The Roe v. Wade of religious liberty arrived Monday. And it was delivered by the putatively conservative Justice Neil Gorsuch, tapped in 2017 by Team Trump to replace the late Antonin Scalia. Chief Justice John Roberts tagged along, making a six-justice majority that included the high court’s liberals. The decision epitomizes the legal conservative movement’s sad-sack failure to deliver for conservatives.
In Bostock v. Clayton County, the majority informed us that the interpretation of Title VII of the 1964 Civil Rights Act, held unchallenged between its enactment and the year 2017, was, in fact, erroneous. The statute’s prohibition against employment discrimination on the basis of sex, Gorsuch told us, extends to “sexual orientation” and “gender identity.”
This isn’t textualism. It’s ivory-tower liberalism. And it’s completely at odds with the Supreme Court’s longstanding dictum that Congress, in drafting statutes, won’t inscribe a hidden meaning in otherwise plain language: As Justice Samuel Alito sharply noted in dissent, “sex,” in 1964, meant biological sex — man and woman — not orientation and certainly not subjective gender identity.
The tangible results will be harrowing. Following Bostock, can a Catholic school deny employment to a teacher whose sexual lifestyle blatantly flouts millennia of Catholic moral teaching? Can an Orthodox Jewish day school refuse to hire a male teacher who self-identifies as a woman, contravening traditional teaching rooted in Genesis?
Speaker Nancy Pelosi tried to enact much of this agenda legislatively in 2019 with the so-called Equality Act — and failed. All it took was a Republican justice to impose it nationwide via judicial fiat.
Religious employers’ conscience rights aside, long-settled employment law has now been thrown into chaos. The court concedes that such issues as sex-specific bathrooms, locker rooms and sports teams will be on the chopping block in future litigation. As my former boss, Judge James C. Ho of the Fifth Circuit, noted in a similar case last year, the underlying legal issues “affect every American who uses the restroom at any restaurant, buys clothes at any department store or exercises at any gym.”
The substitution of subjective gender identity for embodied sex particularly threatens biological women, whose rights Congress specifically set out to protect with the 1964 act. The entire edifice of American anti-discrimination law, after all, rests on the principle that the bodily differences between men and women — in athletic competition, in private or sensitive spaces — mean something. Can that edifice survive if its cornerstone is removed? I don’t see how.
Bostock is no joke, and it lays bare the moral and intellectual bankruptcy of the conservative legal movement.
Let’s say this in the bluntest possible terms: The conservative legal movement and its various institutional vessels, such as the Federalist Society, have failed conservatism. There is simply no avoiding that straightforward conclusion — not when the blow is delivered from the Federalist Society-vetted Neil Gorsuch.
Generations of right-leaning law students have now been taught that the only proper way to interpret law is to obsess over the text while eschewing the thorny moral questions raised by cases. But as Bostock shows, even a conservative, “textualist” jurist can massage a text enough to divine a new meaning that simply wasn’t there when Congress framed a law like the 1964 act. Meanwhile, a more authentic textualist like Alito can reach the opposite conclusion.
The result is that the legal left makes loud arguments about justice and the good, by its lights, and triumphs, while the legal right mutters about textualism.
Something more is needed to stop a progressive judicial revolution that would upend natural law, counter popular preferences and further usurp the right of We the People to have our laws made in Congress, by elected representatives.
The conservative legal eagles have failed to deliver that. What we need is a more forceful conservative legal movement, just as willing as the left to make moral arguments in court, based on principles of justice, natural law (the rules embedded in our very nature as human beings), the common good and the religious and moral traditions underlying Anglo-American constitutional order.
Otherwise, the conservative legal movement deserves to perish.
Josh Hammer is a syndicated columnist and former federal court of appeals law clerk. Twitter: @Josh_Hammer