Taking a Stand

James Kirchick writes:

If the public face of the ACLU was Ira Glasser during the latter part of the previous century, today that honor can be claimed by a staff attorney named Chase Strangio … the ACLU’s deputy director for transgender justice. Like many activists consumed by this issue, he is uncompromising in demanding strict adherence to a set of highly contestable orthodoxies, and merciless toward anyone who dares question them. Two women who have—J.K. Rowling, the author of Harry Potter, and Abigail Shrier, author of a book about the role of “peer contagion” in the rising rate of teenage girls declaring themselves transgender—are “closely aligned with white supremacists in power,” Strangio declared on Twitter, offering not a shred of evidence for this claim. “Stopping the circulation of [Shrier’s] book and these ideas is 100% a hill I will die on,” he wrote, a rather bizarre position for an ACLU employee to endorse. …

Strangio is of course perfectly entitled to his views about the fairness of allowing natal males to compete against natal females in high school sports, and to advocate for an “information climate” suppressing books he doesn’t like. What’s puzzling is why someone with such pro-censorship inclinations would want to work, of all places, at the American Civil Liberties Union. … Puzzling, that is, until you realize that—like so many other institutions whose worthy missions we naively assumed to be inviolable—the ACLU is no longer itself.

Plus this:

And when other constitutional rights have come into conflict with a First Amendment freedom even more unpopular with progressives than speech—that of religion—the ACLU has made it all but official policy to consider claims of religious conscience as smokescreens for discrimination, arguing that an evangelical Christian baker must make cakes for same-sex weddings against his will (a violation of both expressive and religious freedom), and that Catholic hospitals must perform abortions.

Purposely misleading:

The Triumph of Identity Politics Is Not Equal Treatment for All


Liberal media’s erasing Richard Grenell from history is frightening but that’s what progressives do.

Amy Coney Barrett and the Usual Scare-Mongering

Big-LGBTQ was wrong about Neil Gorsuch, as it turned out. We’ll see if they’re wrong about Amy Coney Barrett and if Guy Benson is right.

Walter Olson’s on the future of Obergefell.


Added: His update is below:

What’s Next?

Andrew Sullivan’s looks at what’s likely to following the achievement of all of the gay-rights movement’s original nondiscrimination goals.

There are political matters on which Sullivan and I disagree, but also many on which he is spot on. And in looking forward, it’s hard to disagree with what’s coming for LGBTQ+ activism. As Sullivan writes:

If current trends are any indication, [the Human Rights Campaign and similar groups] will simply merge into the broader intersectional left and become as concerned with, say, the rights of immigrants or racial minorities as they are with gay rights. In the political climate on the left at the moment, singling out gays as a separate category is increasingly impermissible.

More.


More still.

Off Narrative

Despite my reservations about judicial over-reach, the political response is certainly worth noting. This would be sure to drive the GOP-haters and the Trump-demonizers up the wall, if they bothered to consider it:

Reflections on the Ruling

Many progressive activists and their media allies, in cheering the Supreme Court’s ruling in Bostock v. Clayton County, suggest that the decision is great and good because ending anti-LGBT employment discrimination is great and good. There is an absence of qualms about the fact that the Supreme Court is not meant to be a super-legislature, overriding Congress when that body fails to do what’s right. Ultimately, that’s not a good thing for our nation.

As I noted previously, a ruling extending the Civil Rights Act to LGBT Americans is preferable to passing the awful Equality Act, which would gut the religious freedom protections in the bipartisan Religious Freedom Restoration Act, although the Fairness for All Act would strike a better balance. That said, I tend to agree with the dissents to the ruling.

While Justice Alito goes overboard in his hostility to the majority’s legal analysis, he is correct in his central point:

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.” 42 U. S. C. §2000e–2(a)(1). 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 both Houses.
Last year, the House of Representatives passed a bill that would amend Title VII by defining sex discrimination to include both “sexual orientation” and “gender identity,” H. R. 5, 116th Cong., 1st Sess. (2019), but the bill has stalled in the Senate. An alternative bill, H. R. 5331, 116th Cong., 1st Sess. (2019), would add similar prohibitions but contains provisions to protect religious liberty. This bill remains before a House Subcommittee.
Because no such amendment of Title VII has been enacted in accordance with the requirements in the Constitution (passage in both Houses and presentment to the President, Art. I, §7, cl. 2), Title VII’s prohibition of discrimination because of “sex” still means what it has always meant.

Justice Kavanaugh makes a similar argument but acknowledges some important realities:

The policy arguments for amending Title VII are very weighty. The Court has previously stated, and I fully agree, that gay and lesbian Americans “cannot be treated as social outcasts or as inferior in dignity and worth.” Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 584 U. S. ___, ___ (2018) (slip op., at 9).
But we are judges, not Members of Congress. And in Alexander Hamilton’s words, federal judges exercise “neither Force nor Will, but merely judgment.” The Federalist No. 78, p. 523 (J. Cooke ed. 1961). Under the Constitution’s separation of powers, our role as judges is to interpret and follow the law as written, regardless of whether we like the result. Cf. Texas v. Johnson, 491 U. S. 397, 420–421 (1989) (Kennedy, J., concurring). Our role is not to make or amend the law. …
Notwithstanding my concern about the Court’s transgression of the Constitution’s separation of powers, it is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans. Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result. Under the Constitution’s separation of powers, however, I believe that it was Congress’s role, not this Court’s, to amend Title VII. I therefore must respectfully dissent from the Court’s judgement.

Walter Olson noted in his commentary:

As a policy matter, extending anti‐discrimination law further into private employment decisions invades further the realm of private choice and individual liberty. As Alito notes in his dissent, it is especially hazardous to do so without the sort of conscious legislative back‐and‐forth that might result in the negotiation of thresholds and exemptions so as to handle controversial or burdensome cases. In the longer run, when Congress revisits this area in legislation, it will have a chance to rethink these points.

However, when “Congress revisits this area” it is likely to be with Democratic Party majorities that will remove any “thresholds and exemptions” that acknowledge historic rights of religious dissent from the majority.