With the stroke of a pen, the U.S. Supreme Court has re-written the meaning of “sex.”
The decision that contains this radical re-write has been called “the Roe v. Wade of religious liberty,” “the Roe v. Wade for transgenderism,” “a striking display of sophistry in service of the spirit of the age,” a “seismic decision,” among many other things. The Court’s decision, Bostock v. Clayton County, will have an immediate and lasting effect on the “clash of orthodoxies” that has played out between the traditional view on marriage and human sexuality and the LGBT rights movement.
However, before too quickly critiquing the decision, I want to briefly summarize the Court’s decision.
Summary of Case. Bostock was a consolidation of three court cases from across the country. Each case had the following basic fact pattern: an employer fired an individual who identified as either gay or as transgender; the employee in each case brought a law suit against their employer based on Title VII of the Civil Rights Act of 1964; the employee claimed they had been discriminated based on “sex.” The Court had to decide whether Title VII of the Civil Rights Act of 1964 and its prohibition against discrimination “on the basis of sex” includes a prohibition against discrimination based on sexual orientation and gender identity.
In a 6-3 decision, authored by Justice Neil Gorsuch, the Court held that to discriminate against somebody because of their sexual orientation or transgender status is the equivalent of discriminating against somebody because of their sex.
Justice Gorsuch’s argument can be distilled to a couple key points. First, he claimed that the language of the 1964 Civil Rights Act was unambiguously clear on its face that “sex” includes the terms “sexual orientation” and “gender identity.” Second, Justice Gorsuch claimed that “homosexuality and transgender status are inextricably bound up with sex” and to discriminate based on those categories inherently means discriminating based on sex.
Justice Samuel Alito, joined by Justice Clarence Thomas, and Justice Brett Kavanaugh rebuked the Court’s analysis. Justice Alito labeled the Court’s opinion an act of “legislation.” He argued that Congress alone retains the power to redefine or expand the meaning of protected classes, a role not meant for the judicial branch. Both Justice Alito and Justice Kavanaugh engaged in an extensive analysis of the Civil Rights Act as it was written in 1964, other federal and state laws, and numerous court cases, to arrive at the conclusion that the “ordinary public meaning” of the term “sex” does not include “sexual orientation” and “gender identity.”
Erasing Human Nature. Archbishop José Gómez, the president of the United States Conference Catholic Bishops, put it very succinctly: “Protecting our neighbors from unjust discrimination does not require redefining human sexuality.” But the Court did just this, as Rusty Reno, editor of First Things, observed: “Our legal regime has repudiated the Book of Genesis and the scriptural account of God as creator.”
Justice Gorsuch’s opinion affirms a fundamentally flawed philosophical and theological idea that “homosexuality and transgender status are inextricably bound up with sex.” As one commentator put it, this idea “doesn’t come from the text [of the Civil Rights Act] but from the thin air inside the head [of Justice Gorsuch].” This idea is part of a more deeply entrenched ideology about the meaning of sex and the human person.
As Reno further noted: “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.”
An All Too Certain Future. As Ryan Anderson, founder and editor of Public Discourse, observed: “This mistaken theory of sex discrimination will have far-reaching negative consequences down the road.”
Justice Gorsuch asserted that the Court’s opinion did not address many other issues related to religious liberty, women’s sports, single-sex bathrooms, and the like. He claimed these issues are for another day. Numerous commentators have rejected this seemingly disingenuous claim by Justice Gorsuch. They have predicted—based on ample experience—that it is only a matter of time before LGBT rights activists run to lower courts throughout the country to demand that the “mercilessness of logic,” as Professor Robert George put it, be applied to other areas of the law, including “the eventual destruction of all women’s sports.”
What’s Next? While Bostock represents a further cultural and legal erosion of marriage and human sexuality, it would not be fitting for a Christian to lose hope in the midst of turmoil. Russell Moore, the president of the Ethics and Religious Liberty Commission, envisioned this moment as an opportunity for an “ongoing demonstration of counter-cultural fidelity, accountability, love, and a recognition of the kinds of limits that make human life good and livable.” He continued: “[W]e can be the people who recognize that those who disagree with us are our mission field, to be persuaded, not a sparring partner to denounce. We must have both conviction and kindness, both courage and patience, both truth and grace.”
For this task, no doubt we will need more time with the Sacred Heart of Jesus and the Immaculate Heart of Mary. We will need more reparations, more fasting. We will need to call on the saints, especially those like St. Pope John Paul II who articulated a vision about human love and sexuality. In short, we have work to do, but it is a work of love that is carried forth first and foremost by the Creator Himself.