By Cathi Herrod – June 19, 2020

“The position that the court now adopts will threaten freedom of religion, freedom of speech, and personal privacy and safety. No one should think that the Court’s decision represents an unalloyed victory for individual liberty.” – Justice Samuel Alito

Religious rights in the U.S. Constitution will necessarily conflict – at least in part – with culture. It is the job of lawmakers, not the U.S. Supreme Court to find the balance.

That’s not what happened this week when SCOTUS redefined the term “sex” in Title VII of the 1964 Civil Rights Act. Even Justice Neil Gorsuch, who wrote the majority opinion in Bostock v Clinton County, Georgia, admitted no one in Congress was thinking about gender identity when they called for the end of “sex discrimination” in 1964. Still, he twisted and turned logic over and over for 30 pages to make the case that Title VII includes special protections for sexual orientation and gender identity.

Everyone should be treated with the respect God intended when He created us all in His image. No one deserves to be mistreated. But there are significant consequences when justices become lawmakers and create new protected classes in the law without the benefit of policy debates and votes. Others will lose their rights, even First Amendment rights, not based on policy needs but on decisions made by unelected justices.

Make no mistake, by declaring sexual orientation and gender identity as special protected classes, SCOTUS equated sexual orientation and gender identity with race, injected unreliability into the rule of law, and decimated the separation of powers.

Consider these facts:

• Justice Bret Kavanaugh noted that prior to the ruling, 30 judges in lower courts all came to the same conclusion: The 1964 law couldn’t possibly apply to a concept only recently embraced.
• Activists have tried for years on state and federal levels to pass special protections for LGBT behavior.  Lawmakers representing the people have considered the competing interests and said, no.
• Businesses and individuals had been functioning on the words in the law for 56 years before SCOTUS suddenly changed the meaning. Everyone should be able to rely on the words in the law without fear the meaning will suddenly change.

Consider the consequences as pointed out by Justice Alito in the dissent:

• “The Court’s brusque refusal to consider the consequences of its reasoning are irresponsible.”
• The ruling threatens individual and religious freedoms, as well as the freedom of speech.
• Religious institutions will be forced to hire individuals who do not comport to the institution’s religious beliefs.
• Individuals living as transgender will claim the right to use private facilities with biological girls and women, and compete on their sports teams.
• Schools may no longer be able to keep sex specific living conditions or showers, restrooms, or locker rooms. This includes religious schools that receive federal financial assistance.

The fact that SCOTUS did Congress’ job was not lost on some lawmakers. Missouri Senator Josh Hawley gave a scathing speech on the Senate floor, calling out the six justices for legislating. He also blamed Congress for allowing it, and called on religious Americans to stop settling. He said, “It’s not time for religious conservatives to shut up. No, we’ve done that for too long. No, it’s time for religious conservatives to stand up and to speak out.”

Not all lawmakers agree. A number of them appear to be unconcerned about the implications and even relieved the Court took up the sticky topic so they didn’t have to. Iowa Senator Chuck Grassley as much as said it when he responded, “[the ruling] probably negates Congress’s necessity for acting.” Read more here.

In Arizona, some state lawmakers are already calling for more laws that would restrict religious freedoms and free speech, saying the SCOTUS ruling didn’t go far enough.

Arizona Representative Daniel Hernandez called the sweeping ruling only a “partial victory.” Activists are already looking for the next move to further their agenda, saying, “Congress and each state need to finish what the Supreme Court started.” Senator Kate Brophy McGee renewed her call for her legislation that apparently aims to overturn parts of the Arizona Supreme Court’s decision in Brush and Nib.

Justice Gorsuch insinuated in his opinion that the affects on religious liberty will be hashed out in “future cases.” But religious freedom, like all Constitutional protections, should necessitate any new laws bend to those fundamental rights. Not the other way around. Though, now, it seems carve-out exemptions are the most we can expect in the near future. Expect, also, potentially hundreds of cases filed and years of litigation.

Center for Arizona Policy