This Day in Liberal Judicial Activism—January 30

by Ed Whelan

2006—Senator Kerry’s Davos-led fili-bluster of Supreme Court nominee Samuel Alito fails. The Senate respects its longstanding tradition of providing an up-or-down vote on the Senate floor to Supreme Court nominees who have been reported to the full Senate.

2014—By a vote of 5-1, the Maine supreme court, purporting to reconcile two statutes, rules that a public school is required to allow a “transgender girl”—that is, a boy who identifies as a girl—to use a girls’ bathroom.

As the dissenter argues, the ruling defies “the plain language of a specific statute [that] explicitly requires segregating school bathrooms by sex.” Further, the ruling construes the Maine Human Rights Act in a way that “inescapably lead[s] to the conclusion that an individual may not be denied access to public bathrooms based upon sex.” The majority doesn’t dispute this proposition, and one member of the majority expressly agrees with it.

In other words, under the court’s logic, men in Maine may now use any public women’s bathroom, and women in Maine may now use any public men’s bathroom. (A “public” bathroom is any bathroom in a “place of public accommodation,” such as a restaurant or store.) Indeed, even labeling a bathroom with a sign designating “Men” or “Women” violates the majority’s understanding of the MHRA.

Bench Memos

NRO’s home for judicial news and analysis.