News and Commentary

DYS: The Role Of The Judiciary Is To Say What The Law Is, Not What It Should Be
WASHINGTON DC, UNITED STATES - 2019/10/08: A police officer guarding outside the Supreme Court of the United States in Washington, DC.
Erik McGregor/LightRocket via Getty Images

While the justices heard arguments in three cases inside the U.S. Supreme Court on Tuesday, Americans waited anxiously outside to learn the fate of the republic.

Exaggeration? Perhaps. But if so, it is only because it has become so routine to expect the high court to “decide” consequential issues for us. But that is not actually the justices’ job. Theirs is to say what the law is — “emphatically,” says Marbury v. Madison — and not to make it themselves.

In the words of Chief Justice John Roberts, the Supreme Court’s job is to “call balls and strikes” like a baseball umpire — and not to be “pitcher or catcher.”

But advocates for three individuals terminated from their jobs think otherwise. In their mind, federal employment law governing non-discrimination in employment — specifically, Title VII — needs to be updated. But the plaintiffs think the courts, and not the legislatures, should do the updating.

Interestingly, their argument suggests that nothing actually needs to be updated. When, in 1964, Title VII was enacted, they argue that the word “sex” would linguistically evolve to encompass its myriad meanings today. That is, they argue, “sex” clearly includes both gender identity and sexual orientation. All that is necessary, they say, is for the high court to recognize that “sex” and the accompanying concept of “sex stereotypes” includes all the many iterations of gender identity and sexual orientation.

That is strange because, since at least 1974, there have been repeated — and failed — efforts to add gender identity or sexual orientation protections in federal non-discrimination law, including Title VII. In fact, someone has introduced the Employment Non-Discrimination Act (ENDA) in Congress every year since 1994. And every year it has failed. Every single year.

States, for their part, have a more mixed record. Some have expanded the definition of “sex” in their state employment code provisions. Some have not. In some cases, municipalities within a state conflict with one another. Some cities, trying to be more “progressive,” have adopted expanded non-discrimination ordinances — sometimes even in opposition with state law.

Even earlier this year, the so-called Equality Act — an aggressive non-discrimination proposal — passed the House of Representatives but has thus far not been acted upon in the U.S. Senate.

Perhaps to some, the word “sex” in Title VII means something more than it meant in 1964. But if, after 45 years since the first legislative effort in 1974, no Congress has agreed, why should the nine lawyers on the high Court do what Congress has not done itself?

So it is no surprise that Justice Samuel Alito said to advocates before the Court, “Congress has been asked repeatedly in the years since 1964 to address this question.” And, if Congress has so declined to address the question — or simply failed to act upon it — why should the Court? After all, he says, “[If] the Court takes this up and interprets this 1964 statute to prohibit discrimination based on sexual orientation, we will be acting exactly like a legislature.”

Courts should not act like legislatures. Theirs is a different article in the Constitution altogether. Justice Neil Gorsuch seems to agree, noting that the role of expanding the law is the domain of the legislature. Thus, he said on Tuesday that this is “a question of judicial modesty.”

Beyond judicial modesty, if litigation since Obergefell v. Hodges has taught us anything, it is that short-circuiting the democratic process, as Justice Clarence Thomas warned us in his Obergefell dissent, has “potentially ruinous consequences for religious liberty” (among other deleterious effects).

Justice Alito agreed, explaining at the time that Obergefell would “be used to vilify” those who disagree and that Obergefell may even be “exploited by those who are determined to stamp out every vestige of dissent.”

Even since Obergefell wound its way to the Court, Jack Phillips, Aaron and Melissa Klein, Baronelle Stutzman, and others have emerged from the “recesses of their homes” — where Justice Alito said they might “whisper their thoughts” — and assumed the risk of acting upon their faith in public. Sadly, they were “labeled as bigots and treated as such by governments, employers, and schools.”

Now, like Jack Phillips, they face years of litigation simply to clear their name. No American should face that fate. Respecting the democratic process that allows for give and take — for concession and compromise — gains for us an overall better result for freedom. Allowing Americans to use the First Amendment to question the speech of others in order to sharpen our societal understanding of freedom is a blessing rarely afforded to human history.

Judges should say what the law is. If the law is inadequate, they should not fill in the blanks left by Congress. To do so would give, as U.S. Solicitor General Noel Francisco said at oral argument on Tuesday, “a complete victory to one side of the fight and nothing to the other side.”


Jeremy Dys (@JeremyDys) is Special Counsel for Litigation and Communications for First Liberty Institute, a non-profit law firm dedicated to defending religious freedom for all Americans. Read more at