By Will Hall, Baptist Message Executive Editor
ALEXANDRIA, La. (LBM) – In a stunning 6-3 decision by the U.S. Supreme Court, which included “yes”
votes by so-called conservatives Chief Justice John Roberts and Associate Justice Neil Gorsuch,
homosexuality and transgenderism were each declared to be a “sex” and so included in that protected
class under Title VII of the Civil Rights Act of 1964.
In the ruling on Bostock v. Clayton County — a combination of three cases involving the firing of a funeral
home worker who chose a transgender identity and the firings of two homosexuals who came out as gay
to their employers (a county government and a sky diving business) — the Court conceded that the law
protected “any individual … because of such individual’s race, color, religion, sex or national origin.”
Furthermore, the same justices admitted that “the term ‘sex’ in 1964 referred to biological distinctions
between male and female.”
Then the six supporters made the tortuous argument about what “because of” meant and gave undue
emphasis on “disparate treatment” to disregard the original meaning of “sex” (biological differences
between a man and woman) in order to declare that homosexuality and transgenderism are each a
“sex.”
IGNORING THE SCIENCE
The justices had to ignore the science behind biological sex (male and female differences) and gender
identity (what one feels in their minds is their sexual identity) in order to make new law with the
majority opinion.
Indeed the most recent research — of nearly 500,000 participants whose information was analyzed and
published in 2019 by a team of researchers from prestigious institutes in the United States and Europe —
shows homosexual “behavior” is not a matter of biology as much as it is a social construct (meaning
homosexual behavior is influenced by social factors and largely is not something inborn). The findings
showed that 75 percent up to 92 percent of homosexual behavior is explained by environmental factors,
indicating it is largely a learned behavior.
What’s more, within the 8 percent to 25 percent genetic influence, individual genes only “minimally”
shaped homosexual behavior, the researchers found, and these genes also are linked to behaviors such
as “smoking, cannabis use, risk-taking” as well as the personality trait “openness to experience” and
even the mental health condition “bipolar disorder”
The various analyses of the study did not include transgender persons.
IGNORING THE LAW
Justice Robert Alito wrote a scathing dissent, accusing the majority of going beyond their juridical roles
and venturing into the making of the law.
“There is only one word for what the Court has done today: legislation,” Alito wrote. The majority
opinion appeared in the form of “interpreting a statute, but that is deceptive,” he added.
In other words, the Supreme Court had overstepped the bounds of separation of powers provided in the
U.S. Constitution to take on the role of the U.S. House and Senate.
“For the past 45 years, bills have been introduced in Congress to add ‘sexual orientation’ to the list [of
protected classes of people], and in recent years, bills have included ‘gender identity’ as well. But to
date, none has passed both Houses,” Alito explained. “Because no such amendment of Title VII has been
enacted in accordance with the requirements in the Constitution … , Title VII’s prohibition of discrimination because of ‘sex’ still means what it has always meant.”
IGNORING CONSERVATIVES’ CONCERNS
Especially disconcerting for religious conservatives were the votes by Roberts and Gorsuch to legally
acknowledge special rights to homosexuals and transgenders, and the looming threat the ruling holds
for overturning religious liberties.
In reality, Gorsuch was not much of a surprise. He merely confirmed what many conservatives had
whispered when the Federalist Society vetted him as one of them — that he and the Federalist Society
are more libertarian than conservative.
His leanings on LGBT matters were on public display prior to his nomination.
He and his family were active members, not just casual attenders, of the well-known liberal St. John’s
Episcopal Church in Boulder, Colorado. According to public sources, the congregation maintained an
“open-door” to the LGBT community with regard to church policies well before LGBT-friendly legislation
passed at the state or national levels. He was an usher and his wife led intercessory prayer and read the
weekly Scripture at Sunday services, the Washington Post noted at the time. His daughters even assisted
in ceremonial services.
Also, his clerks were often hired by Supreme Court jurists, not just by conservatives, but by decidedly
liberal justices such as Elena Kagan and Sonia Sotomayor.
But when questions or complaints arose, conservatives’ grumblings were met with the typical response
that the congregation and the denomination were both diverse in their members’ political views, and
that his clerks were admired for their legal scholarship.
The bigger surprise was Roberts, who clerked under then-Associate Justice William Reinquist, who later
was named chief justice.
Rehnquist was well-known for objecting to activist jurists, believing that the Court “had no business
reflecting society’s changing and expanding values”; and arguing that this was the domain of the
Congress,” according to Bob Woodward and Scott Armstrong who wrote, “The Brethren: Inside the
Supreme Court.”
At least in this ruling, Roberts seems not to share his mentor’s views.
IGNORING RELIGIOUS RIGHTS
Already, 47 Senate Democrats are pushing a bill to leverage the Supreme Court’s ruling in Bostovk v.
Clayton County.
Known as the so-called Equality Act, this legislation would eviscerate the protections in the Religious
Freedom Restoration Act that guard Christian ministries against employment-discrimination lawsuits.
According to University of Virginia law professor Douglas Laycock, in a 2019 interview with National
Review, the Equality Act “goes very far to stamp out religious exemptions.”
He explained that the Equality Act “regulates religious non-profits” and asserts that the RFRA “does not
apply to any claim under the Equality Act.”
Laycock said that unlike claims by Equality Act proponents, the would-be law “is not a good-faith
attempt to reconcile competing interests” of homosexuals and Christians. Instead, he said, “It is an
attempt by one side [LGBT groups] to grab all the disputed territory and to crush the other side.”
