The Equality Act is not a revolution in law but a rejection of law

Last year in Bostock v Clayton County the Supreme Court ruled that the word “sex” in the Civil Rights Act of 1964 included the concept of sexual orientation and gender identity. The intent of the recent Equality Act is to ensure that October 2019 ruling by explicitly amending the Civil Rights Act such that each instance of the word “sex” is replaced with “sex (including sexual orientation and gender identity).”

In doing so, it transforms the law from an authority ruling over what is objectively immutable and verifiable to what is subjective, changeable, and objectively unverifiable. Rather than law being blind to man’s interior thoughts, the law intrudes into the minds of men, crossing into the world of Orwell’s 1984. The Equality Act does this explicitly by rejecting the authority of the Religious Freedom Restoration Act of 1993 over any claims made by those expressing their sexuality. It asserts the power of one man’s beliefs about himself over the beliefs of many in a God who is transcendent. The Equality Act requires that one man’s whim, if it is based on sexual orientation or gender identity, must become another man’s way.

In doing so, the Equality Act will end the legal recognition of material/biological sexuality, destroy religious freedom, and undermine the rule of law. With this trifecta, the Sexual Revolution will stand triumphant.

This triumph is not a natural evolution of rights but an act of legal legerdemain based on the corruption of the word “sex” from something objective (to be male or female) to something subjective (to be what one sexually desires, i.e. LGBQT ). This corruption subverts the law from what can be objectively seen to the supporting beliefs of some against the beliefs of others. At the beginning of the Sexual Revolution the Civil Rights Act of 1964 barred discrimination based on race, color, religion, sex, and national origin. This is not a homogenous list of similar things requiring similar treatment. In the understanding of that time only three of the five—color, sex and national origin—represent characteristics that people are born into and are readily and materially identifiable. (I exclude “race” because it is often subjectively attributed by both those describing themselves and those describing others. I think we can assume it is covered by the term “color.”)

The remaining member of the list, religion, is a different thing altogether. Rather than an observable reality, religion represents a developed state of mind. Though a person may be a Catholic, there is no biological/physical evidence to suggest he is so, nor is there any reason that he remain a Catholic. Though he could not change his color, sex or national origin, he could easily become a Baptist, Buddhist, or an atheist later in life. His religion represents an interior state of being that, ultimately, we can only know if he tells us so through word or deed.

Instead of being based on an objective and observable reality, religious rights recognize the importance of each man’s subjective existence. Religious rights assume that a man cannot be free in a state that controls his interior thoughts. Most importantly, religious rights also recognize that one man’s religion can be another man’s error. For religious rights to successfully exist each man must allow those of other faiths the free practice of theirs. Those who support religious rights give up their right to violent defense and submit their beliefs to the battlefield of ideas. Working within the framework of the basic right of each man to his own life and property, each man accepts that he needs neither the approval nor agreement of his fellow man. Nor is any man required to approve of another. Men are not only free to disagree with one another, they can even hate one another as long as that hate does not threaten the physical well-being or property of another.

True religious freedom recognizes that man’s interior space is his own and that its outward expression can only be restricted when it steps on another’s man right to life and property.

The right to live out one’s faith requires that each man freely accept the limitations of his faith and not impose those limitations on those of other faiths or no faith at all. A Christian whose faith tells him pornography is wrong cannot take a job as a cameraman on a X-rated film and demand that the actors and actresses cover up. A Muslim cannot take a job at a deli and expect pork to be removed from the menu. A Buddhist monk cannot demand a job as pastor of a Catholic church and expect the parish to accommodate his beliefs. In accepting the tenets of their faith, the Christian, Muslim, and the Buddhist will freely accept that their beliefs limit where they can work and what they can do. If they truly believe, they will accept those limitations as a small price for what they gain in the free expression of their faith.

Though there have been significant glitches, religious freedom as described above has largely worked throughout the history of the United States. In recognizing the subjective nature of religious faith, many faiths have managed to coexist in proximity, if not as beloved neighbors and friends (though that has often been the case). That peace is now threatened by a new faith, a faith based on the subjective expression of “sexuality,” on what is internal and materially unverifiable. This new faith assumes that our personhood is grounded in our sexual desires in the same manner a Christian assumes his personhood is grounded in God. Its claim that our sexual proclivities objectively define us are based on the same self-knowledge that allows a Catholic to assert that he is Catholic to his very core. Both beliefs are ultimately interior acts suggesting faith. Both lead to moral systems that suggest a proper life. Both are religions in accepting a life-shaping organizing principle, whether it be a personal god or otherwise.

However, in both cases, without the subjective witness of the persons professing, without them telling us through word or deed, we would know neither their religion nor their sexual/gender orientation.

Despite its similarity with religious belief and its dissimilarity with what is material and immutable, the Equality Act elevates subjective sexual expression above all other subjective expressions. In considering sexual expression a simple accident of being, like color, rather than an interior expression of personhood, its proponents go where no religion goes. It places itself above and outside of morality. Morality only makes sense if an interior will can freely choose its external actions. It connects who we are with what we do. Moral man can evaluate his desires in the light of reason and choose his actions. Those equating sexual expressions with “sex, ” however, assert the inseparability of certain desires from given actions. The mere presence of their desires compels their being lived out. They do not seek to win the approval of others but demand it. Instead of entering the battlefield of ideas, it deems the battle over and, for the moment, deigns to allow lesser religions their due—as long as they do it quietly and away from notice. Like Sauron in The Lord of the Rings, they demand the one ring to rule them all.

The Equality Act is not a revolution in law but a rejection of law. Law depends on words with fixed meanings which, in turn, anchor the law and give it meaning. Law that is arbitrary is no longer law but an oxymoron, a self-contradiction. To be governed by the rule of law is to be subject to rule that is predictable and impersonal. On the other hand, tyranny is authority that is unpredictable and personal. We do not refer to countries ruled by the personal fiat of dictators as governed by the rule of law. In the Equality Act the law leaves an objective world and intervenes into the ever-changing landscape of man’s interior world, privileging the thoughts of some men over others. It tells us that we must believe what some men tell us but not others.

A man who tells us he is a woman today can tell us something else tomorrow. In giving this man authority over others we begin the descent from law to anarchy, from freedom for many to tyranny of the few.

In divorcing itself from the material fertility of male and female, the Sexual Revolution has rendered a new “sexuality” that is the antithesis of fertility, the antithesis of what it means to be sexual. It has destroyed not only sexuality but the very language we used to talk about it. In doing so, it sets up a new “law” that is the antithesis of law. Rather than create something new it has only destroyed what once was. A “sexuality” where a man can proclaim himself a woman is a sexuality without meaning, a dangerous emptiness, a black hole destroying all it encounters. In the Equality Act we are witnessing the law following language down that vortex into nothingness.