The Supreme Court of the United States ruled on Monday that federal law currently banning workplace discrimination based on a person’s “sex” must also apply to a person’s sexual orientation and gender.
The 6-to-3 decision came in response to three consolidated cases: Bostock v. Clayton County and Altitude Express v. Zarda, both dealing with an employee fired because of their sexual orientation, and R.G. & G.R. Harris Funeral Homes v. EEOC, a case involving a transgender woman.
The majority opinion was written by Justice Neil M. Gorsuch, who argued that employees fired “merely for being gay or transgender” would be protected by Title VII of the Civil Rights Act of 1964.
President of the U.S. Bishops’ Conference, Archbishop Jose Gomez, said that “the U.S. Supreme Court has effectively redefined the legal meaning of ‘sex’ in our nation’s civil rights law.” He added: “This is an injustice that will have implications in many areas of life.”
In contrast, Father James Martin SJ, editor of the Jesuit magazine America, said that Catholics should “rejoice” over the decision.
Catholics can rejoice over the @Scotus ruling, barring discrimination against LGBTQ people in the workplace. As the Catechism says, “Every sign of unjust discrimination” should be avoided (#2358). What kind of Catholic would want a gay person to be discriminated against?… pic.twitter.com/dY9oguS2gE
— James Martin, SJ (@JamesMartinSJ) June 15, 2020
Many Catholics, however, fear the decision could impose restrictions on religious freedom; concerns which Justice Gorsuch’s opinion was keen to allay. Gorsuch argued that because the employers involved in the consolidated cases were not arguing that application of Title VII would “infringe their own religious liberties,” it remains the case that “employers in other cases may raise free exercise arguments that merit careful consideration”.
Justice Samuel Alito’s dissent, though, argued that the Supreme Court’s decision still risked “compelling a religious organization to employ individuals whose conduct flouts the tenets of the organization’s faith”. Justice Alito also highlighted that the ruling on transgenderism may be used to force people and institutions to accept the “presence of individuals whom they regard as members of the opposite sex” in same-sex toilets, locker rooms and college dormitories. Justice Alito said the ruling amounted to judicial “legislation” that “may have effects that extend well beyond the domain of federal antidiscrimination statutes.”
The prominent Catholic jurist Robert P. George, who publicly supported President Donald Trump’s decision to nominate Justice Gorsuch to the Supreme Court, agreed with Justice Alito’s assessment and said that there is “no way to avoid the conclusion that the argument [Justice Gorsuch] bought is sophistical and the position he endorsed is untenable.” George argued that the “ruling (further) politicizes the judiciary and undermines the very thing courts exist to uphold: the Rule of Law.”
Ryan T. Anderson, who helped co-author a book with George defending traditional marriage, however, emphasised that the key issue was not judicial activism:
People keep saying the biggest problem with yesterday’s ruling is the violation of separation of powers, or that it was legislating from the bench. Those are problems. But not the biggest. The biggest problem is that the Court has imposed a harmful gender ideology on the nation.
— Ryan T. Anderson (@RyanTAnd) June 16, 2020
The New York Times’ Ross Douthat implied that judicial activism was itself in large part a product of the inaction of Congress:
There’s only one theory of the separation of powers you need to understand the American system: Power flows to branches of government that are capable of and interested in using it, and away from those that aren’t.
— Ross Douthat (@DouthatNYT) June 15, 2020
A number of Catholic scholars focussed their gaze on the ideological divide between social conservatives and the Republican judges they have helped to appoint. Patrick Deneen, who has long noted a tension between social conservatism and the Ivy League “class” of judges, said:
Remind me again why progressives so fiercely oppose Republican judicial nominees? They should know by now that their allegiance to their class will always trump any purported social conservatism.
— Patrick Deneen (@PatrickDeneen) June 15, 2020
The Catholic writer J.D. Vance argued that the decision was part of a longstanding “betrayal” of social conservatism by originalist judges:
The conservative legal movement has accomplished two things: libertarian political economy (enforced by judges) and betrayal of social conservatives and traditionalists.
— J.D. Vance (@JDVance1) June 15, 2020
Vance’s friend, Rod Dreher, author of the Benedict Option, wrote a scathing review of the Supreme Court’s decision in the American Conservative. “It is hard to overstate the magnitude of this decision, and the size of the loss to religious and social conservatives,” he wrote.
“Gosh, President Trump, thank you. You really came through there. I’m being sarcastic, of course. The last reason, though, why religious conservatives should grit their teeth and vote for Trump anyway has now been blasted to smithereens by this decision written by a Trump justice. And not just a Trump justice, but the paradigmatic Trump justice, the man whose place on the Supreme Court was meant to justify religious conservatives turning a blind eye to Trump’s many other failures. This is what ‘but Gorsuch’ means. Those words are like ashes in the mouth today.”
As part of this damning assessment, Dreher cited religious liberty expert, Professor Douglas Laycock, who told the Washington Post yesterday that the Supreme Court’s decision “will end all legislative bargaining over religious liberty in the gay-rights context.” Laycock added: “There is no longer a deal to be had in which Congress passes a gay-rights law with religious exemptions; the religious side has nothing left to offer.”
Russell Moore, president of the Southern Baptist Convention’s Ethics & Religious Liberty Commission, agreed with this assessment. He told the New York Times that the decision will have “seismic implications” and trigger years of lawsuits for religious organizations because, whilst there is “a common assumption in secular America that as the culture changes that evangelicals and Roman Catholicism and other forms of religion will morph and change along with it,” the tension between secular culture and “countercultural” faiths will actually only grow over time.
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