Why Justice Jackson invoked interracial marriage in Supreme Court’s historic transgender care arguments

By John Fritze and Devan Cole, CNN

(CNN) — The Supreme Court was more than an hour into its feisty debate over gender-affirming care when Justice Ketanji Brown Jackson invoked one of the most significant civil rights precedents in the nation’s history.

A liberal named to the court by President Joe Biden two years ago, Jackson said she was “suddenly quite worried” about how the arguments over Tennessee’s ban on transgender care were unfolding and she pointed to the court’s seminal 1967 decision in Loving v. Virginia that struck down a state ban on interracial marriage.

“I’m getting kind of nervous,” Jackson said at one point. “I’m worried that we’re undermining the foundations of some of our bedrock equal protection cases.”

A unanimous Supreme Court was able to wade into a messy equal protection fight back then and arrive at one of the court’s most important decisions, Jackson seemed to be saying. Why, then, couldn’t it do so now when confronted with one of today’s most pressing civil rights issues?

“I wonder whether Virginia could have gotten away with what they did” if state officials then had made an argument similar to the one Tennessee put to the court Wednesday in defending its ban on gender-affirming care for minors, Jackson said.

It was a particularly poignant moment in the argument over Tennessee’s law, in part because the question came from the Supreme Court’s first Black female justice – who is in an interracial marriage – but also because it subtly tied the transgender appeal to the court’s blockbuster decision two years ago to overturn Roe v. Wade.

The court’s ruling in Loving rejected the state’s arguments for why its ban on interracial marriage passed constitutional muster. The state had said that since the ban applied to both White and Black people, it didn’t treat either group differently based on race. It also said the court should defer to the state on the issue given countervailing scientific views.

Tennessee’s argument for defending its ban on gender-affirming care is similar, Jackson pointed out. The state says its law does not discriminate based on sex because it applies equally to both boys and girls who are seeking to transition. And worrying to Jackson is that several of her conservative colleagues signaled that perhaps courts shouldn’t be involved in deciding those complicated issues.

“It prohibits all boys and girls from transitioning using certain medical treatments, and it doesn’t say only boys can do so or only girls could do so,” Justice Brett Kavanaugh said.

Jackson, however, was forceful in her view that there are “parallels” between the Tennessee law at issue in the transgender health care case and the Virginia ban struck down nearly than 60 years ago, including in the states’ arguments for why it should be given legal deference.

“Some of these questions about sort of who decides and the concerns and legislative prerogatives, et cetera, sound very familiar to me,” Jackson told US Solicitor General Elizabeth Prelogar, representing the Biden administration before the high court. “They sound in the same kinds of arguments that were made back in the day, ’50s, ‘60s, with respect to racial classifications and inconsistencies.”

Heading into the arguments, progressives sounded the alarm about how far the high court might go in reversing major civil rights jurisprudence that have been part of the American legal landscape for decades.

Those fears were inflamed two years ago when conservative Justice Clarence Thomas, the court’s second Black justice who is also in an interracial marriage, suggested that his colleagues should “reconsider” major decisions dealing with gay marriage, contraception and intimate relations between same-sex couples.

Thomas’ concurrence came attached to the court’s controversial decision in Dobbs v. Jackson Women’s Health Organization that overturned the constitutional right to abortion the court had established in Roe nearly five decades earlier. Thomas did not mention Loving in his concurrence – an omission that drew notice from many of his critics.

The Dobbs decision did not rest on the Constitution’s equal protection clause, and its author – conservative Justice Samuel Alito – tried to make clear that it would not impact those earlier cases guaranteeing a federal right to an interracial or same-sex marriage.

But the court’s three liberal justices wrote in dissent that the majority’s opinion does make those rights vulnerable to attack – a warning that Jackson amplified on Wednesday.

As the arguments turned toward their conclusion Wednesday, Jackson appeared to recognize that a majority of the court seemed prepared to support the Tennessee law – and, in her view, withdraw from history.

“I share your concerns, Justice Jackson,” Chase Strangio, the lawyer representing the transgender youth, said in response. “That would undermine decades of this court’s precedent.”

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