In a recent article for The Catholic Thing, JWI founder and director Prof. Hadley Arkes warns conservatives to brace for a rough June, as the U.S. Supreme Court prepares to announce its decision in Harris Funeral Homes v. EEOC. The Harris case presents SCOTUS with the question of whether Title VII of the Civil Rights Act of 1964‘s prohibition of discrimination on the basis of sex also includes discrimination on the basis of “gender identity.” Prof. Arkes warns that some of the Court’s conservative justices are likely to defect, following the precedent set by the expansion of the definition of Equal Protection under the 14th Amendment to include protections for interracial marriage. Although Prof. Arkes believes SCOTUS was correct in extending the 14th Amendment’s protections to interracial marriages for moral reasons, the conservative justices are likely to treat that decision as a procedural precedent, applying it to Harris without respect for the different moral questions in the case. According to Prof. Arkes, this is evidence of the moral bankruptcy of Originalism – conservative judges will decide the crucial issue in Harris on purely procedural grounds, rather than examining the important moral claims at issue in the case.
Some quotes from the article:
“The Court has been the main engine in reshaping what passes as our ‘culture,’ as it gradually swept away the legal and the moral restraints on pornography and abortion, and set in train an understanding of ‘sex’ that would be more and more ‘liberated’ from a framework of marital commitment. And now that project of sexual liberation would be given its radical further step this year as the Court faced the issue of transgenderism.”
“A decision in favor of Stephens [the respondent], then, promises to do for transgenderism what Roe v. Wade did for abortion: the demand to acknowledge the rightness of that decision will radiate outward, in demands to teach these new civic lessons to children in schools; to require even small religious colleges to offer active support and promotion of the transgendered; and to post cautions for what we may say in settings private as well as public.”
“By June, conservatives have the imminent sense of a sell-out about to happen. They firmly expect the four liberal justices to vote in a phalanx in virtually every case. But already there are apprehensions in the air that the five conservative justices will not hold together.””[A negative ruling in Harris] would not be a sign of a jurisprudence handsomely “neutral” on results. It would be the sign of a morally empty jurisprudence, and the beginning of a crippling crisis for conservatives.”
The full essay can be found here.