A US Supreme Court decision last month – the Bostock case – expanded the scope of federal civil rights legislation: it is now illegal to discriminate against employees on the basis of sexual orientation and gender identity. It was a controversial decision, both on legal grounds and because of its possible consequences.
In his dissenting opinion, Justice Samuel Alito argued that the Supreme Court had assumed the legislator’s role. They were asked to interpret the 1964 Civil Rights Act, not to create a new law. “Many will applaud today’s decision because they agree on policy grounds,” Alito wrote. However, “the question in these cases is not whether discrimination because of sexual orientation or gender identity should be outlawed. The question is whether Congress did that in 1964.”
Justice Alito was extraordinarily blunt: “The document that the Court releases is in the form of a judicial opinion interpreting a statute, but that is deceptive,” he wrote. “There is only one word for what the Court has done today: legislation.”
Critics of the Supreme Court’s ruling, like Prof Robert P George of Princeton University, also argue that the logic of the opinion extends far into other areas of life. Basically: if persons are protected by statute, for the reasons given, from employment discrimination based on sexual orientation or gender identity, then the same logic applied to other areas of life – and the laws that govern them – will lead to similar real-world conclusions.
“The legislation handed down by the Court will have far-reaching consequences, including the eventual destruction of all-women’s sports,” Prof George wrote for Mirror of Justice, a blog dedicated to the fostering of Catholic legal theory and affiliated with Notre Dame law school.
In a conversation with the weekly podcast, Catholic Herald: Behind the Headlines, Prof George said: “It’s all well and good to say that this issue or that issue – women’s locker rooms, women’s shelters, women’s sports … ‘Well, those aren’t before the Court now, so we’re not going to deal with those.’ Or, it is all very well to say, ‘We didn’t have adversarial briefing and full argument on those issues, so we can lay those aside. That’s all well and good, but it does not erase the merciless relentlessness of logic.”
Those real-world consequences, he said, could well be “down the line,” but the Court has “put in place the predicates that allow the logic to unfold, and make it hard to stop.”
The judicial branch is supposed to be “apolitical”, but this is the Age of Trump and the US is headed for a presidential election in December. Many conservative voters, who have a very hard time stomaching Donald Trump, nevertheless held their noses and voted for him in 2016, in hope he would make good on his promise to nominate Supreme Court Justices who would hold the line on social issues. Neil Gorsuch was supposed to be one of those Justices, but in this case he authored the majority opinion.
“Those people will be totally demoralised,” Prof George said. “We have a trope,” George went on to say. “‘But Gorsuch!’ So, whatever crazy thing Trump does or says, whatever embarrassing, buffoonish thing he does or says, those who hold their noses and still support him and plan to vote for him just as they did in 2016 will say: ‘Yes, he really embarrassed us, he really embarrassed himself – what he said is silly, what he said is ridiculous, what he said is bad – But Gorsuch!’ Well, ‘But Gorsuch!’ just disappeared.”
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