In Harris Funeral Homes Supreme Court Case, We Should Ask ‘Am I Next?’

 

“Am I next?” That’s the question that should come to your mind when you think of G.R. & R.G. Harris Funeral Homes v. Equal Opportunity Employment Commission, which the US Supreme Court is set to hear Tuesday, Oct. 8.

And no, that’s not a reference to funeral homes in general—along the lines of “ask not for whom the bell tolls”—but whether or not Americans can rely on what the law says. If the ACLU has its way and defeats Harris Funeral Homes, everyday Americans will face punishment for violating laws that unelected officials have changed out from under them.

That’s at the heart of Harris. Ignoring almost a half-century of precedent—and more importantly, the text of federal law itself—a federal court of appeals effectively redefined “sex” to include “gender identity” to punish a funeral homeowner who was depending on the law to run his fifth-generation family business.

Now that the case is before the court, the ACLU is leading the charge, inviting the nation’s high court to uphold that decision. If it succeeds in redefining “sex” to include “gender identity,” the ACLU will not only create chaos for business owners and other Americans, but also unleash a whole host of unfair situations for women and girls whose opportunities and privacy are currently protected under federal law.

Among other things, swapping out a biologically based understanding of “sex”—which even the ACLU agrees was the publicly understood meaning when Congress enacted the Civil Rights Act of 1964—could undermine the opportunities available to female athletes.

Since 2017, Connecticut has allowed two high school boys who identify as female to compete in girls track and swipe over 50 chances for girls to be named state-level first place champions or advance to the next level of competition in track events throughout the state. Together, the two boys now boast 13 individual meet records in the state that were previously held by 12 individual girls.

In Alaska, an Anchorage commission used this same tactic to try to force a faith-based women’s shelter to allow a man who claims a female identity to sleep three feet away from women who have been raped, trafficked, and abused.

Beyond these two crucial arenas, parental rights and even free speech itself come into play when “gender identity” is shoehorned in under the definition of “sex.” The ACLU’s end game causes serious, massive problems in American life.

In the Harris case itself, the funeral home hired a male funeral director in 2007. Funeral directors are the face of the company, which has served thousands of Detroit-area families since 1910. In 2013, the male funeral director gave a letter to Tom Rost, the owner of the funeral home. The letter informed Tom that the employee planned to begin dressing and presenting as a woman at work while interacting with grieving families in violation of the funeral home’s sex-specific dress code.

Rost had to consider how this would affect his employees — including an 80-year-old woman named Dolly, who would be forced to share the location’s only women’s restroom with the male funeral director. He also had to think of the clients who come to Harris Funeral Homes and are grieving the loss of a loved one.

Rost ultimately decided that he could not agree to the funeral director’s proposal to violate the dress code. Although sex discrimination has always meant treating one sex less favorably than the other because of sex, a federal court of appeals redefined the law to include different treatment based on transgender status, punishing Rost and prompting his appeal to the Supreme Court.

Regardless of what you think of Rost’s decision, the simple fact is that he should have been allowed to rely on what the law said. That’s what Rost did, and yet he finds himself down to his last plea.

And we should be asking ourselves, “Am I next?”

Published in Law
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There are 27 comments.

  1. Samuel Block Member

    A remarkable thing. My mother runs a family funeral home – she’s the fourth generation president. Considering that in her area the only sizable market she can rely on is Catholics means that this would be a terrible predicament. 

    • #1
    • October 7, 2019, at 2:19 PM PDT
    • 3 likes
  2. Full Size Tabby Member

    I was noticing today that the news media coverage of this (and some other cases before the U.S. Supreme Court) keeps focusing on the “rights” of the employees, but failed to note that every time the law (whether by statute, by rule, or by court) gives a “right” to an employee, the law restricts or takes away the rights of an employer (or other person or entity). News media does a very poor job of pointing out that “giving” rights to one group often takes rights away from another group or from the public at large.

    • #2
    • October 7, 2019, at 2:20 PM PDT
    • 13 likes
  3. Stad Thatcher

    Pitiful. The ACLU is neither American, civil, or in favor of liberty . . .

    • #3
    • October 7, 2019, at 2:25 PM PDT
    • 9 likes
  4. Full Size Tabby Member

    I heard a very dopey law professor trying to influence the “textualist” justices by saying that the meaning of the word “sex” has now been expanded so far that the “textualists” have to agree that “sex” includes “gender identity.” That is just nuts. No one at the time the statute was adopted thought the word “sex” included “gender identity.” And I don’t recall that I was given any opportunity to weigh in by vote or even survey if I agreed with a change in the definition of the word “sex.” 

    If a written constitution or a statute is so malleable that by a few academics deciding that the meaning of a word has changed from what it meant a short time ago the entire meaning of the law has changed, there is no point to having a written law (or constitution).

    [As has been pointed out many times, if Congress thought “sex” should include “gender identity,” Congress has had ample opportunity to amend the law to say so. Because Congress has not so amended the law, the Court should not on its own redefine words.]

    • #4
    • October 7, 2019, at 2:28 PM PDT
    • 9 likes
  5. Jay Hobbs Contributor
    Jay Hobbs Post author

    Samuel Block (View Comment):

    A remarkable thing. My mother runs a family funeral home – she’s the fourth generation president. Considering that in her area the only sizable market she can rely on is Catholics means that this would be a terrible predicament.

    Exactly. She deserves to rely on what the law says – how else could she make day-to-day decisions, let alone important decisions like these?

    • #5
    • October 7, 2019, at 2:34 PM PDT
    • 3 likes
  6. Jay Hobbs Contributor
    Jay Hobbs Post author

    Full Size Tabby (View Comment):

    I was noticing today that the news media coverage of this (and some other cases before the U.S. Supreme Court) keeps focusing on the “rights” of the employees, but failed to note that every time the law (whether by statute, by rule, or by court) gives a “right” to an employee, the law restricts or takes away the rights of an employer (or other person or entity). News media does a very poor job of pointing out that “giving” rights to one group often takes rights away from another group or from the public at large.

    Easy to forget who owns companies… people. 

    • #6
    • October 7, 2019, at 2:36 PM PDT
    • 4 likes
  7. Jay Hobbs Contributor
    Jay Hobbs Post author

    Full Size Tabby (View Comment):

    I heard a very dopey law professor trying to influence the “textualist” justices by saying that the meaning of the word “sex” has now been expanded so far that the “textualists” have to agree that “sex” includes “gender identity.” That is just nuts. No one at the time the statute was adopted thought the word “sex” included “gender identity.” And I don’t recall that I was given any opportunity to weigh in by vote or even survey if I agreed with a change in the definition of the word “sex.”

    If a written constitution or a statute is so malleable that by a few academics deciding that the meaning of a word has changed from what it meant a short time ago the entire meaning of the law has changed, there is no point to having a written law (or constitution).

    [As has been pointed out many times, if Congress thought “sex” should include “gender identity,” Congress has had ample opportunity to amend the law to say so. Because Congress has not so amended the law, the Court should not on its own redefine words.]

    Right. Congress is 0-for-12 in adding in “gender identity.” That’s why we’re seeing it in the courts instead.

    • #7
    • October 7, 2019, at 2:38 PM PDT
    • 6 likes
  8. James Gawron Thatcher

    Jay,

    This case is about the tyranny of insanity. One can only hope that the Court strikes a blow for sanity. There are not over 100 genders. If you identify as a female but are biologically male you are still male. If you identify as male but are biologically female you are still female.

    The law must not be bent to appease sexual schizophrenia. The court can end this nightmare. We can only hope.

    Regards,

    Jim

    • #8
    • October 7, 2019, at 2:49 PM PDT
    • 7 likes
  9. Full Size Tabby Member

    Jay Hobbs (View Comment):

    Full Size Tabby (View Comment):

    I was noticing today that the news media coverage of this (and some other cases before the U.S. Supreme Court) keeps focusing on the “rights” of the employees, but failed to note that every time the law (whether by statute, by rule, or by court) gives a “right” to an employee, the law restricts or takes away the rights of an employer (or other person or entity). News media does a very poor job of pointing out that “giving” rights to one group often takes rights away from another group or from the public at large.

    Easy to forget who owns companies… people.

    And too many people, when they think “employer” think only of large corporations. They don’t appreciate that most employers are small businesses in which the owner is actively involved. 

    • #9
    • October 7, 2019, at 3:03 PM PDT
    • 3 likes
  10. Jay Hobbs Contributor
    Jay Hobbs Post author

    Full Size Tabby (View Comment):

    Jay Hobbs (View Comment):

    Full Size Tabby (View Comment):

    I was noticing today that the news media coverage of this (and some other cases before the U.S. Supreme Court) keeps focusing on the “rights” of the employees, but failed to note that every time the law (whether by statute, by rule, or by court) gives a “right” to an employee, the law restricts or takes away the rights of an employer (or other person or entity). News media does a very poor job of pointing out that “giving” rights to one group often takes rights away from another group or from the public at large.

    Easy to forget who owns companies… people.

    And too many people, when they think “employer” think only of large corporations. They don’t appreciate that most employers are small businesses in which the owner is actively involved.

    Bulls eye. The irony is the much-maligned “mega corporations” were the ones signing on as amici for the ACLU. And why? Because they can take on the legal risks involved (especially in retail and other businesses where they simply won’t have to make these decisions). Meanwhile, the family-owned service industry will pay the price.

    • #10
    • October 7, 2019, at 3:10 PM PDT
    • 6 likes
  11. Full Size Tabby Member

    Stad (View Comment):

    Pitiful. The ACLU is neither American, civil, or in favor of liberty . . .

    One of the many bizarre sights associated with the fights over “homosexual rights” and “same sex marriage” has been the frequency with which state affiliates of the ACLU weigh in on the side of using state power to force people to do things the people find morally objectionable. These days an organization with “civil liberties” in its name is more likely to favor government coercion than to favor actual civil rights. 

    • #11
    • October 7, 2019, at 3:18 PM PDT
    • 8 likes
  12. Slow on the uptake Thatcher

    Full Size Tabby (View Comment):
    If a written constitution or a statute is so malleable that by a few academics deciding that the meaning of a word has changed from what it meant a short time ago the entire meaning of the law has changed, there is no point to having a written law (or constitution).

    (My highlight.)

    Bingo! But at least this isn’t a civil war.

    • #12
    • October 7, 2019, at 3:54 PM PDT
    • 6 likes
  13. Old Bathos Member

    Glad Justice Kennedy is gone—at least the normals have a fighting chance.

    It is nuts to claim that Congress had trans and 57 genders in mind when this legislation was crafted. Nevertheless there are already 4 votes on SCOTUS against normalcy.

    When I attend my great-grandchildren’s kindergarten graduation sometime in the 2040’s, displaying crucifixes or stars of David will be outlawed but wearing a$$less chaps will be protected by judicial fiat. Unless we finally say enough of this [email protected]

    • #13
    • October 7, 2019, at 4:36 PM PDT
    • 10 likes
  14. Raxxalan Member

    Slow on the uptake (View Comment):

    Full Size Tabby (View Comment):
    If a written constitution or a statute is so malleable that by a few academics deciding that the meaning of a word has changed from what it meant a short time ago the entire meaning of the law has changed, there is no point to having a written law (or constitution).

    (My highlight.)

    Bingo! But at least this isn’t a civil war.

    Yet

    • #14
    • October 8, 2019, at 5:35 AM PDT
    • Like
  15. GrannyDude Member

    James Gawron (View Comment):
    The law must not be bent to appease sexual schizophrenia. The court can end this nightmare. We can only hope.

    Well, the law could be bent to appease sexual schizophrenia. That is, the Congress could vote to amend the Civil Rights Act to include whomever appears to need his, her, their, xer rights protected. At the time of its passage, the Act addressed what were acknowledged to be widespread infringements on the rights of racial minorities and women. Nothing is preventing Congress from doing its job, in short, except perhaps the reality that Americans as a whole are not persuaded that a man can be a woman and vice versa. 

    What is most troubling about this to me isn’t the validation of sexual schizophrenia. It’s not even the eagerness of activists to have the Daddy in the Black Robe give them what they want, right now! It’s the willingness of the court to go along with this, to set precedents for finding penumbras and emanations in the Constitution that, in the end, make the Constitution not a “living” document but a dead one, a mere wispy beard for the face of capricious and arbitrary rule.

    What makes this particular case worrisome is that the consensus on what the word “woman” is not limited to the distant past. Nor did the definition change, or even begin to change, in 1965, or 1975, or even 1995: “woman” meant biological female up until the day before yesterday. To mount an assault on that word, in particular, should terrify all of us. If “woman” can be retroactively re-defined on what, in historical terms, can only be described as a fad, what hope is there for words and concepts far younger and less rooted in ancient, observable, quotidian reality…words like “speech,” “religion,” “property” and so on?

     

    • #15
    • October 8, 2019, at 7:07 AM PDT
    • 7 likes
  16. GrannyDude Member

    Old Bathos (View Comment):
    When I attend my great-grandchildren’s kindergarten graduation sometime in the 2040’s, displaying crucifixes or stars of David will be outlawed but wearing a$$less chaps will be protected by judicial fiat. Unless we finally say enough of this [email protected]

    Well, or none of the above will be permitted anywhere, for any reason, and “woman” will be whatever is under that mobile, fabric isolation-chamber pushing a stroller down Constitution Avenue.

    • #16
    • October 8, 2019, at 7:18 AM PDT
    • 3 likes
  17. James Gawron Thatcher

    GrannyDude (View Comment):
    What makes this particular case worrisome is that the consensus on what the word “woman” is not limited to the distant past. Nor did the definition change, or even begin to change, in 1965, or 1975, or even 1995: “woman” meant biological female up until the day before yesterday. To mount an assault on that word, in particular, should terrify all of us. If “woman” can be retroactively re-defined on what, in historical terms, can only be described as a fad, what hope is there for words and concepts far younger and less rooted in ancient, observable, quotidian reality…words like “speech,” “religion,” “property” and so on?

    Granny,

    Arbitrary irrationality of the latest woke mob will be the law of the land of the moment. Total chaos replaces good governance. Justice for all replaced by the momentary prejudice of an in-crowd.

    Yeah, I think you’ve got it right.

    Regards,

    Jim

    • #17
    • October 8, 2019, at 9:06 AM PDT
    • Like
  18. Unsk Member

    “Bulls eye. The irony is the much-maligned “mega corporations” were the ones signing on as amici for the ACLU. And why? Because they can take on the legal risks involved (especially in retail and other businesses where they simply won’t have to make these decisions). Meanwhile, the family-owned service industry will pay the price.”

    Jay, it is even worse than that. These kind of decisions allow the”mega-corporate” interests, with their ability to deal with these onerous laws, to drive their small business competitors out of business who cannot. It is a culling of the field of small business, and it is happening over and over again across the economy. The Corporate Socialist RINO establishment and the Big Government Socialist Democrats love this kind of thing.

    Great post though.

    • #18
    • October 8, 2019, at 9:13 AM PDT
    • 3 likes
  19. Theodoric of Freiberg Member

    Full Size Tabby (View Comment):
    News media does a very poor job of pointing out that “giving” rights to one group often takes rights away from another group or from the public at large.

    This is not an oversight on the part of the news media. Their narrative is, “People good. Business bad.”

    • #19
    • October 8, 2019, at 9:16 AM PDT
    • 1 like
  20. Slow on the uptake Thatcher

    Raxxalan (View Comment):

    Slow on the uptake (View Comment):

    Full Size Tabby (View Comment):
    If a written constitution or a statute is so malleable that by a few academics deciding that the meaning of a word has changed from what it meant a short time ago the entire meaning of the law has changed, there is no point to having a written law (or constitution).

    (My highlight.)

    Bingo! But at least this isn’t a civil war.

    Yet

    I think my sarcasm was a bit too subtle.

    • #20
    • October 8, 2019, at 9:59 AM PDT
    • 1 like
  21. Douglas Pratt Member

    This is the tip of one of many icebergs. Actual laws are a problem, but a bigger problem is regulations, which can change quickly, quietly and capriciously. Any small business owner in any industry is confronted with regulations from different agencies that directly conflict with other. All they can do is decide which one they are more likely to get caught violating.

    • #21
    • October 8, 2019, at 11:36 AM PDT
    • 3 likes
  22. Raxxalan Member

    Slow on the uptake (View Comment):

    Raxxalan (View Comment):

    Slow on the uptake (View Comment):

    Full Size Tabby (View Comment):
    If a written constitution or a statute is so malleable that by a few academics deciding that the meaning of a word has changed from what it meant a short time ago the entire meaning of the law has changed, there is no point to having a written law (or constitution).

    (My highlight.)

    Bingo! But at least this isn’t a civil war.

    Yet

    I think my sarcasm was a bit too subtle.

    I think it was spot on but I was sleep deprived this morning.

    • #22
    • October 8, 2019, at 6:09 PM PDT
    • 1 like
  23. Full Size Tabby Member

    Unsk (View Comment):

    “Bulls eye. The irony is the much-maligned “mega corporations” were the ones signing on as amici for the ACLU. And why? Because they can take on the legal risks involved (especially in retail and other businesses where they simply won’t have to make these decisions). Meanwhile, the family-owned service industry will pay the price.”

    Jay, it is even worse than that. These kind of decisions allow the”mega-corporate” interests, with their ability to deal with these onerous laws, to drive their small business competitors out of business who cannot. It is a culling of the field of small business, and it is happening over and over again across the economy. The Corporate Socialist RINO establishment and the Big Government Socialist Democrats love this kind of thing.

    Great post though.

    You will notice that large corporations often advocate for big expensive regulatory schemes at least in part because a regulatory scheme entrenches their market position, and provides a high barrier to entry to keep competitors out. 

    I spent my career working as a lawyer for businesses (mostly large corporations). I heard the General Counsel of a very large multinational corporation, in response to some smaller corporations complaining about the proliferation of regulations, say (more or less), “Suck it up guys; regulation is just the way things are.” I thought, well that’s relatively easy for you large corporation to say, since you already have an army of lawyers and regulatory compliance people on staff or on retainer. Since smaller corporations do not have that army (and assembling the army would be a very costly, time consuming, and energy consuming, you large corporation are just using the regulatory system to keep out competitors. 

    • #23
    • October 8, 2019, at 6:31 PM PDT
    • 4 likes
  24. Old Bathos Member

    Full Size Tabby (View Comment):

    Unsk (View Comment):

    “Bulls eye. The irony is the much-maligned “mega corporations” were the ones signing on as amici for the ACLU. And why? Because they can take on the legal risks involved (especially in retail and other businesses where they simply won’t have to make these decisions). Meanwhile, the family-owned service industry will pay the price.”

    Jay, it is even worse than that. These kind of decisions allow the”mega-corporate” interests, with their ability to deal with these onerous laws, to drive their small business competitors out of business who cannot. It is a culling of the field of small business, and it is happening over and over again across the economy. The Corporate Socialist RINO establishment and the Big Government Socialist Democrats love this kind of thing.

    Great post though.

    You will notice that large corporations often advocate for big expensive regulatory schemes at least in part because a regulatory scheme entrenches their market position, and provides a high barrier to entry to keep competitors out.

    I spent my career working as a lawyer for businesses (mostly large corporations). I heard the General Counsel of a very large multinational corporation, in response to some smaller corporations complaining about the proliferation of regulations, say (more or less), “Suck it up guys; regulation is just the way things are.” I thought, well that’s relatively easy for you large corporation to say, since you already have an army of lawyers and regulatory compliance people on staff or on retainer. Since smaller corporations do not have that army (and assembling the army would be a very costly, time consuming, and energy consuming, you large corporation are just using the regulatory system to keep out competitors.

    I lobbied for mostly small business groups years ago when Democrats came to believe that they could no longer easily expand government benefits so the next best thing was to redouble efforts to impose mandates on employers. Large corporations were often happy to endorse mandates that would require them to spend what they are already spending, remove pressure to do more and hammer smaller competitors.

    Combine anti-competitive proclivities with the rising Twitter-sensitive wokeness in corporate HR and PR departments and corporate America is becoming a bastion of the left.

    • #24
    • October 8, 2019, at 6:51 PM PDT
    • 2 likes
  25. James Lileks Contributor

    GrannyDude (View Comment):

    If “woman” can be retroactively re-defined on what, in historical terms, can only be described as a fad, what hope is there for words and concepts far younger and less rooted in ancient, observable, quotidian reality…words like “speech,” “religion,” “property” and so on?

    They all have to be redefined to redress disparities and inequities. If the words have perpetuated a social injustice, the words are complicit, and their meaning must be adjusted. So “speech” has to be divorced from “free,” “religion” severed from its tenets, “property” made a pejorative. And so on.

    Orwell didn’t describe the intermediary steps to destroying words so their meaning cannot be conceived; apparently there’s a period where the words’ old meaning are appropriated, so the people who use them in the traditional sense self-identify as reactionaries and enemies of progress.

    • #25
    • October 8, 2019, at 10:13 PM PDT
    • 5 likes
  26. Old Bathos Member

    James Lileks (View Comment):

    GrannyDude (View Comment):

    If “woman” can be retroactively re-defined on what, in historical terms, can only be described as a fad, what hope is there for words and concepts far younger and less rooted in ancient, observable, quotidian reality…words like “speech,” “religion,” “property” and so on?

    They all have to be redefined to redress disparities and inequities. If the words have perpetuated a social injustice, the words are complicit, and their meaning must be adjusted. So “speech” has to be divorced from “free,” “religion” severed from its tenets, “property” made a pejorative. And so on.

    Orwell didn’t describe the intermediary steps to destroying words so their meaning cannot be conceived; apparently there’s a period where the words’ old meaning are appropriated, so the people who use them in the traditional sense self-identify as reactionaries and enemies of progress.

    Plain meaning enslaves users of language to the patriarchal, heteronormative, racist entities that chain people to their dictionaries. When thought leaders help us sever those ties and let us look to them for meaning then and only then can we be free.

    When Winston can see only the number of fingers O’Brien says he is holding up, freedom is at hand.

    • #26
    • October 9, 2019, at 6:23 AM PDT
    • Like
  27. Full Size Tabby Member

    James Lileks (View Comment):
    They all have to be redefined to redress disparities and inequities. If the words have perpetuated a social injustice,

    as defined by a small group of people whose identities you will never know, but who hold privileged positions in society, which group will never invite you into membership, nor ask for your input.

    • #27
    • October 9, 2019, at 6:31 AM PDT
    • Like