Justice Neil Gorsuch has been confirmed. Breathe a sigh of relief. The fight against him confirms the importance of President Trump to religious freedom for Christians (and other traditional believers). For the latest news from the courts is not good for religious liberty.

Last week, the 7th Circuit Court rewrote the 1964 Civil Rights Act. The majority ruled in Kimberly Hively v. Ivy Tech Community College that the 1964 Civil Rights Act’s ban on sex discrimination now includes gay and lesbian discrimination.

It’s a breathtaking power grab.

Here’s a good summary of all the various opinions by David Lat. Reagan-appointee Judge Posner gave the most jaw-dropping anti-democratic justification:

“We now understand that homosexual men and women … are normal in the ways that count, and beyond that have made many outstanding intellectual and cultural contributions to society” Posner says. He therefore concluded. “The compelling social interest in protecting homosexuals (male and female) from discrimination justifies an admittedly loose ‘interpretation’ of the word ‘sex’ in Title VII to embrace homosexuality: … in light of (to quote Holmes) ‘what this country has become.’”

If you asked Ms. Hiveley what her sex was, Judge Posner admits it: She would say she’s a woman, not a lesbian. The meaning of the word “sex” hasn’t really changed.

Congress Shouldn’t Bother Its Pretty Little Head About Changing Laws

More Posner: “I would prefer to see us acknowledge openly that today we” judges are “imposing on a half-century-old statute a meaning of ‘sex discrimination’ that the Congress that enacted it would not have accepted.” No big deal, he says. Judges do this in part “to avoid placing the entire burden of updating old statutes on the legislative branch.”

Thus Judge Posner concludes, “We are taking advantage of what the last half century has taught.”

“What Judge Posner is taking advantage of is life tenure,” shot back Josh Blackman.

The power of the courts is almost always used in one direction: to advance the moral views of the Left.

Debates about judicial interpretation take place among tenured judges and tenured academics. These are among the most protected classes from the realities the rest of the country faces. Judges like Posner seem incapable of seeing the damage they do to our democracy. 

Judges Making Up Rights Demeans Voting Citizens

“Majorities can’t take rights from minorities — is that so hard to understand?” one of my Twitter critics asked me. But democracy is a process. It’s not just a matter of fixed majorities and minorities. Kicking us out of that process prevents minorities from making their case to the majority and vice versa. Every pro-life citizen had his citizenship discounted by Roe v. Wade. Every person who fought for the traditional understanding of marriage had his right to participate thrown out by Obergefell. Beyond that, the power of the courts is almost always used in one direction: to advance the moral views of the Left.

Glenn Reynolds says that Judge Posner convinced him of one thing: federal judges should be elected, not appointed. Is it a judge’s job to “update” the clear legal meaning of statutes? Fine, then he should have to find out once every four years where the country really is. Like any other legislator.

Judge Posner’s arrogance is the more striking because he grounds it in false expertise. At the oral arguments Posner focused on one question. “Why do you think there are lesbians?” he asked.

Judge Posner’s Private Theory of Lesbianism

In his decision, without citation or any real argument, Judge Posner returns to his personal view: that sexual orientation is immutable and unchosen:

The position of a woman discriminated against on account of being a lesbian is thus analogous to a woman’s being discriminated against on account of being a woman. That woman didn’t choose to be a woman; the lesbian didn’t choose to be a lesbian.

No Judge Posner. Sexual orientation is a complex phenomenon.

It can’t be reduced to genetics. Some women do in fact choose to be lesbians. They will tell you there is nothing wrong with that. (An opinion to which they are entitled as Americans, even if we disagree).

But wait. To say that sexual relationships between two men are just the same as relationships between a man and woman is a denial of basic sexual reality. We are asked to submit to Big Lies in the service of kindness. America no longer has any consensus on how or why sex matters. Judge Posner’s answer is to put his thumb on the scale and favor one side of the argument. Because he can.

Christian schools and charities could well be punished for refusing to hire gay employees.

Judge Posner’s buried assumption is that Title VII was enacted to give everyone a right to behave sexually as they please.

The First Amendment is Gradually Being Repealed

Why is this a problem for Christians and other traditional faith communities?

First, because Title VII’s protection of religious employers is narrow: It permits you to hire only Catholics (for instance) if you choose. It’s not clear it permits you to hire “Catholics and others who share Catholic morality.”

What more, for a centralized church like Roman Catholicism, the mere threat of expensive lawsuits will create heavy legal, financial pressures on traditional Christian schools and charities: To accept Judge Posner’s values and mute Jesus Christ’s. That pressure becomes intense because of the way the law treats a centralized church.

What if Bishop Robert McElroy of San Diego says one thing about employing gay “married” teachers. Then Archbishop Charles Chaput of Philadelphia says another. The courts are likely to tell Archbishop Chaput: that’s not Catholicism, that’s just your personal opinion. San Diego wins, Philadelphia loses.

Worst still, inserting sexual orientation into the 1964 Civil Rights Act throws the meaning of the religious exemptions in that act into deep new uncertainty.

Your Church Will Hire Whom We Tell it to Hire

As a Skadden Arps brief puts it: “Finally, the exemption covers only religion-based discrimination and does not allow qualifying organizations to discriminate on the basis of race, sex, color, national origin or age.” Translation: Sex discrimination now means sexual orientation discrimination. Your religious exemption probably won’t permit you to hire only those who agree with classic Christian teachings on sex and marriage.

Catholic priests may still be allowed to be male, because that is covered under a separate Constitutional doctrine. A court upheld the “ministerial exception” by 9 to 0 in Hosanna v. Tabor. But if Posner’s doctrine is allowed to stand, Christian schools and charities could well be punished for refusing to hire gay and straight employees on an equal basis. Whether they believe in Christian views of sex and marriage may not be allowed to matter.

Judge Posner hasn’t got much respect for democracy. If he did, he would hesitate to remove such grave questions from the give-and-take of the democratic process. Judges would understand that democracy requires us to engage each other as citizens. Often we have to compromise to get what we want. This is why updating statutes is often hard. There are competing interests at stake.

No imaginable Congress would pass new sexual orientation protection without some provision for religious dissenters. As Prof. Robin Fretwell Wilson has pointed out, no state has passed a gay marriage bill without including at least some level of protection for marriage dissenters. It’s practically an instinct to give at least a few crumbs to the other side in the process of winning legislation.

Why the Courts are now the Whole Kahuna

But Judge Posner can do what he wants. He can outpace or flout public opinion. Clearly he knows he’s doing that. Otherwise “updating” the law would be no burden on Congress.

Democracy becomes ever more dysfunctional when it is routinely bypassed on controversial issues.

And control of the Court becomes the only game in town that matters.

Welcome to the Supreme Court, Justice Neil Gorsuch.