The Wall Street Journal gets things exactly wrong in a recent about two important cases before the Supreme Court. The cases concern claims of employment discrimination against gay or transgender individuals. The Journal concedes the main thrust of the claims, noting that “discrimination against gays and the transgendered is invidious.” It then pivots to a “textualist” or “originalist” argument that our anti-discrimination law does not apply to these cases. Title VII of the Civil Rights Act of 1964 bans discrimination on the basis of sex, it argues, but “the plain meaning of Title VII is that ‘sex’ referred to a man or a woman.”
This line of argument is misguided and is not likely to succeed.
Our anti-discrimination law was set up to address pervasive discrimination against black Americans. They were politically disenfranchised and subject to a brutal, state-enforced regime of racial subjugation in the South. In many other regions of the country, black Americans lived under an informal Jim Crow system that included redlined housing, all-white unions, and pervasive social exclusion.
When the Civil Rights Act of 1964 was formulated, drafters added sex, religion, and national origin. These were less pressing concerns at the time, in large part because the scope and intensity of these kinds of discrimination was far less than that which bore down on black Americans. But anti-Semitism and social exclusion of Jews was certainly a reality. And women experienced a great deal of workplace discrimination.
In sum, our anti-discrimination law was established to use the full force of government power to address clear and present injustices in American society. This is not the situation for gays in twenty-first-century America. (I leave aside transgenderism, a disorder that surely—and rightly—attracts strong disfavor.) On the contrary, gays are among the most privileged groups in the United States.
For decades business magazines have reported the desirability of targeting gay consumers. They are uniquely well-heeled in comparison to other sectors of the population. Tax data show that gay couples with children have more than double the median household income of straight couples with children. Nobody collects data on gay representation in elite university faculty, top law firms, or corporate management. The reason is simple: The disproportionately high representation will belie the narrative of discrimination that drives gay rights activism.
And that activism has shown itself to be extremely powerful. Gay groups can control the philanthropy of large corporations, as the recent capitulation of Chick-fil-A illustrates. The same groups can kill the careers of those deemed “bigoted.” A network of gay employees exists in every federal agency that monitors policies relevant to gay interests and censors opinions judged contrary.
In the present circumstances, it is absurd to speak of gay rights as an anti-discrimination imperative with any relevance to the Civil Rights Act of 1964. The details of the cases are of no moment. Only a fevered, utopian mentality imagines that lawyers and judges should minutely monitor the relations between employers and employees unless there is a clear and pervasive pattern of debilitating discrimination that requires redress. But the success, wealth, and power of the gay community in the United States indicate that there is no such pattern.
On the contrary, the pattern runs the other way. More than 20 states have incorporated sexual orientation into their anti-discrimination statutes. As Charlotte Allen documents in “,” this has empowered well-educated and well-paid gays to punish less educated, less wealthy neighbors who dare to refuse to bake a cake or make a bouquet for their weddings. At present, Colorado baker Jack Phillips has been targeted by yet another lawsuit, this time brought by a transgender Denver lawyer. The situation is exactly the opposite of the Montgomery bus boycott.
In certain circumstances it may be unjust to deny employment to a gay person. But this kind of discrimination, if it happens in our society (as surely it does), is not “invidious.” By any measure, discrimination against gays is uncommon. I am willing to bet a substantial sum that a fat person is far more likely to suffer employment discrimination than someone who engages in sodomy in the privacy of his home.
GLAAD set a goal: It wanted 10 percent of primetime TV characters to be LGBT. The organization recently reported that this goal was achieved. The new goal is 20 percent. Four percent of the population identifies as gay. In what universe does a group capable of compelling fivefold overrepresentation in the media require anti-discrimination protection?
There is no evidence that those drafting the Civil Rights Act of 1964 imagined extending its protections on the basis of sexual orientation; certainly not on the basis of gender identity. But the Supreme Court justices need to think about social implications, and the other reasons—more fundamental and substantive than “originalist” arguments—to refrain from reading these “identities” into our anti-discrimination laws. Our civil rights law seeks to protect unpopular minorities subject to debilitating discrimination. Gays are not unpopular and are not subject to pervasive discrimination.
More importantly, it is dangerous to give powerful people the weapons of anti-discrimination law. They will be tempted to use those weapons to destroy the institutions, organizations, and people whom they happen to disfavor. This is all the more likely to happen when those powerful people live disordered lives, engaging in sexual practices that make their consciences, however malformed, whisper doubts. These people will be sorely tempted to use the full power of the law to set up a repressive anti-discrimination regime that criminalizes any opposition to their cultural and political goals.
R. R. Reno is editor of First Things.