Reno writes:
The Supreme Court’s decision in Bostock v. Clayton County offers a striking display of sophistry in service of the spirit of the age. The Court had to rule on whether Title VII of the 1964 Civil Rights Act bars employment discrimination on the basis of sexual orientation and gender identity. The 6-3 decision held that the Act does indeed forbid such discrimination.
Justice Neil Gorsuch wrote the majority opinion, which is said to be a straightforward textualist interpretation. Title VII stipulates that it is unlawful “for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”
There is no mention of sexual orientation or transgenderism. But Gorsuch has a clever argument. He notes that if a man identifies as a woman and is fired for doing so, then he is being fired for something that would be entirely OK if he were a woman.
The same holds for homosexuality. A man who has sex with men would not trouble someone who objects to homosexuality if he were a woman. Therefore, employment decisions based on rejections of homosexuality or transgenderism are, in truth, forms of discrimination on the basis of sex, which is prohibited by the 1964 Civil Rights Act.
Gorsuch is being too clever by half. As Reno points out, his reasoning fails the test of argument by analogy:
The logic of Gorsuch’s reasoning is elegant but unworkable. New York law prohibits discrimination on the basis of marital status, as do many other states. By Gorsuch’s reasoning, it would therefore be illegal to discipline or dismiss an employee for committing adultery.
Such an act would be acceptable if the person were not married, and thus to consider it cause for action amounts to discrimination on the basis of marital status.
Or consider a McKinsey consultant who presents as white but identifies as black. He insists upon his right to join the black consultants group at the firm. Any measure that McKinsey might take against him would count as racial discrimination for precisely the reason adduced in Gorsuch’s opinion.
Were the consultant black, his identifying as black would be acceptable. It is the fact that he is white that makes the situation difficult for the employer, who wishes to encourage support groups and mentoring for black employees.
Therefore, if disciplined, the white who identifies as black is being discriminated against on the basis of his race.Critics of the Bostock decision argue that it's another step in the abolition of free speech and freedom of religion. Those who would sue churches and religious schools for refusing to hire gay and lesbian employees whose sexual identity violates the tenets of the church's doctrine will now have even more powerful weapons at their disposal.
Reno asserts that,
Gorsuch piously denies that the decision has implications for bathrooms, women’s sports, and other aspects of civil life recently contested by LGBT activists. But it obviously does. The civil rights doctrine of “hostile environment” will be used to compel employers to enforce “preferred pronouns” and censure any statements of traditional sexual morality.
The Supreme Court has determined that stamping out discrimination is a “compelling state interest,” which can override many of our constitutional rights, including religious liberty (as the Bob Jones case indicates).There's more to Reno's column at the link. The court had to twist the Constitution to find in it a right to abortion in Roe in 1973. It had to twist it again to find in it a right to penalize under Obamacare those who didn't buy insurance and then again a right to gay marriage in Obergefell in 2015.
Now the court is again indulging in sophistry to justify the inclusion of sexual orientation and gender identity in the 1964 Civil Rights Act which makes no mention of these contemporary concepts.
One may reply that these things should be included in the law, that it's the right thing to do, but that's not the point. If the Civil Rights Act should be revised that's the role of the legislature, not the courts. The role of the courts is to decide what the law says and whether a certain behavior conforms to the law or not. Their role is not to find creative ways to twist the law to make the behavior fit what the justices think the law should say.
It's as surprising as it is disappointing that Neil Gorsuch and John Roberts have strayed so far from what we had been given to understand their judicial philosophy would be.