What exactly is the argument that the Constitution forbids this law? How did the court below find a likelihood of success on the merits (as was required for the preliminary injunction to issue)? It's not a question of whether the statute was a good idea, but whether the statute is impermissible under the Constitution. It's a new question.The NYT article has a link to the opinion, and you have to go there to understand the constitutional argument.
There's a substantive due process ground for attacking the statute — alleging that the parents have a "fundamental right to direct the medical care of their children." The court says:
"Constitutionalizing new parental rights in the context of new medical treatments is no mean task. On the one side of the ledger, parents generally can be expected to know what is best for their children. On the other side of the ledger, state governments have an abiding interest in 'preserving the welfare of children'...."
And there are 2 equal protection arguments — that the law discriminates on the basis of sex and that transgender persons are a "quasi-suspect" class.
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63 comments:
What exactly is the argument that the Constitution forbids this law? - The left opposes it and is unlikely to see its position prevail in the legislatures. Isn't that enough?
QuidProJoe is a demented, crooked, arrogant prick. His rejection of Navy is entirely consistent with his persona.
During a few excursions to DC to testify before Senate committees I observed that they were treated like royalty. Small wonder that a moral and intellectual pygmy like Joe would succumb and think of himself as royalty. Illegitimate granddaughter, meh!
The trannies appeared suddenly and I wonder who started funding this. They were 0.01% of the population then, suddenly, we have an epidemic of adolescent girls who want to mutilate and sterilize themselves. The Medical Profession shares some of the blame as it has abandoned science to embrace a fad.
If you can pass laws outlawing female circumcision, you can pass laws banning transgender surgery.
Think hard, judges! If it’s ok to sexually mutilate children, quite Constitutional in fact, why, oh why should it be impermissible to simply fuck them? And that what this is all about, after all. Democracy! And all that.
I know what's best for my six-year-old son, and what's best, because I see him playing with dolls instead of trucks, is to lop off his dick and give him hormones. It's what all the really cool moms are doing at my school.
This is a fuller topic than my comment. But this stuck in my craw.
On the other side of the ledger, state governments have an abiding interest in 'preserving the welfare of children'...."
This is not apparent by their laws and actions. It seems to be an empty statement when matched up to a reality of 1,000,000 aborted babies per year. Awful public schools that keep Black American children locked in a cycle of poverty, parents unable to choose a better school that might offer the next generation a way up and out. Or government sanctioned faddish surgery that cuts of body parts from kids.
These do not seem like the track record of a system showing an abiding interest in the welfare of children.
The legal system isn't the last word. The citizens might conclude that perverts have taken over control of the system. The question at hand is can the legal system save itself.
Ah yes, a substantive due process argument based on the existence of a mental illness, gender dysphoria.
Substantive due process assumes its rightful place in American jurisprudence.
Meanwhile, the Court debates whether or not the delusions of children who are not old enough to drive and their neurotic parents require constitutional protection.
"'quasi-suspect' class"
You can say that again.
We are allowing the wacked out left to destroy our children.
What exactly is the argument that the Constitution forbids this law?
I'm told it has something to do with penumbras and emanations...
Courts doing that has been the case for decades. He is long past the point where he can legitimately bitch about it.
While I lean toward parental rights, I do think there are limits to that authority. Parents cannot starve their kids, cut off limbs, give them drugs not prescribe by doctors. They cannot remove appendixes without need. And no minor can get a tattoo even with parental consent. I am fine with other permanent changes being restricted until the children are able to give informed consent. There is simply no compelling medical studies that say these therapies are the only option, so erring on the side of caution is prudent.
The discrimination on the basis of sex argument is specious.
Don’t do drugs and don’t permanently mutilation your children.
My head hurts. Make it stop. Please.
Another good law post by Althouse.
Judge Sutton (6th Cir.) wrote that court's decision in Obergefell v Hodges, the Circuit Court decision that set up the seminal SCOTUS case. (The set-up was that the 6th Circuit decision created a conflict among the Circuits. Previously, all Circuits that had heard the same-sex marriage challenges had decided that there was a Constitutional right. The 6th Circuit was the first to say no to that proposition.)
Sutton is a solid, principled and thoughtful conservative. His decision in Obergefell is worth reading.
"What exactly is the argument that the Constitution forbids this law?"
Well, if it's textual language you want, it ain't there. OTOH, the 10th Am. provides the text for the opposite.
...alleging that the parents have a "fundamental right to direct the medical care of their children.
I'm sure Jehovah's Witnesses and Christian Scientists might have a comment.
Parents of kids denied treatment because a drug is 'not FDA approved' might as well.
"a substantive due process ground"
IOW, the usual BS.
"the parents have a "fundamental right to direct the medical care of their children""
As anti-vaxxers will be pleased to know.
As was ultimately shown on the abortion issue this question is best dealt with by the legislatures of the state, not the courts. Roe V Wade should have taught the courts some modesty on social issues.
As was ultimately shown on the abortion issue this question is best dealt with by the legislatures of the state, not the courts. Roe V Wade should have taught the courts some modesty on social issues.
As a comedian has pointed out, there are no trans babies. There are babies who have mentally ill mothers. There are mentally ill men who are taking a course of drugs, thanks to the CDC, so that they can 'chestfeed' babies with drug-laced milk.
The State has an interest in protecting kids from their mentally ill caregivers who will abuse children for their own sick and perverted ends.
If a child thought he was a dog, would it be unconstitutional to ban the attaching of tails to such children if the parents agreed to it and they could find a doctor who would do it? If a child thought she was too angry and violent, would it be unconstitutional to ban frontal lobotomies if the parents agreed to it and they could find a neurologist to perform the procedure? I can do this all day long, but I hope the point is obvious- we can use the law to protect children from the depredations of their parents, their doctors, and themselves, and we have done this for the entirety of the existence of the United States and its constitution. The biological and physical mutilation of children should be strictly constrained by the law until they are adults and, even then, there are going to be some limits to what you can legally do yourself in this regard- this has always been true.
Speaking of the law and cases working their way to the Supreme Court, Bari Weis's latest column on the subject (specifically in contradiction to Biden's statement that this is "not a normal" court) is informative, unlike most articles about recent rulings. Some facts she presents about the term that just ended to support that premise:
1. 50% of the Supreme Court’s decisions were unanimous
2. 89% of the decisions had at least one liberal justice in the majority
3. Only 8%t were decided with the six Republican appointees on one side and the three Democratic appointees on the other side
4. That means only 14 cases last term were decided that way
5. This term was the lowest number of straight ideological split decisions in the last six years [emphasis mine]
Ms. Weis closes with a quote from Jeannie Suk Gersen, a professor at Harvard Law School, "There’s a version of this in which every decision ends up being a form of expression. For example, take all of us as writers and content producers. Do we want to be compelled to provide, say, our ghostwriting or editing services to somebody who comes to us and says, 'Actually, I want to write a book that is a screed against gay people?'
"Do I want to be compelled to do that? I absolutely do not." [emphasis mine]
As the saying goes, read the whole discussion and or listen to the podcast. It's one of the few intelligent discussions of the recent rulings I have seen. And I'll note that the subject of Althouse's post will absolutely end up before this court. The injunction looked sketchy to me and obviously an appeals judge agreed. This transmania infecting progressives is a long way from over so far as litigation goes.
I can live with the adoption of a constitutional right to raise your children as you deem morally just. But does that apply to gay conversion therapy or the rights of parents to know it the school is using new pronouns.
This seems like a "careful what you wish for" legal theory on behalf of the trans activists. The constitution doesn't just protect the rights of people to do the things you like.
The court discarded the quasi-suspect class argument by noting that it has no real judicial basis here, and that the Supreme Court is currently cutting back on suspect classes, and not making new ones. The result is Rational Basis review of the statute, which the statute easily passes. Under this standard, all that a statute really needs is a legitimate government purpose, and protecting minors from permanent sterilization was sufficient for that. The state has the power to prevent minors from buying tobacco and alcohol, driving cars and guns, etc. So preventing voluntary sterilization of minors is well within the state’s power. To fail judicial scrutiny, the plaintiffs needed at least Intermediate, and preferably Strict Scrutiny. And that would have required that the court accept their quasi-suspect class argument. It shouldn’t have, and didn't.
The 2nd Equal Protection argument was just as easy to reject - the law did not, in fact, discriminate on the basis of sex (which traditionally faced Intermediate Scrutiny). Both M2F and F2M surgeries and drugs are equally banned for minors. Both sexes are treated identically. No EP rights violated there. That was for a Facial challenge - an As Applied analysis might have different results, but the challenge was Facial. They needed to get transgendered to be a (brand new) quasi-suspect class, and the court was having nothing to do with that.
Compare laws preventing minors from working some jobs, or work hours. CDL drivers need to be 21, for interstate work.
Parents get no say. The government says parents can't be trusted.
So should genital mutilation of boys and girls for religious reasons be permitted?
John Henry
After all the years of conservatives decrying “Big government!”, they have shown their true colors by embracing big government control over human freedoms when it comes to a woman's autonomy over her body and now the rights of parents to make medical decisions for their children. So one must conclude that conservatives now believe government knows how to make medical decisions for women and parents better than women and parents themselves can. Seems as if it’s not tyranny when conservatives want to employ that sort of power when it comes to their preferred issues.
The hypocrisy is right in your face.
Yikes. Civilized Judges have suddenly appeared out of hiding. Keep on praying to the King of Kings that those in authority over us are wise men and women.
There's a substantive due process ground for attacking the statute — alleging that the parents have a "fundamental right to direct the medical care of their children." The court says:
Parents do not have the right to mutilate or sterilize their children
That's why we have law prohibited "child abuse". The idea that there's some sort of Constitutional Right to do something that was never done 5-+ years ago is quite literally insane
And there are 2 equal protection arguments — that the law discriminates on the basis of sex and that transgender persons are a "quasi-suspect" class.
1: As none of the people passing any of the relevant amendments, or the written US Constitution, made any public arguments for the protection of "trans rights", they are not something protected by the US Constitution.
Even Bostock didn't claim there's US Constitutional protection for "trans rights"
2: There is absolutely no sex discrimination in these laws. Everyone is being "denied" "puberty blockers", regardless of their sex.
And the doctors aren't being allowed to screw with your actual body chemistry, regardless of your sex.
Unless you have a Constitutional Right to use any public bathroom, regardless of the sex marked on said bathroom (and I don't know of anyone insane enough to claim that), then you don't have a Constitutional Right to have the other sex's sex hormones injected into you.
And if you did, then sports rules banning testosterone injections in female althetes would be a violation of their Constitutional Rights
Presumably, the tendency of humans to care for their children is an evolved trait. That would mean that the trait caused its genetic basis to become more common in the population. But if it its prevalence is waning, you would begin to see more and more "unnatural mothers" who torture and mutilate their children to suit some twisted predilection. It may be that the tree of evolution must be watered from time to time with the blood of innocent children.
under our Living Constitution.. Isn't ANY THING the left wants, by definition; constitutional?
"There's a substantive due process ground for attacking the statute — alleging that the parents have a 'fundamental right to direct the medical care of their children.'"
But it's not medical care. There's nothing physically wrong with these children.
But let's for the sake of argument pretend that it is medical care. If parents now have the constitutional right to decide whether the child gets his dick cut off, does the parent also have the right to decide if the child gets a covid shot? Or perhaps an abortion? Or does this newly discovered right to control a child's medical care only apply to "gender affirming care"?
There isn't a need for such nuanced reasoning. Three generations of idiots and the resulting forced sterilization should be more than enough reason to fearful of when the federal courts give reign to whatever passes as medical knowledge at a time. There is really no proof that transgenderism is a real thing in a biological sense and it is instead a body dysmorphia issue. A fully grown adult can decide if permanently altering their body is a choice they wish to do to accommodate their dysmorphia. Parents on the other hand do not have the freedom to mutilate their children for ideological pseudoscience.
Tough sell for me. Properly belongs in the individual state legislatures. Even if that means people in California can legally mutilate their children. But it is not a matter for Federal law, and certainly is neither banned nor inscribed in the Constitution.
If a parent wants to cut off an arm for no medical reason, is that protected? Protecting kids from delusional parents is the job of government. Trans-surgery and hormone replacements are nothing but child abuse in the name of "gender-affirming care." These treatments sterilize kids.
"Life-tenured federal judges should be wary of removing a vexing and novel topic of medical debate from the ebbs and flows of democracy by construing a largely unamendable federal constitution to occupy the field."
This applies to many areas of the law and I’m pleased to see it catching on as a legal philosophy. For instance, the SC recently recognized that it applies to abortion.
I have to suspect that a "quasi-suspect class" is a long-winded way of sayin "not a protected class."
As to the basis for the State's authority to prohibit procedures that mutilate children, that's part of the State's general police powers, and needs no further support. The question then is whether the exercise of that police power violates someone's rights under the US Constitution. Which amendment authorizes the mutilation of children?
Parents can't direct physicians to perform amputation of healthy limbs due to psychological issues in a child. Why may they remove breasts or a penis for a child's psychological issue, when longstanding efficacious but non-surgical treatments have existed for decades?
First, do no harm. Seems appropriate here.
There's a substantive due process ground for attacking the statute — alleging that the parents have a "fundamental right to direct the medical care of their children."
Says the folks advocating to have school teachers and administrators not tell the patents when a child thinks they are trans (https://nypost.com/2023/03/08/us-public-schools-conceal-childs-gender-status-from-parents/).
Did anybody think to write something along those lines when Roe was wrongly decided.
"Life-tenured federal judges should be wary of removing a vexing and novel topic of medical debate from the ebbs and flows of democracy by construing a largely unamendable federal constitution to occupy the field."
Shorter: Leave it to the experts.
Sutton is a solid, principled and thoughtful conservative.
From someone who absurdly claims to be a Life Long Republican.
What is it about fake Republicans like Chuck, Judge Sutton and the Lincoln Pedophile Project members?
Is it a secret "minor attracted" society?
There is something really wrong with these people.
The Nebraska Jacobins rejoiced when the trial judge in Arkansas struck down the law as unconstitutional. The Eighth Circuit will reverse. The Sixth Circuit was correct here. The State has a compelling interest to protect kids from their lunatic parents and greedy doctors. This is all experimental. It is also child mutilation.
The ripples of the USSC abortion decision are speading. Many formerly watertight vessels shall be swamped.
"Just because you want to doesn't mean you may."
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Where have I heard that?
Good for that judge. Judges - and especially justices - should be inherently reticent to the point of being adverse to concluding an action is either constitutionally prohibited or constitutionally mandated.
I've spent some time giving thought to how the Constitution might require a super-majority of the Supreme Court justices before any such conclusion could be reached but I'm not sure that would be much of a solution and might have worse downsides.
A ban depriving chicken hawks of fresh meat.
CA State Sen Scott Wiener will swoop in talons out.
LLR-democratical and Violent Homosexual Rage Rape Fantasist Chuck: "Sutton is a solid, principled and thoughtful conservative."
Maynard: "From someone who absurdly claims to be a Life Long Republican.
What is it about fake Republicans like Chuck, Judge Sutton and the Lincoln Pedophile Project members?
Is it a secret "minor attracted" society?
There is something really wrong with these people."
Indeed, LLR-democratical Chuck has passionately defended the radical far left trans agenda and insists, quite aggressively, republicans should completely abandon and surrender all culture war policy battles to the democraticals.
This was the very same message preached by Paul Ryan at, of all places, the Reagan Library.
You will also recall LLR-democratical Chuck has a long history of professed violent fantasies against conservative women that dare challenge the democraticals policy dogma as well as a years long history of quite unhealthy fixation on the underage children of certain republicans.
All in all, I believe we have enough self-reported evidence on the Banned Commenter Chuck to draw some fairly obvious conclusions.
Drago - Chuck’s post was in support of upholding the Tennessee law.
Do you support the mutilation and children?
Seems as if it’s not tyranny when conservatives want to employ that sort of power when it comes to their preferred issues.
If you think preventing parents from mutilating their children = supporting 'big government' you're even stupider than I thought.
The hypocrisy is right in your face.
And there is nothing hypocritical about remanding abortion back to the states where it should've been all along. It's the precise opposite of big government.
That's why conservatives support the decision.
AMDG: "Drago - Chuck’s post was in support of upholding the Tennessee law.
Do you support the mutilation and children?"
AMDG, my comment was in response to Maynard's comment which in response to LLR-democratical and Violent Homosexual Rage Rape Fantasist Chuck's post.
I am sorry you were unable to follow that otherwise you would have posed your question to Maynard.
I sense you are rather desperate to win "teh interwebs" for the day as your preferred candidate for the republican nomination continues to underwhelm on the presidential campaign trail, as many of us thought he probably would from the beginning for any number of reasons already explicated at length.
I suppose your last comment dressed up as a "question" may be the "best" arrow you believe you have remaining in the rhetorical quiver to deliver a real "blow" for Team DS!
Better luck in the future.
John henry said...
So should genital mutilation of boys and girls for religious reasons be permitted?
For females female circumcision is no doubt "female genital mutilation", FGM.
For males? Well, not so much. There are some males who obsess over the loss of some floppy skin that cannot even remember having, most of them being homosexuals. But for the rest of us? I've never given it a second thought.
A few females (only a select few who I could bring up such a subject with) prefer circumcised males. 100% of those few. So there's that.
Missing it doesn't seem to interfere with sexual pleasure for the male- not that I can tell. And it certainly has no effect on procreative ability- we have 5 children.
Healthwise it appears better not to have a foreskin. I understand they're a pain to keep clean- especially for an infant. If sexually active with multiple partners, the circumcised are less likely to get STDs. But if you play around enough, that makes those odds meaningless. Far less likely to become infected in that part of the anatomy. And IIRC, penile cancer, as rare as it is, is more common in the uncircumcised. Seems the health benefits weigh in favor of circumcision. Having it done before you'll develop any memories of the operational trauma seems a better option then those who later have it removed for medical reasons. I've read it's not particularly pleasant when you're older. All 4 of ours males were circumcised. The female nurses tried to talk my wife out of the decision, the male doctors and nurses (and hospital corpsmen) approved. The female doctors never offered an opinion.
I had my tonsils removed at an early age- 7 or 8. Doctors absolutely refused to remove our kids tonsils when they were kids. Two as adults have finally had them removed. It's a lot worse having that done as an adult. They're much happier and healthier without them
From what I've read, if doctors are doing abdominal surgery near the appendix, they remove it while they're there, even if it's perfectly healthy. No really good reason not to. Not like it's doing anything there.
Some people, a very few, are born with actual vestigial tails. Which are for the most part surgically removed. Should that be prohibited or is it the right thing to do. I go with the right thing to do.
Another delightful example of Inga believing that plopping words in a comment box is the same as thinking:
After all the years of conservatives decrying “Big government!”, they have shown their true colors by embracing big government control over human freedoms when it comes to a woman's autonomy over her body and now the rights of parents to make medical decisions for their children.
“How can you claim to believe in liberty if you won’t even let parents murder and mutilate their children?!?!”
What was most interesting to me in that article was the opening words of the sentence "Life-tenured federal judges." I think the author's rhetorical purpose is to do some kind of implied "privilege" criticism--"These guys have tenure for LIFE!" But what it suggested to me is maybe its really important to have long-serving judges so that at least SOMEBODY remembers enough of the past to recognize that this whole suite of issues is a kind of social-media-generated hysteria that was born around 2014 and didn't rise to prominence until about 2017. It seems like a good thing that there MAY be a few people who would resist the "THIS IS AN EMERGENCY AND WE MUST DO SOMETHING RIGHT NOW!" social pressure. We make kids wait until they're 18 for a fair number of things--even WITH parents' permission they can't go work in a mine or on a commercial fishing boat, or in some states get a tattoo, enter into certain kinds of binding contracts, work in the sex industry where that is legal, etc. So waiting a year or two before making irrevocable changes doesn't seem like a terrible burden, and it's encouraging that at least SOMEONE in the power structure recognizes this.
Funny how these same people never have these concerns when a left leaning justice smacks down a more conservative law.
Funny how these same people never have these concerns when a left leaning justice smacks down a more conservative law.
Immanuel Rant said...
I have to suspect that a "quasi-suspect class" is a long-winded way of sayin "not a protected class."
Immanuel for the win
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