The Briefing 01-19-15

The Briefing 01-19-15

It’s Monday, January 19, 2015. I’m Albert Mohler and this is The Briefing, a daily analysis of news and events from a Christian worldview.

1) Supreme Court takes up same-sex marriage cases in political climate friendly to the issue

The announcement came at 3:30 on Friday afternoon. The United States Supreme Court straightforwardly announced that it will take up several cases on the issue of same-sex marriage. And as virtually every major media outlet announced almost immediately, this sets the stage for a groundbreaking, history-shaping decision.

We have been looking at this on the horizon for some time. What’s now expected is a decision on same-sex marriage tantamount to the decision on abortion the Court handed down in 1973, infamously the Roe v. Wade decision. But as Adam Liptak of the New York Times reported the story,

“The Supreme Court on Friday agreed to decide whether all 50 states must allow gay and lesbian couples to marry, positioning it to resolve one of the great civil rights questions in a generation before its current term ends in June.”

That’s just the way the major media and the elite culture want us to understand this issue and in particular this looming court decision, as the latest, the next, most likely the inevitable decision in a long line of civil rights decisions that they now identify as the great movement of history – the right side of history.

Just about everyone who was an informed observer of these issues understood that the decision was likely and that it had to come – in all likelihood – before the end of the month of January, setting up oral arguments in April and then an eventual decision to be handed down most likely in the very last hours of the month of June of this year.

2015 is going to be remembered for many things, but now we already know that 2015 is going to be a big year when it comes to the Supreme Court. It’s a big year when it comes to the Supreme Court and a looming challenge to the Affordable Care Act popularly known as Obamacare that’s likely to set the stage for a huge political and judicial controversy.

But the issue of same-sex marriage is going to have much longer lasting consequences as will the Court’s decision on this issue. When the Court punted on the issue back in November, it appeared to be trying to duck the issue. But all that changed after the Sixth U.S. Circuit Court of Appeals handed down a decision sustaining several states, including the states of Indiana, Michigan, Ohio and Kentucky in terms of their constitutional amendments or legislation against same-sex marriage.

That set up a situation in which there are now conflicting U.S. Courts of Appeals, and that leads to a situation that the Supreme Court almost always answers finally on its own authority. And that’s what changed. That’s what set the stage for this decision and the announcement of the court case that was handed down on Friday afternoon. But as you might expect, this is a very complicated story and the press was scrambling on Friday and Saturday – even yesterday – to figure out exactly what the Court might be doing or might be preparing to do.

Reading the tea leaves when it comes to the Supreme Court is a tenuous and almost assuredly frustrating matter, but in this case there are some breadcrumbs to follow, for example in the Windsor decision handed down by the Court in the year 2013, striking down the federal government’s Defense of Marriage Act. In his dissent, Associate Justice Antonin Scalia pointed specifically to this case – even though it didn’t exist yet – saying that when it came all that was necessary was for the other shoe to drop.

Other breadcrumbs were left by the Court in the way it announced its decision to take up these cases on Friday. The Court actually rephrased the question as presented to it by the lower courts, and that’s a very interesting issue. It doesn’t happen all that often, and when it happens, it happens for a reason. Now, the Court announced that it will be holding two and a half hours of oral arguments on these cases, and it announced two different questions.

The first question to have 90 minutes of oral arguments and the second exactly an hour. The first question to get 90 minutes of oral arguments is – as you will see – the more important question,

“Does the 14th amendment require a state to license a marriage between two people of the same sex?”

That’s the fundamental issue. If the answer to that question is yes, it’s going to make the next 60 minutes of oral arguments largely unnecessary and moot. But the Court’s going to go ahead and have 60 minutes on the second question,

“Does the 14th amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?”

So as you can see if the answer to the first question is yes, there won’t even be any relevance to the second question. But the fact that they’re taking up the two questions doesn’t necessarily indicate that there’s not a lot of momentum going towards answering yes for the first question, explaining why so many observers of the Court find it fascinating that the Court rephrased the question.

Liptak writes in yesterday’s edition of the New York Times,

“The Justices do not ordinarily tinker with the wording of those questions, but on Friday something unusual happened. In agreeing to hear for same-sex marriage cases, the Court framed for itself the issues it would address.”

He then wrote,

“Lawyers and scholars scrutinize the Court’s order with the anxious intensity of hypochondriacs attending their symptoms. Some saw an attempt by Chief Justice John G. Roberts Jr. to elicit a ruling that would stop short of establishing a nationwide constitutional right to same-sex marriage.”

That tells you something of what’s going on here. Indeed, observers of the Court on both sides of this question are trying to read every word that comes from the Court with the intensity of hypochondriacs attending to their symptoms and their medical charts.

As Liptak indicates, people on both sides – that is to say lawyers on both sides of this issue – tried to see whether the reframing of the words had something to do with indicating the direction of the Court’s intent. But one thing was very interesting. The Court rephrased the question to ask about the obligations of states. That in many ways indicates once again that the answer to the first question is likely to be yes. But as some observers have already noted, it does at least leave the room for a more narrow ruling to that effect.

Dale Carpenter writing for the Washington Post said,

“It looks like we will have a decision on same-sex marriage by the end of June.”

He says that many believe the outcome will very likely be the nationwide legalization of same-sex marriage.

He says,

“I also think that outcome is now likely, but I want to amplify,” he says, “how the Court decides to reach that decision is also important. He then offered what he called a “pre-decision guide to a post-decision world.” He went on to explain that any way you look at it, a decision mandating all 50 states to recognize and to solemnize same-sex marriage is a huge history-bending decision.

But he’s exactly right on the point that it really matters how the Court reaches that conclusion because no court case exists as a vacuum. Every court case is attached to almost every other court precedent. Not only that, it leads to the interpretations that are made by lower courts who take their bearings from the U.S. Supreme Court. Carpenter says there are several routes to a decision for same-sex marriage.

The first he says is what’s called “sexual orientation discrimination.” He says the Supreme Court could clear up any remaining doubt by squarely holding that classifications based on sexual orientation are subject to a heightened or close or searching or intermediate scrutiny. That’s legal language, but it has to do with exactly what the Court will say – and I think Carpenter’s right on this – that the states must do when considering sexual orientation cases, not only when it comes to same-sex marriage or anything else.

If indeed the Court were to decide that sexual orientation is a suspect category,  that would have effects far beyond the question of marriage, as if by the way, the legalization of same-sex marriage will stop in terms of its effects with marriage.  In terms of religious liberty, that might be the most problematic argument, the most problematic route for the court to take in terms of the legalization of same-sex marriage.  Carpenter says the second argument might be animus. He says the Court could hold that the exclusion of gay couples from marriage rests on animus.  Now that’s exactly again what Antonine Scalia said Justice Anthony Kennedy was arguing in his majority decision in the Windsor Case in 2013, but also in the Lawrence case striking down all state sodomy laws in the year 2003.  Carpenter says animus analysis is very contextual and does not pronounce broad legal principles that commit the Court to future results, and that’s part of its appeal.  If the Court rewrote the question so that it could rule narrowly this might be one way of getting to a rather narrow ruling, but it’s also a way that was predicted in exact language by Antonine Scalia over a decade ago.

Third, he said the Court to get there by a rational basis argument. He says the Court could hold that there is no rational basis for excluding same-sex couples for marriage.  If the Court does that, it will be explicitly addressing the winning argument at the Sixth US Circuit Court of Appeals.   Remember, that’s the court decision by Judge Sutton that upheld state’s rights to regulate marriage and to limit marriage to the union of a man and a woman.  Judge Sutton said, in a brilliantly argued decision, that indeed the states did have a rational basis for limiting marriage to the union of a man and a woman. If the Supreme Court says there is no rational basis, that could lead to a broader decision that could have effects immediately far beyond the issue just of same-sex marriage.

But what’s really interesting is when Carpenter gets to the fourth argument, the fourth route by which the Court might get there. This is a fundamental right argument. What makes this really interesting is that this is exactly what the proponents and advocates of the normalization and legalization of homosexuality and same-sex marriage have been arguing from the get-go. There is a fundamental right to marriage that is held by not only men and women, but men and men and women and women.  But what’s really interesting, and Carpenters onto something here, now those who are arguing for same-sex marriage may shift their argument but they would do so because this would be a very narrow ruling, or at least could be a very narrow ruling having to do at least in terms of the Court’s thinking and decision only with the institution of marriage. This could avoid a host of other issues, at least in the very short term, but the Supreme Court in deciding to take up this issue can’t be concerned just with short-term effects.  The justices know that they are making history, that they are deciding history.

That also gets to a very interesting issue here.  The Court dodged the question in October.   It fundamentally dodged the question in the year 2013. Why did it take it up now?  That shows that the issue really isn’t just legal or judicial; it is not just constitutional.   The Court is highly political.   The Court now knows that public opinion has shifted, and as public opinion has shifted, as the culture has moved in a progressively more liberal and progressive direction on this issue, the Court evidently now finds the liberty to take this up.  Now, there is no way that the justices of the Supreme Court, being human beings, could be completely objective, completely apolitical.   But any claim that the judiciary is apolitical, nonpolitical in its essence, is put to lie by the very fact that the Court pondered on this question October.   It has taken this question up now because it evidently believes it can, at least enough justices decided that the time is politically, not just constitutionally, right for the Court to take of this question that they made the announcement that came at 3:30 on Friday.

The real surprise here, of course, is that it surprised no one. Christians must understand that as much as we are interested in the constitutional and legal issues, we are far more interested in the worldview issues at stake, and beyond that we’re far more interested in the effects of the redefinition of marriage on the culture at large, and specifically on our neighbors. It’s because of love of neighbor. After all, Jesus said that was the second commandment in the Law.  It is love of neighbor that leads us to believe that the redefinition of marriage will have damaging effects, not just on the culture at large, but on the lives of specific individuals including those who will celebrate the decision, including those who enter into same-sex unions that we’ll call marriage, and including millions of people whose lives will be fundamentally changed by the redefinition of marriage.   And of course, the religious liberty implications are simply massive.

2) Virginia Governor McAuliffe moves to define marriage without reference to a husband or wife

The vast change in the entire moral landscape of the culture that will be represented by the legalization of same-sex marriage was made very clear by the Governor of Virginia in recent days.  Gov. Terry McAuliffe announced that it will be his intention to change the way marriage is defined in the Commonwealth of Virginia so as to avoid the state using the words “husband” and “wife.”  As the Washington Times reported on Friday, the Governor asked the Virginia legislature on Monday of last week to remove all references to “husbands” and “wives” from state law books and replace them with the gender-neutral and politically correct word “spouse.”  As the editors of the Washington Times wrote,

“Mr. McAuliffe argues that changing nouns will create jobs in Virginia, ‘It does send a signal to the entire Commonwealth, to the nation, and the globe that Virginia is welcome to the members of the LGBT community.’”

Well, indeed, it might send that signal, but just consider the far more important signal it sends.  We now have an entire range of vocabulary, words that have been necessary to human society and human culture in various languages for as long as human beings have lived together.  We’re talking about words like “mom” and “dad.”  We’re talking about words like “husband” and “wife.”  We’re talking about words that are now going to be replaced with “spouse” but “spouse” is not a replacement for “husband”; is not a replacement for “wife” any more than mere “parent” is a replacement for “mom” or replacement for “dad.”   What we’re looking at here is a vast moral revolution, and its variants thing to note even the New York Times on Saturday recognized there is no precedent in terms of American history for a moral or legal revolution of this velocity.   I would expand that to say there is actually, in terms of a review of history, no precedent far beyond the United States and beyond our own times. We’re entering into uncharted territory, and Christians understand armed with the biblical worldview we’re entering into very dangerous territory.  It is dangerous for human happiness, for human flourishing, and for the most important institution of human society.

3) Pope sees limit to free expression for sake of freedom from being offended

Occasionally, it is important to look at the Roman Catholic Church and a look at the effects of the Pope, in this case, Pope Francis the First.   Every once in a while, he seems to get on an airplane and say something that gets the world’s attention. He did so in recent days, as he was on a plane in terms of his trip to South East Asia.  As the Associated Press reports,

“Pope Francis began his visit to Asia’s largest Catholic nation Thursday by wading straight into a debate about rights and responsibilities now raging in one of Europe’s largest Catholic nations. Referring to the Paris attacks, Francis said there are limits to freedom of expression, especially when it insults or ridicule someone’s faith.”

The article is written by Nicole Winfield and Teresa Cerejano.  It is really interesting because the Pope did indeed wade in the controversy.  Furthermore, the Pope’s statements, even though made by the Pope of the Roman Catholic Church, deserve evangelical attention because they point to an issue that we really have to think about very carefully. When it comes to free expression, how exactly do we draw boundary lines.  I would assert that we can’t draw them where the Pope drew them.  Here is the honest paragraph from the Associated Press article, and it’s matched by an equally odd paragraph in just about every other major media article on the Pope’s statement because the Pope’s statement was itself odd.  Consider the Associated Press paragraph,

“Francis defended freedom of speech as a fundamental right, and even a duty to speak out for the common good. But he said there were limits to free speech, especially when confronting another equally fundamental human right, the freedom of religion.”

Well, this is a real problem. First of all, when you talk about something as a fundamental right, you can’t follow that just a few seconds later withdrawing a boundary on that fundamental right. Now, when it comes to free speech, Americans understand free-speech as other guarantees in our Constitution to be not granted by the Constitution, but respected by the Constitution. Furthermore, even in American history, there are cases that are very indicative of the fact that freedom of speech can’t have absolutely no limits at all.  The question is, even in a nation that famously and very zealously guards freedom of speech in the United States, what might those limits be?  One Supreme Court Justice once said,  “You can’t yell fire in a crowded theater.”  But actually, it’s hard to know whether or not, constitutionally speaking in the United States, you could or you couldn’t.  What makes the Pope statements particularly controversial is, of course, the timing.  What should be controversial is the content, the argument the Pope made.  The Pope said that freedom of speech is a fundamental right, but he said that there must be limits on it when it comes to the conflict with another fundamental right – religious liberty.  But then what he described, in terms of the problem, isn’t actually a matter of religious liberty but a matter of religious offense.

The Pope said, “You can’t speak in a derogatory fashion of someone else’s religion.”

Let’s think about this from an evangelical Christian perspective.  Should we speak derisively, arrogantly, caustically?  Should we speak in a way that makes fun of someone else’s religion or is intended intentionally to create harm or hurt feelings?  The answer to that is of course “no.” But that’s not a matter of religious liberty. That’s a matter of the fact that evangelical Christians understand that our responsibility is a gospel responsibility. We are seeking to win people to faith in the Lord Jesus Christ and ridiculing their religion, in terms of derisive speech or cartoons are caricatures or something that is intended to offend, that’s not a way to be a winsome witness for the Lord Jesus Christ. But what if any conflicting truth claim argument is considered to be a matter of offensive to someone of another religion?  In that case there will be no intentional effort to offend, but let’s face it, when you’re talking about your deepest convictions, when two people get into a deeply convictional conversation, it’s never merely theoretical or theological. It’s always intensely personal. That’s what makes a conviction a conviction.

As I said in my book, The Conviction to Lead, a conviction is a belief, but it’s a belief that holds us, not merely a belief that we hold.  It is so central to our worldview into our entire understanding of truth that it’s indispensable. The problem with the fact that the Pope invoked religious freedom in this case is that religious freedom certainly does not mean the freedom from the risk of being offended.  Evangelicals have to remind themselves of that because there are times when evangelicals seek to avoid being offended rather than to understand that when we’re talking about matters of deep convictional consequence someone is going to be offended.  Here we come again to a crucial difference between Christianity, at least Christianity that’s biblically defined, and the common, ordinary, on the street version of Islam that shows itself in many of America’s closest allies,  a version of Islam that says very clearly that is the responsibility of every Muslim to protect the honor of Mohammed, the honor of the Quran, the larger honor of the Islamic religion.

As we discussed on The Briefing last week, some of America’s closest allies are involved in spending millions and millions of dollars to defend the honor of Islam, not only in their own nations where they are willing to go to extremes like flogging someone in Saudi Arabia who offended the religious establishment, but also in other nations as well. Charlie Hebdo was not infamous among Christians in America, at least it was hardly known even until the murderous attacks that recently took place. The reason for that is that Christians can absorb that kind of ridicule.  It doesn’t matter that the new atheists in the English-speaking world and elsewhere have been hurling their worst at biblical Christianity for years now, and they are preceded by a long list of other skeptics and those who were in previous generations called “infidels.”  The Christians have understood that our faith in its truth claims is to be shared, it is to be proclaimed, it is to be projected, it is indeed to be defended, in terms of rational biblical argument. It is to be defended in terms of the rights of Christians to share the gospel in terms of religious liberty.  The Christian right, as well as the right of every other American citizen, to free religious expression, but that’s a fundamentally different approach that the Pope took in the statement that he made on the airplane last week when he invoked religious liberty in conflict with freedom of expression. It was precisely the wrong understanding of religious liberty.  Let me state again, religious liberty does not mean the right not to be offended.

4) Potential 2016 presidential nominees display narrow pedigree of US politics

Finally, as the 2016 presidential race begins to take shape, a brilliant article, or at least a brilliant paragraph, appeared from Dana Milbank, columnist of the Washington Post in yesterday’s edition.   Here’s the paragraph.  I’ll just let it speak for itself.

“The likely slate of candidates will include the son of a governor and a presidential candidate, the son of a congressman and a presidential candidate, the wife of a President, and the brother of a President, son of a President and grandson of a senator.  Nearly two and a half centuries after rebelling against the monarchy, our presidential contest has all the freshness of the House of Lords, even the British royals have done a better job of bringing in new blood.  Kate, the future queen, was a commoner.”

So maybe America doesn’t have a royal family. Maybe it has royal families. Americans are going to be deciding over the next several months in both parties, whether that makes a difference when they think about electing their President.

Thanks for listening to The Briefing. For more information that I have cited Albert You can follow me on Twitter by going to For information on The Southern Baptist Theological Seminary, go to For information on Boyce College, just go to I’ll meet you again tomorrow for The Briefing

Podcast Transcript

1) Supreme Court takes up same-sex marriage cases in political climate friendly to the issue

 Supreme Court to Decide Marriage Rights for Gay Couples Nationwide, New York Times (Adam Liptak)

Taking Up Gay Marriage, but on Its Own Terms, New York Times (Adam Liptak)

A pre-decision guide to a post-decision world of gay marriage, Washington Post (Dale Carpenter)

2) Virginia Governor McAuliffe moves to define marriage without reference to a husband or wife

Putting spice in marriage, Washington Times (Editorial Board)

3) Pope sees limit to free expression for sake of freedom from being offended

Pope Francis sees limits to free speech, Associated Press (Nicole Winfield and Teresa Cerojano)

4) Potential 2016 presidential nominees display narrow pedigree of US politics

No freshness in our 2016 presidential contest, Washington Post (Dana Milbank)

R. Albert Mohler, Jr.

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