The Briefing
November 7, 2014
This is a rush transcript. This copy may not be in its final form and may be updated.
It’s Friday, November 7, 2014. I’m Albert Mohler and this is The Briefing, a daily analysis of news and events from a Christian worldview.
1) 6th Circuit breaks trend of political usurpation by courts, upholds states’ gay marriage bans
As it turns out, this is going to be one of most consequential weeks in recent memory. Not only with the election taking place on Tuesday but with what happened yesterday – late yesterday –at the 6th US Circuit Court of Appeals where a panel of three judges decisively upheld state bans on same-sex marriage in four states. The states are Michigan, Ohio, Kentucky, and Tennessee, and the actual decision – the majority opinion – handed down by this panel is breathtaking in its confrontation with the general trajectory of recent years in the courts toward the legalization of same-sex marriage. The bottom line in terms of the decision handed down by this panel; in the first place this is an issue that should be decided by the people through the democratic process, not by the courts – that is explicitly not by judges – and secondly, if indeed the society says that it’s rational basis for defining marriage as the union of a man and a woman has to do with the stability of society, has to do with the venerable nature of marriage, it has to do with the importance of reproduction and procreation, then that is indeed a rational basis and the law should stand rather than to be struck down.
This very important decision handed down yesterday came from a three-judge panel of the US Court of Appeals for the Sixth Circuit. In this case the three judges split two to one; on one side you had Judges Jeffrey Sutton and Rebecca Cook and on the other side Judge Martha Craig. Both Judges Sutton and Cook upheld these states and their bans on same-sex marriage. Dissenting from the other two was Judge Martha Craig, she basically sided with the direction taken by other of the appellate courts in the nation that have struck down these bands on the legalization of same-sex marriage. The majority opinion in this case was written by Judge Sutton and he is known in legal circles for extremely elegant opinions and yesterday’s opinion is indeed eloquent. It’s eloquent and furthermore it’s really important.
In the first place his opinion includes a very rare statement of judicial humility. What is the role of the federal judge? In this case Judge Sutton says it is not to decide for the people what the people can will decide for themselves. In his opinion,
“Of all the ways to resolve this question, one option is not available: a poll of the three judges on this panel, or for that matter all federal judges, about whether gay marriage is a good idea,”
He went on to say,
“Our judicial commissions did not come with such a sweeping grant of authority, one that would allow just three of us—just two of us in truth—to make such a vital policy call for the thirty-two million citizens within the four States of the Sixth Circuit: Kentucky, Michigan, Ohio, and Tennessee.”
He went on to say,
“What we have authority to decide instead is a legal question: Does the Fourteenth Amendment to the United States Constitution prohibit a State from defining marriage as a relationship between one man and one woman?”
By the time you read very far into the opinion it is clear that this panel has decided that the 14th amendment to the United States Constitution does indeed not prohibit a state from defining marriage as the relationship, as exclusively the relationship, between a man and a woman. In his very careful argument Judge Sutton goes back to the year 1972 when the United States Supreme Court refused to take a same-sex marriage case. In that particular case in 1972 the Supreme Court of the United States was asked to take a case in which the Supreme Court of the state of Minnesota had ruled that there was no fundamental, there was no constitutional right, for a same-sex couple to be married. When the court decided not to take that case back in 1972, it did what it does not always do – it explained why it was not taking the case; that was back in 1972. Back in that statement the court said that the claim that was made by the same-sex couple did not raise “a substantial federal question.” In other words, back in 1972 the Supreme Court of the United States, faced with the very same kind of case that the Six Circuit was just now considering, said that the issues involved in that case did not raise “a substantial federal question” –in other words it was not the business of the federal courts.
But some will say the times have changed and Judge Sutton addresses that issue squarely. He writes,
“But that was then; this is now. And now, claimants insist, must account for United States v. Windsor,”
That was the 2013 case we note in which the Supreme Court of the United States struck down the Defense of Marriage Act. Judge Sutton says,
“Yet Windsor does not answer today’s question. The decision never mentions Baker, much less overrules it. And the outcomes of the cases do not clash.”
Judge Sutton also took seriously the claim that was made by the plaintiffs in this case that there were so-called “doctrinal developments in the law” that would suggest that the six circuit would have to come to a similar conclusion as the Supreme Court did in the Windsor case. Judge Sutton said there were no such doctrinal developments that would necessitate such a pattern.
As Judge Sutton said in the beginning of his opinion, the key legal question, the central constitutional question before his court, was whether or not the 14th amendment to the United States Constitution would render restrictions on same-sex marriage to be unconstitutional and thus unlawful. An answer to that, he points out, that the key issue here is how did the framers of that language in the Constitution actually mean for it to be interpreted. As he said, any faithful kind of interpreter of the document has to ask that question. And if you do asked the question, that is what did the framers of this language mean, as he writes,
“Nobody in this case, however, argues that the people who adopted the 14th Amendment understood it to require the states to change the definition of marriage.”
Furthermore, he points out that the Supreme Court of United States has been employing this very form of logic. He points to the decision handed down last term in the case town of Greece v. Galloway in which the Supreme Court majority ruled that the state of Greece, New York had the right to begin its town Council meetings with prayer because it is not constitutionally or logically sane to suggest that the framers of the U.S. Constitution – in this case its First Amendment – had in mind eliminating that very practice when they followed it themselves; that’s the kind of reasonable common sense that you’d expect not only a lawyer, not only a judge, but any intelligent person to follow.
And speaking of judicial humility, here’s one of the most important statements written by a federal judge I have seen in many, many years. Judge Sutton writes and I quote,
“A dose of humility makes us hesitant to condemn as unconstitutionally irrational a view of marriage shared not long ago by every society in the world, shared by most, if not all, of our ancestors, and shared still today by a significant number of the states.”
That’s an amazing sentence, it bears repeating. Here you have a federal judge writing of the humility that should mark the judiciary – certainly in dealing with something as fundamental as marriage. And as Judge Sutton does not explicitly state, recognizing that marriage is a pre-political institution; the responsibility of government is not to create marriage, it doesn’t have that authority, but rather to recognize what already exists. That’s what we mean when we state that marriage is a pre-political institution. He said again,
“A dose of humility makes us hesitant to condemn as unconstitutionally irrational…”
That’s the claim being made by those who are making the assertion that the U.S. Constitution would invalidate any law against same-sex marriage. He says a dose of humility would lead the court to be very, very reluctant to claim that all of our ancestors are irrational. And furthermore, that most of the people living on the planet defining marriage as exclusively the union of a man and a woman are operating out of an unconstitutionally irrational view. Brilliantly, Judge Sutton then turns the arguments of the plaintiffs on themselves when he writes, and I quote,
“If it is constitutionally irrational to stand by the man-woman definition of marriage, it must be constitutionally irrational to stand by the monogamous definition of marriage. Plaintiffs have no answer to the point. What they might say they cannot: They might say that tradition or community mores provide a rational basis for States to stand by the monogamy definition of marriage, but they cannot say that because that is exactly what they claim is illegitimate about the States’ male-female definition of marriage.”
“The predicament [writes Judge Sutton] does not end there. No State [he writes] is free of marriage policies that go too far in some directions and not far enough in others, making all of them vulnerable—if the claimants’ theory of rational basis review prevails.”
In other words, as he says, if those who are pushing for the legalization of same-sex marriage have their way with their own logic, there is no end to the dissolution of the institution of marriage that will in inevitably result.
From this point Judge Sutton’s opinion just grows even more significant, even more important, in the insights he makes very explicit in his eloquent prose. One of the arguments now being put forward for why same-sex marriage is both constitutional and inevitable is that there has been an evolution in the moral values of the society – by the way, no one can test the fact that that kind of moral evolution is taking place, indeed many would argue and I among them, that what we’re really looking at here is not just moral evolution but moral revolution – but when Judge Sutton takes on this question he understands that this argument actually is one that illustrates the very problem with the claims being made by the proponents of same-sex marriage. In particular he argues that if indeed society is even evolving in terms of its moral judgment on these questions, then way that leave it to the society to evolve. He points to the central predicament, the irrationality the contradiction of those who claim society is evolving and everybody wants the legalization of same-sex marriage therefore we must have the courts do it because the people won’t do it. In other words, you can’t argue it both ways; you can’t argue that this is what people want but we have to as the courts intervene because the people won’t vote for it.
In another absolutely stellar sentence Judge Sutton gets to this point. He writes,
“A principled jurisprudence of constitutional evolution turns on evolution in society’s values, not evolution in judges’ values.”
In other words, he turns it right on them saying if indeed society is evolving, then trust society to get there; but if society is not evolving, you can’t claim society is in order to argue for the righteousness and rightness of your claim. He follows that blockbuster of a sentence with another,
“The theory of the living constitution rests on the premise that every generation has the right to govern itself. If that premise prevents judges from insisting on principles that society has moved past, so too should it prevent judges from anticipating principles that society has yet to embrace.”
The opinion from Judge Sutton is worth reading simply because of its breathtaking common sense, the exact kind of common sense that has been so absent from so many previous federal court decisions on one of the most basic institutions of human existence – that central molecular institution of human society, marriage.
Tying this right to marriage and bringing his legal argument to a conclusion, he writes,
“If, before a new consensus has emerged on a social issue, federal judges may decide when the time is ripe to recognize a new constitutional right [listen clearly to his next words, he writes], surely the people should receive some deference in deciding when the time is ripe to move from one picture of marriage to another.”
That statement is eloquent, it is brilliant, and it is basic. It’s absolutely basic not just to how you would think the federal court should operate but to how democracy should honor and respect, should give deference to the decisions made by citizens through the Democratic process. The judicial usurpation of the political project is exactly what’s been going on in the federal government for the last generation and more. The push to legalize same-sex marriage through the courts is an extension of that problem. Judge Sutton’s opinion arrived just in time to confront that very trend in terms of the federal courts that he exposes as being so weak in constitutional judgment.
So where do we go from here? Let’s just look at the picture as it now stands. The world has changed almost overnight. As of yesterday morning not one federal circuit appellate court had decided to uphold even one state constitutional ban on same-sex marriage – even one state law that upheld traditional marriage. But now, everything’s different. As of yesterday there is a split in the US circuits, that is in the appellate courts and what now happens is that the Supreme Court of the United States that decided early in October it wasn’t going to take this issue, it now faces a situation from which it has no retreat and no escape; it will either take on this issue, it can’t avoid it anymore, or on the other hand it will abdicate its constitutional and moral authority within our nation’s political order.
That’s something you cannot expect the Supreme Court will do. What you now must expect is that in fairly short order the Supreme Court is going to have to take at this question is going to have to schedule oral arguments and is going to have to race towards a decision. Given the highest court’s recent pattern and trend it’s very likely that will happen is that the Supreme Court of United States will rule that there is a right to same-sex marriage in all 50 states. But they’ll now have to reckon with an opinion that they didn’t see and hadn’t encountered before, and that is the eloquent, commonsensical, constitutional, respectful, humble opinion offered by this panel; the 6th circuit. Offered in particular by the judge you wrote the majority opinion, Judge Jeffrey Sutton.
2) Pervasive theological confusion found in study on the American people
Next one of the most important aspects of Judge Sutton’s decision is his respect for the institution of marriage. But even as we come to the end of the week we need to recognize that as important as marriage is – and as important as marriage must be understood to be by Christians – there are truths that are even prior to marriage.
That is why at the end of the week I want to look at a very important research report that was released just in recent days by Ligonier Ministries in partnership with Lifeway research. The major research project is entitled “The State of Theology,” the subtitle; “Theological awareness benchmark study.” The research report is thorough; it’s pervasive, it’s fascinating, it’s frightening. Because what we meet when we look at this particular massive research project is a theological composition of the American people. And what we see when we look at the composition is that if there’s anyone thing that marks the American people in terms of their theological awareness, that one word has to be ‘confusion.’
There’s good news and bad news in this report the good news is that Americans are not pervasively secular. That becomes very, very clear. The vast majority of Americans register some belief in God. Even though the Pew Research Center and so many other credible research organizations have been rightly pointing to the fact that the fastest-growing group in America are the religiously nonaffiliated, but as the theologically centered research now addressed by Ligonier ministries makes clear, when you look at the American people you’re not looking at the kind of secularization that one expects to find in northern Europe. Instead what you find is confusion. A syncretism. An amalgamation. A great deal of doctrinal fuzziness. But you do not find hard-core secularism. Not in the main amongst the American people.
The Ligonier Ministries report covers seven key doctrinal areas – as I said is not hard-core secularism – just consider their summary statement under the heading ‘Beliefs about God.’
“The majority of Americans believe God is perfect. The deity, humanity, and resurrection of Jesus are espoused by many Americans. But almost one in five Americans deny that Jesus has always existed. The member of the Trinity that is the least understood in the United States is the Holy Spirit. Most acknowledge [the report says] the presence of the Holy Spirit in believers but they relegate him to a force.”
Now one of the questions that any intellectually curious person has to asking looking at this kind of research is, ‘is it credible?’ The answer that is yes, this research is extremely credible. The second question is, ‘is there anything here that is new? And looking at this kind of doctrinal confusion we might anticipate that if we gone back in history 20, 30, 40 years we would’ve found similar kinds of confusion on the same issues. But what this report is really demonstrating is how pervasive, how thoroughgoing the American people are in this confusion. That is more recent.
Confusion on any number of doctrinal issues has been a symptom of the Christian church for the last, well, two millennia. But this kind of confusion – this pervasive, this widespread – this is a fairly new development and it too is a part of the great challenge we now face in terms of thinking about the future of faithful biblical orthodox Christianity in this new late modern age.
Looking through the reporting looking at these other doctrinal issues, one other insight becomes abundantly clear. That is the fact that liberal theology has had a major impact on the American mind. There are several ways we can understand that; in the main, it is unlikely that hard-core Protestant liberalism has been embraced by the vast majority of Americans understanding that that’s what it was. No, far more likely is the fact that these Americans have been breathing the air of this liberal theology through more indirect means, such as the prosperity theology, through the embracing of the therapeutic mentality.
And that comes out very clearly in terms of the reports heading ‘Beliefs about Goodness and Sin.” As the report states, one the most difficult doctrines for Americans is regarding sin and the depravity of people.
“Actually, [the report writes] the majority of Americans perceive goodness to be a better description of people.”
So what we’re seeing here is that the sinfulness of humanity is simply being sidelined over against the profoundly unbiblical affirmation the human beings are, morally speaking, basically good and inclined to the good. 67% of respondents agreed with the statement; “everyone since at least a little but most people are by nature good.” Now that’s where I talk about how recent this is if you go back in terms of American Christianity, just about 40 or 50 years, you will be unlikely to find this kind of agreement on a statement that is so profoundly unbiblical.Even Karl Menninger writing the book Whatever Became of Sin? back in the early 1970’s pointed out that most Americans still thought of themselves as sinners – they just werent particularly clear about what sin was and they were fairly certain their neighbors were more sinful than they.
Under the heading “Beliefs about Salvation and Religious Texts” the report states,
“Orthodox Christians believe in the exclusivity belief in Jesus Christ for salvation. While the majority of Americans believe that salvation is in Christ alone many also nod to other sources of salvation or believe people can through their own effort contribute to salvation. Less than half of Americans [they say] agree with orthodox doctrines related to the Bible. While more than 4 in 10 agree the Bible is accurate and the written word of God, a similar number believe the Bible is not literally true and is open to each person’s own interpretation.”
On these topics there is less surprise perhaps then in some others because what we’ve been watching in terms of the trajectory of American popular theology over the last generation is the fact that there are two particular doctrines that have been particularly subverted by the modern age. One of them is exactly where the report points, and that is the exclusivity of the gospel. The very fact that there is one Savior and one gospel revealed in Scripture; this runs entirely against the grain of the modern mind. Writing a generation ago James Davison Hunter the University of Virginia pointed out that this was the doctrine, the first doctrine, now most commonly rejected by college students. And that was a generation ago. Imagine how that is continued even now.
The other major doctrine that is been so subverted so undermined in terms of modernity is the doctrine of revelation, and in particular the doctrine of Scripture. And so even as you have most Americans say they believe that Scripture was given to us by God, they do not believe – at least most Americans do not believe – that the Bible is 100% accurate in all that it teaches, or that the Bible alone is the written word of God.
Something else to note in terms of the history of American theology is that Protestant liberalism showed up first on the shores on the issue of hell. And looking at that issue in this report we read two thirds of Americans believe heaven exists and almost as many agree hell is real but, only 55% agree to God shows his wrath, 62% of Americans they hell is a real place not just the concept. But one of the things is becoming increasingly clear in surveys like this is that Americans think that have hell exists they themselves are in very little risk of going there.
The final two headings in the Ligonier Ministries report are “Beliefs about the Church” and “Beliefs about Authority” and it would be my argument as a theologian that these two headings revealed the two most blockbuster discoveries in terms of this particular body of research. First of all under the heading “Beliefs about the Church” we read less than half of Americans see the church as a necessity. The majority of adults do not see authority in sermons, but do see value in studying creeds and catechisms. Well as it turns out not, that many Americans see the right kind of utility in terms of creeds and confessions, but that gets to the larger point. That larger point is this; what this report documents very convincingly is the eclipse of ecclesiology in American Christianity. This is one of those trends that has been noted before but I haven’t seen any research that so classically and clearly reduces the question in such a way that the respondents basically had to say, as 52% of those responding to the survey said, “worshiping alone or with one’s family is a valid replacement for regularly attending church.”
Well there you have it. Years ago the American historian Winthrop Hudson said that the ultimate end of the doctrine of what was called the priesthood of the believer means of there’s a church under every man’s hat. He was seeking to make a point of just how atomizing, just how fracturing, the doctrine can be if it is employed outside of its biblical understanding. But it’s clear that in America’s postmodern age this is exactly what Americans think – if not under a hat than just under hair – under every head covering of one sort or another there is now the church. Again 52% of Americans agreed with the statement ‘worshiping alone or with one’s family is a valid replacement’ – this is a bold statement – ‘for regularly attending church.’ 56% agree “My pastor’s sermons are not authoritative over my life.” Now looking at that we can certainly understand that the issue could be pastoral authority, but behind that if the sermon is indeed biblical it is biblical authority that is also being rejected.
That last heading was “Beliefs about authority.” The report states “Ethical issues such as sex outside of marriage being sinful tracks most closely with beliefs about the authority of the Bible. In addition more Americans believe God is authority over people. They also see God as attentive.” 70% of Americans disagree with “God is unconcerned with my day-to-day decisions.” In other words they see God as in some way concerned generally concerned certainly concerned with me but only 49% agreed with the statement ‘the Bible has the authority to tell us what we must do’ and only 48% agreed with the statement “sex outside of marriage is a sin.”
So this is research helps us to see that not only in this culture do we find the most Americans think there’s a church under every hat – evidently does a courtroom under every hat as well. And in that courtroom is a judge is going to say that our personal moral judgment matters more than anything else, including that which is revealed in God’s word in the Bible. Looking at a vast cross-section of Americans this report, “The state of theology” today released by Ligonier Ministries and in partnership with Lifeway Research tells us that what we’ve been seeing in recent years with diagnoses such as that was offered to us by Christian Smith of the University of Notre Dame and his associates, suggesting that in looking at younger Americans what we see is moralistic therapeutic deism – that is not Christianity, but a faith it’s just moralistic, it’s therapeutic, and in some sense deistic – that’s reflected in the fact the most Americans don’t really understand or affirm a sovereign God. But the Ligonier Ministries report is important because it’s not focused just on younger Americans, but on a vast cross-section of the American people. And furthermore like that previous research this is going to be continued.
Ligonier ministries in its release on this research as indicated it intends to come back again and again asking the same questions. And is we look at those results again and again we’re likely to see a deepening of the very confusion that so marks the American people as is evident in this important research. In the final analysis what this research documents so clearly as the great challenge before us –the challenge of continuing, of teaching, of perpetuating the faith once for all delivered to the saints. This demonstrates the fact that we’ve lost a great deal of ground in terms of American culture – we knew that already now we know it was some helpful specificity. And on these particular questions we now know which questions are under the most sustained, particular, timely attack in the United States. We know where some of the issues in the larger culture are the particularly need some of our theological attention. But before we just leave the culture let’s remember this; a survey like this, a massive research project like this, points not only to confusion out there in the culture but the confusion in the church. And our first responsibility is to make sure that the word of God is rightly preached and the Christian faith is rightly taught, so that beginning with our church members and our own children at least they know what Christianity is. And then we turned address the culture and understand exactly the kind of challenge is been presented to the Christian church in this strategic
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 on Monday for The Briefing.
