Doing Law and Politics in the “Real” World Is Tougher Than Ever

Feb 8, 2023 by David Fowler

Doing Law and Politics in the “Real” World Is Tougher Than Ever
Over the last few months, I have had multiple exchanges with Christian policymakers and lawyers around the country about legislation directed at stopping “transgender treatments” on minors. I found myself urging them to consider the same points made against Tennessee’s version of the bill by the American Civil Liberty Union’s lawyer last week. Was I siding with the ACLU or were my friends? 

What Kind of World We Do We Live In? 

The ACLU’s attorney testified that whether we agree that gender fluidity is a normal progression in human development or not, we should all agree that parents have a constitutionally protected zone of authority within which to raise their children and, within that, to make certain decisions they think best serve their children’s needs.
In principle, I agree with the ACLU’s attorney. We must demand that the government exercise great care when sticking its nose into the parent-child relationship. And there are two kinds of worlds in which we can live by which that care will be judged. 
The first, I will call it World A, says there is no law preceding that which a judge announces in an opinion or a legislature enacts that says parents should have certain rights in relation to raising and nurturing their children. The second I call World B. People who live in that world say there is a universal, pre-existing law by which the decisions of judges and legislators are to be tested. 
Those who live in in World A say all law comes from us, from what we say the law should be. It is the law because we said it is. Those who live in World B say there is an overarching evaluative law that does not come from us, and it is by this law that all decisions by human beings are to be judged.

The World According to the ACLU’s Lawyer

The ACLU’s lawyer lives in World A and admitted as much. 
When a Republican committee member asked what might make interference in the protected sphere of parental rights constitutional, the lawyer said (paraphrasing), “Nothing. The government should not be second-guessing a decision by parents who, knowing their child’s stress and possible suicide ideation, and having conferred with medical professionals, make what they think is the right decision for their child.”
No legislator on our side asked the ACLU’s lawyer if there was any medical decision a parent should not be allowed to make and, if so, on what basis. The ACLU’s lawyer got off scot-free. 

The Critical Question and Answer for Those Who Believe in "World B "

Those, like me, who live in World B have a more difficult challenge in answering Rep. Leatherwood’s question. We must assert an objective standard, or we might as well be living in World A.
The first answer given me by the Christians with whom I’ve been in dialogue was effectively this, “Medical science proves that hormone treatments and surgical procedures in pursuit of gender change are harmful.” 
I agree with this view of the medical science, but the legal and constitutional point is the ACLU’s lawyer will, in federal court, counter that science with other medical and scientific studies.
Now, take a deep breath if you are thinking, “Fowler, how can you think parents have a right to harm their kid’s body?” 
I don’t, but think in terms of principle, not just this particular medical decision. Think about what your position might be if the government said you must or must not give your child a COVID shot or said you must give your child some immunization you don’t want him or her to have. 
Are we all willing to concede that, in principle, the government has an unchallengeable right to decide for us the medical science in which we must believe, especially as regards our children? Is what a judge or legislature say “the final answer?”

The Second Answer From “World B” Is a “World A” Answer

When I pressed my question with a lawyer professing to live in World B as to the why the state should be allowed to interfere in the parent-child relationship, I got this answer (a quote): 
Bills like TN SB/1 HB 1 are simply the legislature regulating the medical profession within the state. Specifically, based on its interest in protecting the health and safety of minors, the state is restricting the medical profession from selling or providing certain medical procedures (surgeries, hormones, etc.) to minors that it determines are harmful or that minors lack the capacity to property consent to receiving.
Did you notice that this answer begs the question? The state can do this because it has the power to regulate the medical profession. But what determines the scope of that regulatory authority?  
Seems the answer is simply that the state has determined something to be harmful based on medical science. But that begs the question asked in the first instance—what judges the medical science and what determines that something constitutes a harm? 
If the liberal psychiatric association determines that taking a child to a Republican Party or Trump rally is an emotional harm, does that justify a state statute prohibiting parents from taking their child to one?
This answer makes the state the sole judge. It seems to me that those who give this kind of answer are chosing to operate in the sphere of law and government like those who live in World A, one in which all laws are simply the ones we make by force of our position of power. 

“World B” Merges into “World A”

But notice this about the answer. God doesn’t need to exist in this version of World B.  All we need is the right people in the right positions of political power, and we are in business, making the world according to how we think it should be. It seems to me that is the same kind of world believed in by those in World A.
In both instances, power and authority reside in people, not God, and people direct and control the course of things, not God. If we have the requisite power and authority, we make the law.

The Rebuttal I Get From Those in "World B"

When I press these questions with many (but not all) of my World B friends, I get something like this: “David, you have to live in the real world, and in the real world the people in control are those in World A.” I am told I must be practical and pragmatic if “our side” wants to get anything done. 
But the real and ultimate question is what should those of us who live in World B want to “get done”?

What Kind of World Do We Want?

I think we should want to “get done” more than stopping a harm. 
Though stopping harm is good, I think we should want to restore a sound anthropology to the law that acknowledges a real, deeply meaningful, and valued reconnection between a person’s objective and given body and their subjective understanding and experience of who they are.  
That connection is part of the glory of the Incarnation—the joining of true objective reality (God) with our human existence (the subjective). That is the real world—not one in which those two kinds of reality don’t touch and cohere—and it is the real world that God is re-creating (see Ephesians 1:9-10).
Only when a sound anthropology—the one God defines and demonstrated in the Incarnation—is restored first in our hearts and minds and then into our law will we have less bad anthropology to stop by means of civil law’s prohibitions. 
I think Christians should want to see a world in which the good of God’s creation (World B) is so well understood, loved, and pursued that wrongs are again understood and defined in terms of the absence of the good, not just by what medical professionals, judges, or legislators tell us. 

Conforming to or Transforming the World?

Finally, those of us in World B should never consciously conform to World A to “get along” in that world (Romans 12:1-2). What I gather from the Scriptures is that we should want to be so transformed by the love of the God who created World B and so love that world for God’s sake that it overcomes the World A that others have created in their own subjective minds. 
A purely subjective world is not a real world. Who wants to live in or can live peaceably in an unreal world? It is objectively meaningless and, therefore, pointless. Transgenderism and drag queen shows make perfect sense to me in a meaningless and pointless world.
Living in the real world is getting harder because those who believe in World A and those who go along with them press in from every side. But I firmly believe the real World B is the only world worth living in. I hope more will join me.

David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006.

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