In the span of just a few days, the United States Conference of Catholic Bishops (USCCB) joined many Americans in expressing strong emotional responses to two Supreme Court decisions, one relating to Title VII protections against discrimination (Bostock v. Clayton County) and the other to the “Deferred Action for Childhood Arrivals” or DACA program (Department of Homeland Security v. Regents of the University of California). In both cases the USCCB filed amicus briefs and therefore expressed a stake in the outcomes of the cases and was prepared to respond to the Supreme Court’s decisions. While many conservative Christian reactions to both decisions ranged from disappointment to anger, the USCCB batted .500, and cheered the DACA judgment and lamented Bostock.
The Supreme Court’s 6-3 decision in Bostock, written by Justice Neil Gorsuch, extended Title VII protections against discrimination based on “sex” to include sexual orientation and gender identity. The Catholic bishops joined the amici side arguing that extension to orientation and gender identity “is nowhere near what Congress intended when it enacted the sex discrimination provisions of Title VII” (p. 17). Instead of broadening “sex” to include issues of orientation and identity, the bishops argued, “Congress intended to level the playing field between men and women.”
Catholics often remark the world never perfectly aligns with the Christian view of justice, and the past week was good proof of this. Archbishop Jose Gomez of Los Angeles and president of the USCCB described the Bostock judgment as an “injustice” and worried about the implications of the decision for the church’s fulfillment of its mission in the United States. The church, he suggested, is committed to treating all human beings with dignity and without discrimination. “Every human person,” he stated, “is made in the image and likeness of God and, without exception, must be treated with dignity, compassion, and respect. Protecting our neighbors from unjust discrimination does not require redefining human nature.”
One could amplify Archbishop Gomez’s statement by adding that a redefinition of human nature of the sort entailed by the Bostock decision evaporates the distinctions between men and women and thus leads to unjust discrimination. That is, the foundation of the good and reasonable Title VII protections against discrimination entail solid (and until very recently, typical) notions of “male and female” as equal expressions of the human being. They were designed, Archbishop Gomez suggests, to express “the beautiful differences and complementary relationship between man and woman” that were neither protected by US law nor manifest in societal practice. The numerous gains women have made in American society since 1964 point to Title VII successes. Bostock arguably erodes that solid ground: a redefinition of human nature drawing conclusions suggested by Bostock will lead to unjust discrimination against women, precisely what Title VII sought to undo. Failing to recognize the human being as “male and female” and the susceptibility of society to privilege the former at the expense of the latter could undermine those gains. In addition, Archbishop Gomez, echoing the amicus brief, worries the decision imperils “the church’s mission of delivering the message of Jesus Christ to every man and woman” because of the burdens the judgment will place on religious institutions having different and seriously held views of the human being. Bostock will not only harm men and women, but religious communities not sharing the questionable understanding of the human being Bostock presupposes.
On June 18, just three days after speaking on Bostock, Archbishop Gomez, this time joined by Bishop Mario Dorsonville, chairman of the USCCB’s Committee on Migration, celebrated the Supreme Court’s decision to prevent the Trump administration’s attempt to end the DACA program. The DACA program permits children of illegally present immigrants to work and pursue educational opportunities without fear of deportation. Most “Dreamers” were young children when they arrived in the US with their families. Today many are in their 20s and 30s and have families and careers of their own. In their statement, Bishops Gomez and Dorsonville urge the Senate “to immediately pass legislation that provides a path to citizenship for Dreamers. Permanent legislative protection that overcomes partisanship and puts the human dignity and future of Dreamers first is long overdue.”
As is so often the case, the issue is competitive notions of the human being. Both of the bishops’ amicus briefs and both of their statements draw directly on conceptions of the human and human dignity. The USCCB’s statement speaks of a creator who has etched into human nature an order and a diversity making manifest his own handiwork. More fundamental—more natural—than the diversities of race and ethnicity, sexual orientation, gender identity, and other “accidental” features of the human is God’s division of the human being into male and female. Equally beautiful in his sight, as man and woman human beings express God’s wisdom and goodness. The equal goodness of male and female has long bewitched cultures, usually at the expense of women. But the Christian tradition of reflection on God’s creative activity is anchored in a primal assertion of their equal standing in God’s eyes.
That same notion of equality in the eyes of God extends to persons regardless of country of origin and positive law. This of course is not to say that laws cannot reflect preferential treatment of the citizen. Indeed, Bishop Gomez and Dorsonville’s short statement recognizes the need for legislation to cover these vulnerable youth. Their status as currently “outside the law” renders them vulnerable; their status as children of God imposes upon us obligations to care for them. Law should adapt and conform better to the demands of these vulnerable human beings. Being human, one feature of which is vulnerability, is of more importance than citizenship status. Bishops Gomez and Dorsonville state, “the teachings of the Gospel… encourage us to be open and receptive to those in need: ‘If someone who has worldly means sees a brother in need and refuses him compassion, how can the love of God remain in him?’ (1 John 3:17). In this moment, we must show compassion and mercy for the vulnerable.” Their statement balances both the primacy of a response to the vulnerability of our fellow human beings and the contingencies that might present obstacles to our response. Obligations to the vulnerable fall upon those who currently have “worldly means.”
The Bostock and DACA judgments are thus united not only by their temporal proximity, but more fundamentally by the imperfect way our society is trying to manifest the indivisibility of God’s creation. The world is shot through by God’s intention expressed in creation in all its diversity. Converting “sex” into “sexual differentiation” risks and logically entails flattening out the diversity built into creation. As Pope Benedict XVI writes in Caritas in Veritate, “the book of nature is one and indivisible: it takes in not only the environment but also life, sexuality, marriage, the family, social relations: in a word, integral human development” (no. 51). The metaphysical distinction of the human being into male and female is the womb from which springs the family: denial of the former leads to the termination of the latter. (See Pope Francis, Amoris Laetitia, no. 56.) A society incapable of seeing humans as male and female will struggle to support families in its midst to which it is obliged. Because nature is indivisible, one cannot undermine or wrench out one element without damaging the whole. Here the whole includes our regard for the humanity of the immigrant and refugee. DACA is rooted in the fact of the family. Families immigrated into the US. DACA seeks to preserve those families and not disadvantage the children and now grandchildren of those who entered the US illegally. DACA seeks to extend to these families policies most responsive to their equality in the eyes of God. As Pope Francis said in a homily in November of 2016, “Let us open our eyes to our neighbour, especially to our brothers and sisters who are forgotten and excluded, to the ‘Lazarus’ at our door.”