Great America

Another Establishment Failure

With the Bostock decision, social conservatives have been betrayed again by promises of judicial appointees who will adhere to the Constitution.

Social conservatives don’t know what to say. The judicial appointments of Donald Trump were their decisive answer to people who criticized them for supporting the president—a man whose personal life has been an affront to many “family values.” When liberals and NeverTrumpers called them hypocrites for backing Trump, they had a ready reply: “Gorsuch and Kavanaugh!”

With the election of Donald Trump, the judiciary was to be, at last, converted from an institution that betrayed them over and over again on social issues into an institution whose Republican appointees would be as reliable to the Right as its Democratic appointees were reliable to the Left. No more O’Connors, Kennedys, or Souters! That was the demand. We won’t be fooled again by a judge who rides into the court as a principled conservative opposed by Democrats, and then turns around and hands progressives a victory that strikes deep into the heart of social conservatism. The Federalist Society and sharp, right-leaning minds would not let that happen anymore.

But now comes the opinion written by highly vetted, warmly admired Justice Neil Gorsuch in Bostock v. Clayton County, GA, which has this sentence in the very first paragraph:

 And R.G. & G. R. Harris Funeral Homes fired Aimee Stephens, who presented as a male when she was hired, after she informed her employer that she planned to “live and work full-time as a woman.”

A gender studies professor at an Ivy League university couldn’t have said it better. 

Here we have one of the fundamental beliefs of social conservatism tossed into the garbage. To say that whether you are male or female is a matter of how you “present” is to deny the grounding of sex in nature. It’s what gender theorists back in the 1990s called “performativity,” and it makes sexual identity into something you choose, something you perform, not a physical determination. Today I present as this, tomorrow as that, and both presentations are binding. Nature, biology, physiology—they come second to human will. Or rather, they don’t come into play at all. 

Notice, too, that Justice Gorsuch calls the litigant, Stephens, “she,” accepting Stephens’ “plan” to behave like a woman as definitive of her being a woman. At the time “she” told “her” employer of her intention, “she” was still a he. Now, we have to call “her” “she” even when referring to a time before “her” transformation. Gorsuch complies.

How in the world did the people in charge of protecting social conservatives from an activist, progressive court ever allow this opening? It has been entirely clear for 50 years that the Left never permits this kind of line-crossing. Progressives demand fidelity, and they don’t hesitate to let it be known that any uncooperative person in a position of leadership better stay true. Compliance must be 100 percent. 

Imagine what would happen if one of the liberal justices had voted against the University of Michigan in the 2003 affirmative action case, or tossed out Obamacare in 2012, or voted the wrong way in Obergefell. He would be identified forever by his apostasy. We would hear nonstop denunciation, one attack after another. Invitations to speak and to dine would end. Every time his name came up in the press, his treason would be mentioned no matter how unrelated to the issue at hand.

Compared to this, the group dynamics of conservatism look like kindergarten. How much has Chief Justice John Roberts suffered for his decisions? As for Gorsuch, people on the Right are terribly dismayed by his support for transgenderism, but we may be sure that little more will be said once a few weeks pass. 

This is the way of conservatives. Either they are constitutionally disinclined to take vengeance on a figure who didn’t break any rules of conduct, only held a contrary opinion; or, they have become so accustomed to defeat and humiliation that they’ve lost the spirit to fight back. 

National Review was able to work up an entire issue opposing candidate Trump. If only the editors could devote an entire issue to the perverse tales of the nomination, conservative backing, and liberal jurisprudence of John Roberts and Neil Gorsuch, men who never should have been chosen by our leaders on the Right in the first place.