Senator Chuck Grassley sounded almost effusive when a journalist at Politico contacted him about the Bostock decision, which expanded Civil Rights Act Title VII protections to homosexuals and persons of “transgender status.” Laws that had sought to extend these protections, in ways that are specifically tailored to new cases in hand, have been circulating around the legislative branch for years. Those laws had not passed because of partisan gridlock and the difficulty of reconciling the ever-expanding mandates of civil-rights laws with the Bill of Rights protections for the free exercise of religion. Drawing the lines would be difficult work and could upset a variety of constituencies, and even legislative staffers themselves. But the majority of the Supreme Court, led by Justice Neil Gorsuch, relieved them of the burden. And Grassley knew it. “It’s the law of the land,” he said. “And it probably makes uniform what a lot of states have already done. And probably negates Congress’s necessity for acting.”
By saying this, Grassley had inadvertently proved what was obvious, and what Justice Samuel Alito wrote in the first line of his blistering dissent: “There is only one word for what the Court has done today: legislation.”
Gorsuch’s entire ruling turns on a bit of freshman-year sophistry. He says it is impossible to discriminate against homosexuals without discriminating based on sex, because one knows the sex of the individual and would make a different decision if the person were the opposite sex. That this flies in the face of common sense, and common use of language, history, and sociology, matters not. It has been pointed out that in previous rulings in Title VII cases, undeniable distinctions between the sexes still matter and can still be exculpatory. Presumably these could include orientation. That didn’t matter to Gorsuch, nor did the fact that the government itself had managed to practice this discrimination in military recruitment without possessing knowledge of any individual’s sex.
But we can’t even credit Gorsuch with simply falling for the trick that Elena Kagan and a few smart litigators made for his “textualism,” because he plainly goes beyond it. Along the way he sets up a distinction between things that are inextricably tied to sex, such as orientation and transgenderism, and things that are not. This distinction doesn’t come from the text but from the thin air inside the head of the textualist.
Gorsuch did not have to do this. The basic protections at hand are very popular, and in many instances they already exist. Most major corporations and many states prohibit managers and owners from firing people for their sexual orientation. But there are real and difficult questions at hand. “Hostile environment” legislation falls under Title VII, and there are reams of case law attached to it. Will companies now be pressured to get all employees to sign terms of “allyship,” or impose pronouns as a matter of policy to avoid lawsuits? How would that work? Will religious universities be able to keep single-sexed dorms? These are questions for legislators to work out through democratic compromises and deliberation.
Gorsuch admits candidly that it was “beyond the imagination” of the drafters of the 1964 law that it would work in this way. And certainly they did not imagine that they had criminalized asking women to dress in a sex-specific uniform for work, or had obliged all American employers to implement policies consistent with an ever-evolving gender theory that was invented decades after the law.
But Gorsuch seems to smirk in the text when he outlines what remains beyond his imagination. The end of the Bostock decision contains a breathtaking and contemptuous taunt aimed at religious conservatives whose support was utterly crucial to him achieving his position on the Supreme Court.
“What are these consequences anyway?” Gorsuch asks, about his ruling’s effect on single-sex bathrooms, locker rooms, dress codes, and the thousands of items of normal life where anti-sex-discrimination law may play a role. He cannot say, because “none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today.”
No adversarial testing? No kidding. The Court is not a legislature, and when it effects a far-reaching outcome from nothing, it doesn’t receive pushback from other constituencies, or accountability from voters below. As Gorsuch’s supposed hero, Justice Scalia once asked: “Who is my ruler?”
What’s worse is that Gorsuch comes skulking into these deeply contested culture war issues like Elmer Fudd, holding both the gun and the sign that says Rabbit Season. He announces lazily, “How these doctrines protecting religious liberty interact with Title VII are questions for future cases too.” A court’s job, traditionally is to settle controversy, but Gorsuch embraces his role in generating more.
He cites the existence of the Religious Freedom Religious Act as a piece of legislation that interrupts other federal mandates, as if that should comfort those displeased with the ruling. But he’s no dummy. He knows that RFRA defenses have never succeeded in anti-discrimination cases. So what he’s written is just an invitation to sue your local (or distant) religious bodies and institutions so that we might one day discover what’s in his ruling. Gorsuch has demanded “adversarial testing.” And religious conservatives are going to get some of it, good and hard.