The Supreme Court’s decision to redefine the sex of men and women within the 1964 Civil Rights Act “marks a turning point for every conservative,” said Sen. Josh Hawley (R-MO).
The Supreme Court redefined male or female “sex” to add male and female “sexual orientation” and “gender identity” in what Hawley described as a “historic piece of legislation.”
Stressing the opinion, written by Justice Neil Gorsuch in Bostock v. Clayton County was “legislation,” Hawley noted on the floor of the U.S. Senate Tuesday the far-reaching consequences of the ruling:
This piece of legislation changes the scope of the 1964 Civil Rights Act. It changes the meaning of the 1964 Civil Rights Act. It changes the text of the 1964 Civil Rights Act. In fact, you might well argue it is one of the most significant and far-reaching updates to that historic piece of legislation, since it was adopted all of those years ago, and, make no mistake, this decision, this piece of legislation, will have effects that range from employment law, to sports, to churches.
The senator said the “problem” with the “legislation” is that “it was issued by a court, not by a legislature.”
“It was written by judges, not by the elected representatives of the people, and it did what this Congress has pointedly declined to do for years now, which is to change the text and the meaning and the application and the scope of a historic piece of legislation,” he added.
Hawley declared the majority’s ruling in the Bostock case “represents the end of the conservative legal project as we know it.” He went on:
After Bostock, that effort, as we know it, as it has existed up to now, it’s over. And I say this because if textualism and originalism give you this decision, if you can invoke textualism and originalism in order to reach a decision, an outcome that fundamentally changes the scope and meaning and application of statutory law, then textualism and originalism and all of those phrases don’t mean much at all.
The Missouri Republican said the ruling “marks a turning point for every conservative and it marks a turning point for the legal conservative movement.”
Hawley said religious conservative evangelicals, Catholics, and Jews, make up a majority of those who have continued the fight for their First Amendment rights to worship freely.
“But as to those religious conservatives, how do they fare in yesterday’s decision?” he asked. “What will this decision mean, this rewrite of Title VII? What will it mean for churches? What will it mean for religious schools? What will it mean for religious charities?”
The senator said the Court’s majority gave little attention to the issue of religious liberty, and quoted Gorsuch’s opinion:
[T]he majority … does finally get around to saying something about religious liberty on one page … here’s the substance of the court’s analysis: ‘How the doctrines protecting religious liberty interact with Title VII,’ as reinterpreted now by the Court, ‘are questions for future cases.’
Hawley asserted sardonically:
Oh, no doubt they are! Huge questions, and we eagerly await what our super legislators across the street in the Supreme Court building … will legislate on this question: What will become of church hiring liberty, what will become of the policies of religious schools, what will become of the fate of religious charities? Who knows? Who’s to say? They’re questions for future cases!
He spoke as well how most actual legislation is no longer made by Congress:
Every honest person knows that the laws in this country today, they’re made almost entirely by unelected bureaucrats and courts. They’re not made by this body. Why not? Because this body doesn’t want to make law, that’s why not. Because in order to make law you have to take a vote, in order to vote you have to be on the record, and to be on the record is to be held accountable, and that’s what this body fears above all else.
He continued that, as a result of Congress’s failure to accept its responsibility of legislating, “Now we must wait to see what the super legislators will say about our rights in future cases.”
The senator called upon religious conservatives to finally “reject” the “bargain” they have been making for years with the party establishment.
“The bargain is that you go along with the party establishment, you support their policies and priorities, or at least keep your mouth shut about it, and in return the establishment will put some judges on the bench who supposedly will protect your constitutional rights to freedom of worship, to freedom of exercise,” he said.
Hawley defended his rigorous questioning of judicial nominees against “those who said I was wrong to question judges who came before the Judiciary Committee, to those who chided me for asking tough questions even of nominees by a Republican president.”
“This is why I ask questions,” he said. “This is why I won’t stop and I wish some more people would ask some harder questions because this outcome is not acceptable and the bargain which religious conservatives have been offered is not tenable.”
Hawley called upon conservatives to “stand up” and “speak out,” and “bring forward the best of our ideas on every policy affecting this nation.”
“We should be out in the forefront leading on economics, on trade, on race, on class, on every subject that matters for what our founders called the general welfare,” he said. “Because we have a lot to offer not just to protect our own rights but for the good of all of our fellow citizens.”
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