Imagine if Sonia Sotomayor, once she got on the Supreme Court, started ruling like Clarence Thomas. I know, I know, that’s like something out of The Twilight Zone or the Babylon Bee. But try to picture it. There’d be riots on the campus of every school she’d attended, and likely in DC, too. Democrats would drawing up articles of impeachment, and speaking of packing the court. And whatever social justice thinktank vets SCOTUS appointees for the Democratic National Committee would start chopping off heads. Scapegoats would be piling up on the unemployment line like pork chops at a slaughterhouse.
But that’s precisely what just happened with Neil Gorsuch (and less, surprisingly, John Roberts) in the Bostock decision. A 6-3 majority affirmed an outrageous piece of sophistry. As I wrote at the Stream, they:
‘ruled that the Civil Rights Act outlaws discrimination against homosexuals and “transgenders”, because that law has the word “sex” in it. No, seriously.
‘The Congress in 1964 had no notion whatsoever of including “sexual activities” or “imaginary sexual identities” when it passed the Civil Rights Act. Laws banned homosexual activity in 49 of 50 states. No member of Congress suggested the law had such implications. Till the Obama administration got the bright idea of outflanking an unwilling Congress, no court ever ruled so.’
This ruling won’t just protect gay employees who want to teach courses on marriage at Baptist seminaries. (Gorsuch offered no comfort to those with religious liberty fears. They’ll just have to sue and get sued, he flippantly wrote.) It will unleash on every employer the ‘diversity machine’ that currently drives ‘sensitivity training’, de facto hiring quotas, and ‘hostile workplace environment’ suits. Don’t hang that crucifix in your Italian-American bakery, unless you’re ready to fight LGBT-boosting white-shoe law firms all the way to SCOTUS, folks.
If electing a president who promises ‘originalist’ justices can’t protect Christian Americans from legal abuse like that, in what sense do they even live in a democracy? Is the First Amendment protection of ‘free exercise of religion’ a dead letter nationwide, as the Second Amendment is in New York City?
The conservative legal movement was supposed to prevent outcomes like this. But we’ve learned we cannot trust it. Its leading umbrella group, the Federalist Society, vetted nominees for Trump, and approved of Gorsuch. Even though, as sources tell me, the group knew all about his views on the Civil Rights Act, since he’d ruled that way in 2008. Apparently ‘keeping churches from getting sued into the ground’ is not part of legal conservatism.
So who really needs it? It’s time to start again from scratch. We shouldn’t be fighting for empty ‘textualism’ like Gorsuch’s. That simply invites philosophical nominalists to flex their sophistry skills, as scholar Hadley Arkes points out. Nor even a content-free ‘originalism’, which cuts off the text of constitutional texts from any historical context, such as the religious and moral beliefs of the men who drafted those texts. That’s another invitation to word games.
Instead we must fight on two fronts. We must pressure President Trump, if he wants our votes in November, to defy the elements of Bostock that threaten the First Amendment, as Lincoln defied Dred Scott to the full extent of his powers. Why else elect a president?
For the long run, we need to start a new conservative legal movement from the ground up, as Josh Hammer lays out. We need law schools and think tanks that aren’t centered on empty ‘textualism’ or morally neutral ‘originalism’. Instead, they should be deeply grounded in the moral truths of the natural law, and their institutional expressions in Common Law and the religious beliefs of the men who wrote the Constitution and amended it. In other words, future conservative judges should be men who actually want to conserve something — namely the specific moral and legal heritage of a free country like ours. We need dozens more judges like Kentucky’s Justin Walker. And no more Anthony Kennedys or Neil Gorsuches.
Let the Democrats nominate and vote for radical innovators who twist the Constitution to meet the demands of the New York Times and Teen Vogue. That’s not our job.
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