The Briefing 03-07-17

Part I

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Supreme Court announces it will not hear major transgender bathroom case, sending back to lower court

Sometimes history is made in just one sentence. That was the case yesterday when the United States Supreme Court handed down a one sentence statement saying that it was not going to continue the case that it had agreed to hear concerning the big question of transgender rights, specifically the rights of transgender students in the public schools. The announcement that came yesterday meant that the case that had been going forward on appeal from the Fourth Circuit—that’s the U.S. Appeals Court located in Richmond, Virginia—will now be sent back to that court. The reason why is quite simple. It was the administration of President Barack Obama who had ordered by means of the now-infamous Dear Colleague letter that all schools—that is all public schools all the way from kindergarten to universities—must allow persons to use facilities, including locker rooms, restrooms, and changing areas, corresponding with their current gender identity.

The school board in Gloucester County, Virginia passed a rule stating the students must use those facilities that would correspond with biological sex, the sex that was indicated on the students’ birth certificates. This led one student, a transgender student originally born as biologically female but now claiming identity as a boy, to file suit that led to a federal district court case. Once that decision was handed down it was appealed to the Fourth US circuit Court of Appeals in Richmond, Virginia. Once that decision was handed down, it was appealed to the U.S. Supreme Court, and the Supreme Court months ago had agreed to take the case. But the case as it was framed several months ago had everything to do with the interpretation of Title IX—that’s the 1970s legislation that bans sex discrimination in the schools—that was undertaken by the Obama Administration. Once again we’re back to that infamous Dear Colleague letter in which the Obama Administration enforced nationwide a transgender agenda when it came to these kinds of facilities: bathrooms, locker rooms, and changing facilities.

But the reason why the Supreme Court handed down that one sentence statement yesterday is because the new administration, that of President Donald Trump, had reversed that order. Now at this point we have to be careful. The Trump administration did not hand down an edict that local school boards across the nation could not adopt policies that were considered very favorable to the transgender community, even the kind of interpretations that was common to the Obama Administration. Instead the Trump administration relied on the principle of federalism that the federal government, the national government should not hand down a national edict, rather it should be left to the states and furthermore to the school boards of respective counties and communities.

Now let’s just interject at this point. That was the founding genius of the United States public school system, common schools controlled by the public, and that control being predominantly, if not exclusively, local. We’ve largely lost that ideal in the United States, but we should be thankful that the Trump administration did reverse the Obama administration’s order, and now it is a matter for local school boards or even for the states, but not for the federal government, to decide. But at this point we also have to be careful because the federal government in effect could still decide and that could include the judiciary. Because when the U.S. Supreme Court handed the decision back to the Fourth U.S. Circuit Court of Appeals yesterday, it left that court in the position of deciding whether or not it will press the Title IX constitutional and legal question.

Adam Liptak of the New York Times reported the story this way,

“Prompted by the Trump administration’s reversal of the federal government’s position on transgender rights, the Supreme Court announced on Monday that it would not decide whether a transgender boy in Virginia could use the boys’ bathroom at his high school. The decision not to take his case, which came as the court is awaiting the appointment of a ninth member, means there will be no ruling on the highly charged issue of transgender rights this term. The issue will almost certainly return to the Supreme Court, probably in a year or two. Until then, lawsuits in the lower courts will proceed, the political climate and public opinion may shift, and the court’s composition will almost certainly change.”

Let’s work backward from that list. He said finally that “the court’s composition will almost certainly change.”

That’s because there’s a vacant seat after the death of Justice Antonin Scalia. And even as we are told that just in a matter of weeks we’ll be looking at the confirmation hearings for Judge Neil Gorsuch to take that seat, we’re at a 4-4 split on the Supreme Court. By the time this case and this question could return to the Court, there will be a different composition in terms of the justices, even if that just means the addition of Justice Neil Gorsuch. But looking at this list, we work backwards from the Court’s composition will almost certainly change to public opinion may shift. That’s huge. And it’s very important that Adam Liptak put it so early in this story in terms of the New York Times coverage. What’s he telling us? He’s telling us that the Court might in effect have chickened out, of sorts. It might have been waiting for public opinion to change. Why would we think this? Well because we witnessed it already. We saw the Supreme Court of the United States basically decline to take a major case on the legalization of same-sex marriage until the justices, or at least a majority of the justices, seemed to be quite certain the public opinion would allow them to hand down an edict legalizing same-sex marriage in all 50 states. The Court not only reads public opinion, but it’s also clear that at times the Court waits for public opinion.

Finally working backward on Liptak’s list here, he said that this means there will be no ruling on “the highly charged issue of transgender rights this term.”

Now that’s almost assuredly right, but it doesn’t mean that the Supreme Court has decided never to take the question. It has decided not to take the question right now. The advocates for transgender rights and also many of the groups that are responsible for school boards nationwide indicated their displeasure that the court had decided not to take the case.

But here we need to note that this wasn’t actually necessarily a decision made by the Court in terms of the merits of the question whatsoever. The Supreme Court takes cases based upon a clear issue of standing and a clear constitutional question. Once the Trump administration had reversed the policy, it was no longer the standing administrative ruling of the United States government, and thus the case effectively evaporated. But here’s where we need to note the question surely has not evaporated. When almost inevitably the Supreme Court does take the case, one of the central questions might be the interpretation of a 1975 regulation adopted after the larger legislation Title IX was adopted that allows schools to provide “separate toilet, locker rooms and shower facilities on the basis of sex.”

Now once again, just to state the obvious, back in 1975 Congress had absolutely no question what it meant when it referred to biological sex. And furthermore, we need to admit that even right now across our culture virtually no one has a major question about the definition of biological sex. The new reality that is one of the major driving impulses of the sexual revolution is that gender identity and biological sex are actually two different things. It turns out that might be the key question that the Supreme Court will eventually have to answer. That one sentence statement yesterday from the Supreme Court of United States means that at least this year, we won’t be waiting even as the justices get ready to go on their summer recess for a major decision on transgender rights of public school students.

Part II

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Amicus brief filed by liberal religious groups in transgender case undermines religious liberty

But next, that doesn’t mean that the filings in this case are now merely irrelevant. Even though the case is going to go back to the Fourth U.S. Circuit Court of Appeals, the documents filed by various groups on one side or the other of this controversy in terms of the then-pending Supreme Court case are themselves extremely important.

I hold in my hands what’s known as an amicus curiae brief, that is a friend of the court brief. In Supreme Court cases, groups on either side of the question before the Court can file major legal arguments in terms of these briefs. This particular brief was filed by the

“Presiding Bishop of the Episcopal Church and the President of the House of Deputies of the Episcopal Church, the General Synod of the United Church of Christ, the Jewish Theological Seminary, Rabbinical Assembly of the Reconstructionist Rabbinical Association, the Reconstructionist Rabbinical College, the Religious Institute, Unitarian Universalist Association, the United Synagogue of Conservative Judaism, the Covenant Network of Presbyterians, Friends for Lesbian, Gay, Bisexual, Transgender and Queer Concerns, Methodist Federation for Social Action, the More Light Presbyterians, a group known as Muslims for Progressive Values, Open and Affirming Coalition of the United Church of Christ, Reconciling Works, which is Lutherans for Full Participation,” and finally as the title page says, “more than 1800 individual faith leaders in support of respondent”

It’s as if you took the entire galaxy of liberal theology and mapped it out on one cover sheet. This particular liberal group sided very clearly with the transgender student in this case and puts their own religious groups very much on the side of the transgender revolution. It’s fair to say that most of them were very publicly placed on that side of the revolution already, but the interesting thing is exactly how they made their case in this joint statement, this joint amicus brief. They went on to write,

“Endorsing religion’s role in American life but objecting to its being co-opted for judicial purposes, [those who gather in this particular brief] embrace varying theological perspectives on gender identity but unite in affirming that transgender persons possess inherent dignity – a concept that has explicitly informed this Court’s jurisprudence for decades, and increasingly so with respect to equal protection and allied rights doctrines. This affirmation reflects the deeply rooted belief, common to many faiths, in the essential worth of all individuals and, more particularly, the growing respect accorded within theological traditions to transgender persons.”

They list their own religious groups and then cite positions that had been taken by those groups. But the interesting thing is this these groups are absolutely right in affirming the inherent dignity of all human beings. They make that point in several places in this brief. But, almost to a group, these are the very same religious bodies that deny the human dignity and the personhood of the unborn. But you’ll also note something else. Even as they affirm what they identify as the inherent dignity of every single human being, the interesting and quite illegitimate thing is that they jump from that to a complete endorsement of transgender identity and virtually everything in terms of the LGBT agenda. The implications really clear, and it’s something that should have our attention. These groups are claiming that if you do not endorse the sexual revolution and all that it demands you really don’t respect the human dignity of all persons.

These groups also respond to the arguments made by defenders of religious liberty, especially in terms of more traditional Christian groups, by stating that their arguments—that would be our arguments—“confuse true freedom of religious exercise with an extravagantly expanded freedom that none of us possess to be free from any offense or contradiction to our sensibilities (religious or otherwise) while functioning in the public sphere of a pluralistic society. In any event, existing legal doctrines equip courts to respond if civil rights law enforcement in fact infringes First Amendment rights.”

Now that’s a complicated statement, but it’s very important because in the first place, I don’t believe these groups actually mean it. But the most important aspect of this particular brief is how it once again limits the free exercise of religion to what is often now reductively called freedom of worship. The free exercise of religion as we have known it is simply dismissed here as “an extravagantly expanded freedom.”

On page 7 of their brief they write,

“Religious freedom means that all voices may contribute to our national conversation, that particular religious perspectives on gender identity can neither be privileged nor permitted to control the interpretation of statutes and regulations applicable to all.”

Now once again, ask the basic question. If we are told here that no particular religious perspective can pertain in terms of interpreting these statutes, the obvious question is, then what will? Actually what you have in this brief is one religious argument to counter another religious argument, one theological argument to counter another theological argument. This group is actually claiming that their interpretation, theologically driven, of what they will call religious liberty, should prevail and that which is supported and defended by those on the other side must give way.

At this point we need to recognize the double mindedness of this brief and those behind it, because they’re claiming exactly what we just read on page 7 that “no particular religious perspective should control the interpretation.” But on the other hand, they make explicitly theological arguments trying to make the case that many religious groups are now very much theologically at peace with the transgender revolution. You can have the argument A or B, but you really can’t with a straight face make them both simultaneously.

Proof of what we mean when we talk about the reduction of the free exercise of religion to basically freedom of worship is found in this theme statement of the brief,

“Affirmance Will Not Interfere With The Exercise of Religious Freedoms, Including The Freedom To Teach Religious Principles Concerning Gender Or To Set Parameters For Religious Exercise Consistent With Those Principles”

Notice the point here: the reduction of religious liberty to the freedom to teach religious principles concerning gender. So what we say in our churches, what we will teach in our own families, they’re saying that that at least at this point, is not the matter of their concern. They are saying that their concern is that somehow Christians or others animated by a deep conviction on these issues could try to make those convictions known and to make the matter in the public square, outside of our homes, outside of our hearts, outside of our houses of worship. It’s important that we look at a brief like this in order to understand the arguments that will surely come when the question returns to the Supreme Court, but it’s also interesting just because of some of the actual theological arguments that are made inside this brief. Take notice of this,

“Religious stances affirming transgender persons’ fundamental dignity also have yielded changes in institutional policy and inclusion in religious leadership. For example, the Jewish Theological Seminary, a pre-eminent institution of Jewish higher education founded in the late 19th century, has moved to revise application procedures to address gender self-identification concerns, admit and ordain transgender and gender-non-conforming individuals, designate gender-neutral restrooms, and adapt certain rituals to ensure that “individuals may be called to the Torah without the traditional genderspecific language ‘son of’ or ‘daughter of.’”

So here again we see this theological argument that the Jewish Theological Seminary, representing a very liberal interpretation of Judaism, has now decided that it’s simply out of date and discriminatory, it’s violative of the understanding of human dignity that modern person should have to refer to anyone, even in the historic language of the Torah, as son of or daughter of. That’s the point we’ve now reached.

Part III

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Trump's wire tapping allegations come in the midst of a "civilization-warping crisis of public trust"

Next, another major controversy erupted on Saturday, this time concerning President Trump’s accusations on Twitter that President Obama and his administration had ordered the tapping of his phone in the last weeks of the 2016 U.S. presidential election. This led, of course, to a firestorm of controversy as the President and his allies said if this is true, this would be a scandal as big as the Watergate scandal that brought down President Richard M. Nixon in the 1970s.

Senator Lindsey Graham of South Carolina put it this way,

“If President Trump’s phones were tapped illegally on an order from the White House, that would be a huge scandal of Watergate proportions. But,” as he said, “if they were tapped legally, that will be a scandal of almost equal proportions. In any case we have to know what’s going on here.”

The last 72 hours of intense media scrutiny and controversy have not revealed much, but that’s what’s really at stake here. President Trump has not provided the data or the proof behind these accusations. Just about any fair-minded person would have to recognize that if the allegations are true, this is massive news, and we’re looking at the fact that President Trump directly blamed President Obama for this stating in his tweet,

“This is Nixon/Watergate. Bad (or sick) guy!”

It has become clear that there are at least two huge questions here. One, were the President’s phones tapped during the time he was the presidential candidate? And if so, were the taps legal? Those are two separate questions. If they were tapped, then we have to know, were the taps according to a court order or were they not? In any event, we have to know the truth. What we’re looking at here is a frankly reckless statement made by the President of the United States, and it’s in a situation that is sufficiently volatile already. We count on presidents to make this kind of accusation if such an accusation is credible and must be made, at the same time, that a president is willing to deliver at least some proof behind the allegation. We’re talking here about an absolutely massive charge.

A moment of rare sanity in all of this was brought forward by Nebraska Senator Ben Sasse when he said, speaking of the same day the president made the allegations,

“The President today made some very serious allegations, and the informed citizens that a republic requires deserve more information.”

Senator Sasse went on to say,

“We are in the midst of a civilization-warping crisis of public trust, and the President’s allegations today demand the thorough and dispassionate attention of serious patriots. A quest for the full truth, rather than knee-jerk partisanship, must be our guide if we are going to rebuild civic trust and health.”

Senator Sasse is on to something of incredible importance here. We have to rebuild civic trust. We have to rebuild a healthy civil society, and President Trump bears a particular responsibility for this. This is one of the central challenges of leadership, and it’s not only a principle that pertains to the American presidency. Just about every parent has to understand this as well. Our credibility even before our own children and successive generations is based upon whether or not what we say sticks, whether or not we are known to be credible. Recklessness with the truth or with reality undermines a child’s confidence in a parent. It inevitably erodes parental authority, and the same thing is true of a teacher. The authority and credibility of a teacher in the classroom comes down to the fact that the teacher actually backs up arguments with reality and with facts. We can extend that same understanding to the preacher in the pulpit. The preacher’s responsibility is to make credible arguments from Scripture and to be able to back those arguments up from Scripture. The pulpit ministry that is rightly to be trusted is one that the congregation comes to depend upon as being grounded, unquestionably, in biblical truth.

But when it comes to leadership, there are few positions that can rival in terms of all of human history the power and influence and thus the necessity of credibility when it comes to the President of the United States. It may well be that President Trump’s accusations have a basis in truth and reality, and if so, we need to know, and we need to know quickly. Senator Sasse is absolutely right. This is a huge issue. It’s so monumental that it cannot devolve into partisan politics. Americans need to know the truth about this, and we need to know the truth quickly. If the President and his administration do not yet have a full and credible argument in terms of their own knowledge of what actually did or did not take place, it was far too early for the President of the United States to announce this biggest scandal in 140 characters on Twitter.

In terms of what Senator Sasse called the civilization-warping crisis of public trust, we have to understand that partisan politics is a big part of that equation, but it’s not all that’s at stake here. There have been those in this culture who have been trying to undermine the central truths and the central issues of trust, the central institutions of our society, and even as they have eroded trust in those institutions, trust in those truths, trust in those very important cultural realities, we now find ourselves in a situation in which trust is simultaneously eroded, sometimes almost as if purposefully trampled underfoot. The erosion of public trust has severe consequences. Society can’t really endure for long without that basic level of trust. This puts a big responsibility on President Trump. But it actually puts a big responsibility on all of us.