Missouri Sen. Josh Hawley on Tuesday condemned the Supreme Court’s Monday Bostock v. Clayton County decision to extend employment protections to gay and transgender people.
Hawley said that the court overstepped its power by revising Title VII of the 1964 Civil Rights Act to reinterpret the act’s prohibitions on sexual discrimination to include gender identity and sexual orientation. That decision, Hawley said, should have been made by Congress because it amounts to a major legislative overhaul.
“You might well argue it is one of the most significant and far-reaching updates to that historic piece of legislation since it was adopted all those years ago,” Hawley said. “And make no mistake, this decision will have effects that range from employment law to sports to churches.”
Because of the decision’s potential effects on religious institutions, coupled with the fact that the majority opinion was authored by Justice Neil Gorsuch, one of President Trump’s appointees, Hawley said that religious conservatives should feel betrayed by “the legal conservative effort.”
“The bargain that has been offered to religious conservatives for years now is a bad one,” Hawley said. “It’s time to reject it.”
Hawley explained that the bargain is a “never explicitly articulated” deal where religious conservatives support the Republican Party’s establishment platforms, and, in return, the party will appoint judges who will “supposedly” support the freedom of worship and the freedom of speech.
In trashing that bargain, Hawley also decried the idea that Gorsuch’s decision represented originalism and textualism, both of which have been the guiding lights of the conservatives seeking to reclaim the Supreme Court. After Bostock, Hawley said, the legitimacy of that movement is “over.”
“If textualism and originalism give you this decision, if you can invoke textualism and originalism in order to reach an outcome that fundamentally changes the scope and meaning of statutory law, then all of those phrases don’t mean much at all,” he said.
Hawley said that the decision should mark a “turning point” at which religious conservatives choose to abandon the Republican legal establishment. He added that Evangelicals, Catholics, and conservative Jews can no longer reasonably seek aid from conservative judges, citing Gorsuch’s speculation that issues raised by the Title VII revisions are “questions for future cases.”
That explanation should not placate religious conservatives, Hawley added.
“What will become of the policies of religious schools? What will be the fate of religious charities?” he asked. “Who knows? Who’s to say? They’re ‘questions for future cases.’”
Other conservatives have criticized the decision as well, warning that it would threaten women in sports.
