The U.S. Supreme Court’s recent Bostock v. Clayon County decision arbitrarily redefined the meaning of sex in the Civil Rights Act in order to specify “sexual orientation” and “gender identity.” The implications were profound. It was a crushing disappointment for many faithful Catholics.
Not only does the decision open the door to a potential flood of lawsuits against Catholic institutions that decline to conform their workplaces to gender ideology, it enshrines into law the profoundly damaging fiction that a person’s sexual identity is self-defined, not anchored in the immutable biological reality of being created male or female.
What is even more disappointing is that the author of this controversial redefinition of the Civil Rights Act is Justice Neil Gorsuch. After all, Gorsuch was appointed to the bench in 2017 by President Donald Trump on the specific understanding that he subscribed to the “textualist” and “originalist” schools of legal interpretation that are supposed to be safeguards against contemporary judicial reinterpretations that find hidden meanings within legislation that the laws’ framers had never intended to include.
But disappointing though Bostock may be, it’s no cause for despair: first, because for committed Christians nothing is cause for despair; and, second, because the unexpectedly negative outcome actually serves as a useful reminder that it is not enough for Catholics to pin their hopes too much on favorable Supreme Court rulings as a way to uphold a moral framework for U.S. society. Nor should we have an unrealistic view of the court as an infallible last line of defense on particular issues related to religious liberty, sanctity of human life, marriage and sexuality.
This upset of Bostock is only the latest in a string of decisions that failed in terms of advancing the moral truths of natural law. Two recent examples are Anthony Kennedy’s reasoning in Planned Parenthood v. Casey and Chief Justice John Roberts’ in June Medical Services LLC v. Russo, two abortion-related cases.
Catholic commentator Ross Douthat highlighted in a recent column that the adverse Bostock outcome is evidence of the failure of the strategy of relying on the appointment of conservative Supreme Court justices “to make the consistent case against the judicial usurpation of politics.”
“There was power and plausibility in this view, especially as embodied in the brilliance of the late Antonin Scalia,” Douthat wrote. “But it always reflected a slightly naïve view of how power works and grows.”
“For one thing, the law’s ambiguities provide ample space for even a mind that imagines itself constrained — even Scalia’s mind, in some cases — to argue its way into ruling on behalf of its ideological objectives,” Douthat added. “Meanwhile politics abhors a power vacuum, and our juristocracy has claimed new powers in part because Congress doesn’t want them, a tendency that originalism is powerless to change.”
So, given the demonstrated flaws of relying on the Supreme Court as a consistent or infallible protective bulwark, what is the alternative for Catholics?
Instead of relying on the Supreme Court — which will inevitably bring disappointment at times, given that it is not the purpose of the courts or of a particular judicial philosophy to communicate Catholic truths to a society that is losing its moral anchor — individual Catholics must bring their beliefs to bear at every level of society with renewed vigor, starting with their own families and parishes and engaging constructively with every element of the culture throughout the public square.
Certainly this will be an enormous challenge, but for Catholics it is also a very familiar one. At every time and in every place, we have been commanded to bear witness about the truth, goodness and beauty of the Good News that Jesus proclaimed to his followers 2,000 years ago.
And while there are particular challenges unique to contemporary societies whose citizens are collectively turning away from their ancestral Christian beliefs, it was for these precise circumstances that Pope St. John Paul II called for a New Evangelization as the Church embarked on its third millennium of announcing the Gospel.
“In contemporary culture there is often a weakening of the sense of the innate dependence of all human existence on the Creator, the capacity of the human mind to know the truth, and the validity of the universal and unchanging moral norms which guide all people in the fulfillment of their human vocation,” John Paul II advised a group of American bishops during their ad limina visit to Rome in 1998. “When freedom is detached from the truth about the human person and from the moral law inscribed in human nature, then society and its democratic form of life are imperiled.”
And the Pope specifically tasked America’s lay faithful with addressing this grave threat to their nation’s well-being.
“Because Christians have come to know Christ and the liberating force of his Gospel, they have a particular responsibility to contribute to the renewal of culture,” he said. “In this task, which pertains in a special way to the laity, Christ’s followers should not cease to make present in all areas of public life the light which Christ’s teaching sheds on the human condition.”
Those are words to prayerfully ponder anew in the wake of the Bostock decision.