High Court’s Bostock Decision Prompts Consternation, Anger Among Constitutionalists, Religious Conservatives

Supreme Court Associate Justice Samuel Alito on Capitol Hill in Washington on March 7, 2019. Chip Somodevilla/Getty Images

News Analysis

When Supreme Court Justice Neil Gorsuch was sworn in at the White House April 10, 2017, President Donald Trump praised him as a man who would “decide cases based, not on his personal preferences, but based on a fair and objective reading of the law.”

Gorsuch, after taking the oath of office, pledged to the family of the man he was replacing on the nation’s highest court—Justice Antonin Scalia, who unexpectedly died in 2016—that “I won’t ever forget that the seat I inherit today is that of a very, very great man.”

Scalia was the towering champion of the jurisprudence of “original intent,” or “textualism,” in which judges strictly adhere to the original language and intent of a law, rather than indulging in legislating their own intent from the judicial bench.

But some of Gorsuch’s key supporters are now reeling, thanks to the court’s June 15 Bostock v. Clayton County, Georgia, decision in which he and five colleagues on the bench rewrote a key provision of the 1964 Civil Rights Act.

Writing for the 6–3 majority and calling it a “far-reaching” decision, Gorsuch said Title VII of the law’s definition of sex discrimination in hiring covers sexual orientation and gender identity (including gender changing), even though Congress referred only to biologically determined sex in 1964.

Justice Samuel Alito was reminded in his dissent of a pirate ship, writing, “The Court attempts to pass off its decision as the inevitable product of the textualist school of statutory interpretation championed by our late colleague Justice [Antonin] Scalia, but no one should be fooled.

“The Court’s opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated—the theory that courts should ‘update’ old statutes so that they better reflect the current values of society.”

As a result, Bostock is prompting howls of protest and anguish among original-intent adherents and religious conservatives who supported Gorsuch and other like-minded judicial nominees with the expectation that they would protect freedom of worship and practice in American daily life.

“I was shocked at the fundamental legal and historical errors that Gorsuch made in this opinion and how totally wrong he is. His claim that the common public understanding of the word ‘sex’ in the 1964 Civil Rights Act included homosexuality and transgenderism is absurd,” constitutional lawyer Hans von Spakovsky told The Epoch Times.

“That provision referred to the biological differences between a male and female and was intended to stop the rampant employment discrimination suffered by women at that time. This has to be one of the most poorly reasoned and disingenuous opinions written by a justice in decades,” von Spakovsky said.

He is a senior legal fellow at the Heritage Foundation’s Institute for Constitutional Government, a hotbed of original-intent scholarship, thanks to former Attorney General Edwin Meese, who for years was a highly venerated Heritage leader.

Similarly, Sen. Josh Hawley (R-Mo.), the former Missouri Attorney General who clerked for Gorsuch, took to the Senate floor June 16 to declare Bostock “the end of the conservative legal project, as we know it.”

Hawley, the youngest member of the Senate, said, “If textualism and originalism gives you this decision, if you can invoke them in order to reach a decision, an outcome, that fundamentally changes the scope and meaning and application of statutory law, then textualism and originalism don’t mean much at all.”

Jim Daly, president of Focus on the Family, one of the country’s most influential evangelical advocacy groups, told The Epoch Times he was shocked when he first read of the decision.

“I think to myself, this is the problem of the deep state, or the bureaucratic state, that they take it upon themselves to take the interpretation of these things from Congress to establish and usurp constitutionally given rights such as religious freedom,” Daly said.

Daly said he has heard “over and over again from my Christian conservative friends that we like 80 percent of what President Trump does and 20 percent of what he says. ... His agreement was ‘I will get good judges on the court.’ Well, at least with Gorsuch, it was a miss, from our perspective.”

Alliance Defending Freedom Senior Counsel Matt Sharp told The Epoch Times he sees in Bostock “realistic risks to religious organizations and nonprofits in their employment decisions, but also more broadly in how they operate.”

Sharp said Gorsuch acknowledged the law has protections for religious groups to hire co-religionists, but “people of faith are saying it’s not that we have any hostility against LGBT but rather that we have a duty to be faithful to our religious teachings and for our employees to do so. I think that is going to be a flashpoint after this decision.”

But there is a straightforward way to avoid such flashpoints, according to Joseph Morris, a former U.S. assistant attorney general and a former delegate to the U.N. Commission on Human Rights.

“The decision did not interpret a provision of the Constitution, such as the Equal Protection Clause,” Morris told The Epoch Times. “Rather, it interpreted and applied a provision of a statute, which is subject to change or repeal by Congress. If it has the political will, Congress can readily correct the effects of any judicial interpretation of a statute by changing the statute.”

Contact Mark Tapscott at [email protected]