Event Banner

Has Gorsuch Gone Rogue?


The Supreme Court has handed a victory to the LGBT community, while maligning many employers and infuriating conservative influencers.


In Bostock v. Clayton County, the 6-3 decision centers on Title VII of the Civil Rights Act, which protects employees from discrimination on the basis of race, color, religion, sex, or national origin. The issue deliberated by The Court was whether “sex” should remain defined merely as biological male or female, or if the definition should include lesbian, gay, bisexual, and transgender.


The majority opinion, which included Chief Justice Roberts and was delivered by President Trump’s first Supreme Court nominee, Justice Neil Gorsuch, was not predicted nor welcomed by conservative legal experts and policy advocates.


While Gorsuch’s decision does not overturn any policy advanced by the Trump Administration, his decision does call in to question the conservative jurisprudential philosophy of the “lion of the law’s” replacement. Gorsuch once referred to his predecessor, the late Antonin Scalia, as the lion of the law in his admiration for the legendary conservative jurist.


Often seen as a fitting replacement for Scalia, Gorsuch generally opines with the narrative of a constitutional originalist. However, many scholars consider Gorsuch’s decision in Bostock v. Clayton County to be a rogue and damning precedent.


Either way it is a curious move for Gorsuch, considering his ruling in Hobby Lobby v. Sebelius, while he served on the 10th Circuit Court of Appeals, and Masterpiece Cakeshop v. Colorado Civil Rights Commission while on the Supreme Court. Both cases were related to religious liberty and both cases Gorsuch ruled in the conservative majority.


Alliance Defending Freedom defended Mr. Tom Rost, owner of Harris Funeral Homes, after he was sued for requiring a woman who eventually identified as a man to dress as a woman at work. The case began in 2013 and eventually made its way to the Supreme Court where it faced a disappointing ruling.


ADF’s Vice President of Appellate Advocacy John Bursch provided the following statement:


“Redefining ‘sex’ to mean ‘gender identity’ will create chaos and enormous unfairness for women and girls in athletics, women’s shelters, and many other contexts. Civil rights laws that use the word ‘sex’ were put in place to protect equal opportunities for women. Allowing a court or government bureaucrats to redefine a term with such a clear and important meaning undermines those very opportunities—the ones the law was designed to protect.”


The practical implications of this decision are not simple. Of the approximately 11 million US citizens who identify as LGBT, over 80% are employed while the remainder aren’t necessarily unemployed but rather in school or married to a household provider. That said, the frequency of discrimination based on sexual orientation or gender identity (SOGI) is near null.


However, this decision does call into question whether employees will be forced to use preferred pronouns of their colleagues, despite personal or religious convictions not to. The decision may also compromise religious liberty as religiously affiliated organizations often do discriminate on the basis of SOGI positions, and have been allowed to do so.


Whether this will have a direct impact on religious affiliations is not yet clear.