The Civilization-Defining Nature of an Upcoming SCOTUS decision involving Tennessee
Oct 11, 2024 by David Fowler
As I write, briefs are being filed with the United States Supreme Court on the constitutionality of Tennessee’s law prohibiting medical interventions on behalf of minors confused about their gender. With a straight face, I will tell you that I think it could be the most significant case of constitutional interpretation since 1857 when the Court concluded that slaves and descendants of slaves were not “citizens” of the United States because, at the time of its ratification, they “were considered as a subordinate and inferior class of beings.” It is not hyperbole to say the Western Legal Tradition could hang in the balance, and the brief I am filing explains why.
The Question the Supreme Court Wants Answered
If the Court agrees to hear a case, it tells the parties what question it wants them to address in their briefs. Here is the question the Court gave the parties:
How could a case asking if there is a constitutional right to certain “medical treatments” bring about the end of the Western Legal Tradition? Glad you asked.
The Attorney General’s Approach to the Question
The following is from the introduction in the brief filed by and on behalf of Attorney General Skrmetti and other Tennessee state officials. I have numbered the sentences to facilitate my subsequent explanation of it:
The first three sentences are a great statement of what lawyers call “black letter law”—meaning there can be no quibble about it. And I have none.
My quibble is with the last sentence. I have a civilization-defining problem with the way it is worded. It seems to presume that what constitutes health care cannot be objectively determined and must be democratically decided.
Pardon my turn of a phrase, but to hell with that idea by which I am describing where it should be taken, namely, to the place from which it comes. Here’s why I say that, and how I couched it in my brief:
[T]he concept of health itself vanishes from the law’s apprehension of health if it can no longer recognize a pre-existing and given human nature by which conformity to or deviation from wholeness and integrity can be judged.
In other words, the idea that God has not given any enduring nature to what it means to be human and, more specifically, to be made male and female, is, from a Christian perspective, hellish. Only the Devil in the Garden would suggest that we get to democratically decide what it means to be human.
Now I will show how the whole of the Western Legal Tradition’s jurisprudence hangs in the balance using the contrasting arguments made in my brief.
The Comparative Precedential Value of the Authorities Being Cited
The parties cited Supreme Court precedents that they thought applied to a determination of the latitude states have to regulate medical procedures, which is fine.
But, as I noted above, which medical procedures facilitate health and which ones constitute an injury to health depends on what we think a “person” is, the legal word the law deals with and that the Equal Protection Clause applies to.
In other words, you can’t tell if a law involving health care is being equally applied to persons unless you know what a person is!!
So, here is the different kind of argument I offered to the Court for this proposition with the precedents supporting it:
It is an historic juridical baseline that the law is to countenance and address aright the persons for whom it is designed. Justinian’s venerable Corpus Juris Civilis in the Digest offers that “since all law is made for the sake of human beings, we should speak first of the status of persons.” Dig. 1.5.2. And from Justinian’s Institutes: “Knowledge of law amounts to little if it overlooks the persons for whose sake law is made.” J. Inst. 1.2.12.
What This Sixth Century Precedent Means to our Legal Tradition
What I learned long after law school is that the Western Legal Tradition began to develop with the advent of canon law following the Papal Revolution in the 11th Century.
What is important about that is the canonists “used . . . the Justinian texts”—“as Roman law was understood in their time—just as they used Biblical law, and just as they used Germanic law” as “sources” for founding the Western Legal Tradition. Harold J. Berman, Law and Revolution-The Formation of the Western Legal Tradition, 204-205.
In sum, the legal tradition I’m asking the court to uphold dates back centuries: Figure out what a human—a person—is first.
If our Court continues to avoid the legal history that tied sex-bodies and their procreative nature to meaning of the word “person,” as it did with abortion and the marital relationship, and puts the meaning of that word up to democratic vote from state to state, then the Western Legal Tradition will have come to an end and a new understanding of what it means to be a person—to be human—will be substituted in its place.
The ramifications of this result are horrific for the family.
What the Transgender Theory of the “Person” Would Mean Going Forward
Here is how my brief describes one of the legal and societal ramifications of what the opponents of this law want:
The fateful constitutionalizing of transgender theory as urged by the Department of Justice implies, in principle, the deconstitutionalizing of the natural family itself with its pre-political grounding and authority.
Parental authority, for example, grounded in the common law understanding of the person, does not survive transgenderism, as the predicates of each are antithetical. Once existing legal-anthropological categories of human meaning are overthrown, the category of parent (and the marital relationship) itself falls victim to the achievement.
In sum, if health care cannot be objectively grounded in what it means to be human, then nothing that has been previously grounded in human meaning can logically continue either.
What I Think Will Happen
I suspect the majority of the justices will try to avoid any application of our legal history to the meaning of the word “person.” I think they know that infusing that word with the meaning found in our legal and social history will be explosive.
Upholding that history would destroy the constitutional foundations for same-sex marriage, and that could lead to an uprising that would fuel a demand for changes in the Court’s composition.
But if all the Court holds is that the constitutionality of laws like this depends on the democratic process, as it is expressed from time to time—today a majority thinks these treatments are “bad” health care and twenty years from now it thinks them “good”—we will know we are on the brink of losing the Western Legal Tradition that depended for centuries on a given human nature.
At some point, though, the question of human meaning in law will have to be decided by the Court. It can’t punt forever. I hope it is decided correctly, and perhaps God would allow my harping on the subject in the present to someday contribute to that outcome, even if my name is long forgotten.
The Question the Supreme Court Wants Answered
If the Court agrees to hear a case, it tells the parties what question it wants them to address in their briefs. Here is the question the Court gave the parties:
Whether Tennessee Senate Bill 1 (SBl), which prohibits all medical treatments intended to allow "a minor to identify with, or live as, a purported identity inconsistent with the minor's sex" or to treat "purported discomfort or distress from a discordance between the minor's sex and asserted identity," Tenn. Code Ann. § 68-33-103(a)(1), violates the Equal Protection Clause of the Fourteenth Amendment. (emphasis supplied)
How could a case asking if there is a constitutional right to certain “medical treatments” bring about the end of the Western Legal Tradition? Glad you asked.
The Attorney General’s Approach to the Question
The following is from the introduction in the brief filed by and on behalf of Attorney General Skrmetti and other Tennessee state officials. I have numbered the sentences to facilitate my subsequent explanation of it:
(1) The Constitution vests politically accountable state officials with primary responsibility for protecting the public health and welfare. (2) With such power has always come wide discretion to regulate medical practices, particularly in areas of scientific uncertainty. (3) That legislative leeway enables differing approaches to evolving medical disputes. (4) This case asks whether the Equal Protection Clause requires courts to short-circuit democratic resolution of one such dispute—the appropriateness of providing life-altering gender-transition procedures to minors.
The first three sentences are a great statement of what lawyers call “black letter law”—meaning there can be no quibble about it. And I have none.
My quibble is with the last sentence. I have a civilization-defining problem with the way it is worded. It seems to presume that what constitutes health care cannot be objectively determined and must be democratically decided.
Pardon my turn of a phrase, but to hell with that idea by which I am describing where it should be taken, namely, to the place from which it comes. Here’s why I say that, and how I couched it in my brief:
[T]he concept of health itself vanishes from the law’s apprehension of health if it can no longer recognize a pre-existing and given human nature by which conformity to or deviation from wholeness and integrity can be judged.
In other words, the idea that God has not given any enduring nature to what it means to be human and, more specifically, to be made male and female, is, from a Christian perspective, hellish. Only the Devil in the Garden would suggest that we get to democratically decide what it means to be human.
Now I will show how the whole of the Western Legal Tradition’s jurisprudence hangs in the balance using the contrasting arguments made in my brief.
The Comparative Precedential Value of the Authorities Being Cited
The parties cited Supreme Court precedents that they thought applied to a determination of the latitude states have to regulate medical procedures, which is fine.
But, as I noted above, which medical procedures facilitate health and which ones constitute an injury to health depends on what we think a “person” is, the legal word the law deals with and that the Equal Protection Clause applies to.
In other words, you can’t tell if a law involving health care is being equally applied to persons unless you know what a person is!!
So, here is the different kind of argument I offered to the Court for this proposition with the precedents supporting it:
It is an historic juridical baseline that the law is to countenance and address aright the persons for whom it is designed. Justinian’s venerable Corpus Juris Civilis in the Digest offers that “since all law is made for the sake of human beings, we should speak first of the status of persons.” Dig. 1.5.2. And from Justinian’s Institutes: “Knowledge of law amounts to little if it overlooks the persons for whose sake law is made.” J. Inst. 1.2.12.
What This Sixth Century Precedent Means to our Legal Tradition
What I learned long after law school is that the Western Legal Tradition began to develop with the advent of canon law following the Papal Revolution in the 11th Century.
What is important about that is the canonists “used . . . the Justinian texts”—“as Roman law was understood in their time—just as they used Biblical law, and just as they used Germanic law” as “sources” for founding the Western Legal Tradition. Harold J. Berman, Law and Revolution-The Formation of the Western Legal Tradition, 204-205.
In sum, the legal tradition I’m asking the court to uphold dates back centuries: Figure out what a human—a person—is first.
If our Court continues to avoid the legal history that tied sex-bodies and their procreative nature to meaning of the word “person,” as it did with abortion and the marital relationship, and puts the meaning of that word up to democratic vote from state to state, then the Western Legal Tradition will have come to an end and a new understanding of what it means to be a person—to be human—will be substituted in its place.
The ramifications of this result are horrific for the family.
What the Transgender Theory of the “Person” Would Mean Going Forward
Here is how my brief describes one of the legal and societal ramifications of what the opponents of this law want:
The fateful constitutionalizing of transgender theory as urged by the Department of Justice implies, in principle, the deconstitutionalizing of the natural family itself with its pre-political grounding and authority.
Once male or female embodiment no longer legally anchors human identity, the venerable practices and policies dependent on the identity-profundity of male and female bodies only survive as fugitives, or in a tentative position of contingent government permission, ever-vulnerable to the in-fact erasure already accomplished in principle. So, for instance, draining legal meaning from body and its natural functions correspondingly drains legal weight from the body-concepts of motherhood, fatherhood, kinship and ancestry—from family itself.[1]
Parental authority, for example, grounded in the common law understanding of the person, does not survive transgenderism, as the predicates of each are antithetical. Once existing legal-anthropological categories of human meaning are overthrown, the category of parent (and the marital relationship) itself falls victim to the achievement.
In sum, if health care cannot be objectively grounded in what it means to be human, then nothing that has been previously grounded in human meaning can logically continue either.
What I Think Will Happen
I suspect the majority of the justices will try to avoid any application of our legal history to the meaning of the word “person.” I think they know that infusing that word with the meaning found in our legal and social history will be explosive.
Upholding that history would destroy the constitutional foundations for same-sex marriage, and that could lead to an uprising that would fuel a demand for changes in the Court’s composition.
But if all the Court holds is that the constitutionality of laws like this depends on the democratic process, as it is expressed from time to time—today a majority thinks these treatments are “bad” health care and twenty years from now it thinks them “good”—we will know we are on the brink of losing the Western Legal Tradition that depended for centuries on a given human nature.
At some point, though, the question of human meaning in law will have to be decided by the Court. It can’t punt forever. I hope it is decided correctly, and perhaps God would allow my harping on the subject in the present to someday contribute to that outcome, even if my name is long forgotten.
If you would like a pdf version of the brief, send an email to info@factn.org
[1] Jeff Shafer, Supreme Incoherence: Transgender Ideology and the End of Law (March 28, 2017), www.firstthings.com/web-exclusives/2017/03/supreme-incoherence-transgender-ideology-and-the-end-of-law
