“Rights” beyond race

His predictions proved prescient. Every area Alito mentioned has become a legal battleground, with religious conservatives fighting to preserve their right to live out their faith in the public square.

One early example came from the 2022 ruling by the 11th U.S. Circuit Court of Appeals in Adams v. School Board of St. John’s County. It extended the Bostock holding to Title IX, which bars discrimination on the basis of sex in education. A panel of judges found that school officials discriminated against Drew Adams, a female high school student in Florida. Adams identified as male, but the school required her to use the bathroom that corresponded with her biological sex.

Powers also pointed to court rulings that allowed lawsuits based on hostile work environments—claims that the workplace is difficult or uncomfortable for an employee to work in—as symptomatic of civil rights laws pushed to extremes. That could include persistent sexual comments or jokes, unwelcome comments on a person’s physical characteristics, or racial slurs. But arguably it could also extend to so-called “misgendering”—addressing a person by pronouns consistent with their sex but not their preferred gender identity.

“Once you say hostile environment harassment is discrimination … you’ve got this situation where employers are responsible for everything that goes on in the workplace,” he told me. Employers increasingly implemented a series of punitive and corrective measures to police employees’ interpersonal relationships, he added, while diversity, inclusion, and equity offices and initiatives institutionalized this hypervigilance.

Biden administration officials have continued to press transgender rights, most recently in Title IX regulations that attempt to codify and extend the Adams ruling—and others—that radically redefine sex to include sexual orientation and gender identity. Several legal challenges to the regulations, set to take effect Aug. 1, have already been filed.

But it’s not all bad news from the front lines of the anti-discrimination fight.

In June 2023, in 303 Creative v. Elenis, the Supreme Court protected a Christian web designer in Colorado from a state anti-discrimination law that would have forced her to create websites celebrating same-sex marriages. The ruling won’t stop LGBTQ activists from trying to use expanded public accommodation laws to force churches and other religious organizations to accept or approve homosexual and transgender behavior. But it has blunted the attack on creative professionals—cake artists, web designers, photographers, videographers, and even T-shirt designers.

Protections for religious employees also got a boost last year from the Supreme Court’s ruling in Groff v. DeJoy, when the court upped the burden on employers who seek to deny a religious accommodation to an employee. A unanimous court sided with a Pennsylvania postal worker who asked not to work on his Sunday Sabbath, requiring the Postal Service to prove that granting such a request would substantially increase its cost of doing business.

Add to these 2023 rulings earlier wins: One protected Catholic Social Services from being forced by Philadelphia officials to place foster children with same-sex couples. Another protected two Catholic schools from a court second-guessing their employment decisions.

A conservative Supreme Court may curtail legal moves by the anti-discrimination regime, preserving space for religious expression. But winning the hearts and minds of a public fed a steady media diet of grievance and victimhood is a longer game—a moral project.

Even though Powers is a religion skeptic, he recognizes that moral arguments retain power: “Revenge is really the moral heart and soul of anti-discrimination morality. And that was not what Martin Luther King promised. … Read him and it’s all about reconciliation and forgiveness. That’s a nice morality story that I think most Americans kind of hoped was the end point of the civil rights revolution.”

That it wasn’t reflects an even older story about sin and grace, about good intentions that lead to unintended consequences.

Powers insists the authors of the 1964 Civil Rights Act had no idea what they would unleash. Certainly no one could have predicted today’s legal battles, he says. No one wants to turn back the clock to the time prior to 1964, he told me, but needed reforms will require a “very long campaign.”

“This is just the beginning of an era of civil rights reform,” he said.