There’s an old saying: Laws are like sausages. Better not to see them made. But that’s not the case when we see where the sausage is now being made.
On June 15, the US Supreme Court ruled on Bostock v. Clayton County. Writing for the majority, Justice Neil Gorsuch claims that sexual orientation and “identity” are included in the definition of “sex” under Title VII of the Civil Rights Act of 1964. He says this is a narrow ruling about sex discrimination in employment, leaving concerns like religious liberty for future litigation.
Maybe – but look where the sausage is now being made. The Supreme Court. That’s not promising for America’s experiment in self-government. The experiment asks can a free people rightly order their lives together? Legitimate government is government by the consent of the governed. It’s an experiment, and it is in the nature of experiments that they can fail.
The consent of the governed is achieved through debate, elections, and representative political institutions. Congress is the legislative branch, making laws, or sausage. The executive branch carries out laws. The judicial branch interprets laws according to the Constitution.
These three institutions operate inside a system of limited government, with checks and balances. But they’re all under what Tocqueville called “the first political institution.” Religion. Through religion Americans are schooled in morality, the rule of law, and the habits of public duty. It’s why George Washington said religion is indispensable to political prosperity.
OK, Mike, nice civics review. So what? We just celebrated America’s independence. How’s the experiment going? Today’s executive branch has no governing philosophy. It’s dysfunctional. So is Congress. It plays the blame game, barely passes budgets, and doles out money like it grows on trees (e.g. Senator Martha McSally’s proposal for a $4,000 vacation tax credit).
That leaves the Supreme Court. It’s now the legislative branch. In 1965, the Court “discovered” in the Constitution a “right to privacy” (Griswold v. Connecticut). This narrow ruling was extended in Roe v. Wade. Privacy included the right to an abortion. But neither decision was made by the consent of the governed through elected officials. They were the consent of nine unelected officials. Judges.
In 1992, Roe v. Wade was challenged (Planned Parenthood vs. Casey). The Court extended the right to privacy to include “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life right to define one’s existence.”
Most religions take exception to this. This ruling pits the rule of law against the first political institution. What happens when law is divorced from, indeed pitted against, religion? Justice Samuel Alito put this question to President Barack Obama’s solicitor general Donald Verrilli, Jr.
Alito asked whether constitutional recognition for same-sex marriage would lead to stripping federal tax exemptions from religious colleges that oppose gay marriage – just as federal law strips tax exemptions from colleges that oppose interracial marriage or interracial dating. Rather than immediately answering “no,” Mr. Verrilli said, “It’s certainly going to be an issue.”
This indicates religious liberty is likely going to be an issue in the future. We don’t know how or when, but given where the sausage is now being made, it’s probably coming.