Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of race, color, religion, sex and national origin. Congress never had “sexual orientation” in mind, and has consistently declined to broaden the ban to include it. Recently, in Bostock v. Clayton County, the Supreme Court declared, by fiat, that the language of Title VII does include it. This on a par with saying that “I have some apples” means “I have some marbles,” or that “Close the door” means “Open it.” It isn’t interpreting the law, but rewriting it.
Imagine what will now happen, say, to an elementary school that declines to employ transvestites, or an organization for the promotion of traditional sexual ethics that wants to employ only persons who accept traditional sexual ethics. We are faced with a second and more radical sexual revolution, this time attacking the very nature of human beings as men and women, undesired by common people but enforced by elites, rigidly suppressing dissenters in the name of toleration.
Just to put some thoughts in order, I had composed the following reflections on the interpretation of law some months ago. I didn’t have the pending decision in mind, and wasn’t even thinking about sexuality. However, I held off posting them, not because I was waiting for Bostock, but because they seemed a little too obvious.
That was a mistake. In times like these, the restatement of the obvious is never superfluous or unnecessary.
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Just how to apportion authority between legislators and judges cannot be worked out just by reasoning from the first principles of natural law; it requires prudent judgment about which constitutional arrangement will work best under one’s circumstances. For example, in ancient Israel, there was no legislature that made law; Torah was the law. What remained was to adjudicate cases. For this reason, the rulers were not called lawmakers, but judges.
Israel was a special case, with divinely revealed ordinances. Most political thinkers, in most times and places, have thought it good to have one body of persons who make the law, and another body of persons who adjudicate cases. This is our own constitutional arrangement.
Just so there will be no misunderstanding, let us assume that we are speaking of just law, not of unjust law, which, as St. Augustine had argued, is not a true law but rather an act of violence. Unjust enactments raise special problems that I will not consider here.
Now it seems nonsensical to say that judges may adjudicate cases without reference to the law; in that case, why have legislators at all? But in order to adjudicate case according to the law, judges must know what the law means. The common sense way to understand what anyone says is to consider what he intended to convey by saying it. That applies equally to legislative enactments. I can see no reason for taking the meaning of a law to be something other than what the lawmakers intended unless the motive is not to discern but to evade what it means. “Theories of interpretation” that do propose such things are not really about interpretation at all. They are incompatible with the rule of law.
Now to understand what someone intended to convey by saying something – whether what your friend intended to convey by saying “Good morning,” or what the lawmaker intended to convey by the law -- one must first consider the words that were used. Are there ever any reasons to go beyond the words?
Yes. First, additional evidence of intention may be necessary if the words of the law are unclear.
Second, one must construe the law with a presumption that the lawmakers intended justice and the common good. The term “justice,” here, must be taken in the traditional sense, as meaning not “what my ideology demands” but “what is due to persons.” So if one of two ways of construing the words of a law would lead to results obviously contrary to justice – for example, if it would result in penalizing the innocent while giving benefits to the guilty – then one must assume that the lawmakers would have intended the second way. Would we follow this procedure if we were interpreting the remarks of an embezzler? Of course not. But a political community is a partnership in a good life, or ought to be.
Third, it might happen that doing exactly what the words of the law direct would lead to a result obviously contrary to justice and the common good in a particular case even though not in general. Thomas Aquinas illustrates this point with a law requiring that the gates of the city be kept closed. Although in general the law promotes the common good, there might be a case in which it doesn’t – for example if the enemy are pursuing the defenders of the city, so that the common good would suffer if they were not let in. The problem here isn’t that what the lawmakers intended was unclear; they intended the gates to be kept closed. But the intention of keeping them closed was for the sake of a still deeper intention, the city’s safety. So if in the emergency one were to ask them, “Do you intend us to do what you said to do?”, they would say “Certainly not!” And if there were no time to consult them, then other officials – and this includes judges – must act on that assumption. When judges do this, it is called “equitable” judgment.
So we have three cases in which judges might have to consider more than the words of the law. But even in these three cases, (1) they should not treat the words of the law as more obscure than they really are, (2) they should not substitute their own judgment of what the common good requires for the judgement of the legislators themselves, and (3) they must not pretend that a given case is one of those in which even the legislators would agree that exactly following the words of the law would undermine the common good when this is actually not the case.
We also have a problem if the law sketches only the broad outlines of what should be done instead of setting it out precisely. Someone has to fill in the blanks, which St. Thomas calls “determination.” The question in such a case is who has the authority to fill in the blanks. In some constitutional systems, filling in the blanks is largely left to judges and executive officials. With standing legislatures, this seems unnecessary. The discretion of judges and executive officials about how to fill in the blanks should be limited and subject to correction from the lawmakers.
The fly in this ointment is that the lawmakers may be perfectly happy for judges and executive officials to exceed their remit, merely because they would rather that someone else takes the heat for controversial decisions. This poisonous motive might even be so strong as to overturn the arrangement that the constitutional framers intended.
In the modern regulatory state, matters are so arranged that the legislature often sketches only the broad outlines of what should be done, then instructs other officials to make the most important decisions. Lawmakers lay out broad goals that are somehow to be accomplished, leaving it to the bureaucracy and the judiciary to decide on the means of accomplishment.
But an authentic law is an ordinance of reason, for the common good, made by competent public authority, and promulgated or made known. I think the way we arrange things in the modern regulatory state violates at least two of these four conditions. Why? Because it leads to such an explosion of regulations and judicial decisions that not even the experts can keep track of all of them or figure out what they mean, and in their hidden complexity they sometimes even require contradictory things. If a body of enactments does command contradictory things, it cannot be considered an ordinance of reason. And if it is too complicated for anyone to understand, it cannot be said to have been made known.
But if the enactment does violate either the first or the fourth condition, then it also violates the second, that law must uphold the common good. So perhaps the only one of the four elements it doesn’t violate is that law must be made by competent public authority. But perhaps an arrangement that cannot lead to consistent, known law should not even be regarded as competent. So perhaps a great many edicts of the modern regulatory state do not satisfy any of the criteria that make edicts truly lawful.
This conclusion would not justify overthrowing the regime. One should not consider extreme measures unless one is under an extreme tyranny, and besides, it is difficult to find a way of overturning a disordered regime that does not itself violate the principles of justice and the common good. But it would certainly justify profound and determined reform.