Many conservatives are celebrating a series of strong decisions from the Supreme Court, including the 6-3 U.S. v. Skrmetti decision upholding Tennessee’s ban on transgender procedures for minors. This is an incredible win, and full credit should be given to the culture warriors who fought tirelessly for this cause.
Nevertheless, this temporary victory provides another opportunity to reflect on the nature and function of our current Supreme Court and our political regime more broadly. I have written recently about why the Supreme Court still poses a significant obstacle to national restoration even when it allegedly grants “wins” to conservatives. The latest court term demonstrates that yet again.
The current Supreme Court term demonstrates that even the way the Supreme Court evaluates cases about religion, free speech, and LGBT demands impedes the restoration of American virtue and self-government. The Supreme Court hurts the conservative cause by retreating into leftist paradigms of constitutional construction and lending these positions false legitimacy.
Let’s Look At U.S. v. Skrmetti
Chief Justice John Roberts wrote the U.S. v. Skrmetti opinion. Its primary purpose was to explain that Tennessee’s law was not discriminatory because its ban on transgender procedures affects both sexes equally. Thus, the Tennessee law is not subject to strict scrutiny (the legal standard the court applies in cases involving discrimination) and can fly under the easier legal standard of “rational basis” review.
That’s a legally convoluted way of looking at something that should be really simple. The concurrence by Justice Clarence Thomas was stronger and more straightforward. It took up the issue of why Tennessee sought to ban these procedures and why no one should trust the discredited opinions of the corrupt, ideologically-driven activists claiming expertise who advocate these procedures.
The ordinary conservative American is left wondering why Justice Thomas’s logic is not the controlling methodology of the highest court in the land. Why all the focus on whether the law is discriminatory? It’s because anti-discrimination is the dominant and preeminent value of our legal system, even amongst many legal conservatives, as scholar Jesse Merriam has shown convincingly.
As further proof of this problem, in her Skrmetti concurrence, Justice Amy Coney Barrett argued that transgender individuals should not legally be considered a special protected class. We can all be glad the court didn’t stake out further transgender “rights” in this decision, but the whole notion of specially protected classes is constitutionally suspect and is an unconstitutional development of post-Civil Rights-era jurisprudence.
The constitutional justices should go further and tear down the whole anti-discrimination legal framework that has been built up since Brown v. Board of Education (1954), the Civil Rights Act (1964), and the inception of affirmative action dating back to President Franklin Delano Roosevelt. One of the crowning achievements of this ever-advancing anti-discrimination agenda was the Bostock v. Clayton County decision in 2020 that included “sexual orientation and gender identity,” or SOGI, as a status given “discrimination” privileges under the Civil Rights Act.
Anti-discrimination as a legal regime means the end of freedom of association, religious liberty, and many other constitutional rights. The Skrmetti decision upheld a conservative law and quashed transgenderism (for now), but it did nothing to challenge the prevailing anti-discrimination regime that has fueled the LGBT ideology and agenda. In fact, this decision is written entirely within the anti-discriminatory framework.
Catholic Charter Schools in Oklahoma
Another example is the Oklahoma case involving St. Isidore of Seville Catholic Virtual School. It resulted in a split 4-4 decision because Barrett recused herself. This left the Oklahoma Supreme Court’s decision in place, blocking the Catholic virtual school from the state’s charter school program, which uses taxpayer funding.
The arguments in this case revolved around whether the establishment clause of the First Amendment prevents taxpayers from funding religion and religious establishments such as churches and schools. The prevailing view among leftists and even many professed conservatives is that government policy must be neutral toward religions and public education. In this accounting, government funding or support of religion would violate the establishment clause.
Yet mandating a secular public sphere safe from preference for religion is not the paradigm of the American founders, but a construction of the 1960s Warren Court in landmark cases including Engel v. Vitale (1962) and Abington School District v. Schempp (1963). This paradigm simply does not match the text of the Constitution, the intention of the American founders, or the early history of our republic.
The First Amendment says, “Congress shall make no law respecting an establishment of religion.” It says nothing about the states. In fact, several states had established, taxpayer-funded churches up through 1833, not to mention taught the Bible and basic Christian religious doctrine in virtually all state-funded public schools.
Scholars including Thomas G. West and Vincent Philip Muñoz have made these arguments much more thoroughly. The original meaning of the establishment clause was to prevent the federal government from interfering with states’ promotion and governance of religion.
Under the current standards of the Supreme Court — even admitting recent favorable cases — many of the laws and practices of the earliest American states would be deemed unconstitutional today. This indicates our government and jurisprudence have undergone a significant change of DNA.
In the eyes of the American founders, it is not the business of the federal government to scrutinize whether Oklahoma should fund religious education. Not only that, but the American founders all acknowledged the salutary benefit of religion and piety for public morality, which is indispensable for self-government.
Nevertheless, today’s Supreme Court hands down political decisions that roundaboutly block states from funding religious charter schools. Whatever concerns conservatives may have about strings attached to public funding of religious schools, it is indisputable that public funding of religious schools is squarely in line with the original meaning of the establishment clause and the earliest practices of the state governments.
It’s also indisputable that today’s federal and state governments have no scruples funding the LGBT rights agenda, the resettling of illegal immigrants in our country, and critical race theory in schools. The idea of viewpoint neutrality in public education and programs is a farce. Instead, our government distinguishes approved kinds of state-sponsored religions that the Supreme Court permits (directly or indirectly) and others that it does not. It is not a question of funding a religion, but rather which one.
LGBTQ Books and Pornography
Similarly, the Mahmoud v. Taylor case out of Maryland pitted a coalition of Christian, Jewish, and Muslim families against a public school board that mandates sexually explicit LGBT books in the elementary school curriculum. As the case was argued, a conservative “win” was getting the Supreme Court to uphold the rights of parents to opt out their kids from this kind of indoctrination and to require the public schools to grant them exceptions. Indeed, in another 6-3 decision, the court voted in this direction.
Yet the fact that this case exists at all would be remarkable to the American founders. To them, the real question should be: Why would public schools ever approve and mandate such immoral, corrupting curriculum resources in elementary education? What rational interest does the government have in queering the children of its citizens, and against their parents’ wishes at that?
As West has shown convincingly, the founders did not hold free speech to include licentious “speech” such as libel, blasphemy, or obscenity. Not only was the government not obligated to protect such speech, but the concern for public morals (the fundamental condition for a free, self-governing republic) required the government to suppress such immoral indoctrination of the youth. Leftism turns the problem on its head: instead of considering the moral conditions of freedom and how to yield a virtuous citizenry, we deliberate out how much space is left for Christians to carve out dissent from the prevailing — and unconstitutional — LGBT regime.
The same considerations apply to the case Free Speech Coalition v. Paxton, in which pornographers sued Texas over its law requiring the porn sites to verify age to prevent minors from accessing the explicit and harmful content. The Supreme Court affirmed the legality of Texas’s law 6-3.
According to the American founders, pornography is not free speech and deeply damages citizen virtue and liberty, so it should be banned. Case closed. But instead current legal doctrines require us to “balance” interests and determine whether the state of Texas’ interest in protecting its children outweighs the adults and pornographers’ interest in the supposed “free speech” of pornography.
Our constitutional and moral malaise is evident when one considers that we must litigate or even evaluate to determine whether a relatively nonaggressive barrier such as age verification for porn consumption can pass constitutional scrutiny. If our regime quakes at a small measure like this, what would the reaction be if we really sought to use legal power to seriously curtail and shut down an immoral, vicious porn industry?
Many of the Conservatives Are Slower Leftists
These few recent cases show that even our supposedly conservative-leaning Supreme Court is evaluating cases within a leftist paradigm that is far distant from the principles of the American founders and the constitutional government they established. The parameters of our system, within which judicial review of cases and controversies occurs, prove how far we are from the founders’ regime and how much work is necessary to correct our decline.
Even if we gain conservative “wins” from the current Supreme Court (which is not even guaranteed, given most justices’ unpredictability and passivity), we merely gain breathing room for co-existence with destructive forces, rather than achieving cultural and constitutional renewal. We cannot truly win within a leftist paradigm that is built upon protecting increasing categories of favored classes, disparate impact theories of equity, secular notions of free speech and viewpoint neutrality, and the attrition of citizens’ original natural and constitutional rights.
Whoever defines the rules wins the game. The left has established progressive legal precedents and frameworks that shift the game to their advantage and erode the American Constitution and natural rights republicanism. When the Supreme Court legitimizes and institutionalizes anti-constitutional rules such as these, it becomes an obstacle to gaining cultural and political ground.
The Supreme Court continues to pretend that it is an impartial, objective tribunal that merely evaluates legal questions — as if competing visions of the common good and of justice and rights can be resolved as supposedly values-neutral legal questions that must balance competing interests. Laws are means aimed at ends determined by a political regime.
We are in a regime war, but the Supreme Court doesn’t acknowledge that the prevailing legal framework within which they operate is built by progressives for progressive ends. By pretending to not see the problem with how they are interpreting these questions, the court becomes part of the problem.