Yesterday, the Supreme Court changed the definition of sex.

Not the kind of sex that caused a former Justice to say “I can’t define pornography, but know it when I see it.”

The kind of sex that most of us presume comes preset at birth.

Supposedly conservative Justice Neil Gorsuch penning the 6-3 majority opinion saying the “sex” referred to in Title VII of the Civil Rights Act of 1964 which bars employment discrimination based on “race, religion, national origin and sex” includes LBGTQ workers makes the decision even more surprising.

While LBGQT groups are celebrating, at least one women’s rights group isn’t happy with the ruling. In fact, the Independent Women’s Law Center says the decision will likely have “unintended and far-reaching negative consequences for women’s rights.”

IWLC Director Jennifer C. Braceras says ““The Court’s ruling in Bostock v. Clayton County no doubt is based on a genuine and heartfelt desire to protect gay and transgender Americans from workplace discrimination.”

“But, she says, “it is the job of the legislature, not the Court, to update Congressionally enacted employment laws. By usurping Congress’s role and proclaiming categorically that discrimination based on sexual orientation, transgender status, or gender identity is discrimination ‘because of sex,’ the Court effectively prevents Congress from making any distinctions on the basis of biological sex in any context.”

The implications, Braceras says, will be felt in everything from women’s sports to the right to privacy and health care law.

Her sentiment was shared in a pair of dissenting opinions, the first written by Justice Samuel Alito and joined by Justice Clarence Thomas, and a second dissent from Justice Brett Kavanaugh.

Justice Alito’s problem with the ruling was clearly stated. “There is only one word for what the Court has done here today,” he wrote, “legislation.”

The law, he wrote, does not mention “sexual orientation” or “gender identity.” Congress, he wrote, has considered legislation for decades that added those terms to Title VII, but hadn’t.

“The Court,” he wrote, “is not deterred by these Congressional niceties. Usurping the constitutional authority of the other branches, the Court has essentially taken H.R. 5’s provision on employment discrimination and issued it under the guise of statutory interpretation.”

“A more brazen abuse of our authority to interpret statues, “ he continued, “is hard to recall.”

Justice Kavanaugh’s dissent essentially mirrors Alito’s, saying the authority to “amend Title VII belongs to Congress and the President in the legislative process, not to this Court.”

While the Roberts Court seems willing to do a some social engineering, it is now being chastised for its apparent unwillingness to address an issue that is woven into the very legal fabric of the nation: gun rights.

When the current Supreme Court term began, ten potential gun rights cases were pending. At this point, one remains under active consideration. The others have been passed over without fanfare or explanation.

At least one Second Amendment advocate has had enough.

“The Supreme Court’s refusal to take a Second Amendment Foundation case falls squarely at the feet of Chief Justice John Roberts,” says the Second Amendment Foundation’s Alan Gottlieb. “He owes every gun owner in the United States an explanation about why the high court declined to hear a number of important Second Amendment cases.”

“Given the fact that the Supreme Court had a cafeteria-style menu of cases from which to choose, there is no excuse why the court at this time chose to ignore the need to rule on any of these cases, and send a message to lower courts that they can no longer thumb their noses at the Heller and McDonald Supreme Court decisions affirming the individual right to keep and bear arms,” Gottlieb continued.

“There is still one more case pending cert before the high court that was filed by the SAF. It is known as Rodriguez v. San Jose, a firearms confiscation case out of the State of California.”

Gottlieb’s frustration is echoed in the more quietly expressed opinions of other 2A proponents, although they are far more circumspect when saying they’re not optimistic that the Supreme Court will consider any Second Amendment case in the near term.

That’s concerning in the best of times.

Given today’s highly-divided political and social state, the SCOTUS’ continued reluctance is more unlikely to contribute to even deeper discord than a peaceful resolution.

Even prior to the coronavirus pandemic and the recent “peaceful protests” against the police, many activist state and local governments showed little reluctance to thumb their respective noses at both Supreme Court. Echoing the behavior of both the City of Chicago and District of Columbia, the losing parties in the Heller and McDonald decisions, respectively, they have steadily infringed on the individual right the Court has ruled is clearly defined in the Second Amendment.

The Roberts’ Court seems afraid to touch that single hot button issue, but shown little reluctance to “nudging” others in a direction of their own choosing.

That has never been in their job description. Their job is to protect the law from activist courts, not encourage them.

We’ll keep you posted.

— Jim Shepherd