By Stuart Gaffney and John Lewis –
After seven months of writing dissents from the Supreme Court’s Republican-nominated supermajority’s decisions upholding seemingly anything that the Trump administration does, Justice Ketanji Brown Jackson had finally had enough. Instead of just dismantling the supermajority’s legal logic with meticulous precision as she had done numerous times before, she simply told it like it is point blank in a dissent she penned last month.
Referring to a fictional game with ever-changing rules in the legendary comic strip Calvin and Hobbes, Jackson described the Court’s recent rulings as “Calvinball jurisprudence with a twist.” She explained: “Calvinball has only one rule: There are no fixed rules. We seem to have two: that one, and [the Trump] Administration always wins.”
Jackson’s words are remarkable because they went beyond the legal arguments at issue in the particular case to address the broader context of the Court’s supermajority’s actions, asserting that something more sinister is going on at the Court. She further opined: “‘[R]ight when the Judiciary should be hunkering down to do all it can to preserve the law’s constraints,’ the Court opts instead to make vindicating the rule of law and preventing manifestly injurious Government action as difficult as possible.”
We immediately wondered: would “Calvinball jurisprudence with a twist” describe the supermajority’s approach to LGBTIQ rights, too? When it comes to marriage equality itself, it likely would not for the reasons discussed in our column last month. However, Calvinball may aptly describe the Court’s jurisprudence in cases brought by conservative Christian plaintiffs who seek religious exemptions under varying legal theories from laws or government actions they claim interfere with their exercise of their religion. Those cases have often pertained to governmental efforts to support or protect LGBTIQ people. In a wide variety of contexts, it seems as if the religious conservatives are highly likely to win.
The most recent example, last summer’s ruling in Mahmoud v. Taylor, is telling. There, the Court supermajority chose to micromanage to an extraordinary degree whether or not a Maryland school district in its curriculum could include books presenting positive and respectful images of LGBTIQ characters in the face of objections from conservative Christian and Muslim parents. The books merely exposed students to positive portrayals of LGBTIQ people, but the supermajority likened classroom use of the books to “instruction that denigrates or ridicules students’ religious beliefs.” The assertion is completely unfounded. The books make no mention of religion at all. Justice Sonia Sotomayor in dissent correctly characterized the messages the supermajority claimed the books conveyed to be “imagined.”
Nevertheless, the Court ordered the public school to notify parents in advance whenever any book with positive LGBTIQ related content “is to be used in any way” and allow parents to opt-out their children from the class. Astoundingly, the Court declared that conservative religious parents had the right “‘to direct the religious upbringing of their’ children”—not just at home or in their church or mosque—but within a secular public school whose mandate is to provide fact-based, inclusive education to all. Justice Sotomayor explained how the practical effect of this newfound right is to “hand a subset of parents a veto power over countless curricular and administrative decisions” in public schools.
When it comes to transgender rights, Calvinball may also be relevant. It is very important to remember that, five years ago, the Court handed the LGBTIQ community a major victory in Bostock v. Clayton County, which held that Title VII’s prohibition on sex discrimination in employment meant that such discrimination based on gender identity as well as sexual orientation was unlawful. Two of the Court’s current conservative supermajority, Justices Roberts and Gorsuch, were in the majority in Bostock, and last term, even Justice Alito acknowledged that the decision was now binding precedent.
However, transgender rights appear very vulnerable in some other contexts, especially given the supermajority’s absurdly reasoned decision last summer in U.S. v Skrmetti, upholding the right of Tennessee to categorically ban gender affirming medical care for trans and gender nonbinary people under 18 years old. Under “Calvinball jurisprudence with a twist,” we fear that the supermajority will generally rule against transgender rights in cases that involve people under 18 and those when the supermajority can cast laws or governmental action protecting trans people as threatening the safety of others—especially children—mirroring an age-old trope employed to stoke queerphobia.
This coming term, the Supreme Court will decide three additional LGBTIQ cases that will shed light on the degree to which Calvinball is operating at the court. On the second day of the term, October 7, the Court will hear a conservative Christian counselor’s challenge on purported free speech grounds to Colorado’s prohibition on conversion therapy for minors in licensed, professional settings. As the state of Colorado explained to the Court in a briefing, “overwhelming evidence” demonstrates “that efforts to change a child’s sexual orientation or gender identity are unsafe and ineffective” and “demonstrably harmful” to children. Accordingly, “laws like Colorado’s exist in 25 states and have the support of every major healthcare association in the country.” Colorado should easily win this case, especially in light of the supermajority’s Skrmetti decision last term, affirming the right of states to regulate medical care for minors as they see fit. But in the era of Calvinball, whether or not it does so remains to be seen.
Later in the term, the Court will hear two cases pertaining to transgender participation in school sports. One challenges the Ninth Circuit’s enjoining enforcement of Idaho’s categorical ban on transgender girls and women participating in any and all girls’ and women’s sports teams “from primary school through college.” The other pertains to the Fourth Circuit’s ruling in favor of a transgender West Virginia middle school student in her challenge to that state’s complete ban on transgender girls participating in all girls’ sports, even clubs and intramural sports. The student at the center of that case has identified as a girl since the third grade, and by taking puberty blockers, she has never had the levels of circulating testosterone in her body that typical cisgender boys do. We know that a reasonable Court would rule in favor of the transgender students in these cases, but again we fear that a version of Calvinball could operate instead.
Stay tuned, stay involved, and stay connected to supportive community as we move forward in these challenging times.
John Lewis and Stuart Gaffney, together for over three decades, were plaintiffs in the California case for equal marriage rights decided by the California Supreme Court in 2008. Their leadership in the grassroots organization Marriage Equality USA contributed in 2015 to making same-sex marriage legal nationwide.
6/26 and Beyond
Published on September 25, 2025
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