The recent Supreme Court decision, penned by Neil Gorsuch, has knocked the wind out of a lot of Americans on the right. The central claim, that an Act of Congress in 1964 intended to include sexual orientation and gender identity in the word “sex”, as a characteristic to be protected against discrimination, is so evidently insane surely—one might think—no person of intellectual integrity could affirm it. If we view it as not, strictly and literally true, but as a necessary legal fiction, then the question becomes one of policy. What urgent issue of natural justice is served by erasing the distinction between biological sex, erotic preferences, and feelings-about-what-one-is?
The answer is protecting people from discrimination on the basis of those two other things. I can understand why the liberal Justices on the Supreme Court should think this. In UK law “sexual orientation” and “gender reassignment” are both “protected characteristics” which must not motivate discrimination. So is “sex”. The Bostock decision goes much further than the UK law, however, in bypassing the need for any formal “gender reassignment” (the very concept seems old-fashioned today: the UK law dates from 2011), and also by rolling the three characteristics into one. Gorsuch’s remarkable reasoning is that discrimination on the basis of sexual orientation just is discrimination on the basis of sex.
The precise legal consequences of the decision will emerge over time. The most astonishing aspect of it is that this decision was approved not only by liberal judges, but by two supposedly conservative ones: John Roberts and Neil Gorsuch. Republican-nominated Supreme Court Justices turning into liberals in office is nothing new, and it is part of a wider pattern of conservatives in positions of power and influence not wanting to stand up for conservative causes. At the individual level this is easy to understand: if you want to preserve your ability to earn a living, you have to watch what you say. But collectively, it is incomprehensible. On many occasions, liberal views have triumphed despite lacking popular support. If the conservative opposition to the latest progressive cause simply stood up for itself, in many cases the issue would not be in doubt. But not only does this not happen, but people tend to accept each step of the progressive revolution after it has happened.
Social conservatives appear to have accepted that they are on the “wrong side of history”. There are a number of possible explanations for this. One is that they are endlessly betrayed by the legislators, judges, media, and entertainers whose success depended on their support. However, this would not happen if the social conservatives were more discerning and less forgiving. In any case, why are these elites so much more inclined to abandon conservative supporters than liberal ones?
It might be suggested that social conservatives lack unity, but progressives are also deeply divided among themselves. However, as I have discussed elsewhere, there is a related disadvantage which social conservatives have. This is that their ideas are essentially constructive, not destructive. They aren’t simply about tearing things down, but about building things up. It is easier to build a coalition of demolition, even among people who detest each other, than a coalition of builders with competing blue-prints. This is one reason why conservative mass-movements are difficult to maintain, beyond single issues. Progressive coalitions work by mutual assistance: you help me destroy marriage, and I'll help you destroy education, and so on.
There is something else, however, which is that progressives have managed to establish a stranglehold on culture and opinion: the arts, the universities, the media, the political class. It is sometimes said that conservatives are more drawn to business as a career choice. However, it is also the case that the liberal ascendency has silenced conservative voices in those fields with a singlemindedness and ruthlessness that conservatives have no wish to imitate. The consequence, in any case, is something one can only describe as cultural hegemony. Conservatives have to bend themselves out of shape to be heard at all, and however much real popular support they have, they can expect to be shouted down by the gate-keepers of polite opinion.
This has been going on for many decades, and conservative governments can often seem to be 'in office, but not in power', particularly on questions of culture. Their lack of effectiveness unsurprisingly undermines the motivation of their supporters.
Looking ahead, it seems increasingly possible that the conservative side of the conversation could be silenced by the manipulation of online advertising revenue: this will do irreparable harm to conservative political causes, but will conservative politicians do anything about it?
Or consider a well-established process, how fatherless families is doing irreparable damage to generations of poor children, morally, culturally, and financially. If social conservativism means anything, it means opposing this, but will conservative politicians do anything about it?
It would seem that they will act only if they value their political ideals over not being called rude names by liberal commentators: and so the answer is “no”.
Those calling for a new conservative coalition are right, but the task will not be an easy one.
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