Discussion on Bostock

Here was my Facebook status on Bostock v. Clayton County, and some discussion from the comments.

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Good decision from Gorsuch. His legal argument is sound.

Keep in mind that none of the three cases claimed religious exemption. (One did in lower court, but later dropped that claim). So this decision does not impact religious organizations as the evangelical fearmongerers told us it would.

On the narrower religious exemption question, we desperately need new, clarifying legislation. Many orgs fall between “religious” and secular, like Christian colleges that are associated with, but not owned by, a denomination. Christian colleges receive billions of dollars annually from the federal government in student aid, but discriminate against a now-protected group. Colleges that discriminate on the basis of race are banned from federal funding, even if they have deeply held racist religious beliefs (see Bob Jones University). So the precedent is set to ban funding on the legally similar basis of sex. If exemptions are denied.

Additionally, many positions within orgs fall between “religious” and secular, like the math teacher at a Christian private high school, or the accountant at a church. These positions could be considered secular functions, but that does not matter. If the organization is religious, its hiring decisions are an extension of their 1A protected speech. (As Hosanna-Tabor (2012) and Presiding Bishop (1987) have already held).

I’m not sure the best path forward. Religious orgs cannot be forced to hire ministers or minister-adjacent staff who disagree with their deeply held religious beliefs. On the other hand, the bare fact of sexual orientation, apart from the decision to marry, is not a choice. Nobody should be able to discriminate on the basis of orientation alone. It seems as unchosen as race, and therefore discrimination on orientation seems as immoral as on race.

For example, I was discriminated against (denied employment) on the basis of orientation, even though I agreed with the religious org’s statement of faith on marriage and sexuality, and was not seeking same-sex marriage. That discrimination is clearly wrong. They broke their own rules. I did not choose my orientation, but to the extent that I can choose to follow the org’s rules, I did, yet they used my orientation to discriminate against me. I want that to be illegal, religious exemption or not. But what legal standard would outlaw that discrimination, without treading on religious freedom to discriminate on gay marriage? I don’t think there is a legally sound standard. My compromise position isn’t possible.

The only solution I can see would retain religious orgs’ right to discriminate on basis of sexual orientation, period. Then, we the people pressure them to adopt anti-discrimination standards internally which guarantee equal hiring on the basis of mere orientation. However, that would likely only work for a slim minority of religious orgs. I am not optimistic about widespread acceptance, or even recognition, of celibate gay people. But I don’t think the state, whether courts or Congress, has grounds to impose this. As expansively as Title VII is written, the First Amendment is more, and Constitutional.

Regardless of how the dust settles on the narrow question of religious exemptions, the main question of Title VII discrimination has been decided rightly by the court. The fight against discrimination “on the basis of sex” won a major battle today.

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A friend said, “Beautifully said. I don’t see a good legal path either, although I have not thought about this in as much detail as you have. One would hope that, as Plato said, in a good society we would need fewer laws. Can we expect those religious communities who discriminate now to become good without legal force? Sadly, it is part of the “no compromise” identity they have forged for themselves with respect to sex and gender. (Why the hell are Evangelicals so obsessed with sex, anyway?) I hope your efforts to bring change from within bear fruit.”

To which I replied, “”it is part of the “no compromise” identity they have forged for themselves with respect to sex and gender” Exactly. The evangelical impulse post-Obergefell has been reactionary over-correction driven by fear. Anything that resembles the out-group must be condemned. When you encounter slippery slope arguments at every turn, it is a feature, not a bug. Entire denominations are in cold war over using the word “gay” or over (this is a quote) “adopting a homosexual self-conception.” They are using these far lesser questions to acid test for evangelical purity, and as proxies for the real debate over same-sex marriage. This has led to considerable damage among gay Christians, as nobody likes to be used as a political football. These pastors and thought leaders are people who engage in what I call “competitive homophobia,” where the most egregious displays of anti-gay prejudice earn greater credibility and in-group purity. Dynamics like these make it impossible for institutions to do what I described. (If my university were to adopt anti-discrimination rules for celibate gay Christians, they would be flooded with press about “going left” and “abandoning evangelical faithfulness” even though they would have done neither.)”

To his other question, I said “”Why the hell are Evangelicals so obsessed with sex, anyway?” is a great question, one that I’ve asked since reading Samuel Perry’s book Addicted to Lust earlier this year. He calls it “Sexual Exceptionalism” but unfortunately I left the book in university storage for the summer, so I don’t have much more than that…”

To which that same friend said, “It’s an oversimplification, but generally speaking when an organization loses a positive sense of who it is and no longer trusts its own values, its best option is to scapegoat and find blame outside of itself. Instead of saying this is who we are and what we stand for because these values are good, they define themselves by who they reject.I have also lived through the dramatic politicization of evangelicals, beginning in the 80s. I don’t think that is always a bad thing, but they have been manipulated and co-opted by cynical politicians for decades. David Koh, GW Bush’s first director of the office for faith-based initiatives, I believe it was called, wrote a book before he died describing his chagrin at the way Karl Rove and others cynically used him and the office for their own political ends. Just one example, but a very prominent one. … Competitive homophobia. Captures a lot, sadly.”

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Another friend said, “Sorry Ross, but if you are willing to follow a religious organization’s statement of faith, and they still discriminate against you, maybe you should be looking at better organizations who know a good candidate when they see one. That’s just lousy. Dust your sandals off friend.”

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Someone asked my opinion on the Alito dissent, to which I said, “I don’t see how an employer can discriminate on the basis of sexual orientation without knowing their sex. Knowing that someone is gay requires knowing that they are attracted to a sex which is their own sex, and that requires knowing their sex. Similarly, to discriminate on transgender status requires the employer to first know the person’s sex assigned at birth. He also focuses heavily on the meaning of the word “sex” in 1964, even attaching 7 pages of dictionary definitions (55-62). But I don’t think it matters what “sex” means. Gorsuch says it doesn’t matter per se what the meaning of “sex” is, “but what Title VII says about it.” Since orientation discrimination requires sex discrimination, Title VII applies, without defining the meaning of the text…”

I continued, “Adam Winkler on twitter was less generous with Alito. He said, “Alito says that “sex” must be defined exactly the way that lawmakers understood that term in 1964. I’m skeptical he’ll apply that same rule to defining what counts as “arms” when reading the Second Amendment.” That is the issue, strict textualism applies when it helps conservative causes and doesn’t when it doesn’t. Usually they align, but in a case where the textualist approach conflicts with the conservative outcome, the justices have to choose method (Gorsuch, Roberts) or outcome (Alito, Thomas, Kavanaugh)… FWIW, I thought Kavanaugh’s dissent was much better than Alito’s in writing and in substance, but also missed the point. Gorsuch wasn’t disagreeing that the meaning of “sex” in 1964 meant biological sex itself. So while Kavanaugh’s hermentutics were nice (and would be great to see Christians use when interpreting Scripture…) it did not matter.”

To which my friend replied, “Thanks for sharing your thoughts. I do think both Alito and Kavanaugh raise one very strong point, in that Congress has been trying to pass bills that would prohibit employer discrimination on the basis of ‘sexual orientation’ and ‘gender identity’ many times in recent years. That would suggest that Congress doesn’t even think they are included in Title VII. That’s the main issue I have with the decision – not the outcome itself, but that it appears the court updated a law instead of Congress.” And in a second comment, “Also, I forgot to say earlier, thanks for raising those questions about religious and semi-religious organizations! I think there will be a lot of confusion in those areas over the next few years.” A few other friends said the same thing, they had not considered the ambiguity over who gets religious exemptions.

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A different friend said, “So I have a question that I feel I might as well shoot in your direction: do you think this kind of decision oversteps the judicial rights of the Supreme court? I just wonder if this is an ok precedent to set, even if it does benefit the lives of LGBTQ individuals.”

To which I responded, “I don’t think so. If “legislating from the bench” is the problem, SCOTUS has been doing that for decades. Nothing new to see here. Just a consistent application of that practice. But I don’t see this as legislating from the bench. Gorsuch went out of his way not to construe the definition of sexual orientation or transgender status as including sex, but instead to say that discrimination on that basis requires discrimination on sex. There is no scenario in which someone can discriminate on the basis of orientation/trans and not simultaneously also be discriminating on the basis of sex. If he made the redefining words argument, it would be legislating from the bench, but as he wrote the Opinion, he is just doing regular legal interpretation.”

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Finally, a friend asked me if I’m going to publish a book, on anything, to which I responded, “Tim Keller says not to publish until you turn 40…”

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My lead photo is a tree near chapel on campus last October.