Back during the Republican Convention, Peter Theil, first investor in Facebook and openly gay Republican said, to great acclaim, “I don’t pretend to agree with every plank in our party’s platform. But fake culture wars only distract us from our economic decline. When I was a kid, the great debate was about how to defeat the Soviet Union. And we won. Now we are told that the great debate is about who gets to use which bathroom. This is a distraction from our real problems. Who cares?”
It is true that the details of any of the culture wars can distract from larger issues, but underlying each of the culture wars are the larger issues.
Let us examine Theil’s example, use of public bathrooms. The objections are not only about who uses what lavatories. The root issue is congressional delegation to the executive branch or executive assumption of powers it does not have, both overseen by a flaccid judiciary. Background from a previous America Watch:
“In 1964, when Congress was debating the Civil Rights Act that would end racial segregation, a segregationist Democrat senator from Virginia, amended the bill to include sex discrimination. He intended it as a poison pill, and while the CRA 1964 passed, sex discrimination still got mocked.
As many saw discrimination in higher education as the biggest public obstacle for women in professions, the ultimately-failed Equal Rights Amendment had a provision ending sex discrimination in education. That provision became “Title IX” when Congress passed education laws in 1972.
Until recently, Title IX was most (in)famous for regulating collegiate sports. Schools had quickly complied with accepting women in equal number, but athletic scholarships became an equality issue.
In April of 2014, however, the US Department of Education, under pressure from LGBT special interest groups, released new guidelines for Title IX compliance[.]”
This week, a US District Court in Texas issued an order that gets to the separation of powers question under the distracting social issue. (Texas is involved in many— most, all? — of the lawsuits that are fundamental government questions disguised and dismissed as distracting social issues.)
The functional question on executive guidance, which is what the Obama Administration claims they did with the Title IX guidance, is whether the new instruction is legislative or substantive or merely interpretative. There are more procedures to follow for legislative or substantive changes:
“Here, the Court finds that Defendants’ rules are legislative and substantive. Although Defendants have characterised the Guidelines as interpretive, post-guidance events and their actual legal effect prove that they are “compulsory in nature.” Defendants confirmed at the hearing that schools not acting in conformity with Defendants’ Guidelines are not in compliance with Title IX. Further, post-Guidelines events, where Defendants have moved to enforce the Guidelines as binding, buttress this conclusion. The information before the Court demonstrates Defendants have “drawn a line in the sand” in that they have concluded Plaintiffs must abide by the Guidelines, without exception, or they are in breach of their Title IX obligations. Thus, it would follow that the “actual legal effect” of the Guidelines is to force Plaintiffs to risk the consequences of noncompliance.”
The judge enjoined the federal government from enforcing its new definition of sex. It is an excellent and correct opinion from its acknowledgement of the “difficult policy issue” to its analysis of the requirements on executive rule making. Our executive branch cannot make sweeping changes in our everyday life unilaterally.
The Title IX bathroom question is a fundamental separation of powers issue for American government, and in a way, Thiel is correct. Social issues do distract from the legal issues. We get emotional about the details and allow policy preferences to overrule legal principles and all the consequences that come later. As the old saw in law goes, tough cases make bad law.
And that flippant “who cares?” — those of us who worry about the unintended consequences of tearing down the law, that’s who.