The Briefing
April 2, 2015
This is a rush transcript. This copy may not be in its final form and may be updated.
It’s Thursday, April 2, 2015. I’m Albert Mohler and this is The Briefing, a daily analysis of news and events from a Christian worldview.
1) Separation of powers threatened by increasing influence of Supreme Court
We need to remember quite regularly that the American experiment in being a constitutional republic is based upon the understanding of the separation of powers; that there would be three co-equal branches of government: the executive, centered in the President of the United States, the legislative, with two different houses – that is the House of Representatives and the Senate – and the judiciary, represented at the very top by the Supreme Court of the United States. But as many have noted for a number of years, that separation of powers has been in a somewhat precarious situation in recent years.
On the one hand you’ve had the radical growth of the executive branch, first of all through bureaucracy and secondly through the issuing of executive orders that appear to be acting as a way of going around the legislative branch, around Congress. The second troubling trajectory has been the rise in the power of the judiciary, in this case especially of the Supreme Court. So many issues now that, in previous generations, would’ve been settled by legislative action, eventually by legislation that would lead to executive action by either signing or vetoing legislation. Much of that is now being bypassed in terms of the legislative process because the judiciary is taking on this role.
Part of the responsibility there certainly lies with Congress itself, which has often seemed to defer to the courts what would otherwise be very controversial action. But much of this has to be attributed to the court itself, to the courts in general, at the federal level who were beginning to intrude themselves more and more into the arenas that had previously been addressed by legislation, and going beyond what many would’ve considered to have been the constitutional bounds of appropriate judicial action. Back in 1990s a group of prominent conservatives warned about what they called the judicial usurpation of politics, and one of the key examples of that was of course the 1979 Roe V Wade decision by the Supreme Court that legalized abortion. In this case, the court found a right to privacy and then defined how that right to privacy would be applied to three trimesters of a pregnancy – something that had previously not been considered by any court as a matter of a court’s authority.
Recently writing in the pages of USA Today Richard Wolf writes that the High Court now, in his words, reigns supreme. He says,
“For three years, through the re-election of a president and a Republican takeover of Congress, neither the executive nor legislative branch of government has held a candle to the increased power of the Supreme Court.”
He points to the recent oral arguments in the second big challenge to ObamaCare and then says that this massive matter of public consequence is going to be decided by nine people – actually, it can be decided by only five, by a majority of the justices on the nine-member Supreme Court. He looks back to the earlier ObamaCare challenge and says,
“Since that historic debate, which resulted in the court’s rescue of the Affordable Care Act by the narrowest of margins, the justices have taken on many of the nation’s most intractable problems, from immigration and religious freedom to campaign financing and environmental protection.”
He then says,
“The six men and three women on the court have weighed in on a number of major cases involving women’s rights, from abortion and contraception to pregnant workers and victims of pornography.”
Explaining that now these issues are settled by the courts rather than by the legislative process, Wolf writes,
“That wasn’t the case a quarter-century ago, when I covered Congresses under both Democratic and Republican control that transformed the welfare system, created a children’s health insurance program, slashed the federal deficit and ultimately balanced the budget.”
These days, he says,
“Congress can’t or won’t fix what the Supreme Court breaks.”
But he concludes his article by coming to the judgment that by any modern measure it is the Supreme Court that is now the most powerful branch of our federal government.
Looking at this from a Christian worldview this is a matter of deep concern because here we’re talking about an unelected elite – now truly they are nominated by the President of the United States and confirmed by the Senate, but still you’re looking at a non-elected elite – who are now deciding so many of the most important questions facing this nation. And they are not limited to the kinds of questions that were envisioned when the court was established in the Constitution in the founding era of our country. This is now being extended to the everyday lives of citizens, right down to issues of sexuality and reproduction, and yes, the intersection of those issues with religious freedom.
The Roe v. Wade decision assuredly still stands as the central symbol of the overreach of the courts and of, as we said before, the judicial usurpation of politics. But it also indicates the fact that the court is now, as Richard Wolf says, nearly inviolable because rarely is the court’s own authority checked by the other two branches of government. We’re not really looking at the separation of powers as our founders had intended, and that should be a matter of grave consequence.
But at the center of this is how judges interpret the law and how they understand their own the position. An insight into this is revealed in the pages of the Wall Street Journal where the Journal simply cites an extended quotation from comments made by Supreme Court Justice Anthony Kennedy when he was testifying before House of Representatives committee on the court’s budget on the 23 of March. He said and I quote,
“It is not novel or new for justices to be concerned that they are making so many decisions that affect a democracy. And we think a responsible, efficient, responsive legislative and executive branch in the political system will alleviate some of that pressure. We routinely decide cases involving federal statutes, and we say, ‘Well, if this is wrong, the Congress will fix it.’ But then we hear that Congress can’t pass the bill one way or the other, that there’s gridlock. And some people say, ‘Well that should affect the way we interpret the statutes.’ That seems to me a wrong proposition. We have to assume that we have three fully functioning branches of the government, that are committed to proceed in good faith and with good will toward one another to resolve the problems of this republic.”
The really telling part of that statement from Justice Kennedy is that he felt he needed to make it. And of course he didn’t make it just speaking to the press, he didn’t make that statement speaking from the bench of the Supreme Court, he made it speaking directly to Congress through a congressional committee. And if Justice Kennedy, often considered the crucial swing justice in the current composition of the court, is troubled by the authority that is now vested in the court by the inaction of Congress then that ought to really tell us something; and it’s not something that is good news.
2) Religious beliefs of Supreme Court Justices affect their interpretations of law
And then if all that’s not interesting enough, the current cover story in Moment Magazine – that’s a mainstream Jewish magazine of reformed Judaism – asked the question: Do Religious Beliefs Influence Their Decisions? Nine photographs on the front, the nine justices of the United States Supreme Court. With every one of these pictures is a religious designation: Catholic, Catholic, Catholic, Jewish, Catholic, Catholic, Catholic, Jewish, Jewish – there are six Roman Catholics on the Supreme Court, there are three Jews, and there are no Protestants. For the first time in the nation’s history not one Protestant sits on the United States Supreme Court.
The six Catholic justices constitute the majority, the three Jewish justices the minority. What we’re looking at here is that the vast mainstream of America in terms of religious identification is not now represented at the United States Supreme Court, and that has led a Jewish magazine – reflecting on the fact that there now three Jewish justices and six Catholic justices – to ask, ‘Do religious beliefs influence the decisions made by the High Court?’ Rachel Gross writing for Moment says,
“When it comes to religion, the Supreme Court of the United States has undergone a dramatic transformation. For centuries, the justices were largely Protestants. Now, for the first time in its history, the bench is composed of three Jews and six Catholics, including several devout Catholics.”
Now that statement should indicate that something interesting is going on here. This is a liberal Jewish magazine coming from a liberal Jewish tradition, a largely secularized Jewish tradition. So when this Jewish magazine looks at the three Jewish justices it says the three are ethnically Jewish, but there is no particular theological worldview attached to their dedication. But they say in contrast, when you look at the Catholic members of the court several of them are, to use the words of the very article, “devout Catholics,” meaning that they are deeply invested in the theology of their church.
The magazine then featured a roundtable of different authorities offering their opinion in terms of the answer to the question: do religious beliefs matter? Lyle Denniston, a veteran legal reporter, said and I quote,
“Personal religious identities now have a growing impact on Supreme Court decisions.”
On the other hand, Sarah Posner, who is a senior editor for Religion Dispatches said that politics really does outweigh religious issues on the court. She then writes,
“The thing about the Jewish justices is that none of them is outspokenly Orthodox or observant.”
She then makes the observation,
“We have a very religiously undiverse Supreme Court right now, in that we have the first Supreme Court in history with Catholics and Jews but no Protestants. It is very unrepresentative of the American public, and there is a lot of focus on that, questioning if the Supreme Court should reflect the gender and ethnic diversity of the United States. Should presidents also be considering religion when nominating someone?”
Posner then points out,
“In my lifetime I would be shocked if we had an avowed atheist on the Court. I think that would even be a harder sell than a Muslim Supreme Court justice.”
That’s an interesting insight, and I think she’s probably right. I think it would be more difficult for many Americans to settle for a Supreme Court Justice who believe in nothing but a naturalistic moral code than one who is a Muslim and did believe in a revealed worldview – even if a very different revealed worldview.
Leslie C Griffin, who is the William S. Boyd professor of law at the University of Nevada, said, of course religion impacts the role of Supreme Court Justices. The professor notes that a majority in the recent contraception case – that was the Hobby Lobby case – the majority that ruled for the company were Roman Catholics and the majority in the minority who ruled against the company were Jewish. Then writing,
“The Court here was willing to just accept the religious beliefs and say that the state had to defer to them. I think that the male Catholic justices start out very sympathetic to the world view that opposes contraception and abortion, whereas Judaism is much more mixed and traditionally more supportive of women’s rights.”
So there we even have the word ‘worldview’ that appears right in this Jewish magazine about how justices of the Supreme Court operate. And here you have a professor at University of Nevada who says, ‘of course their worldview works its way out.’
Emily Bazelon, who is a staff writer at the New York Times magazine said,
“I don’t think the Court is purely driven by the justices’ personal values or politics, but I also think those factors do come into play when the Court decides really hard cases, involving hot-button social issues, in which there is no obvious right legal answer.”
That statement is really important because here you have an observer of the Supreme Court saying sometimes it doesn’t actually come down so much to a matter of the law as it does to a matter of the worldview of the justices. We knew that was true, it’s interesting to have that affirmed in a setting such as this.
There are several other very interesting responses in this symposium but the bottom line is this: we know that worldview does work its way out and we have a biblical understanding for why that is so. There is no way we can divorce ourselves from our most basic intellectual theological commitments, there is no way we can divorce ourselves from our worldview because our worldview is the lens in which we understand reality itself; whether that’s legal or economic or relational or anything else. So while we’re thinking about many of the headline issues as such controversy in this day, let’s also remember the role of worldview when it comes to judges interpreting the law, and that includes justices of the US Supreme Court.
And by the way, not only is it religiously un-diverse, it is also educationally un-diverse as well. The nine justices of the Supreme Court are graduates of three –only three–law schools. Three justices graduated from Yale, five from Harvard, one from Columbia University. When it comes to being representative of the United States, the Supreme Court –Richard Wolf says– which is now the most powerful branch of government is also the least representative.
3) Legalization of same-sex marriage will not resolve aims of sexual revolutionaries
Next, one of the most influential magazines on the American political left, that is the American Prospect, wrote a major article asking the question, What To Do When ‘I Do’ Is Done. Peter Montgomery writes,
“LGBT activists and funders are debating the movement’s post-marriage priorities.”
The article assumes that gay marriage will soon be a legal reality in all 50 states, and it asks the question, ‘what’s next?’ Montgomery then writes,
“The most likely candidate for the kind of coordinated, national- and state-level strategy that fueled the marriage equality campaign is a push to get all LGBT Americans covered by laws barring discrimination against them in employment, housing, health care, and public accommodations.”
The article also makes clear that some activist in the LGBT community were never satisfied that the marriage debate was the right debate, and they are not actually considering the legalization of marriage to be much of a victory because they don’t intend to get marriage. They intend instead to press other agendas, other goals. Veteran activist Urvashi Vaid said,
“The question that confronts the LGBT movement today is whether we are willing to retool our movement to push for the redistribution of economic resources and political power that is needed to change the lived experience of LGBT people in all parts of our very diverse communities.”
Getting right to the point Montgomery then writes,
“Doubts about the marriage equality campaign have been somewhat muted by its successes. But some advocates fear that rhetoric used in the marriage campaign [that is by the LGBT community] could make it harder to ensure that people in less traditional, nonmarital relationships have legal protections.”
Other such as Michelangelo Signorile were famously, or infamously, making clear early in the argument over same-sex marriage that the agenda for legalizing same-sex marriage was to subvert the cultural centrality of marriage in the first place. Jeff Cook-McCormac of the American Unity Funds said,
“After the marriage moment is the nondiscrimination moment,”
And Mitchell Gold, founder of a group identified as Faith in America, thinks the LGBT movement,
“…should be talking more about the consequences of ‘religious-based bigotry.’”
Montgomery says that the big goal after the legalization of same-sex marriage coast-to-coast should be the passage of a proposed employment nondiscrimination act. Montgomery then writes,
“One potential challenge to achieving legal and lived equality comes in the form of religious objections to LGBT equality. Conservative evangelicals and their conservative Catholic allies have made ‘religious liberty’ their rallying cry, with many stating flatly that LGBT equality and religious liberty are incompatible and cannot co-exist. While marriage equality has swept across the country, conservatives have pushed for broad religious exemptions that LGBT activists call ‘right to discriminate’ laws. As part of that campaign, conservatives have tried to make folk heroes out of small-business owners who run afoul of anti-discrimination laws when they refuse to provide services to same-sex couples for a wedding or commitment ceremony.”
The reason I draw attention to this article and that paragraph is because it demonstrates just how far along this moral revolution now has gone. It makes very clear that on the other side of the legalization of same-sex marriage in all 50 states there is going to be an increased push for additional gains for the LGBT movement. And there is no doubt that who they see as their primary opposition, and that is conservative evangelicals and “their conservative Catholic allies.”
The use of the term religious liberty in quotation marks should be deeply chilling. And beyond that, the argument that what is now being done by conservative evangelicals is making “folk heroes” out of those of religious liberties have been infringed. So here you have a movement that is quite ready to move past the religious liberty issue altogether and suggest that those who are claiming religious liberty are simply using it as a vail for discrimination. So far as many in the cultural elites are now concerned there could be no legitimate argument against the normalization of homosexuality or the legalization of same-sex marriage. Their worldview would allow them to understand this only in terms of discrimination. If we fail to understand that, we fail to understand what were really up against.
4) Canadian MP quits conservative party, protesting anti-Christian disposition of politics
Next from Canada the Globe and Mail reported on Tuesday that a British of Columbia member of the Canadian Parliament quit the conservative party in order to defend his views on evolution. And when it comes to those views, he doesn’t believe in Darwinian evolution and in order to voice that as a member of the government he had to leave the conservative party and he did so as a matter of conscience. Reporter Steven Chase of the Globe and Mail writes about member of Parliament James Lunney who he says,
“repeatedly expressed skepticism about the theory of evolution”
He’s quitting the Tory (that is the conservative party) caucus citing a deliberate attempt “to suppress a Christian worldview at the senior levels of Canadian politics.” Mr. Lunney had expressed common cause in a statement that had been released just days ago in Ottawa in which several faith leaders said that they were concerned about,
“…increasing discrimination and intolerance against Christians in Canada today, including from the government and private companies.”
Lunney said that these religious leaders and he himself see an effort to,
“suppress a Christian world view from professional and economic opportunity in law, medicine and academia.”
Just remember that in recent weeks we talked about a deep controversy in Canada over whether or not the graduates of Trinity Western University, the only major evangelical University in Canada and the only Christian University with a law school, whether the graduates of that school can actually join the bar – even by qualification – if they held to the religious teachings of the school. Then it turned out that wasn’t even the argument being used in some circles and that is that simply graduating from the school, regardless of one’s individual beliefs, was a disqualification because of the biblical stance taken by the school.
In resigning from the conservative party in Canada Mr. Lunney called for genuine tolerance. He said,
“In a society normally proud of embracing difference, the role of the media and partisan politics in inciting social bigotry and intolerance should be questioned. Such ignorance and bigotry cloaked in defence of science is as repugnant as bigotry of any other origin. It is based in a false construct from another century and is a flagrant violation of a society that is multicultural, multi-racial and multi-faith and strives to be accepting of differences.”
As we have noted in the main, Canada tracks closer to Europe than to the United States when it comes to the process of secularization. Here is one piece of evidence, coming from a man who had resigned from the conservative party in order to speak his mind on an issue as fundamental as evolution.
5) Revision of Russian history in exhibitions reveal absence of value neutrality in history
Finally in recent days we talked about the fact that museums are not value neutral arenas nor could they be because human beings with worldviews are establishing what’s being depicted and being exhibited within those museums. The same is true for an art gallery, the same is true for a fashion show as we recently saw, the same is also true for history and profoundly so. On Tuesday of this week the New York Times ran an article about the increased calls for openly patriotic displays in terms of the exhibits in Russian museums. And as it turns out, under the active direction of Russian Pres. Vladimir Putin not only are these museums beginning to exhibit increased patriotism but they’re actually rewriting history and doing so in order to make Russia look like a beleaguered nation that must be unified in order to counter dangerous threats coming from the outside. But as the New York Times also makes clear, there is a rewriting of history when it comes to the legacy of the czars.
As Neil MacFarquhar and Sophia Kishkovsky report from Moscow,
“Ivan the Terrible, the Russian czar, should really be considered Ivan the Not So Bad, according to a wildly popular historical exhibition held recently near the Kremlin.”
Now the New York Times doesn’t seem to have much of an ax to grind here but it does find really interesting the fact that Ivan the Terrible is now being presented as considerably less terrible as Ivan the Terrible actually was. The newspaper sites very historical credible evidence of the torture and summary executions and of the despotism of Ivan the Terrible, but points out because he was such a Russian nationalist Vladimir Putin says he wasn’t so terrible after all – he was not Ivan the Terrible, he was Ivan the Not So Bad.
From a Christian worldview perspective the interesting thing is not that these Russian museums are showing a worldview, the interesting thing is that they are now so honest and blatant about it. The revising of history goes even to the extent that one major exhibit about World War II history and Russia doesn’t actually acknowledge that the Soviet Union had signed a peace treaty with Hitler before Hitler invaded the former Soviet Union. Explaining how the history of the Soviet Union in World War II could’ve left out that very important detail, the curator said,
“Such simplification is unavoidable when there is not much room,”
Well if you can tell the history of World War II without much room for the fact that you had signed a peace treaty with Hitler, then there’s not much room.
Valentin Diaconov, who the paper says covers the art world for the daily newspaper Kommersant, said that he was trying to ignore the historical exhibits but they aren’t going away.
“They are basically showbiz. We are not talking about history; it is too complicated. We are talking about superheroes.”
When a world corrupted by sin, in a world that reveals our own tendency to want to rewrite our own history national or otherwise, it shouldn’t be that much of a surprise that in Russia today Ivan the Terrible is being redefined as Ivan the Not So Bad.
Thanks for listening to The Briefing. Remember the release of Ask Anything: Weekend Edition. Call with your question in your voice to 877-505-2058. That’s 877-505-2058. For more information go to my website at AlbertMohler.com. You can follow me on Twitter by going to twitter.com/albertmohler. For more information on The Southern Baptist Theological Seminary go to sbts.edu. For information on Boyce College just go to boycecollege.com.
I’ll meet you again tomorrow for The Briefing.
