• What if all the cops come out as trans?
• The day before yesterday, going to get a haircut in Alpharetta was akin to Moloch-worship: “Georgia’s experiment with human sacrifice,” The Atlantic called the state’s effort to open up a little bit after the lockdown. Donald Trump’s planned indoor rallies were denounced as a crime against humanity. About five minutes later — as coronavirus cases continued to climb in most of the country — mass gatherings in the tens of thousands took place with the blessing and encouragement of the same scolds who had waxed apocalyptic about reopening the economy in DeKalb County. The epidemiologists got with the program very quickly: “Racism and police violence are major threats to public health in this country, and protest is one of the only options available to people who have been systematically disenfranchised,” Eleanor Murray of Boston University told the New York Times. One cannot help but notice that the crimes against humanity were proposals in Republican-leaning states, possible Trump rallies, and church services — the festival of filth and violence unspooling in Seattle right now is, on the other hand, to be considered holy work. Our inclination would be to err on the side of caution when it comes to an unfamiliar and unpredictable virus. But, then, our inclination would also be to err on the side of caution before turning an American city over to a violent left-wing militia.
• The portion of Seattle that is, as of this writing, controlled by a left-wing militia has changed its name from “CHAZ” (“Capitol Hill Autonomous Zone”) to the more Jacobin-affirming “CHOP,” for “Capitol Hill Organized Protest.” The reference to the guillotine of centuries past is not accidental, but the new Jacobins are carrying out their new terror with thoroughly modern tools — the semiautomatic rifles and handguns that their Democratic patrons frequently have proposed prohibiting. It is no great surprise that relevant firearms laws are being flouted under the noses of Democratic authorities who have always been more enthusiastic about passing than enforcing them. What is happening in Seattle is not a protest but an armed occupation, and the municipal powers in that city have abandoned the neighborhood. This is not the first time a Democrat-dominated city has abandoned a neighborhood to political violence and lawlessness: New York and Occupy Wall Street, Baltimore and its approved riot zones, etc. Mayor Jenny Durkan says what’s happening is like a “block party,” and one of the leaders of the Seattle militia was caught on video distributing semiautomatic rifles (almost certainly illegally) to youngsters — some party favors. The city of Seattle is prepared to do exactly nothing about this. The State of Washington under Governor Jay Inslee is by all indications content to acquiesce. Perhaps our progressive friends who have been warning us all these years about armed militias were right after all.
• Stone people are easy to cancel — they move slowly, and they can’t talk back — but it is also easy to go overboard. Statues of poet John Greenleaf Whittier and inventor Matthias Baldwin were defaced in Whittier, Calif., and Philadelphia respectively. Both were abolitionists, but since they look white and old-fashioned, that was enough. In London, a statue of Winston Churchill had the phrase “was a racist” graffiti’d after his name. By our standards, he certainly was, though we honor him for defying and defeating one who was rather worse. And in Albany, N.Y., Mayor Kathy Sheehan ordered Revolutionary War general (and owner of a dozen slaves) Philip Schuyler removed from City Hall. She did not reflect that the reason she, rather than the illegitimate son of some duke, is mayor of Albany is that Schuyler and his comrades fought for self-rule. Self-rule has its risks: The people may elect demagogues, or numbskulls. But on the whole, we appreciate it — as we should appreciate Schuyler.
• Among the statues struck down in the protests and riots were three of Christopher Columbus (Boston, Richmond, St. Paul). Another in Philadelphia may be moved. In New York City, Governor Andrew Cuomo and Mayor Bill de Blasio favor keeping him in Columbus Circle. Columbus has been a figure of controversy since the quincentennial of his landfall in the Bahamas. He was a complex man: bold, visionary, mystical, willful, brutal. The world he discovered was not Eden: Pre-Columbian Americans fought each other, as men have in all times and places; some of them practiced cannibalism and human sacrifice. Columbus and the explorers and conquerors who followed him brought more developed techniques of destruction, as well as diseases that were equally lethal. But they also brought Christianity and science, the fruits of Jerusalem and Athens — us, at our best. That is one reason he is a hate figure for those Americans who hate the world they live in and, ultimately, themselves.
• Confederate statuary poses a clearer case. Many of these stationary rebels were erected across the South to celebrate the post-Reconstruction, post-“redeemer” imposition of Jim Crow, as well as to honor the dead. These might better be redeployed to museums. Military bases named for CSA generals are not so clear. These men were oath-breakers and traitors, though they were later restored to their civil rights. Yet it is safe to say that Braxton Bragg and John Bell Hood are now much less well known than their eponymous bases (they were also disastrous generals for their own side). What about waving the Confederate battle flag at NASCAR? “The Night They Drove Old Dixie Down”? “Dixie” itself (written in pre-war New York City for a minstrel show)? As time passes, signifiers such as these fade into regionalism and high spirits. Politically, they attest, in Eliot’s judgment on an earlier civil war, “the constitution of silence.”
• Black lives matter; of course they do. But what about Black Lives Matter, the movement? Like any large movement, it has a penumbra — at this moment, immense — of sympathizers, and a core of activists. Four years ago, the Frontier Center, a conservative opinion-research and -messaging firm, interviewed a cohort of BLM activists and found a radical leftist sensibility, opposed to capitalism and patriarchy. Police were the immediate face of the enemy — “Yes, We Mean Literally Abolish the Police,” as a recent New York Times op-ed headline put it — but American society as a whole is the ultimate target. “Black Lives Matter’s core message,” the Frontier Center concluded, “is built upon, depends upon, and has as its ultimate goal the larger retelling of the American story as one of oppression and racism.” It is both Occupy Wall Street by another name and a direct descendant of Sixties radicals–turned–academics. Protest peacefully if you will, but keep an eye on who wields the bullhorns.
• The campaign to “defund the police” has split Democrats into three camps. A small group claims that we should literally abolish the police; another group says it is a vicious lie to claim the words should be taken that way; and another group is staying quiet rather than denouncing the idea. Camden, N.J., has been held up as a promising example of what a not-literal defunding of the police could look like. In that case, what “defunding” meant was busting the police union and putting more cops on the beat. Homicide rates are way down. The compromise is obvious: Restrain the unions, deploy more cops to high-crime areas, and let progressives call it whatever they want.
• President Trump’s walk across Lafayette Square continued to make headlines, as current and former generals criticized the move. General Mark Milley, chairman of the Joint Chiefs, said in a commencement address that he should not have accompanied Trump (he believed they were going to review National Guardsmen stationed in the square). “My presence in that moment and in that environment created a perception of the military involved in domestic politics.” Former defense secretary James Mattis wrote a piece for The Atlantic, scorching Trump as a divisive figure itching to use the military to deprive protesters of their constitutional rights. Trump in reply tweeted that Mattis was overrated and that he had “fired” him. Trump was insulting and dishonest (Mattis in fact resigned over a dispute about Syria policy). Mattis was overheated: Trump wanted to use the Army to restore order — something Eisenhower and Bush 41 both did. Trump’s short fuse, his vainglory, and his impatience with protocol are not qualities the brass wish to be associated with.
• An incident in Buffalo, N.Y., was filmed by a local media outlet and repulsed the nation. Two police officers shoved a 75-year-old activist, Martin Gugino, who fell to the pavement. He hit his head, hard, and lay there bleeding. On the One America News Network, Kristian Rouz broadcast a theory. Rouz is a seasoned Russian propagandist who has worked for Sputnik, the Kremlin propaganda outlet. His theory was that the incident in Buffalo was “a false-flag provocation by far-left group Antifa.” President Trump, a consumer of OANN, quickly tweeted out this theory. In defense of the president, his press secretary, Kayleigh McEnany, said the following about Martin Gugino: “This individual has some very questionable tweets.” So, alas, does her boss.
• Where the George Floyd killing was a clear-cut case of police abuse, the shooting of Rayshard Brooks in Atlanta is, at minimum, highly debatable. After failing a sobriety test, Brooks fought off two officers as they tried to arrest him, stole one of their Tasers, fled, and while running turned around and discharged the Taser at a pursuing cop. Immediately thereafter, with Brooks still in possession of the Taser but running away, an officer shot Brooks fatally. Tasers are designed to incapacitate human beings, leaving them vulnerable, and are considered “less lethal” rather than nonlethal because sometimes they kill. This shooting is likely justifiable under Georgia law, given the ongoing threat Brooks posed to the officers chasing him and his possession of a dangerous weapon, and local authorities’ attempt to prosecute the officer appears ill fated. But police departments should take a close look at how officers are trained to respond to situations like this one.
• In mid March, with COVID-19 cases surging, policymakers implemented business closures and stay-at-home orders as emergency measures. Now that the national capacity to respond to the pandemic is markedly stronger — evidenced by a greater supply of hospital beds, ventilators, and personal protective equipment — governors and mayors are rightly rolling back those measures. But if anyone was under the illusion that reopening would be an easy process, the experience of the past few weeks put paid to that belief. Arizona saw an increase in hospitalizations in early June, while Florida recorded its largest single-day increase in cases. These data call not for more emergency measures, but for smarter public policy. Indoor mask-wearing has proven effective in reducing transmission of the virus, but opportunistic politicians and pundits have turned face masks into a culture-war totem. Opposition to masks was no doubt bolstered by misleading messaging from public-health agencies and the mainstream media early in the pandemic. Contact-tracing programs, which equip public officials to isolate new cases, enabled South Korea to avoid the stringent social-distancing measures seen in the U.S. But in New York, the city hit hardest by COVID-19, Bill de Blasio instructed tracers not to ask coronavirus patients whether they’d attended protests. Perhaps the culture war will have literal casualties.
• Two churches in the Twin Cities area are suing Minnesota governor Tim Walz, claiming that his shutdown orders to mitigate the pandemic violate their First Amendment right to free speech and assembly. Several small businesses have joined in the lawsuit. The terms of the shutdown orders that apply to the various plaintiffs differ from those that apply to “similarly situated” institutions and businesses, the complaint reads. They argue that the disparate treatment violates the equal-protection clause of the 14th Amendment. Since the complaint was filed, Walz has relaxed the shutdown rules, allowing churches to open at 25 percent capacity. Small businesses, though, can operate at 50 percent capacity, and the two churches are still pursuing the lawsuit. Meanwhile, Senator Josh Hawley (R., Mo.) has asked Attorney General Bill Barr to investigate jurisdictions that cap attendance at religious services while permitting large outdoor protests. Granted, perhaps hundreds of people congregated indoors pose a greater risk of spreading the coronavirus than do the same number gathered outdoors. But perhaps not. Government officials who rule in effect that religious services and political protests are not “similarly situated” should be pressed to justify their decisions. Good for Hawley and the Twin Cities churches.
• It was a miserable spring for President Trump’s reelection campaign. He is down in the national polls, and by more than he was against Hillary Clinton at this point in 2016. He is behind in averages of five states he won last time, and barely ahead in a few more. Older voters, who were strongly behind him last time, are wavering. The good news is that he is still ahead on the economy, and the economy itself is recovering. The better news is that these polls will surely tempt Democrats to overplay their hand.
• The recession appears to have ended before the National Bureau of Economic Research officially announced that it had begun. In mid June, the Dow Jones was roughly where it had been a year previously. The May employment report was a record-breaker, with 2.5 million new jobs. Consumer spending and sentiment are both up sharply. On the other hand, permanent layoffs cost 255,000 jobs in May even as temporary layoffs were being reversed. It’s too soon to say we are in a “V-shaped recovery,” but at least we are on the upward side of the slope.
• A bill sits on the president’s desk, waiting for signature: the Uyghur Human Rights Policy Act. The Uighurs, remember, are the Turkic people in northwestern China who have been rounded up and thrown into a gulag. The U.S. act would require the executive branch to keep Congress informed about what the Chinese government is doing to the Uighurs. It also calls on the president to impose Magnitsky sanctions on Chen Quanguo, the gauleiter of the region (Xinjiang Province, or, as the Uighurs call it, East Turkestan). The bill passed the House by a vote of 413 to one. The “nay” vote was cast by Thomas Massie (R., Ky.), who said, “When our government meddles in the internal affairs of foreign countries, it invites those governments to meddle in our affairs.” If we ever truly run a gulag, they can interfere away.
• Kim Yo-jong issued a sinister threat against South Korea. Addressing North Korean media, the younger sister and top adviser of North Korean dictator Kim Jong-un stated: “I gave instruction to the . . . department in charge of [enemy] affairs to decisively carry out the next action.” In addition, Kim Yo-jong announced that North Korea would demolish an inter-Korean liaison office, and the North Korean military subsequently threatened to move troops into the DMZ. The first threat has been carried out. All of them come in the context of recent diplomatic differences. Defectors and activists in South Korea have been sending rice and anti-North messages by balloon and bottle to subjects of the Communist regime. Pyongyang insists that these are serious threats to peace and security. Kim Jong-un would probably not need to worry as much about defectors if he ceased to imprison his people without due process and to impoverish children while hoarding billions of dollars, but autocrats tend to prefer pointing fingers.
• Maria Ressa is a thorn in the side of Rodrigo Duterte, the Filipino strongman. She is a journalist, who co-founded Rappler, a news site. Duterte has hurled the phrase “fake news” at her. At the end of 2018, Time magazine called a group of journalists “Person of the Year,” collectively. The magazine was honoring them for their courage. Maria Ressa was among them. She was arrested in February 2019 — “cyber-libel” — and has now been convicted. As of this writing, no sentence has been handed down. But we commend those who practice journalism in the most daunting circumstances, and remember how lucky we are to have the First Amendment, and the rule of law.
• Will American companies play by American rules? Zoom deactivated the accounts of Chinese dissidents at the behest of Beijing. Its actions coincided with the 31st anniversary of the Tiananmen Square massacre, an event effectively expunged from the Chinese Communist Party’s history books. While Zoom asserted a commitment to local laws, it also interfered with meetings hosted by dissidents in the U.S. that included both Chinese and American attendees. Zoom was already facing scrutiny for allegedly routing users’ data through Chinese servers, though it claims this was an accident. In the end, however, Zoom responded to dissidents’ complaints and reinstated the accounts. A company that enables free speech ought to stand for it.
• A group of female members of Parliament in the United Kingdom have introduced an amendment to government legislation that would require police to treat misogyny as a hate crime. Five police forces in the U.K. have already adopted this approach voluntarily. If the amendment passes, government ministers will be required to issue guidance to police on “the relationship between domestic abuse and offences involving hostility based on sex.” No new statutory offense is proposed in the amendment, so perpetrators would not be subject to prosecution for acts of misogyny as they currently are for crimes committed against other protected classes (race, religion, disability). The government legislation in question is the Domestic Abuse Bill, which seeks to address the physical and psychological mistreatment of women by their spouses. The consultation process for incorporating misogyny into new legislation is scheduled to begin next month. The stated intention is to encourage women to report acts of domestic violence and unwanted sexual contact, and if that works, it will be all to the good. If it is used to criminalize the expression of opinions deemed “misogynistic,” it will be a step in the wrong direction.
• As cancel culture swept through college campuses in recent years, economics departments were seen as the last bastions of free thought. No longer. University of Chicago macroeconomist Harald Uhlig found himself on the receiving end of a cancellation campaign led by Paul Krugman and others. Uhlig’s offense? Daring to question the wisdom of calls by Black Lives Matter to defund the police, comparing them with flat-earthers. Soon, Janet Yellen joined the denunciation, calling Uhlig’s comments “extremely troubling.” Within days of his post, he had been suspended from his job at the Journal of Political Economy and stripped of a consulting gig with the Chicago Fed. The University of Chicago put him under review over an allegation of classroom bullying that came out during this controversy. The silence of most of Uhlig’s colleagues indicates that they are calculating the costs quite well.
• The California Institute of Technology, a prestigious STEM-focused institution, announced that it will be enacting a two-year moratorium on the use of the ACT and SAT standardized tests for purposes of admission. The school’s stated reason: “the global COVID-19 pandemic and its continuing impact on access to these exams for students across the country and globe.” The director of undergraduate admissions, however, added: “Caltech is committed to access and equity. These changes were made in recognition of our responsibility as an institution to amplify those values by ensuring that our programs are accessible to all qualified and interested applicants.” Applicants to Caltech will now be judged by way of three fuzzier metrics: the student’s coursework in high school, a math teacher’s recommendation, and the student’s ability to use math “naturally” in his or her everyday life. It is our hope that this announcement proves to be only an emergency measure, and not a sign that merit-based admissions will be another casualty of the pandemic.
• Berklee College of Music, in Boston, came under fire when it allowed a group of officers from the Boston Police Department to use on-campus toilet facilities during a citywide protest against police brutality. Berklee students were predictably enraged by the gesture, and college administrators issued a lengthy apology. College president Roger Brown said he was “deeply sorry for the impact” that the decision to allow officers into the restrooms “had on our community” — what impact was that, exactly? — and assured the student body that “this should not have happened, and going forward, it will not happen again.” Perhaps next time the officers will have to relieve themselves on the school’s façade.
• In a brief statement recently posted on its website, the Poetry Foundation denounces “systemic racism” and expresses its “solidarity with the Black community.” In swift retaliation, more than 1,800 poets and individuals with the foundation signed an open letter in which they slammed the statement for being “vague” and inadequate. They accused the foundation of elitism and demanded the resignation of the board chairman, Willard Bunn III, and the president, Henry Bienen. They resigned. “We dream of a world in which the massive wealth hoarding that underlies the foundation’s work would be replaced by the redistribution of every cent to those whose labor amassed those funds,” the letter reads. Tom Wolfe! Thou shouldst be living at this hour.
• J. K. Rowling, author of the Harry Potter series, got rich by inventing a magical universe of spells, potions, divination, transfiguration, and other wizardry. Yet not even she finds plausible a world in which a person can change gender merely by saying that it should be so. For her occasional posts questioning trans orthodoxy, she has been subjected to furious outbursts of Twitter hate, and she is currently being deluged with abuse for an essay in which she sets forth the reasons for her trans skepticism. Rowling is anything but a hard-liner; she accepts that reassignment treatment can be helpful for adults who suffer from genuine and long-lasting gender dysphoria, but she condemns the hard-sell tactics of the sex-change industry, its refusal to recognize that problems arise and that sex-changers often try to change back, its aggressive use of hormones to prevent puberty, and most of all its systematic suppression of any contrary opinion. No one will accuse Rowling of lacking an imagination. Evidently she also knows the difference between fantasy and reality.
• Among the offerings of HBO Max, a recently launched subscription streaming service, was the 1939 Oscar-winning film Gone with the Wind. John Ridley, a Hollywood director and screenwriter, found its presence there “painful” and penned an op-ed in the Los Angeles Times asking HBO to remove it. The company promptly complied, issuing a statement explaining that it would be “irresponsible” to make the film available without some sort of preface denouncing its “racist depictions.” HBO then announced that it would return the film to its catalogue at a later date, with a taped introduction from a black professor of cinema studies. Gone with the Wind’s critics are not wrong to point out that it romanticizes slavery, the antebellum South, and the Confederacy. These are not good reasons, however, to try to prevent people from viewing the film; nor should adults require a disclaimer “contextualizing” it. Learning about this country’s history and reasoning about right and wrong are basic duties of citizenship; treating people as if they are incapable of doing these things for themselves is a good way to ensure they become so.
• The Motion Picture Academy has announced that henceforth all films to be considered for Oscars will be expected to satisfy certain “diversity and inclusion” standards. The remake of Schindler’s List is really going to be something.
• What’s in a name? That’s something the members of the band formerly known as “Lady Antebellum” found out the hard way. On June 11, the group declared in a statement on Twitter that they were formally changing their name to “Lady A” and were “regretful and embarrassed to say that we did not take into account the associations that weigh down this word referring to the period of history before the Civil War.” Unfortunately for Lady A, the band immediately received pushback from Seattle-based black musician Anita White, who has been using the stage name “Lady A” for over 20 years. The band has achieved the hitherto impossible, simultaneously engaging in a publicity stunt, virtue signaling, and cultural appropriation.
• Drew Brees, the NFL quarterback, expressed an opinion about kneeling during the national anthem. “I will never agree with anybody disrespecting the flag of the United States of America, or our country.” He went on to speak of his grandfathers, who fought in World War II. He said that, when he stood to sing the national anthem, with his hand on his heart, he thought of the sacrifices our military had made. He also thought of civil-rights activists, and “all that has been endured by so many people up until this point.” When he made his statement, the world came down on his head. So Brees apologized, profusely and abjectly. Tony Dungy, the retired coach, gave an interview. He carries a certain moral authority, as the first black head coach ever to win the Super Bowl. (He is also a prince of a human being, Super Bowl victory or none.) Dungy said he would not “downgrade” Brees for his opinion. “He can’t be afraid to say that, and we can’t be afraid to say, ‘Okay, Drew, I don’t agree with you, but let’s talk about this.’” That would seem a banal statement: a platitude. But in the current environment, it is well-nigh heroic.
James Bennet of the New York Times. J. K. Rowling of the New York Times best-seller list. Economist Harald Uhlig of the University of Chicago. Oklahoma State football coach Mike Gundy. The Adventures of Huckleberry Finn. Paw Patrol. Starbucks managers. Obscure financial professionals. Winston Churchill. Abolitionists. Children. For the cancel mob, no job is too big or too small.
The New York Times has fired its opinion editor, James Bennet, for publishing opinions. The United States has a law called the Insurrection Act, which empowers the president to use troops to secure order and public safety when local authorities have lost the ability to do so and seek federal help. With a dozen American cities suffering from riots, looting, and arson, Senator Tom Cotton (R., Ark.) offered the Times an op-ed arguing for invoking the Insurrection Act. Senator Cotton sits on the Armed Services Committee and is a Harvard Law graduate, just the sort of person whose views on the question a self-respecting newspaper might wish to publish. But some Times staffers would prefer it be a political operation in journalistic drag. They insisted that simply publishing Cotton’s words exposed them to literal physical danger, that Bennet might as well have pointed a gun at them. Bennet groveled but got the boot anyway. His replacement promises to try not to publish anything that makes anybody uncomfortable: a rousing mission.
There has long been a censorious and suppressive tendency among progressives, which took on the name “political correctness” in the 1980s. That was, it is worth noting, not a label that was hung on the movement by critics, but rather the unironic Marxian nomenclature adopted by the would-be censors themselves. In our time, the emergence of social media and a Millennial subculture built on asinine coddling and infantile entitlement has turbocharged that repressive energy, creating what we now call “cancel culture.” In the earlier period, “canceling” was focused mainly on celebrities or high-profile public figures, and the criteria for canceling mostly had to do with real or perceived bigotry (Roseanne Barr and her Planet of the Apes tweet, Justin Trudeau and his blackface) or for acts of victimization à la Harvey Weinstein. But now the scalp-hunting has started to target ordinary and often obscure people, and the offenses in question have nothing to do with bigotry — they are a matter simply of having an unfashionable view of a public controversy, or of being somehow associated, however lightly, with that controversy.
The editors of Variety and Bon Appétit both lost their jobs after writing pieces in support of the recent protests and having their efforts judged insufficiently committed, i.e., for being the first people to stop clapping after Stalin’s speech. The Bon Appétit editor also was photographed dressed as a Puerto Rican caricature at a Halloween party 16 years ago; every bank manager in Tulsa who ever wore a sombrero to a Cinco de Mayo party in the 1990s is terrified that a photograph of it will turn up.
We endorse a culture of free speech and broad tolerance. The cancelers retort: “What we’re doing is free speech, too, not censorship!” And it is important to make the distinction between government efforts at suppressing speech and private efforts at suppressing speech. But private power can be abused: Most of the discrimination suffered by (to take only two examples) Jews and homosexuals in American history has been informal, and that discrimination mostly has taken the form preferred by the contemporary cancelers, including exclusion from professional opportunities and educational institutions. The day before yesterday, progressives were decrying the “blacklisting” of the McCarthy era or the anti-homosexual “lavender menace” panic. Today, they are the blacklisters, and they are led by journalists, including those at the New York Times, by academics such as Paul Krugman and Janet Yellen, and by corporate leaders in firms ranging from Google to Franklin Templeton. If it has not yet occurred to anybody on the left that making political conformism a criterion for gainful employment or university admissions might backfire, we can take that as a measure of his or her current confidence.
Democracy requires conversation. Conversation requires free speech, as a matter of law and as a matter of culture. If anyone should understand that, it’s journalists.
The Supreme Court Redefines Sex
In the Civil Rights Act of 1964, Congress took the unprecedented step of inserting federal anti-discrimination law into purely private employment decisions. It did so to address an urgent national crisis: the long shadow of state-backed racial discrimination. A mischievous opponent of the bill added “sex” to the list of forbidden bases for discrimination. Nobody at the time would have thought that the term “sex” meant “sexual orientation” or “gender identity at odds with biological sex,” yet the Supreme Court, in Bostock v. Clayton County, has said that it now does.
To begin with, this is an unhealthy way to make law in a democracy. The law is now read to mean something different in 2020 than even the most liberal justices would have said in 1964. Congress for years has been debating bills to amend the statute to cover these topics; the Court just did its work for it, and without any of the compromises or conscience protections that legislators typically debate. We understand what the Court’s liberal justices were up to, but a decent respect for democratic lawmaking should have cautioned Justice Gorsuch and Chief Justice Roberts against going down this path.
The decision steals a number of bases without admitting what it is doing. Men must get the same treatment as women, says the Court, but who is a man and who is a woman? In the transgender case, that is itself effectively the question, one better resolved by the people’s representatives if the law must decide it. The Court says that a man may not be fired for marrying a man if a woman would not be fired for marrying a man — but this is not discrimination on the basis of sex at all, it is discrimination on the basis of behavior. The Court says that it is not (yet) abolishing bathrooms and dress codes that distinguish by sex, but it is difficult to see how its rigid, ahistorical logic of “all must be the same” does not lead that way.
We think Justice Alito had the better of the argument: The law has long understood that sexual orientation and identity are distinct concepts from sex. When the military banned gays and lesbians alike from serving, or the immigration laws banned homosexuals from entering the country, the response was to change the law, not to pretend that the question was one of gender discrimination.
Imposing the framework of race discrimination blindly onto sexual matters has always involved additional complications better handled by legislative compromise. Will traditionally minded people now be brought up for workplace harassment for holding conventional opinions about marriage and human biology? The Court admits that its decision will drive it deeper into the thicket of conflict between anti-discrimination law and religious liberty, placing religiously orthodox Americans further on the defensive. It is precisely because of the interests to be balanced that it would have been better to leave the meaning of the law as it was when written, and leave to Congress the decision when and how to change it.
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