Life, Liberty, & the Supreme Court (Part 2)

Welcome to Family Policy Matters, an engaging and informative weekly radio show and podcast produced by the North Carolina Family Policy Council. Hi, this is John Rustin, President of NC Family and we're grateful to have you with us for this week's program. It's our prayer that you will be informed, encouraged, and inspired by what you hear on Family Policy Matters and that you will feel better equipped to be a voice of persuasion for family values in your community, state, and nation. Today we bring you part two of an excerpt from NC Family's virtual event on Life, Liberty, and the Supreme Court, which took place on September 10, 2020. This event featured John Stonestreet of the Colson Center for Christian World View, Ryan Anderson of the Heritage Foundation, and Matt Sharp, an attorney with Alliance Defending Freedom. So Matt, let's move on and talk about religious freedom and LGBT issues. Clearly a lot happening and significant things happening in this realm.

So tell us a little bit about that. So most of us are probably familiar with the Bostock, the infamous Bostock case, and this really goes back to a civil rights law that prohibits discrimination on the basis of sex in employment decisions. So you can't give a promotion to a male and deny a promotion to an equally qualified female. Well, over the past several years, there's been a push to expand those protections to include sexual orientation and gender identity. And so there had been back and forth in several lower court cases.

One of them that ADF was involved in was the Harris Funeral Home case, where we were representing a devout Christian family that owned a funeral home. And part of the requirement was that employees need to dress appropriately because the focus needs to be on the grieving families. Well, they had a long-term employee, Stevens, that one day announced that he was going to start identifying as Amy Stevens and start dressing as a female.

And the funeral home said, look, what you do on your free time is your business, but when you're on the clock, we need you to respect the families and dress as a male. Unfortunately, they had to part ways, and Stevens and these other cases turned around and sued and said, you have discriminated against us because of our gender identity or because of our sexual orientation, and we're arguing that that's a form of sex discrimination under this 40-, 50-year-old's law banning sex discrimination in employment. Well, in an opinion authored by Justice Gorsuch, the court essentially ruled that gender identity and sexual orientation can now be part of claims of sex discrimination. The court did take pains to say, look, we're limiting this to the employment context. For another day, are we going to address issues of women's sports? Does this mean you now have to allow guys to compete in women's sports? Nor did it address the religious liberty concerns raised by all of this, of whether religious ministries can now be subject to sex discrimination claims if they don't hire someone who doesn't align with their biblical views about marriage or sexuality. And this is something that Alito in his dissent really hammered the majority on, is to say, look, there are all of these concerns that are going to be raised. He really opened a Pandora's box by expanding the definition of sex discrimination to now include sexual orientation and gender identity. So, Ron, how surprised were you by this decision and who wrote it? It depends when you ask me, because the court was leaking like a sieve this term. So when it came time for was it some day in May that they actually announced it, I wasn't surprised. I think I was surprised that Roberts went along with it, that it was a 6-3 rather than a 5-4 case.

But it's terrible, right? And so before the weeks, I would have been shocked if you told me that Roberts and Gorsuch would get this wrong, because this is not a tough case. It shouldn't be tough for originalism, it shouldn't be tough for textualism, it shouldn't be tough for natural law jurisprudence, for common good.

I don't care what flavor of conservative jurisprudence you kind of align with, this is not hard. In 1964, when Congress said no discrimination on the basis of sex, they meant you can't treat men and women differently because one's a man and one's a woman. They didn't mean you can't treat men who think there are women as if they are not women, right?

It was like no one would have thought that was discrimination, they would have thought well that's just, you know, living in accordance with the truth, right? A man who thinks he's a woman is mistaken about that and we should be compassionate, we should be respectful, we should be civil. But treating a man as a man isn't discriminatory, right? And same thing is true for marriage, right? Having beliefs about the nature of marriage and the union of husband and wife isn't discriminatory. And so having expectations about sexuality isn't discriminatory on the basis of sex. Which is why for 30 some years now, the Democrats had introduced legislation to add that phrase sexual orientation and gender identity to our civil rights law.

It's why President Obama issued an executive order adding that phrase to the employment law that he directly had a responsibility for as the head of the executive branch of government. They always understood, the people on the left, that it wasn't already in the law so they had to add it either legislatively or through executive action. And then all of a sudden we have two conservative jurists saying oh no it's been there all along.

And the argument is just, it's utterly simplistic. Because that's what it is, it actually reads discrimination out of the law and it simply says any time you treat a man and a woman with any distinction, you're therefore discriminating. And that's why Alito was exactly right to say what will this mean for bathrooms, for locker rooms, for sports, for religious institutions. And already we've seen the Fourth Circuit Court rule the wrong way applying this to school bathrooms. From the hospital I went to as a child is now being sued because they won't do sex reassignment procedures.

It's a Catholic hospital in Baltimore. Taking the body seriously when it makes a difference isn't discrimination even on Gorsuch's new simplistic theory. And so I think it's going to be important for conservatives, for the present administration, for state governments to make those same arguments. Medicine that takes the body seriously is not discriminatory. Sports that take the body seriously, not discriminatory.

Private facilities that take the body seriously, not discriminatory. So John, what do you think the implications culturally are based on this opinion and what has happened since then? Well, I think a number of things here.

First of all, you know, Ryan gave you all the good news there. And it's you know, I might even be more pessimistic on this one than he is because to me, this just opens the box. It's impossible now to avoid dealing with schools and restrooms and all of that. These challenges will come. You will have courts on the left at the local level make preemptive decisions and it will force the hand.

And it will not take that long. Secondly, I think there has been an attempt within some religious circles to compromise on SOGI legislation. Things like fairness for all. And I think the end result, once this gets applied to sports and restrooms and dorms and all that sort of stuff, is that any conscience protections you want to claim will then dismiss you from competition. It will dismiss you from joining the company of other colleges. It probably will end up having some ramifications for accreditation.

All of this is four or five or six steps down the road, but it's hard to see how it's going to stop. So the attempt to compromise a couple of years ago I think is now off the table. It doesn't seem like there's any reason for the other side to want to do that if there ever was. The final cultural implication, and this is I think the unintended consequence of Gorsuch's strange reasoning. I mean, the linguistic gymnastics that he did to say, well, that's not what they meant in 1964, but this is clearly in the Civil Rights Act or whenever, but you can't do one without doing the other.

Okay, fine. The net result is that because this is tied to the Civil Rights Act, if you're on the wrong side of this, you're on the same side as bigots. So the cultural dismissal in public company I think has just been furthered by the court, and I don't know how you avoid that because now you're a conscientious objector. You have an exemption that the government has granted you. Well, good news, you're on the wrong side of civil rights.

I mean, that's the bigot, the scarlet B letter that you have to wear now. Again, this is all the slippery slope stuff, and I know that people often say, oh, slippery slope. It's not a legitimate argument. It's a logical fallacy. Well, man, if we would just stop sliding down these slippery slopes, I'd believe that.

I mean, we go at breakneck speed. When it's that slanted and it's so greased, it's going to be a slippery slope, and I think this decision, the language, the implications, it's a pretty slippery slope. So, gentlemen, as we come to the end of our discussion today, we've covered a lot of ground. We've talked about a lot of issues. We've gotten kind of in-depth in the legal but also talked about the cultural aspects. But kind of taking a step back and looking at the big picture, what words of encouragement and advice would you give to our audience? Ron, what do you think?

Sure. So you asked for both encouragement and advice. So the encouragement is that, look, we know how the story ends, right? And so while we're sojourners here and now, this isn't our ultimate home. And so if things get worse before they get better, we know that ultimately they get better and that our vocation isn't so much to be successful as it is to be faithful, right?

And so that's the encouragement. The advice is we are entering unchartered territory on a whole host of issues, but there are resources out there to equip you on these issues. And this is what I always think about is like how for most of us, we feel very adept at having a conversation about the life issue. We know at the beginning of life issue, right? We know how to talk about the abortion issue, but we don't feel as comfortable talking about gay marriage or transgender identities or religious liberty or the end of life or assisted suicide issues. There are resources out there. Some of them are at the Colston, some of them at the Heritage Foundation, some of them are at ADF. You've compiled all of them for the NC Family Policy Council.

Equip yourself. That's my advice is do the homework you need to do so that when this issue comes up at the PTA meeting or at the water cooler or at Little League, you can be faithful, right? You can bear witness to the truth on these issues in a way that will be accessible to the person you're talking to.

So if they don't share your faith commitments, figure out how to talk to them, make an argument that they would resonate with. Yeah, John, any final words? Well, those were great words, and I think exactly right. The encouragement is that Christ is risen from the dead, so despair is a sin.

Hope is the estate of the follower of Christ. And that God has intentionally, according to St. Paul's sermon on Mars Hill, chosen this time and this place for you. So it's not an accident that you're here, and we're glad you're here.

Join us. You know, there's a whole lot of work to do. I would say as far as advice, be wary of cocktail party pressure. This is akin to what Ryan said earlier of, you know, not wanting to shake the boat here, not wanting to cause any disruptions over here until you get to a place, and then you turn around and you've never said anything. Maybe the best way to avoid the cocktail party pressure that we all face is to develop in our hearts and minds what I might call a theology of getting fired, where, you know, what does it look like to follow Jesus and get fired and do it joyfully?

The last thing I'll say is there's a wonderful story about Vince Lombardi, who after losing in the playoffs opened the next year's training camp by holding up a football and saying, gentlemen, this is a football. And I think that so much of our challenges on religious liberty go back to the fact that many Christians are secularists with a twist. In other words, we think about our faith as personal private preference, not as the ultimate truth, capital T, about life in the world.

Matt, any final words? Yeah, just real briefly, I always do take encouragement from things like what we saw with the life movement and how Roe v. Wade, as bad as it was, was really sort of a catalyst for the explosion of that, not just in more organizations and movements, but the science and so much that has helped form the basis to create a culture of life. And I think we're going to start seeing that with the issues of marriage and of gender identity in particular. We're already seeing that of more doctors speaking out and even kind of non-traditional voices. J.K. Rowling and Martina Navratilova have been powerful voices over there is an important woman's voice and a man can never have that. And so I am encouraged to see that maybe this is going to be the thing that starts getting more people bold, speaking up, but also some of the legwork, the groundwork about the science and the theology that needs to be laid on these issues.

And it takes events like this to get that started. You've been listening to Family Policy Matters. This has been part two of a two-part series from NC Families virtual event on life, liberty and the Supreme Court, featuring John Stonestreet, Ryan Anderson and Matt Sharp. To listen to part one of this series and to learn more about NC Families work to inform, encourage and inspire families across North Carolina, go to our website at ncfamily.org. That's ncfamily.org. Thanks for listening and may God bless you and your family.