Court gets refresher course in who actually writes laws

It's Congress that writes the laws; the courts only interpret them.

So suggests a brief in a court fight that is quickly heating up over whether a 1960s law, Title VII, protects employees from gender-orientation discrimination.

"Supreme Court Justice Neil Gorsuch explained in his very first Supreme Court opinion, 'If a statute needs repair, there's a constitutionally prescribed way to do it. It's called legislation. To be sure, the demands of bicameralism and presentment are real and the process can be protracted. But the difficulty of making new laws isn't some bug in the constitutional design; it's the point of the design, the better to preserve liberty,'" says a friend-of-the-court brief.

The feds' Equal Employment Opportunity Commission claims Title VII does protect against gender orientation discrimination, but WND reported only days ago that the Department of Justice said otherwise.

A brief filed in the pending case in the 2nd U.S. Circuit Court of Appeals, Zarda v. Altitude Express, by the DOJ essentially called that idea nonsense.

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The issue is huge. Not only do activists for the sexual alternatives fight for their agenda in the federal setting, they use victories there to force states, counties, cities and others to bend to their will.

Now a friend-of-the-court brief has been filed on the issue on behalf of the Conservative Legal Defense and Education Fund, Public Advocate of the United States and United States Justice Foundation.

The brief, by nationally known lawyers William J. Olson and Herbert W. Titus and others, said it was a simple case because "Zarda was fired for his inappropriate behavior, not his sexual orientation."

"The appellant urges this court to assume that the discrimination alleged in this case was about 'sexual orientation.' It was not. Rather, as Zarda's own brief makes clear, the reason he was fired was not for his sexual orientation, but for his overt sexual behavior.

"Zarda made no secret about his sexuality with his boss and coworkers. In fact, for many years prior to Zarda's firing, 'Maynard (knew) plaintiff was gay' and 'never told Zarda to cover his sexuality.'

"It was only when Zarda chose to act in an unprofessional manner and openly discuss his sexuality with customers (rather than his coworkers), that Maynard was forced to take action. In fact … he had a bad habit of unprofessionally sharing details about his sexuality with anyone who would listen (including some customers who did no make objections), and still Maynard did not fire him."

Eventually, a customer did complain, and his boss acted.

On the issue of the law, the amicus brief explains that Congress has, on multiple instances, declined to add sexual orientation to Title VII protections. And it notes Gorsuch's straightforward explanation of how the American system was designed to work.

"Consonant with this separation of powers principle, this court must decline [the] invitation to disregard the original meaning of 'because … of sex,' as it appears in Title VII."

The case started in 2010 when Donald Zarda, who taught skydiving, sued his employer claiming he was fired for his sexual orientation. He claims that violated Title VII.

But the question is whether Congress in the 1960s knew full well that it was advocating for gender orientation rights when it adopted the law.

The U.S. Department of Justice submitted a simple statement: "Title VII does not prohibit discrimination because of sexual orientation."

"The essential element of sex discrimination under Title VII is that employees of one sex must be treated worse that similarly situated employees of the other sex, and sexual orientation discrimination simply does not have that effect.

"Moreover, whatever this court would say about the question were it writing on a blank slate, Congress has made clear through its actions and inactions in this area that Title VII's prohibition of sex discrimination does not encompass sexual orientation discrimination."

"The sole question here is whether, as a matter of law, Title VII reaches sexual orientation discrimination. It does not, as has been settled for decades. Any efforts to amend Title VII's scope should be directed to Congress rather than the courts," according to the DOJ's brief.

It concluded "that Title VII does not prohibit discrimination because of sexual orientation."

"Sexual orientation" cannot be discriminatory because it's "psychological," the newest brief explains. "'Sex' is biological and fixed by nature, 'sexual orientation' is psychological, variable by how a person feels about others, while 'gender' is existential in relation to how a person feels about himself at any moment of time. There are two sexes – male and female. However, there are several 'sexual orientations' – heterosexual, homosexual, bisexual, asexual, and perhaps more. As for 'gender,' the list of types is endless, subject only to human imagination, and for some includes things like 'pedophilia' and 'zoophilia.'"

It's a case that's been monitored closely by officials with the national rights organization, Liberty Counsel.

It explained, "The Equal Employment Opportunity Commission (EEOC), a largely autonomous federal agency that handles civil rights disputes in the workplace, supported Zarda last month in its own court filing. The EEOC has previously argued in federal court that Title VII's ban on sex discrimination also included gender identity – thereby barring discrimination against so-called LGBT employees."

It continued, "The DOJ, which doesn't typically weigh in on private employment lawsuits, argues in the amicus brief that 'the EEOC is not speaking for the United States and its position about the scope of Title VII is entitled to no deference beyond its power to persuade. The theories advanced by the EEOC and the Seventh Circuit lack merit and these theories are inconsistent with Congress's clear ratification of the overwhelming judicial consensus that Title VII does not prohibit sexual orientation discrimination.'"

Mat Staver, chief of Liberty Counsel, added, "Passed in 1965, the Title VII employment provision does not include sexual orientation or gender identity.

"No government entity outside of the legislative process can grant special rights to a subset of the population based on demand or a desire to rewrite the law. Judges are not legislators. Only Congress can amend the federal law, and that diverse body of legislators has rejected several requests to do so. I applaud the DOJ for upholding the rule of law," said Staver.

The government brief also notes pointedly that "every subsequent Congress since 1991 … has declined to enact proposed legislation that would prohibit discrimination in employment based on sexual orientation."