Attorneys Rita Peters, Michael Farris, and Robert Kelly filed an amicus curiae brief (“friend-of-the-court” document) with the United States Supreme Court last week in the case of United States v. Skrmetti, arguing that the federal government may not infringe upon the states’ policymaking authority.
In that pending case, the U.S. government claims that a Tennessee law prohibiting gender transition treatments for children, Senate Bill 1 (SB1), violates the Equal Protection Clause of the Constitution.
According to the brief, which was filed on behalf of Citizens for Self-Governance (CSG), such legislation falls under Tennesee’s constitutionally protected jurisdiction.
“In their zeal to protect liberty, our Constitution’s framers devised multiple divisions and separations of power,” the brief states. “Not only did they distribute power at the national level among three separate, co-equal branches, but they carefully protected a more fundamental division of power between the national government and the states. We commonly refer to the former division as ‘the separation of powers,’ and the latter as ‘federalism.’ Both are essential to the proper functioning of our constitutional system.”
The brief argues that were the Court to rule against SB1, it would “engage in brazen overreach” and trample separation of powers and federalism. It would amount to an improper constitutional amendment and grant appointed justices authority over Tennesee’s elected legislature.
“[T]o the extent that this Court expands upon the constitutional limitations that are, in fact, in the text [of the Constitution],” the filing explains, “the Court effectively makes an illegitimate amendment to the Constitution, usurping the function of lawmaker and subverting Article V’s prescribed process for constitutional amendment.”
The Equal Protection Clause of the Fourteenth Amendment, which bars discrimination under the law, has been touted as a possible refutation of the Volunteer State’s gender reassignment ban. However, as the brief points out, the bill “does not distinguish at all between males and females; it prohibits gender-transition treatments for minor males and females alike.”
On those grounds, it becomes clear that the federal government has no business meddling in what is clearly a state-based issue.
However, the brief adds, “even if SB1 could be deemed to treat some individuals less favorably than others because of their sex, it must still be upheld if it is supported by a sufficient government interest.”
“SB1 satisfies that test. It seeks to protect all children by prohibiting certain sex-altering medical treatments until they attain the age of majority. It shields them from making a life-altering decision at a point in their development where there is still a likelihood that they will change their minds. This government interest clearly has no basis in prejudice, nor is it based on mere stereotypes about males and females. As the Sixth Circuit stated, ‘A concern about potentially irreversible medical procedures for a child is not a form of stereotyping.’”
CSG’s masterful brief closes every possible loophole: not only is SB1 constitutional, but any attempt to overturn it at the Supreme Court would be an egregious attack against the sovereignty of the Tennesee state legislature.
Oral arguments in United States v. Skrmetti are scheduled for December 4, 2024.
If the federal government has become powerful enough to reverse constitutional state laws over purely political matters, it has, indeed, overstepped its bounds. We must be ever vigilant to ensure that the Republic-preserving principles of the separation of powers and federalism are faithfully upheld.
Whenever any branch of the federal government fails to protect that delicate balance, “We the People,” through the proper use of Article V, must act to restore it.
