The Grimm Truth Christian Conservatives Must Understand 

Jul 23, 2021 by David Fowler

The Grimm Truth Christian Conservatives Must Understand 
Many Christian political conservatives have been touting their success in passing bills protecting biological girls from competing in high school sports against transgendered persons and preventing hormone therapy for minors. This week, federal district court judges held unenforceable a law on the former in West Virginia and on the latter in Arkansas. For the following reasons, I believe enacting these bills is an exercise in futility.

The Grimm State of the Constitutional ‘Law’ Involved

Jeff Shafer, an attorney, told those who attended our recent Restoring the Vision seminar that “the Supreme Court’s role over the last five decades or so” has been to make human bodies irrelevant to who we are as human beings “by means of corrupt innovations that are proceeding under the guise of ‘Constitutional interpretations.’” What he means can be found in the decision of the U.S. Court of Appeals for the Fourth Circuit in Grimm v. Gloucester County School Board.

Relying on U.S. Supreme Court precedent, the Court in Grimm held that a Virginia County school board violated the Equal Clause Provision of the Fourteenth Amendment by designating bathroom usage among students in public high schools based on biological sex with single person bathrooms for use by those who did not want to conform to the biological sex designations. Tennessee just enacted a similar law.

The Court said the state law “privileges sex-assigned-at-birth over Grimm’s medically confirmed, persistent and consistent gender identity.” (emphasis added) Let that sink in. The Fourth Circuit continued:
The policy itself ‘recognizes that some students question their gender identities,” and states that such students have “gender identity issues.” Grimm, however, did not question his gender identity at all; he knew he was a boy. . . Grimm was similarly situated to other boys, but was excluded from using the boys restroom facilities based on his sex-assigned-at-birth. 

Translation: “Boys” are all those who think of themselves as boys. Whether the bodies of those who think of themselves as boys correspond to others in the “boy” category is immaterial to being a “boy”; the only relevant correspondence is what subjectively, in your head, you think you are.

On June 28th, the U.S. Supreme Court declined a request that it review that decision. That means Maryland, North Carolina, South Carolina, Virginia, and West Virginia are all stuck with that decision. Other states should not be surprised if the federal Courts of Appeals for their Circuits follow suit.

What Christian Political Conservatives Must Do If They Want to Stop Losing

Based on the events of the last three weeks, Christian political conservatives will have to do a few things if they don’t want to waste their time enacting bills like these that federal courts will not let go into effect.

Realize You Are Now Living in Obergeville

Thinking you can continue to argue only science and anatomy means you didn’t understand a thing I just said.

The whole point of the United States Supreme Court’s decision in Obergefell, cited three times in the Grimm decision, was that bodies are irrelevant. The very first sentence of the opinion reads: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.”

By the way, guess who gets to determine that “lawful realm” in which persons can create their own subjective universe of meaning, including the meaning of one’s body? 

Don’t be silly or naïve. It is the U.S. Supreme Court!

Go on the Constitutional Offensive

Because of the previous point, Christian political conservatives must begin to argue that they have the constitutional authority to acknowledge that persons are created (or conceived) as male and female (not “define” persons as such) and assert that they even have a constitutional duty to recognize these objective biological categories of human persons. Hint: it is found in the Ninth and Tenth Amendments.
That constitutional argument needs to be put in these bills as the constitutional justification for their enactment. Court’s need to be pinned down to the articulation of the constitutional rational in the law itself and not be allowed to make up and then apply their own constitutional theories.

Stop Believing the Lie About Judicial Supremacy.

Lastly, too many people today, including lawyers and judges, hold to the idea that the U.S. Supreme Court’s holdings are the “law of the land.”  Correspondingly, as a result of the Supreme Court’s decision not to grant an appeal in Grimm, all school districts in Virginia and all school districts in all other states wrongly assume the holding in Grimm is “the law” for that Circuit. It most assuredly is not law. 
This idea of judicial supremacy is a recent innovation. One reason I say that is that in 1884, in Hurtado v. California, the U.S. Supreme Court described the Due Process Clause in the Fifth Amendment as follows:

“Due process of law . . . refers to that law of the land which derives its authority from the legislative powers conferred upon Congress by the Constitution of the United States.”

Law is a legislative act, whether it be the Constitution itself, enacted by ratification of the states, or the laws enacted by Congress (or state legislatures) to which procedural due process attaches. 

Why is the “law of the land,” as far as the U.S. Constitution is concerned, based on what Congress does, not what the federal courts do? Because legislative bodies make laws, and courts issue judgments. 

Courts do not make law but merely apply what they understand the law already to be—that which legislative bodies have already made—to resolve a particular dispute between two parties over their lawful relation to each other. That resolution is a judgment, not a law.

The executive and legislative branches of the state must stop giving federal judges a power they do not constitutionally have, namely, to make law, to make their judgments the “law of the land.”

Until state officials learn these things, the social issue laws Christians political conservatives work so hard to pass may never go into effect. 

David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. 

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