Et Tu, Gorsuch?

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“An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex,” he wrote. “It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

This isn’t the solemn utterance from a high priestess of progressivism at The New York Times. It’s not some fatuous, virtue-signaling tweet from the Biden campaign. This is a quote from the majority decision in the Supreme Court case Bostock v. Clayton County, which was handed down on Monday.

Bostock was expected to establish definitively whether the historic Civil Rights Act of 1964 would protect employees based on sexuality and “gender identity” as well as race and ethnicity. And so it does. As of June 15, “homophobia” and “transgenderism” will be considered as morally reprehensible as racism. That is the law of the land.

And that law was championed—that majority decision was written—by none other than Justice Neil Gorsuch: a Trump appointee and Federalist Society doyen.

 

Justice Gorsuch writes that, in Title VII of the Civil Rights Act, “Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: an employer who fires an individual merely for being gay or transgender defies the law.”

As Justice Samuel Alito correctly pointed out in his dissent, this ruling has far-ranging consequences—for schools, for sports, even for churches themselves.

For instance, Paul Clark has been teaching science at a Catholic school called Saint Patrick’s for over ten years. One day, Mr. Clark comes to school in a skirt and a wig. He announces to his colleagues that he will henceforth be known as Pauline, and that the students will refer to him as Ms. Clark. Now, thanks to Justice Gorsuch, there’s nothing Saint Patrick’s can do about it.

Two months later, Ms. Brown gets “married” to his boyfriend, Bob Brown, and now insists on being called Mrs. Brown. The Browns go to school events together: homecoming games, award dinners, graduation ceremonies, etc. They hold hands and introduce one other as man and wife; sometimes, they share a chaste kiss. Still, there’s nothing Saint Patrick’s can do about it.

After a few years, Pauline Brown (née Paul Clark) decides to undergo sex-reassignment surgery. Will Saint Patrick’s pay for it? Well, they’d better. As Justice Alito pointed out in his minority dissent, “Transgender employees have brought suit under Title VII to challenge employer-provided health insurance plans that do not cover costly sex reassignment surgery. Similar claims have been brought under the Affordable Care Act (ACA), which broadly prohibits sex discrimination in the provision of healthcare.” Now, that prohibition carries with it the entire weight of the U.S. Constitution.

Of course, “Mrs. Brown” will ultimately decide that the school’s module on sex and gender offend him as a trans woman. He refuses to teach those lessons, but also refuses to step down from his position in the religious education department. There’s nothing Saint Patrick’s can do but ignore sexual ethics altogether.

That is, until “Mrs. Brown” decides that the school is insufficiently “welcoming” of LGBT persons. He’ll demand that his colleagues undergo sensitivity training and identify as his “allies.” He’ll insist that students read from texts like James Martin, SJ’s Building a Bridge, which has been enthusiastically endorsed by senior American prelates like Cardinals Joseph Tobin and Blase Cupich. Again, what choice will Saint Patrick’s have?

These scenarios might seem too abstract, too theoretical, to get worked up about right now. Yet Justice Gorsuch knew they were coming. Questions of “sex-segregated bathrooms, locker rooms, and dress codes” are “questions for future cases,” the decision admits.

“Future cases” indeed. As a 26-year-old conservative, I expect to be fighting against the precedent set by Bostock for the rest of my natural lifetime.

This is indeed a grievous blow to President Trump’s base. Many of us overlooked his long history of espousing progressive views for one reason: the Supreme Court. Trump supporters (myself included) urged our fellow conservatives to set aside their reservations and support Mr. Trump if only to prevent Hillary Clinton and the Democrats from appointing their own justices, thereby making the activist judiciary safe for another generation of left-wingers.

What do we have to show for it? President Trump’s other nominee, Brett Kavanaugh, also betrayed conservatives and Christians last October when he joined his progressive colleagues in refusing to hear the case Andersen v. Planned Parenthood of Kansas and Mid-Missouri. Justice Kavanaugh joined his progressive colleagues in ordering the State of Kansas to ignore evidence that Planned Parenthood was harvesting the organs of aborted babies and to resume the flow of Medicaid funds to America’s largest abortion provider.

It’s worth noting that the President nominated Justice Kavanaugh over Amy Coney Barrett, a true Culture Warrior. Trump’s base was thrilled that he would consider this Notre Dame Law School professor, who also happens to be a devout Catholic and mother of seven. Yet Mr. Trump passed her over, allegedly because her outspoken conservatism would have made her appointment difficult to confirm in the Senate. (That should have been our first warning. Justice Kavanaugh’s supporters tried to convince us that his obscure position on life issues was a good thing.)

Of course, the country was then treated to the four-month spectacle of the Kavanaugh hearing, where the president’s ultimate nominee was forced to defend himself against far-fetched and unsubstantiated allegations of sexual assault. Far from sliding quietly into the Supreme Court, Justice Kavanaugh’s appointment was almost rejected entirely. We had no stomach for a fight over the judiciary, and we paid the price.

Remember also that both Gorsuch and Kavanaugh were recommended to President Trump by the Federalist Society: the Republican Party’s gatekeeper on all things related to law and the court system.

The Federalist Society was one of those organs of the GOP Establishment that deigned to accept President Trump’s support once he was in office. At their behest, Justice Kavanaugh was nominated over Judge Barrett. An old Bush crony, Kavanaugh had earned his spot at the top of the FedSoc’s batting order. They would have done or said anything to advance him over Judge Barrett. Certainly, nobody really expected him to be a stronger nominee—except in the sense that he was less principled, and therefore more amenable to Senate Democrats. And yet the nomination was almost completely derailed.

As many of us have been warning for the last four years, the Trump Revolution will ultimately be derailed, not by liberals, but by pseudo-conservatives. This became abundantly clear after President Trump appointed Ambassador John Bolton as his national security advisor. A dyed-in-the-wool neoconservative, Ambassador Bolton’s vision for the American Empire is completely at odds with the more restrained, America First foreign policy then–Candidate Trump touted during the 2016 election.

As with the foreign policy establishment, so, too, with the legal establishment.

Mr. Trump was elected in 2016 on a simple promise. He would be our man in Washington. He would represent ordinary, hard-working, God-fearing American families. He owed nothing to the donor class. He owed nothing to the Republican elites. In fact, the Establishment spent the entire primary season fighting against him—just like they spent the last forty years promoting amenable squibs like Mitt Romney over hard-bitten Culture Warriors like Pat Buchanan.

There’s no denying the President’s many victories, especially on issues of importance to Christians like us. But, on issues like the judiciary and foreign policy, the Trump Administration has often looked more Romneyesque than Buchananite. If we wanted a president who would take orders from John Bolton and the Federalist Society, we would have voted for Marco Rubio.

This betrayal by Justice Gorsuch comes less than six months from the 2020 election. Suddenly, it has become a lot more difficult for the President to market himself as the unbowed champion of Middle America. If Trump really wants to drain the swamp—and I believe he does—he needs to stop manning the pumps with swamp creatures like Bolton and FedSoc.

So, Mr. President, how are you going to make it up to us?

Photo credit: Getty Images

Michael Warren Davis

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Michael Warren Davis is the editor of Crisis Magazine. He is a frequent contributor to The American Conservative and the author of The Reactionary Mind (Regnery, 2021).

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