The culture wars came to the Supreme Court this term, and the conservative justices took sides: They made clear that they are solidly with the right wing of the Republican party. It was exactly a decade ago – on June 26, 2015 – that the Supreme Court decided Obergefell v. Hodges and held that state laws prohibiting same-sex marriage violate the Constitution. It is a very different Court today.

Three 6-3 decisions that split along ideological lines – United States v. Skrmetti, Mahmoud v. Taylor, and Free Speech Coalition v. Paxton – demonstrate just how much the Republican-appointed justices now routinely side with social conservatives on culture war issues.

United States v. Skrmetti

The issue before the Supreme Court was whether Tennessee may prohibit puberty blocking hormones from being administered to transgender teens. Twenty-six states, all with Republican-controlled state legislatures, have banned gender affirming care for minors. There are an estimated 110,000 transgender individuals in these states who will be denied the medical care that they, their parents, and their doctors want administered.

Chief Justice John G. Roberts Jr., writing for the majority,  stressed the need for the court to defer to the judgment of the Tennessee Legislature. He concluded his opinion by saying that the issue is left “to the people, their elected representatives, and the democratic process.” Likewise, Justice Clarence Thomas, in a concurring opinion, said, “Deference to legislatures, not experts, is particularly critical here.”

But such deference is inappropriate, and unwarranted under Supreme Court precedents, when a law burdens a group that has been historically subjected to discrimination. That was present in this case in two ways.

First, the Tennessee law discriminates on the basis of sex, which always receives heightened judicial review. Roberts’ majority opinion contends that denying the medical care to transgender youth isn’t sex discrimination because all children are prohibited from receiving gender affirming care. But this ignores that the law allows some drugs to be given to boys and not girls, and some to girls and not boys. That, by definition, is sex discrimination. Justice Sonia Sotomayor explained it this way in her dissent: “Sex determines access to the covered medication. Physicians in Tennessee can prescribe hormones and puberty blockers to help a male child, but not a female child, look more like a boy; and to help a female child, but not a male child, look more like a girl.”

Second, the law discriminates against transgender youth. Roberts rejects this, saying the law “does not classify on the basis of transgender status.” But that is exactly what the law does: It singles out transgender youth and bars them from receiving certain medical care.

The human costs of upholding state laws prohibiting gender affirming care will be enormous. As Sotomayor noted, “Tragically, studies suggest that as many as one-third of transgender high school students attempt suicide in any given year.” She added: “By retreating from meaningful judicial review exactly where it matters most, the Court abandons transgender children and their families to political whims.”

Mahmoud v. Taylor

This case involved a challenge to Montgomery County, Maryland’s curriculum about sexuality and gender identity. A group of parents objected on religious grounds, arguing it infringed their free exercise of religion  to not have notice of the curriculum and the opportunity to opt their children out of the instruction. The Court, in a 6-3 decision, agreed.

Justice Samuel Alito, one of the Court’s staunchest conservative voices, wrote the majority opinion. He stressed that it violated the Constitution’s guarantee of free exercise of religion to have children exposed to materials that their parents find objectionable on religious grounds. He wrote that “what the parents seek here is not the right to micromanage the public school curriculum, but rather to have their children opt out of a particular educational requirement that burdens their well-established right ‘to direct the religious upbringing’ of their children’ under the free exercise clause of the First Amendment.”

Justice Sotomayor again wrote for the dissenters and disagreed that exposure to material is an infringement of free exercise of religion. She said the Court’s decision “threatens the very essence of a public education” because it “strikes at the core premise of public schools: that children may come together to learn not the teachings of a particular faith, but a range of concepts and views that reflect our entire society.”

This decision, which continues a long string of victories for religious conservatives before the Court, will cause chaos in public schools. Does it mean that schools must give parents notice and the chance to opt out every time evolution is taught or an English class has a book with witches or anything some parent might find objectionable on religious grounds? Justice Alito’s majority opinion offered no limiting principle. But can public schools really operate on such a cafeteria line basis?

Free Speech Coalition v. Paxton

In this case the Court upheld a Texas law that requires age verification for access to websites with more than one-third sexually explicit content. This, too, was a 6-3 decision, with Justice Thomas writing the majority opinion and Justice Kagan writing for the dissent.

Interestingly, the question presented to the Court focused just on whether the Fifth Circuit erred in using rational basis review – the most lenient level of judicial review, which requires only that the law in question be rationally related to a legitimate government interest – when assessing the law in question. The Supreme Court, though, went further and decided the actual merits of the case. The Court said that intermediate scrutiny – which requires the law to be substantially related to an important government purpose in order to be upheld – is the appropriate test and found that the Texas law met this requirement. Justice Thomas wrote that the “power to require age verification is within a State’s authority to prevent children from accessing sexually explicit content.” He concluded, “The statute advances the State’s important interest in shielding children from sexually explicit content.”

Justice Kagan’s dissent argued that strict scrutiny – under which the law must be shown to be necessary to achieve a compelling government purpose – should be the test based on prior Supreme Court decisions. In Ashcroft v. ACLU (2004), for instance, the Court used strict scrutiny to strike down provisions of the Child Online Protection Act that required age verification for sexually explicit websites. The Court there said that the government cannot restrict the speech of adults to protect children. Although the Court did not overrule Ashcroft v. ACLU, it is very difficult to reconcile it with the Court’s decision in Free Speech Coalition v. Paxton.

If the Court had used strict scrutiny, the Texas law surely would have been struck down because the government then would have had to prove there was no other way to protect children. And, indeed, decades of precedent establish that the test should have been strict scrutiny because of the Texas law’s  content-based speech restrictions.

Conclusion

At a time when our country is so divided, I still optimistically hope that the Court might play a moderating and even a unifying role. That so clearly didn’t happen this year, as the conservative majority repeatedly chose sides. The Court’s legitimacy, and ultimately the country, is sure to suffer.