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Opinion | Philosopher kings on the Supreme Court usurp Congress and the people. Again.

Parker Snider

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According to ancient Greek philosopher Plato, it is the great thinkers, or philosophers, who are best suited to govern society. Dubbed “philosopher kings” they use wisdom, Plato says, to determine how society should operate.

Ours is not a country governed by philosopher kings. The Founding Fathers, instead, predicated our government as one of the people. And it is Congress, the gathering of popularly elected representatives, which is given that weighty law-writing authority.

Six justices in Washington seem to have missed that memo.

On Monday, the Supreme Court, through Bostock v. Clayton County, Georgia, decided that the term “sex” in Title VII of the Civil Rights Act of 1964 now includes “sexual orientation” and “gender identity.” Discriminating against potential or current employees on the basis of sexual orientation or transgender status, therefore, is now illegal in all fifty states.

The Court decreed the new definition by a vote of 6-3, with two GOP-appointed judges, including Trump-appointee Neil Gorsuch, joining the liberal wing. Justice Gorsuch, in fact, authored the majority’s opinion.

According to Dr. Russell Moore, a leader in the Southern Baptist Convention, the ruling “will have seismic implications for religious liberty, setting off potentially years of lawsuits and court struggles, about what this means, for example, for religious organizations with religious convictions about the meaning of sex and sexuality.”

The Civil Rights Act of 1964, although it includes provisions against discrimination on the basis of sex, was written to address the racial injustice in voting, employment, and other basic civil rights that black Americans faced on a regular basis.

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It was not written to protect those who identify as transgender or as homosexual.

So how did the Court determine that, after almost sixty years, the hard-earned legislative victory won by black Americans for their freedoms also applied to the LGBT community?

Enter the philosopher kings.

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Through a series of truly innovative and creative arguments, the Court attempts to make the point that discriminating on the basis of homosexual or transgender status is, in fact, discriminating on the basis of sex.

Here is one such argument by Justice Gorsuch:

“Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other is a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.”

And thus, we have discrimination based, at least partially, on sex. And Title VII does not allow such discrimination.

There are multiple problems with the Court’s logic.

First is that the example does not stand up. As Justice Alito mentions in his dissent, the employees are not “materially identical” except for sex. Sexual orientation, it is clear, is the material difference–a material difference that is not mentioned in Title VII. This difference, Alito argues, makes it so that “we cannot infer…that the employer was motivated in part by sex.”

Second is the problem of ordinary public meaning, a historical question that typically governs how the Court rules on issues of language. What did the term “sex” mean in the context of the bill’s writing? Did it include sexual orientation and gender identity? We know, of course, that “sex”, defined by the Oxford Dictionary as “either of the two main categories (male and female) into which humans and most other living things are divided on the basis of their reproductive functions,” did not mean these things.

And it still doesn’t.

The philosopher kings on the bench, however, easily push these concerns aside.

“[L]egislative history has no bearing here,” they say.

As Justice Kavanaugh points out in his dissent, the Court disregards the fact that, since Congress enacted Title VII in 1964,  they have “never treated sexual orientation discrimination the same as, or as a form of, sex discrimination” but as “legally distinct categories of discrimination.”

Disregarded is the reality that the Supreme Court itself, when dealing with applicable cases, has never once in its history suggested that sexual orientation discrimination was a form of sex discrimination. Nineteen justices on the court could have hinted at this. They didn’t.

Disregarded, and this is especially important, is that fact that Congress could act on the issue if and when it wanted to.

Disregarded as well are the consequences of the Court’s actions to cases concerning housing, employment by religious organizations, healthcare, the freedom of speech, and confusion regarding race and age dysphoria.

The philosopher kings will figure that out, too, when they get the chance. Don’t worry.

Regardless, these back-end consequences about religious liberty and American freedom are just part of the problem. Also important is the disregard demonstrated by the Court for the legislative process, for Congress, and for the Constitution that allocates the law-writing authority to elected representatives, not appointed lawyers who want to exercise their mental jiu-jitsu skills.

Even so, the blame is not the Court’s alone. Congress has largely given up its authority to create laws and delegated both to the executive in the form of regulatory power (agencies writing regulations which have the effect of law) and to the courts by not holding the judiciary accountable, up to impeachment, for violating the Constitution.

We, everyday Americans, are not absolved of blame here either.

The truth is that, if Congress was full of representatives who wanted to uphold their duty to the Constitution, they would do just that. So who elects Congress?

Oh right. We do.

So until Americans decide that our representatives need to regain the duties deemed to them by our Founding Fathers through the Constitution, we’ll continue to see law handed down to us by justices, presidents, and bureaucrats. Philosopher kings.

Anyone but the people.


Parker Snider is the Director of Policy Analysis for the Alabama Policy Institute (API).
API is an independent, nonpartisan, nonprofit research and educational organization dedicated to free markets, limited government, and strong families, learn more at alabamapolicy.org.

 

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Opinion | Amendment 4 is an opportunity to clean up the Alabama Constitution

Gerald Johnson and John Cochran

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(STOCK PHOTO)

The 1901 but current Alabama Constitution has been amended about 950 times, making it by far the world’s longest constitution. The amendments have riddled the Constitution with redundancies while maintaining language and provisions — for example, poll taxes — that reflect the racist intent of those who originally wrote it.

A recompilation will bring order to the amendments and remove obsolete language. While much of this language is no longer valid, the language is still in the document and has been noted and used by other states when competing with Alabama for economic growth opportunities.

The need for recompilation and cleaning of Alabama’s Constitution has been long recognized.

In 2019, the Legislature unanimously adopted legislation, Amendment 4, to provide for its recompilation. Amendment 4 on the Nov. 3 general election ballot will allow the non-partisan Legislative Reference Service to draft a recompiled and cleaned version of the Constitution for submission to the Legislature.

While Amendment 4 prohibits any substantive changes in the Constitution, the LRS will remove duplication, delete no longer legal provisions and racist language, thereby making our Constitution far more easily understood by all Alabama citizens.

Upon approval by the Legislature, the recompiled Constitution will be presented to Alabama voters in November 2022 for ratification.

Amendment 4 authorizes a non-partisan, broadly supported, non-controversial recompilation and much-needed, overdue cleaning up of our Constitution.

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On Nov. 3, 2020, vote “Yes” on Amendment 4 so the work can begin.

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Opinion | Auburn Student Center named for Harold Melton, first Auburn SGA president of color

Elizabeth Huntley and James Pratt

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Auburn University's Student Center (VIA AUBURN UNIVERSITY)

The year 1987 was a quiet one for elections across America but not at Auburn. That was the year Harold Melton, a student in international studies and Spanish, launched and won a campaign to become the first African American president of the Auburn Student Government Association, winning with more than 65 percent of the vote.

This was just the first of many important roles Harold Melton would play at Auburn and in an extraordinarily successful legal career in his home state of Georgia, where his colleagues on the Georgia Supreme Court elected him as chief justice.

Last week, the Auburn Board of Trustees unanimously named the Auburn student center for Justice Melton, the first building on campus that honors a person of color. The decision was reached as part of a larger effort to demonstrate Auburn’s commitment to diversity and inclusion.

In June, Auburn named two task forces to study diversity and inclusion issues. We co-chair the task force for the Auburn Board with our work taking place concurrently with that of a campus-based task force organized by President Jay Gogue. Other members of the Board task force are retired Army general Lloyd Austin, bank president Bob Dumas, former principal and educator Sarah B. Newton and Alabama Power executive Quentin P. Riggins.

These groups are embarking on a process that offers all Auburn stakeholders a voice, seeking input from students, faculty, staff, alumni, elected officials and more. It will include a fact-based review of Auburn’s past and present, and we will provide specific recommendations for the future.

We are committed to making real progress based on solid facts. Unlike other universities in the state, Auburn has a presence in all 67 counties through the Alabama Cooperative Extension System. Our review has included not only our campuses in Auburn and Montgomery but all properties across our state. To date, we have found no monuments or statues recognizing the history that has divided our country. We will continue our fact-finding mission with input from the academic and research community.

Our university and leadership are committed to doing the right thing, for the right reasons, at the right time. We believe now is the right time, and we are already seeing results.

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In addition to naming the student center for the Honorable Harold Melton, we have taken steps to highlight the significant role played by Harold Franklin, the student who integrated Auburn. We are working to enhance the historical marker that pays tribute to Mr. Franklin, and we are raising its visibility in campus tours as we pay homage to his contributions as our first African American student. Last month, we awarded Mr. Franklin, now 86 and with a Ph.D., a long-overdue master’s degree for the studies he completed at Auburn so many years ago.

We likewise endorsed a student-led initiative creating the National Pan-Hellenic Council Legacy Plaza, which will recognize the contributions of Black Greek organizations and African American culture on our campus.

In the coming months, Auburn men and women will work together to promote inclusion to further enhance our student experience and build on our strength through diversity. The results of this work will be seen and felt throughout the institution in how we recruit our students, provide scholarships and other financial support and ensure a culture of inclusion in all walks of university life.

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Our goal is to identify and implement substantive steps that will make a real difference at Auburn, impact our communities and stand the test of time.

Naming the student center for Justice Melton is but one example. In response to this decision, he said, “Auburn University has already given me everything I ever could have hoped for in a university and more. This honor is beyond my furthest imagination.”

Our job as leaders at Auburn is more than honoring the Harold Meltons and Harold Franklins who played a significant role in the history of our university. It is also to create an inclusive environment that serves our student body and to establish a lasting legacy where all members of the Auburn Family reach their fullest potential in their careers and in life.

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Opinion | Alabama lags behind the nation in Census participation with deadline nearing

Paul DeMarco

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The United States Census is starting to wind down around the country with a Sept. 30 deadline for the national population to be completed. However, a United States District Court has recently ruled that the date may be extended another 30 days to allow more time for the census to take place.

Regardless of the deadline, Alabama has work to do when it comes to the census.

To date, the national average for participation around the country has been almost 65 percent for the census.

Unfortunately, Alabama residents are providing data to the census at a lower percentage, around some 61 percent of the state population.

There is already concern among state leaders that if that number does not reach above 70 percent, then the state will lose a seat in Congress, a vote in the electoral college and millions of federal dollars that come to the state every year.

The percentage of participation has varied widely around the state, from a high of 76 percent in Shelby County to a low of 36 percent in neighboring Coosa County.

State leaders are making a final push to request Alabama residents fill out the census in the last month before it is closed.

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We will find out later this fall if Alabama passes the national average of participation in the census compared to other states to retain both its future representation and share of federal dollars.

In the meantime, Alabamians need to fill out their census forms.

The state is depending on it.

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Opinion | This Labor Day let’s honor Alabama’s workers

Bren Riley

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In July, the Southwest Alabama Labor Council made the tough decision to cancel what was going to be our 75th annual Labor Day Parade in Mobile in order to ensure the safety of our affiliates, members, and the general public.

Needless to say, I’m crushed. Each year, there’s nothing I look forward to more than gathering with union members far and wide to celebrate Alabama’s union members. After all we have been through in 2020, no one deserves a day of love and celebration more than our workers.

For many of us, Labor Day represents a day off to enjoy our last day of summer. But Labor Labor Day is so much more than just picnics and gearing up to go back to school—it is a day to honor America’s working people. In the face of this unprecedented pandemic, it’s important now more than ever to support Alabama’s workers first.

Unfortunately, Alabama was ranked the worst state in the country to work during the COVID-19 pandemic. When I first read this, I was heartbroken. Then I got angry.

The COVID-19 pandemic has spotlighted challenges that have always faced Alabama’s working people. Inequality. Poor working conditions. No mandated sick or family leave. For decades, Alabama’s labor movement has fought tooth and nail for these sorts of protections, only to be pushed back by members in Congress who want nothing more than to destroy unions at the expense of our working people.

In Steve Flowers’ Sept. 3 column, Flowers points out how different things were in Alabama not too long ago. From 1946-66, “Alabama was the most unionized state in the South by far. In fact, every major employer in the State of Alabama was a union shop.”

Ordinarily, I’d feel crushed reading such a statement. But like my anger mentioned earlier, this time around, I’m determined.

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This Labor Day, we have a chance to build back the power of the labor movement in our state by gearing up for what could be the most important elections in Alabama’s modern history.

At the forefront, we have the opportunity to elect Joe Biden as the President of the United States, thereby ending the most virulently anti-labor administration we have seen in the last century.

And here in Alabama, we all-in for the fight to re-elect Senator Doug Jones. Sen. Jones has been nothing but an ally to our working people, especially in pushing his Senate colleagues to take up HEROES Act — a comprehensive COVID-19 relief bill currently sitting untouched in Mitch McConnell’s lap.

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In total, the Alabama AFL-CIO has endorsed ten candidates running for office in 2020. By electing politicians who will fight for America’s working class and uplift the labor movement, we can keep making real progress in the fight for a fair economy and a just society.

This Labor Day, whether it’s time to head in after a socially-distanced gathering with loved ones or a Zoom call with friends, take the time to reflect on why we get to celebrate this holiday.  Labor unions bring the freedom to balance life and work — the freedom in knowing that one job is enough, that you can be with a sick child or parent without losing your job, that you can report hazards without being fired. This Labor Day, let’s get fired up for a better Alabama.

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