The claim that Skrmetti is just a conservative's Roper seems rather disingenuous to me.
Proponents of the death penalty were not and are not claiming justification premised on the laws of other countries. Meanwhile, proponents of prepubescent medical intervention to treat gender dysphoria have long sounded the rallying cry that the US should follow various European countries' progressive policies in permitting such medical intervention; in other words, they opened the door to that discussion. That makes it fair game for the Skrmetti opinion to refute that argument by discussing the more recent trend of those same countries backtracking on such policies.
On the first point (anti-subordination), isn't it possible (and indeed, a correct statement of current law) that we look at subordination to determine if a classification is suspect, but once it is found suspect, we apply the equal protection clause bidirectionally?
So race is a suspect class because of historical legal subordination of Blacks, but since race is a suspect class, a member of any race can make a race discrimination claim.
For an analogy, think of civil rights statutes. There's no question that despite the fact that it was anti-Black discrimination that gave rise to the Civil Rights Act of 1964, that a member of any race can claim its protections if they are discriminated against due to their race,.
Or how about the 15th Amendment (right next to the 14th). It was passed because of denial of the franchise to Black people. But if some jurisdiction prohibited white people from voting, or Asian people from voting, it would surely violate the 15th Amendment.
The only difference between those examples is those are statutes and constitutional provisions and strict scrutiny is judge made. But it works exactly the same. The justification is separate from the scope of the protection.
Thanks, Dilan. There's a lot to say here. Here's a partial response or two. First, as I think you may be implying, a legislature can usually choose its preferred means for achieving the end that it desires, but a court is often (including by Scalia) thought to have to hew closer to the reasons for its actions. Second, I think that the reasoning you describe can be summarized as follows: historical subordination of a group generates awareness of a problem with a classification. But if that is right, then what ultimately matters is the classification. So while awareness of a classification's objectionableness might in fact (contingently) come about through investigation of a group's subordination, that investigation seems neither necessary nor sufficient for the ultimate conclusion--namely, that a classification is in itself objectionable.
There was a point Sutton made in the appellate decision that struck me as very powerful, and I was a bit surprised to see it didn't come up here. Here's how I remember it.
The dissent says that SB1 classifies on the basis of sex because boys are prohibited from getting estrogen, while girls are not, and similarly girls are prohibited from getting testosterone, while boys are not. Grant for the sake of argument that this is right--the ban on cross-sex hormones triggers heightened scrutiny because it classifies on the basis of sex.
The ban on puberty blockers doesn't work that way. Both boys and girls take Lupron to block puberty. So there isn't some medication that's allowed for boys, but not for girls, or vice versa. Here, you really can only explain how the ban works in terms of the purpose of the medication. Everyone is prohibited from getting Lupron, except if they have specific conditions (namely, precocious puberty) unrelated to gender transitioning.
So the suspect classification argument couldn't work to justify the relief the appellants are seeking (namely, not just striking down the ban on cross-sex hormones, but also the ban on puberty blockers).
I admit this seems a bit silly--could it really be that banning cross-sex hormones raises constitutional questions that are not raised by banning puberty blockers? But if anything I think that point is probably helpful for the majority--easier, I think, to argue that banning puberty blockers clearly doesn't involve classifying on the basis of sex, and to then try to get from there to saying that neither does banning cross-sex hormones--though I admit I'm not at all sure.
I'm not an attorney so maybe im completely off base, but I am lost on similarities between saying a foreign law says X so our law should be X, and saying that the most up-to-date research on a medical question comes from a foreign country, so we should weigh that in deciding our laws. It doesn't even seem connected to me, what am I missing?
Thanks. Your question is a good one. Again, there's a lot to say, but I think the following is the biggest point: in Roper, the foreign law was relevant in large part because it was thought to shed light on an empirical question--indeed, an empirical question similar in some ways to one at play in Skrmetti, namely, the ability of minors to understand or appreciate the ramifications of their choices.
Here's a relevant passage from Roper: "It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty, resting in large part on the understanding that the instability and emotional imbalance of young people may often be a factor in the crime."
So the foreign law in Roper was related to empirical views on how minors make, and are affected by, their choices (among other empirical or partially empirical matters). And likewise in Skrmetti.
"resting in large part on the understanding that the instability and emotional imbalance of young people may often be a factor in the crime"
Was this part of the opinion based on scholarship that looked at the motivation behind those foreign law provisions in all those different jurisdictions? Because that seems like a research project requiring dozens (if not more) of scholars from all over the world collaborating.
On the topics of classifications vs. groups, I find it significant that a key link in the jurisprudential chain leading to the identification of gender as a quasi-suspect classification is Craig v. Boren, where a classification that discriminated against men (the OK law set the drinking age at 21 for men and 18 for women) was struck down under the Court's burgeoning intermediate-scrutiny standard. That suggests to me that the correct methodological approach should focus on classifications, not groups.
As always very interesting. As this is a generalist blog I would perhaps encourage a little paragraph at the top introducing the readers to what the case decided...
Thank you for the Roper history lesson. It was new to me and fascinating.
I must admit that, while listening to oral arguments, I found myself screaming that it does not matter what England is doing, they don’t have the same equal protection landscape that we do. We would never yield the lessons/precedence of NYT v Sullivan in response to changes to libel law in Great Britain.
The claim that Skrmetti is just a conservative's Roper seems rather disingenuous to me.
Proponents of the death penalty were not and are not claiming justification premised on the laws of other countries. Meanwhile, proponents of prepubescent medical intervention to treat gender dysphoria have long sounded the rallying cry that the US should follow various European countries' progressive policies in permitting such medical intervention; in other words, they opened the door to that discussion. That makes it fair game for the Skrmetti opinion to refute that argument by discussing the more recent trend of those same countries backtracking on such policies.
The two are not the same.
On the first point (anti-subordination), isn't it possible (and indeed, a correct statement of current law) that we look at subordination to determine if a classification is suspect, but once it is found suspect, we apply the equal protection clause bidirectionally?
So race is a suspect class because of historical legal subordination of Blacks, but since race is a suspect class, a member of any race can make a race discrimination claim.
For an analogy, think of civil rights statutes. There's no question that despite the fact that it was anti-Black discrimination that gave rise to the Civil Rights Act of 1964, that a member of any race can claim its protections if they are discriminated against due to their race,.
Or how about the 15th Amendment (right next to the 14th). It was passed because of denial of the franchise to Black people. But if some jurisdiction prohibited white people from voting, or Asian people from voting, it would surely violate the 15th Amendment.
The only difference between those examples is those are statutes and constitutional provisions and strict scrutiny is judge made. But it works exactly the same. The justification is separate from the scope of the protection.
Thanks, Dilan. There's a lot to say here. Here's a partial response or two. First, as I think you may be implying, a legislature can usually choose its preferred means for achieving the end that it desires, but a court is often (including by Scalia) thought to have to hew closer to the reasons for its actions. Second, I think that the reasoning you describe can be summarized as follows: historical subordination of a group generates awareness of a problem with a classification. But if that is right, then what ultimately matters is the classification. So while awareness of a classification's objectionableness might in fact (contingently) come about through investigation of a group's subordination, that investigation seems neither necessary nor sufficient for the ultimate conclusion--namely, that a classification is in itself objectionable.
There was a point Sutton made in the appellate decision that struck me as very powerful, and I was a bit surprised to see it didn't come up here. Here's how I remember it.
The dissent says that SB1 classifies on the basis of sex because boys are prohibited from getting estrogen, while girls are not, and similarly girls are prohibited from getting testosterone, while boys are not. Grant for the sake of argument that this is right--the ban on cross-sex hormones triggers heightened scrutiny because it classifies on the basis of sex.
The ban on puberty blockers doesn't work that way. Both boys and girls take Lupron to block puberty. So there isn't some medication that's allowed for boys, but not for girls, or vice versa. Here, you really can only explain how the ban works in terms of the purpose of the medication. Everyone is prohibited from getting Lupron, except if they have specific conditions (namely, precocious puberty) unrelated to gender transitioning.
So the suspect classification argument couldn't work to justify the relief the appellants are seeking (namely, not just striking down the ban on cross-sex hormones, but also the ban on puberty blockers).
I admit this seems a bit silly--could it really be that banning cross-sex hormones raises constitutional questions that are not raised by banning puberty blockers? But if anything I think that point is probably helpful for the majority--easier, I think, to argue that banning puberty blockers clearly doesn't involve classifying on the basis of sex, and to then try to get from there to saying that neither does banning cross-sex hormones--though I admit I'm not at all sure.
I'm not an attorney so maybe im completely off base, but I am lost on similarities between saying a foreign law says X so our law should be X, and saying that the most up-to-date research on a medical question comes from a foreign country, so we should weigh that in deciding our laws. It doesn't even seem connected to me, what am I missing?
Thanks. Your question is a good one. Again, there's a lot to say, but I think the following is the biggest point: in Roper, the foreign law was relevant in large part because it was thought to shed light on an empirical question--indeed, an empirical question similar in some ways to one at play in Skrmetti, namely, the ability of minors to understand or appreciate the ramifications of their choices.
Here's a relevant passage from Roper: "It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty, resting in large part on the understanding that the instability and emotional imbalance of young people may often be a factor in the crime."
So the foreign law in Roper was related to empirical views on how minors make, and are affected by, their choices (among other empirical or partially empirical matters). And likewise in Skrmetti.
"resting in large part on the understanding that the instability and emotional imbalance of young people may often be a factor in the crime"
Was this part of the opinion based on scholarship that looked at the motivation behind those foreign law provisions in all those different jurisdictions? Because that seems like a research project requiring dozens (if not more) of scholars from all over the world collaborating.
A very good explanation! Seems correct to me.
On the topics of classifications vs. groups, I find it significant that a key link in the jurisprudential chain leading to the identification of gender as a quasi-suspect classification is Craig v. Boren, where a classification that discriminated against men (the OK law set the drinking age at 21 for men and 18 for women) was struck down under the Court's burgeoning intermediate-scrutiny standard. That suggests to me that the correct methodological approach should focus on classifications, not groups.
As always very interesting. As this is a generalist blog I would perhaps encourage a little paragraph at the top introducing the readers to what the case decided...
Thank you for the Roper history lesson. It was new to me and fascinating.
I must admit that, while listening to oral arguments, I found myself screaming that it does not matter what England is doing, they don’t have the same equal protection landscape that we do. We would never yield the lessons/precedence of NYT v Sullivan in response to changes to libel law in Great Britain.
The conservatives know the answer to which they will arrive; they are now searching for justification to get there.