In First Things, Prof. Hadley Arkes reflects on the recent outcome in Harris Funeral Homes v. EEOC which he warned about in The Catholic Thing a mere fifteen days ago. In the Harris case and its companion case Bostock v. Clayton County, Justice Neil Gorsuch concluded that the Civil Rights Act of 1964’s prohibition on discrimination because of sex includes discrimination on the basis of sexual orientation and gender identity. Prof. Arkes laments the dangers this precedent will pose for religious people, since Justice Gorsuch, in the opening to his opinion, implicitly claimed that an individual’s sex is determined by an assertion of the will of the individual. Prof. Arkes argues that the outcome reveals the moral bankruptcy of Originalism as a jurisprudence. Even though dissenting Justice Samuel Alito argued for the correct moral position on the question, he could not bring himself to move beyond tradition into the realm of fundamental moral claims. That the opinion and both dissents both used Originalism is not a victory – it shows that Originalism can not be relied upon to produce moral outcomes.
Here are some quotes from the article:
“[Gorsuch] said that Aimee Stephens, the one who had been known to the world and his own wife as Anthony Stephens, had “presented as a male” when “she first got the job.” Without the slightest strain, Gorsuch had simply incorporated as his own the predicate of Stephens’s claim: that he had in fact become a woman.”
“What [Justice Alito] could not quite move himself to say was that this was indeed the inescapable truth of the matter, the only coherent way of explaining what sex must really mean. There is something, in the shaping of conservative judges, that makes them deeply reluctant to make that move beyond “tradition” and statutes to the moral truth of the matter.”
“Our friend Carrie Severino declared that this decision by Gorsuch was “the highjacking of textualism.” But it was there to be hijacked by the liberals—along with anyone else—because it had no anchoring truth.”
“In the aftermath of the wreckage, as we start assembling the pieces, we discover that we have now Originalists who defend the rights to abortion, same-sex marriage, and transgenderism, while others have long resisted these moral novelties. But if Originalism is divided on questions of this kind, is it indecorous to pronounce the plain truth?: That Originalism indeed has nothing to say on matters of real consequence. It is a morally empty jurisprudence.”
The whole article can be found here.