Bracing for the Court in June

As the calendar was about to turn last fall to October, I wrote in these columns that the month has far scarier things to deliver than Halloween, namely, the opening of new term for the U.S. Supreme Court. (“How Will We Live in the Time of the Transgendered”)

The Court has been the main engine in reshaping what passes as our “culture,” as it gradually swept away the legal and the moral restraints on pornography and abortion, and set in train an understanding of “sex” that would be more and more “liberated” from a framework of marital commitment.  And now that project of sexual liberation would be given its radical further step this year as the Court faced the issue of transgenderism.

In the case of Harris Funeral Homes, one Anthony Stephens had worked as a funeral director, before he was seized by a sense of gender dysphoria.  He chose to present himself to clients as a woman, in his dress and appearance. When the change proved unsettling for his employers, he was let go, and he quickly sought to sue under the Civil Rights Acts.  Title VII of the Act of 1964 barred discriminations based on “sex,” and Stephens claimed now that the Act covered an aversion to people who were shifting in their “gender identity.”

It was quite implausible, of course, to think that the Congressmen who passed that Act were willing to protect people who simply felt strongly that they had undergone a shift in their sex – any more than they would have covered people like Rachel Dolezal in Spokane, who claimed earnestly to feel black rather than white, and was bounced from her position as the head of the local National Association for the Advancement of Colored People.

I recalled, in my column, that impressive brief written by Michael Hanby, David Crawford, and Margaret McCarthy of the John Paul II Institute, making the telling point that the issue in the case involved more than the freedom of Stephens to dress as he pleased.

To come down on the side of Stephens was to arrive at the decisive conclusion that Stephens’s sense of himself was indeed factually true, that his feelings on the matter were sufficient to override any of the objective differences in the structures of organs and bodies that separate males from females.  Even people working around Stephens would be compelled to “confess” their assent to that claim, lest they create legal hazards for their employers and put their own jobs at risk.

A decision in favor of Stephens, then, promises to do for transgenderism what Roe v. Wade did for abortion:  the demand to acknowledge the rightness of that decision will radiate outward, in demands to teach these new civic lessons to children in schools; to require even small religious colleges to offer active support and promotion of the transgendered; and to post cautions for what we may say in settings private as well as public.


That was the question hovering in October. But now it’s June, and for conservatives June has been the cruelest month.  That is when the Court finally releases its decisions on the most contested cases, and it’s the time when conservatives have been conditioned to brace themselves for the worst.

It was in June 1992, when the Court seemed on the threshold of overturning Roe v. Wade, that the defections of Justices Kennedy, O’Connor, and Souter worked to save Roe for yet another generation.  It was in June five years ago, in Obergefell v. Hodges, that Justice Kennedy, after preparing the ground, finally voted to install same-sex marriage.

By June, conservatives have the immanent sense of a sell-out about to happen.  They firmly expect the four liberal justices to vote in a phalanx in virtually every case.  But already there are apprehensions in the air that the five conservative justices will not hold together.  The only unknowns are the two newest, youngest members of the Court.   Both have been vetted and pronounced by the highest sources as Originalists and “textualists.”

And yet, “textualism” is not enough to carry the case.  The lawyers for Stephens say that the text of the statute bars discriminations based on “sex,” and Stephens’ employer recoiled from his sense of his sexual identity.  The lawyers on the other side may cite the dictionaries from 1964 to show that “sex” was not understood to cover “gender identity.”

But the liberal side may play the ace of Lyman Trumbull. Trumbull managed the passage of the Fourteenth Amendment in the Senate, and he had to assure his colleagues up and down that nothing in that Amendment, calling for the Equal Protection of the Laws, would bar those laws in Illinois as well as Virginia that barred interracial marriage.

We have now a fuller, more accurate view, of what that principle on Equal Protection entails in regard to discriminations based on race. The argument will be made that, in the same way, the statute of 1964 must be read with the fuller understanding of “sex” in our own age.

That argument cannot be countered with records of what Congressmen said in 1964.  It can be countered mainly by drawing on the writings of Ryan Anderson, Paul McHugh, Lawrence Mayer, and others, who have drawn out the objective differences in nature, in organs and hormones, which separate males and females.

That is not, however, what conservative judges typically do: to deal with the moral substance of the issue if they cannot depend on the constitutional text.  But if one of the new conservative justices defects on these points, we will find Originalists and textualists on both sides of abortion, same-sex marriage, and transgenderism.

That would not be a sign of a jurisprudence handsomely “neutral” on results.  It would be the sign of a morally empty jurisprudence, and the beginning of a crippling crisis for conservatives.  Fasten your safety belt; it could be a rocky June.


*Image: Chevalier d’Eon by Thomas Stewart, after Jean Laurent Mosnier, 1792 [National Gallery, London]. Long thought to be the portrait of a woman, this is the earliest representation of a “transgender” person in the National Gallery’s collection.

Hadley Arkes is the Ney Professor of Jurisprudence Emeritus at Amherst College and the Founder/Director of the James Wilson Institute on Natural Rights & the American Founding. He is the author of Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law. Volume II of his audio lectures from The Modern Scholar, First Principles and Natural Law is available for download. His new book is Mere Natural Law: Originalism and the Anchoring Truths of the Constitution.