October 2, 2022

‘Conservative’ Supreme Court?

The United States Supreme Court is considered “conservative” because of President Trump’s appointments of Justices Neil Gorsuch and Brett Kavanaugh, making the court 5-4 with “textualists” in the majority. That didn’t seem to matter as the court handed down a victory for LGBTQ activists, seeking to punish any employer that would fire a gay or transgender person. The landmark ruling is destined to create many legal predicaments for religious schools, churches, hospitals, and other religious employers.

A win for LGBTQ activists

Justice Neil Gorsuch wrote the majority opinion for the court. It is early in the analysis of such a landmark decision, but the crux of the matter is this:

Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause of his discharge. Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.

This argument is not unique to Gorsuch but has long been argued by civil rights activists. The problem is that the person is not being fired for being male or female, they are being fired for same-sex attraction, or gender dysphoria, neither of which are mentioned in Title VII.

Conservatives dissent

Both Justice Brett Kavanaugh and Justice Samuel Alito wrote dissents to the majority decision.

Justice Alito attacked the majority’s argument as highly disingenuous. Gorsuch argues that the two model employees in the argument above are only different in one respect: Sex. But Alito points out that there is a second difference. One of the employees is attracted to the same sex, and the other is attracted to the opposite sex. So, Gorsuch’s argument falls apart because he does not realize this. Here is Alito’s argument:

In an effort to prove its point, the Court carefully includes in its example just two employees, a homosexual man and a heterosexual woman, but suppose we add two more individuals, a woman who is attracted to women and a man who is attracted to women. (A large employer will likely have applicants and employees who fall into all four categories, and a small employer can potentially have all four as well.) We now have the four exemplars listed below, with the discharged employees crossed out:

Man attracted to men
Woman attracted to men
Woman attracted to women
Man attracted to women

The discharged employees have one thing in common. It is not biological sex, attraction to men, or attraction to women. It is attraction to members of their own sex. In a word, sexual orientation. And that, we can infer, is the employer’s real motive.

Same-sex attraction

Same-sex attraction and opposite-sex attraction: That is the point of the argument. Not that the employer is firing someone because they are a woman or a man, but because of their sexual preferences. Alito insists that Title VII limits illegal discrimination to five criteria: race, color, religion, sex, and national origin. In this case, the criterion “sex” is in question. Can an employer discriminate based on the sex (male or female) of the person?  Not according to Title VII. Can an employer discriminate based on sexual orientation, or same-sex attraction? Justice Alito says yes.

Alito went on to say that the court’s reading of the law excluded arguments like the one above, and therefore cannot assume that theirs is the only possible reading. He went so far as to say it is indefensible.

Alito’s dissent is longer than the majority decision. In it, he does what the majority refused to do, which is to consider the impact this ruling will have on the country. The majority, led by Gorsuch, are, in effect, kicking the can down the road.

What the Court has done today––interpreting discrimination because of “sex” to encompass discrimination because of sexual orientation or gender identity––is virtually certain to have far-reaching consequences. Over 100 federal statutes prohibit discrimination because of sex.

Textualism vs. statutory interpretation

How did Neil Gorsuch come to his decision? According to Alito, by embracing the idea that old statutes should be updated to reflect current values.

In his dissent, Alito criticized Gorsuch’s claim of being a “textualist.” He pointed out that what Gorsuch was arguing wasn’t textualist at all but a theory of “statutory interpretation” that the great textualist Justice Antonin Scalia rejected. That theory of statutory interpretation posits that the courts should “update” old statutes to reflect current values.

The Court attempts to pass off its decision as the inevitable product of the textualist school of statutory interpretation championed by our late colleague Justice Scalia, but no one should be fooled. The Court’s opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated—the theory that courts should “update” old statutes so that they better reflect the current values of society.

The mischief that will come of this ruling will become apparent over the years as it plays out in religious institutions across America. The idea that the Supreme Court is safe with a “conservative” majority has been shattered as Gorsuch falls into line on the left side of the court.


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