When it comes to Supreme Court decisions, context matters. But whose context?


Earlier today, I published two posts on yesterday’s Supreme Court decision on LGBTQ rights. The first post addressed the politics of the decision and what it means for white evangelical support for Donald Trump. The second post dealt with the religious liberty issues at stake. I encourage you to look at them to get up to speed. Here and here.

In this third post, I want to think historically about both the majority and dissenting opinions.

Over at Think, Jessica Levinson, a law professor at Loyola Law School in Los Angeles, explains the conservative judicial philosophy Justice Neil Gorsuch employed in coming to his decision in Bostock v. Clayton County, Georgia and the other consolidated cases. Title VII of the Act forbids “discrimination because of race, color, religion, sex , or national origin.” The debate, of course, is over the meaning of the word “sex.” Gorsuch interpreted “sex” to cover LGBTQ rights.

In another piece, Levinson describes Gorsuch’s textualism. She writes,

Typically, conservative judges and lawyers adhere to the idea that in determining the meaning of words in a law, you look only at those words. You do not look at the context in which the law was passed, or congressional intent. This is called textualism.

No historian would treat a text this way. Frankly, I am not entirely convinced that Levinson offers an accurate description of how most textualists interpret a text. As we will see below, it is certainly not how Justice Samuel Alito or Justice Brett Kavanaugh understand textualism.

But historical context can also be a tricky thing. Gorsuch appears to have ignored it. He writes in his majority opinion:

Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. 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 a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids

Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination of the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statue give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.

A couple of quick observations about these two paragraphs:

  1. Does the meaning of a word really exist outside of its historical context? Are we to assume that all words have universal meanings across time? A historian would answer both questions with an emphatic “no.” Historians do not subscribe to the kind of textualism that Gorsuch describes here.
  2. Is Gorsuch correct when he says that the “those who adopted the Civil Rights Act” could never have imagined it being applied to the gay community? This is an honest question. I am assuming Gorsuch is correct, but I am not up to speed on the scholarship here.

In their dissenting opinions, Samuel Alito and Brett Kavanaugh also appealed to the text of the Civil Rights Act of 1964, but they interpreted the meaning of the word “sex” in historical context.

Here is Alito:

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on any of the five specified grounds: “race, color, religion, sex [and] national origin. Neither “sexual orientation” nor “gender identity” appears on that list.

Alito argues that unless the document specifically says “sexual orientation” or “gender identity,” the Civil Rights Act could not have encompassed these things. He suggests that “sexual orientation” and “gender identity” do not fall under the category of “sex.”

Alito challenges Gorsuch’s textualism with the ideas of the late Antonin Scalia:

The Court attempts to pass off its decision as the inevitable product of the textualist school of statutory interpretation championed by our late colleague Justice Scalia, but no one should be fooled. 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 statues so that they better refelct the current values of society.”

Alito argues that we need to understand the meaning of the word “sex” in the context of the 1960s. He writes:

Determined searching has not found a single dictionary from that time that defined “sex” to mean sexual orientation, gender identity, or “transgender” status. In all those dictionaries, the primary definition of “sex” was essentially the same as that in the then-most recent edition of Webster’s New International Dictionary (2d ed. 1953): “[o]ne of the two divisions of organisms formed on the distinction of male and female.”

Alito continues:

Thus when textualism is properly understood, it calls for an examination of the social context in which a statue was enacted because this may have an important bearing on what its words were understood to mean at the time of enactment. Textualists do not read statues as if they were messages picked up by a powerful radio telescope from a distant and utterly unknown civilization. Statutes consist of communications between members of a particular linguistic community, one that existed in a particular place and at a particular time, and these communications must therefore be interpreted as they were understood by that community at that time.

For this reason, it is imperative to consider how Americans in 1964 would have understood Title VII’s prohibition of discrimination because of sex. To get a picture of this, we may imagine this scene. Suppose that, while Title VII was under consideration in Congress, a group of average Americans decided to read the text of the bill with aim of writing or calling their representatives in Congress and conveying their approval or disapproval. What would these ordinary citizens have taken “discrimination because of sex” to mean? Would they have thought that this language prohibited discrimination because of sexual orientation or gender identity?

The answer could not be clearer. In 1964, ordinary Americans reading the text of Title VII would not have dreamed that discrimination because of sex meant discrimination between sexual orientation, much less gender identity. The ordinary meaning of discrimination because of “sex” was discrimination because of a person’s biological sex, not sexual orientation or gender identity. 

Alito is writing like a historian here. He wants to understand the 1964 Civil Rights Act in context. This is historical thinking 101. But while judges use historical thinking skills, they are not historians. They are tasked with applying the past to the present.

Brett Kavanaugh’s dissent is shorter, but it also draws on historical context. Here is a taste:

As to common parlance, few in 1964 (or today) would describe a firing because of sexual orientation as a firing because of sex. As commonly understood, sexual orientation discrimination is distinct from , and not a form of, sex discrimination.

He adds:

[The majority opinion rewrites history. Seneca Falls was not Stonewall. The women’s rights movement was not (and is not) the gay rights movement, although many people obviously support or participate in both. So to think that sexual orientation discrimination is just a form of sex discrimination is…a mistake of history and sociology.

Again, any historian would have to agree, to some extent, with Kavanaugh’s logic. We try to get our students to see that Seneca Falls and Stonewall were indeed different movements in the same way that the American Revolution, the French Revolution, and the Russian Revolution were fundamentally different “revolutions.” We resist the social scientist’s tendency to clump all “revolutions” or “reform movements” together. Each movement took place in a particular time and place amid a different set of circumstances.

At the same time, we also treat Seneca and Stonewall as part of a larger story of American reform. It is appropriate, at times, to talk about common themes–such as the appeal to the ideas of the Declaration of Independence–that drive this larger and broader story.

But, again, historians are not justices. We are not primarily in the business of telling people what to do with the information we provide and the skills we teach. Kavanaugh was a history major at Yale. During his years studying history, he no doubt learned about Seneca Falls and Stonewall. He also learned to think critically,  make an argument, understand historical context, and reflect on the many ways the past relates to the present. He is now using those skills, guided by a particular judiciary philosophy, to make Supreme Court decisions. His professors at Yale taught him these skills, but they could not tell him how to use them in service to the law. (Although I am imagining that some of them tried).

What strikes me about yesterday’s Supreme Court decision is the fact that it played out, at least in the opinions, as a debate over how to interpret Antonin Scalia’s judicial philosophy . This happened because Chief Justice John Roberts assigned the majority opinion to Gorsuch rather than to one of the Court’s liberal justices.

If Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, or Elena Kagan wrote the majority opinion, I imagine it might have also appealed to historical context, but in a much broader way.  Levinson suggests what such an interpretation of the Civil Rights Act of 1964 might look like in this case if one of the liberal justices had weighed-in:

Liberal judges and lawyers, however, generally believe that it is appropriate to look beyond the words of the law and at the history and context around the law. But there was no such thing as sexual orientation protections in the 1960s, when the Civil Rights Act was passed, so “sex” in the history and context of the law was not meant to apply to LGBT Americans.

As a matter of policy, LGBT rights should be situated clearly within the larger struggle for civil rights, and discrimination on the basis of gender identity or sexual orientation  should be outlawed in every workplace in the nation.

Again, context is tricky and this case shows that much of the law rests on how much weight a given justice gives to this important “C” of historical thinking.

Catholic writer claims Vigano testimony is to the sex abuse scandal what Oliver Stone is to the Kennedy assassination


Writing at the National Catholic Reporter, Michael Sean Winters argues that Archbishop Carlo Maria Vigano’s testimony that Pope Francis covered-up the inappropriate behavior of former-cardinal Theodore McCarrick is little more than a conspiracy theory.

Here is a taste of his piece, “Vigano letter exposes the putsch against Pope Francis“:

Archbishop Carlo Maria Vigano’s testimony proves one thing: The former Vatican ambassador to the United States is to the clergy sex abuse crisis what Oliver Stone is to the assassination of President John Kennedy, a trafficker in conspiracy theories who mixes fact, fiction and venom to produce something explosive but also suspicious. When you finish reading this testimony, as at the end of Stone’s 1991 movie “JFK,” you can only conclude that the product tells us more about the author than it does about the subject.

Vigano is certainly correct that Cardinal Angelo Sodano, longtime Secretary of State to Pope John Paul II, was a patron of disgraced former-cardinal Theodore McCarrick. Stone recognized the assassination happened in Dallas. But why does Vigno fail to mention the key role played by Cardinal Stanislaus Dsiwisz in protecting McCarrick?

Read the entire piece here.

Is the Government Banning the Bible in California?

We have seen this before.  It is yet another example of what happens when fear drives evangelical approaches to public life.

In Believe Me: The Evangelical Road to Donald Trump, I wrote about the response of some New England congregationalists after the election of Thomas Jefferson.  Because Jefferson did not believe in certain aspects of orthodox Christian belief–the deity of Christ, the resurrection of Jesus, the inspiration of the Bible–many of the region’s evangelicals were afraid of what he might do once he assumed the presidency.  Some thought that Jefferson or his henchman were going to come into their towns on a mission to confiscate Bibles and close churches.

I thought about this story when I read Peter Lawrence Kane’s piece in San Francisco Weekly.  The title says it all: “Evangelicals Convince Themselves California is About to Ban the Bible.”    Here is a taste:

As we’ve documented many times, several strains of conservatism insist — against all evidence to the contrary — that California is an abject failure. It’s usually that we’re teetering on the brink, we’re hopelessly “ungovernable,” or we must be destroyed in order to be saved. Unquestionably, the state faces existential crises that pertain to the cost of living and to the future of the Sierra snowpack that keeps the world’s most productive agricultural region afloat and lets 40 million people flush their toilets. But we never stop hearing the end of the lies and distortions: high environmental standards caused the Mendocino fire complex, it’s a sanctuary state bleeding the federal coffers dry, we’re a corrupting force on Real America, they’re never coming back here and they really really mean it, et cetera, et cetera.

This is largely because of three undeniable facts: California is diverse, California rejects Republicanism and (almost) all that it stands for, and California recovered from the Great Recession to find itself well-prepared to face the next fiscal cliff. Although the Golden State retains the dubious distinction of being the only U.S. state to allow same-sex marriage and then take it away, it’s since become a strong protector of LGBTQ rights — and this week’s top right-wing lie wormed out of the news that California is about to join a dozen other states in banning ex-gay torture — sometimes known as “gay conversion therapy” — for adults. (The state has banned it for minors since 2012.)

In light of the state Senate passing AB 2943, many evangelicals have convinced themselves that California just banned the Bible.

Read the entire piece here.

What is Happening at Gordon College?


Earlier this week I visited Gordon College to deliver the 2017 Franz Lecture.  It was a great. albeit short, visit.  Gordon is a great place.  They have an outstanding history faculty and very bright students. I want to thank Steven Alter, Jennifer Hevelone-Harper, David Goss, David Wick, and Hannah Midwinter for making my visit so enjoyable.

One thing that did not come up (and I did not get a chance to pursue it with anyone) during the course of my visit was an April 7 report in The Chronicle of Higher Education that the entire Gordon College Faculty Senate recently resigned their seats in support of a sociology professor who was apparently “denied a promotion because she criticized the college’s opposition to same-sex relationships.”

The Chronicle report drew heavily from reports at The Tartan (Gordon’s student newspaper) and The Boston Globe.

When I was on campus this week there seemed to be no sign of protest among the student body.  Students seemed to be enjoying the beautiful weather by relaxing on the lawn of the college quad and soaking in the New England sun.  The faculty and staff who I met were not talking about this.

Yesterday this entire affair caught the attention of Christianity Today.  Here is a taste of Kate Schellnut’s reporting:

The senate resignations have drawn particular attention amid ongoing scrutiny over Gordon’s LGBT policies. Lindsay stirred controversy among the college’s Massachusetts neighbors and accrediting association when he joined a 2014 letter requesting that the Obama administration provide religious exemptions for federal funding recipients that consider sexual orientation in hiring.

Gordon later conducted a “period of discernment” on its pastoral response to LGBT issues, which concluded with the unanimous reaffirmation of its sexuality standards.

In March, a sociology professor filed a complaint with the Massachusetts Commission Against Discrimination, claiming that after receiving a recommendation from the faculty senate, she was denied a promotion due to her LGBT advocacy. Gordon told the college newspaper that “the professor’s application for promotion was evaluated solely on its merits and was not influenced by any other matters.”

In last week’s meeting, George, the former chair, “affirmed the authority and decision-making role of the administration, but said she felt the senators could not reconcile divergent views on the process and could no longer be effective in their roles,” Sweeney said. “Their statement did not reference any specific decision or faculty member.”

Read the entire article here.

If another article in The Tartan is correct, it appears that this recent controversy is representative of some larger issues about the mission and identity of Gordon College.

Ronald Reagan on Smoking and Sexuality


Historian Rick Perlstein recently turned up a gem from the November 3, 1978 issue of the Spokane Daily Chronicle (I assume it was syndicated) and linked to it on his Facebook page.  In this article Ronald Reagan, two years before he became President of the United States, opposed a California ban on smoking and a ban on teachers who advocate homosexuality.

Liberals will use this article, as they should, to show that Reagan was more willing to defend the rights of homosexuals than many of the Republicans who claim his legacy today.

But whatever one’s position on these issues, it is also worth noting that this article shows that Reagan seemed to have a handle on matters of public policy and was capable of making a rational argument in print (assuming he wrote it) consistent with his libertarian ideals.  Would our current Republican presumptive nominee be able to make such an argument in this reasoned way? Or better yet, would he even be interested in engaging with policy this way?

Christian Leaders Request a New Kind of Religious Exemption

Let the Burwell v. Hobby Lobby floodgates open.  

It was only a matter of time before other Christian organizations asked for religious exemptions based on issues unrelated to the Affordable Care Act. The first major exemption request comes from a group of Christian leaders who have asked President Obama for a religious exemption from a forthcoming executive order that will forbid organizations that discriminate based on sexual orientation from competing for government contracts. 

You can read the letter here.  ,

The signers of the letter include Michael Lindsay (President of Gordon College), Andy Crouch, (Executive Editor of Christianity Today), Joel Hunter (Pastor of Northland Church and a spiritual adviser to Barack Obama), Rick Warren (Pastor of Saddlebach Church), Larry Snyder (CEO of Catholic Charities), and Steven Bauman (President and CEO of World Relief).

The Boston Globe has published an article about Gordon College President Michael Lindsay’s decision to sign this letter.  The article states that Lindsay’s decision to sign the letter  “drew sharp criticism from Gordon alumni and students.” It then quotes an interview with a Gordon alum, Paul Miller, who now heads an LGBTQ organization of former Gordon students and graduates.  While I am sure members of Miller’s group are upset with Lindsay’s decision to sign this letter, I would venture to guess that the percentage of the entire Gordon alumni base that disagrees with Lindsay’s choice is rather small.

This will be the first of many such exemption requests.  We are already seeing the implications of Burwell v.Hobby Lobby.

Lessons from the Chick-fil-A–Shane Windmeyer Friendship

From Elizabeth Tenety at The Washington Post:

Shane Windmeyer, executive director of the LGBT group Campus Pride, wrote a hugely viral blogpost for the Huffington Post this week in which he explained how he became friends with Dan Cathy, the president of Chick-fil-A 

The fast-food chain has drawn nationwide criticism from gay rights activists in recent months because of Cathy’s statements on marriage and Chick-fil-A’s support of anti-gay organizations. After Windmeyer’s group led a nationwide boycott of the chain with a “Five Simple Facts about Chick-fil-A” campaign in the summer of 2012, Cathy reached out to him. Campus Pride suspended its boycott; Windmeyer and Cathy’s subsequent, still-evolving friendship allowed the unlikely pair to enjoy a football game together on New Year’s Eve.

Windmeyer was raised Catholic, but although he still defines himself that way, he no longer attends church services regularly. “I don’t want to not feel welcome anymore,” he says.

Could Windmeyer’s popular column represent one possible way forward amid the bitter stalemate between gay rights activists and the — often religious — supporters of traditional marriage?

From an interview with Windmeyer about his friendship with Cathy, here are five lessons for people on both sides of the marriage argument:

1.  Let’s talk to each other 

2.  Let’s see each other as humans worthy of dignity

3.  Let’s understand what our differences really are and let’s seek to find common ground

4. Let’s not be serious all the time

5. Let’s all be willing to give a little

Richard Cizik Tells His Story

Some of you may remember what happened to Richard Cizik.  He was the vice-president for governmental relations at the National Association of Evangelicals (NAE).  In an interview with the National Public Radio program “Fresh Air,” he said that he could support civil unions for gays and lesbians.  The NAE was not yet ready for one of its leaders to adopt such a position and they promptly fired Cizik.  Known best for his call to evangelicals to embrace climate change and creation care, Cizik now runs an organization called the New Evangelical Partnership for the Common Good (NEP).

Over at Religion & Politics, Cizik tells his side of the story about what happened after twenty-eight years of working for the NAE.  Here is a taste:

Perhaps most offensive to the board of the National Association of Evangelicals, which had given speaking platforms for Republican candidates for the presidency going back to Ronald Reagan, and whose officials I had joined for election campaigns for these Republican candidates, was that I said I had voted for candidate Barack Obama in the Virginia primary (against Hillary Clinton) for the presidency. Implied, of course, was that I had voted for Obama in the general election of 2008. And Barack Obama is a Democrat.

The impacts were felt personally and professionally. It prompted the president of Houghton College to write and cancel my graduation speech. It prompted Denver Seminary, where I had graduated, to drop me from the Advisory Board of the Grounds Institute of Public Ethics. It prompted the head of a family ministry, Marriage Savers, which I had served as a board member, to call me and tell me, “We’re dropping you from the board of directors.”

Sadly, it prompted friends and colleagues to shun me and no longer inquire about my health and well-being. Even our friends from church, where we had attended faithfully for a decade, didn’t understand.

A poll by America On Line (AOL) asked its readers to weigh in on this question: “Did the National Association of Evangelicals do the right thing in firing Richard Cizik?” Nearly 50,000 cast ballots. By a slim majority the consensus was “yes.”

So who’s to blame? I had lived on the edge of American evangelicalism, speaking out on the need to broaden the movement’s agenda to include issues such as climate change, and, if you will pardon the flat-Earth imagery, tumbled over the edge.

While I didn’t represent the NAE in the interview with Bose-like fidelity, I did represent millions of evangelicals—especially the younger ones. Friends such as Dr. David Gushee at Mercer University and Katie Paris of Faith in Public Life posted a website where one hundred evangelical leaders signed a letter affirming my ministry and principles, and the need for the Association to carry on with these principles.

Was Abraham Lincoln Gay?

Andrew Sullivan thinks he was, and Larry Cebula thinks that Sullivan is “almost certainly correct.” That’s a bit too much “certainty” for my taste, but I am not willing to rule it out.

Here is Sullivan:

Here is Cebula on Sullivan:

I think that Sullivan is almost certainly correct. Lincoln shared a bed with Joshua Speed for years, long after both me could have afforded beds and rooms of their own.You will often hear this explained away as a common practice back in the day, and at crowded roadhouses or in army barracks this was true, but it was absolutely not common with two rising professionals who could have easily afforded their own rooms. And Lincoln also shared a bed with a man, Captain David Derickson, in the White House when he was president. There were rumors of homosexuality (though the term did not yet exist) during Lincoln’s life. If it were any other 19th-century figure, we would take the same set of evidence as at least indicating a strong possibility that the subject was gay.