The Briefing
April 28, 2015
This is a rush transcript. This copy may not be in its final form and may be updated.
It’s Tuesday, April 28, 2015. I’m Albert Mohler, and this is the Briefing, a daily analysis of news and events, from a Christian worldview.
1) Today marks historic day in Constitutional history with definition of marriage at stake
Today we have arrived at one of those most strategic days in American constitutional history. This is also a day that will long be remembered in America’s moral history as well. That’s because the issue at stake is nothing less than marriage. Today, before the United States Supreme Court, the issue of marriage will be argued. This is the phase known as ‘oral arguments’ in a case that comes before the nine Justices of the U.S. Supreme Court. This is the most public phase of the court’s deliberation. Other than announcing the fact that the court will take a case, and eventually when the court announces its decision in a case, the only public eye into the process undertaken by the highest court in the land are the oral arguments that will be held today. The official name of the case is Obergefell vs. Hodges and it will go down in history as a case that will often be cited. And there’s no way around the reality that today is a momentous day in the nation’s history. And that’s because Christians understand, perhaps as others cannot and certainly do not, that marriage is at the very center at our understanding of civilization itself. And we understand that to tamper with marriage is to bring grave danger and damage into human society and civilization, of which marriage is the most central institution.
So what we’re looking at today is a sobering moment. There will be arguments made, one side and then the other, before the Supreme Court. The Justices will be allowed, each in his or her turn, to ask questions. They can interrupt the counsel even in the making of arguments.
A big and very telling development is that the case that will be before the Supreme Court today is going to be argued in terms of the side for the legalization of same-sex marriage in all 50 states, at least in part the argument will be made by the Solicitor General of the United States, and that’s a very telling development in itself. And that’s because the Solicitor General, that is Donald Verrilli, will be speaking on behalf of the administration, on behalf of President Obama. The decision for the Solicitor General to make the public argument is very significant, because the administration has the choice to decide whether or not it will place itself, in effect, before the court. When the Solicitor General of the United States speaks on behalf of the administration, he or she is putting the President of the United States on the line, on one side of an issue. And this is no small issue; the issue is marriage. One of the most interesting development is that if you go back just two years to 2013 and the Windsor decision before the court, that was the case whereby the court ruled in a 5-4 decision to strike down the Defense of Marriage act, it should be very telling that in 2013 the President of the United States, the President Barack Obama, did not send the Solicitor General into the courtroom. He withheld that authority.
Now you see the sweeping moral revolution that is reshaping America, seen in the fact that not only has President Obama, to use his own word, ‘evolved’ on the issue of same-sex marriage, tellingly, along with the larger issue of that evolution, when it comes to the moral judgment of the American people, he has now evolved to the point that, just in recent months he has stated not only that he is for same-sex marriage, but that he is for the court’s ruling that it is obligatory that all 50 states allow for same-sex marriage and honor the marriages conducted in other states. The most significant symbol of that is the fact that the President of the United States is sending in the Solicitor General of the United States to make that argument. One footnote in terms of the life and work of the United States Supreme Court, if the administration chooses to intervene in a case and to place itself on one side or the other, and the Solicitor General is then sent in to make that argument, the Solicitor General then takes precedence over all other legal counsel, and gets to speak for the case for as long as he or she may wish.
The first major decision by the Supreme Court in favor of gay rights came back in 2003, and in a split decision then, it was Justice Anthony Kennedy who wrote the majority opinion, in that case, striking down any law criminalizing homosexual acts or homosexual behavior. Justice Kennedy’s opinion then, back in 2003, set the stage for the striking down of the Defense of Marriage Act in 2013. Again, that case was a 5-4 case and Justice Kennedy was the critical swing vote, and in light of that, he got to write the opinion itself. Now, everyone’s eyes are not only on the nine members of the Supreme Court, but today, the eyes of every informed observer of the court will be once again on Anthony Kennedy. That’s because on this issue it’s almost certain that there are already four votes for the legalization of same-sex marriage in all 50 states, and four votes against requiring the states to legalize same-sex marriage.
So, in a nation of about 300 million people, there are nine Justices of the United States Supreme Court. And now there is one Justice who is certainly at the very center of the arguments that are going to be made today. Jess Bravin, writing for the Wall Street Journal, states the obvious yesterday when he writes
“if the Supreme Court holds that same-sex couples have a constitutional right to marry, odds are Justice Anthony Kennedy, a Ronald Reagan appointee, will cast the deciding vote. During the past 20 years, Ravin writes, “Justice Kennedy has written all three of the court’s major gay rights opinions, each one adopted with the help of liberal Justices, despite the dissent of fellow conservatives.”
Now, says Bravin,
“with marriage arguments set for today, 78-year-old Justice Kennedy is set to cement his place as a pivotal figure in the gay rights movement.”
John Ellwood, a litigator at Vincent and Elkins, that’s one of the most influential law firms in the country (he’s also an attorney who had clerked for Justice Kennedy), he said
“I wouldn’t be surprised at all if he would like to see this one cross the finish line.”
Now, how do we look at that statement? That’s a statement, made by someone who was once a clerk to Justice Kennedy, saying that the process that we’re really looking at here is taking the issue, to use his explicit language, ‘across the finish line.’ So what’s the finish line? The finish line in terms of the issue of marriage is a sweeping Supreme Court decision that would require all 50 states to make same-sex marriage legal. One of the things we need to note is that even as that is the presenting issue to the court, in terms of the constitution, either allowing or demanding that decision, one of the issues we have to face is that the questions involved go far beyond the issue of marriage and the legal reality that is now called ‘same-sex marriage.’
Given the historic nature of the day, and the focus on Justice Kennedy, it is worth noting, as the lead paragraph in the Wall Street Journal article I cited does note, that Justice Kennedy was appointed to the United States Supreme Court by none other than President Ronald Reagan. As the Wall Street Journal points out, this indicates just how difficult it is, often, to predict how a given nominee or Justice will eventually rule on any number of issues. Once someone is on the United States Supreme Court, in a lifetime appointment, it is rather surprising to many presidents, where those they nominate to the court eventually land on crucial issues and very important decisions.
As Jess Bravin wrote,
“few at the time of his 1987 nomination expected Justice Kennedy would come to define a new front in civil rights and some gay and women’s rights opposed his confirmation.”
A very interesting development; he now has become their favorite Justice because of the outsized influence he has on these issues as the swing vote.
It is very interesting that the Wall Street Journal notes an excerpt from a decision written in the 1980’s when Justice Kennedy was not a member of the United States Supreme Court but was instead then a member of the 9th U.S. Circuit Court of Appeals. In a decision handed down then, before he came to the Supreme Court, he wrote,
“there is substantial academic comment which argues that the choice to engage in homosexual action is a personal decision entitled, at least in some instances, to recognition as a fundamental right, and to full protection as an aspect to the individual’s right of privacy.”
Former Attorney General of the United States Edwin Meese, responding to a question from the Wall Street Journal, said that Kennedy had been thoroughly vetted by the Reagan Administration, but in all likelihood, they’d looked at a decision like that and didn’t have anything like what would be called same-sex marriage even on their imagination, or their horizon. They simply didn’t see something like this coming.
But Justice Kennedy’s line of legal reasoning comes back to decisions that he did write, especially in 2003 and in 2013, both on this issue on which he was the crucial fifth vote, but in a statement very revealing of the way he understands the responsibility of interpreting the constitution, Justice Kennedy said
“if the framers knew all the specifics of a just society, they would have written them down.”
He continued…
“but they had some very strong ideas and they used words that appeal over time to our sense of justice and our sense of freedom.”
That’s a very interesting legal argument. That means that Justice Kennedy sees his role as to decide cases not so much on the language of the constitution, but in his words, some very strong ideas that are included in the constitution that are to
“appeal over time to our sense of justice and our sense of freedom.”
A truly frightening thing. And this is the issue that many people will recognize as the look back today, is that those who are making these arguments before the court are really addressing one Justice, not even the nine in this sense, and to that one Justice, they really don’t have to argue from the text of the constitution, they’re arguing over ideas. They’re arguing over abstractions from the Constitution, that in the words of the Justice, “appeal over time to our sense of justice and our sense of freedom.” We’re soon to find out what Justice Kennedy considers to be his understanding of justice and his understanding of freedom. And evidently, as we now know, that may be the deciding factor. Not the words of the constitution, but Justice Kennedy’s understanding of what is right, and what is just.
And speaking once again of those oral arguments that will take place today before the Supreme Court, three points. Number one, late yesterday news media were reporting that there were already more people waiting in line outside the court to be able to fill the some 500 or so seats inside the court to observe the day in history. One of the things we now need to note is that most Americans will have no opportunity to see the arguments being made before the United States Supreme Court. Eventually, we will be able to hear them, because later today the Supreme Court is expected to release audio of the oral arguments, and eventually there will be a transcript as well, but at this point, most of us are shut out from watching what is taking place. You’ll note the interest, more people are now in line than can possibly be accommodated in the Supreme Court’s chambers early today.
So the first point is, again, you can see the interest in the case that’s very telling, more people yesterday were in line than today could possibly be sitting in the chambers of the United States Supreme Court.
The second thing to note is that there will be no cameras allowed in court. There are some courts in the United States that allow live cameras, in terms of something like a C-SPAN apparatus, for people to be able to look inside the oral arguments of the court and to see them happening as they happen. The United States Supreme Court has steadfastly rejected arguments for cameras in its own chambers. It does not allow for even still photography of the oral arguments in terms of the proceedings of the court.
Writing an op-ed piece just a few days ago in the New York Times, attorney Jonathan Sherman said
“now is the time for the Supreme Court to open up to the public, in terms of cameras in its courtroom.”
As he writes, on Tuesday morning, that would be this morning, the Supreme Court will hear oral arguments in Obergefell vs. Hodges, the same-sex marriage case, but the proceedings won’t be broadcast on radio or television or live-streamed on the internet.
Anyone trying to follow the Justice’s questions and the lawyer’s answers will have to wait for journalists in the courtroom to tweet or blog about them. The court’s sole concession to the intense public interest in the case will be to release an audio recording of the arguments later that day, instead of later in the week, which is the custom. Sherman argues that this is unjustified, that the American people have a right to watch the oral arguments as they are taking place and peer inside the contemporaneous deliberations of the court as represented by the questions asked by the nine Justices. As he also indicates, the Supreme Court has never given a firm answer as to why it does not allow cameras in the courtroom. Anthony Kennedy did say that he didn’t want to introduce what he called an insidious dynamic that might account to lawyers reducing their arguments to soundbites. Justice Clarence Thomas once said that video coverage, according to Sherman, would compromise his colleagues’ anonymity. Former Justice David Souter once said that “the day you see a camera come into our courtroom, it will roll over my dead body.” As Sherman notes, he’s since retired from the court. Sherman argues that the public has a right to see the oral arguments as they are made, and to observe the Justices at work.
There’s an argument to be made there, no doubt. But it’s very unlikely that the current court will ever be persuaded to allow cameras into the courtroom. And the reason for that is actually something that we ought to keep very much in mind. In our constitutional system, we actually do reduce the biggest cases of law to a process in which the stewardship of those cases is invested in nine individuals who are nominated by a President of the United States and confirmed by the United States Senate. And the arguments being made by attorneys today, or any day in which the court is holding oral arguments, are being addressed to those nine individuals. Every single one of them has been invested with constitutional responsibility, and every single one of them has long has long had the legal experience that has brought them to the court. That means that as the arguments are being made, they are not being reduced to soundbites. They are not being reduced to what someone, peering into the television screen or watching on the internet might hope or expect to be said. The most important point here is that the oral arguments being made by the attorneys aren’t in that very limited, very private context, aren’t being made in order to influence the court of public opinion.
At that point, and this is a very telling issue, only virtually at that point in America’s public life, are the arguments not to the court of public opinion, but rather to a sitting court of nine Supreme Court Justices. In one sense, the major reason that cameras are not in the courtroom as much as, quite frankly, I would want to see what is going on, is that our constitutional system requires that the arguments be made to those nine individuals on the Supreme Court, and the telling reality is this and we know it: if there were cameras in that courtroom, the lawyers would be tempted, and the temptation might well be overwhelming, to argue to the public, to the court of public opinion, rather than to the Justices in terms of issues of the law. We already have far too many Justices who are far too political in terms of their understanding of the law and their role as judges. The last thing we need to do, in terms of our constitutional system, is to take any act, no matter how much we may wish for oral arguments to be visible today in this case, that would endanger the court’s constitutional responsibility, and transfer the Justices from being judges invested with a legal authority to being actors on a stage who are courting public approval and public opinion. No matter where you stand on the case today to be argued before the court, or in any other case that has come or will come before the United States Supreme Court, there is a basic issue of the Court’s stewardship and responsibility that is at stake. I really do wish that we could all see those oral arguments today. If that were the simple question, I know exactly what side I would fall on. But in terms of undermining the court as a specific constitutional body invested with a very important legal stewardship, my guess is that the court takes that seriously, which is why the do not allow cameras in their courtroom.
2) Power of media for evil evident in fueling of violence during Baltimore protests
Finally, we come to troubling, very sad headlines that point to a very similar reality and that is the power of the media. Late yesterday, violence broke out once again on the streets of Baltimore, Maryland, as police and protestors found themselves in a rather violent confrontation. You’ll recall that this goes back to the fact that a man who had been taken into custody, a relatively young African-American man by the name of Freddie Gray, in the process of his arrest, evidently suffered an injury that cost him his life. This has led to a very intense controversy. In the case of Freddie Gray, there is video coverage of a great deal of his arrest, but there are gaps and huge questions as to what has taken place. And, as was the case in Ferguson, Missouri and elsewhere, we have to call for justice to follow its course for a full investigation to be made, and for justice and human dignity for all concerned, to be valued and honored in this deliberation. We also understand that that will take some time, that is not even the major point at stake in terms of our deliberation today. It is rather that USA Today and other major media were reporting yesterday that the violent confrontation that took place between police and protestors was fueled by gangs who were themselves fueled by social media.
In one sense, the rise of social media has offered all kinds of opportunities for human relatedness that did not extend before, or at least what we might call a ‘digital relatedness.’ The social media world has also become the leading edge of communication, not only between individuals but the communication in so many ways of major news stories as they break first on Twitter and on other social media platforms long before they can actually even arrive on most television screens, for the people who are still watching those. Social media has provided opportunities for human rescue, and for the elevation of many pressing human concerns to be brought before the public, virtually instantaneously. But the story from Baltimore reminds us that social media also allowed those who had a very deadly agenda, those whose agenda is nothing other than organized evil, to use it for their advantage as well. Racial turmoil is not new to the city of Baltimore, nor to the rest of the community, and especially to the United States. This issue has erupted all to commonly in American life, especially in recent years and months. But, the thing we need to note is that gangs are also not new to the city of Baltimore, a point that was made by the editorial board of Baltimore’s leading newspaper The Baltimore Sun, yesterday.
But the arrival of social media as a tool for gangs to use in terms of communicating their agenda and communicating with each other, well, that is new. Along with the reminder that every technology arrives with a two-edged sword of the opportunity to use that technology for good, or to use that technology for evil. In a world corrupted by human sin, the reality is every new technology is likely to be seized upon by those whose intention is to do evil with it. That tells us a great deal about the human species, it tells us a great deal about sin. It tells us once again about our need for the gospel.
When I was discussing the oral arguments before the Supreme Court today, I said there were three points for us to keep in mind. The third I have reserved until the end, and that is this: above all else, what Christians need to do today is to pray; to pray for our nation, to pray for the institution of marriage, and to pray for the preservation of marriage, because we know that it’s not only that which leads to God’s glory, but also to human flourishing. We also need to pray in a way that scripture commands that we pray, for those in authority. And today the most crucial arena for those prayers is the Supreme Court of the United States, and to the nine Justices there invested with so much authority. So, as we come to the conclusion of the briefing today, let us conclude with a call to prayer. A call to prayer for the United States Supreme Court, a call to prayer for our nation, a call to prayer for the institution of marriage, a call to prayer for those Justices to appreciate, and to respect, and to uphold, and not to damage, the institution of marriage as the union of a man and a woman.
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, go to boycecollege.com.
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