American Federalism and Equal Protection: Transsexual Children in Tennessee

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.

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1. Josh Gerstein, “Supreme Court Upholds Tennessee’s Ban on Gender-Affirming Care for Minors,” Politico.com, June 18, 2025.
2. Ibid.

Gay Marriage: God’s Law, Legal Reasoning, and Ideology

Mixing religion, jurisprudence, and ideology together is one potent drink. Ingestion can cause palpable heart-burn as well as migraine headaches. In the case of gay marriage in the U.S., sorting out and evaluating the three elements can be rife with controversy and thus confusion. In this essay, I discuss the county clerk in Kentucky who refused to grant marriage licenses to gay couples because doing so would violate God’s law and thus betray Jesus. Her religious rationale makes for interesting legal reasoning. I then look at the U.S. Supreme Court’s gay-marriage decision. I contend that a natural-right (and thus human right) basis clashes with ideological anger. Human nature itself is on display throughout, particularly as it wades into religion, legal reasoning, and ideology.

The complete essay is at “Gay Marriage: God’s Law, Legal Reasoning, and Ideology.”

U.S. Senator Rand Paul on Civil Rights and the BP Explosion

U.S. Sen. Rand Paul (R-KY), was the Tea Party candidate who challenged the Republican establishment to win the party’s Senate nomination in Kentucky on May 18, 2010. A day later, he publicly criticized a plank of the Civil Rights Act of 1964. Specifically, he said in an interview with Rachel Maddow on MSNBC television that he supported the sections of the Civil Rights Act that applied to public accommodations but had concerns when it came to its applicability to private business. He had raised similar concerns earlier in the day about the Americans with Disabilities Act in an interview on National Public Radio. Asked by Maddow if a private business had the right to refuse to serve black people, Mr. Paul replied, “Yes.” In so answering, the new senator failed or refused to distinguish private property that is open to the public from private property, such as a person's home, that is not. 

In citing the rights inherent in private property, Mr. Paul, an eye surgeon, was refusing to recognize the “publicness” in a business being open to the public, as distinct from someone’s house, which is not open to the public. In other words, Mr. Paul was ignoring the qualification to private property that comes into play as soon as said property is opened to the public.  Such property is quasi-public precisely because it is open to the public.  Hence, society, through its government, has a right to dictate the obligations going with that element of publicness.  Mr. Paul would have been on firmer ground had he limited his statement to private clubs, such as country clubs, which do not receive public money and are not open to the public.  However, even here, if people associate in a way that hurts others by intentionally excluding them, there might be an argument in favor of subjecting them to the Act, though such an argument seems weaker than those for freedom of association and on private property not open to the public.

Rand Paul also said on ABC TV that President Barack Obama’s criticism of BP in the wake of the Gulf oil debacle sounds “really un-American.”  Paul said that the president’s response is part of the “blame game” that’s played in the United States. The game, he argued, leads to the thinking that tragic incidents are “always someone’s fault” when sometimes accidents just happen. Sen. Paul was ignoring that BP overrode Transocean in directing its employees not to use “mud” to maintain pressure in the well as cement “corks” were being inserted.  Also, managers at BP claimed to have the technology to stop any leak or spill when no such technology existed. In short, the managers at BP put the Gulf at risk in order to cut corners so as to earn more profit (as if $2 billion a month was not sufficient).  Rather than go after the mentality of shirking amid a “more, more, more” mentality wherein nothing is ever enough, Paul went after the representative of the victim–society as a whole.  That is to say, he added insult to injury by going after the victim rather than the culprit.  In so doing, he ignored key elements of the culpability.

Listening to the candidate on the Maddow show on MSNBC, I was more concerned by the way he chose to evade questions than by his failure to take “being open to the public” into account in his view on civil rights law. At one point, Rachel Maddow asked him, “yes or no,”  on whether he would exclude private businesses from the Civil Rights law.  He replied that he was against the violence that took place in the 1960s in association with Walgreen’s lunch-counters. Beyond not answering the question, Mr. Paul seemed to be continuing with what he wanted to say–ignoring the question entirely as a mere interruption to be dismissed. I noticed a few times that after Maddow did indeed interrupt him, he simply picked up with what he had been saying.  Could his ignoring the questions be related to his ignoring the “open to the public” qualification and the risky shirking of BP?  In other words, might it be that Mr. Paul simply does not see what is inconvenient to his world view?  If so, I contend that this character trait is far more alarming than even his evasions and his over-simplified view on private property and the oil spill.  If you have ever tried repeatedly to tell someone something only to have your statement ignored as the other person continues on with what he or she was saying, you know what I mean. Sadly, I suspect that Rand Paul didn't notice it. This character flaw is by no means limited to him. Nor is this an invitation for partisan aspersions on the Republican Party.

Rather, I suspect that not answering questions--even asking one's own instead of given any answer to a question outstanding--is a growing attitude in modern America. I have witnessed it myself in emailing people I don't know on matters involving an actual or potential commercial transation. Does the computer come with Office 2007? Reply: When you would like to come by to look at it?  But what about Office 2007?  Or take apartment hunting:  Are utilities included in the rent? Reply: Call me to make an appointment to see the unit. Nietzsche would have a field day with such a mentality that vaunts itself as superior by "virtue" of its own assumed dominance. The basis of Rand Paul's non-answer, in other words, could have been an attempt to dominate beyond his place on Maddow's show. In other words, his non-answers could have been refusals rooted in a will to power that was biting off more than it could chew on someone else's show.

In terms of having a will to power based on strength, many of the stations or offices in modern society that we view as being entitled to dominate are in fact weak.  Nietzsche points to the modern moralist's thou shalt not as an attempt by the weak to dominate beyond their innate weak constitution. He also points to the attempts of the modern manager to dominate in such terms (and the priest as well). In watching various personalities giving non-answers while being interviewed on television, I find myself wondering if they know they are doing it. If they do, they are indeed rascals; if they do not, their stygian pathology is much deeper than I am equipped to investigate. Perhaps the modern illness is malignant narcissism to such an extent in a personality that the delimited perspective eclipses even awareness of what oneself is doing.

Sources: 

1. The Rachel Maddow Show. http://www.msnbc.msn.com/id/37273085/ns/politics-decision_2010/

2. Adam Nagourney and Carl Hulse, "Tea Party Pick Causes Uproar on Civil Rights," The New York Times, May 20, 2010.