Legal Experts Warn: SCOTUS Ruling Redefining Sex Opens ‘Pandora’s Box’

What happened to the textualist, original constructionist Gorsuch, and what have the Democrats done with him?

From the National Catholic Register

By Lauretta Brown

Religious groups and society as a whole, they advise, will be damaged by Monday’s unexpected ruling that Title VII of the 1964 Civil Rights Act applies to sexual orientation and gender identity.

WASHINGTON — Religious freedom advocates and legal experts are voicing significant concerns with the potential consequences of the Supreme Court’s 6-3 Bostock v. Clayton County decision Monday.

The reasoning of the decision, in which the court ruled that Title VII of the 1964 Civil Rights Act prohibiting employers from discriminating on the basis of sex also applies to sexual orientation and gender identity, will have consequences for religious organizations who choose employees aligned with their beliefs, rules surrounding single-sex bathrooms, and even the freedom to object to the use of preferred pronouns based on traditional Christian beliefs about sexuality, according to these legal experts.

Robert George, the McCormick Professor of Jurisprudence at Princeton University, told the Register that the Court’s decision is “catastrophic because it will undermine respect for the rule of law.”

“There is no duty more fundamental to judges and courts than to uphold the rule of law, but that requires that judges apply the law as written to what the Constitution calls cases and controversies,” he said. “What happened yesterday in the Title VII cases is that the court re-wrote the law. They gave the word ‘sex’ a meaning which everyone agrees it did not have even in the minds of the most liberal or progressive members of Congress whose votes made the act into law in 1964. When courts whose job is to apply the law as written re-write the law they engage in a form of lawlessness. They not only violate the principle of the rule of law, they undermine the public’s faith in the principle.”

George, a former chairman of the U.S. Commission on International Religious Freedom, warned that “bad consequences will follow from the logic of the decision” for both religious groups and society in general. “The logic of the decision makes it very difficult to understand how you could have separate men’s and women’s sports,” he explained. “The same for locker rooms and shower rooms and secular activities, swimming pools, gyms. The same for women’s shelters, for example, where already traumatized women are cared for where now they’re likely to be forced to be housed at close quarters with males.”

The U.S. bishops have also expressed great apprehension about the implications of the decision. Archbishop José Gomez of Los Angeles, the president of the U.S. Conference of Catholic Bishops, stated that he was “deeply concerned that the U.S. Supreme Court has effectively redefined the legal meaning of ‘sex’ in our nation’s civil rights law. This is an injustice that will have implications in many areas of life.”

In an unexpected move, Trump-appointed Justice Neil Gorsuch wrote the majority opinion in the Bostock case. In his opinion, Gorsuch asserted that “an employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision,” and therefore “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

Alito’s Dissent

Justice Samuel Alito wrote in his dissent that “There is only one word for what the Court has done today: legislation.” He said that “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 his dissent, Alito outlined some of the “far-reaching consequences” that could arise from the ruling — consequences that Gorsuch noted would be “questions for future cases.” He wrote that “a religious school teaches that sex outside marriage and sex reassignment procedures are immoral, the message may be lost if the school employs a teacher who is in a same-sex relationship or has undergone or is undergoing sex reassignment … today’s decision may lead to Title VII claims by such teachers and applicants for employment.”

“Under the Court’s decision,” he wrote, “transgender persons will be able to argue that they are entitled to use a bathroom or locker room that is reserved for persons of the sex with which they identify.” Another effect “may be to force young women to compete against students who have a very significant biological advantage.”

He also said that the decision had the potential to change established English pronoun usage, saying “after today’s decision, plaintiffs may claim that the failure to use their preferred pronoun violates one of the federal laws prohibiting sex discrimination.” And he warned that fear of harassment claims “may also pressure employers to suppress any statements by employees expressing disapproval of same-sex relationships and sex reassignment procedures.”

Justice Clarence Thomas joined in Justice Alito’s dissent, and Justice Brett Kavanaugh wrote a separate dissent in which he said, “when this Court usurps the role of Congress, as it does today, the public understandably becomes confused about who the policymakers really are in our system of separated powers, and inevitably becomes cynical about the oft-repeated aspiration that judges base their decisions on law rather than on personal preference.”

Troubles for Religious Employers

Ryan Anderson, Heritage Foundation expert on marriage and family, told the Register that when it comes to the effect that the court’s decision will have on religious employers, “a lot depends on how broadly or narrowly the Supreme Court interprets the ministerial exception.”

“This is the constitutional provision that protects the freedom of religious institutions to select their own employees who function in a ministerial capacity — that obviously applies to the ordained clergy, and to many lay ministers and teachers, but the precise scope of who counts as a ‘minister’ for the Court is not been fully answered,” he said.

Anderson referenced the two cases argued together before the Supreme Court in May, Our Lady of Guadalupe School v. Morrissey-Berru and St. James Catholic School v. Biel, which examined the scope of the ministerial exception in the firings of two religion teachers by Catholic schools that claimed performance-based issues while the teachers claimed age and disability discrimination.

Justice Alito also referenced these cases in his dissent, writing, “what about other very visible school employees who may not qualify for the ministerial exception? Provisions of Title VII provide exemptions for certain religious organizations and schools ‘with respect to the employment of individuals of a particular religion to perform work connected with the carrying on’ of the ‘activities’ of the organization or school … but the scope of these provisions is disputed, and as interpreted by some lower courts, they provide only narrow protection.”

Carrie Severino, president of the Judicial Crisis Network and a former law clerk of Justice Clarence Thomas, told the Register that the decision leaves religious employers “with questions about what the specifics of the impact are going to be.”

“You have the religious freedom implications which, while there is obviously still a First Amendment and the Religious Freedom Restoration Act to provide for those protections, we have no idea what that’s going to look like,” she said, “especially in a world where the courts often are hostile to religious freedom and this is going to trigger a flood of litigation in the lower courts, everything from church hiring itself to school hiring.”

Severino also emphasized that the potential consequences of the ruling extend “beyond just the religious employers, you have the question of Hobby Lobby type cases or Little Sisters of the Poor type cases where we’ve had the Supreme Court acknowledge that an employer cannot be forced to pay for abortifacient contraceptives against their moral beliefs for their employees. Now we’re going to have the question of can they be forced to pay for sex-change surgeries or cross-sex hormones for their employees, which is a similar moral concern and an even more costly enterprise.”

In fact, Alito described health care benefits as a potentially “intense battleground under the court’s holding. Transgender employees have brought suit under Title VII to challenge employer-provided health insurance plans that do not cover costly sex reassignment surgery.”

Severino echoed the concerns about the scope of ministerial exception in Catholic schools, citing as an example the case of an employee serving a non-religious function “who then says they’re transitioning from one sex to the other and the school is required to have everyone call them by a different set of pronouns. That actually flies in the face of Catholic teaching about what sexuality is but the ministerial exception laws don’t cover that because this is not a person who’s a minister in any sense.”

She lamented that “the range of issues that this Pandora’s box of a decision opens up is really incredible” and argued that “the amount of uncertainty in that area is just more illustration of the fact that this is not a decision that simply is telling us what the law has always meant. We have a whole bunch of new questions coming up here precisely because this is a sea change in the law.”

Gorsuch’s ‘Deviation’

As for Justice Gorsuch’s unexpected decision, Severino said “it’s not just Justice Scalia who would be disappointed in Justice Gorsuch’s opinion Monday, Judge Gorsuch should’ve been disappointed in Justice Gorsuch’s decision because if you look at his record on the 10th Circuit before he was on the Supreme Court, he has multiple cases in which … he has previously written very articulately about the importance of looking at not just these words in isolation but the original meaning and what they meant at the time.”

Severino added that she “supported him when he was confirmed because he had the strongest record of any of the potential nominees on textualism, on originalism, on religious freedom specifically” and she will “continue to support him” although “he got one really wrong here.”

George said Gorsuch is a “friend” who he has known for many years and respects, but agreed that the decision was a “deviation” and he “didn’t see it coming.” He said he believed Gorsuch had bought “a sophistical argument that had been cleverly pressed by his colleague Justice Kagan.”

“This will at a minimum diminish some of the enthusiasm of those voters who though skeptical of Trump’s personal character, pulled the lever for him believing that the judges he would appoint would be faithful constitutionalists who would uphold the rule of law,” George added. “It’s not a small, minor thing that people can overlook on the grounds that everybody makes mistakes.

“This goes to core principles. There’s nothing more central, nothing more at the core than the rule of law and of course it will have concrete implications.”

Potential Congressional Action

When it comes to mitigating the decision’s consequences for religious institutions and society, Catholic commentator Ryan Anderson contended that Congress could potentially “limit the damage of this bad ruling by both providing robust religious liberty protections and by specifying that actions based on biological reality do not constitute sex discrimination.”

Anderson, who is senior research fellow at the Heritage Foundation and author of When Harry Became Sally: Responding to the Transgender Moment, wrote at SCOTUS Blog that “when Congress passed Title IX’s ban on sex-based discrimination in education, the implementing regulations clarified that providing sex-specific housing, bathrooms and locker rooms was not unlawful discrimination. Likewise with abortion: Local, state and federal laws were enacted to protect the rights of medical personnel refusing to perform or assist with abortions.”

“So, too, Congress could clarify that bans on sex discrimination do not require any institution to allow males to compete against females in athletics or use women-only locker-rooms and shelters,” Anderson wrote. “It could explicitly say that no physician has to engage in so-called gender-affirming care, and no individual or institution has to act in ways that undermine their conviction that marriage is the union of husband and wife.”

Lauretta Brown is the Register’s Washington-based staff writer.