A court in Indiana has overseen nothing short of a tragic miscarriage of justice. No, I’m not talking about the Indiana supreme court’s recent erroneous decision that the state’s version of the Religious Freedom Restoration Act likely protects a religious right to obtain an abortion (it does not, of course). I’m speaking instead of Indiana superior court judge Craig Bobay’s recent ruling that tacos are sandwiches. 

The question arose when the Fort Wayne plan commission entered into an agreement with Indiana developer Martin Quintana regarding permissible uses of a commercial property he owned. The agreement stipulates that the space cannot be used for restaurants, but excludes

a sandwich bar-style restaurant whose primary business is to sell “made-to-order” or “subway-style” sandwiches (which by way of example includes, but is not limited to, “Subway” or “Jimmy John’s”, but expressly excludes traditional fast food restaurants such as “McDonalds”, “Arbys” and “Wendys”), provided that any such restaurant shall not have outdoor seating or drive through service…. 

Quinata then sought to open a taco restaurant in the space. The commission argued that “sandwiches” does not include tacos. In a move that can only be described as an abdication of the judicial duty, Judge Bobay disagreed: 

The proposed Famous Taco restaurant falls within the scope of the general use approved in the original Written Commitment. The proposed Famous Taco restaurant would serve made-to-order tacos, burritos, and other Mexican-style food, and would not have outdoor seating, drive-through service, or serve alcohol. The Court agrees with Quintana that tacos and burritos are Mexican-style sandwiches, and the original Written Commitment does not restrict potential restaurants to only American cuisine-style sandwiches. The original Written Commitment would also permit a restaurant that serves made-to-order Greek gyros, Indian naan wraps, or Vietnamese banh mi if these restaurants complied with the other enumerated conditions.

This is, to put it bluntly, utter garbage. Bobay proposes that the word “sandwich” applies to a wide range of foods which might be considered analogous to sandwiches in other cuisines. But no sane American uses the term in this way. Americans are a noble people who, thank God, have not forsaken the plain meaning of terms for the deconstructionist linguistics of corrupt elites. Just as “man” and “woman” have a plain and obvious meaning, so does “sandwich.”

What makes Judge Bobay’s opinion particularly cowardly is that it purports to be based on a clear reading of the text. It brings to mind the Supreme Court’s mistaken 2020 ruling in Bostock v. Clayton County that Title VII of the Civil rights Act, which bars discrimination on the basis of “sex,” applies to employment decisions based on sexual orientation and gender identity. One might support or oppose such a position as a matter of policy, but it is simply not true that the average American in 1964 believed the word “sex” to reference gender identity, just as few Americans would today submit to the proposition that “sandwiches” encompasses tacos. Justice Alito’s dissent in Bostock applies here as well:

The Court attempts to pass off its decision as the inevitable product of the textualist school of statutory interpretation championed by our late colleague Justice Scalia, but no one should be fooled. The Court’s opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated––the theory that courts should “update” old statutes so that they better reflect the current values of society. 

Conservatives are right to applaud the Supreme Court’s turn toward originalism. But if the Indiana superior court is any measure, judicial activism is alive and well in the United States of America. The Federalist Society still has important work to do.