Category archives: The Courts

The Silence of the Libs in Bostock

by Peter Sprigg

July 14, 2020

I, together with colleagues, have already commented several times on the outrageous opinion authored by Supreme Court Justice Neil Gorsuch in the case of Bostock v. Clayton County. (See an initial response co-authored by Mary Beth Waddell, another here, and separate pieces analyzing the problems with the decision regarding sexual orientation and gender identity.)

Gorsuch, together with Chief Justice John Roberts and the Court’s four most liberal justices (Ginsburg, Breyer, Sotomayor, and Kagan), ruled that the prohibition on discrimination “because of … sex” found in the Civil Rights Act of 1964 extends also to discrimination based on “sexual orientation” and “gender identity.” The decision leapfrogged the democratic process by granting to homosexual and transgender persons special protections not granted by a majority of states nor by Congress, despite proposals to do so going back decades.

The three dissenting justices produced two dissenting opinions. Justice Samuel Alito wrote one with which Justice Clarence Thomas joined, while Justice Brett Kavanaugh wrote separately. They did a thorough job of dismantling Justice Gorsuch’s astonishing claim that he was merely interpreting the plain language of the 1964 statute in granting this sweeping victory to the LGBT movement. Between them, the 82 pages of dissent were two and a half times as long as the 33-page Gorsuch opinion.

But what I found in some ways even more interesting was what the four liberals who concurred with Gorsuch said.

Nothing.

Not one of the Court’s four most liberal justices wrote a single word in concurrence. None saw fit to wax eloquent about what the decision would mean for Americans who identify as LGBT—ironically, only the two dissenters did that. Justice Alito wrote:

The updating desire to which the Court succumbs no doubt arises from humane and generous impulses. Today, many Americans know individuals who are gay, lesbian, or transgender and want them to be treated with the dignity, consideration, and fairness that everyone deserves.

Justice Kavanaugh went even further, implying that if he were a legislator, he would have voted for a bill to do what the Bostock decision did:

[I]t is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans. Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result.

Yet the four liberal justices, Ginsburg, Breyer, Sotomayor, and Kagan, wrote not a single word.

In my opinion, there is a profound cynicism in that. The silence of the liberals confirms, more eloquently than anything they could say, the chief criticism of their philosophy. To them, only the result matters, not the reasoning.

The exact same thing happened five years ago in the Supreme Court’s last “landmark” decision on LGBT rights—Obergefell v. Hodges, in which the Court declared unconstitutional state laws defining marriage as the union of one man and one woman. In that 5-4 decision, the Court’s “swing vote,” Anthony Kennedy, wrote a nebulous opinion declaring, “The Constitution promises liberty to all … to define and express their identity.” All four of the dissenting justices wrote separate opinions detailing their objections; but not one of the liberals wrote a concurring opinion.

A few days later, a writer in the liberal New Republic hit upon why, pointing out that Kennedy’s “opinion in Obergefell is, logically speaking, kind of a disaster.” The writer, Brian Beutler, believed that “his ultimate holding was the correct one. But the price of admission for Court’s four liberals was to join a muddled, unconvincing opinion.”

Beutler seemed to shrug and say there was no other choice:

But as long as Kennedy is the Court’s “swing” justice, he will frequently be the liberal justices’ best hope for good outcomes, and they will feel compelled to defer to him, even if he’s unable to marshal arguments that stand the test of time.

Justice Kennedy has now retired—but in Bostock, it was Justice Neil Gorsuch who did the liberals’ dirty work for them.

Justice Gorsuch’s Bostock opinion was of a completely different style from Kennedy’s in Obergefell. Gorsuch claimed to be strictly applying the principles of “textualism,” a judicial philosophy most closely associated with the late Justice Antonin Scalia. According to Gorsuch, his decision “follows ineluctably from the statutory text.”

Of course, Justice Samuel Alito demolished this claim in his dissent, writing:

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.

In any case, the Supreme Court’s four most liberal justices are not “textualists.” A writer for Slate, Richard L. Hasen, expressed the liberal contempt for “textualism” and its sibling “originalism” in 2018, decrying the “bankruptcy” of “a kind of formalism which resuscitates the moribund idea that judges do not make law in part through value judgments, but instead find law through neutral principles.” (The Constitution, I guess, is “moribund”—either dying or obsolescent.)

However, Hasen noted, “liberal lawyers trying to get progressive results at the Supreme Court have already begun trying to pick off conservative justices through a calculated embrace of the theories.” In fact, he calls this “the model for what liberal lawyers are going to need to do,” noting that “because at least some of the [conservative] justices actually believe they are applying neutral principles … , they can be persuaded to vote against conservative positions . . .”

This approach seems to have worked in the Bostock case, “picking off” both Justice Gorsuch and Chief Justice John Roberts.

The complicity of the four liberal justices in this cynical strategy is demonstrated by their silence.

SCOTUS Delivers for Religious Schools

by Joseph Backholm

July 10, 2020

The Supreme Court had some misses this term, but not when it comes to religious schools. Two decisions in the past two weeks have greatly improved the landscape for religious education, including Christian education.

In Espinoza v. Montana Department of Revenue, the Court said religious schools cannot be excluded from that state’s private school tax-credit program. Previously, the Montana Supreme Court, citing a state constitutional provision known as a Blaine Amendment, said that religious schools could not be the beneficiaries of a public tax benefit—because they are religious. However, the U.S. Supreme Court said that provisions excluding religious schools solely because they are religious violated the Free Exercise Clause of the First Amendment.

In doing so, the Court again emphasized that the Constitution does not require government and religion to remain disconnected in every respect, only that government treat every religious organization and faith similarly.    

The impact of this decision is significant. Currently, 37 states have language similar to Montana’s anti-aid Blaine Amendment. But 26 states have school choice programs in the form of vouchers, tax credits, or education savings accounts. Until last week, parents in most of the 26 state school choice programs were prohibited from using them to attend a Christian school. No longer.

In addition to expanding opportunities for school programs that already exist, parents and churches in states with no school choice laws now have reasons to start that conversation in their state legislature. Not only does this expand options for parents, it provides opportunities for churches to start new schools.   

In the second piece of good news, the Supreme Court affirmed the right of religious schools to make employment decisions free of government intrusion. In Our Lady of Guadalupe School v. Morrissey-Berru, former teachers had sued two religious schools claiming that they had been discriminated against when they were released from their jobs. The Court held that the First Amendment prohibited the Court from even hearing the teachers’ claims. Why? Because if a court were to regulate how religious organizations hired and fired, it would effectively be determining how a religious organization is run.

In a 7-2 decision, the Court said such oversight was outside their constitutional jurisdiction. Specifically, they said that these teachers fell under a “ministerial exception” to non-discrimination laws which had previously been used to protect a church’s right to hire and fire ministers. 

As a result of this decision, religious schools may develop a new habit of describing Christian educators as ministers in their employment documents. Regardless, the Supreme Court has again recognized the right of religious organizations to be religious, free from the demands of a swiftly moving cultural tide. 

Providentially, at a moment where the need for cultural renewal has never been greater, the opportunity for Christian education has never been better.

Joseph Backholm is Senior Fellow for Biblical Worldview and Strategic Engagement at Family Research Council.

The Court for the Common Good?

by Katherine Beck Johnson , Arielle Leake

July 6, 2020

The recent ruling in Bostock v. Clayton County has once again brought the judiciary’s role to the forefront of public discussion. As Justice Alito pointed out in his dissent, what the Court did in Bostock was legislate. By redefining sex to mean “sexual orientation” and “gender identity,” they changed the meaning and application of the 1964 Civil Rights Act without Congress even lifting a finger. However, this is not the first time that the Court has overstepped its bounds as the independent judiciary. In Obergefell v. Hodges, the Court took it upon itself to redefine “marriage.” In Roe v. Wade, they essentially created a “constitutional right” to have an abortion.

What is the proper role of the courts? President Reagan summed it up well in his speech at Justice Anthony Kennedy’s swearing-in:

The role assigned to judges in our system was to interpret the Constitution and lesser laws, not to make them. It was to protect the integrity of the Constitution, not to add to it or subtract from it—certainly not to rewrite it. For as the framers knew, unless judges are bound by the text of the Constitution, we will, in fact, no longer have a government of laws, but of men and women who are judges. And if that happens, the words of the documents that we think govern us will be just masks for the personal and capricious rule of a small elite.

Each of the three federal branches is equal, independent, and tasked with fulfilling its role under the Constitution. According to Article III of the Constitution, the judicial branch’s role is to interpret and apply the “Constitution, the laws of the United States and treatises made, or which shall be made, under their authority.” The Court checks the other two branches through judicial review. However, its primary function—as the Framers intended and as evidenced by the Constitution, The Federalist Papers, and other documents from that time—is to act as the federal government’s enforcement arm by applying the laws. It is not the job of unelected judges to make laws or change laws, as they have done in Bostock, Roe, and Obergefell. Instead, they are charged with basing their judgments on the objective meaning of laws and the Constitution.

Originalism and textualism are usual tools of judicial interpretation supported by many conservatives. However, there is a new theory beginning to emerge. The theory was proposed by Adrian Vermeule, a conservative professor of constitutional law at Harvard, and has been labeled “common-good constitutionalism.” He describes this approach as being “based on the principles that government helps direct persons, associations, and society generally toward the common good.” He advocates for reading into the “majestic generalities and ambiguities” of the Constitution, principles that advance the “common good.” Rather than focusing on the individual, he says the focus would be on a “powerful presidency ruling over a powerful bureaucracy” that will advance society’s needs as a whole, even if it overrides an individual’s private rights. Vermeule says originalism has served its purpose, and now conservatives should begin advocating this “authoritative rule for the common good” to guarantee that ideas such as life, family, and natural marriage are elevated and promoted in society. He says this view has a basis in the Constitution, but instead of being wedded to the original meaning, judges and other government officials will read morality into the text.

It is important to think about all of the implications of various judicial philosophies. While common-good constitutionalism has not become mainstream yet, it is beginning to pick up followers in conservative legal thought—especially after Justice Gorsuch’s disappointing holding in Bostock. Yet, many staunch originalists and textualists have fought back against Professor Vermeule’s theory, arguing that a judge must always remain neutral. It is too soon to know whether a new era in conservative judicial interpretation has arrived.

Katherine Beck Johnson is Research Fellow for Legal and Policy Studies at Family Research Council.

Arielle Leake is a Policy & Government Affairs intern at Family Research Council.

Bostock and Gender Identity: Gorsuch Cancels Male and Female

by Peter Sprigg

July 2, 2020

In a recent blog post, I noted that virtually all critics of Justice Neil Gorsuch’s majority opinion in Bostock v. Clayton County identified his misinterpretation of the word “sex.” The Civil Rights Act of 1964 forbids employment discrimination “because of sex,” and Justice Gorsuch interpreted “sex” to incorporate “sexual orientation” and “gender identity” as well.

I went further and noted that not only is “sexual orientation” not the same as “sex” or merely a part of it, but it is a different type of personal characteristic. Sex is an objective characteristic determined by biology, while “sexual orientation” is a somewhat vague concept that includes a fluid combination of feelings, behaviors, and self-identification.

The same can be said of “gender identity”—it, too, involves a mix of feelings (“gender incongruity” or “gender dysphoria”), behaviors (“gender expression” in the form of clothing, hairstyles, makeup, etc.), and self-identification (being “transgender,” “non-binary,” or “gender fluid,” for example).

However, the “gender identity” portion of Justice Gorsuch’s decision is even more muddled, and has even more radical implications, than the sexual orientation portion.

Bathrooms, Locker Rooms, and Dress Codes

For example, Justice Gorsuch dismisses concerns about “sex-segregated bathrooms, locker rooms, and dress codes,” saying those were not at issue in the Bostock case. Justice Samuel Alito’s dissent, however, declares, “The Court’s brusque refusal to consider the consequences of its reasoning is irresponsible.”

Although the majority opinion is 33 pages long, the heart of its reasoning is found in this simple hypothetical:

Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a … cause of his discharge.

(The flaw in this, as Alito and others point out, is that the fired employee in this hypothetical situation differs from the retained employee not in only one characteristic, but in two—both his sex and his sexual orientation are different.)

But let’s look at how the exact same analogy would apply to showers and locker rooms—perhaps made available as part of a fitness center provided by a company as a fringe benefit to its employees. Here is Gorsuch’s logic (with only the italicized portion changed from his opinion):

Consider, for example, an employer with two employees, both of whom seek to use a locker room and showers in which the employee may see female employees in the nude and may appear nude in front of female employees. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he looks at female employees nude in the locker room and shower and exposes his own nude body to female employees, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a … cause of his discharge.

This is not some generalized slippery slope argument—this is the precise (indeed, irresistible) logic of Gorsuch’s opinion.

But note something important: this outcome is not dependent on the employee’s “gender identity.” Under the Gorsuch logic, any male employee has the right to observe his female colleagues nude, and to expose his own nude body to them, in the locker room or shower. To limit this privilege only to males who identify as female would be, ironically, to “discriminate” on the basis of “gender identity.”

Lying About Sex

While this is the inescapable logic of Gorsuch’s opinion, he shies away from it in his actual discussion of “gender identity.” Here is the hypothetical he presents with respect to that issue:

Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.

His previous hypothetical involving sexual orientation was (somewhat) more straightforward—because a “man” (a “male employee”) is treated differently from (what Gorsuch considers to be) a similarly situated “woman” (a “female colleague”), there is (Gorsuch argues) discrimination “because of sex.”

But in the gender identity hypothetical, there is no “man” or “woman,” no “male” or “female” employee at all—only a person “identified as male at birth” and one “identified as female at birth,” each of whom “now identifies as female.”

Earlier in the opinion, Justice Gorsuch had said that “we proceed on the assumption that [the word] “sex” [in 1964] signified … biological distinctions between male and female.” To be consistent with that “assumption,” the first employee in the hypothetical should have been described as “a transgender person who is male but who now identifies as a female.” That language, however, would have been offensive to transgender activists, who insist that self-identification defines what a person really “is.”

If Justice Gorsuch had been consistent (and honest)—referring to “a transgender person who is male but who now identifies as a female”—it would have cast the “discrimination” at issue in a different light. When an employer (such as Harris Funeral Homes, in this case) parts ways with an employee such as Anthony Stephens (because he wanted to identify as female and be known as “Aimee”), it is not because of the employee’s sex, but because the employee is lying about his sex.

#SexNotGender

Justice Gorsuch scrupulously avoided any mention of the LGBT movement and its philosophical assumptions in his opinion, insisting that he was merely applying literally the language of the 1964 Civil Rights Act. However, the inconsistency of his two hypotheticals shows that it is impossible to discuss “gender identity” without addressing fundamental concepts of what is true and what is real.

Outside the Supreme Court on the day of oral arguments, supporters of Harris Funeral Homes in the gender identity case (which included radical feminists from the Women’s Liberation Front, or WoLF) carried signs with the hashtag “#SexNotGender.” This carried two layers of meaning. The most basic relates to the court’s interpretation of the Civil Rights Act—discrimination because of “sex” refers to biological sex, and it does not extend to “gender” (identity). At a more philosophical level, “Sex Not Gender” implies support for the view that the objective, physical reality of one’s biological sex is a more reliable indicator of whether one is “male” or “female” than the subjective, psychological construct of “gender identity.”

Which is more important—“sex” or “gender identity?” This is a genuine debate, and Americans have a right to hold and argue for whichever opinion they believe in. The problem is, it is impossible to be neutral on this point—anyone who uses the categories of “male” or “female” at all must make a choice how to define them. The Bostock opinion chooses “gender identity,” and forces that choice on private employers, even though Congress plainly did not do so.

The Civil Rights Act made it unlawful for an employer to discriminate “because of sex.” The Bostock decision goes much further—essentially making it unlawful for an employer to act on the belief that “sex” is real. A law that was intended to protect the male and female sex is being interpreted to abolish (biological) sex altogether.

A Loss for Women and Children at the Supreme Court

by Katherine Beck Johnson

July 1, 2020

Earlier this week, the Supreme Court issued its much-anticipated ruling in June Medical Services v. Russo, the first major abortion case the Court has taken up since President Trump appointed Justices Gorsuch and Kavanaugh. The Court’s ruling struck down Louisiana’s law requiring abortionists to have hospital admitting privileges. While Justices Gorsuch and Kavanaugh were both in the dissent, Justice Roberts proved to be the disappointing fifth vote that struck down the common-sense law.

Louisiana’s admitting privileges law was in the best interest of women. If something were to go awry during an abortion, the abortionist would be able to get the woman admitted to the hospital and explain to her doctors precisely what had occurred. If the abortionist does not have admitting privileges, the woman might be forced to call an ambulance and explain what had happened herself—a heavy burden to place on the woman, and quite impossible if she is unconscious. Requiring admitting privileges is a common-sense regulation that applies to every other outpatient surgical center in Louisiana. Nevertheless, liberal justices and Justice Roberts were unwilling to uphold the requirement when applied to abortion clinics.

In a previously decided case, Whole Woman’s Health v. Hellerstedt, Texas’s admitting privileges law and a few other abortion regulations had been at issue. The Court held that Texas’ law created an undue burden. Justice Kennedy provided the decisive fifth vote that struck down the pro-life and pro-woman law. Justice Roberts dissented.  

Whole Woman’s was a poorly decided case that needed to be overturned. The Court had the chance to overturn it in June Medical with Justice Kennedy off the Court and two new Republican-appointed justices. Instead, once again, the Court struck down a law aimed at saving unborn lives and protecting women’s health.  

Justice Roberts dissented in Whole Woman’s, yet he voted with the liberal justices in June Medical to strike down Louisiana’s admitting privileges law. Interestingly, in his concurrence, Justice Roberts said that he still agrees that Whole Woman’s Health was wrongly decided, yet said he is bound by stare decisis to uphold the law. Stare decisis is a legal principle that means you decide a case bound by precedent, regardless of whether the precedent is correct. Roberts claims that “for precedent to mean anything, the doctrine must give way only to a rationale that goes beyond whether the case was decided correctly.” Yet, Roberts has not felt bound by stare decisis in plenty of his other opinions, including Citizens United v. FEC. When it comes to abortion, however, Justice Roberts suddenly feels his hands are tied. Regardless, if a legal precedent is wrong, he and the Supreme Court should do the right thing and overturn it. With women and children’s lives on the line, Justice Roberts chose to adhere to a precedent he acknowledges is wrong.

Justice Roberts’ adherence to stare decisis is problematic for the future of abortion law at the Supreme Court. If Justice Roberts thought adhering to a five-year-old precedent of knocking down hospital admitting privileges is so embedded in our country’s jurisprudence to deserve stare decisis, he almost certainly views Roe v. Wade and Casey v. Planned Parenthood as deserving of stare decisis, even if he disagrees with the opinions. This indicates that while judicial nominees are extremely important, they can be unreliable. It is no longer enough for the pro-life movement to depend on Republican-appointed justices and hope they will do the right thing on abortion.

Women and children lost at the Supreme Court on Monday. The abortion industry won. Once again, abortionists proved that rules don’t apply to them; they are exempt from laws. Despite this disappointing loss, the pro-life movement should not lose hope or remain discouraged. The fight for civil rights will continue—with or without Justice Roberts on our side.

Gorsuch Misses Meaning of Sex and Sexual Orientation

by Peter Sprigg

June 24, 2020

Supreme Court Justice Neil Gorsuch has rocked the legal world in a set of three cases consolidated under the name of Bostock v. Clayton County, Georgia by declaring that the Civil Rights Act of 1964 outlawed employment discrimination on the basis of sexual orientation and gender identity.

Gorsuch accepted the argument that the law’s prohibition of discrimination “because of … sex” demands this result, because “homosexuality and transgender status are inextricably bound up with sex.”

However, Justice Alito pointed out in dissent, “‘Sex,’ ‘sexual orientation,’ and ‘gender identity’ are different concepts.” When the Civil Rights Act was adopted, Alito said, “[I]t was as clear as clear could be” that discrimination because of sex “meant discrimination because of the genetic and anatomical characteristics that men and women have at the time of birth.”

Virtually all the critics of the Bostock decision have cited this problem—that Justice Gorsuch erred in his interpretation of the word “sex” in the Civil Rights Act (or of the entire phrase, “discriminate because of sex.”)

I would go even further. I would argue that Justice Gorsuch fails to understand “sexual orientation” and “gender identity” as well.

Let’s look at the concluding, summary sentence of his opinion:

An employer who fires an individual merely for being gay or transgender defies the law.

My question is not just, “What does ‘sex’ mean?” but, “What does ‘being gay or transgender’ mean?”

The answer is not as obvious as it may seem. As I have been pointing out for years in my writings on human sexuality, neither sexual orientation nor gender identity are unitary concepts. Both, depending on the context, may refer to a person’s feelings, a person’s behavior, a person’s self-identification, or some combination thereof.

In the case of sexual orientation, a person may express romantic or sexual attractions toward persons of the same sex (feelings); a person may engage in sexual acts or sexual relationships with a person or persons of the same sex (behavior); or a person may either think or say publicly, “I’m gay” (self-identification).

While many may assume that all three elements of sexual orientation go hand in hand, it’s abundantly clear from social science research that they are not always consistent with each other in one person. A person with same-sex attractions may choose not to engage in homosexual conduct and may not identify publicly as “gay.” Is it meaningful—or respectful—to insist that such a person really “is” gay? A person may both experience same-sex attractions and engage in homosexual conduct, but may still choose not to identify as “gay.” Or a person might experience same-sex attractions and self-identify as gay, but choose to remain sexually abstinent. It’s also well-known that in unique social contexts—such as prisons—some individuals may engage in homosexual conduct even though they are neither attracted to the same sex nor “gay”-identified.

How many of the three elements must be present to say that someone “is” gay? All three? Two of the three?

In Justice Gorsuch’s opinion, he seems to lean toward attractions (feelings) as the defining characteristic—he speaks of a man who is “attracted to men” being discriminated against “for being homosexual.” (LGBT activists do something similar when say, as shorthand, that people should not be discriminated against for “who they love.”) Ironically, however, the discrimination alleged by the two plaintiffs in the sexual orientation cases reportedly occurred when they publicly identified themselves as gay. Gerald Bostock did so implicitly by joining a gay softball league; and Donald Zarda doing so explicitly in a comment about his sexual orientation to a customer.

Yet, as I have also often pointed out, when people (such as socially conservative Christians) express disapproval of homosexuality, it is virtually always homosexual behavior which is considered most problematic. “Discrimination” because of a person’s feelings alone would be hard to pull off, given that feelings are invisible. It is only when they are manifested overtly in sexual behavior—or in public self-identification which is taken as an indicator of sexual behavior—that “discrimination” is even possible. (I notice that Justice Gorsuch did not hypothesize about disparate treatment of a male employee and a female employee, “both of whom have sex with men.” Perhaps he would have considered it unseemly.)

LGBT activists would argue that discrimination based on any of these grounds—homosexual attractions, behaviors, or self-identification—should be illegal. But remember, the case was about the meaning of discrimination “because of sex” in a 1964 law—not about what LGBT activists wish was the law.

The fact that “sexual orientation” is defined by a shifting and uncertain mix of feelings, behaviors, and self-identification is one more proof that not only is it not the same characteristic as sex, it is not even the same type of characteristic as sex. “Sex” is not defined by feelings, behaviors, or self-identification. It is defined by biology—as Justice Alito said, by “the genetic and anatomical characteristics that men and women have at the time of birth.”

The Civil Rights Act simply does not apply.

Why Bostock Will Never Have the Final Word On Human Sexuality

by David Closson

June 19, 2020

Our rapidly changing moral landscape presents a daunting challenge for Christians committed to biblical sexual ethics. The LGBT movement continues to challenge centuries of norms concerning the family, marriage, and human sexuality. And a recent Supreme Court decision means legal definitions and understanding regarding human sexuality are changing, too.

Secular progressives often criticize conservative Christians for their alleged obsession with sexual ethics. But secular and progressive elites are increasingly forcing the issue, insisting everyone embrace their worldview and the full spectrum of LGBT policy positions or face social ostracizing, public shaming, loss of jobs, or other increasingly dire consequences. Those in positions of cultural and political influence are willing to use the coercive power of government to accomplish their political objectives. This was evident this week in the U.S. Senate as Democrats argued for the immediate passage of the Equality Act, legislation that represents one of the greatest threats to religious liberty ever introduced in Congress. It would gut our nation’s flagship religious liberty law, the Religious Freedom Restoration Act, which was passed nearly unanimously by Democrats and Republicans alike.

Earlier this week, the U.S. Supreme Court handed down a 6-3 decision in Bostock v. Clayton County. The majority ruled that employment discrimination “on the basis of sex”— prohibited by Title VII of the Civil Rights Act of 1964 should be understood to include actions based on sexual orientation and gender identity. By reinterpreting the statute in this way, the Court essentially rewrote civil rights law.

Many conservatives were surprised by the decision and considered Justice Neil Gorsuch’s majority opinion to be a betrayal of the originalist and textualist approach he had previously insisted guided his judicial philosophy. As both Justices Samuel Alito and Brett Kavanaugh pointed out in their respective dissents, the majority opinion authored by Gorsuch imposed a meaning that would have been foreign to those who authored the Civil Rights Act and ignored the plain meaning of the statute.

The consequences of the Bostock decision will play out for many years. In the immediate future, there are significant questions about how the ruling will affect religious liberty. Can religious institutions such as colleges and seminaries continue to have have sex-separated dormitories and housing? Are sex separated private spaces like bathrooms, locker rooms, and changing facilities now discriminatory? Will women athletes be forced to compete against biological males in both scholastic and professional sports? Will employers be forced to cover treatments and surgeries that are not medically necessary and that are in opposition to their religious beliefs on human embodiment?  

Originalism and textualism are methods of interpreting the law. But as theologically conservative Christians, we hold to a form of originalism and textualism when reading and interpreting Scripture—the historical grammatical method. In other words, we believe God’s Word is authoritative, infallible, and inerrant. Because the Bible is “breathed out” by God, followers of Christ are called to obey and align their lives with it (2 Tim. 3:16). In order to obey and align our lives with the Bible, we must read and interpret it.

The historical grammatical method of interpretation means we take seriously the grammar and syntax of the words and phrases that appear in the Bible because we want to know what the text says and what it means. We also want to place the text in its historical context. The Bible was written in a culture that is very different than our own. To understand many of the stories, we need some understanding of the ancient world in which it took place. Although this process of reading the Bible takes effort, there is no other faithful way to read Scripture.

As theologically conservative Christians, we know our views on marriage and sexuality are increasingly unfashionable and go against the cultural zeitgeist. But we hold to these views anyway, because we believe the Bible’s teachings about marriage and human sexuality are clear.

Transgender activists posit a distinction between the biological reality of sex and the subjective, internal feeling of gender identity. The biblical worldview, however, affirms the goodness of the material creation and the human body. In fact, the doctrines of creation, incarnation, and bodily resurrection provide strong theological affirmation of our physical bodies. Genesis 1:31 says that everything God created, including the human body, is “very good.” In other words, our bodies (including our maleness or femaleness) are essential, integral components of who we are.

In a world disordered by the fall, the goodness of the body may be difficult for many to affirm, and the church should show grace to those who struggle with accepting their bodies. But Christians must also speak the truth in love and stand on our convictions, which biology and anatomy support.

Christians cannot and should not compromise their Bible-informed beliefs about human sexuality. Why? Because we believe in the authority of God’s Word. And because we believe the Bible’s teachings are what is best for society and individual flourishing.

The real reason theologically conservative Christians disapprove of the LGBT movement has nothing to do with wanting to deny people rights or oppressing a group of people. Our convictions come from our compassion for them and our concern about the consequences of certain chosen behaviors. Both the Old and New Testaments prohibit homosexual conduct, and since God created us “male and female” (Gen. 1:27), we have no right to recreate ourselves any more than the clay has the right to tell the potter what to do (Is. 45:9).

As evidenced by the muted outcry to the Supreme Court’s decision on Monday—even among many conservative groups—conservative Christians are increasingly on the periphery when it comes to our convictions on human sexuality. Christians, especially pastors, will continue to face mounting pressure to compromise—or at least downplay—the Bible’s teaching on marriage and sexuality. However, we cannot compromise our beliefs because we are committed to Scripture. While the Court’s decision is deeply discouraging, we do not give up. We know that we are advocating and fighting for timeless truths revealed to us in Scripture.

So, let us continue to articulate a biblically robust, theologically informed perspective on how Christians think about the major issues facing our nation in order to promote the true flourishing of individuals and of society.

Supreme Court’s LGBT Ruling Is Not “the Law of the Land” - and Congress Should Act to Make that Clear

by Peter Sprigg

June 19, 2020

On June 15, in a set of three cases consolidated under the name Bostock v. Clayton County, the U.S. Supreme Court ruled that discrimination on the basis of “sexual orientation” or “gender identity” is a form of discrimination “because of … sex”—which was prohibited by the Civil Rights Act of 1964. Justices Samuel Alito and Brett Kavanaugh both wrote powerful dissents (Alito’s being joined by Justice Clarence Thomas) pointing out that the Court was effectively rewriting legislation (properly the role of Congress), not merely interpreting it, as the Court is supposed to do.

Some members of Congress have responded to the Bostock decision by calling it “the law of the land.” For example Rep. Bill Foster, an Illinois Democrat, issued a statement saying, “No American should face discrimination by an employer because of who they are or who they love, and I applaud the Court for … making that the law of the land.”

Even more troubling was a statement from Sen. Chuck Grassley, a Republican from Iowa and former chairman of the Senate Judiciary Committee. According to an article in Politico, he responded to the Court’s rewriting of the Civil Rights Act by saying, “It’s the law of the land. And it probably makes uniform what a lot of states have already done. And probably negates Congress’s necessity for acting.”

But is this true? Is Justice Neil Gorsuch’s opinion for the Court in Bostock now “the law of the land?”

The phrase “the law of the land” has ancient roots in the history of law. But in the United States, the term is explicitly defined by the U.S. Constitution. Article VI, Clause 2, states:

This Constitution, and the Laws of the United States … ; and all Treaties made … under the Authority of the United States, shall be the supreme Law of the Land . . .

That’s it. The Constitution, the “Laws of the United States,” and treaties constitute the “Law of the Land”—not Supreme Court decisions. While Supreme Court decisions may serve as binding precedent for the interpretation of the law for as long as those precedents stand, defenders of our system of government should always remember that only the written words of the Constitution, the laws, and treaties themselves are the actual “Law of the Land.”

Nevertheless, when the Supreme Court issues a ruling on constitutional grounds, it is sometimes referred to colloquially (but still inaccurately) as “the law of the land.” The reason is the relative difficulty of overturning such a decision. Generally speaking, the Supreme Court’s interpretation and application of the Constitution can only be overturned by a constitutional amendment or by a new decision of the Supreme Court. This is a difficult task, requiring the approval of two thirds of both Houses of Congress and three quarters of the states.

Many historic Supreme Court decisions, such as the 2015 Obergefell decision redefining marriage and the 1973 Roe v. Wade decision permitting abortion, were based on a reading (however strained) of the U.S. Constitution. The Court’s recent ruling in Bostock was different—it involved only the interpretation of a statute passed by Congress (the Civil Rights Act).

This is an important distinction. When a court—even the Supreme Court—misinterprets a statute, as it did here, not only is it not “the law of the land,” but it is fully within the power of Congress to correct the Court’s error by enacting a new law. In fact, Congress has done so on several occasions.

Sen. Grassley was wrong to say Bostock is now “the law of the land” —Congress writes our laws, not the Supreme Court. He was also wrong to say that “it probably makes uniform what a lot of states have already done.” Only a minority of states had made “sexual orientation” and “gender identity” protected categories in their state civil rights laws, and Congress had consistently refused to do so at the federal level, despite dozens of attempts.

In saying the decision “probably negates Congress’s necessity for acting,” Grassley may have been referring to the Equality Act—an LGBT rights bill approved by the Democratic-controlled House last year. Instead, Democrats are only accelerating their efforts to pass this sweeping bill, which goes well beyond the Supreme Court’s decision. Indeed, just yesterday, Senate Democrats were giving impassioned floor speeches about the need to foist the anti-freedom Equality Act on America—in their words, to override the “religious excuses” of the faithful.

The real “necessity for acting” that still lies with Congress is to correct the Supreme Court’s erroneous interpretation of the law, and preserve the power of Congress, not the Court, to write the “Laws of the United States.”

The Supreme Court Goes Rogue on Sex Discrimination

by Peter Sprigg , Mary Beth Waddell, J.D.

June 17, 2020

Earlier this week, the Supreme Court re-wrote Title VII of the Civil Rights Act of 1964 by holding that sexual orientation and gender identity are included in the statute. 

The majority opinion in Bostock v. Clayton County, written by Justice Neil Gorsuch, claims to be using a textualist approach, yet its analysis and holding prove otherwise.

Justice Samuel Alito concisely opened his dissent with the summary: “There is only one word for what the Court has done today: legislation.” Justice Alito aptly compared this opinion to a pirate ship sailing under a textualist flag.

He went on to state, “Many will applaud today’s decision because they agree on policy grounds…. But the question in these cases is not whether discrimination because of sexual orientation or gender identity should be outlawed. The question is whether Congress did that in 1964. It indisputably did not” (emphasis in the original).

Indeed, Justice Kavanaugh’s dissent seems to show sympathy for the policy outcome, yet he agreed that it is not within the Court’s constitutional boundaries to make this change.

Despite its improper analysis of other scenarios, the majority opinion properly makes reference to “an employer who fires a female employee for tardiness or incompetence or simply supporting the wrong sports team. Assuming the employer would not have tolerated the same trait in a man, Title VII stands silent.” Yet it does not carry this analysis through in the cases at hand. The proper analysis is whether or not an employer would fire a female employee for homosexuality or identification as the opposite sex, but would not fire a male employee for homosexuality or identification as the opposite sex.

This wrong legal analysis leaves many questions unanswered. In seeming acknowledgement of the policy Pandora’s box it has opened, the majority opinion acknowledges the Religious Freedom Restoration Act and the Ministerial Exception, but only to say that how either would be impacted by the decision is not currently before the court—thus inviting litigation. The Religious Freedom Restoration Act is under attack in Congress, and the scope of the Ministerial Exception is currently under consideration before the Court, so these legal protections for religious freedom  provide little solace.

Justice Alito rightly points out that Congress has repeatedly refused to include sexual orientation or gender identity in Title VII or other federal civil rights statutes. Language to do so is included in the Equality Act and other bills which are introduced year after year without success. Yet, with its decision, the Court has essentially enacted the employment provisions of the Equality Act.

Sexual orientation and gender identity nondiscrimination laws are unjustified in principle, because these characteristics are not inborn, involuntary, immutable, innocuous, or in the U.S. Constitution—unlike race and sex. In many situations, such laws pose a threat to religious liberty, which is protected by the Constitution. Not only that, but these laws pose a threat to women and, even those who identify as homosexual or transgender.

Justice Alito acknowledges numerous areas where the majority opinion could have serious implications:

  • Religious employers could face litigation and be compelled to “employ individuals whose conduct flouts the tenets of the organization’s faith [which] forces the group to communicate an objectionable message.”
  • Transgender identified individuals could be entitled to use the bathroom, locker room, etc. of their choice.
  • Women athletes could be forced to compete against athletes who are biologically male in both scholastic and professional sports.
  • Schools could be prevented from having sex-separated dormitories and housing.
  • Employers could be forced to cover treatments and surgeries that are not deemed medically necessary and, for religious employers, are in opposition to their faith tenets.
  • Freedom of speech, as it relates to both pronoun usage and employees’ ability to express their beliefs about marriage, family, and human sexuality, is now called into question.
  • The standard of review by which courts judge claims related to sexual orientation and gender identity discrimination could be upgraded to a stricter standard of review, like that used for sex discrimination.

Sadly, the Court has yet again usurped congressional power to achieve a desired policy goal which Congress has repeatedly refused to implement, and which is detrimental to society. 

With the Court’s invitation for litigation, the American Civil Liberties Union expects hundreds of cases to be filed.

Now, we wait to see how this will play out in future litigation and how Congress will respond to this judicial assault upon its constitutional prerogatives.

Mary Beth Waddell is Senior Legislative Assistant at Family Research Council. Peter Sprigg is Senior Fellow for Policy Studies at Family Research Council.

Is Judge Duncan an “Ultra-Conservative” or Just an Originalist?

by Katherine Beck Johnson

June 16, 2020

The Guardian put out a piece attempting to criticize Judge Stuart Kyle Duncan on the Fifth Circuit Court of Appeals. The piece only succeeded in highlighting the author’s fundamental misunderstanding of the role of a judge. It is not the role of a judge to weigh into what the law should be, but rather the judge interprets what the law is, the law enacted by the people’s representatives. 

Many of President Trump’s judicial nominees are originalist and textualist. While these may be considered “conservative” judicial philosophies, the result is not always conservative policy goals. If the judge is interpreting a “liberal” law, the text will lead to a result that is liberal. The basic goal of originalism and textualism is that the people, not unelected judges, say what the law ought to be. The judge’s role is to say what the law is, or what the people enacted through their elected officials. Therefore, the Guardian’s fearmongering piece claiming that the judges appointed by President Trump have any role in abortion law is false. It isn’t Trump-appointed judges, it’s the people that have the role of saying what abortion laws should prevail in their states. Judge Duncan is no exception to this rule.

The piece quotes the legal director at Alliance for Justice saying, “For the overwhelming number of cases, the constitutional rights of the people in Texas, Louisiana and Mississippi will be made by Kyle Duncan and the other ultra-conservatives on the fifth circuit.” This is false. The rights of the people will be made by the people—not the judges on the fifth circuit.

While a lawyer in private practice, Judge Duncan advocated for Louisiana’s law that is currently before the Supreme Court: June Medical v. Russo. This law requires abortionists to have admitting privileges at a nearby hospital. It’s a commonsense law that demands abortion facilities abide by the same rules as all other outpatient surgical centers. When Judge Duncan was in private practice, he defended this law on behalf of the state of Louisiana until he became a judge. The Fifth Circuit, where Judge Duncan now sits, upheld this law. Judge Duncan followed proper judicial protocol and recused himself from the case because he had advocated for Louisiana when he was in private practice. He has clearly conducted himself in an ethical manner on the Fifth Circuit.

The Guardian piece is yet another example of a judge being attacked for their faith, as the piece specifically points out Judge Duncan’s Catholic faith. In America, one’s religion does not prevent them from being selected for a job. Judge Duncan’s history advocating for religious liberty is another aspect of him that the piece viewed as problematic. A judge that recognizes our first freedom, our freedom of religion, is not problematic. Judge Duncan understands just how important religious liberty is to our Constitution.

The Constitution makes it clear that the role of a judge is to say what the law is and not what the law ought to be. The people of the United States are the ones charged with saying what the laws that dictate their lives should be. Judge Duncan knows his role as a judge and has done a wonderful job. We need more judges like Judge Duncan.

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