Missouri Republican Senator Josh Hawley was none too pleased with the U.S. Supreme Court’s decision Monday in Bostock v. Clayton County, which redefined the word “sex” in the 1964 Civil Rights Act to include homosexuality and transgenderism.
In a Senate floor speech yesterday (text reprinted here), Hawley criticized the decision as the result of several things: judges acting as legislators, Congress refusing to pass laws and leaving issues for the judiciary to insert itself, and a failure of the conservative judicial nominating process. He declared the conservative legal movement a failure.
“This decision, and the majority who wrote it, represents the end of something,” Hawley declared. “It represents the end of the conservative legal movement, or the conservative legal project, as we know it. After Bostock, that effort, as it has existed up to now, is over. I say this because if textualism and originalism give you this decision, if you can invoke textualism and originalism in order to reach such a decision—an outcome that fundamentally changes the scope and meaning and application of statutory law—then textualism and originalism and all of those phrases don’t mean much at all.”
Hawley, the former Attorney General of Missouri who once clerked for Chief Justice John Roberts, refused to call out his old boss by name for joining in the majority decision, but accused the nominating process of giving us different judges than what we thought we were getting.
“Now I want to be clear, I am not personally criticizing any justice who joined the majority opinion or wrote it….No, I think that they were doing what they thought was best and using all of the skills and gifts that they had. No, I question how we got here. I question how judges who hold to this philosophy ended up on that bench. I question the bargain that people of faith have been offered and asked to hold to for all of these years.”
What was that bargain? Hawley says that religious conservatives have been necessary to the success of the Republican Party at election time, but all they’ve received from that unequal partnership is the promise of good judges – and even that has proven a false hope.
“The bargain has never been explicitly articulated,” Hawley stated, “but religious conservatives know what it is. The bargain is that you go along with the party establishment, you support their policies and priorities—or at least keep your mouth shut about it—and, in return, the establishment will put some judges on the bench who supposedly will protect your constitutional rights to freedom of worship, to freedom of exercise. That’s what we’ve been told for years now.”
So what can religious conservatives do about it? Hawley has a suggestion.
“So, I would just say, it’s not time for religious conservatives to shut up. No, we’ve done that for too long. No, it’s time for religious conservatives to stand up and to speak out.
“It’s time for religious conservatives to bring forward the best of our ideas on every policy affecting this nation. We should be out in the forefront leading on economics, on trade, on race, on class, on every subject that matters for what our founders called the “general welfare;” because we have a lot to offer, not just to protect our own rights, but for the good of all of our fellow citizens; because as religious believers, we know that serving our fellow citizens—of whatever their religious faith, whatever their commitments may be—serving them, aiding them, working for them, is one of the signature ways that we show a love of neighbor. It’s time for religious conservatives to do that.
“It’s time for religious conservatives to take the lead rather than being pushed to the back.”
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Photo from Senator Hawley’s Media Kit