I wonder if Gorsuch will make up law out of thin air (again) if this goes to SCOTUS.
Gorsuch didn’t make law up out if thin air. I disagree with how he read the term “sex” but Congress opened that Pandora’s box in passing the civil rights act of 1964 (which should be held unconstitutional on other grounds) in the first place.
The case wasn’t about the constitutionality of Title VII and the employers in Boston’s didn’t raise any religious claims either. It was purely about what “discrimination on the account of sex” meant in the statute, that congress never should have passed in the first place.
Gorsuch has made clear that he thinks there is a religious freedom issue here, and that it needs to be dealt with in future cases.
He joined Alito’s much broader opinion in the Philadelphia adoption cases. His and Alito’s reasoning there would be a slam dunk win for the web designer here.