On June 18, 2025, the U.S.
Supreme Court ruled that a Tennessee law blocking transsexual children from
being able to undergo puberty-blockers and gender-changing surgeries does not
violate the Equal Protection clause of the U.S. Constitution. The court’s 6-3
opinion in U.S. v. Skrmetti was reported at the time to fall “largely
along conservative-liberal lines.”[1]
By this is mean ideological lines, both moral and political in nature.
Such is grist for the mill for the broad judgment of an electorate, in what is
otherwise known as popular sovereignty, which is superior to governmental
sovereignty in a republic. Add in the fact that Tennessee is a member-state in
a federal system in which the U.S. Supreme Court is on the federal level, and
the broad judgment of the electorate takes on more significance to the extent
that a federal system of an empire-scale union is in part supposed to take into
account and protect interstate ideological differences that defy one-size-fits-all
union-level policies. In other words, as cultural heterogeneity can be expected
in going from state to state in an empire-scale union-of-states, efforts “from
the top” to impose a single policy on every state do not allow the federation
to breath. Political pressure could be expected to build over time if such a
suffocating tendency eventuates, with the risk of dissolution increasing over
time as if depreciation.
Because the U.S. Supreme Court
can (and has) contributed to a one-size-fits-all compromising of federalism in
favor of the General (i.e., federal) Government, Chief Justice Roberts wisely
resisted the temptation (if he felt any) to decide the issue not only for the
people of Tennessee, but also for the entire Union. “The voices in these
debates raise sincere concerns; the implications for all are profound. The
Equal Protection Clause does not resolve these disagreements. Nor does it
afford us license to decide them as we see best.”[2]
He was deferring to popular sovereignty. Because he did not find discrimination
based on sex to exist in the Tennessee law and thus that it does not violate
the Equal Protection Clause of the federal constitution, he was able to
not only defer to an electorate to use its broad judgment, but also allow
Tennessee some breathing room within the Union.
It is arguably more likely
that the majority of the electorate in Massachusetts, for example, would be against
the Tennessee law being adopted in Massachusetts, than that a majority of
Tennessee’s citizens would vote to repeal the law. Both of these
collective value-judgments being able to be codified into law is vital to the
endurance of a federal system in an empire-scale union of states. Therefore,
the strict scrutiny that sexual discrimination requires of any court should not
be used as a crutch by which to “federalize” law in the United States or to
replace the value-judgments of majorities of voters with those of justices. The
fact that the decision fell along ideological lines means that value-judgments
apart from jurisprudence were also involved in the decision, and thus that
Roberts is correct that the contesting “sincere concerns” should not be resolved
by fiat, but rather by means of ballots.
This is not to say that a
federal court should sidestep cases that do involve significantly harmful
sexual, religious, or racial discrimination on a minority, for majority rule is
not absolute. Rather, the interests of an electorate and of federalism itself
should be considered by judges and justices, especially when the law under the
microscope has a legitimate purpose. In the present case, stopping children
from blocking puberty is a legitimate societal goal because children are
especially vulnerable to not being of mature mind on even themselves. Surgeries
are of such consequence that this part of the law was not even contested. This means
the law had at least some merit of intent and thus could not be rightly claimed
to be intended to discriminate. Although historically some state governments
have enacted laws intentioned to discriminate against Black Americans, that
such laws were so blatant can be used as a litmus test for federal judges and
justices to assess whether a law is inherently and intentionally discriminatory.
Just because a particular law impacts only a group rather than everyone does
not mean that the law necessarily violates the Equal Protection Clause. Put
another way, just because a law costs or benefits only people who meet certain
criteria, such as having a disease such as gender dysphoria, does not mean that
unless everyone meets those criteria the law is unconstitutional.
In fact, the value of broad
value-judgments being made by voters as the basis of a republic and the importance
of not succumbing to one-size-fits-all-states trends by federal governmental
institutions arguably warrant shifts in federal policy and jurisprudence. For
instance, the use of referenda by governments so an electorate can assume an
increased role on the level of value-judgments would solidify that foundation of
American democracy, with elected representatives taking their cues from the
broad strokes to implement them into specifics, whether laws or regulations.
Furthermore, the U.S. Supreme Court could set a precedent whereby it is more
difficult for that court to declare a state law unconstitutional under the federal
constitution. That that court is a branch of the federal government means
that there is at least an implicit conflict of interest on matters bearing on
federalism, since justices are both nominated and confirmed by branches of the
federal government. I once asked Sandra Day O’Conner why the court had not done
more to counter this institutional conflict of interest. She replied, “It takes
five,” meaning five justices to agree to do it, and that was a Republican-majority
court! That the U.S. is not a France or
Germany with a large back yard, but, rather, of the same scale and federal-type
as the E.U., is reason enough for the American state governments to flex their respective
wings more so as to reflect or match the broad value-judgments of their
electorates. On June 18, 2025, Chief Justice Roberts resisted the temptation to
clip Tennessee’s wings and thus incrementally strengthened the federalism of
the empire-scale union.
2. Ibid.
