The summer of 2023 has been an unusual season of fallout from recent U.S. Supreme Court decisions about guns, abortion, religion, LGBTQ rights, and affirmative action.
Supreme Court decisions always have consequences for some party, but the court’s rulings on culture war issues especially encourage special interest groups and individuals to push the boundaries of those rulings in directions that they desire.
Let’s begin with guns and two potentially major cases.
In a 6-3 ruling in 2022, the conservative majority imposed a new test for weighing the constitutionality of gun regulations. The test basically relies on historical practices. Courts must look to historical tradition before, during, and after the Founding to determine whether the regulation or restriction existed then, or if there were an analogous practice.
The new test has frustrated a number of judges who claim they are not historians and do not have the resources to do the type of research required by the 2022 ruling. But the test has been very effective in striking down gun regulations and restrictions around the country.
In February, the U.S. Court of Appeals for the Fifth Circuit struck down a section of the federal criminal code that bans possession of firearms by someone subject to a domestic violence restraining order. The appellate court, applying the Supreme Court’s 2022 test, ruled that the ban violated the Second Amendment.
The Biden administration appealed the ruling in United States v. Rahimi to the Supreme Court and in June, the justices agreed to review the appellate court decision. Arguments are set for November 7.
The justices also may soon decide whether to hear a second gun case in their new term. The Biden administration last month asked for additional time to file a petition for review in Garland v. Range. The Third Circuit struck down as unconstitutional a different provision in the federal criminal code that bans felon possession of firearms when applied to nonviolent felons.
Extending Dobbs
Much has been written about the fallout from the conservative majority’s 2022 decision in Dobbs v. Jackson Women’s Health Organization. Republican-led states and state legislatures moved swiftly to restrict abortion in myriad ways after the Supreme Court eliminated the near 50-year-old right to abortion.
But Dobbs, which the conservative majority explicitly insisted was limited only to abortion, was used recently by two federal appellate courts in the latest culture war battle: health care for transgender minors.
In July in L.W. v. Skrmetti, the Sixth Circuit refused to block Tennessee’s law prohibiting medical providers from providing gender-affirming health care to transgender youth and requiring trans youth currently receiving gender-affirming care to end that care within nine months of the law’s effective date of July 1, 2023—by March 31, 2024.
And last month in Eknes v. Tucker, the Eleventh Circuit upheld Alabama’s law making it a felony to provide transgender youth with puberty blocking medication, hormone therapy or surgery for the purposes of changing their birth sex.
Both rulings cited Dobbs for support multiple times.
Mary Ziegler, a legal scholar on the law, history and politics of reproduction, wrote on the social media site, X, soon after the rulings: "Dobbs is now emerging as a major argument for the constitutionality of bans on trans care for minors--in the context of both due process and equal protection.”
Alabama is also the scene of two combined lawsuits by abortion rights supporters. They contend that a public threat by the state attorney general to prosecute those who assist pregnant women to go outside the state for abortions violates due process, their freedom of speech, and the right to travel.
Funding Religion
The Supreme Court’s conservative majority has been strongly in favor of increasing government accommodation of religion, even in the funding of religious organizations.
In June, Oklahoma approved the first religious charter school in the country. It will be funded by taxpayer dollars. The school will be run by the Archdiocese of Oklahoma City and the Diocese of Tulsa.
The school’s website says: “The primary goal of St. Isidore of Seville Catholic Virtual School is to assist parents in the important responsibility of developing the heart, mind, and soul of their child. The St. Isidore Catholic Virtual School envisions a learning opportunity for all students whose parents desire a quality Catholic education for their child regardless of where they live in Oklahoma. Our statewide virtual charter school will enable students to be immersed in a robust liberal arts program that opens the student to the best of the Catholic intellectual tradition. Admission assumes the student and family willingness to adhere with respect to the beliefs, expectations, policies, and procedures of the school as presented in the handbook.”
The National Alliance for Public Charter Schools says on its website that charter schools are public schools. Although independently operated and sitting outside the control of the local school district, “they are still part of the public education ecosystem, rather than entities that divert funding from this ecosystem.” They generally have three sources of funding: federal, state and local tax dollars.
In July, a group of Oklahoma parents, clergy, and education activists filed a lawsuit in state court seeking to block the opening of the charter school. They claim that the school will discriminate if it becomes operational and that it violates the state constitution and state law, which requires that charter schools be “nonsectarian in [their] programs, admission policies, employment practices, and all other operations.”
Keep an eye on this lawsuit, still in its early stage.
Ending Racial Preferences
In late June, the Supreme Court’s conservative majority ruled that the consideration of race in the admissions programs at Harvard and the University of North Carolina violated the equal protection clause of the Fourteenth Amendment.
A July ruling by a federal judge in Tennessee triggered new guidelines issued by the federal Small Business Administration. The judge struck down a provision in the SBA’s business development program that created a presumption of social disadvantage based on race. Perhaps seeing the handwriting on the wall after the Supreme Court’s June affirmative action decision, the SBA has issued new guidelines in which business owners must submit an essay on how race has hindered their success in order to qualify for government funds earmarked for historically disadvantaged groups.
And last month, conservative activist Edward Blum, the architect of the challenges to Harvard and the University of North Carolina as well as the federal Voting Rights Act, filed a lawsuit against the Atlanta-based Fearless Fund which has invested millions of dollars in businesses owned by women of color.
The lawsuit quotes the Supreme Court’s majority opinion in the affirmative action cases in which Chief Justice John Roberts Jr. wrote that “eliminating racial discrimination means eliminating all of it.”
There is lots more in the litigation pipeline to the Supreme Court. As long as the conservative majority seemingly embraces divisive culture war issues, that pipeline will continue to flow.
Marcia Coyle is a regular contributor to Constitution Daily and PBS NewsHour. She was the Chief Washington Correspondent for The National Law Journal, covering the Supreme Court for more than 30 years.
