It is worth noting that while much of the country was still analyzing President-elect Donald Trump‘s remarkable comeback, the Democrat leadership was busy celebrating the first transgender member of Congress.
Rep. Pramila Jayapal (D-Wash.) led the way, castigating her colleagues who refused to see gender dysphoria under every bed.
In U.S. v. Skrmetti, the justices will decide whether Tennessee’s ban on minors obtaining puberty blockers, hormone therapy or sex-change surgery violates the Fourteenth Amendment’s Equal Protection Clause.
Biden’s solicitor general is arguing that states are discriminating by not allowing sex-transitioning treatment for those under 18.
The Equal Protection Clause was adopted after the Civil War to end race-based discrimination. So how did we get from there to puberty blockers, adolescent surgeries and boys in women’s restrooms?
The law follows culture and it too has turned its back on 2,000 years of Western Civilization. No one wants to go there, but I will.
We’ve written before about the agenda that dare not speak its name, and it is worth repeating: If you can redefine marriage, you can redefine gender. Politicians do not want to admit it because after years of indoctrination, gay marriage polls well. But as the saying goes, bucking the polls is the difference between a politician and statesman.
For the theologian, marriage is an ethical imperative; for the statesman, it is a practical one. Beyond the moral responsibility of raising children in the most conducive environment, society bestows benefits upon traditional matrimony in order to subsidize procreation and its byproduct — the culture and country.
The importance of family simply can’t be overstated. It tames all but the most irresponsible because there soon comes a point where nothing matters more to parents than their children. It both perpetuates and civilizes society.
For the isolated individual to treat that commitment in a cavalier fashion is one thing; for public policy to do so is a recipe for societal decay. There is no substitute for marriage and procreation. Be it bigamy, polygamy or state-sanctioned gay marriage.
Heather may have two mommies, but she doesn’t have a father. No worries, we’ve redefined family too.
In fact, the Supreme Court — led by two Republican-appointed justices — handed down several radical decisions on family and employment law that led to the conundrum it now faces with the Tennessee case.
In Obergefell v. Hodges, Justice Anthony Kennedy ruled states must recognize same-sex marriages based on “the private realm of family life which the state cannot enter” — an absurd point when one considers that is exactly what he was doing. It was, after all, the state that granted the traditional family its legal imprimatur.
Kennedy had been down this slippery slope before, asserting in Pennsylvania v. Casey, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
So, it wasn’t a stretch for Kennedy to continue reading what he wanted into the Fourteenth Amendment’s “due process” and “equal protection” clauses, overturning the states’ long-standing police power over family law and marriage.
Gay Americans have fundamental rights like anyone else, such as the right to associate with whom they desire. Not being granted the privilege of marriage does nothing to diminish them anymore than it does to heterosexuals who happen to be bigamists.
A “progressive” tax code, for example, treats people differently based on income, but everyone who finds themselves in a higher tax bracket pays the same rate, regardless of race or sex. Smoking bans “discriminate” against smokers, but all who puff — black, white, male, female — have to do it outdoors.
Legislators regulate all sorts of behaviors so if they are afraid of being smeared by trolls, states can change marriage laws. But there is no constitutional provision for activist federal judges to force same-sex marriage (or any kind) on them.
Obergefell should suffer the same fate as Roe if federalism means anything.
So should Bostock v. Clayton County (2020), which apparently kept the author of its majority opinion, libertarian icon Neil Gorsuch, noticeably silent during oral arguments in Skrmetti last week. Recall that Gorsuch, along with the liberal justices, ruled that gender identity was protected under employment law and that dismissing “an employee for adopting a transgender identity constituted sex discrimination.”
But as the scathing dissents in Bostock pointed out, the workplace rules did not discriminate by sex, they prohibited, for lack of a better description, cross-dressing at the office, regardless of sex.
The Biden administration quickly jumped on this bizarre precedent to rewrite Title IX, putting the burden of proof on schools to demonstrate how transgender male athletes in female sports would jeopardize the physical health of young women — but without “requiring a student to submit to invasive medical inquiries or burdensome documentation requirements” that “imposes more than de minimis harm.”
This was a standard so arbitrary that it would have been nearly impossible for schools to prevent access to girls’ locker rooms for boys who decided to ‘identify’ as the opposite sex.
Several states protested and the high court eventually sided with lower court injunctions staying the rule, but only due to Bostock’s selective application to employment law. Parsing that precedent won’t be so easy this time around because the Court’s decision in Skrmetti will affect a much wider array of situations.
If the court’s opinion dares to suggest that prohibiting “gender affirming” treatment for minors is discriminatory based on sex, the practical implications would clearly end any distinction between male and female — whether in bathrooms, locker rooms or sports.
If saying neither a boy nor a girl may obtain hormones for gender transitioning is discrimination, then so is telling boys (or girls) they cannot go into the shower of their choice. You can see where this is headed.
And you can thank Kennedy and Gorsuch for the legal chaos.
Former Rep. Jason Lewis (R-Minn.) writes at jasonlewis.substack.com and is the author of Party Animal, The Truth About President Trump, Power Politics & the Partisan Press now out in paperback.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller News Foundation.
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