Wednesday, June 26, 2024

Part I

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SCOTUS Takes Up Case About Transgender Treatments for Youth: Stage is Now Set For a Huge Ruling Next Year, With So Much on the Line

Now, this week in the year, virtually every year, all eyes are on the Supreme Court of the United States, and that is because this final week of June is typically the week in which some of the most important decisions are announced by the court. The reason for that is the court’s summer recess. The new term begins when the fall begins. The justices traditionally, if not only, taking a break from the court, many of them have traditionally left Washington D.C. And that’s why this last week of June has often been laden with announcements of cases’ handed down decisions that have shaped American history.

Now, here’s the thing: this year we’re looking at an unprecedented number of those cases not yet decided, and we’re running out of June. We’re running out of June fast. And so, typically, as we’re looking at the business week, we have today, and Thursday, and Friday, and that’s it. And the court’s clerk had announced that at least some decisions would be handed down today. We do not yet know what those decisions are, and certainly we don’t know how those decisions came down and were decided. We’re going to have to look at this very, very carefully, and we’re not going to have much time. And add to that, that in an unprecedented development, the first presidential debate of the 2024 cycle is going to be taking place on Thursday night. And so we really are looking at some massive headline news coming at us over the next couple of days. And right now, we don’t even know exactly how they’re going to rank, or exactly what they are. So, in other words, we better buckle our seatbelts, we’re about to have a wild ride.

But at the same time, the Supreme Court of the United States made big news, very important news for us this week, when it announced not a case that has been decided, but rather a case the court has decided to take up. In this case, the Supreme Court has agreed to take up the question as to whether or not there is some kind of Constitutional right for teenagers to receive so-called gender-affirming care. We’re talking here of course about gender or sex reassignment. We are talking about something that at least 24 states have moved to make illegal. 24 states at least have moved to restrict access of minors, and, of course, they would put it this way, to lessen the risk and eliminate the exposure of minors to the dangers represented by hormonal treatments and, of course, even more radically, surgical interventions.

So remember, 24 states have adopted some kind of restriction here, and yet you have these cases bubbling up from all over the country in which parents and others, activist groups on behalf sometimes of those identified as the teenagers or young people, are claiming that this is a violation of their Constitutional right, presumably a Constitutional right not only to declare whatever your gender might be, but also a Constitutional right on the part of these children and their families to demand what they would define as appropriate medical care. And of course here we are talking about sex reassignment surgeries, we’re talking about hormonal treatments. We are talking about denying biology, denying anatomy in order to make a point central to the liberationist ideology of the revolutionaries, not only on sex, but on gender, LGBTQ , and just remember that plus sign at the end, because this list is going to go on.

Now, the specific state law that is now taken up by the Supreme Court in its next term comes from the state of Texas in an appeal against that law US Circuit Judge Jeffrey Sutton had written for a two-one majority, stating, “Under these circumstances, it is difficult for anyone to be sure about predicting the long-term consequences of abandoning age limits of any sort for these treatments.” Now, you would think on the one hand that would just be common sense. You would also have to reflect for a moment, this is something that no previous generation of human beings has ever considered, much less gone so far as to claim, insanely enough, as a Constitutional right. But it’s also very interesting and, frankly, troubling to understand, that these cases are coming with the argument that parents have the right to demand these kinds of treatments for their teenage offspring.

And this reminds us of the recent developments that have taken place in the United Kingdom where the medical establishment there, in contrast to the medical establishment here, has now turned away from these procedures, shut down Tavistock, its main adolescent sex or gender reassignment center, and frankly has been issuing warnings about the fact that these treatments do more harm than good. Now, the way it’s often stated in defensive terms is that there is no adequate evidence that these treatments, as they are called, is bringing about actual good. But the reality is, they’re deathly afraid of the actual harm. But again, that case is going to be heard by the Supreme Court in the coming fall, and a decision on that case, important as it will be, is not expected to be handed down until June of next year, which takes us back to this week and the fact that we are awaiting right now some very big decisions.

But before leaving this issue, I want to point out that yesterday’s print edition of USA Today had a major article on a controversy coming from the state of Texas. So the case that the Supreme Court just announced it’s taking on the question of so-called transgender treatment for teens, that’s coming from Tennessee. The controversy I’m talking about right now is in Texas, and it has to do with the largest children’s hospital in the country, which is Texas Children’s Hospital, and the fact that a doctor, a surgeon who had been connected to that children’s hospital was a whistleblower recently, calling out the fact that even as the center had said that it was not continuing hormonal or surgical treatments for teenagers, when you’re looking at the entire realm of gender reassignment, or as the other side calls it, “gender affirmation” or “gender-affirming surgery,” the doctor in this case is telling us that it was all a lie, that the medical center was actually moving forward with those treatments.

And this came after just a month earlier the Governor of the State, Greg Abbott, Attorney General Ken Paxton, and others had announced that “sex change procedures on children amounts to child abuse under the Family Code in Texas.” Now, that’s not so much a new law as it was a statement that as the Governor and the Attorney General see the issue, the Texas Family Code already would make clear the warnings against child abuse. And the Governor and the Attorney General said that they would include sex change procedures as forms of child abuse. Warning to parents. In the aftermath of that, the Texas Children’s Hospital had announced that it was not continuing hormonal or surgical treatments when it comes to adolescents and young people.

But Dr. Eithan Haim, a surgeon there, at least at that time with the medical center, came back and said, “That’s a lie. They are indeed continuing those procedures, and in particular, hormonal treatments, including a hormonal implant on a young child.” In the words at USA Today, the doctor accused the medical center of continuing “transgender medical interventions” on minors, over against the public announcement and assurance given by the hospital that it was doing no such thing. Now, here’s where the story gets really convoluted, because it is the surgeon who had blown the whistle on this situation, who is now facing criminal charges, or at least was facing arrest and investigation for having gone public with these cases. And even as he did not release the names of the young patients involved here, he was accused of violating HIPAA, the federal law that protects patient privacy information.

Now, those who are defending the doctor, and I think they’re on the right side in this, are saying, now, here’s a whistleblower, and he did not violate the law. But it tells you something about the political influence of the LGBTQ movement, that they were able to convince at least some, and in this case, we’re talking about federal officers, to take action. And that makes sense, since the Biden administration has made very clear its political and legal administrative support for, frankly, the entire LGBTQ array of issues, and that includes the transgender issue and even medical treatments, surgical and hormonal interventions for transgender teenagers, for minors. And we have the President making that assurance himself, along with other senior leaders in the administration.

But here we’re talking about the intersection of this kind of vast moral issue, the claim that this is some kind of Constitutional right, and now intervention by federal law enforcement when a doctor, a surgeon who had blown the whistle, is instead now facing what may well be criminal charges. City Journal published by the Manhattan Institute has covered this issue pretty thoroughly, and at least according to some of the documentation in this journalism, there may be “potentially hundreds more children” who have received this kind of either hormonal or surgical intervention.

So it should be clear when you put these two stories together, the one coming about a law in Tennessee, the other about a doctor in Texas, you come to understand these issues are now unavoidable. And that almost assuredly explains why the Supreme Court announced this week it’s decided to go forward with a full hearing of at least one case concerning teens, minors, that is to say, and transgender treatment. So it’s going to be a very important case coming next year, but even today, we are awaiting big decisions to come. When they come down, we’ll address them.

Part II

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Democrats’ Ad Campaign Targets SCOTUS: Remember the Future of the Supreme Court is On the Line in Every Presidential Election

Meanwhile, as we think about the Supreme Court, The New York Times yesterday ran an article underlining something we knew was going on, but it’s really interesting to see how it’s going on. The New York Times headline is this, “Supreme Court Will Be Focus of Ad Campaign By Democrats.” Nick Corasaniti, who’s the reporter for The New York Times on this story, tells us that the Democrats for the cause of the 2024 general election campaign are making a big issue of the Supreme Court and its future.

And that’s really, really interesting. And let me just point out why. For decades, for decades, conservatives in the United States have been concerned about the Supreme Court in the aftermath, not only of Roe v. Wade, that was central you might say in terms of the offense, but given the liberal direction of the court for decades, it took many, many years of conservative activism to bring about change. And that meant, very importantly, electing conservative presidents who would appoint jurists who would interpret the Constitution by the text and were committed to that methodology. And that took decades, as I said, decades of offense, and then decades of hard work.

But here’s the point, the side that considers itself on the losing side of Supreme Court decisions, it has the motivation to try to raise money to say we need to elect a President who will appoint our kind of justices, nominate our kind of justices. Right now, that energy is on the liberal side. Even as he is running for reelection, President Biden has, on the stump, tried to make the case for himself to his more liberal crowd by saying, “Look, I think in the next four years a President will have the opportunity to appoint perhaps two justices.”

Now, you need to understand how they’re doing the math there, because this is really interesting, and this week just underlines why it’s so interesting. If you’re looking at the three justices who might be expected to retire from the bench during that time, from the Supreme Court, you would have to say that it would include two conservatives and one more liberal justice perhaps on that list. And we’re talking here just about likelihood, and so this is probably a reference to age. So you’re probably talking about conservative justices Clarence Thomas and Samuel Alito and liberal Justice Sonia Sotomayor. Now, I’m not saying that I have any information that they’re going to announce retirement. And as a matter of fact, unless there is a conservative President, a Republican President elected in November, it’s hard to imagine Justices Thomas or Alito, either one of them announcing retirement from the bench.

But it is going to be very interesting to see. The stakes here are the point. And right now, the interesting thing is that the Democrats are raising money for ad campaigns to support the Biden reelection effort with a clear concentration and messaging about the future of the Supreme Court. Just a reminder to us all that the future of the Supreme Court is always at stake in every single presidential election.

Part III

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Activists are Pumping Enormous Money into Abortion Push: Democrats Pledge to Make Abortion an Absolute Priority

It’s also, I think, very important to recognize, as was reported by Reuters, the international news source, the headline is, “Pro-Abortion Interest Funneling Millions to Elections.” And this article is by Stephanie Kelly of Reuters. But the thing we need to understand here is that we’re looking at a radical imbalance in the 2024 cycle between the amount of money raised by pro-abortion activist groups and the amount of money raised for the election by pro-life activist groups. And in this case, we’re talking about a massive, massive gain by the pro-abortion groups, and they’re raising a lot of money and they’re intending to spend a lot of money.

So we’re being told that we’re looking at multiple millions of dollars in just one campaign picture here, one frame of mind. You’re looking at $3.37 million on the side of pro-abortion election and reelection efforts, and only 273,000 from anti-abortion activists. Now, the Reuters story also tells us that in the 2020 election cycle, it was really lopsided. Pro-abortion, 11.33 million. Pro-life, 6.41 million. So you’re talking there almost two to one, and it’s just a reminder to us that both sides in this understand how much is at stake. And it’s just really important that we understand that the pro-abortion movement is putting its money where its convictions are in this, increasingly seeing this as an electoral asset. One of the things we have to watch is how many Republicans now see a pro-life position as perhaps a political deficit, or something that is weighing them down. And of course, that just means we have to make the argument louder and we have to make very clear to candidates and to officeholders, we will hold you accountable.

Part IV

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What Does It Mean to be a Libertarian? The Life and Legacy of David Boaz Raises Big Worldview Issues

But next, I want to turn to the big clash of worldviews that we see around us and recognize that sometimes some of these issues show up in an unexpected way. Just in recent days, you’ve seen perhaps an obituary for David Boaz, and The New York Times obituary identifies David Boaz, who died at age 70, as “Libertarian voice at Cato Institute.” What does it mean that someone was a voice for a Libertarian worldview? Well, actually, David Boaz made this case about as clearly as the case could be made during his own lifetime. And he did it, by the way, not only with his words, which were many in his writing, which was very concise and very clear, but also with his life.

So, libertarianism is not the same thing as liberalism. And looking at a right-left spectrum where you’re looking at a conservative to liberal spectrum, the fact is that you can find persons all along that spectrum who might actually use the word libertarian to describe themselves. And obviously the heart of the word libertarian is the word liberty. And libertarianism really diverged from what was then more often called liberalism, by stating that the sine qua non, the central argument it was going to make is the liberty of the individual, the freedom of the individual. And so, since liberalism had taken on so many connotations of big government in so many ways, the administrative state, regulatory cosmos, and all the rest, you had the libertarians emerge saying, “No, it is the individual, the moral imperative of the individual with individual civil liberties that is most important.” The most important thing government can do is affirm and recognize and protect those individual liberties, and then basically do very little beyond that.

Now, because liberalism did become so associated with big government after the time of Woodrow Wilson and Franklin Delano Roosevelt and others in the 20th century, libertarianism has been more often seen as being on the more Conservative side. But, it basically has come down to the fact that modern libertarianism in the United States, as a worldview, is a political worldview that has often been on social and moral issues, very liberal, and on economic and financial issues, very conservative. And also, when it comes to the size of the state, the size of the government, libertarians have been more small government than big government, and in a big way. So you’re not here talking about a worldview that fits comfortably at any point in the conservative-liberal continuum because, as they say, it’s a split decision here. On moral and on social issues, you often have libertarians who are just very, very liberal, whereas on government size and financial issues, they’re quite conservative. So they want no administrative state, but they want same-sex marriage.

And when it comes to so many of these issues, David Boaz was not only perhaps the most influential libertarian thinker of his time, he was also an openly gay man, and he believed very much in LGBTQ rights. As The New York Times quoted David Boaz as saying back in 1984, “I don’t think it’s any of the government’s business to protect people from themselves, whether it’s seatbelts, cyclamates or marijuana.” But then The Times says quickly, “Nor, he argued, did it make any sense to deny gay people legal equality. Government benefits, for example, should not be withheld from same-sex partners in stable relationships,” he said. And then a couple sentences later, “Mr. Boaz was openly gay and a founding member of the Independent Gay Forum, a website that aggregated articles by gay conservative economists in the mid 1990s.”

So you just look at this and you recognize, okay, so in one man’s life, in his own life, in his words, in his lifestyle, he basically demonstrated what the worldview of libertarianism would look like. Now, that’s not to say that all libertarians hold to the same positions on all social issues, but it does suggest that government should not regulate beyond what is absolutely necessary. And when it comes to libertarians, oftentimes that’s a very small list.

Now, I said that David Boaz was a very good writer. For example, a book he wrote back in 1997 entitled, “Libertarianism: A Primer,” he said that you actually learn libertarianism in kindergarten. The basic principles “don’t hit other people, don’t take their stuff and keep your promises.” So you can understand the moral minimalism that’s very attractive to people on the libertarian side. Just basically, leave me alone and keep your law out of my life. In a later edition of the same book, he wrote, “Libertarianism is the idea that adult individuals have the right and responsibility to make the important decisions about their own lives.” He also, in another context said, “Libertarianism is the view that each person has the right to live his life in any way he chooses, so long as he respects the equal rights of others.”

Now, here’s where, just to speak candidly, when you look at the Christian worldview, it is incompatible, I would argue, with an undiluted form of libertarianism, simply because the biblical worldview does not allow us to see the individual as the sole unit when we are looking at meaning in society and moral responsibility in society. Now, I think the Christian worldview would share with libertarianism a great and grave concern about government becoming tyrannical, and about too much government coming down not only to a dictator, but to an overwhelming administrative state. I think all of us can see that danger. And yet at the same time, there’s very little room for anything positive towards the community, anything positive towards moral responsibility to the larger culture or civilization. And quite frankly, libertarianism, just in its most radical forms, basically denies the responsibility going both ways when you look at the generational passage.

And that’s another very simple way in which libertarianism and the biblical worldview would diverge. But libertarian arguments, or the way Libertarians have framed these arguments, have often gained a lot of traction because they are just so self-evidently true at the point of saying, you did learn certain lessons when you went to kindergarten. They’re very important. Don’t steal, don’t lie, and keep your promises. So in other words, none of those points is wrong. Not one of them. Every one of those points is right. But what’s often missing from what is often a rather secular worldview when it comes to libertarianism, I’m not saying all libertarians are secular, I’m saying that the form of the worldview is basically far more secular. But when you look at that, you recognize that what is simply missing here is the understanding that our moral responsibility goes beyond issues that can be described as just personal liberty issues.

But the other way the Christian worldview collides with the worldview of classical libertarianism is that we believe there are moral laws that are binding upon all. And we actually believe government is to respect those moral laws. And we believe those moral laws are reflected in the structure of creation, as is made clear in the Old Testament, as is made clear in the Book of the Psalms, as is made clear, for example, in Romans 1. And we also believe that human beings are under those laws, and they are obliged to those laws, whether they recognize them as legitimate or not. So for example, in his book, “The Libertarian Mind,” David Boaz cited a couple of libertarian thinkers according to this, “The principle here is that every person is free to act as he pleases, so long as his exercise of freedom does not violate the equal rights of others.”

Now, it’s not that we don’t believe that someone should be able to exercise liberty so long as it does not violate the liberty of others, but we know that’s not enough, that’s not all there is to it. We believe that when someone says that someone is free to act as he pleases, so long as his exercise of freedom does not violate the equal rights of others, that’s not enough because there is a positive obligation, we believe, of every single human creature to the moral law of God, and it’s not just a matter of individual civil liberty. So again, I just want to say, sometimes you look back and say the last several decades have demonstrated that this particular individual was very powerful in making arguments that really do deserve our attention. David Boaz was one of those individuals.

And as we’re looking at even the clash of worldviews around us at the conceptual level, we recognize libertarianism is very attractive to people, for the very cause, I will say, that it tells them you can actually live however you want to live, because it’s grounded in this idea of moral liberty, and so it can be very morally or socially liberal. And at the same time, it says the great danger to liberty is big government, so just keep government small and keep the economy free. And so there are Conservatives who hear libertarianism and say, “That sounds Conservative.” Well, it does on the size of government, and the financial or economic questions. But when it comes to the more fundamental moral questions, no, it’s very un-conservative indeed.

In one fascinating twist to all of this, there’s been a libertarian candidate for the presidency. As an independent run in most recent cycles, there will be in this cycle. And one of the people who thought he might be able to persuade libertarians to vote for him was Donald Trump, just in recent weeks going to a libertarian meeting where he, frankly, was greeted with some appreciation, but a lot of opposition. By the way, the former President chided them for the fact that all they’ve been able to do is attract about 3 million votes, which is a tiny little percentage of the vote. And he asked them how happy they are with staying there. And I think that gets to another issue, and that is that if you try to, say, divide the question and be socially liberal and supposedly economically conservative, the reality is that the candidate presented by the Libertarian Party is not likely to hold to both of those equally, but to emphasize one at the expense of the other.

One thing I appreciated about David Boaz is the fact that whenever he made an argument, he believed that ideas are important. He was willing to stake out his ground for his ideas, and he also indicated that it was, in some sense, fun and important to engage honestly with the ideas of others. And he also very clearly understood the importance of worldview, and he knew his own.