By Ann Rostow–
Damn This Court
I’ve had an extra week off between columns, and when I checked my last news report, I realized that I only discussed two issues: first, the High Court’s ruling in Skrmetti, allowing states to outlaw medical care for transitioning youth, and second, a description of some lesbian venture capitalist who was accused of wasting investor funds on living the high life with her female “business partner.” Left by the wayside were all the other ups and downs of our vibrant community, but now, weeks and weeks have passed us by and these items have vanished into the hazy netherworld of old news. Please accept my apologies for depriving you of a comprehensive account.
Today, my news list begins with yet another anti-GLBT opinion from the Supreme Court, this one a 6–3 ruling that forbids school districts from adding five gay-themed books to library reading lists without allowing religious parents to opt out.
Well, you might say, what’s the big deal? Just let those loonies pull their kids out of school if their knickers got in such a twist. And that would be fine if, let’s say, GLBT reading hour was scheduled in advance for Monday at 10 am. But these books were part of a large collection of kids’ literature that included tons of books of all kinds and all subjects. It sounds as if the reading time was somewhat random as well, making it impossible to opt out of any and all encounters with what the religious parents considered disturbing content. Further, there are plenty of legal precedents stating that faith cannot be used to bow out of generally applicable laws or policies, and that schools cannot be expected to carve out specific learning plans to suit parental whims.
“Innumerable themes may be ‘contrary to the religious principles’ that parents ‘wish to instill in their children,’” wrote Justice Sotomayor in dissent (quoting Alito’s majority opinion). “Books expressing implicit support for patriotism, women’s rights, interfaith marriage, consumption of meat, immodest dress, and countless other topics may conflict with sincerely held religious beliefs and thus trigger stringent judicial review under the majority’s test. Imagine a children’s picture book that celebrates the achievements of women in history, including female scientists, politicians, astronauts, and authors. Perhaps the book even features a page that states, ‘Girls can do it all!’ That message may be directly contrary to the religious principles that ‘a parent wish[es] to instill in their chil[d].’ In the majority’s view, it appears, that is sufficient to trigger strict scrutiny of any school policy not providing notice and opt out to objecting parents.”
Strict scrutiny, as you may know, is a legal test so onerous that a state or employer or some other authority is almost never able to make a case for an offending policy. Alito managed to contort himself into imposing strict scrutiny on the Montgomery County (Maryland) Board of Education, a test they predictably failed.
“This Court has made clear that mere exposure to objectionable ideas does not give rise to a free exercise claim,” wrote Justice Sotomayor elsewhere, referring to the more sensible Courts of times gone by. “That makes sense: Simply being exposed to beliefs contrary to your own does not ‘prohibi[t]’ the ‘free exercise’ of your religion … . The Constitution thus does not ‘guarantee citizens a right entirely to avoid ideas with which they disagree.’”
In the Bleak Mid-Summer
It’s hard to focus on cases like the aforementioned storybook lawsuit or the transgender health ban when the same court has also given a temporary green light to ending birthright citizenship, an explicit part of the text of the Constitution, allowing mass firings of public employees, and saying okay to closing a cabinet department without debate or process. These were done through the infamous “shadow docket,” where justices can rubber stamp or shoot down the rulings of lower courts without written explanation, but the Roberts Court seems unlike any High Court bench in American history. Even those Courts that came up with outrageous decisions back in the day were reflecting the open racism of their time, but Roberts and company seem to be operating outside the law.
As legal commentator Chris Geidner wrote on his Law Dork blog, Roberts “is looking less like the conservative institutionalist that he sought to present himself as for the first 15 years of his time on the court and more like a Republican senator who might say behind closed doors that he disagrees with President Donald Trump’s methods but then votes right along with the most MAGA senator.”
His “presumptive decision to assign the [storybook case] opinion to Alito,” Geidner wrote elsewhere, “is yet another mark of ignominy on Roberts’ increasingly irredeemable time as chief.”
Unfortunately, our Supreme Court coverage is far from done. The Court has accepted another big GLBT case, to be heard when these bozos reconvene in October. That, by the way, is when their next session begins, but they still manage to cause trouble in the summer months as well.
As Geidner reports, the Court recently turned away petitions from the parents of transgender kids who were trying to make a separate argument in favor of transition health for minors. Parental rights are considered “fundamental” in constitutional law, and parents of transgender kids have argued that the bans on any medical intervention, including puberty blockers and hormones, interfere with these guaranteed rights. In the Skrmetti case, which was accepted in 2024 and decided last month, the Court only accepted an Equal Protection question that asked why trans kids could not have puberty blockers in Tennessee, while some cisgender kids could.
Let’s not go into the Court’s answer again, but let’s note that the Court decided not to hear a separate challenge, with a separate argument, from parents. Now the Court has rejected the Tennessee parental rights case (along with another from Kentucky), tossing the mothers and fathers of transgender children under the bus while bending over backwards to make sure religious parents don’t have to expose their kids to a handful of innocuous stories about gay people.
At the same time, the justices sent four transgender victories back to the lower courts for reconsideration in view of their nasty piece of work in Skrmetti. That signals that the lower courts are expected to reverse themselves and nullify the successful outcomes. The U.S. Court of Appeals for the Seventh Circuit took immediate action by vacating its most recent trans-friendly high school bathroom ruling.
And the big new case? You knew it was coming. The High Court has decided to take two cases concerning transgender sportswomen, one out of Idaho and one out of West Virginia. The laws against transgender athletes were shelved by the Ninth Circuit and the Fourth Circuit respectively, citing the Constitution and Title IX’s ban on sex discrimination in public education. Considering we will be returning to these cases and this subject repeatedly for the next year, let’s not pursue the details right now. It looks as if the Court is methodically mowing down the hard-fought legal precedents we’ve worked to achieve in the last quarter century, cementing anti-GLBT legal presumptions into American jurisprudence for a generation to come.
Now What?
I’m a boomer, so my time has come and gone. We have walked with Xers up a laborious path, making progress bit by bit. We’ve had victorious moments; the end of sodomy laws, the legalization of same-sex marriage, and most importantly, the rise of national majority in support of our civil rights. I don’t believe marriage equality can or will be rolled back, but I do believe this Court will chip away at it by allowing “faith-based” objectors to refuse to acknowledge us without facing the civil rights laws we worked so hard to put in place.
The rest of our accomplishments are being trashed by the three branches of government as I write. I’m not sure what our Millennial and GenZ compatriots can do to slow the hateful momentum, but I applaud whatever they come up with. For starters, we can get one of those branches back on our side in 2026.
arostow@aol.com
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