In the wake of Bostock v. Clayton County, conservatives are disappointed and fearful. Here’s why they should temper their pessimism and perhaps even be optimistic.
The Supreme Court’s ruling Monday (June 15, 2020) in Bostock v. Clayton County has ignited understandable disappointment and fear among conservatives, especially religious conservatives.
Conservatives are disappointed that two generally conservative justices, Gorsuch and Roberts, sided with the Court’s four left-wing justices to find new and hitherto unknown meaning in Title VII of the Civil Rights of 1964. Gorsuch, in fact, authored the majority opinion.
Title VII prohibits employment discrimination “because of” an individual’s “race, color, religion, sex, or national origin.” Now, however, because of the Court’s decision, Title VII also prohibits employment discrimination because of sexual orientation or gender identity.
For many Americans, especially those of a more secular bent, this is really not a big deal. After all, as David French observes at The Dispatch,
A combination of company policies and state and local laws have led to workplaces that already refused to discriminate on the basis of sexual orientation or gender identity.
For religious institutions, however, the consequences are potentially dramatic.
Should Christian colleges and schools be subject to lawsuits for upholding church teachings on human sexuality?
Does this case mean that the law now views Christians as akin to klansmen, and thus brings religious institutions one step closer to losing their tax exemptions?
This is a legitimate concern. Every major religion that I am aware of—Christianity, Judaism, Islam, Buddhism, Hinduism, certainly—contains longstanding proscriptions on sodomy and homosexual behavior.
But if these proscriptions are now considered unlawful discrimination, then what is to become of religious liberty in America?
This is hardly an academic matter. Religious liberty cases, in fact, are very much in dispute today, as religious institutions and religious believers who seek to live out their faith fight back against charges that they are unlawfully “discriminating” against gays and lesbians.
Whither Originalism? Moreover, if even conservative or originalist justices like Gorsuch and Roberts can essentially rewrite legislative statutes to comport with left-wing secular orthodoxy, then what is to become of the separation of powers, democratic self-rule, and the restoration of Constitutional government?
This, too, is a legitimate concern, as the courts continue to make legislative decisions that are well beyond their purview. The discovery of a hitherto unknown Constitutional right to homosexual marriage in Obergefell v. Hodges (2015) is the most recent example of this worrisome, decades-long trend.
Still, I think the pessimism that many conservatives feel right now—and which I share to a considerable extent—must be tempered by three important considerations.
1. Statutory Decision. Because Bostock v. Clayton County is a statutory and not Constitutional decision of the Court, it can be altered, changed or modified by new Congressional legislation.
True, because the cultural zeitgeist is decidedly secular and hellbent on stopping anything that might conceivably be called “discrimination” against allegedly oppressed or disadvantaged groups, legislative changes to Title VII are unlikely.
That, however, doesn’t change the fact that, unlike the Court’s Constitutional decisions, Bostock v. Clayton County does not preempt and deny democratic decision-making by the American people.
Indeed, Congress still has the right and responsibility to define the parameters and limits of anti-discrimination law.
2. As French points out:
[In his decision], Justice Gorsuch goes out of his way to reassure that the guarantee of free exercise of religion “lies at the heart of our pluralistic society.”
Provisions in Title VII itself provide limited religious liberty protections, the First Amendment is of course still applicable, and—as Gorsuch notes—the Religious Freedom Restoration Act also acts as a “kind of super statute, displacing the normal operation of other federal laws.”
Moreover, there are a series of cases already on the court’s docket that are likely (based on judicial philosophy and court trends) to [protect religious liberty to a considerable extent].
In short, the First Amendment guarantee of religious liberty, specific provisions within Title VII itself, and the Religious Freedom Restoration Act all may trump Bostock v. Clayton County in specific cases and controversies soon to come before the Court.
“Stay tuned!” says French.
A year from now, the jurisprudence could look largely like this: Secular employers are fully subject to each element of Title VII while religious employers enjoy a broad ministerial exception and a more robust free exercise clause.”
3. Textualist Decision. While there can be no doubt that the Court has written new meaning into Title VII—a meaning that no one who drafted or voted on the legislation in 1964 ever imagined—it did so for explicitly textualist reasons—that is, reasons grounded in the plain meaning of the statute itself.
This is very different from most left-wing jurisprudence (such as the infamous 1973 Roe v. Wade abortion-rights decision), which makes little or no pretense to being tethered or moored to the Constitution or legislation that it purports to interpret and apply.
So while conservatives certainly can lament the result of the Court’s decision in Bostock v. Clayton County, they should be comforted by the fact that the majority nonetheless reached its decision in an explicitly originalist manner.
This originalist argument may be a complete ruse. It may be, as Justice Alito declared in his forceful dissent, “a pirate ship [that] sails under a textualist flag,” while, in fact, representing “the theory that courts should ‘update’ old statutes so that they better reflect the current values of society.”
That may well be true. But just as hypocrisy is the tribute that vice pays to virtue; so, too, is a faux textualism the tribute that left-wing or progressive justices pay to originalist or conservative justices.
In other words, although conservatives may have lost this particular case, we seem to have won the larger-scale war over Constitutional and statutory interpretation if even left-wing or progressive justices feel obligated to justify their decisions on explicitly textualist grounds.
This doesn’t mean that the Court will always decide in our favor; however, it certainly increases the likelihood that it will.
More importantly, the recognition by the Court that it must tether its decisions to specific provisions of the Constitution and close and faithful readings of legislative statutes acts as an inherent constraint on judicial activism.
This helps to contain the Court’s more wildly progressive impulses and desire to legislate from the bench. This, obviously is a good thing that portends well for future Court decisions.
The bottom line: don’t be too despairing over Bostock v. Clayton County. While the result in this case is regrettable and worrisome, all is not lost. This is one case that hinges on one statute. And while its effects will be longstanding and widespread, the damage can be contained by both Congress and the Court in future legislation and in future cases.
Congressional action is highly unlikely; but future Court decisions are inevitable and much more likely to protect religious liberty. The Court, meanwhile, seems to have accepted a more modest and limited role for itself by basing its decision on explicitly textualist grounds.
Granted, this modesty may not be apparent in this decision—a decision Justice Alito derides as a “brazen abuse of our authority to interpret statutes.”
Still, by acknowledging that its decisions must be tethered and moored to explicit Constitutional and legislative provisions, the Court implicitly recognizes that there are real limits to what it can do—limits that likely will become increasingly apparent over time.
Stay tuned.
Feature photo credit: Justice Neil Gorsuch in The Federalist.