Religious liberty proponents are condemning the U.S. Supreme Court majority’s ruling Monday that they describe as one that “concocted a fundamental right to transgenderism,” performed the job Congress has failed to do, and, henceforth, will “pose a grave threat to religious liberty.”
The “fake ‘conservative’ SCOTUS,” wrote Conservative Review senior editor Daniel Horowitz, has “concocted a fundamental right to transgenderism in the context of labor law.”
“In a 6-3 opinion written by Justice Gorsuch, the court ruled that Title VII of the Civil Right act, which passed in 1964 before anyone could fathom transgenderism, applies to transgenderism and sexual orientation,” he asserted, calling the ruling “absurd beyond belief.”
Horowitz cited Justice Samuel Alito’s dissent in Bostock v. Clayton County, in which he was joined by Justice Clarence Thomas:
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 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.
Additionally, Alito wrote about the majority’s opinion:
The Court’s argument is not only arrogant, it is wrong. It fails on its own terms. “Sex,” “sexual orientation,” and “gender identity” are different concepts, as the Court concedes. Ante, at 19 (“homosexuality and transgender status are distinct concepts from sex”). And neither “sexual orientation” nor “gender identity” is tied to either of the two biological sexes.
Justice Scalia would be disappointed that his successor has bungled textualism so badly today, for the sake of appealing to college campuses and editorial boards.
This was not judging, this was legislating—a brute force attack on our constitutional system. (1/x)
— Carrie Severino (@JCNSeverino) June 15, 2020
Justice Brett Kavanaugh, in a separate dissent, wrote, “Under the Constitution and laws of the United States, this Court is the wrong body to change American law in that way.”
Alito, joined by Thomas, observed the majority’s opinion could influence women’s sports, which has already been challenged by males demanding to compete as women, and in the areas of housing, education — in the hiring of teachers, healthcare coverage, and required pronoun usage.
“Although the Court does not want to think about the consequences of its decision, we will not be able to avoid those issues for long,” Alito and Thomas wrote. “The entire Federal Judiciary will be mired for years in disputes about the reach of the Court’s reasoning.”
Horowitz predicts the types of lawsuits that will present themselves as a result of the ruling:
What if someone comes into work cross-dressing and is extremely disruptive? What if someone is just simply a lousy worker? What about religious liberty? Does the First Amendment not mean anything? Does a Catholic school now have to hire a cross-dresser? What about demanding that doctors perform castration operations? What about allowing men who think they are women into female sports? This is yet another example of the courts creating a super-right that infringes upon a real right.
“Then again, ignoring foundational rights while creating super-rights is exactly what the Supreme Court has been doing for decades,” he wrote. “‘Conservative’ justices taking part are merely the icing on the cake.”
Though the majority ruling said Congress, by way of the statute itself, and the First Amendment provide potential exceptions for religious groups, Family Research Council (FRC) President Tony Perkins noted activist groups have already made bold attempts to challenge these exceptions:
Allowing judges to rewrite the Civil Rights Act to add gender identity and sexual orientation as protected classes poses a grave threat to religious liberty. We’ve already witnessed in recent years how courts have used the redefinition of words as a battering ram to crush faith-based businesses and organizations.
Peter Sprigg, FRC’s senior fellow for policy studies, said the Court “chose to radically re-write the statute by expanding its meaning to cover ‘gender identity’ and ‘sexual orientation.’”
“The failure of LGBT activists to achieve their goals through the democratic process is no excuse to simply bypass that process and obtain their goal by judicial fiat instead,” he added.
Litigation firms that specialize in religious liberty cases denounced the ruling as well.
Alliance Defending Freedom tweeted, “Americans must be able to rely on what the law says, and it is disappointing that a majority of the justices were unwilling to affirm that commonsense principle.”
“Redefining ‘sex’ to mean ‘gender identity’ will create chaos and enormous unfairness for women and girls in athletics, women’s shelters, and many other contexts,” the group predicted. “Civil rights laws that use the word ‘sex’ were put in place to protect equal opportunities for women.”
Americans must be able to rely on what the law says, and it is disappointing that a majority of the justices were unwilling to affirm that commonsense principle. pic.twitter.com/6RsFFt2bLY
— AllianceDefends (@AllianceDefends) June 15, 2020
While Liberty Counsel Chairman Mat Staver noted the majority said current law and the First Amendment “will likely provide churches and religious organizations with a defense against the Court’s application of Title VII,” he still emphasized the Court’s decision was Congress’s to make.
“The majority opinion departs from the clear language of Title VII and is no less than legislation from the bench,” he said, adding:
The implications of today’s opinion could be far reaching, particularly with regard to “gender identity” in sports and public accommodations. The original intent and meaning of the law is clear, and the common sense reading of “sex” as male and female is made even more obvious by Congress repeatedly refusing to amend the law. When Congress refuses to amend its own law, courts have no authority to rewrite the law. Yet, that is what the majority of the Supreme Court did today.
Tami Fitzgerald, North Carolina Values Coalition executive director, said in a candid statement, “No one in their right mind believes that when Congress enacted the 1964 Civil Rights Act, ‘sex’ included homosexuals and transgenders.”
She predicted a disastrous effect on religious liberty as well as a result of the Supreme Court’s ruling:
From this day forward, this decision will degrade one of our most fundamental rights as Americans—the right to religious freedom. It cuts off the right of Americans who have deeply held religious convictions to fairness and freedom in the workplace, in sports, and in academics. Redefining “sex” to include “sexual orientation” and “gender identity” threatens everyone’s freedom and will set off years of litigation against business owners, churches, religious institutions, and people of faith, who will suffer greatly because of the Court’s short-sighted wokeness.
Fitzgerald said the high Court appears to want to continue in its mode of dismissing the separation of powers.
“Adding ‘sexual orientation’ and ‘gender identity’ to the list of covered categories in the Civil Rights Act is a function of the legislative branch, not the courts,” she asserted. “The Court today enacts those failed legislative initiatives by usurping the powers of the Congress.”
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