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Senator Mike Lee Leads Senate GOP Post Bostock

Mike Lee Supreme Court
The Supreme Court’s recent [wrong and completely illogical] decision in Bostock v. Clayton County, Georgia bypassed Congress and found that a key provision of the Civil Rights Act of 1964 known as Title VII that bars job discrimination because of sex, and therefore encompasses bias against LGBT workers – never mind that there’s absolutely nothing in the record that demonstrates, let alone proves, that was the intent of Congress when the legislation was passed.

One of the most pernicious aspects of the ruling was summed-up in a frightening paragraph in the majority opinion, written by Justice Neil Gorsuch.

Justice Gorsuch noted that lawsuits are pending over transgender athletes' participation in school sporting events, and courts also are dealing with cases about sex-segregated bathrooms and locker rooms, a subject that the justices seemed concerned about during arguments in October. Employers who have religious objections to employing LGBT people also might be able to raise those claims in a different case, Gorsuch said.

“But none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today," he wrote.

In other words, Justice Gorsuch was inviting every homosexual and “transgender” individual who is unhappy with their present situation at work or any other of their life’s endeavors to sue, so the courts can offer them “the benefit of adversarial testing” about the meaning of various other laws – especially those granting special status to women in athletics, sex-separate bathrooms and locker rooms and those granting religious organizations the right to employ only practicing members of their faith.

In essence, Justice Gorsuch gave everyone advance notice that the Supreme Court, not Congress or state legislatures, will decide such matters, so the Constitution’s careful allocation of the legislative power to Congress and the states be damned.

Beside Justice Gorsuch’s abrupt deviation from the originalist and textualist judicial philosophy he swore he had during his confirmation hearings, what has been most surprising about Bostock is the almost complete absence of reaction on the part of Capitol Hill’s Republican leadership.

Indeed, they act like they are relieved the Supreme Court absolved them of the responsibility for legislating on another embarrassing social issue that would make their friends at the country club squirm if discussed over cocktails and dinner.

And they’ve even been MIA when Senate Democrats tried to bring up a legislative expansion of Bostock, the so-called “Equality Act,” under unanimous consent and pass it without a roll call vote or hearings.

Fortunately, principled limited government constitutional conservative Senator Mike Lee of Utah stepped forward to object to the unanimous consent agreement, but it was shocking that no one in the Senate’s Republican leadership, not Mitch McConnell, not John Thune, not one committee chairman joined him.

In the end, as is all too often the case, it was left to Mike Lee and a couple of junior conservative members to hold the line against the so-called Equality Act, and Senator Lee’s comments in objecting are worth sharing in their entirety:

There is a single thread that runs through the Supreme Court's decision in the Bostock case earlier this week and all the way through the legislation now under discussion on the Senate floor, and that principle deals with nondiscrimination. It is a principle that, as Americans, we believe that people shouldn't be treated differently on the basis of factors, characteristics, and traits that have nothing to do with their job.

I think most Americans can agree with that, and I think most Americans can agree that an individual shouldn't face such discrimination in the workplace based on his or her sexual orientation.

The important thing that we have to remember is that much of wherethe law is found and much of what we can perceive from a position of justice and equality and fairness relates to where the exceptions are found. I have got two principal concerns with this legislation that are also shared by the Bostock ruling.

The first relates to exceptions related to religious employers. Neither the Bostock decision nor the Equality Act takes the care to ensure that religious employers will be treated fairly under this approach.

We need to be mindful of the need of a religious employer to maintain its doctrine and its teachings, not only in the hiring of its ministers but also in the hiring of other people who worked toward moving forward that religious institution's teachings in the way they live their lives, in their beliefs, and in their willingness to teach those things to others. This legislation doesn't do that. I think any legislation that we move forward on this needs to have it.

Secondly, neither this legislation nor the Bostock decision takes into account some significant distinctions between sexual orientation on the one hand and gender identity on the other.

In the case of gender identity, the law needs to take into account certain questions regarding what impact the law might have on girls and women's restrooms and locker rooms, girls and women's athletics, and single-sex safe places for people who are, for example, the victims of domestic or sexual abuse.

This law, like the Bostock decision, doesn't operate with a lot of precision and sort of takes a meat cleaver to the issue without taking into account exceptions for religious entities and distinctions between sexual orientation and gender identity. On that basis, I have concerns.

Senator Lee’s commonsense concerns should be echoed by every Republican on Capitol Hill and in the states, particularly the Senate leadership. The toll-free Capitol switchboard is (1-866-220-0044). We urge CHQ readers and friends to call Senate Majority Leader Mitch McConnell, Senate Majority Whip John Thune to tell them conservatives oppose the so-called Equality Act and that you expect them, and the Senate Republican Conference to stand united against it. And while you are on the phone, you might call Senator Lee’s office to thank him for stepping into the breach left by the failed leadership of the Senate GOP.

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