SCOTUS Routs Conservatives, Again
The Supreme Court ruled Monday that a landmark civil rights law protects gay and transgender workers from workplace discrimination, handing the movement for L.G.B.T. equality a stunning victory.
The vote was 6 to 3, with Justice Neil M. Gorsuch writing the majority opinion. He was joined by Chief Justice John G. Roberts Jr. and Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.
The case concerned Title VII of the Civil Rights Act of 1964, which bars employment discrimination based on race, religion, national origin and sex. The question for the justices was whether that last prohibition — discrimination “because of sex”— applies to many millions of gay and transgender workers.
It is hard to overstate the magnitude of this decision, and the size of the loss to religious and social conservatives. SCOTUS, the highest legal authority in the land, has declared that homosexuality and transgenderism are like race. If you disagree, you are on the side of Klansmen, in effect. This is not just the opinion of Democratic lawmakers, or columnists at The New York Times. This is now the law of the land. And it became the law of the land thanks to two Republican justices, Roberts and Gorsuch, who were loyal to their class in the clutch.
I have heard an argument that Roberts joined the majority in order to retain the right to assign the opinion. If Roberts had joined the other three in the losing dissent, Justice Ginsburg would have written the majority opinion, which would have looked different from what Gorsuch wrote. In other words, the chief justice made a strategic move to protect as much religious liberty as he could in the face of a conservative loss. The logic is: better a 6-3 decision with a conservative justice writing for the majority than a 5-4 decision with a liberal justice doing so. This may be the case; I don’t know. Keep it in mind, though; Roberts might not be the villain many of us social conservatives think he is.
Gorsuch, though? Gosh, President Trump, thank you. You really came through there. I’m being sarcastic, of course. The last reason, though, why religious conservatives should grit their teeth and vote for Trump anyway has now been blasted to smithereens by this decision written by a Trump justice. And not just a Trump justice, but the paradigmatic Trump justice, the man whose place on the Supreme Court was meant to justify religious conservatives turning a blind eye to Trump’s many other failures. This is what “but Gorsuch” means. Those words are like ashes in the mouth today.
I am unsure what today’s ruling means regarding the religious liberty of churches and religious schools. I will update this post when I hear from people who are in a position to say. Gorsuch, writing for the majority, said:
But how these doctrines protecting religious liberty interact with Title VII are questions for future cases too. Harris Funeral Homes did unsuccessfully pursue a RFRA-based defense in the proceedings below. In its certiorari petition, however, the company declined to seek review of that adverse decision, and no other religious liberty claim is now before us. So while other employers in other cases may raise free exercise arguments that merit careful consideration, none of the employers before us today represent in this Court that compliance with Title VII will infringe their own religious liberties in any way.
So, the decision appears to affect only “secular” employment, and not religious institutions. This was not a religious liberty case. Title VII does have religious exemptions. There will, of course, be legal challenges in other areas. Why wouldn’t there be? If SOGI (sexual orientation and gender identity) discrimination is illegal in employment, why wouldn’t it be illegal in churches and religious institutions?
I was just on a press call with John Bursch of Alliance Defending Freedom, which represented one of the losing plaintiffs in one of the SCOTUS cases at issue in today’s decision. Bursch points out that religious liberty is still very much in play, and will be at issue in future cases. But what SCOTUS has done today is to redefine “sex” to include “sexual orientation and gender identity.” Because of that, he said, “there is no end in sight to that kind of litigation” — meaning litigation challenging institutional practices that depend on the older definition (e.g., keeping male-to-female transsexuals out of female locker rooms).
I asked if there were implications in today’s ruling for the tax-exempt status of religious organizations, based on the Bob Jones ruling in the 1980s. In that case, SCOTUS declared that the IRS could strip a religious organization of its tax-exempt status if it affirmed policies that discriminated on the basis of race, as Bob Jones University did back then. Bursch said he was confident that the Trump administration would not seek to alter IRS policy, and that if it did, that the courts would uphold religious liberty. I agree with him that Trump wouldn’t use IRS policy to go after churches and religious schools, but I see no reason at all why a Biden administration wouldn’t. I don’t know how the courts would rule if this was challenged in court, but given how SOGI is de facto becoming equivalent to race in Supreme Court jurisprudence, I don’t see why we should have confidence that religious liberty would be protected in the face of civil rights claims.
To my religious conservative readers who thought The Benedict Option was overblown: What is it going to take to wake you up to the reality around us? From the book:
The storm clouds have been gathering for decades, but most of us believers have operated under the illusion that they would blow over. The breakdown of the natural family, the loss of traditional moral values, and the fragmenting of communities—we were troubled by these developments but believed they were reversible and didn’t reflect anything fundamentally wrong with our approach to faith. Our religious leaders told us that strengthening the levees of law and politics would keep the flood of secularism at bay. The sense one had was: There’s nothing here that can’t be fixed by continuing to do what Christians have been doing for decades—especially voting for Republicans.
Today we can see that we’ve lost on every front and that the swift and relentless currents of secularism have overwhelmed our flimsy barriers. Hostile secular nihilism has won the day in our nation’s government, and the culture has turned powerfully against traditional Christians. We tell ourselves that these developments have been imposed by a liberal elite, because we find the truth intolerable: The American people, either actively or passively, approve.
The advance of gay civil rights, along with a reversal of religious liberties for believers who do not accept the LGBT agenda, had been slowly but steadily happening for years. The US Supreme Court’s Obergefell decision declaring a constitutional right to same-sex marriage was the Waterloo of religious conservatism. It was the moment that the Sexual Revolution triumphed decisively, and the culture war, as we have known it since the 1960s, came to an end. In the wake of Obergefell, Christian beliefs about the sexual complementarity of marriage are considered to be abominable prejudice—and in a growing number of cases, punishable. The public square has been lost.
On this day, the US Supreme Court, with two conservative justices voting with the liberal majority, has redefined “sex” to include “sexual orientation and gender identity” for employment purposes. If you think it’s going to stop there, you’re mad. More from The Benedict Option:
Politics, as the saying goes, is downstream from culture. Because we on the Christian Right lost the culture war, we lost political power. Our days as a formidable force in American national politics are over.
Does that mean we have no role to play in party politics? Not at all. We remain citizens, after all, and we ought to be committed to working for the common good. But conservative Christians have to undertake a fundamental rethinking of the goals of Christian politics.
For the past thirty years or so, many of us believed that we could turn back the tide of aggressive 1960s liberalism by voting for conservative Republicans. White Evangelicals and Catholic “Reagan Democrats” came together to support GOP candidates who vowed to back socially conservative legislation, and to nominate conservative justices to the US Supreme Court.
The results were decidedly mixed on the legislative and judicial front, but the verdict on the overall political strategy is clear: we failed. Fundamental abortion rights remain solidly in place, and Gallup poll numbers from the Roe v. Wade era until today have not meaningfully changed. The traditional marriage and family model has not been protected in law or in custom, and because of that, courts are poised to impose dramatic rollbacks of religious liberty, for the sake of anti-discrimination.
Again: today’s ruling does not have direct religious liberty implications, but you would have to be a very, very naive person to think that religious liberty is not going to come under intense attack in the courts, in part because of this. Besides which, understand now that under SCOTUS’s new ruling, the owner of a health club must allow male-to-female transgenders, even those who still have male genitals, have free reign of the women’s locker room. The only places that (for now) can resist this order within the law are religious health clubs, if such a thing exists — say, a YMCA that was actually religious.
In his dissent, Justice Samuel Alito listed the many areas of public life that stand to be affected by today’s ruling. I’m going to summarize them briefly, using quotes from Alito’s dissent:
Bathrooms and locker rooms. According to Alito, the logic of the court’s ruling obviates rules keeping transgenders out of the bathroom or locker room they prefer to use. Alito wrote: “The Court may wish to avoid this subject, but it is a matter of concern to many people who are reticent about disrobing or using toilet facilities in the presence of individuals whom they regard as members of the opposite sex. For some, this may simply be a question of modesty, but for others, there is more at stake. For women who have been victimized by sexual assault or abuse, the experience of seeing an unclothed person with the anatomy of a male in a confined and sensitive location such as a bathroom or locker room can cause serious psychological harm.”
Schools and colleges. Alito: “A similar issue has arisen under Title IX, which prohibits sex discrimination by any elementary or secondary school and any college or university that receives federal financial assistance. In 2016, a Department of Justice advisory warned that barring a student from a bathroom assigned to individuals of the gender with which the student identifies constitutes unlawful sex discrimination, and some lower court decisions have agreed.” So now that sex has been redefined by SCOTUS to include SOGI, schools and colleges that receive federal funds may be forced to comply.
Women’s sports. Alito: “Another issue that may come up under both Title VII and Title IX is the right of a transgender individual to participate on a sports team or in an athletic competition previously reserved for members of one biological sex. This issue has already arisen under Title IX, where it threatens to undermine one of that law’s major achievements, giving young women an equal opportunity to participate in sports. The effect of the Court’s reasoning may be to force young women to compete against students who have a very significant biological advantage, including students who have the size and strength of a male but identify as female and students who are taking male hormones in order to transition from female to male.”
Housing. Alito: “The Court’s decision may lead to Title IX cases against any college that resists assigning students of the opposite biological sex as roommates. A provision of Title IX, 20 U. S. C. §1686, allows schools to maintain “separate living facilities for the different sexes,” but it may be argued that a student’s ‘sex’ is the gender with which the student identifies.50 Similar claims may be brought under the Fair Housing Act. See 42 U. S. C. §3604.”
Employment by religious organizations. Alito: “Briefs filed by a wide range of religious groups––Christian, Jewish, and Muslim––express deep concern that the position now adopted by the Court ‘will trigger open conflict with faith-based employment practices of numerous churches, synagogues, mosques, and other religious institutions.’ They argue that ‘[r]eligious organizations need employees who actually live the faith,’ and that compelling a religious organization to employ individuals whose conduct flouts the tenets of the organization’s faith forces the group to communicate an objectionable message.This problem is perhaps most acute when it comes to the employment of teachers. A school’s standards for its faculty ‘communicate a particular way of life to its students,’ and a ‘violation by the faculty of those precepts’ may undermine the school’s ‘moral teaching.’ Thus, if a religious school teaches that sex outside marriage and sex reassignment procedures are immoral, the message may be lost if the school employs a teacher who is in a same-sex relationship or has undergone or is undergoing sex reassignment. Yet today’s decision may lead to Title VII claims by such teachers and applicants for employment. At least some teachers and applicants for teaching positions may be blocked from recovering on such claims by the ‘ministerial exception’ recognized in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. 171 (2012). Two cases now pending before the Court present the question whether teachers who provide religious instruction can be considered to be ‘ministers.’ But even if teachers with those responsibilities qualify, what about other very visible school employees who may not qualify for the ministerial exception? Provisions of Title VII provide exemptions for certain religious organizations and schools ‘with respect to the employment of individuals of a particular religion to perform work connected with the carrying on’ of the ‘activities’ of the organization or school, but the scope of these provisions is disputed, and as interpreted by some lower courts, they provide only narrow protection.”
Healthcare. Alito: “Healthcare benefits may emerge as an intense battleground under the Court’s holding. Transgender employees have brought suit under Title VII to challenge employer-provided health insurance plans that do not cover costly sex reassignment surgery. Similar claims have been brought under the Affordable Care Act (ACA), which broadly prohibits sex discrimination in the provision of healthcare. … Such claims present difficult religious liberty issues because some employers and healthcare providers have strong religious objections to sex reassignment procedures, and therefore requiring them to pay for or to perform these procedures will have a severe impact on their ability to honor their deeply held religious beliefs.”
Freedom of speech. Alito: “The Court’s decision may even affect the way employers address their employees and the way teachers and school officials address students. Under established English usage, two sets of sex-specific singular personal pronouns are used to refer to someone in the third person (he, him, and his for males; she, her, and hers for females). But several different sets of gender-neutral pronouns have now been created and are preferred by some individuals who do not identify as falling into either of the two traditional categories. Some jurisdictions, such as New York City, have ordinances making the failure to use an individual’s preferred pronoun a punishable offense, and some colleges have similar rules. After today’s decision, plaintiffs may claim that the failure to use their preferred pronoun violates one of the federal laws prohibiting sex discrimination. The Court’s decision may also pressure employers to suppress any statements by employees expressing disapproval
of same-sex relationships and sex reassignment procedures. Employers are already imposing such restrictions voluntarily, and after today’s decisions employers will fear that allowing employees to express their religious views on these subjects may give rise to Title VII harassment claims.”
Constitutional claims. Alito: “Finally, despite the important differences between the Fourteenth Amendment and Title VII, the Court’s decision may exert a gravitational pull in constitutional cases. Under our precedents, the Equal Protection Clause prohibits sex-based discrimination unless a ‘heightened’ standard of review is met. By equating discrimination because of sexual orientation or gender identity with discrimination because of sex, theCourt’s decision will be cited as a ground for subjecting all three forms of discrimination to the same exacting standard of review.”
Justice Alito concludes:
Under this logic, today’s decision may have effects that extend well beyond the domain of federal antidiscrimination statutes. Although the Court does not want to think about the consequences of its decision, we will not be able to avoid those issues for long. The entire Federal Judiciary will be
mired for years in disputes about the reach of the Court’s reasoning.
In The Benedict Option, I talk about the importance of building and patronizing Christian businesses, and using creative ways to protect ourselves economically. For now, there are still ways to do this. Hear me, though: stop thinking that voting Republican is sufficient to protect us! It is not. We have a lot of work to do among ourselves, in our own communities, to prepare ourselves to withstand what’s here, and what’s coming.
As I say in the book (and as critics who have never read the book keep missing), there is no safe place to hide from what’s coming. What we have to do is figure out ways to ride it out. The Benedict Option is primarily about building robust, resilient Christian communities that form its members to know what the Truth is, and to be prepared to suffer for it. Watch, if you haven’t, Terrence Malick’s film A Hidden Life. It’s the Benedict Option. Franz Jägerstätter could not escape the Nazis, but when they came to his little village, because of his Catholic formation, he knew that they were Antichrist, and he knew that he could not bend the knee to them. So it must be with us.
Here is the deeper meaning of today’s ruling. In his response to today’s ruling, the Southern Baptist leader Russell Moore writes:
That this case is not well-known in the American public, not much a part of the ongoing “culture wars,” might cause one to think that this is an unimportant case, but this would be the wrong conclusion. The precedents set here will have major implications going forward on how the public meaning of words at the time laws are passed should mean for how they are interpreted in the future. This will mean that legislators actually won’t know what they are voting to pass—because words might change cultural meaning dramatically between the time of passage and some future court case.
The ruling also will have seismic implications for religious liberty, setting off potentially years of lawsuits and court struggles, about what this means, for example, for religious organizations with religious convictions about the meaning of sex and sexuality. This will mean not only that this is just the beginning of the legal discussion at this point, but also that Congress must clarify precisely what they intended, or intend now, in laws that protect women from unjust discrimination—laws that now are to be applied much more broadly.
But, beyond that, there are other considerations for the church. This Supreme Court decision should hardly be surprising, given how much has changed culturally on the meanings of sex and sexuality. That the “sexual revolution” 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.
Whatever the legal and legislative challenges posed by this decision, they are hardly the most important considerations. What is most important is for the church to see where a biblical vision of sexuality and family is out of step with the direction of American culture. For 2,000 years, the Christian tradition, rooted in the Bible, has taught that human beings are limited by our createdness. We are not self-created, nor are we self-determining beings. God has created us, from the beginning, male and female—a concept articulated at the very onset of the biblical canon (Gen. 1:27) and reaffirmed by our Lord Jesus (Mk. 10:6). That’s because this creation order is not arbitrary but is intended to point beyond itself to the mystery of the gospel (Eph. 5:32). Here the church has stood, and will stand.
That will mean teaching the next generation of Christians why such distinctions are good, and not endlessly elastic. We do that by rejecting both a spirit of the age that would erase created distinctions between men and women and those that would exaggerate them into stereotypes not revealed in Scripture. This will mean also that we train up our children to see how such are matters rooted not in cultural mores but in the gospel itself. And it will mean that we provide not just teaching but models.
His point about how the new ideology changes the meaning of words is a point I address in my forthcoming book Live Not By Lies: A Manual For Christian Dissidents. Here is a passage about Prof. Pawel Skibinski, head of the John Paul II Museum in Warsaw:
Skibiński focuses on language as a preserver of cultural memory. We know that communists forbade people to talk about history in unapproved ways. This is a tactic today’s progressives use as well, especially within universities.
What is harder for contemporary people to appreciate is how we are repeating the Marxist habit of falsifying language, hollowing out familiar words and replacing them with a new, highly ideological meaning. Propaganda not only changes the way we think about politics and contemporary life but it also conditions what a culture judges worth remembering.
I mention the way liberals today deploy neutral-sounding, or even positive, words like dialogue and tolerance to disarm and ultimately defeat unaware conservatives. And they imbue other words and phrases—hierarchy, for example, or traditional family—with negative connotations.
Recalling life under communism, the professor continues, “The people who lived only within such a linguistic sphere, who didn’t know any other way to speak, they could really start believing in this way of using of words. If a word carries with it negative baggage, it becomes impossible to have a discussion about the phenomenon.”
Teaching current generations of college students who grew up in the postcommunist era is challenging because they do not have a natural immunity to the ideological abuse of language. “For me, it’s obvious. I remember this false use of language. But for our students, it’s impossible to understand.”
How did people keep hold of reality under communist conditions? How do they know not only what to remember but how to remember it? The answer was to create distinct small communities—especially families and religious fellowships—in which it was possible both to speak truthfully and to embody truth.
“They had social spaces where the real meaning of words was preserved,” he says. “For me, it’s less important to argue with such a view of the world”—progressivism, he means—“than to describe reality as it is. For example, our task is to show people what a normal, monogamous family looks like.”
To paraphrase Orwell in Nineteen Eighty-Four, it is not by winning an argument but by keeping yourself grounded in reality that you carry on the human heritage.
Language is a human construct. It changes through time. What the Supreme Court has done today is ordered a change in the definition of “sex.” True, this was being changed already within the culture, but now the High Court decisively came down on the side of the radicals. This is now what “sex” means in America, according to the Supreme Court. This is the ideological abuse of language. Christian resistance requires creating social spaces where the real meaning of words is preserved!
How many churches and congregations are even aware of this? “Voter guides” aren’t going to make a bit of difference. Christian readers, do not expect bishops, priests, and pastors to lead a meaningful resistance. Some will — find them, and rally to them, but understand that the real resistance is going to have to happen at the local level.
We are all going to have to do what Father Tomislav Kolakovic and his disciples in 1940s Slovakia did. From Live Not By Lies:
Father Kolaković knew that the clericalism and passivity of traditional Slovak Catholicism would be no match for communism. For one thing, he correctly foresaw that the communists would try to control the church by subduing the clergy. For another, he understood that the spiritual trials awaiting believers under communism would put them to an extreme test. The charismatic pastor preached that only a total life commitment to Christ would enable them to withstand the coming trial.
“Give yourself totally to Christ, throw all your worries and desires on him, for he has a wide back, and you will witness miracles,” the priest said, in the recollection of one disciple.
Giving oneself totally to Christ was not an abstraction or a pious thought. It needed to be concrete, and it needed to be communal. The total destruction of the First World War opened the eyes of younger Catholics to the need for a new evangelization. A Belgian priest named Joseph Cardijn, whose father had been killed in a mining accident, started a lay movement to do this among the working class. These were the Young Christian Workers, called “Jocists” after the initials of their name in French. Inspired by the Jocist example, Father Kolaković adapted it to the needs of the Catholic Church in German-occupied Slovakia. He established cells of faithful young Catholics who came together for prayer, study, and fellowship.
The refugee priest taught the young Slovak believers that every person must be accountable to God for his actions. Freedom is responsibility, he stressed; it is a means to live within the truth. The motto of the Jocists became the motto for what Father Kolaković called his “Family”: “See. Judge. Act.” See meant to be awake to realities around you. Judge was a command to discern soberly the meaning of those realities in light of what you know to be true, especially from the teachings of the Christian faith. After you reach a conclusion, then you are to act to resist evil.
The Family groups came together at first for Bible study and prayer, but soon began listening to Father Kolaković lecture on philosophy, sociology, and intellectual topics. Father Kolaković also trained his young followers in how to work secretly, and to withstand the interrogation that he said would surely come.
The Family expanded its small groups quickly across the nation. “By the end of the school year 1944,” Vaško said, “it would have been difficult to find a faculty or secondary school in Bratislava or larger cities where our circles did not operate.”
In 1946, Czech authorities deported the activist priest. Two years later, communists seized total power, just as Father Kolaković had predicted. Within several years, almost all of the Family had been imprisoned and the Czechoslovak institutional church brutalized into submission. But when the Family members emerged from prison in the 1960s, they began to do as their spiritual father had taught them. Father Kolaković’s top two lieutenants—physician Silvester Krčméry and priest Vladimír Jukl—quietly set up Christian circles around the country and began to build the underground church.
The underground church, led by the visionary cleric’s spiritual children and grandchildren, became the principle means of anti-communist dissent for the next forty years. It was they who organized a mass 1988 public demonstration in Bratislava, the Slovak capital, demanding religious liberty. The Candle Demonstration was the first major protest against the state. It kicked off the Velvet Revolution, which brought down the communist regime a year later. Though Slovak Christians were among the most persecuted in the Soviet Bloc, the Catholic Church there thrived in resistance because one man saw what was coming and prepared his people.
The other day, a Slovak academic named Blanka Kudlacova sent me an academic paper she recently authored in which she discusses in detail the work that Father Kolakovic and the Family did, and how that was all carried out in the second generation of disciples. Excerpt:
Krčméry and Jukl started to work with university students in the way they had learned from Kolakovič. They established small communities at every university in Bratislava. Small communities consisted of 7 to 12 students, who used to meet regularly on a weekly or two-weekly basis in private flats or houses. At first, they were established in Bratislava and were organised according to individual universities, faculties and years. At the end of the 1970s, a network of circles was created: leaders of the circles started to meet based on university affiliation and each university had one leader in charge. They had a so-called «central» (central meeting, orig. centrálka) once a month. The «centrals» had a spiritual, methodical and organisational character and were established due to the need of cooperation of persons working with university students. At first, Vladimír Jukl and later František Mikloško were at the head of the «central» and they were followed by Peter Murdza. It used to begin with a collective prayer followed by experience sharing and problem solving related to work with university students and was concluded by information sharing. Inclusion of new university students in communities or establishment of new communities were also part of the agenda. Everything was based on personal relationships and mutual trust.
This is the main avenue of resistance open to us now: cultural and religious. Time for serious orthodox Christian leaders to stop pretending. The courts might give social and religious conservatives a decision we like from time to time, but they will not be a bulwark.
Last night before bed, I read this essay by my friend David French, in which he criticizes “fearful Christians” like me and readers of this blog. I had the tab open to respond to it today. French wrote:
Christian liberty is largely secure, yet Christian fear is harming the Christian witness and damaging the culture of the nation we love.
A moment’s historical reflection should demonstrate that few political and legal movements have been more successful in the last 40 years than Christian conservatism. Through a combination of activism and litigation, Christian conservatives have not only achieved veto power over the electoral fortunes of one of America’s two great political parties, they’ve erected a veritable thicket of laws that protect religious expression in public (and even private) spheres.
Sullivan is correct that intolerance is very real, but he’s wrong that present conditions are “very reminiscent of totalitarian states.” There is a substantial difference between state censorship—enforced at gunpoint—and the professional and social intolerance that dominates illiberal institutions. The East German Stasi would leave your body in a ditch. That’s a different universe of oppression compared to the harms woke America inflicts on its victims today..
Yet excessive fear reigns. My friend Rod Dreher’s influential blog has become a clearing-house for frightened Christian professionals to (anonymously) express their deep fears. Comment after comment will begin with the notation that the authors feels they can’t identify themselves:
“I am a full professor in the humanities at a major private university. Everyone on this blog would likely recognize my name if I published it here.”
“From a reader I know personally, and who correctly says she cannot identify herself: ‘Very few of us have practical freedom of speech anymore. Sure, the constitution lets us say it, but what good is that if it gets us mobbed?’”
I get correspondence like this all the time. And expressions of fear like this aren’t all that new. I’ll never forget the professor who spoke to me in whispers about his faith lest anyone overhear and threaten his tenure bid. I remember an extraordinary case in Georgia where the university Christian community remained largely silent as a fellow believer faced racism, rape threats, and death threats for defending religious freedom on campus.
As a matter of law, Christians are free. As a matter of fact, in many contexts across the country, Christians are afraid—and many of the people who are most in the grips of fear are those individuals who have thoughtful and reasonable things to say.
I like and respect David. Let nobody deny his courage in the public arena. I’m serious about that. I agree with him that Christians cannot be silent, that we have to be willing to be criticized, and even suffer for our faith. The most important chapter in Live Not By Lies is the chapter on suffering as Christian witness. But I read David’s essay as way more optimistic than facts warrant. There really is a difference between hard totalitarianism and soft totalitarianism. Totalitarianism is a mindset before it is anything else. Totalitarianism is the idea that there is no area of life that is free from politics — and that also means cultural politics. I don’t believe that we will have a Woke Stasi in this country. But I also believe we won’t need one for the progressive radicals to achieve what they want to do. Justice Alito said in his dissent today that the ruling raises the question of whether employers will force employees to keep quiet regarding their opinions critical of homosexuality and transgenderism. Might you lose your job over your private social media posts affirming what your church teaches? Yes, you might — and you might have no recourse.
So yes, I completely agree with David that Christians should be more bold … but let’s not downplay how much they (we) are going to be made to suffer under the new and emerging cultural and legal regime. Go back and re-read my interview with the pseudonymous Prof. Kingsfield from 2014, in which the elite law professor, a closeted Christian, predicted what was to come.These parts jump out at me today:
I pointed out that the mob hysteria that descended on Memories Pizza, the mom & pop pizza shop in small-town Indiana that had to close its doors (temporarily, one hopes) after its owners answered a reporter’s question truthfully, is highly instructive to the rest of us.
“You’re right,” he said. “Memories Pizza teaches us all a lesson. What is the line between prudently closing our mouths and closeting ourselves, and compromising our faith? Christians have to start thinking about that seriously.”
“We have to fall back to defensive lines and figure out where those lines are. It’s not going to be persecution like the older Romans, or even communist Russia,” he added. “But what’s coming is going cause a lot of people to fall away from the faith, and we are going to have to be careful about how we define and clarify what Christianity is.”
“If I were a priest or pastor, I don’t know what I would advise people about what to say and what not to say in public about their faith,” Kingsfield said.
There is a bitter irony in the fact that gays coming out of the closet coincides with traditional religious people going back into the closet.
“Gays have legitimately said that it’s a big deal to have laws and a culture in which they have been forced to lie about who they are, which is what you do when you put them in the position of not being able to be open about their sexuality,” Kingsfield said.
“‘Don’t ask, don’t tell’ forced them to segment off a part of their lives in a way that was wrong. What they don’t realize today is that the very same criticism they had about ‘don’t ask, don’t tell’ can be applied to what is happening now to Christians: you can do what you like in private, but don’t bring who you are into the public square, or you can be punished for it.”
When I asked Kingsfield what most people outside elite legal and academic circles don’t understand about the way elites think, he said “there’s this radical incomprehension of religion.”
“They think religion is all about being happy-clappy and nice, or should be, so they don’t see any legitimate grounds for the clash,” he said. “They make so many errors, but they don’t want to listen.”
To elites in his circles, Kingsfield continued, “at best religion is something consenting adult should do behind closed doors. They don’t really understand that there’s a link between Sister Helen Prejean’s faith and the work she does on the death penalty. There’s a lot of looking down on flyover country, one middle America.
That last bit came to mind in a phone conversation I had today with my friend Tim Schultz of 1st Amendment Partnership, a religious liberty lobbying organization in Washington. Tim told me that an unappreciated factor in these decisions is that the Supreme Court justices are the products of elite culture, and live within elite culture. Tim said, “The Supreme Court exists in elite culture. The higher the price there is to pay for being a conservative in elite cultural circles, the harder it is for them to render opinions that social conservatives like.”
On social issues, SCOTUS exists to enact the elite consensus. That’s just how it works. This is straight James Davison Hunter: elite culture and elite networks are the deciding factor in the direction of any culture.
Tim says, of today’s decision:
“It’s absolutely devastating to the worldview to some conservatives that the courts are going to be giving us social conservative victory after social conservative victory. … That view has been utterly defenestrated by today’s decision.”
Tim adds that there are still some significant legal questions around SOGI and religious liberty left for the courts to decide. Plus, politics still matters. It matters who runs the executive branch, including naming Supreme Court justices. It matters what Congress says. It just does not matter as much as social conservatives have been telling themselves.
Tim Schultz has been part of a controversial (on the Right) movement seeking to engage with LGBT rights advocates to work out some kind of legislative compromise. He and his colleagues have been criticized by some conservatives as being too accommodating to the other side, for proposing to cede too much territory. Today, Tim told me that this stunning defeat in the High Court for social conservatives ought to compel radical rethinking on the Right. “Should we re-energize around strategies that brought us to this point, or should we re-engage differently?” he asks.
Everything has to be on the table again regarding legal and political strategies. But look, can we on the religious Right please stop placing so much confidence in law and politics? Can we be honest with ourselves about what is actually happening in this country? Can we be honest with ourselves about how utterly unprepared the churches are for it? If you are a Christian who has dismissed the Benedict Option, what is it going to take for you to engage seriously with it?
I’ll end with this comment from Damon Linker, whose powerful column about the political meaning of the ruling for the Right I find to be incontestable. He writes:
If you’re a conservative primarily concerned about free speech, economic liberty, and gun rights, there is much to love about the Roberts court. If you believe in expansive readings of executive power, there is a lot to cheer for in recent Supreme Court jurisprudence. But if you care about sexual morality and issues wrapped up with it? Forty years of loyalty to the conservative movement and Republican Party has delivered exactly nothing.
There’s no way this won’t do further damage to Trump’s already foundering re-election prospects. Why should social conservatives show up to vote for a president and a party that repeatedly raises their hopes and then dashes them? Why should they continue to give the president a pass on his morally appalling words and deeds when they’re left with nothing to show for it?
Today’s ruling could only have been possible in post-Christian America, an America that no longer believes what the Bible teaches us about the human person, about maleness and femaleness. I see today Gallup has released results of a poll showing that there has been a record collapse of pride in America, even among Republicans. That could mean a lot of things, but traditional Christians should realize at least this: we are exiles in this land, and had better adjust our conduct and our aspirations to reflect that new reality.
One last word, a lesson I learned from researching Live Not By Lies: no matter what, Christians cannot afford to feel sorry for themselves. Under the hard totalitarianism of Soviet power, Christians were thrown into prison, and some were tortured. Yet the wiser ones — people like Silvester Krcmery — understood that if they ever gave in to self-pity, they would lose the ability to be faithful, and to resist. The media and the progressives are going to gaslight religious conservatives, claiming that this is not that big a deal. It is a big deal. But self-pity is a strategy of self-sabotage.
UPDATE: 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. This is how I thought about the Texas anti-sodomy law that was overturned by Lawrence (2003): that it was an unjust law that ought to have been overturned by legislative action, and that the grounds on which it was overturned by SCOTUS were harmful (for the reasons Justice Scalia gave). Similarly, SCOTUS changing the plain meaning of “sex” in civil rights law to fit the current definition is quite nuts.
The gay reader’s question clarified my response to the Bostock ruling, though. Most of my negative feeling about it has to do with transgenderism, which is not the same thing, or the same kind of thing, as homosexuality.
UPDATE.2: In Sarah Pulliam Bailey’s story in the Washington Post, Douglas Laycock, one of the country’s top religious liberty scholars, delivers some grim news to religious conservatives:
Monday’s decision could kill those legislative efforts, said Douglas Laycock, a professor at the University of Virginia Law School.
“This will end all legislative bargaining over religious liberty in the gay-rights context,” Laycock wrote in an email. “There is no longer a deal to be had in which Congress passes a gay-rights law with religious exemptions; the religious side has nothing left to offer.”