The Briefing
October 7, 2014
This is a rush transcript. This copy may not be in its final form and may be updated.
It’s Tuesday, October 7, 2014. I’m Albert Mohler and this is The Briefing, a daily analysis of news and events from a Christian worldview.
1) Supreme Court rejects all 5 same-sex marriage appeals in major milestone of moral revolution
The news that came yesterday from the United States Supreme Court was the news that virtually no one was expecting. The news came in the most unexpected way when the Supreme Court announced that it was not going to take any – not even one – of the five appeals coming from five different states on the question of same-sex marriage. As recently as Sunday night, it seemed a sure thing that at some point, likely this week, the Supreme Court would announced not just that it was going to take one of these cases, but it would identify which one of these cases it was going to take. So the stunning surprise came yesterday when the Supreme Court announced that it was going to reject hearings on all five of these cases. This means that the United States Supreme Court yesterday decided not to act, and in failing to act it let stand lower appeals court decisions that had struck down same-sex marriage amendments in various states. And this means that the decision not to make a decision is actually perhaps even more far-reaching than if the court had decided to take one of these cases. And this requires a bit of explanation.
At the beginning of every Supreme Court term, the court announces which cases it is going to take on appeal from lower courts. These cases are granted what’s called a grant or writ of certiorari; which means that the Supreme Court is going to take up the case and eventually to decided it. In the shorthand of constitutional attorneys, the United States Supreme Court grants cert or says it’s going to take a case. It also fails to grant cert, and thus it makes the decision of a negative sort – stating that it’s going to let lower court decision stand. And that’s exactly what the court did yesterday, and it did so however in a way to caught nearly everyone by surprise.
In response to the decision yesterday, Adam Liptak of the New York Times said that the court had granted the proponents of same-sex marriage when he called a tacit victory. Richard Wolf of USA Today said that the court had decided to decide by not deciding. Josh Gerstein at Politico said that the Supreme Court had punted. Garrett Epps of the Atlantic said that the court’s decision not to take any of these cases meant that the fighter over same-sex marriage is over. Similarly Britt Hume told Fox News that this means that the issue of same-sex marriage is effectively settled.
Speaking of the effort to defend marriage as exclusively the union of a man and a woman, Britt Hume told Fox News “that’s just basically over.” He said quote,
“I think that, while the Supreme Court didn’t really take up the issue today, what it did, leaving intact these rulings against the bans and given the public opinion where it stands, that there’s just no political momentum on the side of this issue.”
He went on to say,
“This is as fast a reversal of public opinion that I’ve ever seen on a major issue, particularly one this contentious. And there’s now a constituency in both parties in favor of this. You have, of course, many liberals favor it. They constitute most of the Democrat party. And you have the libertarian element of the Republican Party, an important part of the Republican Party, favoring it as well. So it’s been a fast movement, but a bipartisan one.”
Hume’s comments are very interesting, not only because he speaks of the velocity of this change in public opinion but because he points out that the consensus that the issue simply now needs to go away is shared by both many Democrats and Republicans. The surprise here is of course those amongst the Republicans; for the Republican Party as recently as the last presidential election in 2012 overwhelmingly adopted a party platform that called for defining marriage as the union of a man and a woman. This shows just how fast a political party can shift on an issue even so controversial and central as this. And of course it’s not fair to say that all Republicans have shifted, but there is a significant consensus building that the political battle is simply over. And on the other side of this you can predict a new Republican synthesis that will accommodate same-sex marriage as a legal reality. What happened on Monday represents a major milestone in our moral revolution and one that is going to have lasting and historical significance.
As recently as last weekend USA Today featured a cover story declaring the virtual certainty that the court would take up at least one of these cases and the paper declared that same-sex marriage is “a cause whose time has come.” Well it may be that this is a cause whose time has come when it comes to the larger culture, and that will be due to the massive moral shift that is now taken place – not just over the last several decades, but even in the last several months. But the nation’s highest court has decided that now is not the time for it to take up such a case. Faced with the opportunity either to stop same-sex marriage in its tracks or to hand down a sweeping decision tantamount to a new Roe v. Wade, the court took a pass. Some will argue that the court’s decision was a strategic choice intended to preserve its dignity and stature; already many defenders of natural marriage are doing their best to argue that the court’s refusal to take a case is better for the cause of marriage than a sweeping decision in favor of same-sex marriage. The proponents of same-sex marriage had hoped for just such a sweeping decision. As a matter fact, attorneys for the same-sex marriage cause were actually even jockeying for position, hoping to be the lead counsel on the case that would later be seen as the same-sex marriage Roe v. Wade.
But make no mistake, the proponents of same-sex marriage won this round and they won big. They didn’t get the sweeping coast-to-coast ruling they wanted, but what they got was perhaps even a faster track to the same result. Had the court actually taken one of these cases, the oral arguments would not have taken place until early 2015. The decision would not likely have come down until the end of next June, until then same-sex marriage would effectively be on hold. Now, the court’s decision to allow lower court rulings to stand sends an immediate signal; it’s full steam ahead for same-sex marriage coast to coast. Just keep in mind the math that is involved here. As of last weekend, 19 states plus the District of Columbia had legal same-sex marriage, the five states that were in play for the court’s decision today now find that they will have legal same-sex marriage; that would raise the number to 24. But to that you have to add six states because in allowing these decisions, made at the US Circuit Court of Appeals, to stand what now happens is that all of the states within those circuits are included in this decision. That means that right away, 30 states out of 50 will have legal same-sex marriage. Yesterday’s decision not to decide was actually a decision with huge and momentous consequences. The math has just gone from 19 to 30 in about 24 hours.
But there’s a bigger message that the court sent. The court’s decision also sent the message that the remaining federal courts are put on notice that same-sex marriage is now the expectation of the Supreme Court and no appeal in the question is likely to be successful or even heard. You can expect the lower courts to hear that message loudly and clearly and fast. There are challenges to the laws in the 20 remaining states, either the laws or the constitutional amendment, barring same-sex marriage. The signal sent today by the US Supreme Court is that those who are pushing for court challenges now have an open door and the court that will hear those challenges now have what amounts to an instruction from the Supreme Court: pave the way for legal same-sex marriage or eventually have your decisions reversed by the appellate courts, and if not by those courts than by the Supreme Court.
Yesterday will be remembered in US legal history for many years to come as a landmark day toward same-sex marriage, it was the day the nation’s highest court took one of the lowest paths of least resistance. It now seeks to maintain its prestige by avoiding the backlash the court experience in the aftermath of Roe V Wade; it wants to have its victory without taking further risk to its reputation. Given the recent remarks made by Justice Ruth Bader Ginsburg, even some of the court’s most liberal justices wanted to avoid a backlash while achieving the same eventual result. Today’s announcement means of that their hopes were achieved. But the decision also indicates something further, it points to the vindication of Justice Antonin Scalia. I wrote about this at my website at AlbertMohler.com yesterday,
“When the Court handed down the decision striking down all state sodomy statutes in 2003 [the case was known as] Lawrence v Texas, Justice Scalia declared that it meant the end of all morals legislation. The majority opinion in that decision was written by Justice Anthony Kennedy, whose legal reasoning was ridiculed by [Justice] Scalia in one of his most scathing dissents. Kennedy, said Scalia, had created ‘a massive disruption of the current social order,’ [he said] that it could not be stopped. Further: ‘Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium [that meansthat has traditionally attached to homosexual conduct.’”
But in that same dissent Scalia wrote,
“This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples.”
Furthermore he wrote,
“Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as a formal recognition in marriage is concerned. [Given Kennedy’s majority opinion, Scalia wrote] … what justification could there possibly be for denying the benefits of marriage to homosexual couples?”
Justice Kennedy joined by Justice Sandra Day O’Connor in a concurring opinion, both of those justices we need to remember were appointed by Republican Presidents. Both Justices Kennedy and O’Connor stated that their logic did not necessarily lead to same-sex marriage. But it was Scalia who was right, and his reasoning was vindicated yesterday.
Even more recently, Justice Kennedy was the author of the Supreme Court’s majority opinion in the Windsor decision striking down the federal government’s defense of marriage act. That decision handed down just in June of last year set the stage for today’s development in a big way. Once again, Justice Scalia saw it coming. He called the court’s decision to strike down DOMA jaw-dropping in both its audacity and its reasoning; then he offered these memorable words,
“As far as this court is concerned, no one should be fooled, it’s just a matter of listening and waiting for the other shoe”
The other shoe he was referencing there is the legalization of same-sex marriage. So what happened to the court or perhaps what didn’t happen is a direct vindication of Scalia’s warnings; he saw it coming and he warned us. What the courts majorities has now decided, evidently, is to allow shoes to fall at the hands of lower courts that will follow its reasoning and obey its signals. The news from the court today means a sad vindication for Justice Antonin Scalia; it means an even sadder day for marriage in America, and it means, no matter what you think you heard or didn’t hear from Washington, that the other shoe has dropped.
2) Article on pedophilia inadvertently shifts issue away from morality to medical
But if the news coming from Supreme Court yesterday wasn’t yet enough when it came to bad news, just consider the moral signal that was sent by a major opinion piece that was published in none other than the New York Times in yesterday’s edition. The article was written by Margo Kaplan, a professor of law at Rutgers University. And the title of her article basically says it all, the title is this: “Pedophilia: a disorder, not a crime.” One of the things we need to note, and I will not go into detail about this particular article, other than to say we should note that when something like this is described as a mental illness – and that is the central point of this article – it is basically shifted in terms of our contemporary culture away from being a moral issue to being merely a medical or a psychiatric issue.
I should state at the onset that this professor of law at Rutgers University is doing nothing to endorse pedophilia, doing nothing – I am sure she believes – to even lower the moral outrage at any kind of assault upon a child; but what this article does, whether the author intends it or not, is to shift the issue of pedophilia away from being a matter of right and wrong to be a matter of illness or non-illness, and that is a profound moral shift. It’s one of the most significant moral shifts that now takes place in the modern world. If you can take an issue and you can turn it into a medical problem, rather than a moral problem, than the culture can decide that it will deal with it in some way other than by moral means. And inevitably, this means that moral outrage against what should bring about that kind of outrage is lowered. And without going into any further detail about this issue, lets simply state this: any lowering of moral outrage on an issue like this, any diminishment of moral concern, any moral confusion on this issue whatsoever, is deadly dangerous – not only for individuals but for society at large. And in that light – it should send chills down our spine to know that a newspaper as respected as the New York Times ran this opinion article in yesterday’s edition.
3) ‘Need’ for online abortion class reveals medical professions distaste towards abortion
Then news comes from California yesterday that the culture of death now has a MOOC; that is a massive open online course. These courses, pioneered by major universities around the nation, have become very popular – if not with for credit students, than with the larger public. And now Samantha Allen writing for the Daily Beast informs us that,
“For the first time ever, an American university is offering a dedicated online course on abortion. Starting on October 13th, the University of California, San Francisco (UCSF) will offer a six-week class called ‘Abortion: Quality Care and Public Health Implications’”[It’s going to be presented] through the online course platform Coursera.”
Samantha Allen explains,
“Operating primarily in a public health framework, the course will address patient-centered abortion care both during and after the first trimester before proceeding to examine obstacles to safe abortions and abortion access worldwide.”
Note just for a moment that when safe abortion is mentioned here it means safe presumably for the woman, certainly not for the unborn child. Why would such a course be necessary? Well, as it turns out, medical schools don’t want to present course material on abortion and most medical students don’t want to take it. As a matter fact a study done in 2005 of US medical schools revealed that less than a third of US accredited medical schools include even a single lecture focused on abortion during the clinical years of medical education; a 2009 survey also found that fully a third of North American medical schools do not include abortion education in preclinical courses either. Now let’s just pause for a moment to think about this – evidently medical schools charged with the medical education of future physicians, and the medical students themselves are not very interested in abortion; and for good reason, they have gone into the medical profession to heal, not to kill. And the very idea of abortion is at least so reprehensible in terms of a career trajectory that doctors don’t want to go into it and medical schools don’t want to teach it.
There is a basic moral lesson embedded in these statistics, and the medical profession’s long-standing abhorrence of abortion is underlined by the fact that most medical schools don’t want teach it now, and most medical students don’t want to take a course related to it. They certainly aren’t going to set the trajectory of their careers to have anything to do with abortion. And that creates a crisis for the pro-abortion cause and that’s why the University of California in San Francisco is deciding to offer this massive online course. And the agenda is actually made very clear in this article. The courses to be taught by Professor Jody Steinauer who told the Daily Beast,
“I think that if we can inspire even a small portion of the people who take the course to take steps in their communities to increase access to safe abortion and decrease stigma about abortion, then we have been totally successful,”
Note the moral imperative within her course description here. She’s saying that the purpose of the course will have been fulfilled if at least some of those who take the course, to use her words, do their part to decrease stigma about abortion. Make no mistake and just look at her words – that is a moral mission, not a medical mission. One paragraph in Samantha Allen’s article is more revealing than she must understand she writes,
“A stigmatized subject like abortion that barely receives adequate coverage at elite institutions could stand to benefit from an online format, providing educators like Steinauer with the flexibility, freedom, and time that teaching a controversial but important subject like abortion requires.”
Straightforwardly, what those words reveal is this: if a company is doing something that is so distasteful that it wants to keep it outside the view of the public, it takes that business offshore. A medical school determined to address the issue of abortion in its curriculum finds that the only way to really pull that off is to take the abortion course online. That should tell us something, the culture of death is determined to make headway – if they can’t make headway on campus, it will do it’s very best to make headway online.
4) Atlantic City’s massive Revel casino a poor gamble for city
Finally, a parable being played out there in Atlantic City, New Jersey. Some days ago we discussed the fact that Atlantic City, New Jersey is experiencing a severe recession – even a depression – when it comes to the gambling industry. The industry that that community had pegged its hopes on, an industry that has always failed to deliver on its promises – both to the gambler, and as it turns out, to the community that hopes to profit by gambling. Several of the leading casinos in Atlantic City have already closed and there are others that are teetering on bankruptcy. But the most infamous of all was the one that is only two years old; and that is the bankrupt Revel Casino that was built at a cost of $2.4 billion just two years ago in hopes of revitalizing Atlantic City’s gambling industry. Let’s look at the math again; this was a massive casino, including a skyscraper hotel, built at the cost of $2.4 billion. It went bankrupt just a matter of weeks ago. And it sold over the weekend for $110 million. Now if you’re doing the math that means that those who gambled on this gambling casino lost 19 of every $20 in the transaction.
Meanwhile down the boardwalk in Atlantic City, the Trump Entertainment Resorts are trying to avoid bankruptcy by asking Atlantic City to give a forgiveness of $30 million in property taxes already owed. Now just consider that, these gambling enterprises were opened promising to bring massive millions of dollars into local coffers and now they’re asking in this case for $30 million out of the city just to stay in business and keep the lights on. Given all of this out of Atlantic City, it’s hard to imagine that anyone can take the claims of the gambling industry seriously. But just one state to the north in the state of New York, Governor Andrew Cuomo is going ahead with a bold proposal to expand gambling, and indeed even casino gambling, in that state. How that can be done with a straight face is virtually anyone’s guess, but then again that’s true of the whole picture of gambling. It fails to deliver on its promises every single time, but states and municipalities and others seem to go at it time and time again. And in so doing their simply duplicating what takes place in terms of how they sell gambling to the eventual customers who also, against all the odds, and against all the evidence, gamble their hard-earned money over and over again and lose, over and over again. In so doing, writ large, or writ small they simply confirm what the Bible has taught all along; sin always inevitably fails to deliver on its promises.
Thanks for listening to The Briefing. For more information go to my website at AlbertMohler.com you can follow me on Twitter by going to twitter.com/albertmohler. For information on The Southern Baptist Theological Seminary go to sbts.edu. For information on Boyce College just go to boyecollege.com. I’ll meet you again tomorrow for The Briefing.
