Chickens coming home to roost

Every single goal the gay-rights movement set out to achieve in my lifetime has now been won. Gays can marry; we can serve our country openly with pride; we are categorically protected from discrimination in employment and public accommodations in every state. Many once thought it would happen in reverse order, with employment discrimination barred before civil marriage was extended to gays and lesbians, but history has its surprises. Nonetheless, it’s done. Finished. Accomplished.

The Equality Act, the key piece of Democratic legislation designed to update the 1964 Act to include gays and transgender people, is therefore moot. The core goals have been accomplished without Congress needing to pass any new laws. What Gorsuch has achieved is exactly what that bill purports to legislate — except for the Act’s attempt to gut religious freedom, by exempting its provisions from the Religious Freedom Restoration Act of 1993. And that, surely, will be the remaining business: a battle between religious freedom and gay and transgender equality.

Andrew Sullivan, When Is It Time to Claim Victory in the Gay Rights Struggle?

Thus does it become salient that Evangelical fealty to Donald Trump and the GOP, flavored with Christian Nationalism, has given religion and religious freedom a particularly bad odor, and not just to the secularists of the ascendant Left.

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Out of the crooked timber of humanity no straight thing was ever made.

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You can read most of my more impromptu stuff at here. It should work in your RSS aggregator, like Feedly, should you want to make a habit of it.

“Because of … Sex”

I’ve tried to let go of my anxieties about things beyond my control, and I’m not doing too badly in my effort.

Part of my calm comes, ironically, from some political realism (call it fatalism if you must): my side lost the culture wars, at least for now and the near future, so there will be adverse legal and political consequences.

Those consequences likely will be worse because so many of the noisesome avatars of American Christianism have been humping Trump’s leg for 42 months, evoking disgust from normal and Left-abnormal alike.

That I wasn’t among them will give no impunity, partly because, God willing, if a knock comes in the night I’ll not say “No! Not me! I’m not that kind of Christian!” Like ’em or not, the leg-humpers are my distant spiritual kin, so to deny them in time of great peril is like denying Christ.

Another bit of calm comes from the realization that, consequences or not, for now and the near future cultural conservatives, mostly Christian, will almost certainly have it incomparably better than most Christians in the past. (This also means that “knock in the night” is pretty unlikely.)

By “past,” I do not mean “since the birth of Evangelicalism in the 18th and 19th century Great Awakenings.” I mean 2000 years of Christianity. Commemorating the Martyrs and Confessors in Matins each week has taught me that. Real believers will survive and perhaps thrive — although things could get worse than I imagaine so they’ll thrive by departing to be with Christ;  “winsome” don’t always feed the devil-dawg’s bloodlust.

But “not anxious” doesn’t mean “disinterested,” and I’m pretty keenly interested in yesterday’s Title VII  decision (hereafter “Bostock“).

“Not anxious” also doesn’t mean “oblivious” to ramifications that are going to roil the nation for a while. The ones that most get my attention are not the ramifications under Title VII, which deals with discrimination in employment in details I’m unfamiliar with, but ramifications on what sex discrimination prohibitions will mean, by exactly the same Bostock logic, in Title IX and elsewhere. Title IX, for instance, is where the “biological males in women’s locker rooms” specter arises, as not many employers have people getting naked in locker rooms, but most educational institutions do.

Nevertheless, I’m going to pretty much set aside such sequelae to focus on the decision, it’s logic, illogic, dissents and hints about the current court going forward. Sequelae may get comments when they come.

You can get a skillfully pared-down version (from 120 pages to 30) of the Bostock decision here, by the way. If you don’t at least skim it, don’t you dare make snarky remarks about any of the authors.


First observation: I see no sign of bad faith by any of the three authors. Cases don’t get to SCOTUS unless they’re difficult legally. Specifically, I repudiate demagoguery that Gorsuch was just being true to his elite class (What other class do we want on the court? Anyone who makes it onto any Federal Court is ipso facto subject to the “elitist” charge.) or sucking up to the NYT Editorial Board.

Indeed:

The decision was a remarkably clear illustration of several fault lines that persist within the conservative movement. First, there is the friction between textualism and originalism, two judicial philosophies that are often lumped together but that found themselves squarely opposed in this case.

Speaking for the textualists—those who eschew a law’s authorial intent to focus only on its explicit wording—Gorsuch’s argument was simple: Title VII forbids any and all discrimination on the basis of sex, and “an employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex.” In short: If you are a business owner, and your female employees are allowed to date men, but you fire a male employee for dating a man, it’s hard to argue his sex was not a determining factor in your decision.

Speaking for the originalists—those who attempt to determine what the intent of a law was at the time it was passed—Justice Samuel Alito fervently disagreed: It was staggeringly plain, he argued, that not a single legislator who voted to codify Title VII would have considered discrimination “on the basis of sex” to include sexual orientation and gender identity. The very concepts would have been foreign to them.

That friction was nothing, however, compared with what became evident between the conservatives who praised Gorsuch’s decision as quality textualism and those who argued that it amounted to a betrayal of the whole point of getting Trump justices on the court: to get the right some policy wins.

… Tweeted Jon Schweppe of the social conservative American Principles Project: “I was told there would be winning.”

The Morning Dispatch: The Supreme Court Expands Discrimination Protections.

Left and Right seem agreed that SCOTUS is a political legislative body in disguise. Left and Right are wrong.


Commentary on the oral argument in Bostock last November:

The argument is this: If an employer would never fire Ginger for taking a romantic interest in men, but does fire George when it learns that he does so, it has treated him differently because of his sex. Similar arguments can reach the case of an employee’s gender identity.

You might call the phenomenon “surprise plain meaning”—a meaning of the text that the drafters did not intend or notice at the time. Every law student learns about this early on, as with the question of whether a “No Vehicles in the Park” rule covers bicycles, skateboards, or a statue of the general in his Jeep.

Of the five conservative Justices, Neil Gorsuch showed himself the most hospitable toward the plaintiffs’ case on Tuesday [i.e., oral arguments], and no wonder: as the most committed textualist, he’s the likeliest to see surprise plain meaning as beating legislative history.

The Supreme Court Is Not Debating Your “Humanity”. The comments on Gorsuch were prophetic, but certainly not unique.

I thought that the dissent by Justice Alito, who faulted Justice Gorsuch’s adoption of the Ginger and George logic, was quite persuasive. Take a deep breath for an argument that’s nothing like television smack-talk:

At oral argument, the attorney representing the employees, [Pam Karlan] a prominent professor of constitutional law, was asked if there would be discrimination because of sex if an employer with a blanket policy against hiring gays, lesbians, and transgender individuals implemented that policy without knowing the biological sex of any job applicants. Her candid answer was that this would “not” be sex discrimination. And she was right.

The attorney’s concession was necessary, but it is fatal to the Court’s interpretation, for if an employer discriminates against individual applicants or employees without even knowing whether they are male or female, it is impossible to argue that the employer intentionally discriminated because of sex. An employer cannot intentionally discriminate on the basis of a characteristic of which the employer has no knowledge. And if an employer does not violate Title VII by discriminating on the basis of sexual orientation or gender identity without knowing the sex of the affected individuals, there is no reason why the same employer could not lawfully implement the same policy even if it knows the sex of these individuals. If an employer takes an adverse employment action for a perfectly legitimate reason—for example, because an employee stole company property—that action is not converted into sex discrimination simply because the employer knows the employee’s sex. As explained, a disparate treatment case requires proof of intent—i.e., that the employee’s sex motivated the firing. In short, what this example shows is that discrimination because of sexual orientation or gender identity does not inherently or necessarily entail discrimination because of sex, and for that reason, the Court’s chief argument collapses….

I would paraphrase: “If an employer takes an adverse employment action for any reason that he considers legitimate in his sole discretion so long as it is not otherwise forbidden by law—that action is not converted into forbidden sex discrimination simply because the employer knows the employee’s sex.”


Legal experts who watched the arguments unfold weren’t entirely shocked that Gorsuch ruled as he did. The justice is well known as a textualist, someone who holds that the meaning of a law turns on the text alone, not the intentions of its drafters.

“What I saw in the argument [i.e., last November) was Gorsuch really struggling with the fact that the textual argument seemed really powerful to him,” Samuel Bagenstos, a University of Michigan law professor, told me. “There’s no way to think about sexual orientation discrimination without sex being part of it.”

Michelle Goldberg, Surprise! Justice on L.G.B.T. Rights From a Trump Judge


This is not a narrow ruling that just means you can’t fire a person for being gay. Extending civil rights law to protect a whole new category carries with it a host of ancillary protections.

… [T]he Bostock ruling won’t stay confined to employment law. The majority opinion protests, disingenuously, that “sex-segregated bathrooms, locker rooms, and dress codes” are “questions for future cases.” But federal law is full of prohibitions on sex discrimination (Justice Alito’s dissent lists over 100 such statutes), and every one of those will have to be reconsidered in light of today’s ruling.

Justice Gorsuch Just Opened Pandora’s Box


[L]et’s be honest: there was no leadership among the national Republicans. At least President Trump was willing to take the heat for a transgender military ban. But even he, and Republican politicians who supported him, did not articulate why they believe what they do.

If they can’t or won’t talk about these things substantively, it’s no wonder that people think it must be what Justice Anthony Kennedy once called “irrational animus.”

Again, I ask you: what, from a social conservative viewpoint, is the function of the Republican Party? Maybe:

  • to separate conservative Christians from their money and their votes
  • to dose Deplorables anxious about cultural decline with the Pill of Murti-Bing, a drug that induces a sense of happiness and blind obedience

What else?

Rod Dreher, Religious Conservatism’s Potemkin Power (emphasis added).

The problem is not just that your run-of-the-mill Congressional hack can’t talk about these things substantively, but that even the good arguments of people like Ryan T. Anderson are greeted with slack-jawed refusals of comprehension and then dismissed as lipstick on an irrational animus pig. (That this treatment is the real irrational animus is, of course, a posssibility that must not be uttered.)


Some conservative Evangelicals who work at Evangelical institutions (they told me their names and affiliations) have reached out to me tonight after reading this. Their collective view: [Bostock] is a real moment in which we can see the slow-motion collapse of conservative Evangelicalism.

Dreher, supra. Tacit admission that “Evangelical” is now a political label, not religious?


This decision hands LGBT activists the coercive machinery of civil rights law.

R. R. Reno


Interesting point about Bostock: It assumes that the original public meaning of “sex” in Title VII was “status as either male or female [as] determined by reproductive biology.”

In other words, it assumes the “gender binary” that some idiots pretend to find problematic. That assumption is not incidental, but central, though I’ve only heard one comment on it so far. From such subtle acorns mighty legal oaks may grow.

So the gender identitarians may have won a legal battle while losing a philosophical war (with future legal consequences to be determined).


Bostock‘s “textualist” (whether is is sound textualism is contested by the dissenters) decision on the meaning of “because of … sex” vindicates Phyllis Shlafly’s opposition to ERA on the basis of what the cognate “on account of sex” would come to mean.


Finally, I remember the rent garments, weeping, and gnashing of teeth among religious liberty advocates (including me) when Scalia in Employment Division v. Smith overruled Wisconsin v. Yoder (he pretended to be drawing out its real meaning, but nobody was fooled).

But it turned out that — well, let’s just say that for a couple of decades Employment Division v. Smith changed legal strategies and theories, but not many outcomes. Then Scalia’s imagination met its match in categorical bans on discrimination that cleared his “neutral law, general applicability” threshold.

Similarly, some people claim to see signs that Catholic Gorsuch has enhanced protections of religious liberty concealed in his coat pocket, ready for an appropriate case to apply them. Basically, they’re saying that he’s ready to create a judicial version of the rarely-successful “Fairness for All” legislative approach to the long struggle between sexual liberation and religious freedom.

Since the religious liberty cause has fared poorly in courts and commissions, obsessed as they seem to be with vindicating a right of sexual minoritiess to live life unaware that anyone disapproves for any reason,  I would like that more than a little.

UPDATE: Here’s David French talking, among other things, about the potential “Fairness for All” jurisprudential coup.

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Out of the crooked timber of humanity no straight thing was ever made.

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You can read most of my more impromptu stuff at here. It should work in your RSS aggregator, like Feedly, should you want to make a habit of it.

This (sigh!) is as good as it gets

I’ve been waiting for decades for the orthodox to rout the progressives in a denominational split — which amounts to waiting for the progressives to overplay their hand just once.

The usual progressive ploy is to plead for dialog — again and again for as long as it takes to wear down the orthodox — then to give false assurances of pluralism once their heresy or immorality is grudgingly afforded the status of an option, then to crush the orthodox when they gain power. Or as Neuhaus’s Law puts it, “Where orthodoxy is optional, orthodoxy will sooner or later be proscribed.”

It looks like the United Methodist split over homosexuality and same-sex marriage is as close as we’re going to get to an orthodox rout, and even there the progressives are keeping the denomination name (which may prove a blessing in the long run):

This week, a group of church leaders announced a plan for the dissolution of the worldwide church that would allow conservative congregations and conferences to leave the main body and join a new conservative denomination. Under the proposal, the UMC would give the new denomination $25 million and allow departing congregations to keep their property, and departing clergy, their pensions.

(Law & Religion Forum) Keeping property and pensions, and getting a farewell gift to boot, is a smashing victory — relatively speaking.

God bless the Africans, who forced the progressives (a majority in North America) to sue for “peace.” My great-grandchildren may someday need to be evangelized by missionaries from the global south.

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I must also issue a caveat at this point, because the dominant media falsely make disputes like this a matter of good guys versus wicked homophobes.

David French provides an easy way to do so:

The true fracturing point between [progressive and orthodox] churches is over the authority and interpretation of scripture. The debate over LGBT issues is a consequence of the underlying dispute, not its primary cause … [T]here is a strain of Protestant Christianity that views the Bible as valuable but not infallible or inerrant. Evangelical Christians, by contrast, strongly dissent from that view.

Thus, at heart, the disagreement between the [orthodox and progressive] isn’t over issues—even hot-button cultural and political issues—but rather over theology. Indeed, the very first clause of the United Methodist Church’s nine-page separation plan states that church members “have fundamental differences regarding their understanding and interpretation of Scripture, theology and practice.” …

I’m not for a moment going to pretend that there aren’t homophobes and bigots in [orthodox Christianity]. I’ve encountered more than a few people who turn a blind eye to or rationalize and excuse all manner of heterosexual sin while scorning their gay and lesbian friends and neighbors. But for the thoughtful and faithful dissenters on both sides of the theological aisle, sexuality is the side issue. Differences over scriptural authority and biblical theology represent the central dispute.

Orthodox Christian sexual ethics have absolutely nothing to do with animus against gays and lesbians. In fact, there should be zero animus against any person of any sexual orientation or gender identity. Instead, the orthodox Christian sexual ethic—which reserves sex for the marriage between a man and a woman—rests on a sincere conviction that it is not only directly commanded by God through scripture, it’s also best for human flourishing, and it is symbolic of the sacred relationship between Christ and His Church.

And then caveats to the caveat:

French is an Evangelical, which characteristically (and in French’s case) involves a fair amount of parochialism and ecclesiological cluelessness. So I have modified his over-simplified contrast between Evangelicals and Mainstream Protestants to refer to orthodox and progressive more broadly.

Second, for Catholics and capital-O Orthodox, the scriptural teaching on sexuality is important but not all-important, because each Church’s tradition is consistent about the meaning of sexuality. Were I still Protestant, however, I would stand with the lower-o orthodox, because the case that scripture is unclear is dishonest. Here’s an admission against interest to that effect:

I have little patience with efforts to make Scripture say something other than what it says through appeals to linguistic or cultural subtleties. The exegetical situation is straightforward: we know what the text says… . [However] we must state our grounds for standing in tension with the clear commands of Scripture… and appeal instead to another authority when we declare that same sex unions can be holy and good. And what exactly is that authority? We appeal explicitly to the weight of our own experience and the experience thousands of others have witnessed to, which tells us that to claim our own sexual orientation is in fact to accept the way in which God has created us.

(Pro-gay Roman Catholic scholar Luke Timothy Johnson)

That will have to suffice, for everything eventually connect to everything else, and I don’t have an eternity to qualify and ramify.

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Sailing on the sea of this present life, I think of the ocean of my many offenses; and not having a pilot for my thoughts, I call to Thee with the cry of Peter, save me, O Christ! Save me, O God! For Thou art the lover of mankind.

(From A Psalter for Prayer)

You can read most of my more impromptu stuff at here. It should work in your RSS aggregator, like Feedly, should you want to make a habit of it.

Tragedy and Triumph

Beto O’Rourke says, in the special Thursday Democrat Pander-O-Thon for LGBT votes, that churches, colleges and charities should lose their tax-exempt status if they oppose same-sex marriage.

That’s the succinct version. But I wouldn’t blog if that’s all I had to say.

Liberals will say, “Don’t worry about it. Beto is scraping the bottom of the polls. What he says doesn’t really matter.”…

This conservative said that, too, but

… Huh. Don’t you believe it. If this belief isn’t already held by all the Democratic candidates now, it will be. As Brandon McGinley says, there really is no principled reason to resist it, given what the Democrats already believe about the sanctity of homosexuality and transgenderism. Haven’t we all lived long enough now to recognize that the Law of Merited Impossibility — “It will never happen, and when it does, you bigots will deserve it” — is as irrefutable as the Second Law of Thermodynamics?

Even at this late date, we hear from many liberals that orthodox Christians are “obsessed” with homosexuality. They can’t grasp why, aside from bigotry, that we are so concerned about the issue. It’s largely because the march of LGBT ideology to conquer our culture tramples over the rights of orthodox/traditionalist religious people, and indeed of anybody who objects to whatever claim LGBTs make.

What Beto O’Rourke said last night is a perfect example of why many orthodox Christians who despise Donald Trump will vote for him anyway. The survival of our institutions depends on keeping the Democrats out of the White House (and Congress) for as long as we can ….

Rod Dreher (emphasis added).

Insofar as Dreher is describing why many Christians will hold their noses and vote for Trump, he is surely right.

Insofar as he is saying that the survival of our Christian institutions hinges on Donald Trump’s reelection, he is selling God short.

But this is admittedly a situation with high stakes, where the horrible terribleness of Donald Trump has emboldened the Democrats to veer sharply to their left and to promise their base the heads of orthodox Christians on a platter.

Trust in God comes hard in these circumstances, and the trusting ones need to abandon any illusion that Romans 8:28 means only good things happen to those who love and are called by God.

I’m still strongly inclined never to vote for Trump, come whatever may.

It’s not just “all things considered and on balance.” It’s a question of my ingrained, pre-theoretical ethical orientation. I just couldn’t vote for Richard Nixon, in my first Presidential election, once I’d concluded he was a crook. 47 years later, with a bit more ethical theory under my belt and a lot less starry eyes in my residual optimism, I still cannot begin to articulate a convincing deontological or virtue ethics argument for voting for Trump, and I reject Dreher’s implicit consequentialism.

I’d encourage any Christian readers inclined to vote for Trump to grapple with articulating at ethical case for voting for Trump, aware that consequentialism squares pretty badly with Christianity.

On the other hand, my scriptures (the Christian scriptures before the Reformers bowdlerized them — see this, for instance) do include this bit of consequentialism:

A large force of soldiers pursued them, caught up with them, set up camp opposite them, and prepared to attack them on the Sabbath.

There is still time, they shouted out to the Jews. Come out and obey the king’s command, and we will spare your lives.

We will not come out, they answered. We will not obey the king’s command, and we will not profane the Sabbath.

The soldiers attacked them immediately, but the Jews did nothing to resist; they did not even throw stones or block the entrances to the caves where they were hiding. They said,

We will all die with a clear conscience. Let heaven and earth bear witness that you are slaughtering us unjustly.

So the enemy attacked them on the Sabbath and killed the men, their wives, their children, and their livestock. A thousand people died.

When Mattathias and his friends heard the news about this, they were greatly saddened and said to one another,

If all of us do as these other Jews have done and refuse to fight the Gentiles to defend our lives and our religion, we will soon be wiped off the face of the earth.

On that day they decided that if anyone attacked them on the Sabbath, they would defend themselves, so that they would not all die as other Jews had died in the caves.

(Emphasis added)

Make of that passage what you will. It does seem a pretty consequentialist, and Judas Maccabeus remains a mythical hero.

Maybe the polls in your state will say, in 13 months, that your state’s a toss-up, so that choosing between evils feels compulsory.

What I make of the passage from I Macabees is that I at least must be gentle with fellow-Christians who vote for Trump or (because of his horrible terribleness) his Democrat opponent — and that I should hope and pray that they will recognize such a vote as at best a tragic, not triumphant.

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The Lord is King, be the peoples never so impatient; He that sitteth upon the Cherubim, be the earth never so unquiet.

(Psalm 98:1, Adapted from the Miles Coverdale Translation, from A Psalter for Prayer)

You can read most of my more impromptu stuff at here. It should work in your RSS aggregator, like Feedly, should you want to make a habit of it.