“What is the good of words if they aren't important enough to quarrel over?” wrote G.K. Chesterton. And a massive quarrel is precisely what President unleashed on his first day in office. His Executive Order directs every federal “agency” to “give the terms ‘sex’, ‘male’, ‘female’, men’, ‘women’, ‘boys’ and ‘girls’” a biological definition. With that, he launched in words a war of cosmological gravitas. And I suspect the U.S. Supreme Court will have to bow to or play the role of the Triune God it banished from law.
The Meaning of “Person” is Fundamental
What it means to be human, to be a person, is at the heart of the matter. This is fundamental to the communities formed by the Western Legal Tradition. In that tradition, law is primarily addressed to persons.
For example, in the 6th century, Justinian said that “since all law is made for the sake of human beings, we should speak first of the status of persons.” J. Digest. 1.5.2. In his Institutes, he wrote, “Knowledge of law amounts to little if it overlooks the persons for whose sake law is made.” J. Inst. 1.2.12. This has been the wisdom and observation of generations in the West.
However, in recent years, the United States Supreme Court has assiduously avoided issues of human meaning. Specifically, it has avoided the meaning of the word “person” in the Fourteenth Amendment.
Thankfully, God has given Christians another opportunity to make that avoidance impossible. The reason is the Executive Order ties its definitions to “persons . . . at conception.” That we might appreciate the opportunity, here is what happened when avoidance was made possible.
Avoiding Male and Female in Matrimony
For example, in 2015, in Obergefell v. Hodges, the Supreme Court did not have to consider what a male person and female person is in relation to matrimony. That’s because the argument defending state marriage licensing statutes literally opened with these words, “This case isn't about how to define marriage. It's about who gets to decide that question.” Transcript, Part 1, 41.
I submit that no Christian who stopped to think about it would suggest that states have the authority to define marriage as they please.
Moreover, I don’t think any lawyer who believes in the rule of law as it was understood from the time of Cicero (1st century B.C) through the 19th century A.D would say this. The rule of law posits a cosmology in which law is in the very nature of things—in the cosmos. Even Cicero knew some laws are uniform and universal as to persons, time and place.
One of those laws would be the essential nature of the marital relationship. Throughout time, the whole world knew that it was constituted by at least one male and one female. But, the argument let the Court define it in terms of incidentals:
“Marriage responds to the universal fear that a lonely person might call out only to find no one there. It offers the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other.”
Now, same-sex “marriage” is in every community, and evangelicals seem to have made their peace with it.
Avoiding the Word “Person” in Abortion
I am delighted that Roe v. Wade was reversed in 2023. But let’s be clear about the word choices offered to states and legal and policy advocates by the Fourteenth Amendment for defending heartbeat bills: “liberty” or “life” and “person.”
The first choice meant the law would be defended on the ground that a woman had no “liberty” to a certain medical procedure. It rested on the factual proposition the procedure was prohibited at the time of the Amendment’s adoption.
The second meant that the Fourteenth Amendment prohibits state laws that do not protect the human “life” of every “person” equally. It rested on the jurisprudential fact that the common law informs the meaning of the words in our Constitution. And, for centuries, the law treated an unborn child as a “person.”
Nevertheless, the leading pro-life legal lights in our nation chose to focus on “liberty” and abortion as a medical procedure. That argument was enough to get Roe reversed. But, again, the Court was able to avoid what it means to be human, to be a person.
The result has been fatal to human beings. With no uniform and universal meaning for the word “person” in that Amendment, extreme abortion measures are getting the majority of the votes in state after state. (See election results below from ivoter.com email dated January 14, 2025)
“Transgender Care” for Minors
Finally, we come to the constitutionality of Tennessee’s law prohibiting hormone therapy for minors confused about their gender. In December, it was defended before the U.S. Supreme Court.
The non-Rule of Law argument made in this case was fundamentally the same as the one defending marriage: What it means to be male and female should be left up to each state. Tennessee’s lawyer conceded that other states could vote to let a subjective understanding of gender take precedence over biology.
Expect states to keep transgender ideology alive for state law purposes, until Trump’s Order can be rescinded.
What’s at the Bottom of This Ambiguity of Meaning?
Now that Darwinian thought has triumphed, “whirl is king,” as Aristophanes put it. It triumphed in law was in the early 20th century. In 1938, in Erie RR v. Tompkins, the devotees of Justice Oliver Wendell Holmes’s jurisprudence said said the “only authority” for law is the state.
Consequently, all higher meaning has been driven out of our thinking and in law. The “truth” of a thing is found in the thing itself. It’s a philosophy called nominalism.
Nominalism, for our present purposes, means that there is “no real existence” behind words; words “are mere names applied to aspects of reality . . . so that the truth of being is simply that individual things exist.” R.J. Rushdoony, The One and the Many, 4. In other words words, human beings exist; however, to arrive at the truth about them, we must decide how to categorize and name them.
The Fundamental Question to be Decided by SCOTUS
Here, then, is the issue in culture and law: Is a “person,” a “man,” a “woman,” a “male,” and a “female” only what we say they are? Or is there something true about each of these words that we cannot “unsay” because it would be contrary to what God already said about them?
I pray Christians will not neglect to press the larger issue of human meaning now that we’ve been given another opportunity to do so.
And finally, I pray our Father will not let our justices shirk their duty in relation to these words. May He grant for His glory’s sake that their hearts and minds would acknowledge His law that is for all the communities in His world, and uphold the rule of law in our community, the United States of America.
