The losing streak continues in Gov. John Bel Edwards’ attempts of executive overreach to make the state go where its majority doesn’t wish.
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.
Elizabeth Crisp discusses Louisiana legislature session failure, budget, JBE
The Advocate's Elizabeth Crisp discusses Louisiana legislature session failure, budget, JBE
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.
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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.