The Denial of Truth in the Bostock Decision and the Destruction of Freedom – Part 1

The cultural revolution waged by the American Left since the 1960s increasingly shows itself for what it is, barbarism masquerading as compassion. Social conservatives find themselves unable to withstand many of these attacks, because they appear to be denying the heart’s desire of others. But instead of consolidating its gains into a new stable social system, the anti-gospel of self-will keeps pressing forward, seeking satisfaction by attacking order in the name of freedom. Social goods are destroyed seeking the fulfillment of some frustrated desire.

Chief Justice John Roberts well summarized the problem in his dissent from the same sex marriage decision, Obergefell vs. Hodges. He correctly characterized the decision as simply “an act of will, not a legal judgment.” And really that is all our current revolution is, self-will set against any restraint, even the restraint of reality.

It is important for Christians to continue to criticize each new attack on reality, because the attacks will continue by the very logic of the revolution. Judicially imposed legalization of homosexuality was followed by same sex marriage, which was followed by transgenderism. Sexual revolutionaries could have moved into the remaining prohibitions against incest, pedophilia, and bestiality, but seem very strategically to have chosen transgenderism as more disruptive of society.

Anglican priest Stephen Noll has observed that the bishops of the Anglican Church of North America affirmed the Biblical doctrine of marriage at the time of the Obergefell decision, but have yet to comment on Bostock vs. Clayton County, in which for the first time the Supreme Court accepted transgenderism. Although it was applied only to one area of law – employment discrimination – its logic, now accepted by the Supreme Court, will be difficult to restrain elsewhere. As this writer noted at the time of the decision, the Supreme Court essentially abolished sex in the Bostock decision. By treating sex as any other antidiscrimination category would be treated (i.e., an unjust basis for adverse decisions), sex has been abolished. And if justice demands this in the case of employment law, it is hard to see that justice doesn’t demand it everywhere else.

Noll has proposed a similar statement in response to the Bostock decision, re-affirming the reality of sex. Christians should look first to the Bible in defending Christian positions, as Noll does, but we should also address philosophy, since it is metaphysical issues that are being dealt with, even though we see their strong implications in everyday life.

The metaphysical issues involved in the Bostock decision were reviewed by legal scholars Hadley Arkes and David Crawford in an hour and a half lecture and discussion presented by the James Wilson Institute on October 2. They pointed out that while the legal implementation of the sexual revolution has presented itself as neutral with respect to metaphysics, it must take metaphysical positions in order to reach its desired conclusions, and must impose those metaphysical positions on everyone.

Arkes began the conversation by observing “a crisis among those lawyers and judges who fancied that they’re doing a version of conservative jurisprudence.” This particular kind of jurisprudence “seeks steadily to avoid addressing the moral substance of those questions that remain at the heart of these cases whether on abortion, sex, and marriage.” However, transgenderism has presented this kind of jurisprudence “with a boundary that couldn’t easily be crossed under the standard of sexual liberation.” Sexual liberation assumes that sex is in fact real, that women are an objective reality, and should be regarded as equal with men. Women are not merely a subjective state of mind. But the reality of biological women is simply erased where transgenderism is accepted. It is a striking case of a revolution eating its children.

Arkes observed that this same claim, that one’s subjective state of mind trumps reality, has not worked in the case of race. The claim of Rachel Dolezal, a white woman who rose to a position of leadership in the NAACP, and who said she was black because “she had absorbed a deep feeling of blackness” was treated as “laughable.” Yet today the reigning doctrine of the cultural left, to which the Supreme Court has assented, is that it is not only “plausible” but “compelling” that “personal feeling” regarding one’s sex is final truth, against the “deepest objective truths in nature.”

Arkes said that the key question in the case was not whether Anthony Stephens (plaintiff in the Harris Funeral Home case, combined with Bostock) was free to dress as a woman while yet a biological man, but whether everyone around him was obliged to accept him as a woman and treat him as a woman. Anyone not complying with this obligation would, according to transgender doctrine, be guilty of “creating a hostile work environment.” This necessarily mandates forced speech (e.g., use of preferred pronouns, etc.). The end result is that “opinion takes the place of reality.”  This, Arkes said, is “a new metaphysic, something bound to unsettle our lives for years to come.”

Crawford referred to the Socratic dialogue “Minos” in which Socrates says that “law wishes to be the discovery of what is.” Crawford said that this means that the law expresses what it believes to be true about reality. Just as rules about gardening and athletics claim to disclose the nature of domesticated plants and athletes, so civil law claims to disclose the nature of “the souls of citizens.” He noted that later in the dialogue, Socrates said that “he who errs about what is, errs about what is legal.” Even when lawmakers claim not to be addressing questions about final reality, nevertheless they are, Crawford maintained. “Tacit assumptions about what a human being is will act as rational principles determining what sorts of laws we think are fair, just, reasonable, and rational.”

Most laws are indeed “remote” from basic assumptions about human nature. But those related to sex, marriage, and the family, Crawford believes, are closely tied to “an underlying metaphysics.” Again, this is so even when those legislating or adjudicating such law deny a metaphysical basis. He referred to legal philosopher John Rawls’ claim that there can be overlapping consensus between those holding irreconcilable comprehensive doctrines about reality. Crawford said that the infamous “mystery clause” of the Planned Parenthood of Pennsylvania vs. Casey decision (upholding abortion as a constitutional right) is an attempt to implement a non-metaphysical consensus of the good life. This effort at consensus is expressed in an overwhelming series of court decisions, beginning with Griswold vs. Connecticut in 1965 (declaring laws against contraception unconstitutional). This latter decision made the federal judiciary “guardian and advocate of the sexual revolution.”

Each such decision is presented as simply allowing individual self-determination, not propounding ultimate truth about human nature, Crawford said. But in so doing, courts are binding everyone to speak and act according to the self-determination of particular persons, thus violating freedom of conscience and speech, and thus the self-determination of others. In Roe vs. Wade, Justice Harry Blackmun told Texas that it could not impose its theory of when life begins, and then was bound to impose his own theory.

The denial of objective reality about sex found in the text of the Bostock decision, and its disastrous consequences for ordinary life as discussed by Arkes and Crawford, will be reviewed in a subsequent article.