30 June 2020

A Morally Empty Jurisprudence

An attorney and professor emeritus of jurisprudence looks at the Bostock decision.

From First Things

By Hadley Arkes

Conservatives were bracing for the defection of Justice Gorsuch on the cases dealing with the “transgendered” and “sexual orientation.” But even the anticipation of the jolt did not diminish its depressing force. The reactions, coming with disbelief and anger, have not been understated. For make no mistake, this case of Harris Funeral Homes v. EEOC will be the Roe v. Wade for transgenderism, with effects that will ripple out widely in our country, touching and disfiguring our private lives. After all, the Court has pronounced it quite wrongful to cast an adverse judgment, a disapproving judgment, on people who affect to shift their “genders.” As we saw in the case of same-sex marriage, children will have to be instructed in school on this new civic culture that the Court has ordered into place. The companion cases of Bostock v. Clayton County and Altitude Express v. Zarda bring the same force to the side of discriminations based on “sexual orientation” or homosexuality. What Congress failed persistently to add to the Civil Rights Act, Neil Gorsuch and John Roberts managed to accomplish in a stroke, with the reliable help of the four liberal justices, who could always be depended on to vote in a phalanx for the ethic of sexual liberation. 
But in his opening remarks on the Harris case, Justice Gorsuch already made a radical move that ran well beyond anything made explicit in the body of his opinion. He said that Aimee Stephens, the one who had been known to the world and his own wife as Anthony Stephens, had “presented as a male” when “she first got the job.” Without the slightest strain, Gorsuch had simply incorporated as his own the predicate of Stephens’s claim: that he had in fact become a woman. That this was no trifling move had been made clear in that graceful and compelling brief written for this case by Michael Hanby, David Crawford, and Margaret McCarthy of the John Paul II Institute. What was at issue, as they pointed out, was not the freedom of Anthony Stephens to dress as he wished and present himself as a woman. For the Court to come down on his side the judges would have to do nothing less than confirm, as a matter of controlling fact, that in the eyes of the law Stephens was indeed a woman if he regarded himself as a woman. And the effects would instantly radiate outward: Stephens’s colleagues would be obliged to accept his definition of himself, and the pronouns that came along. If they did not, they and their employer could be accused of sustaining a hostile work environment and put themselves at legal hazard. 
Justice Alito did not hold back from unfolding the ramifications here: There were about 100 statutes forbidding discriminations based on sex, whether in construction, housing, hospitals. Small religious schools may have a serious concern for the kinds of lives they model to their students in the people they hire, and yet for jobs other than ministers they could be punished from turning away from the transgendered. 
Gorsuch noted that this decision said nothing about locker rooms and bathrooms, for those matters were not raised in this case. But as Justice Alito pointed out, the Court had pronounced any turning away from the transgendered as a wrongful discrimination. What could be cited then by the people of either sex who professed to be deeply uncomfortable about sharing those private quarters with people of the other sex? What would they be able to say then that they could not have said even now if Justice Gorsuch and his colleagues had been willing to engage their awareness of what plausible and legitimate things ordinary people could indeed say to explain their discomfort, anchored by their dubiety, grounded in science, that people are free simply to will away their sex with a flick of their feelings?
What makes the decision all the more disappointing and demoralizing for conservatives is that Justice Gorsuch was the highly celebrated successor to Justice Scalia. He was vetted and heralded as an “Originalist” and a “textualist” by the reigning authorities at the Federalist Society, along with votaries in the Administration. But the mirage of textualism should have been evident as we found liberal professors, who favored gays and the transgendered, quite content to argue on the basis of the text of the Civil Rights Act of 1964. 
The statute has barred discriminations based on “sex” as well as race. As Justice Alito pointed out, virtually no one in 1964 could have dreamed that the statute barred those who would have an aversion to the homosexual life or the transgendered. But I warned myself, in an earlier piece, that it just would not do for the conservatives to cite the dictionaries on the meaning of sex in 1964. The liberals would be free to play the trump card of Lyman Trumbull. Trumbull had steered the Fourteenth Amendment to passage in the Senate, and he had to assure his colleagues up and down that there was nothing in the Equal Protection Clause that barred those laws in Illinois as well as Virginia that barred marriage across racial lines. But now we have an amplified and clearer sense of why that principle on racial discrimination would bar those laws on miscegenation. Judges could easily argue now in the same way that we must bring to the Civil Rights Act a more amplified view of what “sex” has come to mean. The only way to deal with that argument is to make the move that conservative judges have been so averse to making: to move beyond the text of the statute to those objective truths, confirmed in nature, on the differences that must ever separate males from females.
That was the understanding of “sex” that Justice Alito had in mind as he countered every case and example cited by Gorsuch. Justice Gorsuch noted the many ways in which the meaning of discrimination on the basis of sex could extend to sexual harassment or simply treating people differently on the basis of sex. A woman is refused a job because she has children at home, while the job is not refused to a man with children at home. But as Alito points out, at every turn the discrimination pivots on the difference between men and women, as that difference has been plain enough for millennia. The Western States had long established policies barring discriminations based on “sex” in education, and the Nineteenth Amendment had drawn on the same understanding when it barred the denial of the right to vote “on account of sex.” It was understood in all cases that the laws were assuming the biological definition of sex.
Ryan Anderson, drawing on the full range of texts in biology, condensed the truth of the matter in this way: “Sex, in terms of male or female, is identified by the organization of the organism for sexually reproductive acts.” The Congregation for the Doctrine of Faith noted years ago that there has not always been an Italy or Hungary, but as long as there are human beings, there will be males and females. That is the purpose, or the telos, or the very reason that we have males and females. This was the understanding that Justice Alito was seeking so artfully to defend. But he defended it entirely as the meaning of sex contained in a long list of statutes and the Constitution. What he could not quite move himself to say was that this was indeed the inescapable truth of the matter, the only coherent way of explaining what sex must really mean. There is something, in the shaping of conservative judges, that makes them deeply reluctant to make that move beyond “tradition” and statutes to the moral truth of the matter.
Our friend Carrie Severino declared that this decision by Gorsuch was “the highjacking of textualism.” But it was there to be hijacked by the liberals—along with anyone else—because it had no anchoring truth. She is left then to explain this: Gorsuch was recruited and vetted—and endorsed—by the most credentialed spokesmen for “textualism.” How did they not manage to see that his principles offered no barrier to this kind of judgment? What was it they neglected to ask him?
In the aftermath of the wreckage, as we start assembling the pieces, we discover that we have now Originalists who defend the rights to abortion, same-sex marriage, and transgenderism, while others have long resisted these moral novelties. But if Originalism is divided on questions of this kind, is it indecorous to pronounce the plain truth?: That Originalism indeed has nothing to say on matters of real consequence. It is a morally empty jurisprudence. If there is any lingering doubt on this matter it was swept away by one young professor, who looked on the decision in these cases and pronounced it a proud day after all for conservative jurisprudence: “One can agree on method,” he cheerily said, “and still disagree in particular cases. That all the opinions were textualist is a huge victory in and of itself!” I suppose that if the justices had decided to take out pen and quill and write the opinions in longhand, he could have pronounced this a grand day for Penmanship. But to attend precisely to what he was saying, he has given us the latest, ringing affirmation of Justice Holmes: For what he celebrates is a style of jurisprudence, so serene now in its detachment from moral judgment, that it is proud to have nothing to say, as a system of jurisprudence, on the things that are right or wrong, just or unjust.
Hadley Arkes is the Ney Professor of Jurisprudence Emeritus at Amherst College and the Founder/Director of the James Wilson Institute on Natural Rights & the American Founding in Washington, D.C. He was an architect of the Born-Alive Infants' Protection Act of 2002, and of the sequel, the Born-Alive Abortion Survivors Protection Act. Among his books is, most notably, First Things (1986).

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