The Briefing 04-06-17

Part I

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7th Circuit drops bombshell: Sexual orientation covered under Title VII of 1964 Civil Rights Act

There is so much attention rightly directed to the United States Supreme Court. After all even these days, we are in the final hours of the confirmation process for the next Justice of the U.S. Supreme Court, we hope, Judge Neil Gorsuch. We often tend to forget that there are actually hundreds of federal judges serving across the country and at any given time any one of those judges or a mere panel of those judges can hand down a decision that basically is an unexpected bomb that goes off in the middle of our culture. That’s exactly what happened this week. As yesterday’s Indianapolis Star reported,

“The 7th Circuit Court of Appeals in Chicago ruled 8-3 Tuesday that workplace discrimination on the basis of sexual orientation violates Title VII of the Civil Rights Act of 1964.”

Now just taking that single sentence in terms of the opening paragraph of this article, what we’re told is that this highest court yet to rule on this issue has decided that sexual orientation is covered under the Civil Rights Act of 1964, specifically under the section of that act which is known as Title VII. Title VII, again going back to 1964, forbids discrimination in the workplace on the basis of race, color, religion, sex, and national origin. Now you will notice that sexual orientation is not listed there, but speaking for a panel of judges of the 7th Circuit, Chief Judge Diane Wood in her majority opinion said that sexual orientation is covered under Title VII of the Civil Rights Act of 1964 even though there was clearly absolutely no legislative intent of the times that sexual orientation, not even discussed at the time, would be included.

Now before we look further at the actual decision, the first thing we need to recognize once again is how many of our nation’s biggest questions are now being decided, if not settled, by courts, and in particular the federal courts. The 7^th Circuit is a rather liberal court, but not one of the most liberal of all the U.S. Circuit Courts of Appeal. It is located in Chicago, Illinois, and included in the majority opinion were some judges who are not stereotypically liberal. One, as a matter of fact, is often identified as a conservative. But this is a very, very liberal decision. It will have a very radical impact. Here you have one of the leading U.S Courts of Appeal determining that even though sexual orientation doesn’t appear and honestly wasn’t envisioned when this legislation was passed by Congress, it is nonetheless now binding, including sexual orientation as a protected class and category.

The case comes back to an employee who claimed that a local community college, in this case Ivy Tech Community College in Indiana, had not given her a full-time position because she was openly identified as a lesbian. Now we also need to note that there is no judgment in this case on the merits of the case, but rather as to whether or not this former employee had the right to bring the legal action on the basis of Title VII of the Civil Rights Act. That is to say that the final disposition or verdict on this case once the case is heard as it will be claimed on its merits is less important than the fact that the case is being heard and that this particular plaintiff has won her argument that sexual orientation is a protected class under Title VII, thus giving her the authorization to move forward with making this argument in court.

The ramifications of this decision are absolutely massive in terms of the culture, and it will set off continuous shockwaves that will affect other U.S. district courts and other circuit courts of appeal as well. Eventually we should well understand this is yet another case that will find its way before the United States Supreme Court where again it may be decided without being settled.

That’s exactly what happened in Roe v. Wade on abortion. The Court handed down a decision. It did decide, but its decision hardly settled the matter. The specific argument in the text of the majority opinion handed down in the name of Chief Judge Diane Wood is particularly troubling. She wrote,

“‘Viewed through the lens of the gender non-conformity line of cases, Hively represents the ultimate case of failure to conform to the female stereotype (at least as understood in a place such as modern America, which views heterosexuality as the norm and other forms of sexuality as exceptional): she is not heterosexual,’ Wood wrote. ‘Hively’s claim is no different from the claims brought by women who were rejected for jobs in traditionally male workplaces, such as fire departments, construction, and policing. The employers in those cases were policing the boundaries of what jobs or behaviors they found acceptable for a woman (or in some cases, for a man).’”

Now let’s just look at that reasoning. Here you have a very influential federal judge telling us that discrimination on the basis of sexual orientation is “no different”—those are her very words—from discrimination claims brought by women who were rejected for jobs in traditionally male occupations. The issue here is the “no different.” That is an astounding and very revolutionary claim. This now puts sexual orientation on par with biological sex as an immutable characteristic. But as we’ve seen, it’s hardly immutable. The argument that was made for so long by LGBTQ activists is that sexual orientation is a fixed and absolutely determined reality. But now they have turned the tables on their very own argument, and they’re now making the case that sexual orientation is often a fluid and absolutely individualistic category. We have the category of those who are now called hasbians, those who once identified as lesbians but do so no longer. If sexual orientation is an immutable characteristic, then to state the obvious, it’s immutable, it can’t change. But of course it does change at least in terms of the arguments now made by many in the LGBT community, particularly when it comes to gender identity.

In its coverage of the decision, the Chicago Tribune cited Gregory Nevins, identified as the Legal Counsel on Employment Fairness Project director for the LGBT advocacy group Lambda Legal as saying that the ruling is a “‘game changer’ for the LGBT community”

Speaking of what I described as the shockwaves that will now be reverberating throughout the federal judiciary, Nevins said,

“Now that we see this in the right light, I think we’ll see a domino effect (court by court). All of those cases ruled in the last 15 or 30 years, that’s a moot point. It’s a new day.”

Now what’s important about that timeline that Nevins gave? It’s the fact that for the last 15 to 30 years, the federal courts have ruled the opposite of what this U.S. Federal Court of Appeals ruled on Tuesday. That’s what makes this decision handed down at least quite unexpectedly in terms of the larger culture while many people were looking at other issues and following other headlines such a bombshell on the midst of our culture. It’s because the general trajectory of jurisprudence for the last several decades, based upon legislation adopted in 1964, has now been turned on its head, and it was done according to the arguments in current demands of the LGBT movement. That’s abundantly clear.

One of the lesser considerations, the reality in the aftermath of this kind of decision is that it will set off a floodtide of litigation. The decision handed down by the 7^th Circuit on Tuesday means that an entire class of individuals are now qualified to seek legal redress in terms of litigation in the federal courts. But the ultimate impact of this decision will be even larger than any floodtide of litigation. It will be instead the moral signal that is being sent and of course the fact that we are looking at a reinterpretation of a law passed in 1964 when the intention of the law had nothing to do with the decision that was handed down on Tuesday.

Just a quick reminder of how our constitutional system is supposed to work: that was a law passed by Congress in 1964 and signed into law by President Lyndon Johnson. If Congress wanted to include sexual orientation as another protected class, Congress could act in just such a way, adopting legislation, and a bill that would pass the House and the Senate and be signed into law by the then-current President of the United States. That has not happened. Instead, the courts have decided effectively to rewrite the legislation while claiming that all they’re doing is interpreting the law written a generation ago.

Part II

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Inaction would be unacceptable: International outrage as chemical weapons used again in Syria

Next, the other really big story yesterday was not about the United States. Instead, it had to do with a truly horrible story coming from the nation of Syria. Headlines went worldwide on Wednesday when video became available indicating an attack in Syria upon a village that involves chemical weapons and the suffering of the citizens of that village was demonstrated there for all to see on video, including the excruciating suffering of infants and very young children. We’re talking about what has been understood to be one of the most heinous and evil war crimes ever since the early 20^th century, and that is the use of chemical weapons. The use of such weapons is absolutely outlawed by every major moral convention undertaken by the international community in order to define the morality of war. And of course that means that only outlaw regimes use chemical weapons. That’s exactly what we’re facing in Syria; it is an outlaw regime. There we have an autocratic dictator, Bashar al-Assad, who is determined to hold onto power, and he’s done so now through successive years of one of the most bloody and costly civil wars in the history of modern times. We’re talking about a leader who has killed thousands upon thousands of his own people in order to prop up a brutal regime, and we’re also talking about a government and an autocratic dictator who is protected in power by an evil ally. In this case, that is Russia. Vladimir Putin is the sponsor of Syria and the protector. Putin entered into the military situation with Russian forces in the year 2015, and since then the presence of Russian forces has been a significant limitation upon European and American allies taking action in defense of the Syrian people.

But of course, this situation is complicated further by the fact that there is a history here. And that history goes back in terms of American involvement to a decision of un-involvement, and that was the responsibility of former President Barack Obama. In the year 2012 when the Syrian civil war was an unfolding news story, President Barack Obama said that he had drawn a red line that President Assad could not cross without bringing on American military action. America, he said, would not tolerate the Syrian regime turning on its own people in such a murderous way. But that turned out to be an empty and idle threat. That was made clear in the Trump White House just yesterday when the spokesperson Sean Spicer said very clearly that this was the fault of the Obama Administration in terms of inaction, drawing a line in the sand, famously or infamously called a red line by President Obama, that led to a non-enforcement of the very threat that President Obama had made.

One of the lessons to learn from this is just how dangerous it is especially as a world power and a world leader to make threats one will not make good, and that is exactly what the world observed when President Obama made that threat and then did not back it up with American military resolve. The lesson that was learned then by Bashar al-Assad was that he could get away with killing his own people, and he has done just that. And of course we are also looking at the limitations of American power. It can be argued that President Obama had limited options in terms of any military resolve, but it’s also indisputable that senior members of his own administration, including his own Secretary of State, were bitterly opposed to the lack of action that President Obama took after the continued criminal acts of Bashar al-Assad.

In terms of the attack that was described as a toxic kill zone on Tuesday in Syria, Anne Barnard and Michael R. Gordon reported,

“One of the worst chemical bombings in Syria turned a northern rebel-held area into a toxic kill zone on Tuesday, inciting international outrage over the ever-increasing government impunity shown in the country’s six-year war. Western leaders including President Trump blamed the Syrian government of President Bashar al-Assad and called on its patrons, Russia and Iran, to prevent a recurrence of what many described as a war crime.”

Now that’s technical language in order to protect journalistic integrity, that is the phrase that many describe this is as a war crime. If it indeed happened as all the evidence now indicates, it’s not just described as a war crime, it is objectively a war crime. The reporters then write,

“Dozens of people, including children, died — some writhing, choking, gasping or foaming at the mouth — after breathing in poison that possibly contained a nerve agent or other banned chemicals, according to witnesses, doctors and rescue workers. They said the toxic substance spread after warplanes dropped bombs in the early morning hours. Some rescue workers grew ill and collapsed from proximity to the dead.”

Now the interesting thing to note here is how blame for this was very quickly assigned. The blame as the American President’s administration made very clear was abundantly evident in the fact that no one but the Syrian government could’ve carried out this attack by air. The rebels simply do not have such capability.

On Tuesday, President Donald Trump described the attack as reprehensible also describing it as an act “that cannot be ignored by the civilized world.”

Secretary of State Rex Tillerson blamed the attack directly on the Syrian leader. He went on to say that the patrons, the protectors of the Syrian dictator, “Russia and Iran also bear great moral responsibility for these deaths.”

Just last week, sources within the Trump administration, including the Secretary of State, had expressed the understanding that unless the situation changed remarkably, Bashar al-Assad is going to continue as the leader of Syria, describing the only effort that might remove him as one that would be under the control of the Syrian people. But that is very unlikely, of course, as long as the dictator has such weapons and such warfare at his disposal on his own people. On Wednesday in light of the attack President Trump said,

“My attitude toward Syria and Assad has changed very much.”

At this point, it is important to understand that the United Nations had attempted to take action against Syria in terms of previous criminal acts against its own people, but that action had been vetoed in the Security Council by, well you guessed it, Russia. And that was exactly how the White House responded yesterday, saying that it is now up to Russia as the patron and protector of Assad to bring an end to the killings of the citizens of that nation, including its children.

But another signal was sent at the United Nations by U.S. Ambassador to the United Nations, Nikki Haley, who said that the United States “might take unilateral action if the Security Council failed to respond to the latest atrocity in the Syria war.”

Here’s the thing to note. President Trump and his administration have rightly criticized President Obama for making a threat and then failing to act. Well now having changed in his own opinion about Syria after this attack and clearly instructing his Secretary of State and United Nations Ambassador to go on the offensive against Syria in order to defend the Syrian people, speaking of the fact, to use his own language, President Trump said that this particular attack had “crossed a lot of lines for me,” it is now very important that the Trump administration itself facing limited options in terms of military action not be found in the position of making another idle threat.

We have to recognize that there is no easy way to resolve the Syrian civil war. Furthermore, it’s hard to know if even a civil society is possible in Syria in the aftermath of this cataclysmic conflict. It’s also important to understand that military options are indeed very few. But now that we have the situation documented before our eyes, the world, the civilized world, is again in a position of not being able to say we did not know what was happening. And at some point even if the options are few, inaction becomes absolutely unacceptable.

One final thought on this story: Christians looking at this kind of video evidence must remember just how horrifying many lives are around the world and just how dangerous much of the world is, injurious to human life, not only negative towards human flourishing. That insight should make us far more morally aware and also far more thankful in terms of the understanding that we have not had to face the same kind of horror that so many Syrians faced just in the last few days and hours.

Part III

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Parsing the partisan divide: The competing worldviews of 5 political tribes in Washington, D.C.

Finally, we also need to recognize in light of the previous story that when we’re talking about political controversies, even political divisions, in the United States, we are talking about something that is categorically different than that found in many other parts of the world. Just consider a story that appeared this week in the Wall Street Journal.

Writing on Tuesday, Gerald Seib in his Capital Journal column spoke about a tribalism that is spreading in Washington D.C. He described five different political tribes now very evident in Washington, and what he’s suggesting here is that it’s just too simplistic to say that there are just two tribes, Republicans and Democrats, conservatives and liberals. Instead he says if you’re looking at the worldview and political perspectives that are currently very represented in Washington, there aren’t just two, there are at least five.

He goes through his own list. He says the first is the Trump Tribe. He says this is made up of the President, his advisers, and his wider administration. The main loyalty there inside the administration is personally to the President and outside the administration it is to the voters who put President Trump in office. What makes that interesting is that it doesn’t necessarily have anything to do directly with the Republican Party.

The second group is identified as Governing Republicans. That’s the long-standing Republican Party, especially the majorities in the United States House and the Senate. And as Gerald Seib indicates, they operate according to a different political philosophy. There’s enormous overlap with those he identifies as the Trump Tribe, but they are not exactly the same. The House and the Senate are committed to the legislative process, and they tend to have a much longer political perspectives than that that is now represented in the White House.

There’s a third tribe. He identifies it as the Freedom Caucus Republicans. This is the far right, at least in terms of the Wall Street Journal’s perspective, and this is made up of what might be about 40 of the most conservative members of the House of Representatives. This is the caucus that takes responsibility now for the Republican failure just in a matter of recent days to repeal the ObamaCare legislation. The repeal wasn’t conservative enough for this group. And Seib correctly notes, they operate according to a different political worldview than either the President or the governing Republican majorities in Congress, both of whom were for the legislation that the Freedom Caucus found inadequate.

There’s a fourth tribe. He identifies them as the Never-Trump Democrats. He says on the other side of the aisle are some Democrats who appear determined not to cooperate with President Trump on anything. He says the exact number of these Democrats would be hard to determine. But one significant figure among them would be Vermont Senator Bernie Sanders. The point he makes about this tribe is that they are going to oppose the President even when, frankly, the legislation might be more pleasing to them. It’s because they’re going to be against it just because President Trump is for it. That’s all they need to know.

But then there is a fifth tribe that Seib identifies. They are the Maybe-Sometimes-Trump Democrats. He writes these are moderate to conservative Democrats, many from states the President won who are willing to work with the Trump administration on selected issues. He mentions Senators Heidi Heitkamp of North Dakota, Joe Manchin of West Virginia, and Joe Donnelly of Indiana. For example, those three have indicated they would back Judge Neil Gorsuch for the Supreme Court, even though the vast majority of Democrats have said they would steadfastly not, indeed they would filibuster the nomination.

From a Christian worldview perspective, this is actually a really interesting article. It’s informative because here you have a veteran observer of Washington breaking down what he sees as the five most relevant tribes in Washington these days. But of course our main interest is not the political tribe, but the worldview that determines how they see the world, and how they come up with their own political decisions and policies.

The second point of worldview significance is what Gerald Seib is sending as a signal to the class of political observers, those who are reading the political columns in the Wall Street Journal. He’s not denying that there is in the main a great division between two different worldviews, a partisan polarization between conservatives and liberals, Republicans and Democrats. He’s just saying that if you look even closer you will note that within those two big polarities in American politics there are still some different worldview distinctions that should be recognized.

But finally here we need to note again, thanksgiving—thanksgiving that even as the United States is rightly concerned about this political polarization, we are not looking at the level of political strife that comes down to warfare and violence in other nations of the world. We ought not to let that pass also without our thanksgiving.