Port: Discrimination protections for the LGBTQ community should have been established by lawmakers, not the courts

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A protester holds a sign against same sex marriage in front of the Supreme Court before the court hears arguments about gay marriage in Washington April 28, 2015. REUTERS/Joshua Roberts
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MINOT, N.D. — This week, the U.S. Supreme Court handed down an opinion in Bostock vs. Clayton County , which expanded the protections against discrimination from the 1964 Civil Rights Act to gay and transgender Americans.

Justice Neil Gorsuch, who was appointed by President Donald Trump, wrote the opinion for the 6-3 majority. He has long touted himself as a textualist, an adherent to the judicial philosophy of ruling based on the text of the law regardless of the intent of lawmakers.

The lawmakers who created the 1964 Civil Rights Act were not intending to create protections for homosexual or transgender Americans. According to Gorsuch, that doesn't matter because his interpretation of the text they turned into law concludes that they did anyway.

"In Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin. Today, we must decide whether an employer can fire someone simply for being homosexual or transgender," Gorsuch wrote in the opinion. "The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids."

I'm having a hard time following that logic.


"You're fired because you're a woman," seems, to me, a distinct scenario from "you're fired because of your sexual orientation." Both are disgusting to me, on a personal level, but what's important here is not what you or I might want the law to be but rather what the law is.

Gorsuch and a majority on the Supreme Court are arguing that the 1964 Civil Rights Act covers something it does not. Not just from an originalist perspective -- again, there is no doubt the lawmakers in 1964 were not intending to including the LGBTQ community -- but from a textualist perspective.

The law does not say what Gorsuch says it does.

The courts have legislated, and we should all believe that's wrong, even if the practical policy outcome is one we generally support.

This is the argument U.S. Senator Josh Hawley made in an impassioned speech on the floor of the Senate criticizing the opinion, which he says "represents the end of the conservative legal movement."

Hawley is a socially conservative Republican with presidential aspirations, and his views on homosexuality aren't mine. Still, he makes some sound points that many on the left and right can agree with.

One is the argument I've already made, which is that the courts are legislating and thus exceeding the constitutional boundaries on their authority.


The other is that, in taking it upon themselves to create new law, the not-elected judges are letting actually elected politicians off the hook.

"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," Hawley says in his speech, referring to voting on legislation in Congress. "This body is terrified about being held accountable for anything on any subject."

He's right. You could almost hear Republican lawmakers around the country breathing a sigh of relief when this opinion dropped. In the last half-dozen sessions of the Republican-dominated North Dakota Legislature, some iteration of an anti-discrimination bill for the homosexual community was introduced.

Each time these bills have failed, but not without much-heated debate and intense media coverage.

Now that the courts have done the job legislators in places like North Dakota weren't doing, the pressure to reform is off.

Is that really what we want? Elected officials escaping accountability for how they govern because judges are legislating?

"The country has obviously changed a lot on that issue. I assume he looked at the facts and the law and he came to that conclusion," Sen. John Thune, a Republican from South Dakota, said in response to the majority opinion from Gorsuch . "When we nominated and confirmed him, that's what we wanted him to do."

You get the sense that Thune believes his job is to appoint judges to make tough calls on sticky social issues so that elected leaders don't have to.


The proper venue for those debates is in our legislative bodies, not the courts. But that would mean people in those bodies might be held accountable for their votes. As Hawley notes, that terrifies the politicians.

At this point, some of you may be thinking that the courts had to act because the legislatures, both at the state and federal levels, mostly wouldn't.

I would refute that argument by asking what impetus we voters have given the incumbents to do something different from what they usually do?

After all, we mostly re-elect all of them in one election cycle after another.

Thune is right. American attitudes about homosexuality and transgenderism are shifting. When that happens, you'd expect the shift to show up in our elected leadership as well.

But how can it, if the courts do the legislating?

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Rob Port, founder of, is a Forum Communications commentator. Reach him on Twitter at @robport or via email at .

Related Topics: JOHN THUNE
Opinion by Rob Port
Rob Port is a news reporter, columnist, and podcast host for the Forum News Service. He has an extensive background in investigations and public records. He has covered political events in North Dakota and the upper Midwest for two decades. Reach him at Click here to subscribe to his Plain Talk podcast.
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