Family Policy Matters Radio Posts

  "Family Policy Matters" Radio   Education | Events | Government | Health & Sexuality | Religious Freedom | Sanctity of Life

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

As NC Family has shared, the U.S. Supreme Court’s recent ruling in Bostock v. Clayton County redefined “sex” in federal employment discrimination law to include “sexual orientation and gender identity.” To unpack the legal and cultural ramifications of this ruling, NC Family welcomed three experts to our Virtual Event on Life, Liberty, and the Supreme Court, the second event in the Understanding NC’s Dynamic Landscape series.

John Stonestreet is president of the Colson Center for Christian Worldview. Ryan T. Anderson, Ph.D., is the William E. Simon senior research fellow with The Heritage Foundation. Matt Sharp is senior counsel with Alliance Defending Freedom. These three men joined NC Family President John L. Rustin to discuss the recent Bostock ruling—and more!—and their insights are featured on this week’s episode of the Family Policy Matters radio show and podcast, in Part 2 of a 2-part show. (Note: this event was held before the passing of Justice Ruth Bader Ginsburg, and therefore does not address the Supreme Court vacancy nor Amy Coney Barrett’s nomination.)

By redefining “sex” in federal law, the court ignores biological facts and does not take the body itself seriously, says Ryan Anderson. “Taking the body seriously when it makes a difference isn’t discrimination. I think it’s going to be important for conservatives […] to make those same arguments. Medicine that takes the body seriously is not discriminatory.”

But statements like these, however true they are, will certainly anger mainstream culture. We as Christians will surely face our own discrimination as we stand for Biblical principles, and we may lose friends, followers, or even our jobs because of it. But John Stonestreet reminds us that we are not alone, that Jesus calls blessed those who are persecuted for His name. “It’s not an accident that you’re here, and we’re glad you’re here,” says Stonestreet. “Join us. There’s a whole lot of work to do.”

Tune in to Family Policy Matters this week to hear these experts address some of the biggest questions about the current U.S. Supreme Court and its rulings. You can watch the full recording of this Virtual Event here.


Family Policy Matters
Transcript: Life, Liberty, & the Supreme Court (Part 2)

JOHN RUSTIN: Today, we bring you Part 2 of an excerpt from NC Family’s Virtual Event on Life, Liberty, and the Supreme Court, which took place on September 10th, 2020. This event featured John Stonestreet of the Colson Center for Christian Worldview, Ryan Anderson of the Heritage Foundation, and Matt Sharp, an attorney with Alliance Defending Freedom.

(Continued from Part 1)

Well, Matt, let’s move on and talk about religious freedom and LGBT issues. Clearly a lot is happening, and significant things are happening in this realm, so tell us a little bit about that..

MATT SHARP: 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 and 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. 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. 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 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 on women’s sports? Nor did it address the religious liberty concerns raised by all of this. 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. You really opened a Pandora’s box by expanding the definition of sex discrimination to now include sexual orientation and gender identity.”

JOHN RUSTIN: So, Ryan, how surprised were you by this decision, and who wrote it?

RYAN ANDERSON: It depends when you ask me because the Court was leaking like a sieve this term. So, when it came down to time—what was it some day in May 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 terrible. Right? And so, before the leaks 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 too tough for natural law, jurisprudence for common good. I don’t care what waiver 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’ve 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 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 have 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 indirectly 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. That’s what it is. It actually reads discrimination out of the law. It simply says any time you treat a man and a woman with any distinction, you’re there for 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. The hospital that I went to as a child is now being sued because they won’t do sex-reassignment procedure. 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. I think it’s going to be important for the conservatives, for the President’s 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.

JOHN RUSTIN: So, John, what do you think the implications culturally are based on this opinion and what has happened since then?

JOHN STONESTREET: I think a number of things here. First of all, Ryan gave you all the good news there. 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 restaurants 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. The linguistic gymnastics that he did to say, well, you know, that’s not what they meant in 1964, but this is a clearly, or, you know, in the Civil Rights Act or whenever, but you know, this is, 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 and 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 Letter D, that you have to wear now, again. This is all the slippery slope stuff. And I know that people will often say, “Oh, slippery slope. It’s not a legitimate argument. It’s a logical fallacy.” What, man, if we would just stop sliding down these slippery slopes, I’d believe that. 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.

JOHN RUSTIN: 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? Ryan? What do you think?

RYAN ANDERSON: Sure. So, you asked for both encouragement and invite advice. So, the encouragement is that, look, we know how the story ends, right. And so, you know, 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 it’s 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, religious liberty, or the end of life, assisted suicide issues. There are resources out there, some of them are at the Colson Center and 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. 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, making arguments that they would resonate with.

JOHN RUSTIN: Yeah. John, any final words?

JOHN STONESTREET: Those were great words, and I think exactly right. The encouragement is that Christ is risen from the dead, so this buries the sin. A hope is the state 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. 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 not wanting to shake the boat here and not wanting to, you know, 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. But the last thing I’ll say is there’s a wonderful story about Vince Lombardi, who after losing 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 and the world.

JOHN RUSTIN: Matt, any final words?

MATT SHARP: Yeah, just real briefly. I always do take encouragement from things like what we saw with the life movement and how it, 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 with 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, 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.



Receive Our Legislative Alerts