The Louisiana Supreme
Court last week confirmed lower court rulings that Edwards’ Executive Order JBE 16-11
violated the Louisiana Constitution, a suit brought by Atty. Gen. Jeff Landry. The
gubernatorial pronouncement sought to add “gender identity” and “sexual orientation”
to the list of individual characteristics that the state could not discriminate
against in dealing with its personnel and concerning the personnel decisions of
entities that contracted with the state.
It was just a matter of
time. Lower court rulings clearly spelled out how the governor had no power to
alter unilaterally state law to add those categories, as all others mentioned in
his declaration already have protection through state law and the Constitution.
The Edwards Administration filings kept
resorting to the same failed arguments, so the Supreme Court’s decision that
it didn’t even have to hear the case hardly surprised.
Of course, the appeal process served really as an exercise to throw red meat to Edwards’ liberal political base, and the least competent jurist of the bunch, Chief Justice Bernette Johnson, consumed it and processed it into a laughable dissent. Showing great desire to shape both the state and federal constitutions into her vision of what they meant instead of what the documents’ words actually said, she argued that the chief executive should have vast power to enact policy consistent with what she thought she documents should say, legitimized by the fact past governors had issued similar documents that went unchallenged.
But Landry is made of
sterner stuff and pays greater attention to government power, when, and who may
exercise it. And Landry and his office also apparently run legal circles around
Edwards’ hapless Executive Counsel Matthew Block, who keeps ending
up on the losing side of legal debates against Landry.
Simply, unless the
majoritarian branches of government empower government to regulate further in
this area beyond clearly-defined state law, its Constitution, and the federal
Constitution, the governor on his own can’t create a new protected class – one in
particular defined by behavior and attitude rather than by immutable
characteristic. Presently, only political and religious beliefs among behavior
and attitudes enjoy such protection, through the First and Fourteenth
Amendments.
That distinction seems
unlikely to change in Louisiana. Earlier this week, state Sen. J.P. Morrell pulled
from consideration a bill that would have had the effect of forcing all
schools in Louisiana – both public and private – to create protected categories
around the new labels Edwards had tried to put into state policy, recognizing
that majorities of the citizens’ representatives would not accept such broadening
of government-imposed nondiscrimination law.
There’s good reason not
to head in that direction. If born, for example, of a certain race, one can’t
help that and the genetics of race don’t make people of one race or another
more or less likely to act in ways that intrude upon commercial enterprises to run
their operations as they see fit. Thus, there’s no logical reason to discriminate
on that basis except under the most narrow of circumstances; for example, allowing
only blacks to audition for a part as a slave in a movie about the antebellum
American south.
But as sexual orientation
and gender identity have
no genetic component and are defined by the way people choose to think
about themselves and the behavior that extends from that, business should have
the ability to regulate how that behavior manifests in its conduct of business.
At present, majorities agree that businesses should have the right to decide
whether they wish give their employees the privilege of expressing themselves on
these accounts in whatever fashion they choose.
Until the time that consensus
changes in Louisiana, its Constitution and law cannot be subverted to force a
change. Wisely, the Supreme Court majority recognized primacy of the rule of
law by letting Landry’s victory stand uncontested.
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