WASHINGTON – Senator Josh Hawley (R-Mo.) urged “religious conservatives to stand up and to speak out” during a floor speech delivered June 16, only one dayafter the United States Supreme Court announced its “seismic decision” that “sexual orientation” and “gender identity” are protected by Title VII of the 1964 Civil Rights Act.
“It’s time for religious conservatives to bring forward the best of our ideas on every policy affecting this nation,” Hawley said. “We should be out in the forefront leading on economics, on trade, on race, on class, on every subject that matters for what our founders called the ‘general welfare,’ because we have a lot to offer, not just to protect our own rights, but for the good of all of our fellow citizens.”
Title VII of the 1964 Civil Rights Act explicitly prohibits discrimination in the workplace based, among other things, on a person’s biological sex. In this case, titled Bostock v. Clayton County, the court considered whether Title VII’s prohibition of “sex” discrimination includes discriminating against employees because of their sexual identity – that is, for example, because they claim to be homosexual or transgender.
In a 6-3 vote, the court’s majority ruled that these protections should extend to the LGBTQ community. Two typically conservative justices – Chief Justice John Roberts and Associate Justice Neil Gorsuch – joined four liberal members in the majority. Associate Justices Clarence Thomas, Samuel Alito and Brett Kavanaugh dissented.
Hawley called the court’s opinion a problematic “piece of legislation” – problematic especially because “it was issued by a court, not by a legislature.”
Hawley’s censure of the court’s opinion echoed the criticism of Supreme Court Associate Justice Alito, whose dissenting opinion began with these words: “There is only one word for what the Court has done today: legislation.”
‘End of the conservative legal movement’
According to Hawley, the court’s opinion also “represents the end of the conservative legal movement.” For decades, this conservative movement has been guided by the principle of “textualism” – that is, the attempt to interpret and apply the nation’s laws according to their original meaning and intentions.
Indeed, the majority opinion in this case, written by Associate Justice Gorsuch, claimed to follow the principles of “textualism.” His opinion granted, for example, that in 1964 “sex” meant only “biological sex.”
But Princeton University Professor of Jurisprudence Robert P. George called Gorsuch’s opinion “sophistical,” and he said its appeal to “textualism” was “counterfeit.” Associate Justice Alito said as much in his dissenting opinion: “A more brazen abuse of our authority to interpret statutes is hard to recall,” he wrote. “The Court tries to convince readers that it is merely enforcing the terms of the statute, but that is preposterous.
“[T]he question in these cases is not whether discrimination because of sexual orientation or gender identity should be outlawed,” he added. “The question is whether Congress did that in 1964. It indisputably did not.”
The consequences of flawed logic
According to Ryan Anderson, a senior research fellow for the Heritage Foundation, the majority’s opinion didn’t uphold the original meaning of the 1964 Civil Rights Act. Rather, it used flawed and “simplistic” reasoning to change the law’s meaning – and with devastating results.
In the majority opinion, Associate Justice Gorsuch wrote, “An employer violates Title VII when it intentionally fires an individual employee based in part on sex.” But, according to Gorsuch, there’s more: An employer who fires someone for being homosexual or transgender also fires them, at least in part, because of biological sex. And, since discrimination based on biological sex is prohibited by Title VII, firing a homosexual or transgender person is also prohibited.
But, according to Anderson, Gorsuch’s reasoning is incorrect. An employer’s moral judgments about homosexuality and transgenderism aren’t necessarily related to a person’s biological sex.
“Gorsuch’s argument is an argument about the logic of sex discrimination,” he wrote in a June 19th article on The Daily Signal. “Alas, he got that logic wrong. …
“This mistaken theory of sex discrimination,” he added, “will have far-reaching negative consequences down the road.”
In his dissenting opinion, Associate Justice Alito wrote that these negative consequences include threats to “the freedom of religion, the freedom of speech, and personal privacy and safety” (See related story, page 1). Moreover, the court’s decision, he wrote, invites transgender men to argue that they’re entitled to use women’s restrooms or to argue that they should be allowed to compete in women’s sports.
‘Checks and balances’
Whatever the consequences, the court has decided. “So,” Anderson asks, “what should we do now?” He says that Congress has at least three options to bring a “check and balance” to the court’s ruling:
• “First,” he writes,” Congress could explicitly state that when it uses the word ‘sex’ in civil rights statutes, it does not refer to sexual orientation and gender identity. It could clearly state that Gorsuch’s logic of sex discrimination is not that of the Congress.”
• “Second, if Congress is unwilling to directly correct the court, Congress could provide robust religious liberty protections to ensure that this mistaken theory of sex discrimination does not harm the free exercise of religion.”
• “Third, Congress could protect certain actions and decisions as not constituting ‘discrimination.’ This would protect the ability of all institutions to, for example, offer single-sex facilities and programs – think athletics – on the basis of biology rather than [sexual] identity.”
But, in his June 16th speech on the Senate floor, Hawley questioned whether many members of Congress have the gumption to take such legislative actions.
Congress, Hawley said, “doesn’t want to make law…. That’s because in order to make law, you have to take a vote. In order to vote, you have to be on the record. And to be on the record is to be held accountable. That’s what this body fears above all else. This body is terrified of being held accountable for anything on any subject.”
But if people of faith stand up to be counted, there’s hope, Hawley added. “It’s time for religious conservatives,” he said, “to take the lead rather than being pushed back. It’s time for religious conservatives to stand up and speak out…. Let this be a new beginning, let this be the start of something better.”