Category archives: Human Sexuality

Zuckerberg’s Two-Faced Support of “Free Expression” and Censorship of Therapy

by Peter Sprigg

August 4, 2020

Congressman Jim Jordan (R-Ohio) grilled the CEOs of Amazon, Apple, Google, and Facebook about censorship of conservative voices online in a congressional hearing July 29. He asked each if they were “concerned about the ‘cancel culture’ mob and what it’s up to.”

Here is what Facebook’s Mark Zuckerberg said in reply:

Yes, Congressman. I believe strongly in free expression. Giving people a voice is an important part of what our services do, and I’m very worried about some of the forces of illiberalism that I see in this country that are pushing against free expression. I think that this is one of the fundamental democratic traditions that we have in our country. And it’s how we make progress over the long term on a number of issues. And our company is committed to doing what we can to protect people’s voice.

If Zuckerberg means what he said in his sworn testimony to Congress, step one would be to immediately reverse his company’s decision to “cancel” all content supportive of sexual orientation and gender identity change efforts (SOCE or GICE)—usually referred to by its critics as “conversion therapy.”

According to news reports, on July 10, a spokesperson for Facebook and Instagram, Tara Hopkins, their public policy director for Europe, the Middle East, and Africa, issued a statement saying that Facebook would remove all content promoting so-called “conversion therapy.” CNN reported that this was an expansion of Facebook’s “existing policies on hate speech worldwide.”

Ms. Hopkins reportedly said,

We don’t allow attacks against people based on sexual orientation or gender identity and are updating our policies to ban the promotion of conversion therapy services.

It’s puzzling that an offer to help willing participants achieve their own personally-chosen goal of overcoming unwanted same-sex attractions or becoming comfortable with their biological sex would be considered an “attack against people based on sexual orientation or gender identity.”

On the other hand, it seems logical that “attacks against people based on sexual orientation or gender identity” would include attacks upon people who self-identify as ex-gay based upon their sexual orientation (as well as attacks against people who formerly identified as transgendered but who have de-transitioned based upon their gender identity).

But Facebook’s new policy is not prevention against attacks on individuals self-identifying as ex-gay—it is apparently the successful result of them. The announcement of the new policy follows a systematic campaign of social media attacks upon a U.K. man named Mike Davidson and his organization Core Issues Trust (CIT). These attacks were waged precisely because of Davidson’s self-identified sexual orientation as ex-gay.

It is particularly ironic that Mr. Davidson is being accused of “hate speech,” given the communications he has received from his critics:

CIT’s Facebook page has been barraged with pornographic images — some suggesting pederasty — from activists posting to CIT’s account. . .  

A phone text received by Mike Davidson, who leads both groups, told him, “Kill yourself… I hope you drop dead.  I hope you and your family are raped and killed. Do it. Kill yourself. Just do it.”

Ms. Hopkins of Facebook goes on:

We are always reviewing our policies and will continue to consult with experts and people with personal experiences to inform our approach.

I’m not aware of Facebook consulting with any therapists who actually conduct sexual orientation change efforts—although they would seem to be the people with the most “expertise” on the subject. Nor does Facebook seem to have consulted with people whose “personal experiences” include having benefited from undertaking sexual orientation change efforts. Facebook’s “approach” will not be “informed” if they listen to only one viewpoint.

Another news report, in the LGBT publication the Washington Blade, says:

Mathew Shurka, co-founder of Born Perfect, a project run by him and the National Center for Lesbian Rights that is dedicated to ending conversion therapy, worked with Instagram and Facebook to create a system to identify content promoting the practice.

Shurka is an LGBT activist who has told legislatures a far-fetched tale that when he attended a weekend retreat with an ex-gay ministry called Journey Into Manhood, “Not everyone walked out alive.” As the National Task Force for Therapy Equality has noted,

Perhaps the most disturbing part of Shurka’s testimony is that no one, not even the press, asked him why he didn’t report the so-called “deaths” that occurred during his experience with Journey Into Manhood. Surely, if a crime, suicide, or homicide had occurred, a police report would have been filed. Yet, these stories continue to be recorded as testimony in front of state legislatures and printed in gay activist media outlets . . .

So Facebook consulted with a political activist on only one side of a controversial issue (one of dubious credibility), and then announced a sweeping new policy of complete censorship without even consulting the other side.

Now, an article posted by Media Matters suggested some organizations they think Facebook should censor under the new policy. To illustrate its point, the article featured some of the social media content these organizations have posted. Ironically, the 17 (!) posts effectively debunk much of what is usually said by those seeking to ban SOCE.

One of them said,

My change has meant I have been able to fulfill my desire to remain with my wife and family . . .

Is this an unworthy goal? Can any sensible person call it “hate speech?”

Another one said,

It is … unethical for therapists to impose their agendas on clients.

One would think that would be a key point of common ground with critics of SOCE. Is it “hate speech?”

Another one said,

This therapy does not attempt to change an individual from being gay to straight, but rather it helps an individual to heal from past hurts and fear.

Again, heavy-handed attempts “to change an individual from being gay to straight” are what the critics are concerned about. This post ought to be reassuring. Does Facebook consider it “hate speech?”

I’ve learned of at least one Christian ministry in the U.S. that has had their entire Facebook page removed as of July 23. It’s called “Healing for the Soul.”

What does Facebook have against “Healing for the Soul?”

More to the point—where’s the “aversion therapy?” The electric shocks? Where’s the coercion—especially of minors? Where are the sweeping guarantees of immediate, total transformation? Where are the licensed mental health providers saying all you have to do is “pray away the gay?” Where’s the “shaming” of people with same-sex attractions? Where are all the horror stories that are regularly trotted out to justify imposing unprecedented legal restrictions upon the goals of private psychotherapy?

Where’s the “homophobia?” Where’s the “hate?”

It seems pretty clear to me that the reason the LGBT activists are concerned about what’s on Facebook is not because people are finding “lies” about “conversion therapy” there—it’s because they are afraid people may find the truth, unfiltered by the distortions of LGBT activists and their lackeys in the “mainstream” media.

Transgenderism is Now Rated G

by Arielle Leake

July 17, 2020

The Baby-Sitters Club is a new Netflix series based on the popular children’s books by the same name published in the late ‘80s and early ‘90s. The books—and now the television series—follow the lives of four 12-year-old girls and their entrepreneurial babysitting endeavors. Unfortunately, parents who fondly remember the books from their own childhood should think twice before allowing their impressionable children to watch this G-rated show.

Transgenderism is brazenly presented, unchallenged, and actively celebrated. The fourth episode of the show “Mary Ann Saves the Day” prominently displays the show’s cultural indoctrination. One of the four main characters, Mary Ann, is tasked with babysitting Bailey, a young boy who firmly believes he is a girl and lives a transgender lifestyle. The episode is fraught with highly concerning dialogue and messaging. For example, Mary Ann’s friend explains Bailey’s lifestyle to her by saying, “We all want our insides to match our outsides.” This explanation clearly illustrates the two-story dualism underlying the transgender movement or, as Nancy Pearcy puts it in her book Love Thy Body, “the idea that your brain can be at war with your body.”

The scriptwriters are so committed to the idea that your feelings control who you really are that they cannot even promote healthy encouragement. When Mary Ann, who struggles with self-confidence (as most tween girls do), exclaims that she is “a pathetic cry-baby,” the only help her friend can offer is to say, “If you believe you are a pathetic cry-baby who am I to tell you otherwise.” It could have been a moment used to show young girls how to support and encourage one another while not affirming a lie someone believes about themselves. Instead, all the show can muster is a weak statement meant to shove forward the philosophy that how you feel dictates who you are.

Mary Ann finally finds her “confidence” when she takes it upon herself to reprimand the doctor and nurse who dare to address Bailey by his biological sex. Mary Ann instructs them that “from here on out,” they should “recognize her for who she is.” Further, she requests that they bring Bailey something other than the standard blue hospital nightgown, which he evidently finds highly offensive.

Even more appalling, those in the position of authority—both the medical professionals and the child’s parents—willingly go along with the young child’s whims. Instead of helping him see who God created him to be, they encourage his harmful fascinations and reinforce the idea that fitting a certain “stereotype,” whether it be wearing blue or playing tea parties, is what makes you a male or female.

As a young woman, I am disappointed to see a show that will be viewed by many young and impressionable girls espousing such harmful views—without so much as a question about the consequences of these ideas. Instead of giving young girls a proper view of what it means to be a woman, The Baby-Sitters Club presents womanhood as something that is merely a product of your feelings and not a God-given identity.

In a world that is becoming increasingly accepting of transgender ideology, parents should be cautious about the ideas being espoused in the media their children consume. Christians have a role to play in restoring an understanding that humans are a unique combination of both body and soul, which equally make up who we are and are not at war with each other. Nancy Pearcy defines the Christian’s role as being “the first in line to nurture and support kids who don’t ‘fit in’ by affirming the diversity of gifts and temperaments in the body of Christ.” This is exactly the opposite of what is done in The Baby-Sitters Club.

Arielle Leake is a Policy & Government Affairs intern focusing on religious liberty.

The Silence of the Libs in Bostock

by Peter Sprigg

July 14, 2020

I, together with colleagues, have already commented several times on the outrageous opinion authored by Supreme Court Justice Neil Gorsuch in the case of Bostock v. Clayton County. (See an initial response co-authored by Mary Beth Waddell, another here, and separate pieces analyzing the problems with the decision regarding sexual orientation and gender identity.)

Gorsuch, together with Chief Justice John Roberts and the Court’s four most liberal justices (Ginsburg, Breyer, Sotomayor, and Kagan), ruled that the prohibition on discrimination “because of … sex” found in the Civil Rights Act of 1964 extends also to discrimination based on “sexual orientation” and “gender identity.” The decision leapfrogged the democratic process by granting to homosexual and transgender persons special protections not granted by a majority of states nor by Congress, despite proposals to do so going back decades.

The three dissenting justices produced two dissenting opinions. Justice Samuel Alito wrote one with which Justice Clarence Thomas joined, while Justice Brett Kavanaugh wrote separately. They did a thorough job of dismantling Justice Gorsuch’s astonishing claim that he was merely interpreting the plain language of the 1964 statute in granting this sweeping victory to the LGBT movement. Between them, the 82 pages of dissent were two and a half times as long as the 33-page Gorsuch opinion.

But what I found in some ways even more interesting was what the four liberals who concurred with Gorsuch said.

Nothing.

Not one of the Court’s four most liberal justices wrote a single word in concurrence. None saw fit to wax eloquent about what the decision would mean for Americans who identify as LGBT—ironically, only the two dissenters did that. Justice Alito wrote:

The updating desire to which the Court succumbs no doubt arises from humane and generous impulses. Today, many Americans know individuals who are gay, lesbian, or transgender and want them to be treated with the dignity, consideration, and fairness that everyone deserves.

Justice Kavanaugh went even further, implying that if he were a legislator, he would have voted for a bill to do what the Bostock decision did:

[I]t is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans. Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result.

Yet the four liberal justices, Ginsburg, Breyer, Sotomayor, and Kagan, wrote not a single word.

In my opinion, there is a profound cynicism in that. The silence of the liberals confirms, more eloquently than anything they could say, the chief criticism of their philosophy. To them, only the result matters, not the reasoning.

The exact same thing happened five years ago in the Supreme Court’s last “landmark” decision on LGBT rights—Obergefell v. Hodges, in which the Court declared unconstitutional state laws defining marriage as the union of one man and one woman. In that 5-4 decision, the Court’s “swing vote,” Anthony Kennedy, wrote a nebulous opinion declaring, “The Constitution promises liberty to all … to define and express their identity.” All four of the dissenting justices wrote separate opinions detailing their objections; but not one of the liberals wrote a concurring opinion.

A few days later, a writer in the liberal New Republic hit upon why, pointing out that Kennedy’s “opinion in Obergefell is, logically speaking, kind of a disaster.” The writer, Brian Beutler, believed that “his ultimate holding was the correct one. But the price of admission for Court’s four liberals was to join a muddled, unconvincing opinion.”

Beutler seemed to shrug and say there was no other choice:

But as long as Kennedy is the Court’s “swing” justice, he will frequently be the liberal justices’ best hope for good outcomes, and they will feel compelled to defer to him, even if he’s unable to marshal arguments that stand the test of time.

Justice Kennedy has now retired—but in Bostock, it was Justice Neil Gorsuch who did the liberals’ dirty work for them.

Justice Gorsuch’s Bostock opinion was of a completely different style from Kennedy’s in Obergefell. Gorsuch claimed to be strictly applying the principles of “textualism,” a judicial philosophy most closely associated with the late Justice Antonin Scalia. According to Gorsuch, his decision “follows ineluctably from the statutory text.”

Of course, Justice Samuel Alito demolished this claim in his dissent, writing:

The Court’s opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated––the theory that courts should “update” old statutes so that they better reflect the current values of society.

In any case, the Supreme Court’s four most liberal justices are not “textualists.” A writer for Slate, Richard L. Hasen, expressed the liberal contempt for “textualism” and its sibling “originalism” in 2018, decrying the “bankruptcy” of “a kind of formalism which resuscitates the moribund idea that judges do not make law in part through value judgments, but instead find law through neutral principles.” (The Constitution, I guess, is “moribund”—either dying or obsolescent.)

However, Hasen noted, “liberal lawyers trying to get progressive results at the Supreme Court have already begun trying to pick off conservative justices through a calculated embrace of the theories.” In fact, he calls this “the model for what liberal lawyers are going to need to do,” noting that “because at least some of the [conservative] justices actually believe they are applying neutral principles … , they can be persuaded to vote against conservative positions . . .”

This approach seems to have worked in the Bostock case, “picking off” both Justice Gorsuch and Chief Justice John Roberts.

The complicity of the four liberal justices in this cynical strategy is demonstrated by their silence.

Bostock and Gender Identity: Gorsuch Cancels Male and Female

by Peter Sprigg

July 2, 2020

In a recent blog post, I noted that virtually all critics of Justice Neil Gorsuch’s majority opinion in Bostock v. Clayton County identified his misinterpretation of the word “sex.” The Civil Rights Act of 1964 forbids employment discrimination “because of sex,” and Justice Gorsuch interpreted “sex” to incorporate “sexual orientation” and “gender identity” as well.

I went further and noted that not only is “sexual orientation” not the same as “sex” or merely a part of it, but it is a different type of personal characteristic. Sex is an objective characteristic determined by biology, while “sexual orientation” is a somewhat vague concept that includes a fluid combination of feelings, behaviors, and self-identification.

The same can be said of “gender identity”—it, too, involves a mix of feelings (“gender incongruity” or “gender dysphoria”), behaviors (“gender expression” in the form of clothing, hairstyles, makeup, etc.), and self-identification (being “transgender,” “non-binary,” or “gender fluid,” for example).

However, the “gender identity” portion of Justice Gorsuch’s decision is even more muddled, and has even more radical implications, than the sexual orientation portion.

Bathrooms, Locker Rooms, and Dress Codes

For example, Justice Gorsuch dismisses concerns about “sex-segregated bathrooms, locker rooms, and dress codes,” saying those were not at issue in the Bostock case. Justice Samuel Alito’s dissent, however, declares, “The Court’s brusque refusal to consider the consequences of its reasoning is irresponsible.”

Although the majority opinion is 33 pages long, the heart of its reasoning is found in this simple hypothetical:

Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a … cause of his discharge.

(The flaw in this, as Alito and others point out, is that the fired employee in this hypothetical situation differs from the retained employee not in only one characteristic, but in two—both his sex and his sexual orientation are different.)

But let’s look at how the exact same analogy would apply to showers and locker rooms—perhaps made available as part of a fitness center provided by a company as a fringe benefit to its employees. Here is Gorsuch’s logic (with only the italicized portion changed from his opinion):

Consider, for example, an employer with two employees, both of whom seek to use a locker room and showers in which the employee may see female employees in the nude and may appear nude in front of female employees. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he looks at female employees nude in the locker room and shower and exposes his own nude body to female employees, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a … cause of his discharge.

This is not some generalized slippery slope argument—this is the precise (indeed, irresistible) logic of Gorsuch’s opinion.

But note something important: this outcome is not dependent on the employee’s “gender identity.” Under the Gorsuch logic, any male employee has the right to observe his female colleagues nude, and to expose his own nude body to them, in the locker room or shower. To limit this privilege only to males who identify as female would be, ironically, to “discriminate” on the basis of “gender identity.”

Lying About Sex

While this is the inescapable logic of Gorsuch’s opinion, he shies away from it in his actual discussion of “gender identity.” Here is the hypothetical he presents with respect to that issue:

Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.

His previous hypothetical involving sexual orientation was (somewhat) more straightforward—because a “man” (a “male employee”) is treated differently from (what Gorsuch considers to be) a similarly situated “woman” (a “female colleague”), there is (Gorsuch argues) discrimination “because of sex.”

But in the gender identity hypothetical, there is no “man” or “woman,” no “male” or “female” employee at all—only a person “identified as male at birth” and one “identified as female at birth,” each of whom “now identifies as female.”

Earlier in the opinion, Justice Gorsuch had said that “we proceed on the assumption that [the word] “sex” [in 1964] signified … biological distinctions between male and female.” To be consistent with that “assumption,” the first employee in the hypothetical should have been described as “a transgender person who is male but who now identifies as a female.” That language, however, would have been offensive to transgender activists, who insist that self-identification defines what a person really “is.”

If Justice Gorsuch had been consistent (and honest)—referring to “a transgender person who is male but who now identifies as a female”—it would have cast the “discrimination” at issue in a different light. When an employer (such as Harris Funeral Homes, in this case) parts ways with an employee such as Anthony Stephens (because he wanted to identify as female and be known as “Aimee”), it is not because of the employee’s sex, but because the employee is lying about his sex.

#SexNotGender

Justice Gorsuch scrupulously avoided any mention of the LGBT movement and its philosophical assumptions in his opinion, insisting that he was merely applying literally the language of the 1964 Civil Rights Act. However, the inconsistency of his two hypotheticals shows that it is impossible to discuss “gender identity” without addressing fundamental concepts of what is true and what is real.

Outside the Supreme Court on the day of oral arguments, supporters of Harris Funeral Homes in the gender identity case (which included radical feminists from the Women’s Liberation Front, or WoLF) carried signs with the hashtag “#SexNotGender.” This carried two layers of meaning. The most basic relates to the court’s interpretation of the Civil Rights Act—discrimination because of “sex” refers to biological sex, and it does not extend to “gender” (identity). At a more philosophical level, “Sex Not Gender” implies support for the view that the objective, physical reality of one’s biological sex is a more reliable indicator of whether one is “male” or “female” than the subjective, psychological construct of “gender identity.”

Which is more important—“sex” or “gender identity?” This is a genuine debate, and Americans have a right to hold and argue for whichever opinion they believe in. The problem is, it is impossible to be neutral on this point—anyone who uses the categories of “male” or “female” at all must make a choice how to define them. The Bostock opinion chooses “gender identity,” and forces that choice on private employers, even though Congress plainly did not do so.

The Civil Rights Act made it unlawful for an employer to discriminate “because of sex.” The Bostock decision goes much further—essentially making it unlawful for an employer to act on the belief that “sex” is real. A law that was intended to protect the male and female sex is being interpreted to abolish (biological) sex altogether.

How Do We Authentically Love Our LGBT-Identifying Neighbors?

by Laura Lee Caum

July 1, 2020

Who am I to judge?” For many years, this has been the common response from well-meaning Christians in the Gen Z generation when it comes to conversations regarding the moral status of homosexuality and same-sex marriage. This response should not be surprising, as it comes from those who were raised in a pluralist society heavily influenced by postmodernism and secularism.

While members of the Baby Boomer generation are generally surprised by aspects of the LGBT movement, the majority of Americans in the Millennial and Gen Z generations are quite comfortable with the moral changes happening in the country. This is in large part due to the timing of the movement. By the time those of us in the Gen Z generation were graduating high school, significant changes in law and policy had already been enacted. For example,“Don’t Ask Don’t Tell” had been repealed, many states had already legalized same-sex partnerships/marriages, and the Senate had voted to allow those who identify as homosexual to serve openly in the military. Furthermore, Obergefell v. Hodges, the Supreme Court decision that legalized same-sex marriage in all 50 states, was decided when many of us were just beginning to pay attention to the political and public policy debates happening in our country.

In light of the overwhelming support among the younger generation for same-sex marriage, how should younger Christians respond? How should we engage on this sensitive moral issue that we believe the Bible speaks clearly to? These are important questions that younger Christians committed to the authority of God’s Word must consider and speak clearly to. What follows are my thoughts on how Christians in the Gen Z generation can provide a thoughtful yet faithful response.

First, it is important to realize that many supporters of the LGBT movement are not strangers to the church. In fact, many of them sat under biblical preaching for years. One could then raise the question: why would faithful churchgoers readily neglect the truths of the Bible? While each situation is unique, allow me to suggest two reasons.

First, they may have watched media coverage of a number of spiritual leaders march with hateful signs or yell hateful things at those who identify as LGBT. Those few spiritual leaders who take such action twist Scripture to their own liking. Thinking they are advocating for morality, these spiritual leaders are actually failing to act with love toward those who identify as LGBT. This failure can lead to the hearts of many LGBT supporters to degrade into resentment, creating a separation between themselves and the church.

On the other side of the spectrum, the second reason faithful churchgoers are now readily neglecting the truths of the Bible is that some spiritual leaders have taken a “love everyone” approach. This approach is radically different from the “fire and brimstone” style but has the same damaging affect. The blanket statement of “love everyone” neglects the justice and truth that Jesus taught. It instead teaches the young member that their only role is to “love” their friends who identify as LGBT. The young member then concludes that they can love without the guidance of the church, and their place in the pew eventually sits empty. What then should the church do to retain these members and speak the whole message of the gospel?

The most compelling example of combining love and justice is found in John 8. For those unfamiliar with this story, this passage tells the story of a woman caught in the act of adultery. The religious leaders of the day bring her before Jesus and proudly proclaim, “Now in the Law, Moses commanded us to stone such women.” Those who preach a fire and brimstone message would applaud this dedication to the law. The religious leaders then ask Jesus his opinion on what should be done with the woman. Obeying the Proverb to be slow to answer, Jesus eventually replies, “Let him who is without sin among you be the first to throw a stone at her.”

If the story ended here, spiritual leaders who preach a “love everyone” message would be ecstatic. But the story doesn’t end here. As the religious leaders slowly walk away, Jesus asks her if there is anyone left to condemn her. No one is left. In a brilliant moment of combining the truth of God and the grace he offers, Jesus says, “Neither do I condemn you; go, and from now on sin no more.” That is the approach spiritual leaders should take. God is both just and merciful, and both must be preached. A sermon that follows this guideline condemns homosexuality for what it is, which is a distortion of the good gift of sexuality. This same sermon, however, should encourage a peaceful and loving attitude towards those in the LGBT movement.

To Christians who are tempted to sacrifice morality on the altar of supporting the LGBT movement, take a moment and reevaluate what love actually is. Though our culture has tried to combine the two, love and lust are radically different. One is selfless and live-giving while the other is selfish and destructive. Truly loving someone means instructing them in the way of truth. Jesus prevented the woman in John 8 from being stoned, but also instructed her to leave her life of sin. That is love. Love is not changing your social media profile picture to a rainbow flag, or marching during “Pride Month.” Examine the love that Jesus expressed, and do the same.

Pride Month forces Christians to examine themselves. Are we actually preaching the gospel, which combines truth and love? Ask yourself: Am I reaching out to those who struggle with homosexuality and loving them as Jesus does? How will I advocate for legislation that defends natural marriage and the family? We must answer these questions. We must act. Love requires that of us. Christians have no excuse to passively sit back and say, “Who am I to judge?”

Laura Lee Caum is a Communications intern at Family Research Council.

Supreme Court Abandons Human Dignity in Russo but Upholds It in Open Society

by Katherine Beck Johnson , Kaitlyn Shepherd

June 30, 2020

The disappointing decision in June Medical v. Russo dominated the airwaves yesterday. However, there was a win for human dignity in another Supreme Court case. In Agency for International Development v. Alliance for Open Society International, Inc., the Court held that the Leadership Act’s Policy Requirement—which requires organizations receiving federal funds to combat HIV/AIDS to adopt a policy explicitly opposing prostitution and sex trafficking—is constitutional as applied to domestic organizations’ foreign affiliates. We applaud the Court’s decision. The Leadership Act’s Policy Requirement is a common-sense measure that promotes the human dignity of all people and especially women, who are most frequently the victims of prostitution and sex trafficking.

In 2003, congressional findings indicated that HIV/AIDS had “assumed pandemic proportions.” Data showed that, since the 1980s, the disease had killed more than 25 million people, infected an additional 40 million people, and orphaned an estimated 14 million children worldwide. In response, the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 (the Leadership Act) “outlined a comprehensive strategy to combat the spread of HIV/AIDS around the world.” As part of this strategy, the Act prescribed efforts “to address the social and behavioral causes of the problem” and authorized the president to allocate funds to organizations that combat HIV/AIDS overseas. With a few exceptions, only organizations that adopted “a policy explicitly opposing prostitution and sex trafficking” were eligible to receive funds.

In 2005, a group of United States-based organizations challenged the Policy Requirement. They argued that “adopting a policy explicitly opposing prostitution may alienate certain host governments, and may diminish the effectiveness of some of their programs by making it more difficult to work with prostitutes in the fight against HIV/AIDS.” Some organizations on the left, joined by some libertarians, advocate for the legalization of prostitution (which they call “sex work”), ostensibly to allow government regulation of health and safety. They argue that a distinction can be made between “sex work” and “sex trafficking” and believe that legalization would help to empower “sex workers.” Prostitution is inherently degrading to women, and there is no evidence that its legalization makes this practice less exploitative. When it comes to fighting HIV/AIDS, discouraging a “profession” that inherently involves the high-risk behavior of sexual relations with multiple partners should be part of our national strategy. Congress held this view, and insisted that U.S. aid recipients overseas do the same.

In 2013, the Supreme Court held that the Policy Requirement was unconstitutional as applied to American organizations operating overseas because it compelled these organizations to adopt the government’s stance on prostitution and sex trafficking as a condition of receiving the funds.

In 2015, the organizations renewed their challenge to the Policy Requirement. They opposed the government’s continued application of the Policy Requirement to their “closely aligned” foreign affiliates, organizations that shared the same “name, logo, brand, and mission” but were legally separate entities incorporated under the laws of other nations. The Second Circuit Court of Appeals struck down the Policy.

In its decision yesterday, the Supreme Court reversed the decision of the Second Circuit. Writing for the majority, Justice Kavanaugh noted that long-standing principles of American law compel the conclusion that “[a]s foreign organizations operating abroad, plaintiff’s foreign affiliates possess no rights under the First Amendment.” President Trump’s other appointee, Justice Gorsuch, also joined the majority. The Court was unpersuaded by the organizations’ argument that the speech of their foreign affiliates would be misattributed to them because the organizations were not compelled by the government to affiliate with these foreign organizations or to espouse their message. Any misattribution would be a result of their own actions, not those of the government.

The Court’s decision has important implications for human dignity. The Bible teaches that both men and women are created in the image of God and that each person is “fearfully and wonderfully made.” This means all people possess inherent dignity, worth, and value. By objectifying women, the sex trafficking industry fails to acknowledge the human dignity of women. Congress itself recognized this, stating that “[p]rostitution and other sexual victimization are degrading to women and children and it should be the policy of the United States to eradicate such practices.” The Court’s decision yesterday should be celebrated because requiring organizations to adopt a policy explicitly opposing prostitution and sex trafficking promotes the dignity of all people around the world. 

Katherine Beck Johnson is Research Fellow for Legal and Policy Studies at Family Research Council.

Kaitlyn Shepherd is a legal intern with Policy & Government Affairs at Family Research Council.

Gorsuch Misses Meaning of Sex and Sexual Orientation

by Peter Sprigg

June 24, 2020

Supreme Court Justice Neil Gorsuch has rocked the legal world in a set of three cases consolidated under the name of Bostock v. Clayton County, Georgia by declaring that the Civil Rights Act of 1964 outlawed employment discrimination on the basis of sexual orientation and gender identity.

Gorsuch accepted the argument that the law’s prohibition of discrimination “because of … sex” demands this result, because “homosexuality and transgender status are inextricably bound up with sex.”

However, Justice Alito pointed out in dissent, “‘Sex,’ ‘sexual orientation,’ and ‘gender identity’ are different concepts.” When the Civil Rights Act was adopted, Alito said, “[I]t was as clear as clear could be” that discrimination because of sex “meant discrimination because of the genetic and anatomical characteristics that men and women have at the time of birth.”

Virtually all the critics of the Bostock decision have cited this problem—that Justice Gorsuch erred in his interpretation of the word “sex” in the Civil Rights Act (or of the entire phrase, “discriminate because of sex.”)

I would go even further. I would argue that Justice Gorsuch fails to understand “sexual orientation” and “gender identity” as well.

Let’s look at the concluding, summary sentence of his opinion:

An employer who fires an individual merely for being gay or transgender defies the law.

My question is not just, “What does ‘sex’ mean?” but, “What does ‘being gay or transgender’ mean?”

The answer is not as obvious as it may seem. As I have been pointing out for years in my writings on human sexuality, neither sexual orientation nor gender identity are unitary concepts. Both, depending on the context, may refer to a person’s feelings, a person’s behavior, a person’s self-identification, or some combination thereof.

In the case of sexual orientation, a person may express romantic or sexual attractions toward persons of the same sex (feelings); a person may engage in sexual acts or sexual relationships with a person or persons of the same sex (behavior); or a person may either think or say publicly, “I’m gay” (self-identification).

While many may assume that all three elements of sexual orientation go hand in hand, it’s abundantly clear from social science research that they are not always consistent with each other in one person. A person with same-sex attractions may choose not to engage in homosexual conduct and may not identify publicly as “gay.” Is it meaningful—or respectful—to insist that such a person really “is” gay? A person may both experience same-sex attractions and engage in homosexual conduct, but may still choose not to identify as “gay.” Or a person might experience same-sex attractions and self-identify as gay, but choose to remain sexually abstinent. It’s also well-known that in unique social contexts—such as prisons—some individuals may engage in homosexual conduct even though they are neither attracted to the same sex nor “gay”-identified.

How many of the three elements must be present to say that someone “is” gay? All three? Two of the three?

In Justice Gorsuch’s opinion, he seems to lean toward attractions (feelings) as the defining characteristic—he speaks of a man who is “attracted to men” being discriminated against “for being homosexual.” (LGBT activists do something similar when say, as shorthand, that people should not be discriminated against for “who they love.”) Ironically, however, the discrimination alleged by the two plaintiffs in the sexual orientation cases reportedly occurred when they publicly identified themselves as gay. Gerald Bostock did so implicitly by joining a gay softball league; and Donald Zarda doing so explicitly in a comment about his sexual orientation to a customer.

Yet, as I have also often pointed out, when people (such as socially conservative Christians) express disapproval of homosexuality, it is virtually always homosexual behavior which is considered most problematic. “Discrimination” because of a person’s feelings alone would be hard to pull off, given that feelings are invisible. It is only when they are manifested overtly in sexual behavior—or in public self-identification which is taken as an indicator of sexual behavior—that “discrimination” is even possible. (I notice that Justice Gorsuch did not hypothesize about disparate treatment of a male employee and a female employee, “both of whom have sex with men.” Perhaps he would have considered it unseemly.)

LGBT activists would argue that discrimination based on any of these grounds—homosexual attractions, behaviors, or self-identification—should be illegal. But remember, the case was about the meaning of discrimination “because of sex” in a 1964 law—not about what LGBT activists wish was the law.

The fact that “sexual orientation” is defined by a shifting and uncertain mix of feelings, behaviors, and self-identification is one more proof that not only is it not the same characteristic as sex, it is not even the same type of characteristic as sex. “Sex” is not defined by feelings, behaviors, or self-identification. It is defined by biology—as Justice Alito said, by “the genetic and anatomical characteristics that men and women have at the time of birth.”

The Civil Rights Act simply does not apply.

Why Bostock Will Never Have the Final Word On Human Sexuality

by David Closson

June 19, 2020

Our rapidly changing moral landscape presents a daunting challenge for Christians committed to biblical sexual ethics. The LGBT movement continues to challenge centuries of norms concerning the family, marriage, and human sexuality. And a recent Supreme Court decision means legal definitions and understanding regarding human sexuality are changing, too.

Secular progressives often criticize conservative Christians for their alleged obsession with sexual ethics. But secular and progressive elites are increasingly forcing the issue, insisting everyone embrace their worldview and the full spectrum of LGBT policy positions or face social ostracizing, public shaming, loss of jobs, or other increasingly dire consequences. Those in positions of cultural and political influence are willing to use the coercive power of government to accomplish their political objectives. This was evident this week in the U.S. Senate as Democrats argued for the immediate passage of the Equality Act, legislation that represents one of the greatest threats to religious liberty ever introduced in Congress. It would gut our nation’s flagship religious liberty law, the Religious Freedom Restoration Act, which was passed nearly unanimously by Democrats and Republicans alike.

Earlier this week, the U.S. Supreme Court handed down a 6-3 decision in Bostock v. Clayton County. The majority ruled that employment discrimination “on the basis of sex”— prohibited by Title VII of the Civil Rights Act of 1964 should be understood to include actions based on sexual orientation and gender identity. By reinterpreting the statute in this way, the Court essentially rewrote civil rights law.

Many conservatives were surprised by the decision and considered Justice Neil Gorsuch’s majority opinion to be a betrayal of the originalist and textualist approach he had previously insisted guided his judicial philosophy. As both Justices Samuel Alito and Brett Kavanaugh pointed out in their respective dissents, the majority opinion authored by Gorsuch imposed a meaning that would have been foreign to those who authored the Civil Rights Act and ignored the plain meaning of the statute.

The consequences of the Bostock decision will play out for many years. In the immediate future, there are significant questions about how the ruling will affect religious liberty. Can religious institutions such as colleges and seminaries continue to have have sex-separated dormitories and housing? Are sex separated private spaces like bathrooms, locker rooms, and changing facilities now discriminatory? Will women athletes be forced to compete against biological males in both scholastic and professional sports? Will employers be forced to cover treatments and surgeries that are not medically necessary and that are in opposition to their religious beliefs on human embodiment?  

Originalism and textualism are methods of interpreting the law. But as theologically conservative Christians, we hold to a form of originalism and textualism when reading and interpreting Scripture—the historical grammatical method. In other words, we believe God’s Word is authoritative, infallible, and inerrant. Because the Bible is “breathed out” by God, followers of Christ are called to obey and align their lives with it (2 Tim. 3:16). In order to obey and align our lives with the Bible, we must read and interpret it.

The historical grammatical method of interpretation means we take seriously the grammar and syntax of the words and phrases that appear in the Bible because we want to know what the text says and what it means. We also want to place the text in its historical context. The Bible was written in a culture that is very different than our own. To understand many of the stories, we need some understanding of the ancient world in which it took place. Although this process of reading the Bible takes effort, there is no other faithful way to read Scripture.

As theologically conservative Christians, we know our views on marriage and sexuality are increasingly unfashionable and go against the cultural zeitgeist. But we hold to these views anyway, because we believe the Bible’s teachings about marriage and human sexuality are clear.

Transgender activists posit a distinction between the biological reality of sex and the subjective, internal feeling of gender identity. The biblical worldview, however, affirms the goodness of the material creation and the human body. In fact, the doctrines of creation, incarnation, and bodily resurrection provide strong theological affirmation of our physical bodies. Genesis 1:31 says that everything God created, including the human body, is “very good.” In other words, our bodies (including our maleness or femaleness) are essential, integral components of who we are.

In a world disordered by the fall, the goodness of the body may be difficult for many to affirm, and the church should show grace to those who struggle with accepting their bodies. But Christians must also speak the truth in love and stand on our convictions, which biology and anatomy support.

Christians cannot and should not compromise their Bible-informed beliefs about human sexuality. Why? Because we believe in the authority of God’s Word. And because we believe the Bible’s teachings are what is best for society and individual flourishing.

The real reason theologically conservative Christians disapprove of the LGBT movement has nothing to do with wanting to deny people rights or oppressing a group of people. Our convictions come from our compassion for them and our concern about the consequences of certain chosen behaviors. Both the Old and New Testaments prohibit homosexual conduct, and since God created us “male and female” (Gen. 1:27), we have no right to recreate ourselves any more than the clay has the right to tell the potter what to do (Is. 45:9).

As evidenced by the muted outcry to the Supreme Court’s decision on Monday—even among many conservative groups—conservative Christians are increasingly on the periphery when it comes to our convictions on human sexuality. Christians, especially pastors, will continue to face mounting pressure to compromise—or at least downplay—the Bible’s teaching on marriage and sexuality. However, we cannot compromise our beliefs because we are committed to Scripture. While the Court’s decision is deeply discouraging, we do not give up. We know that we are advocating and fighting for timeless truths revealed to us in Scripture.

So, let us continue to articulate a biblically robust, theologically informed perspective on how Christians think about the major issues facing our nation in order to promote the true flourishing of individuals and of society.

Supreme Court’s LGBT Ruling Is Not “the Law of the Land” - and Congress Should Act to Make that Clear

by Peter Sprigg

June 19, 2020

On June 15, in a set of three cases consolidated under the name Bostock v. Clayton County, the U.S. Supreme Court ruled that discrimination on the basis of “sexual orientation” or “gender identity” is a form of discrimination “because of … sex”—which was prohibited by the Civil Rights Act of 1964. Justices Samuel Alito and Brett Kavanaugh both wrote powerful dissents (Alito’s being joined by Justice Clarence Thomas) pointing out that the Court was effectively rewriting legislation (properly the role of Congress), not merely interpreting it, as the Court is supposed to do.

Some members of Congress have responded to the Bostock decision by calling it “the law of the land.” For example Rep. Bill Foster, an Illinois Democrat, issued a statement saying, “No American should face discrimination by an employer because of who they are or who they love, and I applaud the Court for … making that the law of the land.”

Even more troubling was a statement from Sen. Chuck Grassley, a Republican from Iowa and former chairman of the Senate Judiciary Committee. According to an article in Politico, he responded to the Court’s rewriting of the Civil Rights Act by saying, “It’s the law of the land. And it probably makes uniform what a lot of states have already done. And probably negates Congress’s necessity for acting.”

But is this true? Is Justice Neil Gorsuch’s opinion for the Court in Bostock now “the law of the land?”

The phrase “the law of the land” has ancient roots in the history of law. But in the United States, the term is explicitly defined by the U.S. Constitution. Article VI, Clause 2, states:

This Constitution, and the Laws of the United States … ; and all Treaties made … under the Authority of the United States, shall be the supreme Law of the Land . . .

That’s it. The Constitution, the “Laws of the United States,” and treaties constitute the “Law of the Land”—not Supreme Court decisions. While Supreme Court decisions may serve as binding precedent for the interpretation of the law for as long as those precedents stand, defenders of our system of government should always remember that only the written words of the Constitution, the laws, and treaties themselves are the actual “Law of the Land.”

Nevertheless, when the Supreme Court issues a ruling on constitutional grounds, it is sometimes referred to colloquially (but still inaccurately) as “the law of the land.” The reason is the relative difficulty of overturning such a decision. Generally speaking, the Supreme Court’s interpretation and application of the Constitution can only be overturned by a constitutional amendment or by a new decision of the Supreme Court. This is a difficult task, requiring the approval of two thirds of both Houses of Congress and three quarters of the states.

Many historic Supreme Court decisions, such as the 2015 Obergefell decision redefining marriage and the 1973 Roe v. Wade decision permitting abortion, were based on a reading (however strained) of the U.S. Constitution. The Court’s recent ruling in Bostock was different—it involved only the interpretation of a statute passed by Congress (the Civil Rights Act).

This is an important distinction. When a court—even the Supreme Court—misinterprets a statute, as it did here, not only is it not “the law of the land,” but it is fully within the power of Congress to correct the Court’s error by enacting a new law. In fact, Congress has done so on several occasions.

Sen. Grassley was wrong to say Bostock is now “the law of the land” —Congress writes our laws, not the Supreme Court. He was also wrong to say that “it probably makes uniform what a lot of states have already done.” Only a minority of states had made “sexual orientation” and “gender identity” protected categories in their state civil rights laws, and Congress had consistently refused to do so at the federal level, despite dozens of attempts.

In saying the decision “probably negates Congress’s necessity for acting,” Grassley may have been referring to the Equality Act—an LGBT rights bill approved by the Democratic-controlled House last year. Instead, Democrats are only accelerating their efforts to pass this sweeping bill, which goes well beyond the Supreme Court’s decision. Indeed, just yesterday, Senate Democrats were giving impassioned floor speeches about the need to foist the anti-freedom Equality Act on America—in their words, to override the “religious excuses” of the faithful.

The real “necessity for acting” that still lies with Congress is to correct the Supreme Court’s erroneous interpretation of the law, and preserve the power of Congress, not the Court, to write the “Laws of the United States.”

The Supreme Court Goes Rogue on Sex Discrimination

by Peter Sprigg , Mary Beth Waddell, J.D.

June 17, 2020

Earlier this week, the Supreme Court re-wrote Title VII of the Civil Rights Act of 1964 by holding that sexual orientation and gender identity are included in the statute. 

The majority opinion in Bostock v. Clayton County, written by Justice Neil Gorsuch, claims to be using a textualist approach, yet its analysis and holding prove otherwise.

Justice Samuel Alito concisely opened his dissent with the summary: “There is only one word for what the Court has done today: legislation.” Justice Alito aptly compared this opinion to a pirate ship sailing under a textualist flag.

He went on to state, “Many will applaud today’s decision because they agree on policy grounds…. But the question in these cases is not whether discrimination because of sexual orientation or gender identity should be outlawed. The question is whether Congress did that in 1964. It indisputably did not” (emphasis in the original).

Indeed, Justice Kavanaugh’s dissent seems to show sympathy for the policy outcome, yet he agreed that it is not within the Court’s constitutional boundaries to make this change.

Despite its improper analysis of other scenarios, the majority opinion properly makes reference to “an employer who fires a female employee for tardiness or incompetence or simply supporting the wrong sports team. Assuming the employer would not have tolerated the same trait in a man, Title VII stands silent.” Yet it does not carry this analysis through in the cases at hand. The proper analysis is whether or not an employer would fire a female employee for homosexuality or identification as the opposite sex, but would not fire a male employee for homosexuality or identification as the opposite sex.

This wrong legal analysis leaves many questions unanswered. In seeming acknowledgement of the policy Pandora’s box it has opened, the majority opinion acknowledges the Religious Freedom Restoration Act and the Ministerial Exception, but only to say that how either would be impacted by the decision is not currently before the court—thus inviting litigation. The Religious Freedom Restoration Act is under attack in Congress, and the scope of the Ministerial Exception is currently under consideration before the Court, so these legal protections for religious freedom  provide little solace.

Justice Alito rightly points out that Congress has repeatedly refused to include sexual orientation or gender identity in Title VII or other federal civil rights statutes. Language to do so is included in the Equality Act and other bills which are introduced year after year without success. Yet, with its decision, the Court has essentially enacted the employment provisions of the Equality Act.

Sexual orientation and gender identity nondiscrimination laws are unjustified in principle, because these characteristics are not inborn, involuntary, immutable, innocuous, or in the U.S. Constitution—unlike race and sex. In many situations, such laws pose a threat to religious liberty, which is protected by the Constitution. Not only that, but these laws pose a threat to women and, even those who identify as homosexual or transgender.

Justice Alito acknowledges numerous areas where the majority opinion could have serious implications:

  • Religious employers could face litigation and be compelled to “employ individuals whose conduct flouts the tenets of the organization’s faith [which] forces the group to communicate an objectionable message.”
  • Transgender identified individuals could be entitled to use the bathroom, locker room, etc. of their choice.
  • Women athletes could be forced to compete against athletes who are biologically male in both scholastic and professional sports.
  • Schools could be prevented from having sex-separated dormitories and housing.
  • Employers could be forced to cover treatments and surgeries that are not deemed medically necessary and, for religious employers, are in opposition to their faith tenets.
  • Freedom of speech, as it relates to both pronoun usage and employees’ ability to express their beliefs about marriage, family, and human sexuality, is now called into question.
  • The standard of review by which courts judge claims related to sexual orientation and gender identity discrimination could be upgraded to a stricter standard of review, like that used for sex discrimination.

Sadly, the Court has yet again usurped congressional power to achieve a desired policy goal which Congress has repeatedly refused to implement, and which is detrimental to society. 

With the Court’s invitation for litigation, the American Civil Liberties Union expects hundreds of cases to be filed.

Now, we wait to see how this will play out in future litigation and how Congress will respond to this judicial assault upon its constitutional prerogatives.

Mary Beth Waddell is Senior Legislative Assistant at Family Research Council. Peter Sprigg is Senior Fellow for Policy Studies at Family Research Council.

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