No. 18-107
`444444444444444444444444444444444444444444
`IN THE
`Supreme Court of the United States
`____________________
`R.G. AND G.R. HARRIS FUNERAL HOMES, Petitioner,
`
`v.
`
`EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
`ET AL., Respondents.
`____________________
`On Petition for a Writ of Certiorari
`to the United States Court of Appeals
`for the Sixth Circuit
`____________________
`Brief Amicus Curiae of
`Public Advocate of the United States, I Belong
`Amen Ministries, David Arthur, Conservative
`Legal Defense and Education Fund,
`Restoring Liberty Action Committee, and
`Center for Morality
`in Support of Petitioner
`____________________
`JOSEPH W. MILLER
`HERBERT W. TITUS*
`RESTORING LIBERTY
`WILLIAM J. OLSON
`ACTION COMMITTEE
`JEREMIAH L. MORGAN
`P.O. Box 83440
`ROBERT J. OLSON
`Fairbanks, AK 99708
` WILLIAM J. OLSON, P.C.
` 370 Maple Ave. W., Ste. 4
`Attorney for Amicus Curiae
` RLAC
` Vienna, VA 22180
` (703) 356-5070
` wjo@mindspring.com
`Attorneys for Amici Curiae
`
`
`
`August 23, 2018
`*Counsel of Record
`444444444444444444444444444444444444444444
`
`
`444444444444444444444444444444444444444444
`IN THE
`Supreme Court of the United States
`____________________
`R.G. AND G.R. HARRIS FUNERAL HOMES, Petitioner,
`
`v.
`
`EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
`ET AL., Respondents.
`____________________
`On Petition for a Writ of Certiorari
`to the United States Court of Appeals
`for the Sixth Circuit
`____________________
`Brief Amicus Curiae of
`Public Advocate of the United States, I Belong
`Amen Ministries, David Arthur, Conservative
`Legal Defense and Education Fund,
`Restoring Liberty Action Committee, and
`Center for Morality
`in Support of Petitioner
`____________________
`JOSEPH W. MILLER
`HERBERT W. TITUS*
`RESTORING LIBERTY
`WILLIAM J. OLSON
`ACTION COMMITTEE
`JEREMIAH L. MORGAN
`P.O. Box 83440
`ROBERT J. OLSON
`Fairbanks, AK 99708
` WILLIAM J. OLSON, P.C.
` 370 Maple Ave. W., Ste. 4
`Attorney for Amicus Curiae
` RLAC
` Vienna, VA 22180
` (703) 356-5070
` wjo@mindspring.com
`Attorneys for Amici Curiae
`
`
`
`August 23, 2018
`*Counsel of Record
`444444444444444444444444444444444444444444
`
`
`
`TABLE OF CONTENTS
`
`Page
`
`TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . iii
`
`INTEREST OF THE AMICI CURIAE . . . . . . . . . . . . . . . . 1
`
`SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . 2
`
`ARGUMENT
`
`I. UNDER THE GUISE OF EVOLUTIONARY LAW,
`THE SECOND, SIXTH, AND SEVENTH CIRCUIT
`COURTS HAVE AMENDED TITLE VII’S
`PROTECTION AGAINST SEX DISCRIMINATION TO
`EXTEND TO HOMOSEXUALS AND
`TRANSGENDERS. . . . . . . . . . . . . . . . . . . . . . . . . . 3
`
`II. HAVING FAILED TO EXERCISE THE INDEPENDENT
`JUDGMENT REQUIRED OF AN ARTICLE III COURT,
`THE SIXTH CIRCUIT’S DECISION IS VOID AND
`UNENFORCEABLE . . . . . . . . . . . . . . . . . . . . . . . 11
`
`A. The Court’s Threshold Decision to Use
`Female Pronouns to Refer to Stephens Is
`Prejudicial Error . . . . . . . . . . . . . . . . . . . 12
`
`B. The Court Below Failed to Exercise
`Its Judicial Duty of Independent
`Judgment . . . . . . . . . . . . . . . . . . . . . . . . . 14
`
`III.
`
`COURTS SHOULD NOT ASSUME THE
`POLITICALLY CORRECT, BUT DEMONSTRABLY
`FALSE, NOTION THAT SEXUAL ORIENTATION IS
`AN IMMUTABLE CHARACTERISTIC . . . . . . . . . 16
`
`
`
`ii
`CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
`
`CONCLUSION .............................. 23
`
`ii
`
`
`
`iii
`TABLE OF AUTHORITIES
`
`Page
`
`HOLY BIBLE
`Romans 1:21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
`
`U.S. CONSTITUTION
`Amendment I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
`
`STATUTES
`42 U.S.C. § 2000e-2 . . . . . . . . . . . . . . . . . . . . . . . . . 4
`Civil Rights Act, Title VII . . . . . . . . . . . . . . 2, passim
`
`CASES
`Bostock v. Clayton Cty. Bd. of Comm’rs, 723 Fed.
`Appx. 964 (11th Cir. 2018) . . . . . . . . . . . . . . . . . 9
`Bostock v. Clayton Cty. Bd. of Comm’rs, 894 F.3d
`1335 (11th Cir. 2018) . . . . . . . . . . . . . . . . . . . . . 9
`Evans v. Georgia Regional Hospital, 850 F.3d
`1248 (11th Cir. 2017) . . . . . . . . . . . . . . . . . . . . . 5
`Fagan v. National Cash Register Co., 481 F.2d
`1115 (D.C. Cir. 1973) . . . . . . . . . . . . . . . . . . . . 17
`Hively v. Ivy Tech Community College, 853 F.3d
`339 (7th Cir. 2017) . . . . . . . . . . . . . . . . . 2, 6, 7, 8
`Meritor Savings Bank, FSB v. Vinson, 477 U.S.
`57 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
`Michigan v. EPA, 576 U.S. ___, 135 S.Ct. 2699
`(2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
`Obergefell v. Hodges, 135 S.Ct. 2584 (2015). . . . . 18
`Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) 6
`Vickers v. Fairfield Med. Ctr., 453 F.3d 757
`(6th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
`Zarda v. Altitude Express, 883 F.3d 100 (2nd.
`Cir. 2018) . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 8, 9
`
`
`
`iv
`
`MISCELLANEOUS
`M. Charen, “Is Christine Hallquist’s Primary
`Victory Really ‘Historic’?” National Review
`Online (Aug. 17, 2018). . . . . . . . . . . . . . . . 12, 13
`Nicholas A. Cummings & William T. O’Donohue,
`Eleven Blunders that Cripple Psychotherapy
`in America (Routledge: 2008) . . . . . . . . . . 21, 22
`EEOC, Baldwin v. Foxx, No. 0120133080
`(July 15, 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . 5
`Federalist No. 78, G. Carey & J. McClellan, eds.
`The Federalist (Liberty Found.: 2001) . . . . 2, 11
`P. Hamburger, “Chevron Bias,” 84 GEO. WASH. L.
`REV. 1187 (2016) . . . . . . . . . . . . . . . . . . . . 11, 12
`John F. Harvey, Homosexuality and the
`Catholic Church (Ascension Press: 2007) . . . . 21
`C. Joslin, “Protection for Lesbian, Gay, Bisexual,
`and Transgender Employees under Title VII
`of the 1964 Civil Rights Act,” 31 Human
`Rights 14 (ABA Summer 2004) . . . . . . . . . . . . . 4
`A. Liptak, “An Exit Interview With Richard
`Posner, Judicial Provocateur,” New York
`Times (Sept. 11, 2017) . . . . . . . . . . . . . . . . . . . 10
`Robert G. Marshall, Reclaiming the Republic,
`(TAN Books: Charlotte) (2018) . . . . . . . . . . . . 22
`S. Orwell and I. Angus, eds., The Collected
`Essays, Journalism and Letters of George
`Orwell (NY: Harcourt Brace and World,
`1968). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
`A. Scalia & B. Garner, Reading Law
`(West: 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
`P. Spigg, “Is Homosexuality ‘Immutable?’ Justice
`Kennedy’s Shaky Bridge to Redefining
`Marriage,” Family Research Council
`(Aug. 5, 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . 18
`
`
`
`v
`M. Talbot, “Is Sexuality Immutable?” The New
`Yorker. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
`Webster’s Third New International Dictionary
`(1961) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16
`
`
`
`INTEREST OF THE AMICI CURIAE1
`
`Public Advocate of the United States is a nonprofit
`social welfare organization, exempt from federal
`income tax under Internal Revenue Code (“IRC”)
`section 501(c)(4). I Belong Amen Ministries is a
`ministry headed by David Arthur. Conservative Legal
`Defense and Education Fund is a nonprofit educational
`and legal organization, exempt from federal income tax
`under IRC section 501(c)(3). Center for Morality and
`Restoring Liberty Action Committee are educational
`organizations.
`
`Amici organizations were established, inter alia,
`for the purpose of participating in the public policy
`process, including conducting research, and informing
`and educating the public on the proper construction of
`state and federal constitutions, as well as statutes
`related to the rights of citizens, and questions related
`to human and civil rights secured by law.
`
`Some of these amici filed an amicus brief in this
`case in the U.S. Court of Appeals for the Sixth Circuit
`on May 24, 2017, along with two amicus briefs on a
`similar issue in Zarda v. Altitude Express: one in the
`Second Circuit on July 26, 2017, and one in this Court
`on July 2, 2018.
`
`1 It is hereby certified that counsel for the parties have consented
`to the filing of this brief; that counsel of record for all parties
`received notice of the intention to file this brief at least 10 days
`prior to its filing; that no counsel for a party authored this brief in
`whole or in part; and that no person other than these amici curiae,
`their members, or their counsel made a monetary contribution to
`its preparation or submission.
`
`
`
`2
`SUMMARY OF ARGUMENT
`
`This case comes to this Court to correct a
`perversion of law that has occurred in three circuit
`courts.
` Title VII’s prohibition of employment
`discrimination “because ... of sex,” has not changed
`since the law was enacted. For decades, that
`prohibition has understood to refer to status as men or
`women. However, recently these circuit courts have
`engaged in judicial interpretative updating of the
`statute. Last year, in Hively v. Ivy Tech Cmty. College
`of Ind., the Seventh Circuit interpreted “because of
`sex” to include sexual orientation, and in February of
`this year, the Second Circuit reached the same
`conclusion in Zarda v. Altitude Express. Then, in
`March, the Sixth Circuit decided the present case,
`stretching Title VII to encompass discrimination based
`on gender identity. The law has not changed, but the
`lower courts have changed what it means, doing
`exactly that against which Alexander Hamilton
`warned: “It can be of no weight to say that the courts,
`on the pretense of a repugnancy, may substitute their
`own pleasure to the constitutional intentions of the
`legislature....” Federalist No. 78.
`
`From beginning to end, the Sixth Circuit panel
`utterly failed to exercise independent judgment
`whether the transgender claims made by the funeral
`home employee were either true or real. Instead of
`adjudicating a legal case between two contending
`parties, the court treated the employee more like a
`patient on a psychiatrist’s couch than a litigant before
`the bar of justice. In short, the court below evidenced
`a “systematic bias” deferring to the employee whose
`
`
`
`3
`interests were in line with EEOC policy that extends
`government protection against discrimination because
`of sex to transgendered individuals.
`
`The issue of special rights for homosexuals and
`transgendered persons is highly contentious, and
`cewrtainly the federal judiciary has no authority to
`twist the words of Title VII to satisfy the political
`demands of homosexual advocates even if it wishes
`that Congress should do so. Most of the political
`support for such rights is based on the erroneous
`premise that sexual orientation is immutable, but that
`is a vain imagination (Romans 1:21) designed to
`rationalize and excuse sinful behavior. The great
`danger of the “political correctness” is that it prevents
`reason and rational thought. Certainly erroneous
`imaginations and political correctness must be rejected
`as the basis for judicial usurpation of the legislative
`function, and the lower federal courts must be reigned
`in before more damage is done to the rule of law.
`
`ARGUMENT
`
`I. UNDER THE GUISE OF EVOLUTIONARY
`LAW, THE SECOND, SIXTH, AND SEVENTH
`CIRCUIT COURTS HAVE AMENDED TITLE
`VII’S PROTECTION AGAINST SEX
`DISCRIMINATION TO EXTEND TO
`HOMOSEXUALS AND TRANSGENDERS.
`
`Congress’ Title VII prohibition of certain
`discrimination in the workplace based on sex employs
`abundantly simple and clear language. Additionally,
`the history of its adoption provides no clues to indicate
`
`
`
`4
`that Congress meant anything other than what it
`clearly stated. See 42 U.S.C. § 2000e-2. As Chief
`Justice Rehnquist noted: “the bill quickly passed as
`amended [to include sex], and we are left with little
`legislative history to guide us in interpreting the Act’s
`prohibition against discrimination based on ‘sex.’”
`Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64
`(1986).
`
`For a half-century, the courts unanimously and
`uniformly have applied the text “because of ... sex”
`exactly as those terms were used in 1964, to constitute
`a prohibition against discrimination in most cases
`against an applicant or employee based on whether
`that person was a woman or a man. For example, the
`Sixth Circuit itself had held that “[a]s is evident from
`the ... language [of Title VII], sexual orientation is not
`a prohibited basis for discriminatory acts under Title
`VII.” Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762
`(6th Cir. 2006).
`
`A decade after that law’s enactment, LGBTQ
`advocates began to demand that Congress amend Title
`VII to protect homosexuals, and more recently, to
`protect “transgenders.” Indeed, in nearly every year
`since 1975, legislation has been introduced in Congress
`to expand the Civil Rights Act to cover discrimination
`based on “sexual orientation.”2 Thus, even LGBTQ
`advocates have understood that “sexual orientation”
`
`2 C. Joslin, “Protection for Lesbian, Gay, Bisexual, and
`Transgender Employees under Title VII of the 1964 Civil Rights
`Act,” 31 Human Rights 14 (ABA Summer 2004).
`
`
`
`5
`was never covered by Title VII’s prohibition against
`discrimination “because of sex.”
`
`Baldwin v. Foxx. Dissatisfied with Congress to
`yield to their demands, LGBTQ advocates relentlessly
`pressured the Obama Administration to employ the
`federal bureaucracy to re-interpret the 1964 law, and
`hope that the courts would yield to political pressure
`as well. The Obama Administration was more than
`happy to oblige this radical agenda. Thus, just over a
`half-century after Title VII was enacted, in Baldwin v.
`Foxx, No. 0120133080 (July 15, 2015), the Equal
`Employment Opportunity Commission (“EEOC”) ruled
`that, regardless of what the courts have previously
`ruled, Title VII does in fact prohibit sexual orientation
`discrimination. The agency asserted “that sexual
`orientation is inherently a ‘sex-based consideration,’
`and an allegation of discrimination based on sexual
`orientation is necessarily an allegation of sex
`discrimination under Title VII.” Baldwin at 6.
`
` Evans v. Georgia Regional Hospital.
`Meanwhile, numerous cases were percolating
`throughout the federal system, inviting the courts to
`similarly amend the law. On March 10, 2017, the first
`of these Obama-era efforts was unsuccessful, as the
`Eleventh Circuit rejected the claim of a lesbian in
`Evans v. Georgia Regional Hospital, 850 F.3d 1248
`(11th Cir. 2017). However, Judge Robin S. Rosenbaum
`strongly dissented, taking the view that discrimination
`against a lesbian for failing “to conform to the
`employer’s image of what women should be —
`specifically, that women should be sexually attracted
`to men only...” is “discrimination ‘because of ... sex.’”
`
`
`
`6
`Evans at 1261 (Rosenbaum, J., dissenting). The only
`authority for this contention was this Court’s 1989
`decision involving so-called “sex stereotyping” in Price
`Waterhouse v. Hopkins, 490 U.S. 228 (1989).3
`
`Hively v. Ivy Tech Community College. But,
`by the next month, on April 4, 2017, the en banc
`Seventh Circuit broke ranks, throwing off any pretense
`of lawfulness, ruling that “discrimination on the basis
`of sexual orientation is a form of sex discrimination.”
`Hively v. Ivy Tech Community College, 853 F.3d 339,
`341 (7th Cir. 2017). First, the Hively court dismissed
`all traditional interpretative approaches:
`
`One can stick, to the greatest extent possible,
`to the language enacted by the legislature; one
`could consult the legislative history that led up
`to the bill that became law; one could examine
`later actions of the legislature ... for whatever
`light they may shed; and one could use a
`combination of these methods. [Id. at 343.]
`
`Then it employed a modernized test that freed the
`court to “consider what the correct rule of law is now
`in
`light of the Supreme Court’s authoritative
`interpretations, not what someone thought it meant
`one, ten, or twenty years ago.” Id. at 350.
`
`Concurring in the decision, Judge Richard Posner
`took a more intellectually honest approach, albeit one
`
`3 See a discussion of inapplicability of Price Waterhouse decision
`in Amicus Brief of Public Advocate, et al., at 6-10 (May 24, 2017)
`filed when this case in the Sixth Circuit.
`
`
`
`7
`based on contempt for the rule of law and favoring the
`whim of an activist judiciary. He openly admitted that
`what the court was doing was “judicial interpretative
`updating” — i.e., amending statutes by the judicial
`fiat. Judge Posner did not hide that “Title VII receives
`today a new, a broader, meaning,” even though “[i]t is
`well-nigh certain that homosexuality, male or female,
`did not figure in the minds of the legislators who
`enacted Title VII.” Id. at 353-54. Daringly, Judge
`Posner elaborated:
`
`while in 1964 sex discrimination meant
`discrimination against men or women as
`such and not against subsets of men or women
`... the concept of sex discrimination has
`since broadened in light of the recognition,
`which barely existed in 1964, that there are
`significant numbers of both men and women
`who have a sexual orientation that sets them
`apart from the heterosexual members of their
`genetic sex (male or female), and that while
`they constitute a minority their sexual
`orientation is not evil and does not threaten
`our society.... I would prefer to see us
`acknowledge openly that today we, who are
`judges rather than members of Congress, are
`imposing on a half-century-old statute a
`meaning of “sex discrimination” that the
`Congress that enacted it would not have
`accepted. [Id. at 356-57 (emphasis added).]
`
`In Hively, Judge Diane Sykes dissenting, charging
`her majority colleagues with exceeding
`their
`
`
`
`8
`constitutional authority in giving statutes new
`meaning:
`
`The court has arrogated to itself the power to
`create a new protected category under Title
`VII. Common-law liability rules may judicially
`evolve in this way, but statutory law is
`fundamentally different. Our constitutional
`structure requires us to respect the difference.
`[Hively at 373
`(Sykes, J., dissenting)
`(emphasis added).]
`
`Zarda v. Altitude Express. The Hively decision
`emboldened the en banc Second Circuit to follow suit
`on February 26, 2018, reversing its own line of
`precedent by holding
`that Title VII bans
`discrimination based on sexual orientation. See Zarda
`v. Altitude Express, 883 F.3d 100 (2nd. Cir. 2018)
`(pending on petition for writ of certiorari, Altitude
`Express v. Zarda, No. 17-1623). The Second Circuit no
`longer found the text clear, stating that “we must
`construe the text in light of the entirety of the statute
`as well as relevant precedent.” Zarda at 112. The
`Second Circuit grounded its decision in legal evolution
`squarly on the view that:
`
`[L]egal doctrine evolves and in 2015 the
`EEOC held, for the first time, that “sexual
`orientation
`is
`inherently a
`‘sex-based
`consideration;’ accordingly an allegation of
`discrimination based on sexual orientation is
`necessarily an allegation of sex discrimination
`under Title VII....” Since 1964, the legal
`framework for evaluating Title VII claims has
`
`
`
`9
`evolved substantially. [Zarda at 107, 131
`(emphasis added).]
`
`EEOC v. Harris Funeral Home. Less than a
`fortnight later, the Sixth Circuit joined the evolution
`parade with its decision on March 7, 2018, the review
`of which is now being sought — EEOC v. Harris
`Funeral Home, 884 F.3d 560 (6th Cir. 2018).
`
`Bostock v. Clayton County. On May 10, 2018,
`the Eleventh Circuit held fast, and followed its earlier
`decision in Evans, holding that “‘[d]ischarge for
`homosexuality is not prohibited by Title VII’” and
`“rejected the argument that Supreme Court precedent
`... supported a cause of action for sexual orientation
`discrimination under Title VII.” Bostock v. Clayton
`Cty. Bd. of Comm’rs, 723 Fed. Appx. 964, 964-65 (11th
`Cir. 2018). Thereafter, and while a petition for
`certiorari is pending before this Court (No. 17-1618),
`the Eleventh Circuit sua sponte considered rehearing
`and then declined to rehear Bostock en banc, providing
`two dissenting circuit judges a platform to state their
`belief that the Eleventh Circuit should follow the
`Second and Seventh Circuits in judicially updating
`Title VII to “prohibit[] discrimination against gay and
`lesbian individuals because they fail to conform to
`their employers’ views when it comes to whom they
`should love.” Bostock v. Clayton Cty. Bd. of Comm’rs,
`894 F.3d 1335, 1338 (11th Cir. 2018) (denying
`rehearing en banc) (Rosenbaum, J., dissenting from
`the denial of rehearing en banc).
`
`Several simple facts can be concluded from this
`review.
`
`
`
`10
`is clear and
`First, the text of Title VII
`unambiguous and has been universally viewed to
`mean discrimination only based against women or
`men, because of their status as a woman or man, for a
`half-century.
`
`Second, there is no legislative history which has
`been discovered which supports any reinterpretation
`of Title VII.
`
`Third, judges have no constitutional authority,
`such as Judge Posner claimed for himself, to “impose”
`on a half-century-old law a meaning that they prefer
`based on their personal political views.
`
`Fourth, judges may not suspend their judicial
`independence and adopt the view of a politicized
`administrative agency which has made a political
`decision to satisfy a political constituency.
`
`And lastly, for all the reasons set out above, the
`duty falls to this Court to reject and correct the
`shameful and lawless exercise of power by the Sixth
`Circuit, which embraced the approach revealed by
`now-retired Circuit Court Judge Posner in his exit
`interview:
`
`I pay very little attention to legal rules,
`statutes, constitutional provisions. A case is
`just a dispute. The first thing you do is ask
`yourself — forget about the law — what is
`a sensible resolution of this dispute? [A.
`Liptak, “An Exit Interview With Richard
`
`
`
`11
`Posner, Judicial Provocateur,” New York
`Times (Sept. 11, 2017) (emphasis added).]
`
`Clearly, Judge Posner’s statements demonstrate
`that the circuit courts have “so far departed from the
`accepted and usual course of judicial proceedings” that
`this Court’s supervisory powers should be exercised
`and certiorari should be granted. Supreme Court Rule
`10(a).
`
`II. HAVING FAILED TO EXERCISE THE
`INDEPENDENT JUDGMENT REQUIRED OF
`AN ARTICLE III COURT, THE SIXTH
`CIRCUIT’S DECISION IS VOID AND
`UNENFORCEABLE.
`
`The hallmark of judicial power is independent
`judgment. See Federalist No. 78, G. Carey & J.
`McClellan, eds. The Federalist at 402-03 (Liberty
`Found.: 2001). Indeed, as Alexander Hamilton put it:
`“The complete independence of the courts of justice is
`peculiarly essential in a limited constitution.” Id. at
`403. Or, more recently, as Columbia University
`Professor Philip Hamburger has asked: “even where
`agencies have congressional authority to exercise their
`judgment about what the law is, how can this excuse
`the judges from their constitutional duty, under Article
`III, to exercise their own independent judgment?” See
`P. Hamburger, “Chevron Bias,” 84 GEO. WASH. L. REV.
`1187, 1189 (2016).
`
`The requirement of independent judgment has
`arisen recently in this Court’s expressed misgivings
`about its own rules providing “deference” to agency
`
`
`
`12
`interpretation of statutes under the notorious Chevron
`doctrine. For example, Justice Thomas “note[d] that
`[the EPA’s] request for deference raises ... serious
`separation-of-powers questions.” Michigan v. EPA,
`576 U.S. ___, 135 S.Ct. 2699, 2712 (2015) ( Thomas, J..
`concurring). But the concern runs even beyond the
`duties of an Article III court in that, as Professor
`Hamburger points out, the absence of judicial
`independence caused by deference to agency statutory
`interpretation raises serious Article V due process
`concerns — including “systematic bias in favor of the
`government and against other parties.” Hamburger at
`1195. More bluntly and more tellingly, Professor
`Hamburger warns that “when judges adopt the record
`or factual claims of one of the parties, in place of a
`judicial record, they are engaging in systematic bias in
`favor of one party’s version of the facts.” Id. at 1203.
`And that is precisely what has happened here.
`
`A. The Court’s Threshold Decision to Use
`Female Pronouns to Refer to Stephens Is
`Prejudicial Error.
`
`Beginning with the very first sentence, the court
`below – acknowledging that “Aimee Stephens ... was
`born biologically male” – quickly drops a footnote
`which reads: “We refer to Stephens using female
`pronouns, in accordance with the preference she
`has expressed through her briefing to this court.”4
`EEOC v. R.G., 884 F.3d 560, 566, n.1 (6th Cir. 2018)
`(emphasis added). But the matter before the court is
`
`4 See generally M. Charen, “Is Christine Hallquist’s Primary
`Victory Really ‘Historic’?” National Review Online (Aug. 17, 2018).
`
`
`
`13
`not a social event, in which “[i]t’s important to be
`polite and respectful,”5 but a lawsuit between two
`contending parties in which the central issue is
`whether the Plaintiff is a male or a female. Judges are
`not free to choose to respond with “tolerance and
`understanding,”6 as if confused persons like Stephens
`are their patients on the proverbial psychiatric couch,
`instead of plaintiffs in a legal dispute at the bar of
`justice. Nor may a panel of three federal appellate
`judges act as if it is no “business” of theirs whether
`Stephens is identified as a “he” or a “she,” particularly
`after the panel found that as a matter of fact
`“Stephens ... was born biologically male.” R.G. at 566
`(emphasis added).7
`
`Indeed, by its unilateral decision to conform its
`written opinion to Stephens’ newly discovered
`“preference” for female pronouns — presumably
`because “people deserve to be called what they choose
`to be called”8 — the court below implicitly adopts
`Stephens’ view that he was not born biologically a
`man, but was merely “‘assigned male at birth.’” See
`id. at 567 (emphasis added). After all, if Stephens’
`sexual identity as a male is only arbitrarily designated
`
`5 See M. Charen.
`
`6 Id.
`
`7 If litigants are now authorized to choose their own pronouns,
`one wonders how the Sixth Circuit would treat a request by Grant
`Strobl to be called “His Majesty,” as he did as a student at the
`University of Michigan.
`
`8 See M. Charen.
`
`
`
`14
`or appointed, not fixed by nature, who is to say that
`one’s sex might be unfixed or reassigned?
`Inadvertently, in its effort to be nice, the court below
`adopted Stephens’ obvious strategy that, if Stephens is
`referred to as a “she” or a “her,” then Stephens would
`be treated accordingly — notwithstanding the fact that
`Stephens was born, and remains, biologically male.
`Indeed, the panel opinion refers to Stephens as a “she”
`or “her” numerous times, such that the ordinary
`reader would have forgotten that at the heart of the
`case is the issue of whether Stephens’ employer
`dismissed Stephens “because ... of sex,” or because of
`Stephens’ gender self-identification. The court offers
`no evidence, reason, or justification to support the
`claim that a person who is born male is entitled to be
`identified as a female, but simply defers to Stephens’
`self-identification, as if Stephens has the unilateral
`capacity and authority to remake himself a
`“transgender woman who was [mistakenly] ‘assigned
`male at birth.’” Id. at 567 (emphasis added).
`
`B. The Court Below Failed to Exercise Its
`Judicial Duty of Independent Judgment.
`
`At every point in its decision, the court below
`presumes that Stephens’ “gender” is not like one’s sex
`— predetermined — but changeable at will, and thus
`not amenable to independent judicial review. First,
`the court found — without any evidence other than
`Stephens’ say-so — that Stephens is “transgender,”
`and in transitioning status from male to female. Id. at
`568, 571, 574-75. Second, the court blindly accepted
`the American Psychiatric Association’s most recent
`characterization of “transgender status” to be a
`
`
`
`15
`“‘disjunction between an individual’s sexual organs
`and sexual identity.’” Id. at 576. Third, the court
`simply asserted that Stephens’ employer had
`discriminated against Stephens because the employer
`held “stereotypical notions of how sexual organs and
`gender identity ought to align.” Id. (emphasis added).
`Fourth, having relegated the physical sexual anatomy
`of a human being to the status of alchemy, the court
`insisted that Stephens’ employer must get on board
`with Stephens’ treatment program lest Stephens be
`trapped in a body that is “inherently ‘gender non-
`conforming.’” Id. (emphasis added).
`
`The court allowed Stephens to brazenly conscript
`the Funeral Home to help Stephens “‘become the
`person’” that Stephens wanted to be. The court below
`deferred to Stephens’ therapeutic regimen that would
`require his employer to change his employment
`practices, including his dress code, so that Stephens
`could become “her” own true self. Id. at 568-69. Not
`only that, but Stephens also admitted that his
`continuing employment for at least one year was only
`the “‘first step’” in his self-devised recovery plan.
`
`Instead of acknowledging this dilemma, the court
`below equated “sex” and “gender,” as if the two were
`the same. See id. at 571. Yet even the “notoriously
`permissive”9 Webster’s Third New International
`Dictionary (1961) treats “sex” and “gender” as
`distinctly different realities. Sex is binary, “one of the
`two divisions of organic esp. human beings respectively
`
`9 See A. Scalia & B. Garner, Reading Law at 418 (West: 2012).
`
`
`
`16
`designated male or female.” Id. at 945. In contrast,
`gender is quintessentially a linguistic term “of two or
`more subclasses ... partly arbitrary, but also partly
`based on distinguishable characteristics such as shape,
`social rank, manner of existence ... or sex (as
`masculine, feminine, neuter) and that determine
`agreement with and selection of other words or
`grammatical forms.” Id. at 944. But the court below
`was in no mood to wrestle this issue to the ground,
`instead deferring to the EEOC’s view that “sex”
`included “gender identity.” See EEOC v. R.G. at 571-
`73.
`
`III. COURTS SHOULD NOT ASSUME THE
`P O L I T I C A L L Y C O R R E C T , B U T
`DEMONSTRABLY FALSE, NOTION THAT
`SEXUAL ORIENTATION IS AN IMMUTABLE
`CHARACTERISTIC.
`
`Title VII of the 1964 Civil Rights Act proscribes
`employment related discrimination only with respect
`to an “individual’s race, color, religion, sex, or national
`origin....” One’s race, color, sex, and national origin
`are clearly immutable characteristics — fixed at birth
`and out of one’s control.10 Respondent Stephens, who
`was “biologically male,” sought to be able to wear
`women’s clothes to work as part of his “transition from
`male to female.” EEOC v. R.G. at 566. On the other
`hand, Harris Funeral Home argued in the Sixth
`
`10 Certainly “religion” is not immutable, but it presents a separate
`question, as its protection is deeply rooted in the origins of the
`country and the constitutional text — the “free exercise” clause of
`the First Amendment.
`
`
`
`17
`Circuit that “sex” is a “biologically immutable trait”
`that cannot be changed. Id. at 576. The Sixth Circuit
`conveniently determined that it “need not decide that
`issue” (id.), but the immutability issue lurks in the
`background and thus cannot be ignored. Courts have
`often explained
`the policy underlying
`these
`employment protection categories in terms of the
`immutability of the characteristics protected by this
`statute. For example, the D.C. Circuit observed:
`
`Congress has said that no exercise of
`[managerial] responsibility may result in
`discriminatory deprivation of equal
`opportunity because of
`immutable race,
`national origin, color, or sex classification.
`[Fagan v. National Cash Register Co., 481
`F.2d 1115, 1125 (D.C. Cir. 1973).]
`
`While some may question whether immutability is
`the sine qua non of a protectable class, certainly
`LGBTQ advocates have devoted enormous energy to
`convince the American people that homosexuality and
`transgenderism11 fall in such a category. It has been
`asserted incessantly that one is “born that way,” and
`that sexual attraction and sexual self-perception are
`
`11 The term “transgender” is used here, although it appears to
`have been designed politically to convey the impression that a
`male or female can cross over to the other sex. George Orwell
`once stated: “Political language ... is designed to make lies sound
`truthful ... and to give an appearance of solidity to pure wind.” S.
`Orwell and I. Angus, eds., The Collected Essays, Journalism and
`Letters of George Orwell at 139 (NY: Harcourt Brace and World,
`1968).
`
`
`
`18
`not matters of “choice.”12 Certainly this Court’s
`decision to force the states to recognize same-sex
`marriages was based on the “born that way” theory
`that Justice Kennedy twice embraced in Obergefell v.
`Hodges, 135 S.Ct. 2584 (2015).
`
`[I]t is the enduring importance of marriage
`that underlies the petitioners’ contentions....
`And their immutable nature dictates that
`same-sex marriage is their only real path to
`this profound commitment. [Id. at 2594
`(emphasis added).]
`
`Only in more recent years have psychiatrists
`and others
`recognized
`that sexual
`orientation is both a normal expression of
`human sexuality and immutable.13 [Id. at
`2596 (emphasis added).]
`
`The danger of allowing courts to legislate in the
`guise of re-interpreting statutory language is only
`
`12 See, e.g., M. Talbot, “Is Sexuality Immutable?” The New Yorker
`(Jan. 25, 2010) (“But the fact is that the idea of sexual orientation
`as something inborn—or at least something in which people don’t
`feel they are exercising a conscious choice—is an important part
`of the package of liberal beliefs about homosexuality that often
`includes support for marriage.”).
`
`13 Justice Kennedy’s second reference to immutability was
`sourced to the amicus curiae brief of the American Psychological
`Association, although that brief did not use the word “immutable.”
`See P. Spigg, “Is Homosexuality ‘Immutable?’ Justice Kennedy’s
`Shaky Bridge to Redefining Marriage,” Family Research Cou
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