Sen. Hawley Reveals D.C.'s Dirty Little Secret—and the Real Reason SCOTUS 'Super-Legislators' Redefined 'Sex' in Federal Law

(AP Photo/Sait Serkan Gurbuz)

Sen. Josh Hawley (R-Mo.) took to the floor of the Senate on Tuesday to excoriate the Supreme Court’s Bostock decision, which essentially rewrote federal law, usurping the power of Congress, in order to redefine the meaning of “sex” in Title VII of the 1964 Civil Rights Act. Hawley laid the blame squarely at the feed of cowardly lawmakers who prioritize their own political careers above all else.


Hawley called Bostock v. Clayton County a “seismic decision” that changes the scope, meaning, and text of the Civil Rights Act.

In a stunning 6-3 decision this week, the Supreme Court changed the meaning of the word “sex” in the federal law to include not only the traditional biological meaning of the term—male and female—but also sexual orientation and gender identity, something Congress never intended and likely could not even have imagined when they voted for the Civil Rights Act.

Justice Neil Gorsuch, allegedly a textualist and originalist in philosophy, joined the liberal wing of the court and, in fact, authored the majority opinion. Chief Justice John Roberts also joined with liberals on the court. Justice Alito authored a scathing dissent (joined by Justice Thomas), as did Justice Kavanaugh.

The decision “will have effects that range from employment law to sports to churches,” Hawley warned. The Supreme Court “did what this Congress has pointedly declined to do for years now, which is to change the text and the meaning and the application and the scope of a historic piece of legislation.”

The senator declared that the decision represents the end of the conservative legal movement. “After Bostock, that effort as we know it, as it has existed up to now, it’s over,” he lamented.

“If textualism and if originalism give you this decision, if you can invoke textualism and originalism in order to reach a decision, an outcome that fundamentally changes the scope and meaning and application of statutory law, then textualism and originalism and all of those phrases don’t mean much at all,” Hawley said.


“And if those are the things we’ve been fighting for—that’s what I thought we had been fighting for—those of us who call ourselves legal conservatives, if we’ve been fighting for originalism and textualism and this [decision] is the result of that, then I have to say it turns out we haven’t been fighting for very much,” the Missouri senator added. “Or maybe we’ve been fighting for quite a lot, but it’s been the exact opposite of what we’ve been fighting for.” He said this “marks a turning point for every conservative.”

Indeed, the Wall Street Journal editorial board warned last fall that liberal Justice Elena Kagan was trying to “lure” conservative justices Gorsuch and Kavanaugh to accept her redefinition of textualism.

“The larger threat is to the new Court and the use, or misuse, of textualism,” the editors explained. “If the plain binary meaning of ‘sex’ in 1964 as a man or woman can be redefined [by the court] to fit today’s cultural politics, then textualism as a legal doctrine becomes meaningless. Justice Scalia might say it tortures the language more than it can bear. Textualism would become merely one more tool for judges to impose their politics on the law—based on whatever creative uses Justice Kagan can conjure to apply it.”

If we’ve learned anything over the last decade it’s that the left will go to extreme lengths to torture the English language, redefining words, declaring formerly benign words racist dog whistles, and, most dangerously, using the courts to reinterpret the language of decades-old statutes.


“During oral arguments, [Kagan] sought to redefine sex in Title VII to mean more than the binary choice of a man or woman,” said the WSJ editors, adding, “Justice Kagan is a shrewd court politician and her goal in politically significant cases is to attract one of the conservative justices to form a 5-4 liberal majority.”

“Her main target on the Title VII cases is Justice Gorsuch,” they rightly predicted back in November. “And sure enough, in oral arguments, he suggested that he might agree with Justice Kagan’s nouveau interpretation of sex. At one point he said, ‘The textual evidence is really close, really close, and we’re not talking about extra textual stuff.’”

Kagan succeeded in convincing Gorsuch to join the liberal majority in coming up with a novel—and truly Orwellian—definition of the word “sex.”

Hawley said the legal conservative project has always, going back to the 1970s, been dependent on religious conservatives to elect those who would appoint and confirm conservative judges. What they have consistently sought together, he said, “was protection for their right to worship, for their right to freely exercise their faith that the First Amendment guarantees, for the right to gather in their communities, for their right to pursue their way of life that their scriptures variously command, that the Constitution absolutely protects. That’s what they have asked for. That’s what they have sought all these years.”


“But as to those religious conservatives, how do they fare in yesterday’s decision? What will this decision mean, this rewrite of Title VII? What will it mean for churches? What will it mean for religious schools? What will it mean for religious charities?” he asked.

We all know the answer to that. Churches, religious schools and charities, will now face an avalanche of lawsuits—which they’ll most likely lose—demanding they alter their hiring practices, their religious teachings, their locker room policies, and even their core beliefs to satisfy the moral revolutionaries that have taken hold of the culture—and now the Supreme Court.

Hawley scoffed at the court’s nod to religious liberty in a single line of the decision when they said, “How the doctrines protecting religious liberty interact with Title VII are questions for future cases.”

“Oh, no doubt they are,” he said. “Huge questions. And we eagerly await what our super-legislators across the street at the Supreme Court building, there at 1 First Street, how they will legislate on this question. What will become of church hiring liberty? What will become of the policies of religious schools? What will become of the fate of religious charities? Who knows? Who’s to say? They are questions for ‘future cases.'”

“Courts are supposed to leave legislating to legislators,” said Hawley. “That’s why Article III [of the Constitution] does not give the United States Supreme Court or any federal court the power to legislate, but only the judicial power to decide ‘cases and controversies,’ not to decide policies.”


Then Hawley revealed a dirty little secret.

“Every honest person knows that the laws in this country today, they’re made almost entirely by unelected bureaucrats and courts,” he said. “They’re not made by this body. Why not? Because this body doesn’t want to make law, that’s why not. Because in order to make law, you have to take a vote. In order to vote, you have to be on the record, and to be on the record is to be held accountable, and that’s what this body fears above all else.”

Indeed, in the wake of the Supreme Court’s controversial decision on Monday, some Republicans were breathing an audible sigh of relief. Sen. Chuck Grassley, who ran Gorsuch’s confirmation hearing as chairman of the Judiciary Committee, seemed genuinely relieved that the court legislated from the bench, relieving him of the hard work and messy business of codifying LGBT rights into the Civil Rights Act.

“It’s the law of the land. And it probably makes uniform what a lot of states have already done. And probably negates Congress’s necessity for acting,” Grassley said.

He should be ashamed. What’s the point of the Senate if members are now openly admitting they’d rather just let the Supreme Court make law?

“This body is terrified of being held accountable for anything on any subject,” Hawley observed. “So can we be so surprised that where the legislature fears to tread, where the Article I body—this body that is charged by the Constitution with legislating—refuses to do its job, courts rush in and bureaucrats too? Are they accountable to the people? No, not at all! Do we have any recourse? Not really. Now what must we do? Now we must wait to see what the super-legislators will say about our rights in future cases.”


Grassley and any other lawmakers too cowardly to make tough decisions need to go.

Follow me on Twitter @pbolyard.




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