The Briefing 05-17-16

Part I

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SCOTUS returns contraception case to lower courts in small victory for religious liberty

Sometimes when a headline comes in the Supreme Court, it’s not exactly a loss, it’s not exactly a win, and that was the case yesterday. In a unanimous, unsigned decision handed down yesterday, the Supreme Court announced that it would not rule in a major case having to do with religious freedom, the contraception mandate of Obamacare, and competing claims by the administration and by pro-life activists that a violation of principle is at stake. When we look at this case, we recognize that the Obamacare legislation set up an inevitable collision with religious liberty, and that’s because the legislation included the contraception mandate. Furthermore, that mandate that all effective and qualified insurance coverage include coverage for contraception without cost to the woman also included, explicitly, coverage that would include pharmaceuticals that are often claimed to be abortifacients, that is they operate or are believed to operate not by preventing conception—that is, the successful fertilization of the egg—but rather they function as abortifacients, an early-stage abortion preventing the fertilized egg from successfully locating within the uterine wall.

What we’re looking at here is that the religious liberty of many Christian not-for-profit organizations was put at risk when the Obama administration put together the bureaucratic guidelines by which the Obamacare legislation would be implemented. Going back years ago now, Kathleen Sebelius, then the Secretary of Health and Human Services, announced that an exemption would be made only for churches and synagogues and temples, not for religious—including Christian—not-for-profit organizations. Later, under incredible pressure from Congress and only under that pressure, the Department of Health and Human Services came back and carved out what it presented as a limited set of exemptions. But Christian organizations seeing those exemptions understood that religious liberty was still on the line, that they were still in effect being coerced into participating in the culture of death, by even being required to participate by the triggering mechanism by which other coverage would be employed. We also see the fact that, going back to that exemption that was supposedly created by the Obama Administration, it really did nothing to protect the moral integrity of these organizations. For example, the insurance coverage would continue to be in effect for all women covered by the Obamacare legislation and when it came to the contraception coverage—remember, including those abortifacient drugs—the Obama administration made very clear that would be an accounting trick that would be put into place that actually would not mean that the religious employers were not paying for the insurance, merely that that particular part of the insurance would be borne by the carriers. That’s effectively, in terms of accounting, a sleight-of-hand. It’s as if the right hand doesn’t know what the left hand is doing, because the right-hand simply closes its eyes.

In reality, the entire project was a violation of religious liberty, and it continues to be so. One of the most baffling aspects of this is why the Obama administration has defended its policy all the way to the Supreme Court and now into this new round of debate in the lower courts. The issue comes down to this: the Obama administration simply could’ve ordered that these coverages would be extended without requiring anything in terms of participation from these Christian employers. The lead plaintiff in this case is a Catholic order of nuns known as the Little Sisters of the Poor. Their primary ministry has been involved in nursing homes and in the care of the aged. This has led to no small amount of irony, since the Obama Administration has pressed its case all the way to the Supreme Court, being sued by a group known officially as the Little Sisters of the Poor. You would think that any presidential administration would find some way at least even to save face by avoiding this kind of head-on confrontation. But that underestimates the ideological commitment of the Obama administration to the feminist agenda and to the question of abortion and contraception. What is become increasingly clear is that this administration is adamant not only that the insurance coverage for contraception be extended to all women under their plans, but also that even religious nonprofit employers be required to be complicit in a way that is not at all necessary.

That seems to be understood by at least a majority of justices even on the Supreme Court as it is now constituted. What happened yesterday is that in this unanimous, unsigned opinion, the justices sent the case back to the lower courts saying, basically, surely you can find some way to protect all the interests here without this case having to come back to the United States Supreme Court. This development is not unprecedented, but it is certainly in this sense unusual. Here you have the nation’s highest court in effect rebuking a lower court for not settling the issue. It should not have arrived to us, say the justices of the Supreme Court. And in a separate concurring opinion, joined by two justices, Justice Sonia Sotomayor and Justice Ruth Bader Ginsburg, both said to the lower court,

“Today’s opinion does only what it says it does: ‘affords an opportunity’ for the parties and courts of appeals to reconsider the parties’ arguments in light of petitioners’ new articulation of their religious objection and the government’s clarification about what the existing regulations accomplish, how they might be amended and what such an amendment would sacrifice.”

That’s not exactly an open rebuke, but it is a form of chastisement coming from the U.S. Supreme Court. It is also, as I said in the beginning, not really a win, nor is it yet a loss. It is a reminder to all of those who understand how culture works that when you’re dealing with issues of this magnitude, not to mention litigation on this scale, often it isn’t simply a matter of an absolute win or an absolute loss. Those of us who operate out of a Christian worldview understand that when issues like this are at stake, fundamental human freedoms, even the sanctity of human life, and when these are set over against competing claims of competing rights within our culture, this is an ongoing conversation. We are heartened, however, by the fact that the Supreme Court did not rule against the Little Sisters of the Poor because, remember, they are not alone in being at the center of the bull’s-eye in terms of this particular crisis. All of us who believe in the sanctity of human life join them in the center of this bull’s-eye, and in that sense we were all before the Supreme Court. And now we all have an interest in what will happen as the case is set back to lower courts for review.

Part II

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Obama's imperialist agenda: LGBT activism a priority in this administration's foreign policy

Next, even as controversy continues to reverberate all across the country in the wake of the Obama administration’s announcement last week that all public schools and colleges and universities will be required to have transgender bathrooms—that is, bathrooms fully open to persons who declare themselves simply on the matter of their gender identity—it is also abundantly clear that something huge is happening here when it comes to how President Obama understands the role of the United States over against these issues on a global scene. For example, President Obama has been understood by his biography and by his approach to foreign policy to oppose the lingering aspects of empire that is of imperialism. As we go back to especially the 18th in the 19th centuries, we understand that the age of empire represented an enormous amount of European influence; you could add to that American influence around the world. In particular, European powers colonized nations all over the world claiming them as parts of their own empire. This included, most famously, the British Empire that, as was once claimed, never had the sun set upon it because its territory extended virtually everywhere in the globe. Furthermore, you had Belgium that had an empire, you had Spain, any number of other European nations, and of course in one sense, the United States had an imperial authority represented by the fact that it once claimed territory, including the Philippines, and by its culture also had basically an imperial influence.

President Obama was understood to be an opponent of the very idea of empire. This goes back, especially to the 1960s and 1970s, the entire period really after the end of the Second World War when empires were torn apart and when the so-called Third World, now defined as developing nations, claimed that they would have to overthrow the lingering aspects of imperialism if they were to be genuinely self-determining. So in Indonesia, for example, the leader then known as Suharto said that overthrowing all British and Dutch imperial influence, all Western imperial influence in general, will be necessary in order for Indonesia to have its own culture and its own self-determination. President Barack Obama as a boy with his mother spent considerable time in Indonesia, and virtually all biographical references to this period point to the fact that President Obama has a particular concern about the burden of imperialism. And many people have interpreted much of his foreign-policy as an attempt to either apologize for or to remedy the lingering aspects of imperialism in Western foreign-policy.

How do we then explain how the President then basically turns around and on LGBT issues acts as if America is an imperial power ordering the world to follow our imperial edicts when it comes to this sexual and moral revolution? One way to understand that is in terms of thinking through the announcement made concerning public schools and colleges and universities just last week. In one very real way, the Obama Administration was functioning as an imperial power saying to all 50 states, regardless of local moral understandings, regardless of all local sensitivities, every state amongst the 50 states must toe the line and join the moral revolution without condition. But we need to note that the President isn’t stopping at the American border with this kind of imperialistic edict. When it comes to LGBT issues, it has become increasingly clear that President Obama has made this a priority of American foreign-policy.

This is true even as it’s articulated by the current Secretary of State, former Senator John Kerry, and by the immediate former Secretary of State, now the front-runner for the Democratic presidential nomination, Hillary Clinton. Both of these Secretaries of State have made gay rights very much a centerpiece of foreign-policy to the consternation many people around the world where this feels just like an imperial edict being handed down by an imperial power. For example, the people of the Dominican Republic have complained about the fact that the President sent an openly gay ambassador with his husband to that predominantly Catholic nation, where the appointment of this ambassador was clearly an effort to affect moral change within a foreign power, in this case, the nation of the Dominican Republic. Similarly, headlines are now reverberating throughout Asia such as this one that appeared in recent days in the New York Times:

“U.S. Diplomat’s Same-Sex Marriage Causes Stir in China.”

All of this, we need to note is of a piece. It is all consistent with how the Obama administration has declared the fact that it will make LGBT issues a centerpiece of American foreign policy. That means that the United States is using its considerable power—financial power, political power, hard power, and so-called soft power—in order to further the LGBT revolution all over the world. But this raises a basic question, how in the world can President Obama be the enemy of empire in terms of America’s role in the world on other issues, but then turn around and basically use America as the base for imperial influence by his own edict as represented through his foreign policy when it comes to the furtherance of LGBT rights? Perhaps there’s a basic lesson for us here, and that is that all presidents intend to stamp the world in their own image. President Obama is certainly not new when it comes to that particular reality. It probably goes back to the very earliest presidencies in the United States, certainly to the entire modern period when the United States has been so dominant on the world scene. But it is really ironic that here you have a president who, going back to his boyhood, says that he understands the problems of empire, who now appears to be acting as an emperor in this sense when it comes to furthering LGBT issues all over the world, using the United States State Department and the United States military in ways that can only be understood as intentionally aiding and abetting the LGBT cause all over the world and, furthermore, threatening many these developing nations with political and economic repercussions if they do not join the revolution themselves.

So perhaps the citizens of North Carolina should recognize they’re now in a similar position with the citizens of the Dominican Republic, having the Obama Administration to dictate the moral terms for their own local communities and, in the case of North Carolina, and now all 50 states, when it comes to bathrooms. On this issue, it is certainly important that American Christians understand that what’s at stake is not only about the 50 states of the United States of America, but about the role of this nation on this cause, and on these issues all around the world.

Part III

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Nepal bans surrogacy after realizing its citizens were being exploited by the West

Next, when it comes to major moral issues in response around the world, I turn to another headline story in the New York Times, this one by Rachel Abrams. The headline is this:

“Fearing exploitation Nepal bans surrogacy.”

It’s a really insightful article and it’s datelined from Kathmandu in Nepal. As Abrams writes,

“The embryos belonged somewhere, but probably not in this empty fertility clinic in the capital of Nepal.

“For months, they had sat suspended in a tank of liquid nitrogen at the fertility center at the Grande City Clinic and Hospital, which until recently operated a robust surrogacy business that attracted would-be parents from around the world. But the embryos are now stuck in limbo after Nepal abruptly banned surrogacy in September.”

Here the New York Times follows up on a major headline story from the end of last year that did not receive the attention it deserved. All around the world, particularly in the so-called developing world amongst developing nations, these nations are adopting laws that eliminate or ban the practice of surrogacy when it comes to foreigners. We need to recognize that over the last 15 to 20 years, an entire industry of gestational surrogacy had emerged. That is, you have many people around the world who were going to Third World nations in order to hire women to become the mothers of their children by means of IVF technology and their own role as surrogates. They were basically hired to be incubators for Westerners seeking babies.

One of the things that becomes clear in this article is that this too is part of the moral revolution, because as the New York Times articulates, between 40 and 60 percent of the Americans and Europeans—also we should add, Israelis—who were going to Nepal in order to hire surrogates were same-sex couples who would be by definition unable to conceive and bear children on their own. And so we saw the fact that all across the world, especially in much of Southeast Asia and on the Asian subcontinent, you had Europeans, Israelis, and Americans who were going to hire surrogates in ways that were far less expensive or less legally complicated than in the United States.

Here we need to recognize that the United States is what is often defined as the wild, wild West of reproductive technology. But this is also a highly litigious culture, which is to say there is every opportunity to be sued for every reason in this country. And when it comes to gestational surrogacy, to hiring surrogate mothers, the law is not at all clear here in the United States and the process is very expensive. That’s why many women around the world have been tempted to answer ads for or to be recruited by gestational surrogacy firms that were linking together wealthy Western couples, or Western individuals for that matter, and potential surrogate mothers. In Nepal, we are told that some of these women were paid the equivalent of $9,000 in terms of American currency, which could be three years’ worth of salary in terms of the local economy.

But as the New York Times story articulates and understands, this is really a form of sex trafficking. It’s a form of sex trafficking in which the reproductive lives of these women are being rented or purchased by wealthy Westerners. And, once again, we’re looking at the fact that after the age of empire supposedly has ended, you have a form of reproductive imperialism that has been very much present throughout the world. But the headline here tells us that Nepal has now banned surrogacy and it joins many other nations in doing so, shutting down a business that, as we talked about at the end of last year, had involved many wealthy gay couples from Israel, Europe, and the United States going to these nations solely for the purpose of the IVF technology that was cheaper and the surrogacy that was far less legally complicated.

These nations recognized that they were basically being victimized and their own women were being victimized by this culture of surrogacy that was not serving their own people, but rather wealthy Europeans Americans and others. From a Christian biblical worldview perspective, there is so much on the line here. In the first place, before you get to surrogacy or before you get to anything on an international scene, you’re dealing with the IVF technology and the fact that this article draws to light how many embryos have been created in laboratories around the world—that is, embryonic human beings—when these embryos are not only in legal limbo, but they are often actually being destroyed. And we’re looking the fact that this entire industry is based upon success stories that only become possible when you have multiple embryos created in order to achieve one or two healthy babies in terms of the clients. This means a sacrifice of human dignity as human embryos are being created only to be destroyed or to be left in legal limbo. And that is not going to last for very long.

As this article begins in Kathmandu, you’re looking at embryos that are just going to be destroyed, if not altogether abandoned, given the fact that Nepal has now outlawed surrogacy. Then it leads to the whole question of surrogate motherhood. It’s basically the renting of the womb, and that upsets the entire reproductive order as God gave it to us in terms of a biblical worldview. It puts at risk the very relationship between parent and child and raises not only a host of legal questions about the identity of the child and the role of the surrogate, but also about what God had intended when he gave us the reproductive gift and the institution of marriage. Furthermore, it raises the question about what kind of biological, technological, and medical options are and are not open to Christians seeking to be faithful in terms of the Christian worldview.

But then this third issue does arise, and this has to do with the exploitation of people around the world for what is basically a Western phenomenon, especially when it comes to the 40 to 60 percent of all the surrogacies in Nepal that are estimated to have arisen from same-sex couples. You add that together with single persons seeking surrogacy, and it adds up to the fact that there was only a minority of those from Western nations going to Nepal in order to obtain a surrogate motherhood for a heterosexual married couple. That was only a small fraction of the actual business going on there in Nepal. That tells us once again that when you have a sexual revolution, in this case an even larger moral revolution, it is aided and abetted by technology. So when you look at a story datelined from Kathmandu and you wonder what could it have to do with us, you recognize that it has everything to do with us, because once again, it has everything to do with human dignity.

Part IV

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Photographic relativism: What is the agenda behind Apple's recent Sports Illustrated ad?

Finally, in terms of the moral revolution and symbolism in the United States, many people have pointed to the back cover full-page advertisement in the current issue of Sports Illustrated. It is a photograph of a locker room. It was shot, according to the article, on an iPhone 6S. The advertisers are identified as Apple and Verizon. The photograph shows a little girl and a little boy, both certainly elementary age, if not younger, sitting on opposing benches in a locker room simply staring at one another, wearing swimming attire. So what does all of this mean? What are the advertisers trying to say? The timing here is really crucial.

This back cover of Sports Illustrated appeared just days after the Obama administration handed down its edicts on bathrooms, changing areas and, yes, locker rooms in America’s public schools, colleges, and universities. But what is this advertisement trying to say? In much of the postmodern world we live in, messaging is so subtle it’s not at all clear the message that is intended. Certainly when you look at this photograph, it appears to be a rebuke of the state of North Carolina and others who aren’t joining the moral revolution. But there are no words whatsoever other than “Shot on an iPhone 6S.” That’s all it says. One of the hallmarks of our postmodern age is a moral relativism, and now you see a photographic relativism as well. What does this ad mean? Supposedly it’s left to the beholder. But the advertisers are making a point, and you can understand what that point is when you consider the timing in which this advertisement appeared.