The courts have already redefined marriage from the bench, preventing states from using their exclusive power over the institution to define it as it has been defined since our Founding. It was a matter of time before the courts found a constitutional right for a boy to use a girls’ bathroom, thereby denying state and local governments the ability to define a man as… well, a man.
Earlier today, Judge Henry Floyd, an Obama-appointee on the Fourth Circuit Court of Appeals, wrote a 2-1 decision (Grimm v. Gloucester County School Board) forcing a local school board to comply with Obama’s executive overreach, which demands that schools allow boys into female bathrooms (and vice versa).
At issue is a girl in Gloucester County, Virginia, who wanted to use the boys’ bathroom in school. Despite not having the male organs, the liberals who are at war with the most inviolable science in our everyday lives believe that he is really a she. When the school board refused to change nature due to an unfortunate mental disorder (anatomy and science don’t lie), the student sued in district court last year, claiming discrimination based on a new executive action from the Department of Education.
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Although title IX of the United States Education Amendments of 1972 was designed to prohibit discrimination in schools against one gender, the Obama administration took it upon itself to “expand” the law to redefine gender itself. In January 2015, the DOE’s Office of Civil Rights promulgated a regulation barring schools from assigning bathroom facilities based on biological gender, demanding they instead assign them based on someone’s chosen gender. In addition to representing a facial absurdity, this opinion was lawless and a complete bastardization of a congressional statute.
At its core, the role of a court is to define what the law says, not to rewrite the law, and certainly not to rewrite the Constitution and create new fundamental rights at the expense of the inalienable and equal rights of the public. And based on this statute, a local school clearly has the right to protect a social norm from an assault the drafters of the 1972 law could never have envisioned. The district court did just that and summarily tossed out the suit last September, after having previously denied the request for an injunction against the school board’s policy. But the Obama-appointed judge on the 4th Circuit Court remanded the case back to the district court, essentially siding with the Obama administration’s absurd expansion of the law. Senior Judge Andre Davis, another radical Obama-appointee, wrote in a concurring opinion that he would have gone a step further and issued a preliminary injunction on the spot.
The gravity of this new low in the ever-steep slippery slope of judicial tyranny and licentiousness cannot be overstated. As Paul Judge Niemeyer, the lone dissenter observed, the court literally redefined the definition of “sex” from the bench and “for the first time ever, holds that a public high school may not provide separate restrooms and locker rooms on the basis of biological sex.” Niemeyer further observes that this decision “overrules custom, culture, and the very demands inherent in human nature for privacy and safety, which the separation of such facilities is designed to protect.” And this was all done based on a Department of Education edict, overriding congressional statutes.
The majority opinion even recognized “the widely accepted practice” of separate bathrooms (no kidding!) and the inherent safety and privacy dangers posed by this social transformation. But in classic legal fog, Judge Floyd concluded, “[I]t is not apparent to us, however, that the truth of these propositions undermines the conclusion we reach regarding the level of deference due to the Department’s interpretation of its own regulations.”
Once again, the two unelected branches of government ganged up against the legislature to promote social transformation without representation.
Folks, we have a problem. As I warn in “Stolen Sovereignty,” even if we elect a conservative president who overturns these executive actions, the genie is out of the bottle in the court system. They have already signaled they will find a constitutional right for a man to use a female bathroom. Obama has already appointed seven judges to the 4th Circuit Court, for example, and these judges ain’t your grandfather’s judicial activists. They will stop at nothing to legislate immorality from the bench, even if it vitiates federalism, true individual liberty, property rights, the most infrangible norms of culture, tradition, science, and plain common sense.
Indeed, the marriage decision was just the tip of the iceberg.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.