The mission of Issues in Perspective is to provide thoughtful, historical and biblically-centered perspectives on current ethical and cultural issues.

When our Founders wrote the Constitution in the summer of 1787, they structured this democratic-republic around a three-part federal government—an executive, a legislature and an independent judiciary.  This separation of powers was to provide a built-in set of checks and balances to guarantee that no one individual or group of individuals would amass too much power.  From the Marbury v. Madison opinion in 1803 by Chief Justice John Marshal, the judiciary has the authority of judicial review.  It is the role of the judiciary to interpret the Constitution of the United States.  To that end, the judiciary has the authority to review executive and legislative actions to determine whether those actions are constitutional or not.

This summer there were several very important Court decisions that demonstrate how this process of judicial review works to check power and to interpret the Constitution.  Each one of these decisions preserves the rule of law in our democratic-republic—a value central to our system of government.  As with virtually all Court decisions, a key constitutional question was addressed.

• First, does the Constitution grant state legislatures—and state legislatures alone—broad, independent powers to regulate elections for president and for Congress?  This is called the “independent state legislature” doctrine.  The basis for this question is found in both Article I and Article II of the Constitution. The relevant provision of Article I states, “The times, places and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof.” And Article II’s electors clause says, “Each state shall appoint, in such manner as the legislature thereof may direct, a number of electors, equal to the whole number of senators and representatives to which the state may be entitled in the Congress.” The question was whether those two clauses essentially insulated the state legislatures from accountability to other state branches of government, including from judicial review by state courts.

In Moore v. Harper, handed down in late June, the Supreme Court rejected the “independent state legislature” doctrine, reaffirmed the soundness of the 2020 election and secured the integrity of elections to come.  David French reports that “In a 6-to-3 vote, the Supreme Court . . .  flatly rejected the independent state legislature doctrine. Chief Justice John Roberts—writing for a majority that included Justices Sonia Sotomayor, Elena Kagan, Brett Kavanaugh, Amy Coney Barrett and Ketanji Brown Jackson—was unequivocal. ‘The elections clause,’ Chief Justice Roberts declared, ‘does not insulate state legislatures from the ordinary exercise of state judicial review.’  Or, to put it another way, the relevant provisions of the federal Constitution did not grant state legislatures independent powers that exempt them from the normal operations of state constitutional law. Chief Justice Roberts cited previous Supreme Court authority rejecting the idea that the federal Constitution endows ‘the legislature of the state with power to enact laws in any manner other than that in which the Constitution of the state has provided that laws shall be enacted.’  The implications are profound. In regard to 2020, the Supreme Court’s decision strips away the foundation of G.O.P. arguments that the election was legally problematic because of state court interventions. Such interventions did not inherently violate the federal Constitution, and the state legislatures did not have extraordinary constitutional autonomy to independently set election rules.   In regard to 2024 and beyond, the Supreme Court’s decision eliminates the ability of a rogue legislature to set new electoral rules immune from judicial review. State legislatures will still be accountable for following both federal and state constitutional law. In other words, the conventional checks and balances of American law will still apply.”

• Second, what is the legal foundation for women’s sports? It’s a simple question with a surprisingly complex answer. Title IX of the Educational Amendments of 1972 states, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.”  Its language tracks that of Title VI of the Civil Rights Act of 1964. Title VI prohibits race discrimination in federally funded educational programs using virtually identical language, declaring, “No person in the United States shall, on the ground of race, color or national origin, be excluded from participation in, be denied the benefits of or be subjected to discrimination under any program or activity receiving federal financial assistance.”  As David French concludes, “in the realm of athletics, however, these two statutes have traditionally worked in remarkably different ways. Race segregation in athletic programs is a legal and cultural taboo. There are no legally segregated white and Black football leagues, for example, and if a school decided to create a Black league and a white league, it would face an immediate civil rights complaint. Excluding a football player from a team simply because of his race is unlawful discrimination.  But this is not the case when it comes to sex. The result of Title IX was not the large-scale creation of coed sports leagues, where men and women have an equal opportunity to compete in the same events, where the best man or woman makes the team, and the best man or woman wins the race. Instead, Title IX has resulted in the expansion of women’s sports into an enormous, separate and parallel apparatus, where women by the millions compete against one another, winning women’s titles in women’s leagues . . . The evidence is overwhelming that there is a significant average difference between male and female athletic performance, including at the most elite levels and even when female athletes receive funding, training and nutrition comparable to that of the best male athletes. In a 2020 article in The Duke Journal of Gender Law and Policy, the authors, Doriane Lambelet Coleman, Michael J. Joyner and Donna Lopiano, observed that ‘depending on the sport and event, the gap between the best male and female performances remains somewhere between 7 to 25 percent; and even the best female is consistently surpassed by many elite and nonelite males, including both boys and men.’  The authors walk through a number of examples of disparate performance, but here’s one: Vashti Cunningham is one of the best female high jumpers in the world. Her best jump places her in the world’s top 10 among females. But in 2019 alone, 760 American high school boys jumped higher than she did when she was in high school.”

This summer, “an en banc panel of the United States Court of Appeals for the Second Circuit heard arguments in a prominent case about whether Title IX prohibits transgender girls from participating in women’s sports. The case involves claims by four former Connecticut female high school track athletes who lost races to two transgender (natal male) athletes, including state championships.  The plaintiffs in the case sought a declaration that the state sports league’s policy permitting transgender girls to compete in women’s athletics violated Title IX by ‘failing to provide competitive opportunities that effectively accommodate the abilities of girls’ and failing to provide ‘equal treatment, benefits and opportunities for girls in athletic competition.’ The plaintiffs argued that Title IX was intended to grant women and girls the ‘chance to be champions,’ not just a right to compete.  Last year, a three-judge panel of the appellate court rejected the plaintiffs’ claims.”

But then the entire United States Court of Appeals for the Second Circuit asked to hear the case. This summer, the court heard oral arguments, and a decision is expected soon. “The oral arguments were dominated by questions of standing—whether a loss of a championship should be considered a legally recognizable injury, an injury that courts should or could address . . . The question was whether the rules were wrong.  The transgender athletes intervened in the case, with the aid of the A.C.L.U., and argued that ‘Title IX does not require sex-separated teams or an equal number of trophies for male and female athletes.’ They emphasized that the plaintiffs ‘repeatedly outperformed’ the transgender athletes ‘in direct competition.’  But the argument is not that transgender athletes will always win, but rather that if schools replace sex with gender identity as the relevant criterion for participation, then the statutory sex-based promises of participation and benefits in educational programs will be undermined. (Gender identity, as the A.C.L.U. defined it, is a ‘medical term for a person’s ‘deeply felt, inherent sense’ of belonging to a particular sex.’)”

French’s conclusion is certainly wise and sensible:  “[L]egal definitions do matter, especially when they are rooted in hard facts, such as the systematic, documented performance gap between the sexes.  All people are created equal, and possess equal moral worth, but we are not all created the same. To protect equal opportunity, there are times when the law should recognize differences. And in the realm of athletics, if we want to both secure and continue the remarkable advances women have made in the 51 years since Congress passed Title IX, it’s important to remember that sex still matters, and sex distinctions in the law should remain.”

• Third, does the use of race as a factor in college admissions violate the equal protection clause of the 14th Amendment to the Constitution?  In one of its final decisions of the 2022-2023 Court term, the Supreme Court, in a 6-3 ruling, barred the use of race in college admissions.  The two cases at issue were brought against Harvard University, a private institution, and the University of North Carolina, a public institution, by Students for Fair Admissions. “They each used race to favor some applicants at the expense of others—most often Asian-Americans. In his majority opinion, Chief Justice John Roberts unequivocally declares their admissions processes to be unconstitutional under the 14th Amendment.”  “The Harvard and UNC admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause,” he wrote. “Both programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points. We have never permitted admissions programs to work in that way, and we will not do so today.”

Editorially, the Wall Street Journal helpfully observes that “The Court’s opinion is especially bracing because it clears up a half-century of muddled Supreme Court rulings. In 1978 in Bakke, it opened the door to racial preferences in a plurality opinion by Justice Lewis Powell. When the issue inevitably came up again in Grutter v. Bollinger in 2003, the Court again fudged by declaring the narrow use of race kosher while adding that it should not be necessary in 25 years.”  Thursday’s ruling is also notable for its concurrences: “Justice Clarence Thomas navigates the long and fraught history of U.S. race and the law and why Justice John Harlan was right in his famous dissent in Plessy v. Ferguson that ‘our Constitution is color-blind, and neither knows nor tolerates classes among citizens.’  Justice Neil Gorsuch explains in a concurrence that Harvard and UNC both also violate Title VI of the Civil Rights Act of 1964. And in a telling passage, he wrote that, in our increasingly diverse country, divisions by racial ‘classifications rest on incoherent stereotypes.’ He noted that in federal government classifications, ‘The ‘White’ category sweeps in anyone from ‘Europe, Asia west of India, and North Africa.’ That includes those of Welsh, Norwegian, Greek, Italian, Moroccan, Lebanese, Turkish, or Iranian descent. It embraces an Iraqi or Ukrainian refugee as much as a member of the British royal family.’ The Court’s reaffirmation of equality under the law recognizes that it is the only way to run a diverse democracy without breeding more racial resentment.”

David French reasons that “The consequences of the Supreme Court’s Harvard decision will reverberate throughout American law. There is no longer any such thing as ‘good’ racial discrimination. There can be redress for actual discriminatory acts, but the idea that race by itself can be utilized as a proxy for achieving social progress is now almost certainly wiped away. Programs designed specifically around the race of the participants are going to face renewed scrutiny.  Dating from the first university affirmative action case—the Supreme Court’s 1978 decision in University of California v. Bakke—colleges had more than 40 years to fashion benign or benevolent schemes of racial classification. Yet Harvard and U.N.C. both demonstrate that even supposedly benevolent discrimination can look quite malevolent to applicants, in this case Asians in particular, who faced negative double standards because of their race.  No one doubts America’s dark history of racial discrimination. No one credibly doubts that racial discrimination continues to this day. But universities can respond to the legacy and reality of discrimination without creating new racial classifications and inflicting new racial harms on a new generation of Americans. There are better ways to achieve justice and fairness than by discriminating against any person because of the color of his or her skin.”

See David French in the New York Times (28 June, 29 June and 25 June 2023); and the editorial in the Wall Street Journal (30 June 2023).