At some point the lack of candor about the nature of law for the sake of playing judicial politics catches up with you. That day may soon be upon us. As I read the A.C.L.U.’s lawsuit asserting that Tennessee’s law on “transgender care” for minors was unconstitutional, my heart grieved. An influential Christian ally is undermining parental rights while thinking it is protecting parental rights. I must write because I do not want you to be deceived about how so many Christian values advocates do their work. 

Before I get to the complaint’s claim that the law violates the constitutional rights of parents to make health care decisions for their children, let me tell you what I mean by “playing judicial politics.” It is as godless a game as godless can be, and you need to understand why. 

What Led to Judicial Politics

Over the last 50 plus years the United States Supreme Court has pretended it could decide “rights claims” without having to resolve any truth claims about what it means to be human, or, in the words of the 14th Amendment, what “persons” are. 

To skirt around this most fundamental of all questions, the Court began to make its own precedents the limiting authority in deciding future cases. Nothing outside the Court’s decisions could count as “law,” even though court decisions are not law in the first place, but judgments!

For example, in Roe v. Wade, the Court said, “no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment.” So what? Can a Court never hold in the first instance that the unborn are persons as a matter of law itself? 

How to Play Judicial Politics.

How is judicial politics played?  Lawyers tend to look only at more recent Court precedents, particularly those of justices still on the bench, to try to predict how many of the justices will “buy” what kind of argument. If they think five of the nine justices on the bench will buy that argument, that is the “law” they offer. This is judicial politics, not law. 

An argument of law would encompass older decisions and the common law on which they were decided. An argument of law rests on the proposition that the Court must confront realities it does not create, which is what common law is according to those who framed our Constitution, and its impending decision must be made in light of those realities.  

But those who play judicial politics routinely and steadfastly tell me they want to avoid that route. They will not consider common law. Only recent precedents count because it is, after all, a vote-counting game they play. 

In other words, an argument of law rests on the proposition that human beings do not create law in the first place—God does. Therefore, a person who believes in real law would be willing to argue that one or more of the Court’s precedents is wrong about how that law should apply to the present situation. But that kind of argument is not very politic.

Christians may say they believe in such a transcendent law, but if they are advocates of judicial politics, they don’t practice what they say—it’s precedent, baby, just precedent!

Assessing Judicial Politics as a Means of Achieving a Desired End.

I say with sadness of heart but with the candor needed to keep Christians from being seduced by advocates of judicial politics: Judicial politics represents a godless view of the cosmos and of law.  

Why? Because under this approach all law comes from human beings, whether judges or legislators. Such an understanding of law and its advocacy cannot honor or glorify God, no matter what end the Christian advocate may seek to achieve. 

What Christians believe regulates not just their ends but their means. One without the other falls short of the glory of God. 

And I add with equal candor: Even a present win will not help long term. 

Those who make the ends the only goal and acquiesce to an ungodly legal framework for their legal advocacy will, at some point, end up in a defenseless, losing position. 

Why? Because all godless thinking ends in futility (Romans 1: 21-22) That is what I will now prove.

Did Christians Hand the A.C.L.U. the Winning Argument?

To answer that question, let’s understand first what the A.C.L.U. alleges. Its complaint begins with this heading:
The complaint contains the following paragraphs under this heading:
 
Of course, the medical decision at issue is one of gender identity, as alleged in other paragraphs in the complaint.

Now consider the following verbatim quotation from a brief filed in a U.S. Court of Appeals asserting the right of parents to help their children with gender identity issues. Give particular attention to the fact the words in quotation marks are from Supreme Court precedents:
 
Now read the section of the brief outlining the “Argument” associated with that quotation:
 
If you ask me, the preceding reads exactly like I would expect the A.C.L.U.’s brief to read in support of its constitutional claim against the transgender legislation. 

Moreover, it reads like the opinion of a federal appellate court that agrees with the A.C.L.U.’s position and acknowledges that it is bound to follow Supreme Court precedents.

Who Wrote This and Why?

The brief was written by a Christian organization that believes in playing judicial politics. 

It was written in response to a situation in which gender-identity counseling was being provided to public school children without the participation of parents. The parents naturally and rightly wanted to be involved in counseling on gender identity issues involving their children.

But to “win” the votes of the appellate judges in that case, the organization accepted the godless premise that there is nothing fundamentally true about what it means to be human (see last week’s commentary on that point) or about the nature of parental rights and duties; it agreed to operate only within the Court’s precedents devoid of any substantive law beneath the language found in them. 

The quoted Supreme Court precedent works just great in the gender identity school case, but doesn’t it apply just as well when the involved parents favor transgender treatment for their children?
 
Having foregone an argument of law for a “political” argument, the legal organization must now figure out why one set of mental health decisions involving “gender identity” are within the rights of parent—the ones they think ethical—but not those they do not like and think unethical.  

But how does one inject transcendent ethical questions about human meaning into the judicial decision-making equation after effectively conceding that only precedents grounded in other precedents and devoid of law can be considered? When I asked, the lawyer said they would have to think about it.

This approach to “law” explains why arguments for the transgender legislation are grounded in medical science. Law doesn’t matter when you embrace judicial politics.
 
The Disaster This Is for Parental Rights.

When Christians agree to operate on the godless judicial precept that only what the Court’s recent precedents say can serve effectively as “authority” on matters of law, and there is no law about human nature or human relationships that the Court must confront and take into consideration, all parental rights have, in principle, been turned over to the majority vote of the justices on the Supreme Court. There is no transcendent law outside of the justices’ own heads to constrain or guide their conclusions.

Parental rights—real parental rights of a pre-political kind—are now dead. They are being killed by those Christians who long ago gave up law and turned themselves over to judicial politics. 

Christians who rely on judicial politics have made the Supreme Court their king and god. Long live judicial politics!