Did the Supreme Court Just Threaten Freedom of Religion?

“It is hard to overstate the magnitude of this decision, and the size of the loss to religious and social conservatives. SCOTUS, the highest legal authority in the land, has declared that homosexuality and transgenderism are like race. If you disagree, you are on the side of Klansmen, in effect.”

So fumes Rod Dreher, best known for writing The Benedict Option. Indeed, his recent column about the decision of the U.S. Supreme Court to outlaw hiring discrimination against sexual minorities and trans people gives him opportunity to tell us all again how right he is in that book.

One might not agree with Dreher’s recommendations in that book. (This one doesn’t.) And Dreher’s overheated rhetoric here likewise isn’t helpful.

The Court is not saying that homosexuality and “transgenderism” (whatever that means) are just the same as race. The Court is saying that, like race, and sex, and ethnicity, and national origin, and religion, one ought not to be discriminated against in the workplace because one is a gay man or a transgender woman.

But what about Dreher’s concern over religious freedom? He is far from being the only prominent conservative who is worried about that.

In an impressively argued dissent, Supreme Court Justice Samuel Alito contends that the 1964 Title VII statute did not entail protection for sexual minorities and people of fluid gender identities. It meant by “sex” simply biological males and females. The Court therefore has turned from interpretation to legislation, adding new meaning and new implications to the law, rather than referring the matter to Congress for proper deliberation.

That’s the legal objection to the decision, and Justice Kavanaugh agrees with it in his own dissent. But Alito’s brief also lists a worrying number of implications of the Court’s decision that he wishes had been dealt with via the long process of legislation, not the quick opinion of nine judges over a few days. He mentions, for instance, biological males disrobing in women’s change rooms in the presence of sexual assault victims likely to be traumatized by that experience. And he mentions the unfairness of trans women with male bodies competing in women’s sports. The list goes on. There is a lot at stake.

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