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Wed Aug 23, 2023, 10:36 AM Aug 2023

Trump Judges Have a New Strategy for Gutting Minority Rights


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Can a state prohibit gay people from adopting children or stop immigrants from purchasing property? Under modern Supreme Court precedent, the answer to these questions is an emphatic no. Over the past week, however, federal judges appointed by Donald Trump have answered both questions yes, and without a hint of doubt or discomfort. To greenlight this wave of hate, Trump judges are ignoring more enlightened contemporary precedent, relying instead on old, repudiated decisions that upheld bigotry and oppression. By invoking these zombie precedents, Trump’s judges are attempting to roll back decades of constitutional progress to create space for the Republican Party’s ongoing pursuit of nativist and anti-LGBTQ state-level legislation. Only the Supreme Court can send these discredited pseudo-precedents back to their tomb—and it is unclear if they will bother to do so.

The award for most shocking and gratuitous revival of zombie precedent must go to Judge Barbara Lagoa, whose opinion in Monday’s Eknes-Tucker v. Alabama constitutes a venomous ambush of the South’s LGBTQ+ community. Writing for the U.S. Court of Appeals for the 11th Circuit, Lagoa upheld Alabama’s criminalization of gender-affirming care for transgender minors, joined in full by fellow Circuit Judge Andrew Brasher and District Judge J.P. Boulee, who’s sitting on the case. (All three are Trump appointees.)

There are several constitutional infirmities in Alabama’s law, most of which Lagoa tried to circumvent by mechanically citing Dobbs to support the notion that trans health care can’t be a fundamental right because it didn’t exist in 1868. But that approach did not resolve a different problem: The Supreme Court has long held that parents do have a fundamental right “to make decisions concerning the care, custody, and control of their children.” As the lower court ruled in this case, Alabama infringed on that right by revoking parents’ ability to “direct the medical care” of their kids in accordance with “medically accepted standards.” This intrusion into parental authority is subject to strict scrutiny, which the law cannot survive because it is far broader than necessary to achieve its stated purpose of protecting children.

To avoid Supreme Court precedent supporting parents’ rights, Lagoa turned to one of the most bigoted appellate decisions of the century so far: 2004’s Lofton v. Secretary of Department of Children and Families. In Lofton, the 11th Circuit upheld a Florida law barring gay people—whom the court dubbed “practicing homosexuals”—from adopting children. The Lofton court held that this ban, which has since been overturned, served the state’s “overriding interest” in placing children “with a secure family environment,” which gay people were less likely to provide. “Homosexuals,” the court continued, are unable to provide the “stable and nurturing environment for the education and socialization” of children that heterosexuals can. So Florida had legitimate cause to prevent gay people from “shaping” adoptive children’s “psychology, character, and personality.” The state also had rational reasons to conclude that gay parents could inhibit their children’s “sexual development throughout pubescence and adolescence.”

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