Supreme Court’s Title VII ruling is loss for originalism, separation of powers, diversity

Fairness and equality are two of the principles that Americans value most. Neither is possible without the rule of law, which is protected by the Constitution’s separation of powers to ensure that we have “a government of laws,” as John Adams put it.

Sadly, the Supreme Court has not upheld those principles in its ruling in R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission. As Justice Samuel Alito said in his dissent, “There is only one word for what the Court has done today: legislation.”

In this decision, the court rewrote Title VII such that “sex” now includes sexual orientation and gender identity. Time after time, activists have tried to amend Title VII to add these classes. Yet they have failed to convince Congress to change the law—despite many dozens of attempts—because of the potential harms to women and girls, freedom of speech, and religious liberty.

So activists then turned to the courts to advance their policy preferences. And that’s not how democracy is supposed to work. It cannot be that Title VII meant one thing for over 50 years and now means something completely different. Our laws do not change to coincide with the American Civil Liberties Union’s tweets.

I argued this case before the Supreme Court on behalf of Alliance Defending Freedom and our client, Harris Funeral Homes. Harris is a fifth-generation family business that followed our nation’s employment laws as they have stood for decades. The funeral home has a sex-specific dress code to help the families who walk through their doors focus on the grieving process, rather than on the funeral home and its employees. The funeral home was sued because its owner did not allow a male funeral director to break this dress code by dressing and presenting as a woman when serving the funeral home’s grieving clients.

Activists had not persuaded Congress to amend Title VII to protect gender identity and sexual orientation for many additional reasons, as Justice Samuel Alito’s dissent explains in great detail. Such provisions are routinely weaponized to punish employees like former Atlanta Fire Chief Kelvin Cochran for their beliefs about marriage, to shut down faith-based adoption providers that give our most vulnerable children loving homes, and to prosecute creative professionals like floral artist Barronelle Stutzman, who served a customer and friend for nearly a decade but simply could not make floral art celebrating his same-sex wedding.

But these are not the only problems that rewriting Title VII may cause. Treating sex and gender identity the same opens the door to forcing women and girls to use showers, restrooms, and locker rooms alongside men. It could also allow boys who identify as girls to compete in women’s sports, which would deprive girls of championship titles, as in Connecticut, where two males identifying as females have taken 15 girls’ track-and-field state champions in the last two seasons. Activists have even used this legal theory to try to force a women’s shelter in Alaska to allow a man to sleep alongside vulnerable women, many of whom have been raped, trafficked, or abused.

Biology is not bigotry. While all people are equal, men and women are not the same. Disagreement about what it means to be male and female is not discrimination. Just like disagreement about what marriage means is true diversity—not discrimination.

The Supreme Court offered an olive branch to those who hold diverse views, suggesting that statutes and the Constitution will protect those who hold them. That may turn out to be true. But that does not change the fact that citizens have already lost faith that they can rely on the law as written and understood for more than half a century, or that they can rely on laws being changed only by an act of Congress, signed by the president. And those losses will be enduring.

John Bursch is vice president of appellate advocacy and senior counsel for Alliance Defending Freedom, (@AllianceDefends) and argued Harris Funeral Homes before the U.S. Supreme Court. Bursch served as Michigan’s solicitor general from 2011-2013.