This past Monday the Supreme Court frustrated the rule of law and invited a tsunami of future federal employment discrimination lawsuits. In a 6-3 decision, the court held in Bostock v. Clayton County that Title VII – the federal law prohibiting discrimination in employment based on sex – makes it unlawful for an employer to fire an individual for being gay or transgender. Gay- and transgender-rights advocates are hailing the high court’s sweeping and new interpretation of Title VII as a great victory. Catholics should be concerned about Bostock’s lame reasoning and troubling implications.
The future demands of the Bostock decision raise serious questions for Catholic-run organizations. Will Catholic schools teaching their students that marriage is between a man and a woman be obliged to hire a teacher in a same-sex marriage? Will Catholic hospitals be forced to perform sex-reassignment surgeries or face stiff penalties? We will have to wait for Bostock’s progeny to resolve these questions.
Title VII of the Civil Rights Act of 1964 makes it “unlawful … for an employer to fail or refuse to hire or to discharge any individuals, or otherwise to discriminate against any individual … because of such individual’s race, color religion, sex, or national origin.” Over the last five decades, it has opened up opportunities for women in the workforce and curtailed workplace sexual harassment. Sadly and surprisingly, Monday’s Bostock decision expands the law’s prohibition well beyond what lawmakers – and even the lower courts – have understood for years.
Bostock consolidated three cases. Two of the lawsuits were brought by former employees alleging they were fired because of their sexual orientation. In the third, the U.S. Equal Employment Opportunity Commission claimed an employee was unlawfully terminated because of his transgender status. Writing for the Bostock majority, Justice Neil Gorsuch said that the three lawsuits could go forward.
Gorsuch is a highly respected member of the federal judiciary, and his record on the Supreme Court has been exemplary. Until Monday. Bostock is a disappointing aberration. A self-proclaimed “textualist,” Gorsuch claims he is faithful to the notion that “laws say what they mean and mean what they say,” and his Bostock opinion uses the language of textualism. But it hijacks this language in an egregious betrayal of textualism.
The Bostock majority ruling starts off on solid footing. “This Court normally interprets a statute in accord with the ordinary public meaning of its terms at the time of its enactment,” Gorsuch wrote. The majority proceeded “on the assumption that ‘sex’,” the statutorily protected characteristic at issue in the cases, refers “only to biological distinction between male and female.” So far, so good. From there, however, the majority relied on assertions found nowhere in the text of Title VII or in the common understanding of “sex”. “Homosexuality and transgender status are inextricably bound up with sex,” the majority insisted. “It is impossible,” therefore, “to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
The Bostock opinion’s sleight of hand did not go unnoticed among Gorsuch’s current colleagues. Justice Samuel Alito, joined by Justice Clarence Thomas, wrote a lengthy and scathing dissent. “There is only one word for what the Court has done today: legislation,” wrote Alito. As for the majority’s fidelity to “high textualism,” the dissenters were not convinced: “Without strong evidence to the contrary (and there is none here), our job is to ascertain the ‘ordinary meaning’ of the statute. And in 1964, ordinary Americans most certainly would not have understood Title VII to ban discrimination because of sexual orientation or gender identity.”
In a separate dissent, Justice Brett Kavanaugh similarly bristled at what he called the majority opinion’s “literalist approach.” The newest justice on the high court explained that “a society governed by the rule of law must have laws that are known and understandable to the citizenry. And judicial adherence to ordinary meaning facilitates the democratic accountability of America’s elected representatives for the laws they enact.” Most everyone in 1964 (and now) understood that sexual orientation discrimination to be different from sex discrimination.
Bostock is consequential not simply because it amends Title VII by judicial fiat. That’s consequential – and troubling – enough. But there’s more Bostock-made mischief ahead. “Over 100 federal statutes prohibit discrimination because of sex,” observed Alito in his dissent. Bathrooms and locker rooms, women’s sports, campus housing, employment by religious organizations and healthcare – all are fodder for those asserting a legal claim based on Bostock’s re-definition of “discrimination based on sex.” Even the Bostock majority recognized that complying with Title VII’s requirement may “require some employers to violate their religious convictions” and that the protections afforded under the First Amendment and the Religious Freedom and Restoration Act of 1993 are “questions for future cases too.”
Law shapes culture. The implications of Bostock go far beyond exposing Catholics to new legal liabilities. Archbishop José H. Gomez of Los Angeles, president of the U.S. Conference of Catholic Bishops (USCCB), was “deeply concerned” by the reasoning employed in Bostock. In a statement given just hours after the court issued its opinion, Gomez stated that “by erasing the beautiful differences and complementary relationship between man and woman, we ignore the glory of God’s creation and harm the human family, the first building block of society. ... No one can find true happiness by pursuing a path that is contrary to God’s plan.”
Objecting to Bostock in no way endorses bigotry, hate or violence. As Archbishop Gomez explained in restating Catholic teaching, “Every human person is made in the image and likeness of God and, without exception, must be treated with dignity, compassion, and respect. Protecting our neighbors from unjust discrimination does not require redefining human nature.”
Monday’s Bostock opinion betrays the humble principles guiding textualism and adds to deep confusion regarding human sexuality. For these reasons, Catholics should join the three Supreme Court justices and respectfully dissent.
Andrea Picciotti-Bayer is legal adviser for The Catholic Association Foundation.
She is the co-host of Conversations With Consequences on EWTN Radio Saturdays at 5pm Eastern.