Trump Judges Have a New Strategy for Gutting Minority Rights

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 11^th 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 11^th 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.”

Lagoa cited Lofton four times in her opinion on Monday. She leaned heavily on the precedent to explain how the 11^th Circuit had curtailed “parents’ liberty interest to control the upbringing of their children,” and to justify imposing minimal scrutiny on the Alabama ban. If the state can forbid LGBTQ+ people from adopting children in the first place, she suggested, it can surely bar parents from providing medical treatment to LGBTQ+ kids. The citation was gratuitous; Lagoa noted other precedents that give states leeway to take important decisions out of the hands of parents. She went out of her way to cite Lofton, again and again, to remind readers that it is still on the books, and, in her mind, still perfectly good law.

Except that it isn’t. The Supreme Court never reviewed Lofton. When it finally took up the question of LGBTQ+ parenting in 2013’s U.S. v. Windsor, though, the court was unequivocal: The Constitution, it explained, protects both same-sex couples and their children; bars the government from telling such children that their parents’ marriage “is less worthy than the marriages of others”; and forbids any law that undermines the “integrity and closeness of their own family.” Two years later, in Obergefell v. Hodges, the court reiterated that gay people “provide loving and nurturing homes to their children,” and that same-sex marriage bans interfered with such children’s own right to the “recognition, stability, and predictability” of their parents’ marriage. Just in case it wasn’t clear, the court announced two years later that states must grant same-sex couples the exact same parentage rights as opposite-sex couples.

These decisions overruled—or, in legal terms, abrogated—the 11^th Circuit’s own precedent in Lofton. They expressly rejected its central premise, its reasoning, and its holding. Lagoa acknowledged none of this. She declined to cite Windsor, Obergefell, or any other Supreme Court decisions that supersede and abrogate Lofton. Her message seemed to be that, under the 11^th Circuit’s new hard-right majority, Lofton is good law again, whatever the Supreme Court may or may not have done in the 2010s. If that’s true, it would mean that LGBTQ+ families who live within the circuit’s three states (Alabama, Florida, and Georgia) have no constitutional rights to speak of.

In recent days, the 11^th Circuit hasn’t been alone in outrageously ignoring inconvenient Supreme Court precedent protecting fundamental rights. Four days before the Eknes-Tucker ruling, Judge Allen Winsor sent a similar message to Chinese immigrants in Florida that their rights would not be protected, either. The Trump-appointed Winsor issued a much-anticipated decision regarding a new Florida law that bars Chinese citizens from purchasing property within the state unless they have lawful permanent residence (that is, a green card). Many immigrants who wish to buy a house don’t have this status, including the plaintiffs here, three of whom hold visas and one of whom is seeking asylum. Under state law, they are now barred from homeownership. And everyone who buys property in Florida must now sign an affidavit attesting that they are not “principals” of China. A Chinese person who buys property in violation of the law faces five years’ imprisonment; anyone who sells property to a Chinese person in violation of the law faces one year in prison.

There is only one plausible purpose of this law: to discriminate against Chinese immigrants on the basis of their citizenship and national origin. Winsor essentially acknowledged this fact—and upheld the law anyway, citing Supreme Court precedents from more than a century ago, when states sought to exclude Chinese and Japanese immigrants. The leading case on which Winsor relied was 1923’s Terrace v. Thompson, which upheld a Washington state statute that barred noncitizens from buying, leasing, or even using land. The statute was a copy of California’s infamous Alien Land Law, a 1913 measure designed to stop Asian immigrants from emigrating to the state. That law was a descendant of the 1882 Chinese Exclusion Act, an infamous federal law that shut down immigration from China and imposed draconian burdens on Chinese people already present in the U.S.

Winsor’s reasoning was simple: In the 100-year-old Terrace, the Supreme Court said states could discriminate against noncitizens—specifically, immigrants from Asia—by prohibiting them from buying property. Florida’s law criminalizes the sale of property to noncitizen immigrants from China. Thus, Florida’s law is constitutional under Terrace.

Except that it isn’t, because the Supreme Court has repudiated every aspect of Terrace over the intervening century. Specifically, it has held that states, as a rule, may not discriminate against individuals on the basis of foreign citizenship or national origin, as the Constitution entitles “both citizens and aliens to the equal protection of the laws of the state in which they reside.” States may not deny noncitizens welfare, fishing licenses, law licenses, engineering licenses, financial aid for education, public employment, or even government positions like notary public. Nor may they deny noncitizens, including undocumented immigrants, access to public education. It is preposterous for Winsor to claim that Florida can deny noncitizens the ability to purchase property (which is a constitutional right) but not the ability to attend public school (which isn’t). Not just preposterous, but borderline unbelievable: To read Winsor’s opinion in Florida’s Chinese exclusion case is to ponder the long-term viability of a legal profession that would sink to such lows in service of barefaced white supremacy.

Faced with two conflicting lines of precedent—one made up of recent decisions that protect individual liberty and equality, another made up of archaic decisions that exude unconstitutional animus—judges must make a choice. They can uphold the modern precedents that affirm everyone’s equal right to life, liberty, and property. Or they can revive the zombie precedents that entrench cruel, illogical hostility toward vulnerable minorities. Lagoa and Winsor took the second path. They appear to believe this Supreme Court will reward them for it. What’s scary is that it’s an open question whether they are correct.