The Briefing 02-07-17

Part I

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Will President Trump protect the religious liberty of those who refuse to join the LGBT revolution?

Religious liberty, it seems, is in the headlines almost every single day, and there’s good reason for that, not only the issues urgent and current but one of the biggest issues now pending in terms of the Trump administration is whether or not the President of the United States will sign a new set of executive orders recognizing the religious liberty of Americans who cannot in conscience join the LGBT revolution. And furthermore, it’s not only a question of if the President will sign that executive order, but what exactly might be the form that such an order or orders would take. The Wall Street Journal reporting on this at the end of last week reflects on the fact that at least some in the media gained a copy of what they claimed was a draft version of the executive orders, although the White House considerably distanced itself from this draft order in terms of statements made before the end of the week.

The Wall Street Journal reporting on the controversy reminds us that we already have talked about the removal or repeal of the Johnson Amendment. We discussed that on The Briefing yesterday, but the bigger looming issue really is the question about this set of executive orders. It really puts the issue of religious liberty right exactly where it will be inescapable. The question is, is the President of the United States going to sign an executive order that will allow persons to operate by their own Christian and otherwise religious conscience in terms of deciding what they can and cannot do in terms not only of the freedom of worship that takes place within the confines of the church building, but also in terms of their professional lives—especially those who are involved in so-called expressive professions, including photography and cake baking, and other artistic forms of expression.

Ian Lovett, Jacob Gershman, and Louise Radnofsky reporting for the Wall Street Journal tell us,

“The draft order, a copy of which was reviewed by The Wall Street Journal, hasn’t been signed, and it may never reach Mr. Trump’s desk.”

Sarah Sanders, White House spokeswoman, said in an email last Thursday, “There is no action planned on the order at this time.”

Still as the reporters tell us, “advocates on both the right and the left saw the draft order as a statement of intent from a president who courted conservative Christian voters by promising to expand the place of religion in public life.”

The reporters continued,

“It presented a sharp reversal from the rapid expansion under President Barack Obama and by the Supreme Court of legal protections for gay and transgender people, which many religious groups said put them in the difficult of position either violating their faith or the law.”

They quoted Robin Fretwell Wilson, a professor at the University of Illinois College of Law, who said,

“It’s an attempt to say to religious-minded persons that Trump has their back.”

But of course, it’s a great deal more than that because we’re looking here at a basic constitutional issue. Now let’s just remind ourselves, the framers of the U.S. Constitution identified religious liberty not merely as one liberty, but as America’s first liberty. That is to say that every other liberty that is enumerated in the U.S. Constitution is understood to flow from and to be dependent upon the prior question, which is religious liberty. The second thing we need to keep always in mind is this: the framers of the U.S. Constitution and the text of the Constitution itself, they did not intend to create rights. They didn’t believe that they had the power or the authority to create rights. They believed that these rights are granted even as the text says, by the Creator, and they believed that it was the responsibility of the government and the specific design of the U.S. Constitution to recognize those rights, recognizing rights that God the Creator himself had given, rights that every government must also respect and no government must deny.

But the specific controversy about the executive order, whether it’s focused on the draft that was visible at least to some last week, or whether it refers to some future shape of an executive order, it basically comes down to this: will the Trump administration actually put itself on the line to defend Christians who have had their religious liberty rights compromised? And it’s not just on the LGBT issue. It’s also on the abortion issue and larger questions of sexuality. Just keep in mind that the administration of President Barack Obama actually went to court against a group of Catholic nuns known as the Little Sisters of the Poor. The issue then was the contraception mandate that is included in the ObamaCare legislation, that is the Affordable Care Act.

The Obama administration in retrospect actually seemed to go almost overboard almost awkwardly into extremes to do their very best to make clear that religious organizations would have to bend the knee to Caesar when it comes to the moral revolution. But something else to keep in mind here is that last week President Trump did deal with an executive order on LGBT rights, and in that action he actually affirmed and continued an executive order relating to the federal government and its contracting that preserves LGBT rights. So what we’re looking at here is the revelation of a controversy that needs to be taken apart very, very carefully.

The Wall Street Journal article I just cited actually includes something that must not escape our attention. It includes a statement coming from an LGBT activist known as David Stacy. He’s director of government affairs for the Human Rights Campaign. He said,

“If the White House did even a fraction of the things that are in this draft executive order, that would be an unprecedented rollback of LGBT equality and rights.”

He went on to say,

“This would provide a blanket exemption for religious organizations not to have to follow any statute that they say violates their religious beliefs.”

Now that’s an exaggeration, but the thing that must not above all escape our attention is the fact that this spokesman for the Human Rights Campaign actually identified the object of his concern as religious organizations. Now let’s just understand what’s at stake here. That means that he places himself and his organization steadfastly against the position that religious organizations do not have to bend the knee to Caesar.

Now as I’ve written about in my book, We Cannot be Silent, and as we talk about regularly, this is the way moral revolutions work. They may begin by protest demanding influence and equality, but then they move to coercion, and that coercion is what we are feeling right now. That coercion has been experienced by Christian florists, cake bakers, photographers, and others who have been told that if they will not extend their services to same-sex couples then they are violating the Constitution or various human rights ordinances. Now of course the framers of the Constitution of the United States of America did not intend by any stretch of the imagination to force a baker to adopt a pro-LGBT message in making and baking a wedding cake. But there are photographers and cake bakers and others who have found themselves not only criticized in public, but also facing monumental fines that put the very existence of their business or of their organization very much in doubt.

The draft executive order that came to light last week would have removed that threat of the contraception mandate under the Affordable Care Act, and it would’ve gone further to enshrine, at least in terms of the policy of the United States government, the respect of Christians and others who operate on the basis of conscience. But we also need to note that that coverage would’ve been limited to religious liberty claims, and that gets to another point. The coercive nature of the moral revolutionaries now understands that the primary obstacle to their path to full obedience and recognition in the entire society are those who are driven by theological concerns. It basically has come down to that. There is almost no one else in the culture who has not yet surrendered to the moral revolutionaries. Just consider in recent days what we’ve had to say about the Boy Scouts of America actually changing their policy on the transgender issue. There are few left who have not joined the revolution who are not driven by explicitly biblical and theological concerns.

Something else we need to watch in terms of the coverage on these issues is reflected in a front-page story that appeared over the weekend at USA Today. The headline of the article,

“Concerns mount over LGBT rights”

Underneath the head it says this,

“Study shows lack of protections that goes far beyond restrooms”

Susan Miller, reporting for USA Today, tells us,

“Just days after the White House pledged to uphold federal LGBT workplace protections, activists say they fear something more ominous is in the works —  an executive order that could in essence legalize discrimination.”

Now here’s what’s really interesting. The subhead of the article mentions a study,

“Study shows lack of protections that goes far beyond restrooms.”

Now what is this study and where did it come from? Well the study was released by what is known as the Movement Advancement Project, and as it turns out that it is also produced by a pro-LGBT organization. So here USA Today runs a headline story about the fears of LGBT activists concerning this executive order, citing a study that insinuates something scientific and thus objective that turns out to have been produced by the very people who are the activists complaining in the first place.

Something else that we have to keep in mind in all of this is that many in the evangelical movement are considering alternatives, including what are billed as Fair for All or Fairness for All policies. This is the agreement which we saw reached at least temporarily in a state like Utah, where Mormon authorities and LGBT activists came up with an agreement whereby the state of Utah would adopt LGBT rights language and ordinances, but it would respect religious exemptions. Now the problem with this, of course, is that the religious exemptions are extended only to churches and to explicitly religious organizations, not to Christians in the workplace. But the second thing we need to observe there is that even these limited religious exemptions are in peril by the fact that they almost surely will not long stand. And at least many in the LGBT community are already registering that they are opposed to these kinds of exemptions, and we need to expand that then to the federal level where that seems to be exactly what is taking place in the current controversy.

Part II

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A White House divided: Trump family members clash with advisors over LGBT rights and religious liberty

As we conclude on this issue, we need to raise an issue that was first raised by Marxist economists. It was the Marxists who argued decades ago that if it comes to a conflict between economics and class on the one hand and politics and morality on the other hand, class will win. Thus they are arguing that economic class, social status, is even more important in terms of decision-making than political and moral judgment.

Now keep that in mind because both the New York Times and Politico have run major stories indicating that at least some within the family of the President of the United States are opposed to President Trump signing any executive order that would respect religious liberty and would in any way deal with the LGBT issue in a way that would be displeasing to those activists. And we don’t have to wonder who’s being discussed here; it’s because the new stories are abundantly clear in indicating that at the center of this would be Ivanka Trump and her husband Jared Kushner.

Glenn Thrush and Maggie Haberman, reporting for the Times, tell us,

“The two most influential social liberals in President Trump’s inner circle — daughter Ivanka and son-in-law Jared Kushner — helped kill a proposed executive order that would have scrapped Obama-era L.G.B.T. protections, according to people familiar with the issue.”

Similarly, Politico reports that it is Ivanka Trump and Jerry Kushner working hard to kill the proposed executive order that would protect religious liberty. As Politico reports,

“But two sources close to Kushner and Ivanka Trump, who have a record of supporting gay rights, said the couple favored putting out a clear statement from the president, promising to uphold the 2014 Obama executive order and stopping the momentum for the turnaround in its tracks.”

Politico goes on to say,

“On Tuesday night, the White House released a statement saying that ‘President Donald J. Trump is determined to protect the rights of all Americans, including the LGBTQ community. President Trump continues to be respectful and supportive of LGBTQ rights, just as he was throughout the election.’”

Both sides watching the administration agreed that it might come down to how the President of the United States evaluates the arguments made by members of his own family over against members of his administration, in particular Vice President Mike Pence. But this particular angle on the question reminds us that the Marxists were right at least about this: social class is hugely important and when it comes to the social classes in the elites of a city like Manhattan or for that matter just about any other major metropolitan area these days, the issue of LGBTQ rights is simply taken for granted and any concern for religious liberty is considered to be subordinate to those rights and not a matter of first priority protection.

So this is a controversy that’s going to unfold over the next several days and months, and we are not merely spectators. It’s at this point that evangelical Christians should make our voices heard, making clear to the White House that we will be very supportive and even expectant of such a policy handed down by the President of the United States, who will make very clear that he respects first of all America’s first freedom, that is religious liberty.

Part III

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Killing free speech kills civilization: UC Berkeley, birthplace of Free Speech Movement, cancels speech

Next, we’re also these days confronting headlines that announce to us the basic reversal of one of the major movements of the 1960s, that is the Free Speech Movement. And what we’re seeing is the constriction and even the denial of free speech where it was most enshrined and valued during the 1960s and beyond and where, of course, free speech has its most natural place, that is in the academic setting of the modern university. We’ve been watching over the last several years, indeed, at least the last three or four decades, the constriction of free speech in the United States, and we’ve been watching the tables turn. And there is no greater illustration of that than the University of California at Berkeley.

Back during the 1960s and 1970s, Berkeley, as it was known, was the epicenter of what became known as the Free Speech Movement. It was a movement that was born in protest and a movement that made the absolutely crystal-clear argument that civilization itself depends upon the free exchange of ideas, and no idea is so repugnant that it cannot be expressed freely and then, win or lose, that is gain or lose, in terms of its ability to make the argument in a compelling way. That was one of the central arguments of the protesters in 1960s. It continued as so many of those protesters went on to get their graduate degrees and gain tenure in the 1970s and 1980s, and you would’ve thought that if nowhere else on the American college and university campus, free speech would continue to be a first order priority.

But then you’d have to explain what took place in recent days, not just anywhere but on the campus of the University of California at Berkeley. As Thomas Fuller reported in recent days in the New York Times,

“Fires burned in the cradle of free speech. Furious at a lecture organized on campus, demonstrators wearing ninja-like outfits smashed windows, threw rocks at the police and stormed a building. The speech? The university called it off.”

Fuller goes on to say,

“Protest has been synonymous with the University of California, Berkeley, from the earliest days of the free speech movement, when students fought to expand political expression on campus beginning in 1964. Those protests would set off student activism movements that roiled campuses across the country throughout the 1960s. Since then, countless demonstrators have flocked to Sproul Plaza”—that’s on the Berkeley—“each day to have their voices heard on issues from civil rights and apartheid to Israel, tuition costs and more.”

But as goes on to say,

“But now the university is under siege for canceling a speech by the incendiary right-wing writer Milo Yiannopoulos and words like intolerance, long used by the left, are being used by critics to condemn the protests on Wednesday night that ultimately prevented Mr. Yiannopoulos from speaking.”

Now Milo Yiannopoulos, often identified with what’s known as the alt-right in terms of journalism, is by his very intention an incendiary figure. He wouldn’t be insulted by that; he intends to be incendiary. He is a verbal flamethrower. He identifies as an individual of the right and as a very rare openly gay individual of the right. You can count on the fact that he would’ve made incendiary and controversial statements at Berkeley. But as this news article in the New York Times makes clear, that’s like taking coals to Newcastle, as they used to say. In other words, being controversial at Berkeley is the expectation, not the aberration.

Now I mentioned that many of the Free Speech Movement activists of the 1960s eventually got their graduate degrees, then they got hired, then they got tenure. You would think they would continue to support free speech, but as the New York Times reports, more than 100 faculty members at Berkeley signed a statement of their opposition to Mr. Yiannopoulos speaking on campus. They said,

“We support robust debate. But we cannot abide by harassment slander defamation and hate speech.”

Now none of those things are good. That is to say, no one should value and no one should honor defamation harassment slander or hate speech. But we also need to understand what’s at stake here. There are two things very clearly at stake. The first is that one of the easiest ways to dismiss and to shutdown an argument you don’t like is to actually identify it as harassment or slander or defamation or hate speech, whether it is or not. The second thing you need to note is that any government authority that has the right to decide what harassment and slander and defamation and hate speech might be is a government that will trample on your own free speech rights. That used to be the central argument of those at Berkeley, but it turns out that Berkeley has turned on its own arguments. And the irony is rich because it turns out that the place where the free-speech movement began may well be the place where the free speech movement dies.

But what’s important for us to recognize is that orthodox biblical Christianity and its truth claims are often what are now identified in terms of the very words used against Milo Yiannopoulos. You don’t have to have his kind of intentional incendiary to be dismissed on many college campuses as speaking out of hate speech. These days you can be accused of speaking hate speech if you simply hold to a traditional biblical understanding of sexual morality and gender. We also need recognizes a movement that is contagious far beyond the University of California at Berkeley. It has reached most other major elite college campuses, including Yale University, one of the other centers of the free-speech movement.

Writing in response out of concern for this at the Washington Post is José Cabranes, who’s a judge on the U.S. Circuit Court of Appeals for the Second Circuit. What makes him uniquely qualified to speak to this is that he was Yale University’s first General Counsel. He’s also, as well as being a federal appellate court judge, served as a trustee at Colgate University, Yale University, and Columbia University. This is a man with very wide experience. The headline of his article is this,

“If colleges keep killing academic freedom, civilization will die, too”

He cites as his authority none other than the late Chief Justice of the United States, Earl Warren who warned about six decades ago,

“Either “teachers and students must always remain free to inquire, to study and to evaluate,” or “our civilization will stagnate and die.”

As Judge Cabranes says,

“There is no third option.”

The op-ed piece that ran in the Washington Post is just a summary of a far larger article he wrote for the Yale Law and Policy Review, and as he makes clear, he became the General Counsel of Yale University just about a decade after that university adopted what was known as the Woodward report, named for the late and very well-known American historian Van Woodward. It was a report that was released by a committee that was established by one of the most famous presidents of Yale University, the late Kingman Brewster, and it was a report adopted in the mid-1970s that made the preservation and respecting of free-speech a central mission of Yale University.

But as Judge Cabranes says, Yale University has now turned on that responsibility. And as Judge Cabranes makes very clear free-speech is being opposed by and being shut down by people who want free-speech for themselves, but will deny it to others. And as he says the easiest way to do that right now is to suggest that there are certain arguments that simply can’t be tolerated now out of more emotivist than any kind of legal argument.

You could explain much of this by looking back to the 1960s and understandings that some people said you shouldn’t have free-speech because those who are trying to make these arguments are wrong. Now the opponents of free-speech are merely saying you hurt my feelings.

But this is where Christians also have to recognize that all of these issues discussed today come together in terms of the preservation of basic liberties, and this is where we also need to understand that if someone else’s speech can be stifled and shutdown, so can ours, and where we need to remind all others that if our speech can be stifled and shutdown, so can theirs. Christians believe that truth will prevail, but we also believe that we must have the freedom to articulate to preach and to teach, to represent and to debate what we on the basis of our Christian conviction know to be true. But Judge Cabranes is also exactly right. If this battle is lost, then civilization is also lost.