...Do you see the pattern? Does it not look a lot like Fairness for All? The court is extending nondiscrimination protections in secular spaces while blocking targeted discrimination against people of faith and also expanding the autonomy and liberty of religious organizations.
...By punting through inertia or cowardice the most contentious questions entirely to the courts, Congress removes disputes to the governmental body most removed from the people. It undermines the democratic process. Congress subordinates itself in the hierarchy of American constitutional power, and thus the body closest to the people is now America’s weakest branch.
It’s hard to place the lion’s share of the blame for our nation’s emerging “juristocracy” on courts when the nation’s activists recognize congressional impotence and react accordingly. Why waste time and money with fruitless and frustrating lobbying, when you can file a lawsuit and force a judicial response? Judges can’t simply ignore complaints filed in their courts. They have to act, by granting or dismissing claims.
Those actions then generate appeals, those appeals have different outcomes, and then the Supreme Court has to step in to settle conflicts. The operation of law itself compels judicial action. Consequently, it makes sense for activists to blanket the nation in litigation in the hopes of reaching the Supreme Court.
...Justices Roberts and Kagan have set the terms. It’s not “gay rights or religious liberty.” It’s gay rights and religious liberty. Religious institutions have more autonomy. The secular workplace is now more open to LGBTQ Americans. And ordinary Americans are left to wonder why Supreme Court justices seem to be the last true negotiators left in America’s constitutional republic.
The Law and Justice Room
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