A Quick Word on the Supreme Court and the “Redefinition” of Sex
I keep seeing panicky, conservative Christians describe the recent Supreme Court ruling, Bostock v Clayton, as redefining sex to include sexual orientation by legislating from the bench (e.g., Colin Hanson, Joe Carter, Rod Dreher, Russell Moore, Kevin DeYoung, Jake Meador, and Sen. Josh Hawley). This is incorrect, and Christians need to calm down.
The Civil Rights Act prohibits discriminating against employees because of their sex, and the majority opinion of the court ruled that it is impossible to fire someone for being LGBT without also discriminating against them on the basis of their sex:
Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. 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. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.
The Court is not redefining the meaning of sex or adding the category of sexual orientation to the law, but ruling that any vocational discrimination against someone for being LGBT necessarily includes discrimination on the basis of sex. The majority explicitly stated that sex and sexual orientation are separate categories, “We agree that homosexuality and transgender status are distinct concepts from sex. But, as we’ve seen, discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.”
The Court also stated that religious freedom appears to supersede the Civil Rights Acts, “This Court has also recognized that the First Amendment can bar the application of employment discrimination laws ‘to claims concerning the employment relationship between a religious institution and its ministers’…And Congress has gone a step further yet in the Religious Freedom Restoration Act of 1993 (RFRA).” Religious institutions are protected by the constitution, the RFRA, and the very Civil Rights Act under consideration here, which the Court recognizes.
Rod Dreher, even in the midst of his frustration, admits that, “A gay reader and regular commenter asked me if I would favor a law prohibiting Bostock, the Georgia plaintiff, for being fired over his homosexuality. I am pretty sure I would have. The particular circumstances around his firing strike me as quite unjust. I am having trouble coming up with a single case, outside of working for a religious institution, in which an employee’s homosexuality should be legitimate grounds for firing them.” And this is key, isn’t it? If religious institutions are protected from compromising their spiritual doctrine, then under what circumstance is it loving or just for an employer to fire someone because they are LGBT?
Religious liberty is not under threat from this law, sexual reality is not being redefined from the bench, and Christians should take this opportunity to think through the ways they can love their LGBT co-workers and employees rather than mourn that they are no longer able to fire them.
So far the best legal, philosophical breakdown for the decision has come from conservative stalwart George F. Will. Alan Jacobs, while not addressing the specific ruling, has the best framework for how Christians should respond.