The Supreme Court heard a group of cases yesterday that will require the justices to decide whether the 1964 Civil Rights Act applies to homosexuals and transgender individuals. The cases concern employment discrimination. The legal issues seem narrow. But the social implications are vast.
Over the last fifty years, anti-discrimination law has evolved into an all-penetrating system of social control. The original legislation forbade employers from denying employment to someone simply because he was black or she was female. But the development of legal doctrine by way of the notions of disparate impact and hostile environment gave this straightforward principle of non-discrimination a vast and complex meaning. It empowered government officials to monitor hiring and workplaces and encouraged activist organizations to file wide-ranging lawsuits.
By the time we reached the Obama administration, the nexus of government agencies, lawsuits, and activist organizations had become so tightly woven that tens of millions of dollars in financial penalties for discrimination in home loans (a lawsuit based entirely on disparate impact doctrine) were funneled into activist organizations such as the Southern Poverty Law Center. These organizations are dedicated to the further expansion of the civil rights legal regime—such as the cases before the Court yesterday.
The Civil Rights Act of 1964 was necessary. It served to empower the federal government to protect a downtrodden minority subjected to decades of ruthless discrimination. Today, however, the machine of contemporary civil rights law and activism grinds very finely, and without regard to social realities.
The trajectory of women’s rights offers an example. Many signal cases involve rich, well-educated women and their efforts to break down barriers to membership in all-male social clubs, C-suites, and other positions of male privilege. In short, they give people on the top end of society still greater wealth and prestige.
In its early phase, civil rights for women benefited women of all social ranks. But it was perhaps inevitable that these civil rights cases would eventually tilt toward the interests of powerful women. Black Americans were poorer than white Americans (and still are). This was never the case for women. There were always as many female Rockefellers as male Rockefellers. And thus the concerns of rich and powerful women have dominated the so-called women’s movement. Their concerns still dominate, as the recent California legislation establishing a quota for females on corporate boards indicates. This is a law that affects a couple thousand already very rich women in that state.
The extension of the powerful weapons of post-1960s civil rights to homosexuals and transgender individuals is almost certain to be even more elite-oriented. Data show that gay men earn more than straight men. It has long been a truism in marketing that the gay community is a prime target. Without the costs of childrearing, they not only make more but have still more to spend. Treasury Department data on tax returns show that men who have married men and adopted at least one child have family incomes in excess of $250,000. (Male-female couples with children have median family incomes of less than $120,000.)
The signal cases for gay rights follow a clear trend of powerful people using civil rights for their own benefit. They involve rich people litigating for what they want.
United States v. Windsor, the case that led the Supreme Court to declare the Defense of Marriage Act unconstitutional, involved the question of payment of estate tax. Less than 1 percent of deaths result in paying federal estate tax, which means the lesbian litigating in the case was very rich indeed.
The ongoing legal assaults on Colorado baker Jack Phillips began with men who were married in Massachusetts asking him to bake a cake for a celebratory reception in Colorado. These are not plans working-class people can afford. Phillips, a sole proprietor of modest means, is currently being harassed by a lawsuit filed by a transgender lawyer in Denver.
I am not a legal scholar. I can’t comment on the constitutional ins and outs. But it is patently obvious that giving homosexuals and trans individuals access to the extremely powerful and coercive tools of civil rights law is bad social policy. It will further empower the powerful, allowing them to destroy anyone who resists their agenda.
The gay rights establishment is flush with money. It has tremendous cultural power. Outside conservative evangelical churches, no significant American institution opposes this establishment. (Aside from a few courageous voices, the Catholic Church is largely silent.) Its social situation is exactly the opposite of the black community’s when the Civil Rights Act was passed in 1964.
If the justices open up the arsenal of our civil rights law for the gay rights establishment to plunder, we will see a degree of legal intimidation and social control unparalleled in our history.
R. R. Reno is editor of First Things.