Law & the Courts

A CHAZ of Our Own

LGBTQ activists and supporters hold a rally outside the U.S. Supreme Court as it hears arguments in a major LGBT rights case on whether a federal anti-discrimination law that prohibits workplace discrimination on the basis of sex covers gay and transgender employees in Washington, U.S., October 8, 2019. (REUTERS/Jonathan Ernst)
SCOTUS marks the ‘secular’ as a zone of taboo and superstition, and the Church as a refuge from ideological cant, metaphysical impossibility, and bullying.

The Supreme Court has put a strange mark on the church, one that could gradually shift its place in our culture.

There have been numerous attempts to understand just what it is that the ruling philosopher-kings on the Supreme Court intend for the country. Nettlesome political problems that should be dealt with in Congress, the place where contrary interests are supposed to be conciliated through compromise, are instead simply kicked over to the big bench. In this term the Court swung surprisingly far in one direction, with two conservative justices ruling in Bostock that the plain text of the 1964 Civil Rights Act, which forbids sexual and racial discrimination, also forbids discrimination based on sexual orientation and “transgender status.” In the following weeks, religious-liberty protections were expanded with the help of two liberal justices, in rulings that would effectively prevent religious schools from being subjected to Bostock.

Just what is happening here?

My colleague at the American Enterprise Institute, Adam White, argues these decisions may very well be related, writing that “the Court’s earlier decisions on sexual orientation, gender identity, and other issues might have been facilitated by the fact that religious liberty moderates their impact.”

David French, meanwhile, writes that in the absence of legislative action, the Court seems to be trying to hammer out a compromise itself, and that the results look a great deal like Utah’s legislative attempts at compromise on these issues, often called “Fairness for All.” He holds that the Court’s recent decisions followed a pattern laid out in the conclusion of Justice Anthony Kennedy’s decision legalizing gay marriage nationwide, which held that there was no rational basis for the law to discriminate against same sex couples, but that religious believers were due “proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.”

“The court is extending nondiscrimination protections in secular spaces while blocking targeted discrimination against people of faith,“ French writes. “Religious institutions have more autonomy. The secular workplace is now more open to LGBTQ Americans.”

There are still a great many unanswered questions. While it is obviously true that religious schools are places where religious people “teach the principles that are so fulfilling and so central to their lives and faiths,” they’re not the only such places. Nor is it the case that merely advancing moral claims is the only or primary way that religious people practice their faiths. How will religious hospitals operate? Can private “secular” employers oblige behavior from their employees in such a way that conscientious religious people are driven to quit, or would that sort of thing fall afoul of our traditional understanding of civil-rights legislation, which would look askance at actions that have a disproportionate impact on religious minorities?

The First Amendment and the religious-freedom legislation that was used to bolster it were designed to give the entire American polity — believers and non-believers alike — the character of a free nation. And that is a problem, because as we unpack the “T” and “Q” in LGBTQ, we find gender theories that are rejected by at least as many secular Americans as religious Americans. The Bostock decision elides this issue by obliging employers to treat trans women as women. But for many in the sexual-identity wars, “fluid” and “non-binary” identities are part of the cause too. How will those work?

For several centuries, the Christian Church has been denounced by liberals as a hothouse of oppression, shame, and guilt, a place where people go to be told the rules and ordered around by clerics spouting unprovable metaphysics. But in a curious way, what the Supreme Court has done has marked the church as a zone of freedom — the Calvary Hill Autonomous Zone, if you will. Don’t want to be dragooned into a social project of “disrupting the nuclear family” or overturning cisgender privilege? Want to live in a world where women and only women become mothers, and where you’re free to say there is a “male and female”? Then I’d suggest you find faith, because the Court has made being free to live in nature contingent upon the acknowledgement of nature’s God. The “secular” is now marked as a zone of taboos and superstitions, and the church as a house of freedom from ideological cant, metaphysical impossibilities, and bullying.

Come on in.

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