Skrmetti and birth equality (Part II)

Brothers in Law is a recurring series by brothers Akhil and Vikram Amar, with special emphasis on measuring what the Supreme Court says against what the Constitution itself says. For more content from Akhil and Vikram, please see Akhil’s free weekly podcast, “Amarica’s Constitution,” Vikram’s regular columns on Justia, and Akhil’s new book, Born Equal: Remaking America’s Constitution, 1840-1920.

Please note that the views of outside contributors do not reflect the official opinions of SCOTUSblog or its staff.

In our maiden column two weeks ago, we articulated the grand constitutional principle of birth equality: All Americans born under the flag are born equal. (This is also the theme and title of Akhil’s new book, Born Equal, due out in mid-September.)

This grand principle, we explained, has wide, thick, deep, and expanding roots in the Constitution’s text as originally adopted and as amended over the centuries. Article I’s quartet of clauses banning state and federal titles of nobility and bills of attainder; Article III’s denunciation of corruption of the blood; Article IV’s guarantee of republican governments (as distinct from hereditary monarchies and hereditary aristocracies); the 13th Amendment’s sweeping condemnation of hereditary slavery; the 14th Amendment’s opening promise of full and equal birthright citizenship to all born under the flag; the 15th and 19th Amendments’ condemnation of race-based and sex-based discrimination in the domain of political rights – all these clauses rest upon the foundational principle of birth equality. No American should be exalted or demeaned because of how he/she/they were born – because he was born white, or because she was born female, or because they were born gay, or because Akhil was born first, or because Vik wasn’t, or because Alexander Hamilton was born out of wedlock or (some said) a son of a prostitute.

In our maiden post, we also explained how this deep birth-equality principle, though not as thoroughly articulated in the Supreme Court’s doctrinal expositions as we would like, accounts for what the court does and does not do, in virtually all cases of allegedly improper discrimination/inequality. When government has treated any two citizens differently because one was born white and the other Black, the court has used strict scrutiny to ensure that neither citizen was exalted or demeaned simply because that citizen was born with a certain skin color. Ditto when government has treated citizens differently because of their ethnicities – because, say, one was born an Italian American and the other an Anglo American. Ditto too when government treats a citizen differently if born out of wedlock, or if born into a given religion – if born, say, a Jew. Likewise, when government has treated men differently from women, the court is skeptical and applies intermediate scrutiny, another form of heightened judicial review.

True, many sex-based laws are upheld at the end of the judicial day – but only if the court, after applying heightened scrutiny, properly determines that these laws do not in fact exalt or demean citizens of either sex. In most government-run spaces today, men are legally told to use one restroom; women  another. Crucially, neither restroom is better or worse. The restrooms’ plumbing might indeed differ, reflecting abiding differences (both biologically based and socially constructed) in the human plumbing of the men and women using these rooms. The general absence of stand-up urinals in women’s restrooms neither exalts nor demeans. Most women today generally prefer sex-separate restrooms, as do most men. The actual, if not always openly articulated, doctrine in this quadrant is “separate but equal.” Where sex separation is not in fact equal – as in the celebrated VMI case, where the men’s educational facility was obviously better than the women’s – the modern court has rightly invalidated the separation precisely because it was in fact exalting and demeaning, respectively.

Contrariwise, most legal distinctions – for instance between opticians and ophthalmologists, or between those who commit murder and those who do not – do not trigger heightened equality-based scrutiny precisely because these distinctions are not birth-based or otherwise categorically suspicious.

Last term’s Skrmetti case invited the court to address a new set of issues – how to think about transgender laws generally – and gave the court a golden opportunity in the process to clarify and unify well-established discrimination doctrine. Alas, none of the justices aced this very hard test. No justice articulated the birth-equality idea as such. None explained how existing scrutiny doctrine in fact has deep roots in the Constitution itself. That said, some justices scored better than others.

Chief Justice John Roberts, who wrote for the court, is a gifted doctrinalist. But doctrinalists often fail to explain where doctrine in fact comes from. For them, doctrine just is. But without the north star of the Constitution itself, one cannot confidently steer the constitutional ship forward. Two (but only two) justices, Samuel Alito and Sonia Sotomayor, quoted, in passing, a previous case for the proposition that sex-discriminatory laws based on “the accident of birth” merit heightened judicial scrutiny. But neither justice connected this quote to the Constitution itself, much less linked it to a broader birth-equality principle implicating race, national origin, illegitimacy, birth-based religions, and primogeniture.

What sort of scrutiny did the law in Skrmetti deserve? Heightened. Why? Because the Skrmetti law was clearly birth-based – indeed, sex-based. It expressly pivoted on whether one was born male or female but wanted to appear otherwise. A person born male was eligible for a certain hormonal treatment to change musculature but not a person born female. The law itself repeatedly referred to a “minor’s sex.”

The determination of a minor’s sex is of course typically made at birth, and made by institutions (ordinarily hospitals) acting upon government orders to identify the assigned sex of a newborn on a formal legal document – a birth certificate. Yet the Skrmetti majority declined to apply the usual heightened-scrutiny regime precisely designed for birth-based sex classifications.

It was no answer to say, as the Skrmetti majority did, that the transgender law at issue in the case limits both those born male and those born female. So do bathroom laws. (Men cannot pee here; women cannot pee there.) The VMI law likewise restricted both sexes. So have a great many sex-based laws that have properly been judicially analyzed as sex-based laws. (Some have passed muster, some have not.)

The marriage law in Obergefell was rightly invalidated based on heightened scrutiny even though the law obviously limited both men and women – that is, both gay men and lesbian women. (Formally of course, each group was allowed to marry – as long as they married someone of the opposite sex! But Obergefell rightly rejected this ultra-formalist Catch-22. Alas, Skrmetti failed to honor the spirit of Obergefell.)

Nor does it suffice to simply defer to the government. True, the Tennessee law at issue in Skrmetti might well be justified, medically or otherwise. But this question should be resolved only after applying heightened scrutiny – just as in restroom cases and VMI.

Consider the racial counterpart to this medical argument: If the government bars those born with dark skin from using whitening creams and bars those born with light skin from using darkening creams, perhaps this law should pass muster if such creams were judicially determined to be medically dangerous when used for these purposes. On the other hand, maybe the government is simply trying to enact racial hierarchy and white supremacy by preventing Blacks from “passing” and whites from “degrading themselves.” That issue must be decided by applying strict scrutiny on the merits, not by withholding it at the threshold. Many sex discriminations are upheld today – not because they are somehow not sex discriminations and thus do not trigger heightened scrutiny, but because these laws survive scrutiny. (Think restrooms.)

Relatedly, it is unhelpful to say, as the Skrmetti majority did, that the transgender law at issue was based not on sex but on medicine. Logically it was based on both. Only heightened scrutiny can discern whether the alleged medical justification is a sham to exalt the cis and demean the trans.

The best case supporting the Skrmetti majority’s illogical approach, and a case on which the Skrmetti court placed heavy reliance, is the 1974 Geduldig decision. Geduldig held that because not all females are pregnant at any moment, or indeed capable of pregnancy, pregnancy-based laws are not truly sex-based (and thus do not warrant heightened scrutiny).

Say what? A law that applies to pregnant women applies only to women, and never to men. True, it applies only to a subset of women. But that fact alone should never suffice to avoid heightened scrutiny. A law that penalizes only the subset of Blacks under 8 feet tall, or only the subset of Blacks over 100 years old is surely a race-based law requiring the strictest of scrutiny. A law barring women from applying to law school applies only to a subset of women – female law school applicants – but here too heightened scrutiny must apply. A law barring all pregnant persons from voting would obviously violate the core meaning of the 19th Amendment, even though such a law disfranchised only a subset of women (while leaving all men untouched). But to say this is to see clearly that pregnancy laws do indeed discriminate “on account of sex” within the undeniable meaning of the 19th Amendment. (And here we see one huge benefit of holistic constitutional interpretation, bringing the 19th Amendment centrally into view as one of the main pillars of the birth-equality principle.)  

Geduldig’s analysis (as distinct from its result) was and still remains a conceptual disgrace. The Skrmetti dissenters proclaimed it “egregiously wrong.” Alas, these very same justices offered not a peep about Geduldig when it mattered most, back in Dobbs (ignoring Akhil’s repeated urging in multiple podcast episodes back in 2021 both before and after the Dobbs oral argument; the best constitutional arguments for pregnancy-termination rights, Akhil explained back then, are not privacy claims but sex-equality arguments that logically require casting shade on Geduldig).

Here is a perfect example of how doctrinal judges on both sides of the ideological spectrum have failed to root themselves in the Constitution itself, with unfortunate long-term consequences all around. Relying far too much on the precedential weight of Roe – a case that utterly failed to root itself in the Constitution’s language and history – the Dobbs dissenters declined to attack Geduldig, as they should have. If the Dobbs majority could and did properly repudiate Roe as unrooted in the Constitution itself, surely it would have been fair game for the Dobbs dissenters to do the same to Geduldig. But they kept mum on this point, alas, and in footnote 4 of his separate opinion in Skrmetti, Alito delighted in throwing Dobbs’pointed reaffirmation of Geduldig in the face of the Skrmetti dissenters.

In theory, a court today could say that in certain subcategories, a birth-based law should generate only minimal scrutiny because it is essentially birth-plus-based – birth-and-medicine-based, or birth-and-bathroom-based, or birth-and-pregnancy-based. In certain well-defined birth-plus subcategories, the argument might go, government action is rarely invidious, rarely exalting or demeaning.

But sex-and-medicine is not sensibly seen as one of these subcategories. There has been too much history of the medical profession misusing sex and race. (Recall the forced sterilization of women in Buck v. Bell and the grotesque medical mistreatment of Blacks in the Tuskegee syphilis study.) A law allowing elderly men to receive a life-saving drug but not elderly women might perhaps survive heightened scrutiny, depending on the medical facts. But surely heightened scrutiny would be warranted. Ditto for a law allowing whites to receive the drug but not Blacks.

There is however, one birth-plus-based area that has categorically received relaxed scrutiny, and perhaps properly so: age laws. Age laws are birth-plus laws, based on a person’s birth date in tandem with the number of years subsequent to that date. Why shouldn’t judges apply heightened scrutiny to this particular sort of birth-plus law, in general? 

We’ll tackle that question in our next post. After that, we will discuss the hardest questions of all in Skrmetti: Under a proper regime of heightened scrutiny, should the law have passed muster? Why or why not?

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Reminder: If you want more on the crucial constitutional concept of birth equality, please preorder (and then please read!) Akhil’s new book, due out in mid-September: Born Equal: Remaking America’s Constitution, 1840-1920.