The Court’s LGBT Ruling and the Spirit of the Law
In a 6-3 vote, the Supreme Court of the United States ruled that it was illegal to refuse to hire a person or to fire a person because they are Lesbian, Gay, Bisexual, or Transgender. With this decision, millions of Americans will no longer have to be concerned that who they love and how they identify will cost them their job. It is a recognition of dignity and security that feels right, just and long overdue.
The Court has public opinion on its side. The vast majority of Americans, including majorities of almost every religion, support non-discrimination policies towards LGBT community. This should not be surprising. Religious people are uniquely situated to understand why being able to be fully one’s self at work is so important. Too often, religious people are expected to hide their religious affiliation at work by forsaking the hijab, covering their cross, taking off the kippah, or cutting their beard. Likewise, hiding the gender of one’s partner, or being asked to forsake one’s gender identity, is an erasure that diminishes the individual, and makes them less than a full colleague at work and a full human in society.
Today’s ruling was a win for all Americans who support people being able to be who they are and to love who they love. There is another important value about the law and religion that is embedded within the Court’s decision for protection against LGBT discrimination.
The Court’s ruling concerned whether Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex and national origin, also prohibits employment discrimination against LGBT people. Justice Gorsuch wrote the opinion for the majority, placing LGBT rights under the ‘sex’ category in the Civil Rights Act, determining, “It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” Justice Gorsuch found the Civil Rights Act’s prohibition of discrimination on the basis of sex to plainly and broadly prohibit discrimination against LGBT people. He reasons; “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of different sex.” That, of course, makes logical sense, which is a good thing for a court decision to do.
In his dissent, Justice Alito took a different and telling tack, writing: “Discrimination ‘because of sex’ was not understood as having anything to do with discrimination because of sexual orientation or transgender status. Any such notion would have clashed in spectacular fashion with the societal norms of the day.”
Alito and others like him insist that the Constitution and, in this case, a statute must mean precisely what they meant when they were adopted and that any effort to interpret them under the light of current circumstances is out of bounds. Of course, if you had polled the American public in 1964, there would have been little to no support for LGBT people. But, is that really the right question to ask? Instead, it would seem we should ask, what was the intent of the law? If one concludes, as seems evident, that the Civil Rights Act was to broadly prevent discrimination, should the Act prevent discrimination against LGBT people based on sex?
One of my great-grandfathers was Louis D. Brandeis, who served on the Supreme Court from 1916 to 1939. Justice Brandeis believed in what he called the “living law,’ which is responsive to the times. He referred to the Constitution as “a living organism, capable of growth and of adaptation to new conditions.“ My strong sense is that today’s decision was, in addition to the textual logic extended by Gorsuch, an exercise in the living law, interpreting broadly protective statutory language to respond to the current needs for rights and protections of a large segment of American people.
Of course, the tension between those who believe a text should be strictly limited by the time in which it was written and those who believe in ‘the living law’ can also be found in religious traditions. In my own Christian tradition, those who call themselves fundamentalists, or literalists, insist the Bible is not in any way time-bound but must be understood as conveying word for word truth from the past into the present. Not surprisingly, these are the people who are most dismayed by today’s decision by the Court.
In his book Christianity and the Social Crisis, another great-grandfather, Rev. Walter Rauschenbusch wrote: “Nothing could be more valuable than to understand the social context of the Bible in their historical setting, and press home on the Christian Church the essential purpose and direction of its own inspired book. But here, too, it is true that “the letter killeth; it is the spirit that quickeneth.”
Like my ancestors, I believe that fundamentalism of any kind loses the essential message of the very texts it claims to want to protect. It is not blasphemous to admit that the Constitution and the Bible were limited by the time, circumstances, and prevailing worldviews in which they were written. Those prevailing worldviews included the sanction of slavery, misogyny, and bigotry, as well as radical wisdom that rejected those same sins. Acknowledging that invites us towards new interpretations and imagination by each generation, mining the wisdom of the past, for liberation and revelation for the present, including for my own.
And we desperately need that liberation and revelation in both law and religion for our time.
While I am celebrating for the exercise of the law that extends dignity to LGBT Americans, I am acutely aware that millions are in the streets because Black Americans continue to be subject to vicious racism that has, to its shame, been given religious and legal sanction. My prayer is that the law and religion can come alive at this moment, reaching for the Truth that we are all created equal to be levers of change and create a country where oppression is dismantled and where there is truly justice for all. Reaching back, we continue to turn towards the future. Today’s Court ruling was one more brick laid on the road we are marching on that leads towards liberation where the law of the land is the law of love, and where freedom is our creed.
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The opinions contained in this piece are solely the author’s and do not necessarily reflect the views of Interfaith Youth Core. Interfaith America encourages a wide range of views and strives to maintain a respectful tone with a goal of greater understanding and cooperation between people of different faiths, worldviews, and traditions.