Family Research Council

Justice Gorsuch botched Bostock v. Clayton County ruling on homosexual and transgender 'rights'

Tony Perkins is President of Family Research Council. This article appeared in the Washington Times on June 19, 2020.

On Monday, U.S. Supreme Court Justice Neil Gorsuch issued the Roe v. Wade of religious liberty. Just as that ruling upended scores of state ordinances and laws concerning abortion based on a “right” that can be found nowhere in the U.S. Constitution, in the same way the court’s decision in Bostock v. Clayton County, Georgia, has redefined words to suit a political agenda. An agenda that would impose extreme ideas about human sexuality throughout our society.

There’s no way to put a spin on this. Justice Gorsuch botched it.

In 2018, Justice Gorsuch wrote, “Written laws are meant to be understood and lived by. If a fog of uncertainty surrounded them, if their meaning could shift with the latest judicial whim, the point of reducing them to writing would be lost.” That’s exactly right — and exactly what the justice did not do when the court issued his opinion on homosexual and transgender “rights” on Monday.

In Bostock, Justice Gorsuch wrote that the Supreme Court “normally interprets a statute in accord with the ordinary public meaning of its terms at the time of its enactment.” He even admits that when the Civil Rights Act, the basis of the court’s action, was enacted in 1964, the term “sex” referred “only to biological distinctions between male and female.” But then, he writes, this is just a “starting point” and concludes that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

In making this claim, Justice Gorsuch is redefining nothing less than the very nature of humanity. There are two sexes, male and female. Unlike Justice Samuel Alito in dissent, Justice Gorsuch did not seriously engage the realities of biology. This is not a theological assertion. It’s a matter of science. The National Center for Biotechnology Information, part of our National Institutes of Health, reports that “biological differences” between men and women “have long been recognized at the biochemical and cellular levels.”

But according to Justice Gorsuch, a person’s decision to base his self-identification on his gender preference or sexual attraction now defines his or her sex, and therefore the 1964 definition must now include homosexuality and transgenderism.

This is lawlessness. And as Sen. Josh Hawley of Missouri said after the Bostock ruling came out, “This decision, this piece of legislation, will have effects that range from employment law to sports to churches. There’s only one problem with this piece of legislation: it was issued by a court, not by a legislature.”

Since Monday, I have heard from many people who were demoralized by this latest display of lawlessness. Conservatives have fought hard for decades for judicial nominees who would respect and adhere to the Constitution. Real progress has been made in many areas, such as advancing protections for the unborn and defending religious liberty both here and abroad. But the Bostock ruling was a body blow to the movement to restore moral and even biological sanity to American public life.

I understand the temptation to retreat to our own sanctuaries. Neil Gorsuch was supposed to be a genuine conservative, a scholar with the highest credentials who would be a tremendous successor to the late, great Justice Antonin Scalia. Now all of that is in doubt.

So, some of us are tempted to retreat, to give up. To raise their families and attend their churches and do private works of charity — and forget about political and cultural engagement.

We must resist this temptation. Why? First, God’s word calls Christians to be faithful to Him and His word. Not when it’s easy or when we roll from victory to victory. All the time, without exception. Why? Because He is the author of life and we must defend it, for His sake and the sake of the little ones and their mothers.

He is the source of human dignity, which means we cannot abandon our divinely given and constitutionally ensured right to live out our faith. He is the creator of the family, of the institution of one-man, one-woman marriage, and the children it produces and raises. To abandon the battle when it gets tough is appealing, yes. But it’s also to walk away from God and our calling to be witnesses to His truth.

Second, we still have legal and political tools to advance a compassionate, socially necessary and indisputably biblical agenda. Laying them down and walking away would be to leave those who desperately need our help vulnerable to the left’s dangerous program of cultural deconstruction. Of dehumanization. Of broken families. Of growing suppression of the liberties we cherish.

We must keep an eternal perspective, knowing that Jesus warned His followers that in this world we would have tribulation, but we can take courage and comfort in the fact that He has overcome the world.

Regardless of what may happen today or tomorrow, with an eternal perspective we can keep standing for truth and righteousness. Not just to win a debate or a political fight, our mission and purpose is to stand for truth, so that others will experience freedom as they come to know the truth. How do we continue to stand in these challenging times? As Paul wrote to the Ephesians, we must find our strength in the Lord and in the power of His might.