The Supreme Court’s decision in Bostock v. Clayton County offers a striking display of sophistry in service of the spirit of the age. The Court had to rule on whether Title VII of the 1964 Civil Rights Act bars employment discrimination on the basis of sexual orientation and gender identity. The 6-3 decision held that the Act does indeed forbid such discrimination. The effect will be dramatic. This decision hands LGBT activists the coercive machinery of civil rights law.
Justice Neil Gorsuch wrote the majority opinion, which is said to be a straightforward textualist interpretation. Title VII stipulates that it is unlawful “for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” There is no mention of sexual orientation or transgenderism. But Gorsuch has a clever argument. He notes that if a man identifies as a woman and is fired for doing so, then he is being fired for something that would be entirely OK if he were a woman.
The same holds for homosexuality. A man who has sex with men would not trouble someone who objects to homosexuality if he were a woman. Therefore, employment decisions based on rejections of homosexuality or transgenderism are, in truth, forms of discrimination on the basis of sex, which is prohibited by the 1964 Civil Rights Act.
The logic of Gorsuch’s reasoning is elegant but unworkable. New York law prohibits discrimination on the basis of marital status, as do many other states. By Gorsuch’s reasoning, it would therefore be illegal to discipline or dismiss an employee for committing adultery. Such an act would be acceptable if the person were not married, and thus to consider it cause for action amounts to discrimination on the basis of marital status.
Or consider a McKinsey consultant who presents as white but identifies as black. He insists upon his right to join the black consultants group at the firm. Any measure that McKinsey might take against him would count as racial discrimination for precisely the reason adduced in Gorsuch’s opinion. Were the consultant black, his identifying as black would be acceptable. It is the fact that he is white that makes the situation difficult for the employer, who wishes to encourage support groups and mentoring for black employees. Therefore, if disciplined, the white who identifies as black is being discriminated against on the basis of his race.
Ideologically, the “reasoning” makes sense. The LGBT movement began as a quest for civil rights. Over time it matured into a metaphysical project to deny the difference between men and women. Its central claim is that all moral judgments and normative expectations based on male-female differences (for example, that sex is licit only between men and women) amount to discriminatory judgments and “phobic” attitudes. Put more simply, the LGBT project insists that whether someone is in fact male or female should not influence our judgments about sexual morality and, more radically, about sexual identity.
Bostock entrenches this ideology in our civil rights regime. Gorsuch piously denies that the decision has implications for bathrooms, women’s sports, and other aspects of civil life recently contested by LGBT activists. But it obviously does. The civil rights doctrine of “hostile environment” will be used to compel employers to enforce “preferred pronouns” and censure any statements of traditional sexual morality. The Supreme Court has determined that stamping out discrimination is a “compelling state interest,” which can override many of our constitutional rights, including religious liberty (as the Bob Jones case indicates).
Put simply, Bostock gives the LGBT movement a powerful bulldozer with which to demolish all public expressions of dissent from its agenda. This is a great irony. In the Civil Rights Act of the mid-1960s, Congress passed unprecedented legislation in order to counter a powerful social consensus against full equality for African Americans. It used the power of the law to protect an unpopular, poor, and disempowered minority. Now the Supreme Court is doing the opposite. It is giving powerful legal tools to a well-funded LGBT movement that enjoys near-universal support in elite institutions, major corporations, and universities.
With sexual orientation and sexual identity read into our core civil rights law, the Human Rights Campaign and other networks of activists will use litigation and the threat of litigation to bludgeon religious and social conservatives into submission to their regime of liberation and personal self-invention. The Left will further weaponize the law—a dynamic that has already done a great deal to polarize our society.
Historians may look back and judge Bostock the twenty-first-century analogue to Dred Scott, the Supreme Court decision that imposed the Southern slave regime on the entire country and contributed to the intolerable contradictions that led to the Civil War. Gorsuch’s majority opinion leaves no wiggle room. It ties affirmations of homosexuality and transgenderism to our most basic conceptions of equality. And it does so by denying that there are any moral, legal, or even metaphysical differences between men and women.
Our legal regime has repudiated the Book of Genesis and the scriptural account of God as Creator. This puts our law on a collision course with human nature. If we continue on this course, the word used to describe the legal and social reality of this collision will be totalitarianism.
R. R. Reno is editor of First Things.
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