in connection with the U.S. Supreme Court’s interpretation of the U.S. Constitution and marriage in its 2015 decision, Obergefell v. Hodges.
Most regular readers know that I am pursuing two lawsuits in regard to the constitutional limits that must be imposed by the states on the interpretation that should be given to Obergefell relative to state law. The argument is simple: The U.S. Supreme Court may declare a state law unconstitutional, but it cannot order a state official to license what state law has not authorized that official to license and that state law, in fact, forbids that official from licensing.
Such an interpretation of Obergefell constitutes judicial legislation imposing duties on state officials, not a judicial judgment restraining actions by state officials. Judicial legislation must be opposed at every turn, even when it comes from a court that has the word “supreme” in its name. That Court is not supreme over other power in this country, and to treat it as such is an offense to both state and federal constitutions and the people who adopted them.
Destroying Tennessee’s Sovereignty and State Constitution
I don’t have space to detail the arguments made in these two lawsuits. But General Slatery knows that if Obergefell is treated as having no power to order our state officials to do something, even though our state constitution forbids them from doing so, and if our state courts give the words “male and female” and “man and woman” in our marriage licensure laws their real and intended meaning, then those statutes are invalid.
My response: So what, if that’s what a proper construction of the judicial powers given the federal and state courts means under their respective state constitutions!
Let the people of this state understand and then deal, in the manner they think best, with the consequences of the U.S. Supreme Court’s constitutional malfeasance in deciding that the millennial-old definition of marriage now violates the U.S. Constitution; that’s how constitutions of divided powers are supposed to work.
General Slatery, when the U.S. Constitution becomes meaningless as respects the extent of the federal judiciary’s powers, then every other power in the U.S. Constitution and those of the states is, in principle, meaningless.
Please don’t be dissuaded from the conflict over the power the U.S. Supreme Court purported to exercise in Obergefell because the underlying policy issue is controversial. Don’t let our state’s sovereignty under the U.S. Constitution be destroyed.
Insist, too, that our state courts acknowledge the limits of their own power under the state’s constitution. Stop telling them that they are free to interpret “male” to mean “female” and free to substitute into our statutes a relationship defined without regard to the sex of the parties for one the Legislature specifically defined with regard to the sex of the parties. That is not the judiciary’s job to substitute into policy an objectively different kind of relationship for the one that is in the law, and according to quotes in your amicus brief, you know that.
The showdown between the states and the U.S. Supreme Court and between the legislative and judicial branches is long overdue. So, I remind you, sir, as Patrick Henry said on March 23, 1775, to his fellow citizens as battle loomed with a different, though similarly tyrannical, power, “The war is inevitable and let it come! I repeat it, sir, let it come.”
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.
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