Today’s Supreme Court decision protecting Americans from being fired because of sexual orientation certainly makes one thing clear — it is a fool’s errand to predict what a justice is going to do once he is granted life tenure on the high bench. We can’t count the number of times we’ve pressed that point in our decades in the editorial galleys. Rarely, though, has a case so roundly marked the matter as the one decided today.
The case is known as Bostock v. Clayton County, Georgia. The county was haled to court after it fired an employe, Gerald Bostock, who’d started participating in a gay recreational softball league. The Nine also considered other cases from persons seeking shelter under the 1964 Civil Rights Act’s Title VII, which prohibits firing an individual because of his “race, color, religion, sex, or national origin.”
The question presented to the Nine involved, among other things, whether the word “sex” covered sexual orientation — and who should decide that, the Court or the Congress. Had it been up to us, we’d have sent the matter back to the Congress to make clear what it intended when it passed the law in 1964 and how it wants the law to read today. We’d have favored Congress extending much of the protection the court just provided.
We’d have taken a good deal more care, though, in respect of religious freedom. We see the first article in the Bill of Rights as making it unconstitutional to twist the arm of an employer or person who has a religious conflict. We have long kept a weather-eye out for the rights of, among others, fervently religious Jews and Catholics and fundamentalist Christians. Our view is this: In America the fact that a person fears God should never be cause to fear our government.
This was clearly a concern for many on the losing side in Bostock. They deserved better than the brush-off they got from the six justices in the majority. The six noted the fear among some employers that the ruling could require them to “violate their religious convictions.” The majority claimed to be “deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution.”
Then they belittled such worries as “nothing new.” They said Congress provided an “express statutory exception for religious organizations.” The fears, though, are not only among religious organizations. They also are felt by other religious employers. The court noted that it had recently protected a religious school from a federal civil rights lawsuit seeking to regulate its hiring of a minister.
What the court did in that case — Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC — was to reaffirm a “ministerial exception.” It covered only the hiring of ministers, though broadly defined. The vote was nine to zero, but it wasn’t a broad protection for religious persons. Today’s majority sought to reassure religious persons by suggesting they could seek protection under the Religious Freedom Restoration Act.
“Because RFRA operates as a kind of super statute, displacing the normal operation of other federal laws, it might supersede Title VII’s commands in appropriate cases,” the major wrote. Note the “might.” The majority said that how such doctrines of religious liberty interact with Title VII “are questions for future cases.” One litigant in this case may have used the religious freedom statute successfully, but the law’s record is iffy.
Which brings us back to the folly of trying to predict what nominees to the high court might do. The majority was composed of all six members of what might be called the politically correct wing of court, meaning the four liberals plus Chief Justice Roberts and Justice Gorsuch. It was Justice Gorsuch who wrote Bostock. Yet when he was nominated by President Trump, Democrats were in full alarm on gay rights.
The New York Times warned that there was “no question” that a Justice Gorsuch “would be a conservative vote” on an array of issues, including religious liberty and “gay rights.” Los Angeles Times suggested that a Justice Gorsuch could “tilt the balance” on the court, influencing rulings on such issues as “gay and transgender rights.” If today’s ruling does nothing else, maybe it will mark the folly of such panics.
Image: Drawing of the Supreme Court by Elliott Banfield, courtesy of the artist.