The Briefing 06-29-16

Part I

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Why are the most important moral questions of our time being decided by the Supreme Court?

 

Reverberations continue from Monday’s abortion decision handed down by the United States Supreme Court, the biggest decision on the contentious issue in a generation. The Court decided very clearly in favor of the pro-abortion position, but even as there are many arguments to be made concerning Monday’s decision, one of the most important was made by the editorial board of the Wall Street Journal. Writing an editorial entitled,

“The Supreme Court’s Cultural Winners.”

The editors of the Wall Street Journal wrote this,

“An important, persistent question of our times is how to account for the wide political and social polarization between liberals and conservatives. Monday’s 5-3 Supreme Court decision striking down a Texas abortion law reveals what’s beneath these divisions.”

Now that’s a very interestingly lead because it points to one of the most important issues of our consideration regularly here on The Briefing. How do we explain how Americans can be so divided over such basic moral issues, even basic issues of reality? The editors here point to the Supreme Court as itself symptomatic of the problem, and beyond that, a large part of the problem. They go back to the Texas decision and they cite one of the dissenting opinions by Justice Clarence Thomas. They quote his words to this effect,

“Today’s decision will prompt some to claim victory, just as it will stiffen opponents’ will to object.” But, he continued, “the entire Nation has lost something essential.”

As the editors commented, it was Justice Thomas who pointed out that the “majority’s reasoning is an acknowledgement that ‘we have passed the point where ‘law,’ properly speaking, has any further application.”

What the editors of the Journal are pointing out is that the Supreme Court, just as Justice Thomas accused, is no longer actually ruling according to the law, but rather to its own moral intuitions. This is not precisely a modern invention—that is to say, it’s not something that has come about just in the last several years—it is instead a trajectory the Court has set itself upon ever since the 1960s and in a very big way. It is a plain fact that the text of the United States Constitution does not grant a woman a right to an abortion. As a matter of fact, the Constitution doesn’t mention abortion at all. But abortion is just at the top of a long list of contemporary issues upon which the United States Constitution is silent but the Supreme Court decidedly is not.

The Supreme Court has been about the business of inventing rights for the past generation. It invented the right to abortion, and it has now invented the right to same-sex marriage. But as Justice Thomas points out, Monday’s decision is along the line of that trajectory, perhaps yet a final step in which the Court isn’t even attempting to ground its argument in law, but rather in terms of its intentions with public policy. One of the points made in the Wall Street Journal editorial is that a large number of Americans are complicit in this looking to the courts, the federal courts specifically and the Supreme Court in particular, as where these issues ought to be hammered out. That is an abandonment of our constitutional order and of the founders’ intention about both the Constitution and the Supreme Court of the United States.

The editors of the Journal wrote,

“At least one half of the country’s polarized electorate now thinks that liberal legal jurisprudence simply means judges will do whatever they must to get a desired result. About that, Justice Thomas is explicit: ‘The Court should abandon the pretense that anything other than policy preferences underlies its balancing of constitutional rights and interests in any given case.’”

Now with that declaration we have a sitting justice of the United States Supreme Court who basically says that the very court on which he sits has abandoned any claim to constitutional legitimacy, it is instead simply making up the law as it goes. The justices are actually operating as self-designated policy experts deciding which policy is right for the country. One of the points made by the editors of the Journal is that in so doing, the majority of the Supreme Court—that is at least five justices in most cases—are actually inflicting their moral and policy judgments upon the entire nation. The specific reason for raising this is that a number of states have adopted these restrictions on abortion, Texas is one of them, other states politically would not come close to adopting these kinds of restrictions on abortion. To take just one example here, consider the juxtaposition of the state of Texas and the state of Massachusetts. It’s impossible to imagine Massachusetts adopting legislation that would restrict abortion whatsoever. Texas is a very different story. That reflects the fact that there is a moral diversity in the United States and that moral diversity is reflected in the fact that there is a very liberal majority in Massachussetts, a very conservative majority in Texas. But the Supreme Court, in arrogating this power to itself, inflicts its own moral judgment, not just on Massachusetts, but also on Texas.

That’s why the editors of the Wall Street Journal have blamed the Court itself for being a major engine of the political polarization in this country. Remember that the title of yesterday’s editorial was this:

“The Supreme Court’s Cultural Winners.”

This is how the editors concluded their argument:

“So please, hold the crocodile tears over our ‘polarized politics.’ What has polarized the country is not specific rights claims. Those will always emerge in a vibrant democracy. The bitter division is the result, in no small part, of a Supreme Court that picks the winners.”

Part II

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Independent report shows SCOTUS decisions are trending left. Are we really surprised?

Next, another very interesting analysis of the Supreme Court, not just in terms of yesterday’s announced decisions, but also the entire 2015-2016 term showed up on the front page of the New York Times in an art form that is in a graphic. It was a graphic demonstrating the court’s ideological movement. Inside yesterday’s edition of the Times, there is an analysis of the fact that generally, not only in this last completed term, but in also the previous term, 2014–2015, the Court has leaned decidedly to the left. That’s something that has been noted by others, but it is particularly important as the 2015–16 term came to an end. According to the Times,

“The court issued liberal decisions in 56 percent of cases so far this term, according to a widely accepted standard developed by political scientists that considers signed decisions in argued cases. The share is only slightly lower than in the 2014-15 term, which had the highest share of liberal decisions since the court led by Chief Justice Earl Warren in the 1950s and 1960s.”

Now when you’re looking at the percent, that is 56 percent, that might not sound like exactly a landslide, but it is when put in the context of what those decisions actually represented in the last two Supreme Court terms. Now remember, we’re looking at the fact that the Supreme Court has an open seat after the death of Justice Antonin Scalia earlier this year. President Barack Obama has nominated a judge to that seat; that judge of course is Judge Merrick Garland of the United States Court of Appeals for the District of Columbia. But as it now is very clear, it is not likely that seat is going to be confirmed in terms of the current Senate session. But one of the things noted by the New York Times is that Judge Merrick Garland will probably be squarely among the liberal bloc of the Court, that according to an analysis of his appeals court record. With the warnings given to us in yesterday’s edition of the Wall Street Journal, that editorial, and with this analysis coming from the New York Times, and with also the prospective analysis of what the future of the Court is likely to be, it is now clear that this court that has been steering the nation to the left on so many issues, especially social issues for the last half-century, is likely to continue that trajectory into the next decade and more.

Part III

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Can Christians still be pharmacists? Yesterday's SCOTUS decision a major blow to religious liberty.

Next, even as the editors of the Wall Street Journal rightly accused the Supreme Court of picking winners, it’s also equally clear that the Court picks losers, and big losers yesterday. In an announcement that also came from the Court were pharmacists in Washington state, the Supreme Court announced yesterday that it would not take a case on appeal that had been filed by pharmacists in Washington state who claimed that their religious liberty had been infringed because they were required to stock and to dispense the so-called emergency contraceptive, actually believed often to function as an abortifacient—that is, a pharmaceutical that actually brings about the early abortion of a human being.

Robert Barnes of the Washington Post put it this way,

“The Supreme Court will not review Washington state’s requirement that pharmacies dispense emergency contraceptives to women, prompting a complaint from conservative justices that it was an “ominous sign” for religious liberty.”

As a matter of fact, Justice Samuel Alito and the Chief Justice John Roberts and Justice Clarence Thomas joined in a very clear statement of their disappointment and outrage that there had not been a sufficient number of justices willing to take the case. The Washington state case has to do with the Stormans family that has operated a pharmacy. In 2007, Washington’s Pharmacy Regulation Board handed down a regulation saying that all pharmacies had to stock and to dispense the emergency contraception. Rod Dreher notes that,

“Pharmacies generally have the right to send customers to nearby pharmacies to acquire a drug they don’t stock — and that was the case with the Stormans’ pharmacy. There were other nearby pharmacies that were willing and able to stock the abortifacient drug. Besides, pharmacists retain the right of referral for any other reason — except religious ones.”

Rod Dreher’s article came with the very clear headline,

“Christians can no longer be pharmacists.”

He intends to gain our attention by that headline, and he should. We’re looking at the fact that there is going to be an inevitable collision between Christians in many professions, in many jobs, and the demands that are going to be made upon them by government and by employers. It is going to lead to a crisis of conscience; in this case, it is pharmacists on the frontline, it is indeed one Christian family in Washington State that had their case to be considered by the Supreme Court, at least for the granting of that consideration yesterday. But there were not even four justices on the current United States Supreme Court who considered this issue of religious liberty important for the Supreme Court to take. That is why Justice Alito, along with the Chief Justice and Justice Thomas, responded so clearly in outrage. Justice Alito wrote,

“This case is an ominous sign, at issue are Washington state regulations that are likely to make a pharmacist unemployable if he or she objects on religious grounds to dispensing certain prescription medications. There are strong reasons to doubt whether the regulations were adopted or that he actually served any legitimate purpose. And there is much evidence,” he wrote, “that the impetus for the adoption of the regulation was hostility to pharmacists whose religious beliefs regarding abortion and contraception are out of step with prevailing opinion in the state.”

In one of the most ominous and important sentences written by any Supreme Court justice in recent years, in yesterday’s statement Justice Alito wrote, and I quote,

“If this is a sign of how religious liberty claims will be treated in the years ahead, those who value religious freedom have cause for great concern.”

That, I remind you, came yesterday from a sitting justice of the United States Supreme Court. We are well-warned. In his response to yesterday’s development, Rod Dreher wrote,

“What has happened today to the Stormans is only the beginning. They fought the good fight, all the way to the Supreme Court — but they lost.”

He then wrote,

“You need to get over the idea that if we only fight hard enough and pray hard enough, that we will certainly win. Don’t misunderstand: we have to fight with everything we have. But we have to recognize that as the darkness grows and thickens, we are going to be losing these cases.”

That appears to be also the announcement from Justice Alito.

Part IV

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From covenant to contract: No-fault divorce is wreaking havoc on another generation

Next, looking at the moral and sexual revolutions in America and understanding how these developments came to pass, inevitably, we must honestly deal with the question of divorce. World Magazine reporter Mary Jackson did this in a recent edition of the magazine, pointing out that divorce now permeates American culture, and as it does so,

“It’s ripple effects are felt in normally joyous occasions like weddings, graduations, children’s births, and holidays. Some children of divorce enter marriage with more resolve, but many others are cynical of marriage and prefer cohabitation, leading to more broken relationships.”

When we look at the moral revolution, it’s very clear that the issue of divorce was front and center. As I document and explain in my book We Cannot Be Silent, the issue of divorce was a very important moral challenge to those who wanted to bring about the sexual revolution. Without the easy availability of divorce, which meant the easy dissolution of marriage, the sexual revolutionaries would never have been able to have their way. Furthermore, when you look at the redefinition of marriage, it’s hard to imagine anything to be more basic than redefining marriage, as we saw just recently, from being the relationship of a man and a woman to being the union of a man and a man or woman and a woman. Christians operating from the biblical worldview understand that same-sex marriage isn’t actually biblically defined marriage at all. But we’re also looking at the fact that the redefinition of marriage in terms of its endurance was even primary to that of redefining marriage in terms of the question of gender.

When we look to the issue of divorce and the divorce revolution in America, we have to understand that redefining marriage from being a lifelong institution—that is, a lifelong covenant and commitment—to being instead a temporary contract so long as both members intend to be bound by the contract, was a massive moral revolution that changed American law that changed the landscape of American culture, that changed the entire pattern of American sexual morality, but has also changed much more. And the real change has come in terms of damage in individual lives. The institution of marriage was subverted even as it was redefined, but the documentation in terms of this article by Mary Jackson in World Magazine points to the fact that three generations into the divorce revolution, there are certain patterns that are now impossible to deny.

After the legalization of no-fault divorce in the United States as it was called, that is rooted in the late 1960s and especially in the early 1970s in most states, there was a cultural euphoria that this has been a sign of moral progress. Cultural revolutionaries were aided and abetted by common American citizens, including at least many Christians who did not speak up on the issue of marriage when the question was divorce. Furthermore, even as it was early celebrated, there were at least some who are beginning, even from the positions of secular influence, to question just what had happened in terms of this divorce revolution. One of them was a social scientist by the name of Judith Wallerstein, who after investigating the impact of divorce over 25 years, asked the question, “But what about the children?” Wallerstein had followed the children of divorce as they matured into adolescence and adulthood, and she also noted that there was a consistent pattern, not of all, but of many if not most, in terms of having difficulty with what was described as romantic attachments, especially when it came to the question of marriage. As Jackson reports,

“Wallerstein died in 2012, but a body of research now supports her findings and reveals in more detail the long-term effects for adult children of divorce: less education, lower income, poorer mental and physical health, more suicide, weakened parent-child relationships (particularly with fathers), more cohabitation, more problematic marriages, and more likelihood of divorce.”

Indeed it turns out that one of the major predictors of the divorce of children is whether or not their parents had experienced a divorce. In one of the clearest indications of a pattern, it is now documented that over 6 in 10 of the adult children of divorce think that cohabitation before marriage is a good idea.

One of our responsibilities as Christians and as Christian churches is to respond to this with both the compassion of the gospel and the honesty of the Scripture. But it’s also very important that we point to evidence such as this, especially as we are now three generations into the divorce revolution, and understand that we were all to some extent complicit in allowing this to happen.

If Christians had been more vocal in supporting marriage when the divorce revolution was taking place, perhaps we would have a bit more credibility and influence in speaking about marriage when the same-sex marriage revolution took place. If anything, we must have a deeper understanding of the responsibility borne by this generation of Christians not to repeat in every conceivable way the errors of the generations before.

Part V

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Islamic terrorist attack in Istanbul another attempt at upending civilization as we know it

Finally, as night fell yesterday another horrifying report crossed all of our headline screens, and that concerning a terrorist attack, this time in Istanbul, Turkey. According to reports coming in last night, at least 28 were dead; the death toll was likely to rise with many others wounded in a terrorist attack by suicide bombers at the Ataturk airport, that is Europe’s third busiest airport there in Istanbul. What we need to recognize as we see this headline crossing is that every time these stories come, and they seem to come in such a horrifying progression, whether the dateline is Orlando or Brussels or Paris or Istanbul, the story is the same. What we need to understand is that at the most basic level, this is an attempt to subvert the very idea of civilization. Civilization, we need to remind ourselves as Christians, is an achievement, it is an achievement of a people who have sustained a certain amount of trust and security, who trust each other enough to go out of their homes and to take their families into the marketplace and into the arenas of cultural influence, who go out to the shopping mall and go out to sporting events and are involved in the life of the society at large.

We need to note that that takes trust, it takes a basic level of trust and security and when those are taken away, civilization itself becomes impossible. That is what the Islamic State and other terrorist groups are about; that is their goal. And even as Christians rightly look to a headline like this with an urgent sense of the need to pray for those who are now grieving, we also understand what it takes to harden our cultural resolve to maintain what it takes for civilization to exist; and we have to understand that what’s at stake in these terrorist attacks is nothing less than the end of civilization as we know it. Those precise words might not be there, but that’s the real message of these newly horrifying headlines.