The Briefing 02-10-15

The Briefing 02-10-15

The Briefing


February 10, 2015

This is a rush transcript. This copy may not be in its final form and may be updated.


It’s Tuesday, February 10, 2015.  I’m Albert Mohler and this is The Briefing, a daily analysis of news and events from a Christian worldview.

1) Conflict over same sex marriage in Alabama sets stage for constitutional crisis over moral revolution

Yesterday Alabama became the 37th state to have legal same-sex marriage. This came after the United States Supreme Court refused to grant a stay to a federal court’s decision to legalize same-sex marriage in that state – by striking down the states laws against same-sex marriage; in effect, also striking down its laws that define marriage exclusively as the union of a man and a woman. But there are some interesting twists to this development in Alabama. As the Los Angeles Times reported yesterday,

“Alabama began issuing marriage licenses to same-sex couples after the U.S. Supreme Court on Monday refused to block gay marriages and some local officials decided not to heed a last-minute order from the state’s chief justice against issuing the licenses.”

That gets to the point; that gets to the very interesting twist in this. This has set up what could be a massive constitutional crisis in the United States with Ground Zero as the state of Alabama and the issue being same-sex marriage. As Alan Blinder of the New York Times reports – also yesterday –

“In a dramatic show of defiance toward the federal judiciary, Chief Justice Roy S. Moore of the Alabama Supreme Court on Sunday night ordered the state’s probate judges not to issue marriage licenses to gay couples on Monday, the day same-sex marriages were expected to begin [that is yesterday].

‘Effective immediately, no probate judge of the State of Alabama nor any agent or employee of any Alabama probate judge shall issue or recognize a marriage license that is inconsistent’ with the Alabama Constitution or state law, the chief justice wrote in his order.”

This is the first time that you’ve had a major state authority defy – or at least threaten to defy – a federal court in this kind of matter, on the issue of same-sex marriage. As Blinder reports,

“The order, coming just hours before the January decisions of United States District Court Judge Callie V. S. Granade were scheduled to take effect, was almost certainly going to thrust this state into legal turmoil.”

As Blinder also explains,

“Since Judge Granade moved last month to declare Alabama’s prohibitions against same-sex marriage unconstitutional, the chief justice has insisted that the probate judges were not required to abide by her decisions.”

To understand what’s at stake in the situation, just consider the column that appeared in Bloomberg News yesterday by Harvard law professor Noah Feldman. Feldman wrote,

“An outright confrontation between the state of Alabama and the U.S. Supreme Court on the question of gay marriage has come two steps closer in the past 24 hours. [On Sunday night], Roy Moore, [he describes as,] the renegade Alabama chief justice, ordered the state probate judges who supervise all marriages to deny licenses to same-sex couples. This morning, the U.S. Supreme Court refused to grant a stay that would have delayed a direct conflict between Moore’s order and that of the federal district court that has declared Alabama’s prohibition of gay marriage unconstitutional. As of now, a federal court order effectively requires Alabama judges to issue marriage licenses — while the chief justice of the state Supreme Court has ordered them not to do it.”

Now as I said, there are some very interesting twists and turns to this as is almost always the case when it comes to constitutional law and a conflict – real or perceived – between judges and between courts. Noah Feldman actually goes far beyond where most in the secular media have addressed the issue when he writes, I quote:

“Is Moore justified as a legal matter? The answer, I believe, is no — but the no is complicated. As I explained when Moore first expressed his opinion in a letter to Alabama’s governor, Moore’s position is based on the view, widely shared by state supreme courts and many law professors, that state courts aren’t bound by interpretations of federal law or the Constitution that are issued by U.S. district courts or U.S. courts of appeal. According to this view, which the Supreme Court has never officially adopted or denied, only decisions of the U.S. Supreme Court about federal law or the Constitution are binding on the state courts, because only the Supreme Court reviews state court judgments directly.”

So Chief Justice Moore’s position of the Alabama Supreme Court is this: the Supreme Court hasn’t ruled on the matter yet; until the Supreme Court rules, no other court can order Alabama how it is to exercise or to interpret its own state law.

In this article Noah Feldman, remember he’s a law professor at Harvard University, argues the Chief Justice Moore’s position should not prevail and shouldn’t apply in this case. But it is interesting that here you have a major law professor acknowledging that there are many legal authorities who agree, at least in principle, with Chief Justice Moore’s position. The situation right now on the ground in Alabama is complicated, but major media are suggesting that at least 51 of the more than 60 counties in Alabama have probate authorities who are refusing to grant licenses for same-sex marriage. But in other places the licenses are being granted and the marriages are underway.

As a matter of constitutional law, it’s not at all clear where this goes in terms of the conflict between the US District Court order and, in this case, the Chief Justice of Alabama. But what is clear is that eventually the United States Supreme Court is going to decide the issue. And what is most ominous in the development out of Alabama – tragic as it is for that state, in terms of the redefinition of that state against its will on the issue of marriage, the redefinition of the most basic institution human society – even more alarming in terms of this particular situation is the signal sent by the United States Supreme Court yesterday by refusing to grant a stay for the state of Alabama. Because by almost any measure this is indeed a signal that the Supreme Court is poised to legalize same-sex marriage coast-to-coast when it rules on the issue by the end of June this year.

As Richard Wolf of USA Today reports, the handwriting is now on the wall for gay marriage. As he writes,

“The Supreme Court will decide whether to allow same-sex marriage nationwide later this year. But it’s leaving little doubt which way it’s leaning.”

But here we have a bit of inside information about the deliberations of the justices, what a majority refused to give the state of Alabama, a stay in this order. As Richard Wolf writes,

“The turning point came in October, when the court allowed federal appeals court decisions legalizing same-sex marriage to go unchallenged in Virginia, Utah, Oklahoma, Wisconsin and Indiana.”

Wolf is right. The justices could have intervened and scheduled one or more of those cases for argument. Instead, they stood aside. As he summarizes,

“Since then, all indications are that at least five justices are prepared to rule once and for all that the Constitution does not permit states to ban gays and lesbians from marrying.”

But as I said, we have some insider information and we have that information courtesy of Justice Clarence Thomas and Justice Antonin Scalia. But in a direct dissent to the fact that a majority of the United States Supreme Court justices refused to give Alabama a stay, even until that very court can later rule coming in just a matter of weeks or months, Justice Thomas joined by justice Scalia said that the court had acted in a way that was indecorous. As Justice Thomas said, it was acting condescendingly and without respect to the states and the state’s own authority.

Justice Thomas also got right to the heart of the issue when he wrote in his dissent,

“In this case, the court refuses even to grant a temporary stay when it will resolve the issue at hand in several months,”

Just in case we missed his point Justice Thomas also wrote,

“This acquiescence may well be seen as a signal of the court’s intended resolution of that question.”

He went on to say, in very clear terms,

“This is not the proper way to discharge our…responsibilities. And, it is indecorous for this Court to pretend that it is. Today’s decision [said Justice Thomas] represents yet another example of this Court’s increasingly cavalier attitude toward the States.”

So let’s recap what we know about the situation on the moral revolution of same-sex marriage in this country this week that we did not know last week. Well for one thing we know that the United States Supreme Court refused to give the state of Alabama any relief from a federal court decision. We also know that in that decision, as Justice Thomas had made very clear by the fact that he was on the losing side of this argument, the court is sending a very clear signal of how it intends to rule in just a matter of months. And furthermore, it is doing so in a way that shows disrespect to the state of Alabama and to Alabama citizens by refusing even to give the state a stay until the court can resolve the matter – not in a matter of years, but merely in a matter of months. That’s the speed of this moral revolution and it also shows just what kind of coercion is now coming from the courts on this question.

By the way, when it comes to same-sex marriage in Alabama you need to note that 81% of Alabama voters in 2006 supported the constitutional amendment that defined marriage as exclusively the union of a man and a woman. Christians trying to think through the lens of a biblical worldview in terms of how to unpack all these constitutional questions may come to some different conclusions. As the article by Harvard law professor Noah Feldman makes clear, there are some complicated issues here and there are arguments on both sides. Christians who are obligated to support and respect government, and to obey ruling authorities, may find themselves in Alabama right now in the awkward position – especially if they are probate judges – of deciding which court to obey and which judge to follow in terms of an advisement; or in this case, two conflicting orders.

Furthermore, from a Christian worldview perspective the situation gets especially muddled when you have the kind of words that come from associate Justice Clarence Thomas, who makes very clear that he believes his own court has acted wrongly in refusing to give the state of Alabama a stay. One of the most crucial words in Justice Thomas’s statement, in which he was joined by Justice Scalia, is that word ‘indecorous.’ It’s a rather technical word that isn’t used very often in common dinner conversation. What it means is that the court has disrespected itself and diminished its own respect and standing by this kind of action.

There are a couple of things that are abundantly clear. One is that eventually it certainly appears, sooner rather than later, that same-sex marriage is going to be the law of the land in the United States in all 50 states. And so Christian, secondly, in thinking through that issue have to understand that as it is the law of the land, we will have to accept – one way or another – that it is the law. But to accept that it is the law is not to accept it as a permanent state of affairs, nor is it to define marriage in terms of our understanding as Christians, and certainly within the church and within our Christian institutions, what we understand marriage to be and what we understand marriage must always be.

In one sense it is certainly true that within short order Alabamians are going to know where every single one of its probate judges stand, but even as the media are giving that question their primary attention, for Christians there’s a much larger question looming over this entire issue. And that is this: not just where every probate judge will stand on this question, but where what every Christian congregation stand? Where will every pastor stand on this issue? How will your church if you’re in Alabama define marriage?

On this issue the church must remain very, very clear about what the Scripture reveals. Not just in terms of biblical law, but in terms of God’s plan as Creator for his human creatures and their flourishing. Where we understand marriage as definable only as the union of a man and a woman not simply because that’s the exclusive relationship, but because it’s the exclusive relationship in which we are to find the greatest human flourishing because of the design of the creator and his love for his human creatures.

Christians do have a stake of course in terms of how the constitutional argument unfolds but we have a far greater stake in how the theological argument unfolds, even though the national media and others are going to be giving primary attention to what happens in the court room, the bigger question for Christians is what’s going to happen within our own congregations. And furthermore, within our own families and our own marriages. While the culture around this is losing its conviction and losing its mind over the issue of marriage one of the defining marks of the biblical church and a Christian who thinks in biblical terms is to remember we really do know what marriage is.

But when it comes the definition of marriage, on that matter any church that is committed to the authority of Scripture, well for that church the matter is settled.

2) Pres. Obama’s National Prayer Breakfast comments display his secular cosmopolitan worldview

Next, for a very good reason there’s been a lot of discussion about President Obama’s comments of the national prayer breakfast at the end of last week. I want to know that Presidents of the United States are usually awful is theologians. In far too many cases the closer they get to anything theological the bigger the mess they make. President Obama seems rather adept at making such messes, but he’s hardly the first. The only President of the United States to be baptized while in office was Pres. Dwight David Eisenhower. In remarks made at the Freedoms Forum at the Waldorf-Astoria hotel in 1952,Eisenhower said: “our form of government has no sense unless it is founded in a deeply felt religious faith” –  so good so far, you might say but his next words were “and I don’t care what it is.”

So there you have a man recently elected as president of the United States and makes a public declaration that the nation needs a religious worldview but he really doesn’t care what that worldview is. Of recent presidents, Jimmy Carter and Bill Clinton were probably the most theologically literate, and both claimed deep roots as Southern Baptists. In his infamous Playboy interview of 1976, Carter cited Reinhold Niebuhr and Paul Tillich as influences and Clinton seemed cut from the same theological cloth. Both men have, in their own way, distanced themselves – we should note – rather clearly from the theological and moral convictions held by Southern Baptists. Ronald Reagan’s evangelical faith seemed to be vague and he rarely attended church services during his eight years in office. George H. W. Bush seemed to be a very conventional mainline Protestant of the old establishment but his son, George W. Bush, may well have been the most clearly evangelical president of the modern age.

President Obama identifies openly with a very liberal version of Christian thinking and reasoning. He cites religious concerns from time to time, but he seems to operate more as a secular cosmopolitan (at least when it comes to his personal worldview). When he does address religious thoughts openly, as at the National Prayer Breakfast last week, he made a considerable mess.

That he holds to a basically universalistic understanding of religion is not in doubt.  President Obama spoke in his National Prayer Breakfast remarks of faith, his own “faith journey” and what he called “professions of faith.” The common denominator in his thinking seems to be faith as an act without any concern for the content or object of that faith. Thus, “part of what I want to touch on today is the degree to which we’ve seen professions of faith used both as an instrument of great good, but also twisted and misused in the name of evil.”

So there you have “professions of faith” but as is made clear in the mean any particular faith, he means any faith or all faiths.

Central to the President’s argument last week is that when people do evil in the name of their faith or any faith, it’s because that faith is been perverted or distorted, or to use another word the president employed ‘hijacked.’ Any faith can be perverted in this way, the President said, and no religion is inherently violent. In the President’s words,

“Our job is not to ask that God respond to our notion of truth — our job is to be true to Him, His word, and His commandments.  And we should assume humbly that we’re confused and don’t always know what we’re doing and we’re staggering and stumbling towards Him, and have some humility in that process.  And that means we have to speak up against those who would misuse His name to justify oppression, or violence, or hatred with that fierce certainty.  No God condones terror.  No grievance justifies the taking of innocent lives, or the oppression of those who are weaker or fewer in number.”

Well, we need to take a closer look at the President’s comments. The fact remains that Western civilization and much of the world beyond is directly threatened by a militant form of Islam that has the allegiance of millions of Muslims. While the vast majority of Muslims in the world are not fighters in a jihad against the West (and for that we should be thankful) the fact remains of the President’s own national security authorities directly disagree with the president when he recently said that 99.9% of Muslims do not back Islamic terrorism.

On Islam, President Obama is not the first to sow confusion on the issue. In the aftermath of the terror attacks of September 11, 2001, President George W. Bush argued over and over again that America is not at war with Islam.  He was never particularly clear with the Islamic elements with which America was at war. We can understand why a President would feel the need to say this, and we also need to admit that there is an important element of truth in this statement. The West is not at war with Islam if that means a war against all Muslims and against all forms of Islam. But, true that statement may be, we also must be clear that we are facing a great and grave civilizational challenge from millions of Muslims who believe quite plausibly that their version of Islam is more faithful to the essence of Islam and the Quran. This understanding of Islam is growing, not receding. It is now drawing thousands of young Muslims from both Europe and North America to join the jihad. We’ve seen the hopes of a moderating Arab spring – and leasing the rise of even more brutal and deadly forms of jihad in groups such as the Islamic State. More brutal and terrifying even the what we saw in Al Qaeda in the year 2001.

Clearly, there are millions of Muslims who do believe that God condones terror. They celebrate the fact that Muhammad was a warrior, and they understand that it is their responsibility as faithful Muslims to bring the entire world under the rule of Sharia law. Their actions are driven by a theological logic that has roots in the Quran, in the founding of Islam, and in the history of Islamic conquest.

And yet, at virtually every turn, President Obama and his administration remain determined not to mention Islam, and even to redefine some acts of terror committed in the name of Islam as “workplace violence.” His refusal to acknowledge the worldview of those who declare themselves to be our enemies is neither intellectually honest nor safe. It is a theological disaster, but it is a foreign policy disaster as well.

In the most controversial portion of his address, President Obama said:

“And lest we get on our high horse and think this is unique to some other place, remember that during the Crusades and the Inquisition, people committed terrible deeds in the name of Christ.  In our home country, slavery and Jim Crow all too often was justified in the name of Christ.”

President Obama did not mention Islam by name, but he did bring judgment on the Christian past, with specific reference to the Crusades. At this pointa good measure of Christian humility and honesty are called for. The centuries of the Crusades were a brutal epoch in which horrible things were done, often in the name of Christ. The union of medieval Catholicism and the power of kings was disastrous. But we also need to note that there we are talking about something that happened several centuries in the past. And we’re also looking at something that the vast majority of Christians now alive would now repudiate as any valid representation of Christian morality, or of the Christian understanding of the relationship between the church and the state.

This is where those on the secular left are often just absolutely dishonest about the situation that we now face in terms of radical Islam and the situation of the Crusades in terms of history. Most historians recognize that when we look at the Crusades were not even sure exactly what we’re talking about. But at least when most people refer to the Crusades they’re talking about the link the military engagements between Christians and Islamic nations and military forces that took place in the medieval world over about 2 to 4 centuries. But here’s where a bit of intellectual and moral honesty is also required many of those professors a talk about the Crusades as an absolute evil on the part of the West have to recognize that if some of those battles had not been won – such as the Battle of Vienna –  those very professors would be currently professors of Quranic studies rather than professors of postcolonial literature or whatever title they may hold.

The reality is that then and now the West is involved in a great civilizational conflict that is –  even of the secularist do not want to admit it – deeply theological. And there are millions of Muslims who do have a theological logic reflected if not in their active engagement with jihad, then in the active support of it.

The President went on to mention some of the sins of Christians involved in racism; both slavery in the Jim Crow laws. And here we need to be very specific the President was right to those things were deeply wrong and that Christians were often on the wrong side of the argument. But we also need to be abundantly honest that no one is really fearing an armed jihad coming out of evangelical colleges and universities. The West is not facing an existential threat by any form of Christian induced violence. Instead what we’re looking at here is the enduring threat that comes by reading of Islam that is rooted in conquest and in the necessity of bringing the world under the rule of the Quran through sharia law.

This President and any President must be abundantly clear and they’re right.  Both President Bush and President Obama; we are not at war with Islam. We’re not at war with Islamic that means being at war with all Muslims. Let’s be very thankful that’s not the case but we are war in terms of being a great civilizational challenge we now face from those when the name of Islam harkening back to the very founding and founder of Islam are suggesting that this kind of military effort is justified in the name of Islam.

The president’s basic worldview of secular cosmopolitanism comes out in his approach to these issues, but as we’ve noted so often the case of France, that appears to be no adequate worldview response to a worldview that is coming at us merely from a theological root and from a theological rationale. To try to shift the issue 800 years or so back to the Crusades just isn’t going to work not when the current issue is a very real and present threat from those who oppose the West and all the West represents in the name of Islam.


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Podcast Transcript

1) Conflict over same sex marriage in Alabama sets stage for constitutional crisis over moral revolution

Confusion in Alabama as some defy court order to grant gay marriage licenses, Los Angeles Times (Michael Muskal & Matt Pearce)

Alabama Judge Defies Gay Marriage Law, New York Times (Alan Blinder)

Alabama’s Gay-Marriage Showdown, Bloomberg BusinessWeek (Noah Feldman)

First Take: Handwriting on the wall for gay marriage, USA Today (Richard Wolf)

2) Pres. Obama’s National Prayer Breakfast comments display his secular cosmopolitan worldview

Remarks by the President at National Prayer Breakfast, (Barack Obama)

Obama the Theologian, New York Times (Ross Douthat)

The President at the Prayer Breakfast,


R. Albert Mohler, Jr.

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