(*This op-Ed has been clarified to refer to the Supreme Court’s Bostock decision as a case dealing with LGBTQ employment discrimination)
What do the recent resignation of New York Times Opinion Editor James Bennet and U.S. Supreme Court Justice Neil Gorsuch’s majority opinion in a recent case banning LGBTQ discrimination have in common?
Certainly both actions met with approval by many American progressives. But, on a deeper level, these events manifested the rejection of reason and truth in American public life by both the Left and the Right.
This rejection is easy to see in the Bennet ouster. The veteran journalist was forced to resign days after publishing an op-Ed by U.S. Sen. Tom Cotton, R-Ark., calling for a military response to the unrest sparked by the police killing of George Floyd in Minneapolis in May.
The nationwide protests were primarily peaceful but there was violence and looting. Cotton argued that “an overwhelming show of force” was needed to restore order.
The op-Ed was criticized by Times employees on social media and in a letter signed by 800 staff members protesting misinformation the piece contained and its publication.
Shortly thereafter, an editors’ note appeared under the Op-Ed, referring to “factual questions” raised by the piece, a “needlessly harsh” tone and the need “to offer appropriate additional context…that could have helped readers place Sen. Cotton’s views within a larger framework of debate.”
There is no question that the Cotton op-Ed was harsh in tone and misleading in failing to acknowledge not only the overwhelmingly peaceful nature of the protests but also in claiming that “cadres” of Antifa, a murky left-wing organization, were infiltrating the protests, when there was no evidence of that.
But this is typical in an op-Ed, especially in a nation as divided as ours. An opinion piece must not be inaccurate, but it does not serve the same purpose as a piece of reporting.
And this must especially be the case when a prominent public official, a United States senator, is urging a course of action that the president had publicly considered. Where should such matters be debated if not in the opinion section of the New York Times?
Does this mean that the New York Times is obligated to publish Holocaust denial or other outrageous and offensive claims in the opinion page?
Actually, if a substantial portion of the American people denied The Holocaust, and if major public official made similar claims, then, yes, the Times would be obligated to publish such opinion pieces because only in that way could such false opinions be debated and exposed.
The American theory of free speech is active. It is that truth will emerge from free debate. If we fear lies because we fear the citizenry is unable to make judgments of truth, then our whole understanding of constitutional democracy fails.
*The Gorsuch opinion in Bostock, the LGBTQ employment discrimination case, presents a more subtle, but no less serious, challenge to reason and truth.
Gorsuch followed modern conservative jurisprudence in refusing to entertain the purpose of the statute in interpreting it.
Instead, Gorsuch simply concluded that discrimination based on sexual orientation or gender identity is based on gender and thus is barred by Title VII of the 1964 Civil Rights Act, which prohibits employment discrimination “because of…sex” and other characteristics, such as race.
Gorsuch argued that if an employer fires a man for being attracted to men, then the man is fired for “traits or actions [the employer] tolerates in his female colleague” and thus is fired because of his sex.
Justice Samuel Alito’s dissent accused Gorsuch of engaging in “legislation,” updating a discrimination statute that had never been intended to reach sexual orientation or gender identity. But this was hardly fair. Gorsuch refused to consider the purpose of Title VII, let alone update it. His was a mechanical opinion, simply asking whether sex was a factor in the discrimination.
Gorsuch was practicing a form of legal positivism that has been caricatured as including tricycles and displays of working tanks as war memorials under a hypothetical statute banning “vehicles from the park.” The American legal thinker Lon Fuller criticized such positivism years ago, explaining that you cannot intelligently interpret any legal text without an understanding of the purpose behind it.
Because Justice Gorsuch never attempted a rational interpretation of Title VII, his opinion leads to the absurd results.
A man who refuses to use the men’s changing room at work because the women’s changing room is closer to where he works, and he wants to change there, cannot be fired. You can never fire a man for doing something that a woman is allowed to do and vice versa.
Furthermore, the opinion rests on a rhetorical trick. The man fired in Justice Gorsuch’s example is not fired for desiring men, as Gorsuch maintained, but for desiring his own gender, which is behavior the employer would also not tolerate in a female.
An opinion could certainly have been written arguing that sexual orientation and gender identity are aspects of sexuality that should be included in a ban on sex discrimination. But not a single justice on the Court attempted to write it. Such an opinion would have required serious reflection on the meaning of gender in social life.
The push for mechanical judicial interpretation was explained years ago by the late Justice Antonin Scalia discussing why the 8th Amendment ban on cruel punishments should not be interpreted through an analysis of what cruelty means.
He wrote in his book, A Matter of Interpretation, that such an approach would allow judges and thinkers too much “play” to give vent to their own subjective preferences. In other words, the idea of reasoning leading to truth is inevitably a mask for a power play. Following Justice Scalia, Gorsuch was trying to avoid reasoning.
This is law through the lens of Friedrich Nietzsche.
Since Nietzsche announced the death of God in 1882, the West, including now American elites, have gradually lost faith in the power of truth to vanquish falsehood. Now, human effort is thought to be all that stands in the way of the triumph of lies. In a universe like that, you take no chances.
You don’t publish op-Ed pieces that you disagree with and you don’t ask deep questions of legal texts. It is too dangerous to do those things.
We are no longer heirs of the Enlightenment, as the framers were. The First Amendment was written by people who trusted reason, truth and the universe We no longer do.
Opinion contributor Bruce Ledewitz teaches constitutional law at Duquesne University Law School in Pittsburgh. His work appears biweekly on the Capital-Star’s Commentary Page. Listen to his podcast, “Bends Toward Justice” here.
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