Dear Judges, Love Nancy

Civics 101 teaches that we have a tri-partite government, one branch being the legislative.  Among the many things that really suck about this arrangement is that there will be people elected to the legislative branch who are very sad because, after all that effort to raise money, kiss babies, pretend to care about their constituents, they have no power to accomplish anything.  These are the people who are in the minority.

What to do when you are impotent?  Former speaker of the House, Nancy Pelosi, has come up with a plan.

San Francisco – House Democratic Leader Nancy Pelosi today released the following statement on a bicameral amicus brief of 105 Members of Congress and 23 Senators in the case of Christiansen v. Omnicom Group urging the U.S. Court of Appeals for the Second Circuit to hold that discrimination based on a person’s sexual orientation or gender identity constitutes sex discrimination in violation of Title VII of the Civil Rights Act:

“Today, more than 100 Members of the House and Senate called on a federal appellate court to recognize that the protections of the Civil Rights Act must include people facing discrimination because of their sexual orientation or gender identity.  Such an approach has been adopted by the expert federal agency, the Equal Employment Opportunity Commission, combatting discrimination in the workplace.

“No person should suffer discrimination because of who they are or who they love.  We must ensure that LGBT people have the full protection of the law in the workplace – and everyplace.  That’s why the Congress must also pass the Equality Act, to finally end discrimination in employment, education, housing, credit, jury service, and public accommodation for LGBT people by asserting the full power of the Civil Rights Act that guards our democracy.

“Shamefully, again and again, Republicans in statehouses and in the Congress have tried to advance an agenda of discrimination with laws that target LGBT Americans and undermine their hard-won rights and protections.  In the Courts and in the Congress, we must make clear that an agenda of hate and discrimination has no place in America – neither in our schools nor communities, neither in our places of business nor places of employment, not anywhere.”

Putting aside the partisan rhetoric, what stands out is that 105 members of the house and 23 senators have signed on to an amicus brief before the Second Circuit. You know what you call 105 representatives and 23 senators? Losers. They don’t have the numbers to pass a bill into law. They are legislatively impotent.

And yet, they want to tell the circuit panel what the law should be. The law they can’t enact.

Amici are 23 United States Senators and 105 members of the United States House of Representatives. All are cosponsors of the Equality Act, which, when enacted, will both clarify and expand current civil rights laws to better protect people of color, women and lesbian, gay, bisexual and transgender (“LGBT”) Americans from discrimination. The Equality Act represents the latest bipartisan legislative effort to update our nation’s laws with respect to LGBT Americans. It uses a “belt-and-suspenders” approach to reflect what the Act’s cosponsors and various federal regulatory and judicial bodies recognize: LGBT Americans are already protected against discrimination on the basis of sexual orientation and gender identity under Title VII of the Civil Rights Act of 1964, because sexual orientation and gender identity are inherently aspects of a person’s “sex”.

What makes this bit of showmanship interesting is that, good theater though it may be, it accomplishes exactly the opposite of its stated intent.  The contention is that a law, enacted in 1964 when sex discrimination reflected a fight for equality between men and women, was “really” intended to include a laundry list of concerns that became fashionable to politicians at some point over the past couple of years.*

In an attempt to cover this obvious gap, the amicus brief tries to call this a “belt and suspenders” approach, as if it was always the law, but just in case someone didn’t “get it,” they now want to make it double-secret certain that it’s the law.  Of course, if this was always the law, there would be no rationale for a “belt and suspenders” effort. The law is the law. There is no such thing as double-law, though it makes for a cute excuse.

But the thrust of Pelosi’s press release is that she wants the Second Circuit to do the job she and her cohorts cannot.  Rewrite the law. Make the law into something it’s not. Take the weight off the minority, those who have failed to gain the support of enough of the electorate to accomplish their vision, and do the job for them.

This is why Amici introduced the Equality Act of 2015 and drafted it both to codify the status of current law and to provide clarity and stability for the American people. The Equality Act expressly adds “sexual orientation” and “gender identity” to Title VII of the Civil Rights Act, S. 1858 § 7, and it also defines “sex” to include “sexual orientation and gender identity”, S. 1858 § 9(2). Amici drafters did this intentionally because we wanted to recognize that, under current law, “sex” already includes and is inseparable from sexual orientation and gender identity.

Nancy Pelosi is old, but not so old as to have been there when the Civil Rights Act of 1964 was enacted. Not only is it beyond your ability to oldsplain the intent of a law passed by others, but trying to pass off your fiction as if being a current legislator entitles you to some extra court cred is disingenuous. Do you think so poorly of the Second Circuit judges as to believe they won’t realize you’re blowing smoke?

But the effort of minority legislators to influence a court to hold that a word in a law enacted long ago means what Humpty Dumpty wants it to mean today, to use whatever juice you possess as an elected legislative official to try to influence another branch of government, isn’t the way to go.

Maybe the law should be changed. Maybe the law should prohibit discrimination as you want it to. But if so, enact a law. That’s what the legislative branch exists to do. That you lack the support to do so suggests that you do not have sufficient public support, but that means you need to sell your beliefs to the voters. And address the myriad problems that arise from the changes you hope to accomplish.

The Second Circuit, however, is not there to do your dirty work. Stick to your chambers and stay out of theirs. It’s your job to legislate. Do your own dirty work.

*Remember that President Obama, when running for his first term, was against gay marriage? Things change, which is fine and how it should be. But that doesn’t mean you get to travel back in time and create a false reality.

13 thoughts on “Dear Judges, Love Nancy

  1. wilbur

    People … People … it’s up to the judges to interpret the law to mean what any rational, thinking person would. Facts are facts. And you don’t get to choose your own facts. We’re not the anti-science party, you know.

    We’ve evolved past the day where we should ever fail to prohibit discrimination of any form. No one should want to live in an America that would ignore its responsibility to right past wrongs.

    Have a nice holiday.

  2. Nick L. EMT-P

    “Do you think so poorly of the Second Circuit judges as to believe they won’t realize you’re blowing smoke?”

    After following Kachalsky v. Cacace and reading the 2nd Circuit’s decision, I think they do a mighty fine job of blowing smoke up their own asses just fine.

    Civics 101 is great but guns are icky.

  3. Ted Folkman

    I don’t see the problem. If their brief is persuasive on the correct construction of the statute, then it’s persuasive, and if it’s not, it’s not. It’s hardly unusual for amici curiae to argue their preferred constructions of statutes in briefs to appellate courts. The brief doesn’t become more or less persuasive because of the legislative efforts to amend the statute, as far as I can see. If the statutory meaning is as clear as you say it is, then the worst the amici can be accused of is wasting their time.

    1. SHG Post author

      If you completely fail to notice that the express purpose of this amici is to use the weight of their official positions to influence the court as to an interpretation that is the subject of a law they’re incapable of enacting and couldn’t possibly have been intended at the time Title VII was passed, squint hard and shout “lalalala,” then you’re absolutely right.

      Lots of people won’t see the problem. Most, however, are not lawyers, except those so belief-bound that they see only what they want to see. Fortunately, I, too, expect the Circuit to find this effort a total waste of time, but not because of the impropriety of legislators trying to influence the court to do what they cannot because they lack sufficient popular support. Their argument is silly nonsense, and the circuit won’t write legislation to achieve what a congressional minority can’t.

      1. SHG Post author

        Well, that was about as crass a way to put it as possible. But Ted does appear to suffer incurable partisan blindness.

        1. Ted Folkman

          This is amusing to me, because it seems to assume, wrongly, that I agree with the substantive view set out in the brief. In fact, I agree with your view of the statute. So I have a different perspective on who, in this discussion, is wearing the partisan blinders–the person whose argument on procedure is lined up with his substantoce views, or the person who makes a procedural argument despite his substantive views.

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