Wednesday, April 5, 2017

There is No Rule of Law

From the Chicago Tribune's Court: Civil Rights Act covers LGBT workplace bias
A federal court in Chicago on Tuesday became the first U.S. appellate court in the nation to rule that LGBT employees are protected from workplace discrimination under the 1964 Civil Rights Act.
A federal court has decided that the 1964 Civil Rights Act, which doesn't give protected status to sexual orientation, does give protected status to sexual orientation. This follows the convention set in 2015 by the US Supreme Court that gay marriage is a fundamental constitutional right, even though straight marriage is not a fundamental constitutional right. They've become something of magicians, except that instead of rabbits they perform tricks with federal laws and they work in reverse. Now you don't see it, now you do!

From USATodays' coverage
Judge Richard Posner, one of eight 7th Circuit judges appointed by Republican presidents, issued a lengthy concurrence. "I don’t see why firing a lesbian because she is in the subset of women who are lesbian should be thought any less a form of sex discrimination than firing a woman because she’s a woman," he said.
Let's explore the three ways that his statement is absurd.
  1. You don't see why? Is that a legal opinion? Is this how judges operate now, based on their own perceptions & feelings versus a sober application of the law? Your job is to look at the law and see if it applies, you raging idiot.
  2. The law doesn't allow employers to discriminate by gender. Firing someone because they're gay doesn't violate the law as long as it applies to both genders. Firing someone because they're conservative (happens all the time) doesn't violate the law as long as it is applied uniformly to both genders. Firing someone because they're terrible at their job doesn't violate the law as long as it is applied uniformly to both genders. Do you see the pattern, judge?
  3. He's managed to take these illogical arguments and twist them into a third mind-numbing absurdity: firing a woman because she is in the subset of women who are [X] is discrimination. What if she was in the subset of women who are felons? What if she is in the subset of women who don't have the proper qualifications? Since everyone is a subset of some gender, we can't fire anyone! This is without a doubt the stupidest thing I've ever heard a judge say, yet USAToday just casually inserted the quote into their article because (a) it didn't strike them as stupid (I wonder why) and (b) most of their brain-dead readers will just nod along while they chug their Starbucks.
Judge Posner wasn't done. 
Judge Richard Posner asked Maley: "Who will be hurt if gays and lesbians have a little more job protection?" When Maley said he couldn't think of anyone who would be harmed, Posner shot back, "So, what's the big deal?" Posner also said it was wrong to say a decades-old statute is "frozen" on the day it passed and that courts can never broaden its scope.
Ah, so the standard is that judges can decree any law into existence they choose just so long as it won't hurt anybody. With the words "hurt" and "anybody" being quite subjective. Perhaps I'll find Mr. Posner's house and moon his wife then appeal my charges for indecent exposure to his own court. After all, no one was hurt, were they? I highly doubt he holds the principle to be universally true, but only applies it here because he wants to change the law. 

It would seem that the employer who wants to get rid of an employee is hurt, in a sense, because they've lost control of their staffing decisions. One might argue that gays themselves are hurt by the decision. Why would an employer risk hiring gays at all if firing them is by principle grounds for a lawsuit? In the case that was before Posner's court, a woman who wasn't promoted decided it was because she's a lesbian. There could be no other reason for her not to be promoted, I'm sure.

He says it's wrong that the courts could never broaden the scope of a "decades-old statute." Says who? Where is the permission of the courts to expand a law if it's old enough? Can they broaden law against murder to outlaw squashing bugs? Can a conservative judge "broaden" the right to bear arms into the right to bear heavy-duty military equipment? This judge has declared that scope creep is the natural right of the judiciary. 

Not to be outdone, the Chief Judge opined on the matter.
"It is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex," Chief Judge Diane Wood wrote for the majority. "It would require considerable calisthenics to remove the 'sex' from 'sexual orientation.'"
It really wouldn't require "considerable calisthenics", Judge. Also "calisthenics" is a poor metaphor for the intended meaning of logical contortions. If you think gender and sexual orientation are equivalent, you really don't possess the common sense to be serving, let alone the mind for understanding legal distinctions. You're engaging in low-brow rationale to justify the thing you want to be true. "The term sexual orientation contains the word sex, so it's the same!" By her logic getting caught having sexual intercourse with the secretary in the boss's office is also protected by the Civil Rights Act, as it would require considerable calisthenics to remove the 'sex' from 'sexual intercourse.'

All humans engage in this type of post hoc rationalization, but judges are paid good money for the sole purpose that they shouldn't do that. If we lift the requirement that judges have to apply objective reasoning first to come to conclusions second, then there is no reason to have specialized judges at all. Literally anyone could do the job. Any one of us could have a preferred outcome and make weak rationalizations to support the decision. It would be the easiest job in the world.

Laws are made in Congress, not the courts. Changes to the laws should be pursued through legislation. If judges are free to create laws where they don't exist, then we really have no rule of law. If judges are free to ignore laws they don't like, then we have no rule of law, and it no longer matters what the laws state. Soviet Russia's constitution bestowed generous rights to the citizenry; more than our own does. But the contents of the law did not matter in the Union of Soviet Socialist Republics, and increasingly they do not matter in the United States of America.

1 comment:

  1. I had a traffic court judge tell me to my face that she was the one that decided what the law was. Of course I learned in that case, never get into a situation where the government is suing you for a benefit when it's the government that decides who wins and loses.