Last week, a federal appeals court allowed a Tennessee law to go into effect that would protect minors from sex-altering surgeries, cross-sex hormones, and puberty blockers. This 6th U.S. Circuit Court of Appeals opinion was written by Chief Judge Sutton and joined by Judge Thapar, both rock stars in conservative legal circles. I think it was providential they were assigned to this case.
The people challenging the Tennessee law had two routes of attack based on the 14th Amendment. First, they argued that Tennessee’s law infringed on the rights of parents to make decisions regarding the healthcare of their children. Second, they argued that Tennessee discriminated against transgender people in violation of the Equal Protection Clause.
One hundred years ago, the U.S. Supreme Court held that the 14th Amendment’s Due Process Clause protects parental rights. This holding is tricky. On the one hand, parental rights are real. Parents absolutely have God-given rights over their children that were recognized at common law for centuries. On the other hand, the Court baptized those rights into the Constitution through the Due Process Clause, which says nothing about parental rights. So, while the rights the Court protected are real, I have questions about how the Court did it.
However, according to the Supreme Court’s landmark 1923 decision recognizing these rights, the key to understanding 14th Amendment parental rights was the common law. Sir William Blackstone, whom the Supreme Court recognized as the greatest expositor of the common law, said repeatedly that parental rights come from God. Therefore, if the Supreme Court wants us to understand parental rights as they existed in common law, and if the common law held that parental rights came from God, then the inescapable conclusion is that God’s design for parents is the cornerstone of the parental rights equation. If we begin the analysis with that premise, then solving the problem is easy: there is no way that parental rights include the right to change a child’s sex.
The Equal Protection Clause has a similar analysis. The Framers of the 14th Amendment were trying to take the Declaration of Independence’s principle that God created all men equal to its logical conclusion. The most obvious application of that principle was banning racial discrimination against recently freed blacks.
But since the Equal Protection Clause does not limit itself to just race, the question becomes, what else does it apply to? The answer must be understood in the context of God-given rights and God-given equality. Once again, the analysis starts with God. Because in the beginning, He made them male and female (Genesis 1:27), and because biology confirms what the Bible teaches, there is no way that the Equal Protection Clause can be construed to create a right to change one’s sex.
At this point, one might scream that this is “Christian Nationalism,” even though nine out of 10 people who react that way can’t even define what that means. This isn’t Christian Nationalism: it’s just originalism, which is the practice of interpreting the Constitution according to its fixed original meaning.
Like it or not, Americans in 1868 were operating from a thoroughly Christian worldview. Even those who weren’t Christians themselves still believed in God and believed that the Bible’s teachings on morality were correct. Nobody in 1868 would have dreamed that the 14th Amendment could ever be construed to protect a right to change one’s sex.
The 6th Circuit rightly chided those challenging Tennessee’s law for failing to argue the original meaning, pointing out that the government has a strong interest in protecting children’s welfare. All of that is correct. However, it did not discuss the background principles of God-given rights or God-given equality that are historically relevant to the matter.
Without understanding those background principles, even excellent conservative judges risk building a castle on sand. Rejecting the challenger’s arguments because the government has an interest in protecting children helped in this case, but that logic could be used against us in the next case. A California judge, for instance, might think that protecting children’s welfare means the government can take children away from parents who will not affirm their gender identity. And if conservative judges look at these matters through the lens of history, but do not consider the Christian background principles, then I fear they might not give parental rights or equal protection the respect they deserve if new but faithful applications of old principles arise that are hard to find in the historical record.
For decades, lawyers and judges have been trained like Pavlov’s dog to automatically reject anything having to do with God from legal analysis. But if the Constitution requires us to interpret it according to its original meaning (as I believe it does), and if principles of God-given rights and God-given equality are part of that equation, then we must include them in the analysis.
Matt Clark is the President of the Alabama Center for Law and Liberty, a conservative nonprofit law firm that fights for limited government, free markets, and strong families in the courts. His column appears every Friday in 1819 News. The opinions expressed in this column are those of the author. The views and opinions expressed here are those of the author and do not necessarily reflect the policy or position of 1819 News. To comment, please send an email with your name and contact information to Commentary@1819News.com.
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