Courts often do what they want to do, and then use their legal philosophies as post-hoc justifications.
Be careful that the light shining through isn't a fast-approaching freight train!
I was asked what I thought of the recent Supreme Court decision extending anti-discrimination protection to Gays and Lesbians. It sort of is like if you are playing basketball and the opposing team scores on its own goal. You take the two points, but you aren't proud of it.
I noted before that as a former employer, I was skeptical of extending anti-discrimination laws to more and more groups. One employee of mine, who was conservative, was flabbergasted I felt that way. "Look at it this way," I told him, "If the law protects a person based on sexual orientation, you could sue me and claim that I discriminated against you for being heterosexual!"
Yes, you have to be careful of what you wish for, and people celebrating this "victory" may be shocked to discover that the homophobic born-again employee they fired last month is now suing them for discrimination.
One problem with any sort of law like this is that it provides a cause of action for an employee to sue. And while most (let's hope) of these lawsuits are based on valid concerns, there have been incidents where people have raised false accusations of discrimination, just to extort money from a former employer. Yea, I know, act shocked.
When Mark ran the gourmet food store, employees regularly would raise arguments of discrimination when caught stealing or just being lousy employees. For most, it was an empty threat, but one or two actually hired opportunistic lawyers (yea, I hate those) and sued. Fortunately, Mark had meticulously documented every act of malfeasance over the months, so the suits were quickly dropped. Many others are not, and untold others are settled out of court. It gets expensive and messy, not only because of the lawsuits, but because managers now have to walk on eggs around employees and document every trivial damn thing.
And you end up with ridiculous lawsuits, like the "trans" person who allegedly sued Nike for a million dollars for calling him/her the wrong pronoun. Give me a break!
The freewheeling days of carefree employment are gone - and maybe that is a good thing, no more chasing the secretary around the desk, or promoting employees based on race or whatever. But it also means, the "workplace" has turned into this regimented nightmare that no one in their right mind would want to run. And we wonder why everyone is working part-time at two jobs, or working as a contract employee from home or whatever. When you make employment toxic, you drive it underground, as I noted before.
All that being said, the real issue to me is how this decision came about, and why it was unexpected. You see, there are two philosophies at battle here in our court system. On the Left, is the argument that the Supreme Court should interpret laws in view of the Constitution, and if a law is unclear, or a situation arises that the law did not contemplate, the court should construe the law in view of the intent of the lawmakers. The goal, in most cases, is to save the law, if there is some flaw or defect in it.
Thus, for example, if one part of a law is found unconstitutional (e.g., the mandate for Obamacare) then the rest of the law, if it can stand alone from the unconstitutional part, should be preserved. Or, for example, there is a typographical error in a law (and they are quite long sometimes, going on for volumes) it should be interpreted in view of the intent of the lawmakers. If a law says "saving wives" when it was clearly intended to say "saving lives" the court will not take the ridiculous position of saying the law means only what the words say.
There's the other side of the coin, usually advocated by the Right - that the law says what it says, and should not be interpreted or construed in view of anyone's intent. Words mean what they mean! Of course, what do you mean by "word" anyway? At some point, every sentence you read is interpreted by the reader, and finding meaning is often difficult. You go to a dictionary to find the meaning of a word, and all you get is more words. Words are abstract symbols representing ideas, and often people don't have the same ideas about a word. Interpretation isn't optional, it is how we read, write, and communicate.
Of course, the reason the Right takes this position is Roe v. Wade. Regardless of whether you think an abortion is murder of a 32-cell zygote, or something everyone should have once in their life, just for funsies, the Roe decision, from the point of view of a lawyer - any lawyer, liberal or conservative - is troubling.
The issue before the court was whether laws against abortion were unconstitutional. Indeed, determining constitutionality of laws was the main thing the Supreme Court was charged with, or should I say, charged itself with, in Marbury v. Madison, itself a bit of "interpreting" the intent of lawmakers, in this instance the so-called "founding fathers". This is the conundrum for the "strict interpretation" of the law set. When it comes to laws made by Congress, Congressional intent is thrown out the window. But when it comes to the Constitution, the intent of the founding fathers is always sacrosanct. If you don't understand this, ask your local Federalist Society about it. Odds are, they don't understand it either, but will give you a lot of hand-waving vague answers, like when you ask your Priest what exactly is the Holy Ghost. You don't make yourself popular asking questions like that.
Getting back to Roe, the Court not only found a right in the Constitution to abortion, under the "Penumbra" (which I think is a kind of umbrella) of the fourth or ninth amendment, but also basically spelled out under what circumstances and abortion was permissible. The trimester system was established by Roe, setting forth that you could have an abortion on demand in the first trimester, under special circumstances in the second trimester, and very rarely in the third trimester (I am simplifying things here).
It may be good law, or you may despise it, depending on your views about abortion. Myself, having worked at Planned Parenthood, I feel that the motivation behind Roe has long-ago evaporated. The threat of "back-alley abortions" seems almost laughable today, when more than half of all children are born out of wedlock. You have to understand how society was back then. I had an older friend in the 1960's who got pregnant by a boy in her high school class. Her Dad called her a "slut" and flew her to England, where she had a legal abortion. Back then, having a baby out-of-wedlock was a shameful, shameful thing, and women who did so were marked for life and could not marry a "good" man (which for most women was the best they could hope for in life).
Things were far different back then, and if a young woman did get pregnant out-of-wedlock, well, her life was essentially over. She could become a prostitute, or marry some man who would beat the shit out of her and her "bastard" child. You think I am making this up, it is how it was. Today, the concept of bastardy is unknown, which is a good thing. But even today, among some very conservative people, you read about a high school cheerleader giving birth at the Prom and putting the baby in the trash. It is a story repeated more than once.
But that is the exception to the rule. Out-of-wedlock teenage births are highest among evangelicals these days (e.g., Sarah Palin's family) who apparently have decided to really embrace "right to life" and accept this, rather than shame their children. It sort of does prove abstinence doesn't work, but let's not go there. Getting pregnant is no longer viewed as shameful, but as an event to be celebrated, at least in part.
The point is - and I did have one - there is no longer the compelling need there once was, and arguments about "back-alley abortions" ring hollow in this modern age. Besides, people can drive to Canada in a day.
OK, I digress. The point is, the "interpret the law" side of things decided to make the law in Roe v. Wade in the absence of any will on the part of Congress to do so. And there are many examples of such case law. For example, you may be familiar with Miranda v. Arizona, if you've watched enough cop shows. Your "Miranda Rights" were not passed by Congress, but interpreted by the Supreme Court to exist in the Constitution. And some on the Right think this is wrong.
So how do we get from here to gay rights? Well, that's the weird thing. If you assume the position of a conservative justice, and are going to interpret the law based on the words of the law alone, and not the "intent of Congress" one would think that the result would be that discrimination based on "sex" would be limited to gender (and here we go again about what words mean, because "sex" used to mean "gender" but today is more commonly associated with the sex act - does this law also prohibit me from firing an employee from having sex on the job? Of course not. If so, Bill Clinton would never have been impeached!).
But the Court's argument, as I understand it, is that if you can't discriminate against someone because of their gender, then discriminating based on what gender they marry is illegal as well. The logic goes something like this: If you fire Suzie because she is a woman married to a woman, that is discrimination. Because if Suzie was a man married to a woman, then you wouldn't have fired her. Thus, you are discriminating based on Suzie's gender not that of her spouse.
Make sense? That's OK, I didn't get it either. I mean I get it, I guess, but don't see how this falls under "strict interpretation" of the black letter of the law. It sounds to me like the court created a new right here, but again, like the opposing team scoring on its own goal, we'll take this, I guess. However, such things make me nervous - when something is too much in your favor, what is the catch? And the catch might be push-back from the far-right, which will be motivated even more to vote this fall, based on "social issues" and re-elect our diabetic President.
But where it gets weird to me - and I am by no means a Constitutional scholar - is that if you look at this from the point of view of the Left, the decision should have gone the other way. If we look at the intent of Congress, which the Left says we should do, and the Right says we should not do, then it is clear that Congress didn't encompass "sex" to mean the gender of your spouse. Case closed!
So, what we really learn from all of this is that these high-falutin' legal theories are really a bunch of hogwash and always have been. Courts have always been swayed by public opinion and social values. Roe v. Wade was a product of its time, as was Dred Scott.
Bowers v. Hardwick was a product of one era (not that long ago) and Obergefell v. Hodges yet another. What concerns me is that it seems the Supreme Court is more likely to be a weather vane than ever before. Concepts like Res Judicata and Stare Decisis no longer seem to hold water, and while, for the time being, this is resulting in decisions favorable maybe to "my side" it worries me, as it also means that the Court may revisit other decisions down the road and change its mind, rather quickly. If the Court is following the mood of the nation, we have to hope the mood of the nation doesn't turn dark.
And for those of you who are fans of Roe v. Wade, watch out. Because the "strict interpretationalists" on the bench aren't going to find any wordplay in the law to play with, as Roe was formed from whole cloth, and not based on interpretation of an existing law. It could be a bumpy ride.
Again, I get nervous when things seem to be too easy and I tend not to trust things that seem favorable to me. What's the catch? Because, as I have learned over 60 years, there always is a catch.
