Constitutional designs, democratic processes, legislative procedures, state politics, elections, the rule of law, we are told are too risky, too slow, and not even necessary to advance social movements and revolutions. Just use the courts. But why? Using the courts to create rights and make law is so outdated. With the ever expanding unilateral powers of the executive, this is a lot easier, cheaper, and quicker: bureaucratic fiat.
You might recall during the oral argument before the supreme court, Obama’s Attorney General tried to relieve the fears of Justice Alito. Alito was concerned if they ruled in favor of same-sex marriage, it would mean that they are making gays and lesbians out to be a protected class in the same way racial minorities and women are. This would mean that openly gay employees even at religious institutions would be protected (and the principle of religious freedom and/or separation of church and state could not be used by churches and their affiliates to justify their employment decisions). But the Attorney General reassured him. He said that he (as Attorney General with enforcement power over federal employment law) would not be using the decision in that way because “there is no federal law generally banning discrimination on the basis of sexual orientation” so “that’s [the states are] where those issues will have to be worked out.” Oh well, that changed Friday, not by congressional statute or court decision or 50 state laws. But by 3 unelected bureaucrats in the Labor Dept.
“The United States Equal Employment Opportunity Commission has ruled that workplace discrimination on the basis of sexual orientation is illegal under federal law, setting the stage for litigation aimed at striking down such practices.
The commission’s ruling, issued this week, hinged on the Civil Rights Act of 1964, which outlawed discrimination on the basis of sex in employment settings. In a 3-to-2 vote along party lines, the commission concluded that while the act did not explicitly prohibit discrimination against gays and lesbians, “an allegation of discrimination on the basis of sexual orientation is necessarily an allegation of sex discrimination.”
“If you look at our movement’s success, we are a lot better at litigating than we are at lobbying,” Mr. Almeida said. “We should take the E.E.O.C. decision and run with it by turning to the federal courts to win workplace protections in all 50 states.”
Get ready religious organizations. You are on the chopping block. Religious exemptions, religious freedom, separation of church and state, after all, are so 20th century.