The James Wilson Foundation on Natural Rights and the American Founding

Commentary Roundup: JWI on Bostock and Harris Funeral Homes

On June 15, 2020, the worlds of social and legal conservatism were rocked by Neil Gorsuch’s majority opinion for Bostock v. Clayton County, Georgia and its companion case, Harris Funeral Homes v. EEOC. JWI staff, friends, and scholars had been watching the case closely and offered their commentary on the outcome.

JWI director and founder Prof. Hadley Arkes started ten days before the opinion by warning the readership of his The Catholic Thing column to “brace for the Court in June,” predicting the negative outcome less than two weeks later. After the opinion was released, he declared in First Things that textualism without reference to natural law is a “morally empty jurisprudence” for producing an outcome contrary to objectively verifiable biology and to the first principles of moral judgment. In The Federalist, he suggested that “the only path open to Republicans” is uniting the other two branches over government to oppose the decision, as Lincoln did after Dred Scott. Prof. Arkes also pointed out the potentially disastrous consequences of Justice Gorsuch’s implicit accepting of transgender identity in his column for The Catholic Thing.

Dr. Ryan T. Anderson, James Wilson Fellowship faculty member and Heritage Foundation scholar, worked through the legal and philosophical implications of the decision in an article for Public Discourse which in many ways builds upon the amicus brief he filed in Harris.

Finally in a piece for Newsweek, JWI deputy director Garrett Snedeker and lawyer and legal commentator Josh Hammer echoed Prof. Arkes in calling for a rejection of judicial supremacy and a restoration of balance between the branches in constitutional interpretation.

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Law and liberty cannot rationally become the objects of our love, unless they first become the objects of our knowledge.
— James Wilson, Lectures on Law, 1790