Wow! What a Finish! The Gilead Court Guts US Women's Rights in a Neat Three-Play Touchdown in the Last Ten Seconds of the 2020 Term

Nobody ever said Team Gilead had bad coaching, and the team had brought in a new quarterback and tight end during the previous term. But Team Gilead surpassed all bets, rolling over Team Women in a surprise end-run in the last ten seconds before the season adjourned.

A real play-by-play of the season-ender isn't available, because Team Gilead played it close to the chest and the commentary they put out about the plays (called "Opinions") is just a pile of bullshit.

But we watched the game and noticed a few things:

PLAY ONE: Bostock v Clayton County 

Justice Roberts passed the ball to Justice Gorsuch and timeout was called for some judicial deliberation. Gorsuch huddled with Thomas, Alito, and Kavanaugh. He said Roberts was willing to let him use his pet Scalian method, and that Team Women would give up five yards for a "win" of any kind. The other three hated the idea, but Gorsuch promised Alito his dissent could be as long and droning as he wanted, and Kavanaugh that his could reveal Team Gilead's actual true feelings about the case. He reminded them the touchdown is what counts.

Team Women's bleachers were hollering for LGBT rights while this huddle was going on. Why they weren't hollering for women's security and privacy too is an ongoing conundrum.
Anyway, when Gorsuch feinted that he was going to give Team Women LGBT rights (he actually was going to stash LGBs, Qs, Ts, and women in the Women's bleachers where they'd slug it out against each other for decades to come, weakening all those groups), Team Women fell for it. They let him through in the scrimmage and it was second down at the five-yard line. 

Bostock v. Clayton County was published on June 15. Gorsuch's Opinion was based on his Gilead Originalist method. The Alliance Defending Freedom, Gilead coaches, loved the way he'd feinted and the way he'd smooshed all their opponents into the sex category of Title VII, but they were nervous -- would Team Gilead be able to pull off the next plays, making this little sacrifice (granting LGBT people basic federal rights, unless they lived in Gilead) worth it?

ADF figured they'd already lost that game they played on gay marriage in Obergefell v. Hodges, and they had the next plays to look forward to, so okay. And Team Women knew something must be up but hey, LGBT rights! Worth giving up some time in the last two plays.

PLAY TWO: Our Lady of Guadalupe School v. Morrissey-Berru 

Five yards to go and two more downs. It was Justice Alito's turn. In a rush play, Roberts lobbed the ball to Alito and his Opinion, which held that sort-of-religious institutions (like crafts stores in the Hobby Lobby case) have a special constitutional right to fire employees (the plaintiffs were women teachers) on the basis of age or disability or anything else they damn well please. The so-called reasoning was that "a wayward minister’s preaching, teaching, and counseling could contradict the church’s tenets and lead the congregation away from the faith.”

No matter that the terminated employees at the school were teachers, not ministers, or that they hadn't contradicted any "tenets" -- one was old and one had cancer, that was what had got the two women fired. This cemented the Hobby Lobby case, where you, a pious craft store corporation, could fire any employee at-will for any reason, including women who had an abortion, or an LGBT person for being an LGBT person, or a Black person, so long as you had included some minister chores in their job description to do after getting the coffee, like dusting the Bible on the reception room table. Constitutional Rights trump federal statutes and this was way above the Title VII level now, this was the First Amendment!

Team Women, at least Ginsburg and Sotomayor, stopped patting themselves on the back, wrote dissents, and looked for Kagan. What had happened to Kagan?.

Team Gilead looked at each other in wonder. Awesome play! We did it, guys! The First Amendment! They had carved themselves a special legal exemption from nondiscrimination laws the size of Mt. Rushmore (even if Trump's face got on there).

PLAY THREE: Little Sisters of the Poor v. Pennsylvania

One more play at the one-yard line to go. Team Women in trouble: Kagan and Breyer seemed to have switched teams, concurring in the majority Opinion in Our Lady, and Ginsburg and Sotomayor had already used up their time getting what they thought was a fair play in Bostock.

Time for another Burwell v. Hobby Lobby move. Justice Clarence Thomas, who had been praying for this moment all his professional life, had the ball, with the entire rest of Team Gilead flanking him on all sides. Justice Kagan and Justice Breyer had now both switched to Team Gilead too. 

Little Sisters was a case in which various federal agencies had decided to exempt religious organizations from having to provide contraceptive insurance coverage as required by Affordable Care Act regulations. Now the coaches were after the touchdown -- carving out another exemption for the Religious Right to keep contraception from women, and using a bunch of nuns to make the process look kindly.

Thomas stepped over the line and the Gilead bleachers went wild. Kagan and Breyer had already given up long since, returning to their posh offices to write useless concurring opinions while Justices Ginsburg and Sotomayor were still vainly protesting to the refs. The Hobby Lobby case had already brought the Religious Freedom of Gilead Restoration Act into action, and now Thomas did a victory dance, holding that the federal agencies had been right to bow to it: "...respondents’ argument that the Departments erred by looking to RFRA as a guide when framing the religious exemption is without merit."

Post-Mortem On the Game

The Religious Right now has strengthened its ever-widening set of exemptions allowing it to discriminate notwithstanding federal nondiscrimination laws, based on the US Constitution: the First Amendment in the Our Lady case, and an "unalienable" constitutional religious "right to liberty" codified in the RFRA in The Little Sisters case .

LGB people now have "won" a basic statutory right not to be discriminated against in employment -- unless of course they work for somebody whose religious beliefs lead them to discriminate. Trans people have that new right to be discriminated against too, and due to the impact of the Little Sisters case it's hard to see how they'll get any trans-related medical care paid for by insurance in the future, in Gilead at least. 

Women? Never had any specific constitutional right to anything but the vote. Now they have little more than their newly-bustling sex category in the Civil Rights Act, and the Civil Rights Act is just a federal law. No comparison to Team Gilead, all pumped-up with its new pre-emptive constitutional authority.

Under Bostock, gender and sex are now legally wed, and it will be a tumultuous shotgun marriage. Under Our Lady, women's employment opportunities in thousands of hospitals, schools, foundations, and for-profit corporations may be legally limited unless they abjure contraception or bad thoughts, or if they get cancer or blink too much. Under Little Sisters, you better not be poor and need birth control.

And that wraps up our post-game roundup.