American Federalism and Equal Protection: Transsexual Children in Tennessee

On June 18, 2025, the U.S. Supreme Court ruled that a Tennessee law blocking transsexual children from being able to undergo puberty-blockers and gender-changing surgeries does not violate the Equal Protection clause of the U.S. Constitution. The court’s 6-3 opinion in U.S. v. Skrmetti was reported at the time to fall “largely along conservative-liberal lines.”[1] By this is mean ideological lines, both moral and political in nature. Such is grist for the mill for the broad judgment of an electorate, in what is otherwise known as popular sovereignty, which is superior to governmental sovereignty in a republic. Add in the fact that Tennessee is a member-state in a federal system in which the U.S. Supreme Court is on the federal level, and the broad judgment of the electorate takes on more significance to the extent that a federal system of an empire-scale union is in part supposed to take into account and protect interstate ideological differences that defy one-size-fits-all union-level policies. In other words, as cultural heterogeneity can be expected in going from state to state in an empire-scale union-of-states, efforts “from the top” to impose a single policy on every state do not allow the federation to breath. Political pressure could be expected to build over time if such a suffocating tendency eventuates, with the risk of dissolution increasing over time as if depreciation.

The full essay is at "American Federalism and Equal Protection."

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1. Josh Gerstein, “Supreme Court Upholds Tennessee’s Ban on Gender-Affirming Care for Minors,” Politico.com, June 18, 2025.

Gay Marriage: God’s Law, Legal Reasoning, and Ideology

Mixing religion, jurisprudence, and ideology together is one potent drink. Ingestion can cause palpable heart-burn as well as migraine headaches. In the case of gay marriage in the U.S., sorting out and evaluating the three elements can be rife with controversy and thus confusion. In this essay, I discuss the county clerk in Kentucky who refused to grant marriage licenses to gay couples because doing so would violate God’s law and thus betray Jesus. Her religious rationale makes for interesting legal reasoning. I then look at the U.S. Supreme Court’s gay-marriage decision. I contend that a natural-right (and thus human right) basis clashes with ideological anger. Human nature itself is on display throughout, particularly as it wades into religion, legal reasoning, and ideology.

The complete essay is at “Gay Marriage: God’s Law, Legal Reasoning, and Ideology.”

Same-Sex Marriage in the States of Washington and Britain

Reporting on the objections of the Church of England and the Roman Catholic Church to David Cameron’s “contentious plan to legalize same-sex marriage” in the E.U. state of Britain, the New York Times unwittingly followed the European tendency to compare a state in the E.U. with the entire U.S. rather than to a state therein. “In some ways,” the Times contended, the debate in the E.U. state “mirrors arguments in the United States swirling around President Obama’s support for same-sex marriage.” Actually, Obama’s support was not at the time very relevant even in the U.S., as the “action” was occurring in particular states (as in the case of the E.U.).

 

On the of the Times’ report, the Huffington Post reported that the U.S. state of Washington would have a referendum on gay marriage on the ballot in November, 2012. In total, 247,331 Washingtonians signed the petition, passing the minimum of 120,577 needed. Gov. Chris Gregoire, David Cameron’s counterpart, had signed a bill into law the previous February legalizing same-sex marriage. Essentially, the referendum moved the matter from representative to direct democracy. Were a “one-size-fits-all” decision to be reached for the entire U.S., justices rather than an electorate would be the decision-makers. While possibly giving the rights of a minority a “leg up” on majority rule, moving the issue from the people of Washington to apply one decision on the U.S. as a whole was not a given at the time.

Therefore, to relate the thrashing out going on at the time in Britain (and France) to Obama’s campaign stance on the issue rather than to what was going on in the American republics evinces something more than just a category mistake (i.e., treating a state in the E.U. as equivalent to the entire U.S. rather than to a state therein). The dynamic at the level of the E.U. and U.S. is different than that which occurs in a state. Democracy being relatively fort (strong) at the state-level, the juridical protection of the rights of the individual may paradoxically be stronger at the empire-level. Iowa is a notable counter-example, however, on account of the action of the Iowa Supreme Court legalizing same-sex marriage. Perhaps it could be said that majority rule is stronger at the state level and thus more in balance with judicial decision. If so, the E.U. principle of subsidiarity and the U.S. principle of residual sovereignty (marriage being in the realm of the states’ sovereignty though equal protection being a relevant U.S.-level juridical principle) should not be relegated in a race to a central state at the empire-level. At the same time, the U.S. and E.U. need enough power to maintain themselves. Treating a state in the E.U. as if it were equivalent to the entire U.S. (i.e., essentially another E.U. within the E.U.) distorts or ignores these dynamics of federalism.

Sources:

Alan Cowell, “ChurchesChallenge British Government Over Same-Sex Marriage,” The New York Times, June 12, 2012. 

Chris Gentiviso, “Referendum 74, Washington State Anti-GayMarriage Measure, Qualifies for Ballot,” The Huffington Post, June 12, 2012. 

U.S. Senator Rand Paul on Civil Rights and the BP Explosion

U.S. Sen. Rand Paul (R-KY), was the Tea Party candidate who challenged the Republican establishment to win the party’s Senate nomination in Kentucky on May 18, 2010. A day later, he publicly criticized a plank of the Civil Rights Act of 1964. Specifically, he said in an interview with Rachel Maddow on MSNBC television that he supported the sections of the Civil Rights Act that applied to public accommodations but had concerns when it came to its applicability to private business. He had raised similar concerns earlier in the day about the Americans with Disabilities Act in an interview on National Public Radio. Asked by Maddow if a private business had the right to refuse to serve black people, Mr. Paul replied, “Yes.” In so answering, the new senator failed or refused to distinguish private property that is open to the public from private property, such as a person's home, that is not. 

The full essay is at "Civil Rights and the BP Explosion."