Will Bostock v. Clayton County be the ‘Roe v. Wade of Religious Liberty’?

Abortion was legalized by the Supreme Court, not by the legislature or the people. Same-sex “marriage” was made the law of the land after the Supreme Court somehow discovered a “fundamental right” for people of the same sex to get married in the Constitution – a “right” that had somehow lain hidden for over 200 years after the Constitution was drafted by men who almost certainly didn’t spend so much as five seconds in their whole lives considering the notion of two men or two women getting “married” to one another.

And now, yet another radical social change has been imposed upon the United States by the Supreme Court – change that further erodes our understanding of the objective differences between men and women, the role of the family, the nature and purpose of sex and marriage, and religious liberty.

In a decision that is being called the “Roe v. Wade of Religious Liberty,” the Supreme Court ruled earlier this month that Title VII, which bans employment discrimination based upon “sex,” extends to discrimination based upon “sexual orientation” and “gender identity.”

Bostock v. Clayton: Judicial Overreach

The details of the decision in Bostock v. Clayton County are complex. However, conservative and religious legal scholars are almost universally agreed on two points: 1) The decision amounts to an egregious overreach of judicial power, with the court once again legislating matters that by all rights belong to the legislature; and, 2) This decision will have massive, unpredictable, far-reaching negative long-term ramifications on a whole host of matters, including religious liberty.

Depressingly for those of us who had looked to a more conservative Supreme Court for protection against the advancing, intolerant juggernaut of “woke” progressivism, the decision was authored by Justice Neil Gorsuch, one of President Trump’s recent appointees, who had been endorsed by the conservative Federalist Society. While I am no legal scholar, and this column isn’t about the details of the legal reasoning in the decision, it is transparently absurd that a faithfully “textualist” reading could legitimately conclude that a legal statute passed in 1964 could “mean” something that none of the legislators who originally voted for the law likely even gave a moment’s thought to.

Clearly, in 1964, “sex” was understood by just about everybody as referring to biological sex – male and female, men and women. Transgenderism, and even homosexuality, were barely on the public radar. And yet, Gorsuch somehow concluded that his expansive interpretation is found in the “plain text” of the law. As Justice Alito wrote in the first sentence of his scathing dissent: “There is only one word for what the Court has done today: legislation.”

Given this, it is hard to disagree with columnist Josh Hammer’s analysis of what this decision means for conservatives in the United States. Writing in the New York Post last week, he argued, “What we need is a more forceful conservative legal movement, just as willing as the left to make moral arguments in court, based on principles of justice, natural law (the rules embedded in our very nature as human beings), the common good and the religious and moral traditions underlying Anglo-American constitutional order.”

Hammer is absolutely right. While the exact texts of the Constitution and other laws matter a great deal, if our interpretations of those texts are completely unmoored from consideration of the nature of the common good and the natural law, it is only a matter of time before sophistical legal reasoning will lead us down the road to grave and socially destabilizing moral evils – as happened in Roe v. Wade, and now Bostock v. Clayton County.

Our Country is Now Living a Lie

However, as Catholic commentator Phil Lawler put it pungently, what makes Bostock such an awful decision is not just that it is based upon bad legal reasoning, but that “it is patently false.” “In this calamitous decision,” he writes, “six members of our nation’s highest court signed their names to a lie.” He continues:

It’s manifestly untrue that when Congress outlawed discrimination on the basis of sex, the lawmakers intended also to outlaw discrimination on the basis of sexual orientation or gender identity: concepts that had not even been introduced into the language of the American polity at that time. But again that is not the key point. Still more important, it’s untrue that the word “sex,” which denotes physical characteristics, can be stretched to include behaviors and attitudes.

Lawler’s prediction about the long-term impacts of the Bostock decision are not comforting:

We are a house divided. Still worse, as long as the Supreme Court’s decision stands, we as a nation are living a lie. Our laws and our Constitution, as interpreted by our highest court, no longer satisfy the minimum demands of logic and sanity. When the people can no longer respect the law — can no longer predict or understand the law — the regime cannot survive.

The immediate impact of the decision is that employers will not be able to fire employees due to anything associated with sexual orientation or so-called “gender identity” – something that many states already ban. While religious employers are exempt from this (for now), this new interpretation is likely to present a serious problem even for non-religious employers.

One can easily imagine, for instance, a case where a kindergarten teacher – let’s call him Mr. Smith – comes to school (a non-religious school) one day dressed in drag and demands to be called “Ms. Smith.” Regardless of how confusing and disturbing this would be for the children, and how harmful to their healthy development, the school will now be without any recourse – it must continue to employ “Ms. Smith.” The Supreme Court decision leaves no room for common sense in such cases.

However, numerous legal scholars, including Justice Samuel Alito in his dissent, have pointed out that the reasoning in the decision is likely to lead to challenges involving numerous other statutes that mention “sex.” In other words, the court has put in place a legal precedent, the logic of which is likely to transform numerous aspects of our country, and not just employment law. In his dissent, Justice Alito pointed out just some of the far-reaching impacts of the decision:

Under the Court’s decision…transgender persons will be able to argue that they are entitled to use a bathroom or locker room that is reserved for persons of the sex with which they identify, and while the Court does not define what it means by a transgender person, the term may apply to individuals who are “gender fluid,” that is, individuals whose gender identity is mixed or changes over time. Thus, a person who has not undertaken any physical transitioning may claim the right to use the bathroom or locker room assigned to the sex with which the individual identifies at that particular time. The Court provides no clue why a transgender person’s claim to such bathroom or locker room access might not succeed.

In Bostock, the court has torn down a wall that has, from time immemorial, protected the safety and privacy rights of men and women, based upon the objective differences between the sexes. With that wall torn down, the common-sense protections that every sane society has put in place, protections that above all defend women and young girls from predation, are likely soon to fall.

Renowned conservative legal scholar Robert George has written that the nature of the ruling is so radical, that it is entirely possible we will soon see the demise of all-women sports. The insane injustices that we have witnessed these past couple of years, with biological males crushing female competitors in sports – sometimes literally crushing them – will become par for the course, and there will be nothing that anybody can do about it. Others have pointed out that the decision will almost certainly impact conscience rights and freedom of speech, leading to a situation, for example, where people may be forced to use the “preferred pronouns” of transgender individuals, regardless of their conscience rights. Under the logic of Bostock, to fail to do so would be “discrimination” based upon “sex.”

An Attack on Religious Freedom

In a statement, Archbishop Jose H. Gomez of Los Angeles, who is currently serving as the president of the USCCB, noted: “The U.S. Supreme Court has effectively redefined the legal meaning of ‘sex’ in our nation’s civil rights law.” He called it “an injustice that will have implication in many areas of life.”

“By erasing the beautiful differences and complementary relationship between man and woman, we ignore the glory of God’s creation and harm the human family, the first building block of society.”

“Our sex, whether male or female, is part of God’s plan for creation and for our lives,” Archbishop Gomez said. While noting that “every person is made in the image and likeness of God and, without exception, must be treated with dignity, compassion, and respect,” he added, “protecting our neighbors from unjust discrimination does not require redefining human nature.”

Even though the decision technically doesn’t erase exemptions available to religious employers, it didn’t take long for liberals to put the decision to work, pushing for an end to those religious exemptions. In an article published just days after the Supreme Court decision, the New York Times profiled a woman who was recently fired from her position as a part-time music director at a Michigan Catholic parish. Terry Gonda had gotten “married” to her lesbian partner in 2011. While she claims that her parish priest was fully aware of her relationship, and “supported” her in it, recently the diocese learned of her “marriage,” and chose to invoke its morality clause to fire her.

The Times scarcely bothers to hide its agenda in the article. While acknowledging that the law – even after the Bostock decision – provides exemptions for religious organizations, the Times makes a point of highlighting the fact that these exemptions are up for review in cases currently before the court. They also highlight Justice Gorsuch’s remark in his decision that “how these doctrines protecting religious liberty interact with Title VII are questions for future cases too.” That is, even Gorsuch recognized that there may be implications for religious liberty in his decision, but simply declined to work out what those implications might be. We can be sure that leftist legal groups, however, won’t be nearly so timid.

Ms. Gonda makes no secret of the fact that she wants and is pushing for the Catholic Church to change its teachings on same-sex “marriage.” Of course, nobody is forcing her to be Catholic or to attend a Catholic church. But, for intolerant progressives that doesn’t matter: as far as the New York Times is concerned, the Catholic Church should be forced to continue to employ a woman who is publicly flouting and actively working to overturn her employer’s purpose and teachings.

In the Bostock decision, the Supreme Court has given Ms. Gonda, and those social activists who support her, the legal tools they need to continue advancing the doctrines of transgenderism and sexual progressivism, even to the point of demanding acquiescence from churches that teach that sex is biological and God-given. The implications are terrifying to consider.

About Fr. Shenan J. Boquet

Fr. Shenan J. Boquet has served as president of Human Life International since 2011. He was ordained in 1993 as a priest of the Roman Catholic Diocese of Houma-Thibodaux, Louisiana. As HLI’s president, Fr. Boquet collaborates with fellow laborers in the pro-life and family movement in over 80 countries, offering the Sacraments, giving seminars and trainings, appearing on numerous media outlets, and encouraging people of all walks of life to live as faithful advocates for a Culture of Life and Love. He is available for interviews and bookings on behalf of HLI by emailing hli@hli.org.

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