In Reign of Terror, I gave examples of executive overreach that both attempted and succeeded in overwhelming the Rule of Law. Whether Franklin Roosevelt claiming he is not “packing” the Supreme Court, he is “helping” the Supreme Court, or current federally announced health and other “emergencies” that amount to national administrative despotism, the imaginative tactics used by those who desire to squeeze the life out of Liberty know no bounds.
One of those tactics is turning Supreme Court rulings into forced ideological conformity – the very definition of tyranny. The Bostock v. Clayton County (2020) Opinion was written by Justice Gorsuch, Justice Roberts concurring.
This case is about the definition of “sex” in a Congressional statute – Title VII of the Civil Rights Act of 1964. Title VII prohibits discrimination in employment based on race, color, religion, national origin, and sex. “Sex” in 1964 means biological sex – male and female. The idea is equal treatment for men and women in employment.
Congress has attempted to amend Title VII to include not only biological sex but sexual orientation and sexual identity in the definition of “sex.” These attempts have failed. The Court decided not to wait for an elected Congress to re-define statutory language and legislated the changes for them.
In altering the authority of the Supremes from saying what the law is rather than what some on the Court think the law ought to be, the Court is engaging in an “updating” of statutes that is the prerogative of Congress. We have the Constitutional doctrine of Separation of Powers and Checks and Balances for this very reason. Each branch is to stay in its lane.
What has happened since this decision? What has happened is a foreseeable transition to the autocratic through Rules of the administrative state.
Bostock was decided in June 2020. On his first day in office as President, in the slew of Executive Orders presented to him, Biden signed one called “Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation” based on the Bostock decision. Presidential Executive Orders apply to federal agencies, among other entities. The Department of Agriculture wasted no time in turning the Bostock Opinion, then the Order, into Rules that have the power of enforceable Law.
The Secretary of Agriculture, Tom Vilsack, explains. “[The]USDA is committed to administering all its programs with equity and fairness, and serving those in need with the highest dignity. A key step in advancing these principles is rooting out discrimination in any form – including discrimination based on sexual orientation and gender identity. At the same time, we must recognize the vulnerability of the LGBTQI+ communities and provide them with an avenue to grieve any discrimination they face. We hope that by standing firm against these inequities we will help bring about much-needed change.”
What does this mean? Are these just general statements of compassion? What does “providing an avenue to grieve” mean? What change is “much-needed”?
The answer of the Secretary of Agriculture is to change every program offered by the Department to conform to the Bostock decision regarding discrimination on account of sex. One of these programs, within the Department’s Food and Nutrition Services division, is the National School Lunch Program, participated in by 100,000 school districts across the country, some non-profit private schools, and some residential child care facilities.