Supreme Court to decide what 'sex' means

Back in law school — decades ago — as part of the graduation requirements, one had to write an appellate brief and then argue it before a panel of ersatz judges.  The topics and even the sides of the arguments were assigned.

To save time on behalf of the law profs who were acting as judges, they assigned teams: two to argue one side, two to argue the other.

So I researched the thing.  Even then, I could see that the weight of the decisions were on the other side from the one I'd been assigned.  And I felt myself reaching a conclusion that was in support of the position I'd been assigned.  I hadn't any preconceived notions — I'd never known anything about the issue or even of the deeper clash of legal theories that inspired it.

Indeed, the more I looked at the whole thing, the more I felt the other side of the argument was based on some form of lunacy, something warping the language, and even something dangerous.  Although I felt that only dimly.

Yes, I felt only dimly the danger.  Back then it was as if we were all sleeping, and someone was putting a fast one over us in the guise of normality.

Anyway, I had thought the issue done and buried.  Over the years, I'd seen the side I'd opposed victorious.

Then this week I saw the headlines.

The Supreme Court is taking up the case!

What is the issue?  It's whether, back in 1964, the Congress had meant that the word "sex" in the Civil Rights act meant "gender" or whether it meant, or can be interpreted as meaning, "sexual orientation" or even just plain "sex" as in "sexual harassment."

Now, it's clear that back then, no one was seeking to protect "sexual orientation" in the workplace.  By the way, there's never been much of any reason why the Legislature couldn't adopt such a law; it's just a question of whether they have done so.

It's also a question of whether judges have the power to stretch meanings.

Back then, this judicial philosophy was called "dynamism" — the idea being that dynamic things change.

The opposing judicial philosophy remained anchored in the original meaning and denied judges the power in essence to legislate, to disregard the written word.

There are two things here.  The position supporting "dynamism" is radical and dangerous, and that should be able to be seen as such by everyone.  But it's been presented as "normal" and even necessary.

The second thing: This "dynamism" thing sounds so much like what Russian communists idealized.  Their goal in the creation of communism — a state of workers' "paradise" — was to have all law fall away and disputes to be decided without reference to any law, precedent, or structure: merely on the basis of convenience and social responsibility.

Sound familiar?

By the way, I've long suspected that P.C. had a hand in what happened back in law school when we argued our positions.  Both I and the other fellow who had been assigned to defend our positions were glib talkers.  We relied on presenting the argument.

On the other side were two female students who had prepared assiduously. Their style was to present the cases.

In oral argument, it seemed my side completely did the opposing team in.

The three law profs acting as judges went out to confer.  They returned — and decided it was a tie! (This, of course, is impossible in a judicial setting.)

I've always suspected that the invisible hand of PC held them back from awarding us the victory.  Well, who knows?

But my old battle will now be fought out at the Supreme Court...and maybe this time, my side will win!

Tadas Klimas is a former FBI agent and law professor. He is the author of Comparative Contract Law.

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