The Briefing 06-27-17

Part I

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SCOTUS story #1: Big win for religious liberty as Supreme Court rules 7-2 in favor of Trinity Lutheran

Every last week of June, every year, Americans get treated to what’s essentially a great civics lesson, a reminder of the enduring importance of the third branch of our constitutional system, the judiciary, in particular the Supreme Court of the United States. Every July the Supreme Court takes its traditional summer recess and in preparation for that in the waning days of June, huge decisions are announced as the Court clears its docket. Furthermore, these are not only the days in which we receive the Court’s final decisions in the issues of this term, we also get a signal of what kinds of cases and issues the Court will take up in its next term. And yesterday was a huge day at the United States Supreme Court, and of crucial importance to Christians yesterday was a very big day in terms of our nation’s history on the issue of religious liberty.

On The Briefing in the past several months, we’ve discussed the case known as Trinity Lutheran. It comes from a Missouri church that was turned down by the state of Missouri for state funds from a general state program that refurbished playgrounds using recycled equipment from tires, and the surfacing was important for the safety of children. But Trinity Lutheran and its preschool were turned down by the state, the state of Missouri at that time claiming its constitutional limitations under what is known as a Blaine Amendment. But yesterday with a 7-2 majority, the United States Supreme Court sent a decisive signal. In its decision it made clear that the state of Missouri does not have the right to refuse the funds even to a Christian or religious school for the general kind of purpose that was reflected in terms of this playground resurfacing for the safety of children.

Adam Liptak for the New York Times put it this way in his immediate report,

“The Supreme Court ruled on Monday that states must sometimes provide aid to religious groups even when their state constitutions call for a strict separation of church and state.”

He continued,

“The decision concerned a state program to make playgrounds safer that excluded those affiliated with churches, and it had implications for all kinds of government aid to religious institutions.”

Indeed, it does. Those who brought this suit did so not only on behalf of Trinity Lutheran, but out of concern that these Blaine Amendments, as they are known in a majority of state constitutions, actually represent an unconstitutional discrimination against religious organizations and churches. There’s a history there, as you might imagine. In the aftermath of the United States Civil War, several states put together these amendments known as Blaine Amendments after a then very famous American legislator, and they were very clearly anti-Catholic in their motivation. It was an attempt to make certain that no tax money from the federal government first of all, and then from the respective states, would go to any school that would have anything to do with the Roman Catholic Church. It had to do with a wave of anti-immigration sentiment and a tremendous anti-Catholic sentiment in the United States.

Notably, the Blaine amendment failed at the federal level. It was never enacted into law even though it had the support of then President Ulysses S. Grant. But at the state level, the story was quite otherwise. Anti-Catholic sentiment ran so strong in most of the states that the amendments were very quickly undertaken and adopted. Looking back now, we can see what was really happening. Anti-Catholic sentiment overrode even the concerns about what would become a major obstacle to religious liberty in the United States. And one of the lessons here is that when religious liberty is denied to any group, in this case Roman Catholic immigrants in particular, it eventually limits and compromises the religious liberty of all religious groups.

In its decision yesterday in the Trinity Lutheran case, the Supreme Court’s majority sent a very clear rebuke to the state of Missouri, but it did not strike down entirely all of the Blaine Amendments, and furthermore there was a controversy over one particular footnote in the majority opinion. We’ll get to that in just a moment. But first of all we need to note the numbers. We’re talking about a 7-2 decision. Now when you look at the Supreme Court in so many of its most controversial decisions especially over the last decade, many of them have been very close. The majority has been five out of nine. We’ve had a series of 5-4 decisions. So when you’re looking at a case like this, which was very controversial, and the decision isn’t 5-4 or 6-3, it’s 7-2, that tells you something about the overwhelming argument that the Court faced in this particular case. Seven out of the nine justices, and that means that at least some clearly identified in the more secular, liberal wing of the Court, joined in this majority decision.

The importance of the case is made very clear in the report at NBC News by Pete Williams. He said, and I quote,

“The U.S. Supreme Court reduced the wall of separation between church and state Monday in one of the most important rulings on religious rights in decades.”

We need to look a little more closely at that lede statement. Pete Williams gets it exactly right when he says that the significance of the decision yesterday is that it is one of the “most important rulings on religious rights in decades.”

No question that’s right. But that language is preceded by his warning that the Supreme Court “reduced the wall of separation between church and state.”

We need to remind ourselves that that phrase, a “wall of separation between church and state,” does not appear in the United States Constitution. Many people, including perhaps this reporter, believe that it does. Instead, the U.S. Constitution’s First Amendment has two clauses concerning religious liberty. The first is that Congress “shall make no law respecting an establishment of religion.” It’s known as the establishment clause. And the second is that Congress may make no law “prohibiting the free exercise thereof.” That’s the free exercise clause.

You’ll notice there is no language about separation or a wall of separation. Where did that language come from? It actually came from a letter that was written by the third President of the United States, Thomas Jefferson. But that’s Jefferson’s interpretation of the Constitution; that is not the language of the Constitution.

One of the most interesting aspects of Monday’s ruling is that the Supreme Court majority rebuked the state of Missouri—we should put a footnote in here to say that the current administration of Missouri had reversed the decision already, but the rebuke was at the previous posture taken by the state of Missouri consistent with its Blaine Amendment—the majority of the justices rebuked the state for skating too close to the boundary in terms of trying to protect that wall of separation—that was Jefferson’s language—at the expense of religious liberty and also, they made very clear, at the expense of the safety of Missouri’s young children.

Chief Justice John Roberts writing for the majority said,

“The State in this case expressly requires Trinity Lutheran a renounce its religious character in order to participate in an otherwise generally available public benefit program, for which it is fully qualified. Our cases make clear,” said the Chief Justice, “that such a condition imposes a penalty on the free exercise of religion that must be subjected to the ‘most rigorous’ scrutiny.”

So we’re not reading between the lines saying that the majority of the justices rebuked the state of Missouri for violating the free exercise of religion in an overzealous application of the establishment clause. That is actually the verbiage that was used by the majority in the opinion written by the Chief Justice that was handed down yesterday.

Reading the opinions in this case handed down by the court, I found one of the most interesting sentences to be in a mostly concurring opinion from the newest Justice, Neil Gorsuch. He said, and I quote,

“I don’t see why it should matter whether we describe that benefit, say, as closed to Lutherans,” and then in parenthesis, “(status) or closed to people who do Lutheran things,” and then in parenthesis, “(use).” He said, “it is free exercise either way.”

Why would that be important? It’s important for this reason: the newest Justice on the Supreme Court explicitly says that it doesn’t matter that this school would be merely called Lutheran and turned down on that basis or whether it’s substantially Lutheran in terms of what happens. I love the language he used when he said “whether they do Lutheran things.” The important thing is that Justice Gorsuch said either way, it’s free exercise question.

I said earlier that there was a controversial footnote in the majority opinion. It’s found on page 14. Footnote 3 reads like this,

“This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.”

Now if you consider that footnote, you understand what Justice Gorsuch was talking about in his concurring opinion that says he agrees but he does not go so far as to agree with footnote 3. Why? Well because he says it is a confusing and unnecessary limitation upon the proper point that was made by the Court in the first place in this decision. That’s where it’s important to understand that Justice Gorsuch said it really doesn’t matter that this is merely a Lutheran school, called Lutheran by type, or if it’s a school that does Lutheran things. You could expand that to any other church or denomination.

In terms of the civics lesson of this week, we need to remind ourselves as you look at these decisions that if we’re going to understand the importance of a decision in the view of the Court, we need to look not only at the majority opinion and the opinions that may be offered concurring with that decision, we need to look at those who are outraged on the Court. We need to look at the dissenting opinions. Now that’s true even when we might agree with the dissenters rather than with the decision, as was the case with the Obergefell decision in 2015. There one of the most important of the dissenting opinions was by then Justice Antonin Scalia. We came to understand through Scalia’s dissent exactly why he believed that the Court was ruling wrongly in legalizing same-sex marriage, but perhaps even more importantly, how important Scalia saw the decision in terms of its meaning for the nation.

Similarly looking at the Trinity Lutheran case handed down yesterday, the dissenting opinion came from Justice Sotomayor and she was joined by Justice Ginsburg. Those were the two in the 7-2 decision. And reading that opinion, a very clear statement from Justice Sotomayor joined by Justice Ginsburg, it’s clear that she sees this as a near fatal destruction of that “wall of separation between church and state.” That’s simply an important reminder to us that there are at least some justices, but let’s be thankful only two in this case, who were so committed to this strict separationism that they would willingly accept a compromise of the free exercise of religion, in this case by one Lutheran Church and its school in the state of Missouri.

We should be very, very thankful that in its decision handed down yesterday a clear majority of U.S. Supreme Court refused to allow that compromise of the free exercise of religion by this one relatively small Lutheran Church in Missouri. It matters not only for that church, it matters for us all. This is indeed one the most important religious liberty cases to come before the Supreme Court and to be decided in many decades.

Part II

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SCOTUS story #2: Unanimous Supreme Court decision upholds most of President Trump's travel ban

Secondly, we shift to another announcement that came from the U.S. Supreme Court yesterday. And this has to do with the fact that the Supreme Court unanimously lifted the stay on most of the executive order from President Trump concerning immigration and refugee policy. Specifically, the Court agreed to take up the case and will hear the case in the Fall. But in the meantime, most importantly it lifted the stay, that stay put in place by lower courts. And the lifting of the stay was the big victory for the Trump Administration yesterday.

Let me repeat one of the most crucial words in the lead for this story. That is the word “unanimous.” The Supreme Court, all nine justices, did something that above the issue of immigration and refugee policy was a very major statement concerning our Constitution and our constitutional system of government. What these justices said unanimously is that there are powers granted to the President of the United States as our nation’s Chief Executive in the Constitution, and those powers should be respected and not abrogated by the federal judiciary. There was no statement coming from the justices, certainly not unanimously, having to do with the actual questions of immigration and refugee policy. Rather the unanimous nature of this decision has to do with the fact that the justices together respected the role of the President of the United States and clearly understood that civics lesson that was thus demonstrated for us yesterday. The Supreme Court understands that it has a role, and that role is not the same role as the President of the United States.

The ground is set for further litigation on these questions, no doubt. That is to be expected these days in a very highly litigious society and highly controversial issues like immigration and refugee policy.

There was one caveat that was included in the Supreme Court’s decision yesterday, that was a statement that it would not apply to persons who had a genuine or bona fide relationship to a person in the United States or to the United States government. Just one illustration: if an individual had been cooperating with the United States military from one of these six nations, they would not be covered by this travel ban. The six nations clearly identified are Libya, Iran, Somalia, Sudan, Syria, and Yemen—all of them, we know, with majority Muslim populations.

One of the most interesting aspects of the decision handed down yesterday by the Court was that even as there had not been oral arguments because the case was basically the removal of a hold from lower courts, the opinion said that the Court made an implicit conclusion that if this were to be a full case heard by the Supreme Court, the administration would prevail.

Justices Clarence Thomas, Samuel Alito Jr., and Neil M. Gorsuch, clearly conservative justices on the Court, objected to the compromise concerning that illustration. They said that it would lead to nearly endless litigation by persons who are arguing that they had a credible relationship with a person or entity in the United States. But politically there can be no question that President Trump was triumphant in terms of this unanimous decision. And constitutionally what’s really important to understand is that there was a genuine respect here for the separation of powers. That’s very, very important.

Many people on both the left and the right sometimes complain that our constitutional order is in immediate danger of being overthrown. Right now you hear these hyperbolic complaints almost overwhelmingly from the left. But here you will note that the Supreme Court of the United States, just giving one example, said very clearly our constitutional order is very much intact, so much so that the Supreme Court said that the justices would respect the role of the Chief Executive no matter which party that President might represent, and even though on an issue of policy justices themselves might disagree in terms of the merits of the case. The issue here is our constitutional order, and any day our constitutional order wins should be marked down as a very important day for this nation.

Part III

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SCOTUS story #3: SCOTUS reverses AR Supreme Court, disestablishing biology-based birth registration

But next, and we’re going to be on the Supreme Court once again, we remind ourselves that even when our constitutional order remains very much intact, that doesn’t mean that the Supreme Court and a majority of justices of the Supreme Court will not rule in a way that we believe violates the Constitution, in other words, is a wrongful reading of the Constitution. A classic example of that was two years ago in the Obergefell decision in which a narrow majority on the Court legalized same-sex marriage throughout the land. Consistent with that decision, however, one of the key principles of the Court is known as stare decisis, that is the Court’s reliance upon precedent and its respect for its own precedent. Thus a precedent that’s only two years old was upheld by a majority of justices of the Supreme Court, a decision that we believe was wrongly, even horribly wrongly, decided by the Court, was respected by six justices of the Court when they ruled that a couple, a same-sex couple, could not be denied a birth certificate just like any other birth certificate in a case coming from the state of Arkansas.

Adam Liptak once again reporting for the New York Times summarized it this way,

“The Supreme Court on Monday reaffirmed its 2015 decision recognizing a constitutional right to same-sex marriage, ruling that states may not treat married same-sex couples differently from others in issuing birth certificates.”

That’s not an overwhelming surprise, to be honest. But one of the most important aspects of this was the dissenting opinion that came once again from Justice Neil Gorsuch, the newest justice on the Supreme Court. In a really interesting section, Justice Gorsuch made clear the fact that he believed that the state of Arkansas had every right to continue a biologically-based definition of parenting. That’s really crucial in understanding not only this case, but many other cases that will surely come before the Supreme Court. Justice Gorsuch defended the state of Arkansas as having the right to identify its birth certificates according to a biological basis.

Now we need to remember here that that has been the assumption, a biological basis of parenting, going all the way back as long as birth certificates have existed. And furthermore even when it comes to adoption, it doesn’t change the birth certificate. The birth certificate is supposed to be a legal document indicating the biological origins of the child. But everything of course now is thrown up in the air in terms of this moral and sexual revolution, and now birth certificates, we are told with a case coming from the state of Arkansas, can no longer be tied to biology as the basis for the identification of parents.

As we discussed when Justice Gorsuch was first nominated to the Court and then confirmed, he is not only a strict constructionist—that in terms of his reading of the text of the Constitution in a very conservative way—he also holds to a moral understanding based in natural law. And if the natural law means anything, it means that the natural lesson from what we understand in parenting is that there must be a biological basis in terms of understanding the origins of the child. The Supreme Court of the state of Arkansas, while recognizing the Supreme Court’s decision legalizing same-sex marriage, said that “it does not violate equal protection to acknowledge basic biological truths.”

Now a majority of the justices overruled that state Supreme Court. But it is really interesting to note the clarity with which Justice Gorsuch objected to that decision.

Part IV

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SCOTUS story #4: Supreme Court to hear momentous gay wedding cake case on religious liberty next term

But finally even as all three of those cases we’ve discussed on The Briefing, all of them very important but not equally important, were examples of the Court clearing its docket as it goes into its last week before its summer recess, the Court also took a very important action yesterday that doesn’t look to its cases heard in the past, but rather to a case it will here in the future. And this one, too, when it comes to the religious liberty of Americans, is nothing short of momentous. Richard Wolf, reporting for USA Today, summarized it this way,

“The Supreme Court agreed Monday to reopen the national debate over same-sex marriage. The court will hear a challenge from a Colorado baker who lost lower court battles over his refusal to create a wedding cake for a gay couple. Like a New Mexico photographer three years ago, the baker cited his religious beliefs.”

He went on to say the justices who upheld same-sex marriage in the 2015 Obergefell decision “apparently decided that laws banning discrimination based on sexual orientation do not mean that merchants’ obligations to same-sex couples are baked in the cake.”

Well this was an issue that was inevitable coming before the Court. The Court set that up with its 2015 Obergefell decision on same-sex marriage. A good number of Christians, most famously those who were involved in the wedding business—photographers, cake bakers and florists—have found themselves confronting civil or even criminal actions by state agencies or by others because on the basis of their Christian convictions they could not join in expressing and celebrating same-sex ceremonies. That’s what’s really at issue here. It is expression. These were Christians who were told that they, given their professional responsibilities and businesses, must express what was obviously in conflict with their own convictions.

Now we need to note very carefully even in the immediate aftermath yesterday of the Court saying that it would take this decision, the actions undertaken by these Christian believers has been grossly misrepresented. For example, it has become commonplace just in even the last several hours to hear people say the Supreme Court has taken up this case in order to decide whether or not Christians can discriminate against gay persons and their businesses. Let’s be clear: the cake bakers, the photographers, and the florists in these cases do not refuse to sell products to homosexual persons, to anyone identifying as LGBTQ or otherwise. What they had refused to do is to participate in a wedding using their own artistic abilities. They were fundamentally being required according to lower court decisions to participate in the expressive celebration of a same-sex wedding in violation of their Christian conscience.

Now the bare fact that the Supreme Court has indicated it will take the case gives us no indication of how the Court might rule, but it is important nonetheless to understand that the stage has been set for yet another term of the United States Supreme Court, its very next term, in which the issue of religious liberty will be once again on the frontline. Christians must understand that when we are undergoing this kind of revolution in morals and in sexuality and when there is the inevitable conflict with religious liberty, these issues are going to be litigated, they’re going to be controverted, and eventually they’re going to show up at courts, such as eventually the United States Supreme Court.

Yesterday was a day that did make history in terms of that court and its decisions, and included within their actions was a clear defense of religious liberty, a big gain, not an unqualified gain, but unquestionably an historic affirmation of religious liberty. As for the next term we’ve been told the issue will be back. As to what action the Court will take, only time will tell. But we already know this: the Supreme Court of the United States brought its current term to a conclusion not with a whimper, but with a bang.