This article first appeared in the Daily Caller.
My business has been a good customer of Best Buy, the giant technology and appliance retailer, for quite a few years. But we will no longer dealing with that company.
Best Buy is one of a consortium of monster corporations urging the Supreme Court to undermine two of America’s most crucial principles: democracy and the rule of law. The 206 corporations are signing a “friend of the court” brief in the case of Bostock v. Clayton County, which would expand the statutory definition of gender to include groups that choose to engage in homosexual and transgender practices.
The brief essentially asks the court to disregard Congress’s intent when it passed an important statute and judicially amend the statute without Congress’s approval. The corporations making this outrageous request include Apple, American Express, AT&T, Domino’s, Lyft, Citi Group, and Wells Fargo.
The corporations’ brief demonstrates alarming ignorance, shocking greed, or both.
Central to the rule of law is that statutes be consistently and fairly applied. That means interpretation must be as uniform as possible.
Our judicial system assures uniformity by applying the intent of the legislature passing the statute. When the words of the statute seem unclear, judges and lawyers recreate the legislature’s understanding by studying the enactment’s language and the circumstances surrounding its adoption.
The influential English scholar Edmund Plowden explained the process this way: “[W]hen you peruse a statute … suppose that the law-maker is present, and that you have asked him the question you want to know … then you must give yourself such an answer as you imagine he would have done, if he had been present.”
Plowden wrote those words in 1574. That demonstrates how long we have followed this important legal principle.
Another important legal principle is that people may associate with and do business with whomever they want. That’s called freedom of association. True, sometimes the legislature finds it necessary to limit freedom of association. Congress created a few narrow exceptions in the 1964 Civil Rights Act. Congress banned discrimination (refusal to do business) on the basis of race, color, religion, and national origin, as well as discrimination “because of sex.”
The purpose of the last three words was to prohibit discrimination against women because they are women — or against men because they are men.
Perhaps the corporations are right to want the statute amended. But instead of asking Congress to change it, they are asking the court to distort its meaning and thereby overrule the democratic process.
We know beyond any doubt that when Congress included the words “because of sex” it did not intend to include homosexual or transgender behavior. While the bill was being debated, there was no suggestion it included such behavior. The text of the statute as enacted discussed only the condition of women relative to men. Dictionaries then in use defined the word “sex” in this context to mean only male and female.
In fact, if the bill had extended to transgender and homosexual practices, it is safe to say it never would have passed. In 1964 both practices were widely considered repugnant, and in many states certain male homosexual acts were criminal offenses.
Nevertheless, the 206 corporations argue that the court should amend the statute because doing so would be “good for business.” Constitutional commentator Ed Whelan has shown this argument makes no logical sense. He contends the corporations are engaged in “virtue signaling.”
That may be true, but there may also be more cynical forces at work: Perhaps the 206 are yielding to political blackmail. Or perhaps they think that because they are big enterprises they can better afford to comply with an expanded law than their smaller competitors can. In other words, expanding the law might bankrupt or hobble their competitors.
Whatever the motivation, the 206 want the court to (1) overturn a rule of statutory interpretation established for centuries, (2) alter a statute without the consent of Congress, and thereby (3) endanger the rule of law and override the democratic process.
Nothing could be further from American constitutional principles. Will their next brief urge the court to dispense with republican government and declare a monarchy?