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In Someone Else’s Court

"The end of the conservative legal movement… as we know it"



This past week, the Supreme Court handed down a ruling that was nothing short of a legal earthquake. In a speech on the floor of the US Senate, Republican senator Joshua Hawley of Missouri called it “truly a seismic decision… a historic decision.”

In Bostock v. Clayton County, a 6-3 majority held that Title VII of the 1964 Civil Rights Act, which protects against discrimination on the basis of gender, also protects against discrimination on the basis of gender identity and orientation. The biggest shock of the decision is that the majority opinion, which Chief Justice John Roberts joined, was written by Trump-nominated Justice Neil Gorsuch.

The importance of this decision is twofold. First, that a conservative justice regarded as a staunch textualist, who believes laws must be interpreted based on their actual words instead of importing meanings into words to reach a desired result, issued a decision that many conservative legal scholars say departs entirely from the text.

Senator Hawley referred to the ruling facetiously as an “historic piece of legislation,” the only problem being that “it was issued by a court, not by a legislature.” Justice Samuel Alito wrote likewise in his dissent, that a “more brazen abuse of our authority to interpret statutes is hard to recall.”

Gorsuch, for his part, believes it is he who is being faithful to the text of the relevant law, writing that “when the express terms of a statute give us one answer and extra-textual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.”

Hawley went on to say that the court’s ruling “represents the end of something. It represents the end of the conservative legal movement… as we know it. After Bostock, that effort, as it has existed up to now, is over. I say this because if textualism and originalism give you this decision… then textualism and originalism and all of those phrases don’t mean much at all.”

The second, and for us, more important aspect of this decision is its implications for religious conservatives. For many years now, faith communities have hoped that the Supreme Court would be the great savior, the ultimate bulwark protecting the constitutional rights of their institutions and individual members to practice their religion without hindrance.

As a result, in recent years, they have compromised some of their most cherished principles in exchange for what they believed would be a federal judiciary sympathetic to their concerns. This decision has thrown a huge bucket of ice water in their faces.

Here’s how Hawley puts it:

If this case makes anything clear, it is that the bargain that has been offered to religious conservatives for years now is a bad one. It’s time to reject it. The bargain has never been explicitly articulated, but religious conservatives know what it is. 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. That’s what we’ve been told for years now…

We’re supposed to stay quiet about all of that, and more, because there may be pro-Constitution, religious liberty judges. Except for that there aren’t. Except for that these judges don’t follow the Constitution.

Senator Hawley’s examples of things that religious conservatives have been expected to keep their mouths shut about include immigration, trade, and favoring the rich over the middle class. But I would focus on other core values religious conservatives once treasured that have now been deemed dispensable, like the centrality of moral character and basic standards of truth and decency in national leadership.

I have long felt that religious people who think that conservative Republicans are their unwavering allies on issues like alternative lifestyles don’t grasp how drastically public opinion has changed and how out of step our religious values now are across the political spectrum. In an important piece last year in the Atlantic, James Kirchick writes that the “sea change in both public attitudes and the legal landscape is astonishing… [and the] movement for legal equality and societal acceptance has arguably advanced faster than any other in American history.”

This is why leading religious conservative Russell Moore wrote about the Bostock case, “This Supreme Court decision should hardly be surprising, given how much has changed culturally…. That [this] is supported here by both ‘conservatives’ and ‘progressives’ on the court should also be of little surprise to those who have watched developments in each of these ideological corners of American life.”

Consider that not only did Gorsuch write the opinion, but the other Trump nominee, Brett Kavanaugh, dissented only because “it was Congress’s role, not this Court’s, to amend Title VII.” But he made sure “to acknowledge the important victory achieved today by [same-gender] Americans… who have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit — battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result.”

The exquisite irony of Bostock is that for three years now, the shorthand explanation for why a conservative Supreme Court majority was worth all the many sellouts of religious values and political principles has consisted of two words: “But, Gorsuch!” Now those two words have taken on a new meaning. When now presented with the argument that a conservative Supreme Court majority is worth all the many sellouts of religious values and political principles, the response is a familiar-sounding one: “But, Gorsuch!” And apparently, we can also add, “But, Kavanaugh!”

Speaking of this decision’s implications for religious liberty, Hawley said:

But, as to those religious conservatives, how do they fare in yesterday’s decision? What will this rewrite of Title VII mean for churches? What will it mean for religious schools? What will it mean for religious charities? Well… the majority does finally get around to saying something about religious liberty. 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….” Oh, no doubt they are… And we eagerly await the decisions of our super-legislators across the street in the Supreme Court building… to see how they will legislate on this question.

Hawley argued that the courts shouldn’t be the first line of defense of religious freedom — that’s the role of Congress, except that it’s full of cowards:

Every honest person knows that the laws in this country today are made almost entirely by unelected bureaucrats and courts. They’re not made by [Congress]. Why not? Because [Congress] doesn’t want to make law… 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. That’s what this body fears above all else. This body is terrified of being held accountable for anything on any subject.

And what, in fact, did the Republican members of the Senate — you know, the “conservative” folks — have to say about this decision? The first line of a Washington Examiner report on Bostock said it all: “Most top Republican lawmakers are unconcerned by a Monday Supreme Court decision that prohibits employers from firing people [based on gender identity or alternative lifestyles].”

The article quotes Senate Majority Whip John Thune as praising Gorsuch “for his ‘independence,’ noting that even since 2017, when Gorsuch was nominated, the country has “changed a lot on the issue. ‘I assume that he looked at the facts and the law, and that’s the conclusion he came to. And that’s what, when we nominated him and confirmed him, we wanted him to do.’ ”

Do you see? “That’s what, when we nominated him and confirmed him, we wanted him to do.” So where does a religious person go to take back the vote he cast, holding his nose, for a party that has betrayed so many of his values?

Originally featured in Mishpacha, Issue 816. Eytan Kobre may be contacted directly at kobre@mishpacha.com


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