On Wednesday, the U.S. Supreme Court held oral arguments on the constitutionality of Tennessee’s law prohibiting the use of medical treatments for a minor’s gender dysphoria. It was clear that everyone saw the issue as access to treatments that allow a minor to “change” his or her gender. However, I’ve not seen any traditional media outlets report on what I saw as the more fundamental issue in the case, even conservative ones. So, here it is.

The most fundamental issue was what kind of worldview would be offered as the one upon which the legal issue should be resolved.

Some, perhaps most, would disagree. They would say it was fundamentally about interpreting the Constitution’s Fourteenth Amendment. But the Constitution is founded on a worldview, and it must be interpreted according to some worldview. That, to me, is the issue that seems to escape most people today, even lawyers.

The Worldview of the Constitution

The founding worldview for the U.S. Constitution is the Christian conception of law known as common law. Our nation’s early legal precedents affirm that.

However, since the early 1900s most law schools have perverted the original meaning of common law and have reformulated how those older precedents should be read. As a result, today’s lawyers tend to think primarily in terms of the Court’s most recent precedents. 

There is a reason they think that way. It is a natural consequence of being seduced into accepting an evolutionary conception of the cosmos, which is a worldview. If everything is changing, the most recent becomes most important. History effectively means little. An evolutionary worldview is now seen as the foundation of law itself and, therefore, that worldview must be applied when interpreting the Constitution.

What the New Constitutional Worldview Means

This new evolutionary worldview for law means there are no fixed precepts about anything from which to reason to a just result. Again, that’s because everything is in a state of development, of change.

An evolutionary worldview necessarily says there are no enduring truths about human nature, about what it means to be human. So, law needs to evolve to encompass our evolving understanding of what it means to be human.

Transgender ideology is an evolutionary worldview applied to human meaning. Therefore, the goal of its advocates at the Supreme Court was to inject that new understanding of human meaning into our nation’s constitutional jurisprudence.

That was the worldview on display in the Courtroom on Wednesday.

Tennessee’s Response to this Evolutionary Worldview

Tennessee implicitly (and I suspect unwittingly) acquiesced to this worldview. That such was not intentional doesn’t change the import of the kind of arguments made in defense of the law.

The reason I say the state acquiesced is that it conceded in oral argument that it was constitutionally lawful for other states to think that morphological changes that will sterilize healthy children is fine. The state even conceded that it was up to the democratic process to decide if adults could change their gender/sex.

My Conclusion About the Worldview Tennessee Presented

I believe the foregoing concession by the state effectively denies to law any uniformity of human meaning arising from the overarching and controlling cosmology given to us in Genesis in the creation of Adam and Eve, namely, that gender and sex are objective, coterminous, and immutable with a telos (purpose) primarily directed toward procreation.

I don’t mean to be harsh, but to see the importance of the point, let’s put it in a different context that perhaps all might agree on.

Think of saying former slaves cannot be “citizens” under the U.S. Constitution and each state can decide what rights they have, and you’ll get the picture as respects human meaning in the present case. This citizenship example was the holding of the Court in the 1857 Dred Scott decision.

If states can find different “truths” about human nature, like they could with former slaves, it seems to me that Tennessee’s argument conforms to the denial of any transcendent authority to law espoused by the U.S. Supreme Court in Erie Railroad v. Thompkins in 1938. That decision was the signal that common law had been perverted and was being reformulated. I cover that and its implications in my book, The Naked Court.

You can think what you want, but the denial of any transcendent authority is the denial of the God of the Bible. This empty cosmos is now the foundation for law, and Tennessee seems to have effectively accepted it as true.

Is There a Way Out of the Mess We’ve Embraced?

I see only one way: Using the older, overlooked, and, therefore, unoffered common law precedents from our first 100 years. The intelligibility of those precedents is grounded in a Biblical cosmology without it having to be made specific.

Unfortunately, Republican leadership killed an amendment to the present law relying on those precedents. It would have brought the common law argument to the fore.

This is Not Incrementalism

When one embraces a worldview at least antithetical to the cosmology given in the Bible, if not outright antithetical even to the existence of God, no incremental advance in recovering a lost worldview is made by a merely pragmatic outcome such as “At least they won’t do this in Tennessee.”

Worldview incrementalism is demonstrated by William Wilberforce of England. He first argued that the slave trade is wrong because slavery is wrong. That left it wide open and possible to argue later that owning a slave within the nation’s borders is wrong. In time, acceptance of the first step naturally led to the second.

However, saying a person can’t change their gender until one is an adult, which Tennessee conceded a state could do, is an acknowledgement that transgenderism can be viewed as a real understanding of human meaning.

But that, to me, is akin to saying a child cannot be introduced into slavery, only adults. I don’t see that as any kind of step toward recovering a given, transcendent human nature rooted in a biblical cosmology.

Isn’t It Good that Some Minors Will be “Saved” from Harm?

This is the same argument the pro-life community made for why it never (and still hasn’t) directly challenged the legal meaning of the word “person” after Roe v. Wade, but it is a harder question to answer because of the emotions involved when children are at risk of harm.

However, I find it hard only when I am unwilling to put into practice my belief that God really has ultimate authority over all things—even over the consequences or effects of human decisions that result in the sterilization of a minor—and that He is good and never unjust.

To help with this, I will offer two especially applicable justifications from the Bible for why Christians can entrust to God those harmed by transgender treatments if my common law argument failed in Court:

Isaiah 56:3-5, NKJV:
 
Act 8:27-28, 30, 35-38, NKJV:
 
I believe these passages are consistent with Jesus’s statement that it “is more profitable” to lose your eye “than for your whole body to be cast into hell” (Mathew 5:29, NKJV).

What Should Christians Do Now?

I believe that Christians, for the glory of God, should seek to restore the cosmological ruins evident in and advocated by our nation’s institutions (Isaiah 61:4), which includes law schools, legislative chambers, and courtrooms. And leave it up to God to be either merciful or just toward all. See Romans 9:15-23. I showed how to do that in the brief I filed in this case.

What might happen if Christians did that?

I don’t know, but I think it’s possible that God might do something greater than Christians can imagine if they begin telling the world that the most fundamental issue in life is knowing and being known by a Heavenly Father; that Jesus has revealed Him to us; and that God’s mercy and grace are not bound by what we may have done with and to our bodies.

But we also need to act like we believe that. Everywhere.