By DEACON MIKE MANNO, JD
The Supreme Court, in its ruling that “sex” is equivalent to “gender identity” or “transgender,” has set the stage for years of political and legal warfare that will not only swamp the courts but dominate the electoral map for years to come. And it will bring to a head the thorny question of what constitutes religious liberties in an era when gender is considered fluid, and little boys and grown men can become female whenever the fancy strikes them.
I’m sure everybody who reads this publication knows by now that on June 15 the Supreme Court did the unthinkable. In Bostock v. Clayton County, the consolidation of three cases involving the dismissal of homosexual or transgendered employees, the court found as follows:
“We agree that homosexuality and transgender status are distinct concepts from sex. But, as we’ve seen, discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex, the first cannot happen without the second.”
The three cases the court had under consideration included a case in which a Clayton County, Ga., employee was filed for conduct “unbecoming” after he joined a gay recreational softball league. In another an employee was fired after he told his employer he was gay. While the breadth of the ruling is problematic in these cases, the most onerous ruling came in the case of a funeral home where an employee told his employer that he intended to dress as a woman, including when he dealt directly with bereaved families.
That case, R.G. & G.R. Harris Funeral Homes, gave the court every reason to limit the sweep of its decision. There the funeral home had made an impassioned argument that it provided a service akin to a religious one. The owner of the home testified that he was a devout Christian who believed in the biblical interpretation of sex and that it is an immutable gift from God.
Thus the funeral home had argued that “funerals are somber and solemn events that . . . mark some of the most difficult times in life. They often are traumatic and painful experiences, and family and friends need to be able to focus on each other and their grief. Because of this, [the employer] requires his employees to conduct and present themselves in a professional manner and to avoid disrupting or distracting clients as they process their grief. Harris Homes’ dress code for employees who interact with clients is integral to ensuring that the company meets the high standards it sets.”
As that case worked its way through the court system, the plaintiff, who had garnered the sympathy and backing of the EEOC, worried that the change from the Obama to the Trump administrations might cause a change in policy whereby the EEOC would abandon her. I suggested at the time — fall of 2018 — that she should be more worried about Mr. Trump’s appointment of two new Supreme Court justices. Silly me! One of those appointees, Justice Neil Gorsuch, wrote the opinion.
Anyway, the opinion opens the door for a complete redefinition of what the law means when it says that it is unlawful to discriminate against people on the basis of “race, color, religion, sex, or national origin.”
Since “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex,” what now happens to all the girls whose sports teams are taken over by boys? Can they still claim a protected status?
Naturally, this will affect locker rooms and showers in school facilities since it appears that school officials — or even lower courts, for that matter — will be unable to legally protect teenaged girls from being forced to shower with the faux girls who claim they aren’t really boys. And if a Catholic high school accepts any federal aid, can it say “no” to the confused young men who might be all too happy to jump into the girls’ dressing areas?
How about Catholic hospitals who refuse to perform sexual reassignment surgery? There are already a spate of lawsuits claiming that the refusal is discrimination on the basis of sex.
And what about employment in Catholic schools and other facilities? Will teachers and staff be protected if they “transition” right in front of their students? Or how about teaching youngsters that two dads are the same as a mom and dad; or, for that matter, that two dads and a mom are perfectly normal?
As of this writing, there are still two cases pending decisions by the Supreme Court in this area. Maybe, by the time this is published, we’ll have an answer.
The majority opinion, in a series of examples, argues that few would have expected Title VII’s use of the word “sex” to refer to anything other than the biological difference between men and women. Nor did it seem to bother the majority that Congress had the opportunity several times to redefine the prohibition against sex discrimination to include protection for gender identity, homosexuality, and transgender status and it did not do so; in fact it specifically rejected that option.
I guess it didn’t matter what Congress did, the court changed the definitions anyway, all at the same time it was rejecting the legislative history of Title VII and how the drafters in 1964 must have construed the words they used:
“Do we look only at the moment the statute was enacted, or do we allow some time for the implications of a new statute to be worked out? Should we consider the expectations of those who had no reason to give a particular application any thought or only those with reason to think about the question?”
Turning to the religious liberty questions raised, the court opined as follows:
“Separately, the employers fear that complying with Title VII’s requirement in cases like ours may require some employers to violate their religious convictions. We are also deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution; that guarantee lies at the heart of our pluralistic society. But worries about how Title VII may intersect with religious liberties are nothing new; they even predate the statute’s passage. As a result of its deliberations in adopting the law, Congress included an express statutory exception for religious organizations. This court has also recognized that the First Amendment can bar the application of employment discrimination laws ‘to claims concerning the employment relationship between a religious institution and its ministers.’
“But how these doctrines protecting religious liberty interact with Title VII are questions for future cases too.”
Wow, we’re going to punt on the religious liberty question, the justices said. How does that help Catholic hospitals in the interim?
The majority decision was not unanimous. Of the three justices who dissented, Justice Samuel Alito, joined by Justice Clarence Thomas, was very pointed:
“Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on any of five specified grounds: ‘race, color, religion, sex, [and] national origin.’ Neither ‘sexual orientation’ nor ‘gender identity’ appears on that list. For the past 45 years, bills have been introduced in Congress to add ‘sexual orientation’ to the list, and in recent years, bills have included ‘gender identity’ as well. But to date, none has passed. . . .
“Because no such amendment of Title VII has been enacted in accordance with the requirements in the Constitution, Title VII’s prohibition of discrimination because of ‘sex’ still means what it has always meant. But the court is not deterred by these constitutional niceties. Usurping the constitutional authority of the other branches, the court has essentially taken [the failed bill’s] provision on employment discrimination and issued it under the guise of statutory interpretation. A more brazen abuse of our authority to interpret statutes is hard to recall.”
Justice Brett Kavanaugh joined in the fray over language: “Statutory Interpretation 101 instructs courts to follow ordinary meaning…and to adhere to the ordinary meaning of phrases.”
One of the hallmarks of the judicial system should be to make the law understandable, predictable, if you will, so the average citizen can live accordingly. In this decision the court threw out the concept of predictability as it threw out the definition of sex. The result will be a legal and linguistic train wreck.
(You can reach Mike at: DeaconMike
@q.com and listen to him every Thursday morning at 10 o’clock on IowaCath
olicRadio.com.)
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