Reflections On The Supreme Court’s LGBTQ Bostock Decision

Jul 25th, 2020 | By | Category: Featured Issues, Politics & Current Events

In June the Supreme Court handed down its major 2020 decision on LGBTQ rights in the workplace.  Bostock v. Clayton County, Georgia involved a man named Gerald Bostock—by all accounts an exemplary worker with a decade on the job—who was fired for conduct “unbecoming” a government employee shortly after he had started participating in a gay softball league. The Supreme Court was asked to decide whether Title VII of the 1964 Civil Rights Act barring employment discrimination “on the basis of sex” protects people who are discriminated against because of sexual orientation and gender identity. [Today, there are about 8.1 million LGBTQ workers in America.]  By a 6-3 margin, the court ruled that it does. Written by Associate Justice Neil Gorsuch, the opinion attempted to find a middle ground between LGBTQ rights and religious freedom issues in 2020 America.  The critical question of the moment is did Gorsuch succeed?

 

As Daniel Bennett of John Brown University argues, “Gorsuch ruled the way he did because of his commitment to the conservative legal philosophy called textualism. This is the philosophy famously embraced by the conservative justice Antonin Scalia. The philosophy says that judges ought not to extrapolate principles from laws and rule based on these extrapolations. Nor should they try to imagine the intents of the many lawmakers who bargained and bartered their way to the passage of a bill. Those approaches leave too much leeway for creative interpretation and judicial activism. Judges should rather, according to Scalia and Gorsuch, restrict themselves to the plain, ordinary meaning of the text of the law. They should ask, what do the words say?, and make limited rulings based on that.”  You can see how textualism works in Gorsuch’s opinion. The matter was simple, he contended, involving “the straightforward application of legal terms with plain and settled meanings.”  The decision was based on the meaning of a single word—“sex.”  He dedicated pages of analysis to interpreting the meaning of “sex” and “discrimination” when Title VII of the 1964 law was written. The analysis is cautious and relies on the dictionaries of the era to interpret the ordinary meaning of those terms at the time the statue was being drafted. Gorsuch concluded that “homosexuality and transgender status are inextricably bound up with sex,” as “sex” was understood in 1964.  So Title VII necessarily protects sexual orientation and gender identity from employment discrimination.  He did caution that Bostock is just about workplace rights, not “sex-segregated bathrooms, locker rooms and dress codes.”  The Court does not “prejudge such questions.”
But, what are the implications of Bostock for religious liberty in America?  Social conservatives were distraught with the decision. Robert George described the majority opinion as “sophistical” and the position it endorsed “untenable.” “Hard to overstate the magnitude of this loss for religious conservatives,” added Rod Dreher. Denny Burk said the decision “eviscerated” religious liberty, while Andrew Walker called the opinion “devastating,” adding, “If you’re a Christian higher ed institution taking federal monies, buckle up.”  In the aftermath of the Bostock decision, a common refrain issuing from social media and various articles has been, “Yes, this decision is consequential, but let’s wait and see how it plays out.”  Indeed, in his ruling, Gorsuch wrote: “We are also deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution.” He explicitly said that religious liberty issues will likely come up for other employees in other cases and there will need to be other rulings.  In case after case in recent years—Hosanna-TaborHobby LobbyHoltTrinity LutheranMasterpiece Cakeshop—the Court has protected religious exercise.  But the fear remains that that once sexual orientation and gender identity are protected, there is no guarantee that religious freedom protections will be maintained.

 

How should we think about this important Supreme Court decision?

 

  • First, it says much about the separation of power and checks and balance system so central to our Constitution.  Which is the most powerful branch of government? The Founding Fathers certainly intended it to be the legislative one.  But Congress does not legislate.  It is torn between two fiercely ideological segments that find it impossible to compromise on anything—and compromise is the heart of democratic government.   So, without majorities in the House presidents (e.g., both Obama and Trump) are reduced to issuing executive actions and orders, which are limited in scope and which sometimes get struck down by the courts.   With both the legislative and executive branches suffering from a kind of structural inertia, where does power go? One answer is that it flows to the third branch of government—the judiciary. Indeed, the Court seems to do more actual governing than the president.  Our pluralist society guarantees conflict and is dependent on compromise.  But, especially during the last two decades compromise between the two houses of Congress and between the president and Congress has proved to be virtually impossible.  So, the Supreme Court fills the vacuum.  Ross Douthat perceptively observes that “Abraham Lincoln did not demand that the Supreme Court declare slavery unconstitutional.  Instead he pushed the Senate to amend the Constitution to abolish it.  Subsequent battles over Catholicism and public education, women’s suffrage and temperance all had similar legislative goals.”  Since Congress barely legislates, the Supreme Court manages our social and cultural debates.  “Our affirmative action system was designed by Lewis Powell and amended by Sandra Day O’Connor.  The boundaries of voting rights and free expression by John Roberts.  Our abortion laws reflect the preferences of Anthony Kennedy.  And now anti-discrimination law and religious liberty protection will reflect what Neil Gorsuch . . . thinks is right and good.”    Douthat:  “. . . the welcome afforded Gorsuch’s ruling—which reached the popular outcome, and relieved our legislators of a responsibility they didn’t want—is a telling indication of how our system is understood to work.  We may officially have three branches of government, but Americans seem to accept that it’s more like 2.25:  A presidency that acts unilaterally whenever possible, a high court that checks the White House and settles culture wars, and a Congress that occasionally bestirs itself to pass a budget.”
  • Second, the Bostock ruling seems to be supported by the American public.  In a recent survey Stephen Jessee, Neil Malhotra and Maya Sen, political scientists at the University of Texas at Austin, Stanford University and Harvard University respectively, asked voters’ opinions about several Supreme Court cases.  According to their research, 83% of respondents thought it should be illegal for employees to be fired on the basis of their sexual orientation. That included 90% of Democrats, but also 74% of Republicans. Only 17% took the opposite view, resulting in a 66-point balance approving of the Court’s decision.
  • Third, in light of Bostock, is the Religious Freedom Restoration Act (RFRA) still religious liberty’s safe harbor?  Justice Neil Gorsuch, in his opinion, cited the RFRA as key to settling future religious liberty disputes. As Andrew Walker, professor of Christian Ethics and Apologetics at the Southern Baptist Seminary argued, “To accept the logic of such voices as Gorsuch . . .  one must rely on at least two assumptions: One, that progressives see some sort of compromise [between LGBTQ rights and religious liberty] as desirable; and two, that the Religious Freedom Restoration Act’s provisions remain intact in the present form . . . .”  Walker’s concern is based on a new initiative working its way through Congress called the Equality Act, legislation profoundly hostile to religious liberty. A lesser-known feature of the Equality Act undermines the argument that RFRA will sufficiently protect religious dissenters. “To understand why the Religious Freedom Restoration Act is not the permanent salve some declare it to be, consider that a provision of the Equality Act aims at specifically undoing RFRA of its provisions where they come in conflict with sexual orientation and gender identity. The firewall heralded as the last preserve of religious liberty is already on the chopping block:  It says that [the Religious Freedom Restoration Act] does not apply to any claim under the Equality Act. This would be the first time Congress has limited the reach of RFRA.”

 

The Judeo-Christian understanding of sexuality and gender is under siege and the Bostock decision leans toward the conclusion that within American civilization that understanding is no longer remotely persuasive nor is it deserving of protection. We still have RFRA, for which I am most thankful, but because of the legal trajectory hinted at in Bostock, it is difficult to be optimistic that American civilization will maintain a healthy balance between LGBTQ rights and religious liberty.  One will have to give—and I am afraid it will be religious liberty that will fold.

See Daniel Bennett, “LGBT Rights Ruling Isn’t the Beginning of the End for Religious Liberty” in www.christianitytoday.com (17 June 2020); Andrew T. Walker, “Bostock Is as Bad as You Think” in www.christiantytoday.com (19 June 2020); “Checks and Balance,” The Economist (26 June 2020); Ross Douthat in the New York Times (21 June 2020); and The Economist (20 June 2020), pp. 20-21.

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