SCOTUS’s Transgender Ruling: 'Roe v. Wade' of rel. liberty

June 16, 2020 (LifeSiteNews) – Staunch conservatives have slammed yesterday’s Supreme Court ruling in Bostock v. Clayton County, which redefined the term “sex” in the 1964 Civil Rights Act to mean not simply “male” and “female” as biological facts, but also “sexual orientation” and “gender identity.”

Josh Hammer of First Liberty Institute called the decision by six justices, including Trump-nominee Neil Gorsuch, the “Roe v. Wade of religious liberty.”

“Bostock is no joke, and it lays bare the moral and intellectual bankruptcy of the conservative legal movement,” he added.

Hammer demanded “a more forceful conservative legal movement, just as willing as the left to make moral arguments in court, based on principles of justice, natural law (the rules embedded in our very nature as human beings), the common good and the religious and moral traditions underlying Anglo-American constitutional order.”

Speaking of Gorsuch’s majority opinion, he said it did not at all qualify as textualism, a legal philosophy according to which a law needs to be interpreted based on the ordinary meaning of the legal text.

“It’s ivory-tower liberalism,” Hammer wrote. “And it’s completely at odds with the Supreme Court’s longstanding dictum that Congress, in drafting statutes, won’t inscribe a hidden meaning in otherwise plain language: As Justice Samuel Alito sharply noted in dissent, ‘sex,’ in 1964, meant biological sex — man and woman — not orientation and certainly not subjective gender identity.”

Following Bostock v. Clayton, he asked, “can a Catholic school deny employment to a teacher whose sexual lifestyle blatantly flouts millennia of Catholic moral teaching? Can an Orthodox Jewish day school refuse to hire a male teacher who self-identifies as a woman, contravening traditional teaching rooted in Genesis?”

Princeton University legal scholar Robert P. George referred to the ruling as “legislation,” predicting it to have “far-reaching consequences, including the eventual destruction of all-women’s sports.”

“The Bostock ruling (further) politicizes the judiciary and undermines the very thing courts exist to uphold: the Rule of Law. It will destroy what faith remains in the moral and intellectual integrity of our courts,” George was convinced.

“It also vindicates Adrian Vermeule’s warning to conservatives that trying to combat the longstanding ‘progressive’ strategy of imposing a substantive moral-political agenda through the courts by appointing ‘originalist’ and ‘textualist’ judges is hopeless,” he emphasized.

“Conservatives, Professor Vermeule famously argued, need to shift to their own version of liberal legal theorist Ronald Dworkin’s ‘moral reading’ of the Constitution and laws to advance a socially conservative moral and political vision.”

[...] Hans von Spakovsky and Ryan T. Anderson, who are both part of the Heritage Foundation, described the Supreme Court ruling as “an act of judicial activism,” with the majority having “simply legislated from the bench and amended the statute itself.”

“Congress has not legislated such an outcome, and it was wrong for the court to usurp lawmakers’ authority by imposing such an extreme policy on our nation without the consent of the governed,” they pointed out, echoing the dissent written by Justice Samuel Alito.

Michael Farris, the founder of the Home School Legal Defense Association, assured his readers that Bostock v. Clayton County
At the same time, Farris spoke of “an enormous loss” for people with a biblical worldview. “People who legitimately believe that God created us male and female are going to face increased efforts to silence, marginalize, and penalize any dissent,” he predicted.

John Bursch, Alliance Defending Freedom’s Vice President of Appellate Advocacy, commented, “Civil rights laws that use the word ‘sex’ were put in place to protect equal opportunities for women. Allowing a court or government bureaucrats to redefine a term with such a clear and important meaning undermines those very opportunities—the ones the law was designed to protect.”

[...]  Catholic Bishop Joseph Strickland of Tyler, Texas, tweeted, “Lord forgive our arrogance! The highest court of our land May be called Supreme but woe unto us if we ignore GOD’S SUPREME TRUTH. Every person is beloved of God & must be treated accordingly but giving sin a seal of approval is not charity or love!”

Catholic priest and canon lawyer Father Gerald Murray summarized on Twitter, “We have entered the nightmare world in which each person can not only define for himself the meaning of life, but also deny the reality of his own body, now counting on the federal government to force the rest to buy into that delusion or face the coercive power of the state.”

It appears Murray was referencing retired Justice Anthony Kennedy’s infamous treatise in Planned Parenthood v. Casey, which said in part: “At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life.”

“This is what happens when metaphysical realism is abandoned and the will to power takes over as the guiding principle of judicial analysis,” Murray added in a brief philosophical analysis.

The United States Conference of Catholic Bishops (USCCB), meanwhile, issued only a very careful statement following Bostock v. Clayton County.

“I am 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,” wrote USCCB president Archbishop José H. Gomez of Los Angeles.

“Protecting our neighbors from unjust discrimination does not require redefining human nature,” Gomez argued, without going into any detail.

Senate Republicans, who voted almost unanimously to confirm Gorsuch to the Supreme Court Justice in 2017, largely appeared to be fine with Gorsuch’s opinion dealing a significant blow to social conservatives.

According to Politico, “the Republican Party seemed generally supportive of both the substance and process by which the Supreme Court extended Civil Rights Act protections to gay, lesbian and transgender workers. President Donald Trump declined to trash the decision, calling it ‘powerful’ — and his party largely agreed with the Supreme Court’s surprising ruling.”

Iowa Senator Chuck Grassley simply said, “It’s the law of the land. And it probably makes uniform what a lot of states have already done. And probably negates Congress’s necessity for acting.”

On the other hand, Texas Senator Ted Cruz criticized the process of bringing about the fundamental change to anti-discrimination legislation.

“This judicial rewriting of our laws short-circuited the legislative process and the authority of the electorate. Six un-elected and unaccountable judges instead took it upon themselves to act as legislators, and that undermines our democratic process.”

Cruz did not criticize the undermining of natural law and traditional biblical morality.

Already during his confirmation hearings in 2017, Gorsuch was attacked by some conservatives for his positions and legal philosophy that were seen as too weak.

LifeSiteNews’ Matthew Cullinan Hoffman stated in a lengthy February 2017 analysis, “Neil Gorsuch is a complicated, nuanced, and philosophical thinker rather than a formulaic or ideological jurist who votes along party lines, and it is therefore difficult to reduce his views to a series of public policy stances.”

“On homosexual non-discrimination and other gay agenda issues: ambiguous, but likely weak,” he concluded.