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.

The Supreme Court Rules

I have said that a ruling extending the Civil Rights Act to LGBT Americans would be far preferable to passing the awful Equality Act, which would gut the religious freedom protections in the bipartisan Religious Freedom Restoration Act. However, the Fairness for All Act would strike a better balance.

Worth repeating:

Sorrow and Pity

Andrew Sullivan writes:

And it is the distinguishing mark of specifically totalitarian societies that this safety is eradicated altogether by design. … You are, in fact, always guilty before being proven innocent. You always have to prove a negative. …
Perhaps gay people are particularly sensitive to this danger, because our private lives have long been the target of moral absolutists, and we have learned to be vigilant about moral or sex panics. For much of history, a mere accusation could destroy a gay person’s life or career, and this power to expose private behavior for political purposes is immense.
I’m not equating an accusation of attempted rape in the distant past with sodomy. I am noting a more general accusatory dynamic that surrounded Ford’s specific allegation. This is particularly dangerous when there are no editors or gatekeepers in the media to prevent any accusation about someone’s private life being aired, when economic incentives online favor outrageous charges, and when journalists have begun to see themselves as vanguards of a cultural revolution, rather than skeptics of everything.

What’s Good for RBG is Bad for Brett Kavanaugh, or So We’re Told

A typical headline in the liberal media and by progressive activists (excuse the redundancy) this week was Brett Kavanaugh’s ‘Obergefell’ Comments On Gay Marriage Will Give You Pause. As put it:

Brett Kavanaugh’s comments on Obergefell and gay marriage rights revealed little about his personal opinions on the matter. … Despite [Sen. Kamala] Harris repeatedly asking for Kavanaugh’s personal opinion on the case, Kavanaugh never directly gave it.

This is only surprisingly to those who are unfamiliar with the so-called Ginsberg Standard, named after liberal icon and current Supreme Court Justice Ruth Bader Ginsberg, who during her own confirmation hearing refused to indicate how she would rule on controversial matters that could come before the court. While this hesitancy certainly wasn’t new, Ginsburg clearly enunciated the principle that judicial nominees must avoid offering “hints,” “forecasts” or “previews” of how they might rule since decisions should be made based on the evidence presented and application of the law, not preexisting personal beliefs.

While RBG clearly didn’t want to seem biased by revealing she would oppose any limitation on abortion on demand up until at least the baby’s delivery, regardless of its previous viability outside the womb at time of termination, the principle in itself was and is sound.

Liberal media and activists are trying to argue that what was good and right for RBG is evil and nefarious for BK, but it’s just partisan blather.

As we noted earlier, Kavanaugh was a safe, solid choice and progressives were poised to denounce anyone Trump nominated as an extremist ideologue (and they know all about being extremist ideologues). Moreover, as we posted when Justice Anthony Kennedy announced his retirement:

A Solid, Safe Choice

For the Surrogacy Revolution, Thank Free Markets and Voluntary Exchange

Reprinted from the Chicago Tribune in the Duluth News Tribune (talk about the heartland): Gay men increasingly turn to surrogates to have babies.

Yes, they are, and it represents a sea change in the lives of gay men who are, increasingly, married with children.

The surrogacy revolution is premised on free enterprise and the voluntary exchange of a market economy, made possible when government and its army of bureaucrat regulators get out of the way.

Government’s role here is limited to enforcing contracts, when necessary, as adjudicated by the courts.

Toxic Politics About to Get Uglier

The death of Supreme Court Justice Antonin Scalia, a jovial homophobe, will make an already toxic electoral season worse. From all indications, there will be no move by the Senate to confirm Obama’s forthcoming nominee, making the Court a central issue in both the primaries and the November election.

Already, the GOP presidential contenders who’ve specialized in pandering to the worst instincts of their party’s social conservative base (primarily though not exclusively Cruz and Rubio, among those left standing) are pledging to put forward, if elected, a nominee who will roll back Obergefell, the ground-breaking decision in favor of marriage equality. But that’s a zero-sum change, since Scalia was the most adamant voice attacking the idea that same-sex couples’ relationships could be worthy of recognition, as he did earlier when he bitterly condenmed overturning the Clinton-era Defense of Marriage Act. Of course, Court-watchers are also looking to future replacements, including octogenarian liberal stalwart Ruth Bader Ginsburg, among others.

(Chief plaintiff Jim Obergefell takes the high road, tweeting “Thank you for your service to our country, Justice Scalia. Condolences to your family and friends.”)

Obama will likely nominate someone who is unacceptably liberal to the GOP senate but not obviously extreme (“Political calculation also militates in favor of nominating someone whose leftism isn’t obvious,” the Powelineblog predicts). But recognizing the likelihood that the next president is going to make this call, Hillary and Bernie will duke it out over who will push for a hard-core progressive.

Regardless, Obama’s nominee (or Hillary’s, or Bernie’s) will be good on LGBT legal equality while in favor of running roughshod over other liberty rights (second amendment, commercial political speech, freedom from state coercion, religious dissent….).

Meanwhile, many expect the fight will bring a halt to any bipartisan cooperation that Congress might have been able to achieve this year.

Being Reasonable

Rod Dreher has a good post about the martyrdom of Kim Davis.  He is concerned about the effect of her case on religious freedom in general.  But he’s ignoring the central protection Kentucky itself has instituted to protect religious liberty.

Prof. Eugene Volokh has the best analysis of the actual law, and the Kentucky religious freedom protection statute seems very clear that the state would make a reasonable accommodation for Davis if she were interested in being reasonable.  In fact, the religious freedom laws passed by both the state and federal governments in the last two decades, are weighted — sometimes unreasonably (in my view) — in favor of religious freedom.  Despite my feelings, that is a policy choice elected officials have made, and it is the law.

Davis’ best argument is that she doesn’t want to have her name on state marriage certificates if they will be issued to same-sex couples, because the use of her name in those circumstances violates her religious beliefs.  The statute only requires her beliefs to be sincere, not objectively reasonable or even consistent.  Under the Kentucky law, if it is not unduly burdensome on the state to remove her name, she could continue to serve in her job.  That would require either reconfiguring how Kentucky marriage certificates look and perhaps having to reprint all of them going forward, or perhaps somehow scratching her name (if not her office title) from them.  These options may or may not be reasonable given the specifics of what processes are in place, which ones are required by state statute, etc.

Volokh says this is a “modest” request. That might be true, though “modest” might not be the word I’d use. If one elected official in one Kentucky county can bring lawful marriages in her jurisdiction to a virtual halt because of her religious beliefs, and demands that her view of religion be accommodated countywide, and possibly statewide depending on the statutory rules for marriage forms, that seems to me immodest in the extreme.

Davis’s case is extraordinary because she has insisted that her personal religious belief should govern, not just her own actions, but those of her entire office, including (in her view) all of the people who work for her.

Compare the extent of her preferences to those of Judge Vance Day in Oregon.  Judge Day has announced that he will not perform same-sex marriages due to his religious beliefs. Unlike the office of a county clerk, the performance of marriages is entirely discretionary for a judge. In fact, Judge Day specifically told his staff that they should forward any requests for same-sex marriages to other judges who do not share his religious objections.  Judge Day has at the very least made it clear that his religious objections are his own, and made an accommodation to the same-sex couples who might have approached his office to make sure that their rights are protected at the same time that his religious beliefs are respected.

Here is another example, one cited by Dreher that works in the opposite direction.  Gavin Newsom, as mayor of San Francisco, announced in 2004 that he felt California’s law prohibiting same-sex marriage was unconstitutional, and that henceforth City Hall would be happy to provide marriage licenses to same-sex couples, which is did, to great joy.  Dreher calls this “lawlessness,” and implies that those who supported Newsom are hypocrites if they oppose Davis.

Newsom went beyond his authority as mayor, but he was not, as a NYTimes editorial quoted by Dreher suggests, defying a court order.  In fact, the California Attorney General challenged the mayor’s political grandstanding, and when the California Supreme Court ruled against Newsom, the marriages ended.  Dreher’s comparison of Newsom to Davis would hold only if the mayor had truly disobeyed the court ruling and maybe gone to jail for that.

Moreover, while Newsom was indeed acting (or more accurately overacting) on a moral principle, it was one grounded in the civil law, not God’s.  The prior year, the Massachusetts Supreme Court had ruled that the state constitution protected the rights of same-sex couples to get married.  While Newsom was in grave error about his own authority, he also knew when the stunt was over.

Davis now has to make that same determination.  She can be a martyr for as long as she likes.  Kentucky officials can determine whether it makes sense to accommodate her religious beliefs and remove her name from marriage certificates.  The question is whether she is going to be reasonable enough to accept the terms she, herself, offered.