Yesterday in Commonweal, I examined the legal brief submitted by the U.S. Conference of Catholic Bishops in the recently-decided Bostock case. I noted that, ironically, when arguing for the ability of Catholic institutions to fully live out and proclaim their Catholic beliefs, the USCCB failed to fully proclaim Catholic belief. Instead, the US bishops undermined Catholic moral theology by diminishing the distinction between orientation and action, failing to care for vulnerable gay persons, and misrepresenting the Catholic vision of freedom. The brief is worth continued consideration because of the shocking extent to which it undermines Catholic moral theology and the public positions of our leaders. In the next few posts, I’ll examine some additional issues in the USCCB document, as well as the ways in which litigation can warp the Church’s message.
The USCCB’s involvement in the Bostock case should not be surprising. It involves two men who alleged they were fired from their jobs for being gay. They argued that this violates Title VII’s ban on discrimination on the basis of sex. The Supreme Court had to answer whether that ban included discrimination on the basis of sexual orientation. The USCCB submitted a brief arguing that sexual orientation was not included, and also that the inclusion would create issues for religious liberty. This post will consider their arguments about the meaning of sex and sexual orientation.
In the opening pages of the brief, the USCCB argues that “the term ‘sex’ as used in Title VII does not mean ‘sexual orientation.'” They divide this argument into two parts. First, they argue that because Title VII fails to mention sexual orientation, it should not be considered as under the purview of the statute. Second, they argue that “‘sexual orientation discrimination’ is not ‘sex discrimination.'”
As a legal matter, the first argument is challenged by the fact that Title VII has been found to encompass such activities as sex stereotyping, sexual harassment, and adverse employment actions based on interreligious marriage, none of which are mentioned explicitly in the statute. Title VII bars discrimination on the basis of race, color, religion, sex, or national origin. But no case has been found to state that, for example, race discrimination is limited to firing someone because they themselves are a member of a particular race. Rather, there are various types of discrimination that can implicate the protected classes in Title VII.
In the second section, stating that “sexual orientation discrimination is not sex discrimination,” the USCCB argues that Congress intended “to level the playing field between men and women in the workplace” with the enactment of Title VII. They argue that the critical issue is “whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.” Such a disadvantage, they argue, does not occur when differential treatment is based on sexual orientation. This is all good and well, except that the concerns above challenge this position.
The oddest argument in that short section of the brief considers the “association” theory, under which Title VII’s ban on race discrimination arises if you fire someone for associating with or marrying someone of another race. The USCCB argues that this theory does not apply to sexual orientation discrimination because, while the evil of racism is implicated when one fires an employee for an interreligious marriage, the evil of sexism (treating women less favorably than men) is not implicated when one fires an employee for a same-sex marriage.
It’s worth noting that neither of the employees in the cases before the Court were fired for same-sex marriages. Rather, they were fired because their employers discovered their sexual orientation. But even so, one can hardly miss the oddity of the USCCB’s argument, that “race” is more directly implicated in marriage-related discrimination than “sex.” Setting aside the legislative history arguments (to which one can raise a number of objections) and looking at the text of the statute itself, the bishops implicitly argue that firing someone for their marriage can implicate “discrimination on the basis of race,” but can’t implicate “discrimination on the basis of sex.” In doing so, they create space between marriage and the concept of sex. For the purposes of discrimination under Title VII, they say that the races of those involved may matter, but the sexes of the partners are irrelevant. I can think of no more distinct example of irony.
That second argument also fails to consider arguments made by many bishops in the past when it comes to sexual orientation. It seems to separate “sexual orientation” out from “sex.” The USCCB argues in its brief that “sexual orientation” should not fall under the purview of the concept of “sex.” But this is challenged by broader considerations that are not taken up by the brief, as it finds itself subject to the sort of forgetfulness endemic to the adversarial nature of litigation. The arguments put forward by the USCCB are so one-sided in their orientation towards litigation that the bishops lose sight of their own prior arguments.
From a Catholic anthropological perspective, it takes no great leap to appreciate how “sexual orientation” and “sex” are distinct but inseparable realities. But the position repeated publicly by many bishops goes further. It says that whether a sexual orientation is “natural” and properly “ordered” is determined exclusively by a person’s sex as male or female. If a man’s sexual orientation is for other men, these bishops argue, that man’s orientation is “intrinsically disordered.”
These bishops locate the teleological analysis of sexual orientation within an analysis of man or woman as man or woman, with deviation from set sexed (male-female) expectations marking a “disorder.” For them, “sexual orientation” can only be analyzed as a concept insofar as it is conditioned by the concept of sex. They analyze sexual orientation with a persistent reference to genitalia. (Hence the argument against homosexuality, that “the parts don’t fit.”) This all favors the opposite position of the bishops in their brief. It favors including “sexual orientation” within the meaning of “sex” for the purposes of determining discrimination “on the basis of sex.”
What ends up happening, however, is that the bishops end up doing what they allege condemning: separating out sexual orientation’s meaning from sex and creating distance between the concepts of marriage and sex. This all happens, in part, because of the nature of litigation, which I’ll discuss in my next post.
More of my thoughts on the Bostock case:
- Bostock Initial Review: A Mixed Bag
- Taking Freedom Too Far (in Commonweal)
Chris Damian is a writer, speaker, attorney, and business professional living in the Twin Cities. He received his B.A. in Philosophy from the University of Notre Dame and his J.D. and M.A. in Catholic Studies from the University of St. Thomas. He is the author of “I Desired You: Intellectual Journals on Faith and (Homo)sexuality” (volumes I and II). He is also the co-founder of YArespond, a group of Catholic young adults seeking informed and holistic responses to the clergy abuse crisis. In his free time, he enjoys hosting dinner parties and creative writing workshops.
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