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Two of the worst Supreme Court opinions are Obergefell, finding an imaginary constitutional right to gay marriage, and Bostock, reading transgenderism into Title VII of the Civil Rights Act of 1964. However, the Diocese of Cleveland, by announcing that it is abandoning all LGBTQ+ ideology and practices, may give rise to a Supreme Court case that wipes out those legal abominations.
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In 2015, in Obergefell, Justice Anthony Kennedy concluded that, hidden deep within the Constitution, probably in the same place in which the Supreme Court once found a right to abortion, there is a fundamental right to same-sex marriage. The decision reads more like a romance novel than it does a legal document, despite periodic references to the Constitution.
Kennedy’s writing was slop, but it was slop that set up a very disturbing constitutional crisis: namely, the moment when a same-sex couple sues a conservative religious institution for refusing to marry it. When I mentioned this problem to a leftist lawyer, he scoffed. Much as the Catholic church opposed abortion, he pointed out, that had never caused a constitutional crisis. I responded that the Catholic church didn’t perform abortions.
Image: The Cathedral of St. John the Evangelist in Cleveland, Ohio, by Notordinaryatall. CC BY-SA 4.0.
Then, in 2019, Justice Neil Gorsuch wrote the decision in Bostock. In it, he held that the 1964 Civil Rights Act, when it used the word “sex,” meant “gender identity.” This violated the first rule of statutory interpretation, which is that you must consider what the legislature had in mind when it enacted a law—and I think we can all agree that, back in 1964, no one in the legislature was thinking about so-called “transgenderism.” They were, instead, thinking about sex in terms of the gender binary—male and female—that is both a constant in human biology and the Judeo-Christian belief system that built America. Again, a head-on collision with a religious institution seems inevitable.
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