Tag Archives: Supreme Court

Catholic League: Gorsuch’s flawed anthropology

The Catholic League

OFFICIAL PRESS RELEASE
June 17, 2020
Catholic League president Bill Donohue comments on the majority opinion rendered this week by the U.S. Supreme Court on sexual orientation and gender identity:
There are many problems with the majority opinion written by Justice Neil Gorsuch on workplace discrimination, sexual orientation and gender identity, but none is more important than the flawed anthropology upon which the ruling rests. In fact, it is pivotal.
“An individual’s homosexuality or transgender status is not relevant to employment decisions.” This sweeping statement, which will be cited in every lawsuit on this subject, is manifestly false.
If a man volunteers to be a Big Brother, working with fatherless boys, and decides to “transition” to a woman, he cannot reasonably be expected to do the job he was hired to do. He deliberately changed the required profile. This should clearly be grounds for termination.
The next sentence written by Gorsuch explains his anthropological flaw. “That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” He is wrong again.
Take the case just cited. The employee should be terminated not because of his assigned sex—indeed he was hired precisely because he was a man—but because he is no longer capable of offering the kind of paternal counseling that only a man can provide.
In other words, it is entirely possible to discriminate against a transgender person without discriminating against his sex, as assigned at birth.
Gorsuch concedes, as he must, that sex, sexual orientation, and gender identity are not the same. “We agree that homosexuality and transgender status are distinct concepts from sex.” But he no sooner states the obvious when he falls back on his remarkable claim that to discriminate against a person based on his sexual orientation or gender identity is to discriminate against him on the basis of his sex. As Justice Samuel Alito aptly put it, “repetition of an assertion does not make it so, and the Court’s repeated assertion is demonstrably untrue.”
Gorsuch tries hard to persuade by offering several hypothetical examples, all of which Alito seizes upon to great effect. For example, he says that if a female staffer, who was rated a “model employee,” were to bring her same-sex partner to a holiday party, and was subsequently fired because she is a homosexual, it would mean she was treated that way because of her sex, not just her sexual orientation.
Alito devastates Gorsuch’s scenario. “This example disproves the Court’s argument because it is perfectly clear that the employer’s motivation in firing the female employee had nothing to do with that employee’s sex. The employer presumably knew that this employee was a woman before she was invited to the fateful party. Yet the employer, far from holding her biological sex against her, rated her a ‘model employee.’ At the party, the employer learned something new, her sexual orientation, and it was this new information that motivated her discharge.”
Here is where Gorsuch’s problem lies. Sex is a biological attribute that is not identical to sexual orientation or gender identity. Let’s start with sexual orientation.
The sex of a child can be known before he is born. But his sexual orientation cannot. The former requires no volition; the latter does. They are therefore not identical.
Being a male or a female is similar to being black or white: sex and race have no inherent normative content. That’s because they are fixed properties and do not speak to behavior, which has moral consequences.
The key to understanding the difference between sex and sexual orientation is made plain by the word “orientation.” Sex, or being male or female, is behaviorally neutral; it is not oriented toward anything. Sexual orientation is: it is oriented behaviorally towards either heterosexuality or homosexuality.
Notice that Gorsuch does not speak about homosexual persons, but about homosexuality, as being a distinct concept from sex. He is right about that. Homosexuality is a behavioral attribute: it speaks to men having sex with men or women having sex with women. It is therefore not behaviorally neutral. It is normative.
Indeed, it is precisely because homosexuality is not identical to sex that virtually all of the world’s great religions, in western and eastern civilization, have passed judgment on its practice, without passing judgment on the sex of the participant. The two concepts are distinct and do not ineluctably bleed into each other, despite what Gorsuch claims.
Similarly, gender identity is a behavioral concept that is quite independent of one’s sex. Anatomical surgery and hormone therapy are chosen, unlike one’s sex. They are undertaken because the person elects to change his sex (which he cannot do in any real sense—no one can change his chromosomal makeup). It is done because the person does not like what nature has ordained, therefore making it erroneous to conflate sex with gender identity.
Consider the language chosen by Alito and Gorsuch to refer to a newborn’s sex. The terminology is not only different—it explains why their legal reasoning differs.
At four different junctures, Alito speaks about an individual’s “sex assigned at birth.” Gorsuch, on six occasions, speaks about an individual “who was identified” as male or female at birth.
Gorsuch refuses to employ “assigned at birth” because it would undercut his conviction that sex is a fluid concept. He wants to advance the notion that our sex is a matter of identity, which is a psychological construct, and not a matter of human nature, which of course it is. He is the one conflating sex, sexual orientation, and gender identity. This represents his personal conviction and in no way should be treated as if it were a truism.
Trying to minimize, if not deny, the existence of human nature necessarily yields bad outcomes, both in terms of law and public policy. Most Americans want separate sports teams and restroom facilities for men and women. They understand basic differences based on sex and do not appreciate elites who say they are wrong. They also understand how unjust and indecent it is for men to compete in women’s sports and shower in women’s locker rooms simply because they believe they are female.
It is never helpful when the courts seek to solve problems that barely exist, especially those that touch on the moral order. To cite one example, there are no known cases where a Catholic school has fired a teacher because he happens to be a homosexual. But there are many cases where a homosexual teacher has been fired after it was publicly disclosed—often by the teacher—that he is married to his boyfriend. Activist lawyers will now test the limits of this Supreme Court decision.
Gorsuch’s majority opinion, which is based on bad anthropology, makes for bad law and will now make for bad public policy. Had it been a more narrow ruling, tailored to specific instances of workplace discrimination, there would be no tidal wave of lawsuits. But now that the moral order has been further diced and spliced by the courts—thanks to this classic case of judicial overreach—it is a sure bet there will be.

U.S. Supreme Court ruling on Federal Employment is an attack on the Constitution

by Br. Alexis Bugnolo

Today’s ruling in the Supreme Court of the United States represents yet another usurpation of authority by the Court, but one so grave and perverse, that it would be just that the citizens arrest the justices of the majority opinion and put them in prison, as well as all those who opposed such a sentence.

To arrogate a Divine Authority so as to declare good what is evil, and a right what is merely a perverse desire to do perverse things, is not only diabolic it is fundamentally irrational, attacking as it does the very order by which citizens respect the law.

Courts have been doing this for some time. But until citizens fight back with physical acts, the right to have a legitimate and honest government among men will be denied.

This decision of the Supreme Court lacks all legitimacy and constitutionality. And all who implement it will be criminals and traitors against the natural rights of everyone in the United States of America.

No one has a right to do anything which is evil, contrary to nature, or harmful of themselves or others. All have the duty to live honestly. A State exists so as to maintain the honesty and justice of the society. When it is manipulated by grossly immoral persons or justices, then it becomes a criminal organization, not a state which is owed the obedience and taxes of its citizens.

And the rights of all to have a government which represses wickedness and defends the honest against the wicked precedes all constitutions and laws. Indeed, in defense of this right all men have the right to take up arms and overthrow such criminal states. They moreover have the solemn natural right to use physical force, even deadly force, to prevent the imposition of laws which attack the natural order and the rights of citizens to live, work, hire and fire, buy and sell, speak and worship in accord with the natural order.

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CREDITS: Photo by John Ravi, used here according to a CC-BY-SA 3.0 license.

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The Court hath no power over Marriage

God, the Creator
God, the Creator, Author of Man

Rome, March 11, 2015: The Supreme Court of the United States (SCOTUS) has announced in January that it will hear a case regarding a dispute in which the question of the “right” of individuals to obtain marriage licenses, regardless of their gender, arises.

The US media and indeed many commentators have been presenting the news in an exceedingly erroneous manner: they are saying that the decision is already certain or that the Court will use its judgement wisely, but none dare to touch upon the truth of the matter, namely that,

The Court hath no power over Marriage

It is a truth of nature and of Divine Law, that no court has authority over the institution of Marriage. This truth is taught implicitly by Pope Leo XIII, in his Encyclical, Libertas, n. 10, when he writes (bold-facing added):

10. From this it is manifest that the eternal law of God is the sole standard and rule of human liberty, not only in each individual man, but also in the community and civil society which men constitute when united. Therefore, the true liberty of human society does not consist in every man doing what he pleases, for this would simply end in turmoil and confusion, and bring on the overthrow of the State; but rather in this, that through the injunctions of the civil law all may more easily conform to the prescriptions of the eternal law. Likewise, the liberty of those who are in authority does not consist in the power to lay unreasonable and capricious commands upon their subjects, which would equally be criminal and would lead to the ruin of the commonwealth; but the binding force of human laws is in this, that they are to be regarded as applications of the eternal law, and incapable of sanctioning anything which is not contained in the eternal law, as in the principle of all law. Thus, St. Augustine most wisely says: “I think that you can see, at the same time, that there is nothing just and lawful in that temporal law, unless what men have gathered from this eternal law.”(5) If, then, by anyone in authority, something be sanctioned out of conformity with the principles of right reason, and consequently hurtful to the commonwealth, such an enactment can have no binding force of law, as being no rule of justice, but certain to lead men away from that good which is the very end of civil society.

Thus, because marriage, which is an institution of nature, takes precedence to the state in both time and causation.  Hence, just as no state can exist unless there first be marriage, since every state is a society of men, and there cannot be a state without marriage.

Again, because God made made unto His image and likeness and He made them male and female, He also established that with the union of 1 man and 1 woman, their bond of fidelity remain unbroken throughout life. This truth is evidenced in the rational nature of man as much as in the physical nature of man.  For, the proper development of the individual requires that he have 1 father and 1 mother, that his father be a male and that his mother be a woman; and that the two of them give him undivided and stable commitments in being his father and his mother, in unity, harmony and love.

And just as the violation of any of these characteristics of a marriage breaks down the family, so, just as the family is the fundamental building block of human society, the violation of any of these breaks down the state or impedes it all together.

Thus no court of men has any power over marriage, since “to have power over” means to have the authority over an institution.  Since man does not have authority over institutions which have not arisen from human authority, courts of men must look to the Laws of Nature and of Nature’s God, the Creator, to know beforehand the unpassible limits and constraints which He has placed upon marriage.

Hence, a court which attacks marriage, attacks the state.  And,

A Court which attacks the State is at war with the people

Hence it is a high crime and act of treason, for any human court to rule against the nature or duties of the institution of marriage.  Such a court cannot define anything, but can only rule validly in law when it accepts AND recognizes the institution of marriage for what it is, as arising from the very nature of man as God his creator has established him in body and soul.

A court which attacks marriage, in attacking the state, is at war with the people. The citizens of any such state have thus the natural right and divine duty to arrest such judges and imprison them.  Their crime is a capital one and citizens can lawfully by natural right put such justices to trial for a capital crime, even if there are no existing laws for such such a penalty, because such a penalty for such a crime is derived immediately from the Natural Law which requires no human positive law to be enacted.

Thus, when such a court attempts such a crime, the bond of allegiance of the people is without a doubt severed toward such a court, and its decisions can and ought to be rejected.  Any human government or state which attempts to impose such a judgement upon the people, itself enters into a state of war with its citizens.  Henceforth, they can lawfully omit all allegiance to such a state, whether as regards the payment of taxes, the levy of troops, the enforcement or obedience of laws, but only if and to the extent that they seek to establish anew a more just order and a state or government or laws which are more harmonious with the natural law and divine right.

These words might sound extreme, but they are no lest extreme than the crime committed by such a court in such an affair of men.