National Review Online
Monday, June 15, 2020
In the Civil Rights Act of 1964, Congress took the
unprecedented step of inserting federal anti-discrimination law into purely
private employment decisions. It did so to address an urgent national crisis:
the long shadow of state-backed racial discrimination. A mischievous opponent
of the bill added “sex” to the list of forbidden bases for discrimination.
Nobody at the time would have thought that the term “sex” meant “sexual
orientation” or “gender identity at odds with biological sex,” yet the Supreme
Court, in Bostock v. Clayton County, said that it now does.
To begin with, this is an unhealthy way to make law in a
democracy. The law is now read to mean something different in 2020 from what even
the most liberal Justices would have said in 1964. Congress for years has been
debating bills to amend the statute to cover these topics; the Court just did
its work for it, and without any of the compromises or conscience protections
that legislators typically debate. We understand what the Court’s liberal
justices were up to, but a decent respect for democratic lawmaking should have
cautioned Justice Gorsuch and Chief Justice Roberts against going down this
path.
The decision steals a number of bases without admitting
what it is doing. Men must get the same treatment as women, says the Court, but
who is a man and who is a woman? In the transgender case, that is itself
effectively the question, one better resolved by the people’s representatives
if the law must decide it. The Court says that a man cannot be fired for
marrying a man if a woman would not be fired for marrying a man — but this is
not discrimination on the basis of sex at all, it is discrimination on the
basis of behavior. The Court says that it is not (yet) abolishing bathrooms and
dress codes that distinguish by sex, but it is difficult to see how its rigid,
ahistorical logic of “all must be the same” does not lead that way.
We think Justice Alito had the better of the argument:
The law has long understood that sexual orientation and identity are distinct
concepts from sex. When the military banned gays and lesbians alike from
serving, or the immigration laws banned homosexuals from entering the country,
the response was to change the law, not to pretend that the question was one of
gender discrimination.
Imposing the framework of race discrimination blindly onto sexual matters has always involved additional complications better handled by legislative compromise. Will traditionally minded people now be brought up for workplace harassment for holding conventional opinions about marriage and human biology? The Court admits that its decision will drive it deeper into the thicket of conflict between anti-discrimination law and religious liberty, placing religiously orthodox Americans further on the defensive. It is precisely because of the interests to be balanced that it would have been better to leave the meaning of the law as it was when written and leave to Congress the decision of when and how to change it.
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