The Briefing 12-9-15

Part I

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Influential Federal Judge candidly admits change of mind, court's creation of rights

Occasionally we are offered a glimpse into how courts work and to how judges think, and in almost every case, it’s very important that we pay attention. A recent article that appeared in the New York Times tells us a great deal about how one judge thinks. The judge in this case is Richard A. Posner, a judge on the United States Court of Appeals for the Seventh Circuit. He is joined in this article by Eric J. Segall, a law professor at Georgia State University. What makes Judge Richard Posner so important is that he is one of the most influential federal jurists in America today. As a matter of fact, legal scholars would say he is probably the most influential judge in America who is not sitting on the U.S. Supreme Court. And what makes this really interesting is that there is a background we’re not told in the New York Times column. They warn that what Justice Scalia on the Supreme Court actually wants is an American theocracy, a theocracy that would be supported by the majority of Americans, but which they say would be inherently contradictory to the U.S. Constitution. But what they’re writing about is their disagreement with Justice Scalia over his dissent in the Obergefell decision this past June legalizing same-sex marriage. Posner and Segall write,

“The Supreme Court has decided four major cases furthering gay rights. Justice Antonin Scalia has written a bitter dissent from each.”

That’s the lede in the article and there’s absolutely no news there. Everyone knows this. They wrote,

“In Lawrence v. Texas, for example [by the way, that’s back in 2003], where the court invalidated Texas’ ban on homosexual relations between consenting adults, Justice Scalia complained that: “Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.”

Cut to the core, what Justice Scalia is arguing is that the push for gay rights has been most popular among law professors and in a legal culture that is rights-dominated and is severed from the actual words in terms of restraint of the United States Constitution. The clear context here is that the Supreme Court has been moving in a very liberal direction on these gay-rights courses ever since the Lawrence decision in 2003, the Windsor decision in 2013, and of course the Obergefell decision in 2015. We’re talking about a moral and a legal revolution in one generation. The article by Posner and Segall gets more interesting and more important when they write,

“Justice Scalia made these remarks 12 years ago — and predicted in his dissent that the court would eventually rule that the Constitution protects the right to same-sex marriage. This June, Justice Scalia’s prediction came true in Obergefell v. Hodges. He has vented even more than his usual anger over this decision.”

They then write,

“It has become apparent that his colleagues’ gay rights decisions have driven him to an extreme position concerning the role of the Supreme Court.”

Now this is really interesting. These two write that Justice Scalia declares that the decision on same-sex marriage marks the end of democracy in the United States, when Justice Scalia warns that what’s really happening in this decision is that five justices have placed themselves over against the moral wisdom and convictions of the American people. Now once again, this is an article that appeared in December 2015, almost 6 months after the Supreme Court decision. What’s the news here? Well, in reality, the news has nothing to do with Antonine Scalia and everything to do with Judge Richard Posner. In their article, Posner and Segall basically make the complaint about Scalia that he hasn’t changed his mind on the issue of the Constitution and same-sex marriage. And they’re also complaining about the fact that he hasn’t changed his mind about how he believes the Constitution should be interpreted­‑-that is, in terms of the actual words of the Constitution and the intention behind those words of those who wrote them.

But once again, those who read that New York Times column might think that the big story is that Justice Scalia hasn’t changed his mind. But I would argue, the big story is that Judge Posner has and in a most interesting way. Back in the year 1997, Judge Posner wrote a book review of a book arguing for same-sex marriage–again that’s back in 1997. It was an argument made by William N. Eskridge, Jr., another law professor, and in this case a very influential proponent of gay rights and of same-sex marriage. He made the case for same-sex marriage in this book and Judge Posner found it unconvincing. Judge Posner is considered to be a very brilliant legal theorist and in this article he takes very seriously several legal arguments, but at the end of the day his major argument is that the American people in terms of public opinion are not ready for the legalization of same-sex marriage. In the article, Judge Posner argued back in 1997 that the arguments for legalizing same-sex marriage by action of the Supreme Court were not persuasive. They were not, he said,

“[a]dequate basis for compelling every state in the United States to adopt a radical social policy that is deeply offensive to the vast majority of its citizens and that exists in no other country of the world.”

He went on to say,

“And to do so at the behest of an educated, articulate, and increasingly politically effective minority that is seeking to bypass the normal political process for no better reason than impatience, albeit an understandable impatience.”

Now what’s important to realize is that I’m not quoting Antonine Scalia there, I’m quoting Judge Posner. But that was then and this is now, and this is such a graphic illustration here, because 18 years after Judge Posner wrote that review he has re-reviewed the book. The first time in the Journal of the University of Chicago Law School and the second time in the Yale Law Journal, in between, 18 years and a moral revolution. And in this new review of the same book, Judge Posner indicates not only his change of mind on the issue of same-sex marriage, but his change of mind concerning how the Supreme Court should and did act. Embedded in this article is also a stunning statement of how this leading judge representing so many others considers his role. He writes that he thinks,

“[A] decision by the Supreme Court in 1997 establishing a right to homosexual marriage in all states would have been a mistake.”

He then goes on to say this,

“A change in public opinion was required to make the judicial creation of such a right acceptable.”

He then continued,

“The change occurred. By 2011 a majority of Americans supported authorizing same-sex marriage.”

Note what is lacking from Judge Posner’s argument–any necessary reference to the U.S. Constitution. Because as he articulates his change of mind and how he believes the court should act, what he really says here is that it’s basically waiting on public opinion to change. But in his statement he actually concedes far more than that, and that’s why it deserves our very careful attention. He wrote,

“A change in public opinion was required to make the judicial creation of such a right acceptable.”

What a stunning admission. Here you have a man who was considered to be the most influential federal judge who is not sitting on the Supreme Court who says right off that what the Supreme Court did in the Obergefell decision was to create a right. Now any morally honest person you would think would have to admit that that is the case, that’s what the Supreme Court has been doing in recent decades, it has been inventing and creating rights that were never intended not to mention found in the text of the U.S. Constitution. This began with the so-called right to privacy as defined in sexual matters going back to the mid-1960s and the Griswold decision, but rarely do you have a judge admit that this is what’s happening. And here Judge Posner makes that admission, and by the way, this is caught the attention not only of constitutional conservatives, but of others as well. Ilya Somin, writing in the Washington Post says,

“Posner is the most influential federal judge below the level of the Supreme Court, and is also probably our most distinguished living legal scholar. In my view, he was absolutely right to change his mind on this issue. Unfortunately, however, he did it for the wrong reasons.”

Now this judge’s re-review of this book actually deserves even more attention than we can give it today on The Briefing, but the bottom line in all of that is this, the New York Times ran an article co-authored by Judge Posner in which he complained that Justice Scalia won’t change his mind. He also complained that Justice Scalia is basically making an argument based on majority moral opinion. But wait just a minute, it’s Judge Poser who has actually changed his mind and he argues that he’s changed his mind about what the Supreme Court should do because public opinion changed. Increasingly in America, the courts, driven by the very progressive legal culture that Justice Scalia talked about, are routinely inventing and creating rights. They are increasingly detached from any accountability to the actual words, grammar and syntax and intention of the United States Constitution. They are increasingly driven by public opinion, even as the courts and the elites behind the courts intend to move public opinion by court decisions. Just keep in mind that here you have one of the most influential legal minds in America, a federal appeals court judge, affirming that what the Supreme Court did in this case was,

“The judicial creation of such a right.”

Finally on this issue, we need to note that the very kind of argument being used here in legal circles is used in some biblical study circles as well, indeed, it’s central to the project of modern biblical criticism in liberal theology. The argument there is that we should not be bound to the actual words of Scripture, but rather we should seek to find the internal meaning that can be abstracted from the words of the biblical text. That’s another reason why we need to pay attention to this judge and his very interesting change of mind. It is because the form of argument we find here doesn’t stay in the courtroom, it shows up also in the pulpit. It’s because the kind of argument being made here isn’t just found in legal circles. It is found in some theological circles as well. And it comes back to the same question, are we or are we not bound to the actual words of the text? And that’s why the issues related to theology and the interpretation of the Scripture are far more important, because there we’re not talking about the words of the U.S. Constitution, we’re talking about whether or not the Bible is in every word the very word of God.

Part II

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Lutheran denomination breaks with Boy Scouts after false promise on homosexuality

Next, the Boy Scouts have been in the news of late. Big news came in recent days when the Lutheran Church Missouri Synod broke its relationship–historic relationship–with the Boy Scouts of America. The Missouri Synod, as it’s popularly known, is the second largest Lutheran denomination in America and it is a very conservative denomination. It’s a denomination that, unlike its liberal counterpart known as the evangelical Lutheran Church in America, is actually evangelical in terms of conviction. The Missouri Synod represents a continuing commitment to the confessional identity of historic Lutheranism, and in a battle that dates back to the early 1970s, conservatives in the Missouri Synod were effective in leading that denomination to be very clear about its affirmation of the inerrancy and infallibility of Scripture. The big news tells us that the Missouri Synod has decided that it can no longer work with the Boy Scouts of America. It had been a large sponsoring organization for Boy Scouts units nationwide.

Back in 2013, with the Boy Scouts of America indicating a shift on the issue homosexuality, in this case openly gay scouts, the group had signed an agreement known as a memorandum of understanding with the Missouri Synod in which the two organization pledged to,

“Work cooperatively” to “establish and nurture Scout units as an expression of the nurture and outreach ministry of The Lutheran Church — Missouri Synod.”

That memorandum of understanding was dissolved December 1 and the Missouri Synod Lutherans said they are moving in a very different direction than the Boy Scouts. As David Roach Baptist of Baptist Press reports, Missouri Synod leaders released a statement saying,

“While we understand the legal concerns that led to this new BSA direction, it is simply a place the LCMS is not willing to go,” Harrison and Day said. “At our summer 2013 meeting with the BSA, we were assured that changes concerning adult leadership would not be on the table, but that was not the case. We are now being told that the LGBT agenda, even with the most recent change, won’t affect the content of Scouting or the BSA experience, but we do not believe that will be the case.”

That’s an incredible statement. Here you have the Missouri Synod leaders saying that they were told just back in 2013 that the decision to allow openly gay scouts would not lead to a decision to include openly gay scout leaders. We now know that was false. That decision was made just this year. And now the Missouri Synod says it has no confidence in any assurances given it by the Boy Scouts of America in terms of the direction of that organization. In one sense, we can see this as virtually inevitable. Once the Boy Scouts set themselves down this path of moral revolution, the question was just how quickly some Christian churches and denominations were going to come to the conclusion that they really had joined this revolution.

Part III

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Girls who want to be Boy Scouts challenge commitment of gender revolutionaries

The announcement by the Lutheran Church Missouri Synod is a thunderclap in terms of the development of this story, but there’s another major development on this front. And it ties the Boy Scouts back to the decision made last week by the United States Secretary of Defense that there would be the full inclusion without exception of women into Front Range combat positions in the Armed Forces. That’s because just a few days before that announcement, the New York Times ran an article with the headline,

“I Want to Be a Boy Scout. There’s Just One Hitch.”

The subtitle of the article by Julie Turkewitz:

“Californians are the latest girls to seek admission to the Boy Scouts.”

This is a different issue, but it’s part of the same moral revolution. This article in the New York Times tells us that a group of California girls, and they are girls and they want to be known as girls, now demand admission to the Boy Scouts. These are not boys who are gay scouts, nor are they transgendered scouts; they are indeed girls who want to be Boy Scouts. As the New York Times article says,

“In a year in which gender roles in traditional American institutions have undergone major changes and challenges, a fight in Northern California over joining the Boy Scouts is among the most recent points of contention. These girls — the latest of many over the decades who have sought to become Cub Scouts and Boy Scouts instead of Brownies and Girl Scouts — say they would rather be camping and tying knots than selling cookies.”

Now there is a really interesting subtext to this article, and that has to do with the dateline, we’re talking here about notoriously countercultural Northern California and we’re talking about the fact that even the New York Times recognizes this is putting some very liberal parents in a bind. Because as liberal as they may think themselves to be, as much for the moral revolution and the sexual revolution as they declare themselves to be politically, many of them still don’t want their Boy Scout aged-boys sharing a tent with girls. The article cites Jennifer Masterson, 54 years old, a scout leader in the same region as the girls who are demanding entry into the Boy Scouts. She says,

“I have sons. Would I want a girl sleeping in my son’s tent? No.”

That’s a rare moment of moral clarity. One dimension we need to note here is that we are witnessing an effort, and this is now a culturally driven effort, to try to remove any distinction between male and female, boy and girl in the institutions and organizations that have traditionally honored that very distinction. But we’re also noticing that even as the elites in the culture say that gender is not supposed to matter, even moms in liberal Northern California think it does matter when it comes to who sleeps with whom in a tent. But also very interesting in this New York Times article is the fact that senior scouting leaders in that area, Northern California, basically said the organization is not ready now for the entry of girls into the Boy Scouts. Speaking specifically of the Cub Scouts, one of the scouting leaders cited here, he’s an official by the name of Rodney Mangus, he’s age 65, he’s identified as one of the three top officials in the Boy Scouts area that includes this region of northern California. He said about the Cub Scouts,

“Those programs have all been written for squirrelly little boys that run around and get crazy.”

You might think from that that he was saying the issue is closed. But that’s not what he says. Later he said,

“The Boy Scouts are not daft about what’s happening in society. As far as admitting girls in the future, he said, “Who knows?”

Well, here is one thing we know. We know that the Lutheran Church Missouri Synod decided that when the Boy Scouts says something is not going to happen, it shortly does in terms of this moral revolution. And they said they were getting out now because they had no assurances about the direction the Boy Scouts of America would be taking in the future. So here’s an indication of the future, senior Boy Scout officials who won’t say no to the inclusion of girls in the Boy Scouts. They just say, quite publicly, no for now. That prediction will come true even faster if the Boy Scout leaders aren’t sure that you have to be a boy to be a Boy Scout.

Part IV

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Kentucky gubernatorial inauguration reminds Christians of democratic duty to vote

Yesterday, I had the opportunity to pray the invocation at the inauguration of Kentucky’s new governor, Matthew Bevin. He was elected by a large margin just back on November 3 of this year, and he took the oath of office at midnight yesterday morning and then had his formal swearing-in in the ceremony filled with tradition on the Capitol steps in Frankfort on Tuesday afternoon. One of the things we need to keep in mind is that democracy is a habit of government that requires a great deal of its citizens. We talk about the rule of the people, but that means that people have to take responsibility for their own government in a representative democracy. Yesterday, there was all the pageantry that you would expect in terms of a change of administration, and in this case, it was a change in administration not only from one governor to another, not only from one party to another, but from one worldview to another on so many issues of concern. The Commonwealth of Kentucky, like so many of the other states faces huge issues–budgetary, economic, political, educational–and this new governor takes on enormous responsibility as he accepted the oath of office yesterday.

The traditions involved in inauguration, whether of a president or of a governor in this sense, are very important to democracy because it reminds us that we ultimately are the government. A government of the people, by the people and for the people requires a certain moral commitment of the people. Everyone observing that ceremony yesterday understood that something of importance was taking place. And yet Christians need to understand it’s more important even than the observers of the ceremony many of them recognized. It’s because government is no mere human invention, it is one of God’s gifts to his human creatures for our good and for human flourishing. But that requires the government be kept in its rightful bounds and it requires the government to fulfill the responsibilities that God has given it. The bunting, fly-overs, ceremonies, music, and 19 gun salute were all an indication of the formality and importance of the event. And the pageant of democracy once again reminds us that democracy makes demands of us. A people that takes representative democracy for granted is a people who will eventually lose that democratic form of government.