The Supreme Court Needs a Hermeneutics Lesson

By Published on July 8, 2020

I bet you can pass a test the U.S. Supreme Court just failed. Let’s see if I’m correct. If you read the sentence “He drives like a maniac” in 2 Kings 9:20, how would you determine what was meant by that phrase? You have two options. The first is to consider your own cultural context and likely conclude it’s a reference to someone driving recklessly with a car. The second option is to study what the author of 2 Kings intended to communicate in his cultural context. If you guessed the second option, you are correct.

Words have meaning. Discovering the meaning of a word — whether it’s in the Bible, a cell phone text, or the Constitution — is called hermeneutics, a fancy term for the process of interpreting words and discovering their meaning.

There are three possible sources of meaning for any written document: the author, the text or the reader. Although to many it seems obvious to determine the meaning of words by discovering the author’s intent, not everyone agrees. With the 20th century rise of postmodernism, the idea that truth and meaning are relative to every individual, the focus has shifted away from the author. Meaning can now come from the text or — worse — is created by the reader.

When you abandon the author’s intent, the rigid meaning of a text becomes malleable. Written words that meant one thing when they were written can mean something else later. A reader can insert new meaning into words that the author never intended.

Redefining ‘Sex’

That’s what happened with the Supreme Court’s recent ruling on Title VII of the 1964 Civil Rights Act. Historically, the legislation prohibited employment discrimination based on sex. For example, a woman couldn’t be denied a job or fired simply because she was female. That’s fair. The recent court ruling, however, expanded the meaning of the word “sex” to include sexual orientation and gender identity. The problem is that the authors of Title VII — writing in 1964 — didn’t have that meaning in mind when they authored the legislation.

What’s the point of writing laws down in words, Gorsuch has asked, if the meaning of those words can change? His answer: There is no point.

Justice Neil Gorsuch, who wrote the majority opinion, acknowledged that those who drafted the 1964 Civil Rights Act had biological categories in mind for “sex.” “But,” he added, “the limits of the drafters’ imagination supply no reason to ignore the law’s demands.” In other words, the word “sex” can be invested with new meaning other than the authors’ original intent. That’s breaking a cardinal rule of interpretation, one that he has upheld in the past.

In a 2018 Supreme Court opinion, Gorsuch warned about redefining words that make up a law. He wrote,

Written laws are meant to be understood and lived by. If a fog of uncertainty surrounded them, if their meaning could shift with the latest judicial whim, the point of reducing them to writing would be lost. That is why it’s a “fundamental canon of statutory construction” that words generally should be “interpreted as taking their ordinary, contemporary, common meaning … at the time Congress enacted the statute.” [Emphasis added.]

If Words Can Change, What’s the Point of Writing Laws Down?

What’s the point of writing laws down in words, Gorsuch asks, if the meaning of those words can change? His answer: There is no point. If we ignore what an author meant when he penned a law, then that law can change as often as someone redefines the words of that law.

That would be as absurd as someone reading, “He drives like a maniac,” and redefining the biblical phrase to refer to someone’s ability to drive a car. It can’t mean that because cars didn’t exist when the author wrote 2 Kings. It was never in his mind.

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In this recent ruling, sex is redefined to include not only the biological categories of male and female, but also sexual orientation and gender identity. But sex can’t mean that because those concepts didn’t exist when the authors of the 1964 Civil Rights Act drafted this legislation. They were never in their mind.

Don’t misunderstand. I’m not addressing the policy question of whether sexual orientation or gender identity should be a factor in employment. That’s a separate (although related) question. The point I’m raising is about the method by which the court ruled. As Justice Samuel Alito wrote in the dissenting opinion,

Many will applaud today’s decision because they agree on policy grounds with the Court’s updating of Title VII. But the question in these cases is not whether discrimination because of sexual orientation or gender identity should be outlawed. The question is whether Congress did that in 1964. It indisputably did not. [Emphasis in original.]

Circumventing the Legislative

Why did the Supreme Court rule to invest the word “sex” with a meaning foreign to the authors of Title VII? Their proper role is to interpret existing law, not create new law.

By redefining sex in Title VII, the Supreme Court in effect enacted new legislation, a prerogative of Congress and not the judicial branch. If a new law is needed, follow the Constitution’s directive by passing a new bill by majority vote in the House and Senate and get the President to sign it. Instead, the court circumvented the legislative process through interpretive gymnastics.

The words of a law should be interpreted by what they meant at the time they were written. In this case, that requires discovering what the drafters (authors) of the 1964 Civil Rights Act meant when they referred to sex. Gorsuch knows this basic principle of hermeneutics. For whatever reason, he failed to follow his own advice and shifted the meaning of sex with the “latest judicial whim.”

 

Originally published at Stand to Reason. Reprinted with permission.

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