Tuesday, June 5, 2018

Part I

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Supreme Court sides with Colorado baker, sends very clear signal that religious convictions of American people cannot be trampled upon

Yesterday was a very big day at the United States Supreme Court, and it was a big day for religious liberty. In a 7-2 decision, a majority of the justices sided with a baker in Colorado, stating that his religious liberty have been violated by the process undertaken by the Civil Rights Commission in the state of Colorado that found him guilty of violating the rights of other Colorado citizens by his refusal to create by his expressive artistry a wedding cake.

It’s a convoluted case as almost every case that reaches the Supreme Court turns out to be. There are a lot of facts. There are a lot of twists and turns to the story. The most important issue is to understand that a 7-2 vote on a nine-member court on an issue such as this sends a very clear signal, and in this case, it’s a very clear signal that desperately needed to be sent. It was the signal sent that the religious convictions of the American people cannot be merely disrespected and trampled upon even as the society let in many cases by the same court has decided to march forward in a sexual and moral revolution.

As it’s so often true in cases concerning LGBTQ issues and the Supreme Court, the majority opinion was written by Justice Anthony Kennedy. In beginning his argument, he stated this, “The case presents difficult questions as to the proper reconciliation of at least two principles. The first is the authority of a State and its governmental entities to protect the rights and dignity of gay persons who are, or wish to be, married but who face discrimination when they seek goods or services. The second,” said Justice Kennedy, “Is the right of all persons to exercise fundamental freedoms under the First Amendment, as applied to the States through the Fourteenth Amendment. The freedoms asserted here,” he said, “Are both the freedom of speech and the free exercise of religion.”

Now, we have often noted and have had caused to note over and over again that inevitable collision that has been created between religious liberty and the new sexual liberty by the legalization of same-sex marriage, and here, we need to just remind ourselves that it’s not only the same court involved in legalizing same-sex marriage, it is the same justice, Justice Anthony Kennedy, who was the deciding vote and who was the author even then in the Obergefell decision legalizing same-sex marriage of the court’s decision on that issue back in 2015.

In the most crucial section of the majority opinion, Justice Kennedy wrote, “Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth.” Now, we’ll pause here for a moment because that very language is deeply rooted in previous language, and you won’t be surprised to know that that previous language was offered by the very same author, Justice Anthony Kennedy.

It was Justice Kennedy who used those very categories of dignity and worth in order to create his argument for the legalization of same-sex marriage back in 2015, and Justice Kennedy continues by saying, “For that reason the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights.” Protecting them, he means protecting gay persons. That’s the language that is used in the decision.

Justice Kennedy went on, “The exercise of their freedom on terms equal to others must be given great weight and respect by the courts.” But then, Kennedy continued, “At the same time, the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.”

Now, that’s not exactly the kind of language we had seen from Justice Kennedy before. It is however the kind of language we were warned about by the descending justices in the 2015 Obergefell decision. Justices including the Chief Justice, John Roberts, Justice Antonin Scalia, now deceased, Justice Samuel Alito, and Justice Clarence Thomas. You had those conservative justices’ warning that the inevitable outcome of the legalization of same-sex marriage would be the violation of religious liberty.

Justice Kennedy in this particular case handed down yesterday is saying that society has to find some way to have it both ways to use upon that only simply seems to insist itself here to have its cake and to eat it too, but as much as this was a very clear decision, again, the math was seven to two amongst the justices, it is not a sweeping decision. You will see the language in the media about this being a narrow decision. That doesn’t mean it was narrow in the math. Seven to two is not narrow. It was narrow in the scope of the judgment because even as Justice Kennedy set out these two principles, both of which, he said the court had to respect, this particular decision doesn’t really offer much guidance going forward as to how the court, either the Supreme Court or the lower courts looking to the Supreme Court are supposed to adjudicate these matters individually.

As Justice Kennedy indicated, there are additional questions, further questions the court has not yet confronted and in this decision, has certainly not yet decided, but what’s clearly most important about the decision handed down yesterday, and it is a big victory for religious liberty, is understand thing that this overwhelming majority of the justices of the US Supreme Court understood that in this case, one man, Jack Phillips, the cake baker, he had had his constitutional rights compromised, and abrogated, and disrespected by the Civil Rights Commission in the state of Colorado and specifically, the majority of the justices found that the specific form of the animus against this cake baker was animus against his Christian beliefs.

Justice Kennedy pointed in particular to what he saw as the smoking gun. It was a meeting of the Colorado Civil Rights Commission held on July the 25th of 2014. This was a hearing concerning Jack Phillips and the charges against him and his Masterpiece Cakeshop business. In that meeting, on July the 25, 2014, one of the Civil Rights Commissioners in Colorado who eventually decided against Jack Phillips offered these words, and I quote them directly just as Justice Kennedy did. “I would also like to reiterate what we said in the hearing or the last meeting. Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust, whether it be … I mean, we, we can list hundreds of situations where freedom of religion has been used to justify discrimination, and to me, it is one of the most despicable pieces of rhetoric that people can use to use their religion to hurt others.” That’s the direct quote from the Colorado Civil Rights Commissioner.

Justice Kennedy then writes these words in his majority opinion handed down yesterday. “To describe a man’s faith as one of the most despicable pieces of rhetoric that people can use is to disparage his religion in at least two distinct ways: by describing it as despicable and also by characterizing it as merely rhetorical, something insubstantial and even insincere.” Justice Kennedy continued, “The commissioner even went so far as to compare Phillips’ invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. This sentiment,” said Justice Kennedy, “Is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s anti-discrimination law, a law that,” said Kennedy, “Protects discrimination on the basis of religion as well as sexual orientation.”

Citing previous presidents on the Supreme Court, Justice Kennedy reminded the court and the nation that the Free Exercise Clause of the First Amendment to the US Constitution “Bars even subtle departures from neutrality on matters of religion. Here,” said Justice Kennedy, “That means the Colorado Civil Rights Commission was obliged under the Free Exercise Clause to proceed in a manner neutral toward and tolerant of Phillips’ religious beliefs.” Later in the same argument, Justice Kennedy said, “It hardly requires restating that government has no role in deciding or even suggesting whether the religious ground for Phillips’ conscience-based objection is legitimate or illegitimate. On these facts, the Court must draw the inference that Phillips’ religious objection was not considered with the neutrality that the Free Exercise Clause requires.”

Now, don’t miss the importance of that paragraph because in it, Justice Kennedy writing for a seven-member majority of the US Supreme Court said that the Supreme Court has no ability, and that means that no other government entity in the United States has the constitutional right to decide whether or not an individual citizen’s conscience-based religious beliefs are legitimate or illegitimate. That is incredibly important, and it may be that that is the most important point and the lasting dimension of the Supreme Court’s decision handed down yesterday.

Justice Neil Gorsuch, the newest member of the Supreme Court, issued a concurring opinion. That’s an opinion that goes beyond the majority opinion. A concurring opinion means that Justice Gorsuch agreed with the majority opinion, but wanted to make his own argument, and in this argument, he was joined also by Justice Samuel Alito. Justice Gorsuch wrote, “Many may agree with the commission and consider Mr. Phillips’ religious beliefs irrational or offensive. Some may believe he misinterprets the teachings of his faith, and to be sure,” said Justice Gorsuch, “The court has held same-sex marriage a matter of constitutional right and various states have enacted laws that preclude discrimination on the basis of sexual orientation but,” wrote Justice Gorsuch, “It is also true that no bureaucratic judgment condemning a sincerely held religious belief as ‘irrational’ or ‘offensive.'” Both of those words, “irrational” and “offensive,” “Will ever survive strict scrutiny under the First Amendment.” Again, a very clear signal sent. A very important signal sent.

Part II

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Understanding what yesterday’s Supreme Court ruling means, and what it doesn’t mean

The response we saw yesterday to the 7-2 decision that the Supreme Court was pretty much what is expected. There were some good reporting. There were some good explanation. There were also some very interesting responses. One of them came from the Wall Street Journal. The article by Jess Bravin suggested in the headline, “Supreme Court Ruling Ducks Conflict Between Religious and Gay Rights.”

Now, that headline is not wrong, but it isn’t entirely right either. The Supreme Court didn’t entirely duck the question, but it did duck much of the question. What the Supreme Court did do yesterday was to set down a marker against any kind of open prejudice against Americans on the basis of their religious beliefs. What the court did yesterday was to state that state agencies, government agencies including commission such as the Colorado Civil Rights Commission cannot trample and cannot disregard or openly disrespect the religious beliefs of American citizens even in questions of this kind of discrimination charge.

Now, what’s interesting also to watch is whether or not these state actors and state agencies merely decide that they’re going to change their language and disguise the animus to disguise the outrage and the opposition to religious beliefs sincerely held by American citizens. The political response was also interesting as The Guardian of London quickly went to Tom Perez, the chairman of the Democratic National Committee.

What’s interesting in the head of the democratic party’s response is that there is no acknowledgement whatsoever of the prime finding of a 7-2 decision by the United States Supreme Court. Perez said, “This case was never just about a wedding cake. It was all about people, no matter who they are, having the right to celebrate their love without facing discrimination.”

We’ve heard all that kind of language before. It’s the kind of language we expect from a politician, but it’s not the kind of language that’s adequate to respond to a decision that was handed down with clear language and clear argument. Perez went on to say, “The democratic party believes that no individual has a license to discriminate. We believe in the dignity of every human being, and we will continue to fight for equality for LGBT people in all areas of our society from housing and healthcare to bathrooms and boardrooms to bakeries and the ballot box.”

Now, remember that when you’re looking at a major political party in the United States, the two major parties, the democrats and the republicans, you are looking at arguments in motion. You’re looking at a history. Both of the parties have a major history. They have shifted on issues. They have developed positions, and they have developed a certain kind of division between them, the deep partisan divide that now separates the two parties. Parties are arguments in motion, and the motion is often what’s more interesting than the argument, and in this case, what’s most interesting is that the movement and the democratic party is away from any acknowledgment that there is any other issue than LGBTQ rights.

Tom Perez, the chairman of the Democratic National Committee, did not even acknowledge the major point of the decision yesterday and the fact that the court by such a large majority had stated that the sincerely held religious beliefs of Americans must be respected. Even as Justice Kennedy pointed to what he described as two different balancing issues, the chairman of the Democratic National Committee clearly acknowledged only one.

As you look to this kind of statement, it doesn’t merely indicate where that particular party is in the history of its argument or even where the argument exists today. That kind of statement is focused on the future, setting down a very clear branding identification of where that party is going to side in the argument going forward, but before the day ended yesterday, Jennifer Finney Boylan, who is a transgender activist and a regular columnist for the New York Times, issued a column and what’s her response was to say, “The only thing that will truly enshrine equal protection under the law for all Americans, including LGBTQ people, is an amendment to the constitution. Call it,” she says, “The Dignity Amendment.”

“The text might read,” here’s her proposed text, “Equality of rights under the law shall not be abridged by the United States or by any state on account of sex, sexual orientation, or gender identity.” She credits the amendment as being the brainchild of Sarah Kate Ellis, the president and chief executive of GLAAD. That is an LGBTQ rights organization, but what we need to know here is that here, you have an activist proposing that the only way out of this is to amend the US constitution, amending the constitution by adding what she calls The Dignity Amendment, but what should have our attention here?

Well, it’s the fact that even if you were to add such an amendment, and of course, that would be a major issue of constitutional consequence, it would not abrogate the First Amendment, which by the way, if you’re counting, means it’s first, so the important issue to note here is that even if through the amendment process, the US constitution were to find itself amended with the additional language suggested here, it wouldn’t really do anything to resolve the issues that were faced by the court in this case and the issues that remain on the table.

Finally, on this decision, looking at the court’s action yesterday, some will be pleased. Some are clearly displeased, and some are displeased wanting more. Some are pleased wanting more. You can understand all of those responses, but this is where Christians need to understand that what happened yesterday is very consequential. The specific language and the formal argument in that 7-2 decision yesterday, it’s really consequential. It was a very big, very important defense of the conscience rights and the religious liberty of Americans. Do we need more? Yes, we need more, but we should remind ourselves that often, in the course of either legislation or adjudication in the courts, it’s small victories that together add up to big victories.

The Supreme Court still has over 25 major decisions to hand down in just the next several days, but make no mistake, yesterday was a big day. Yesterday was a good day.

Part III

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Twenty years later, Bill Clinton remains indignant despite a massive moral change in the broader culture

But next, yesterday was not a good day for the former president of the United States, Bill Clinton. Yesterday morning, he went on the NBC Today show, and if anything indicated that he has learned nothing in the decade since his sex scandal with Monica Lewinsky in the Oval Office.

In the interview yesterday, the former president was being interviewed along with James Patterson. The two men have recently co-authored a book together. It was clear that President Clinton and James Patterson expected to talk about the book. President Clinton did not expect to talk about the sex scandals during his administration, but this was a form of good journalism, and the host for the Today show turned the tables on the former president asking him if he would now approach the accusations differently.

President Clinton said, “Well, I don’t think it would be an issue because people would be using the facts instead of the imagined facts. If the facts were the same today, I wouldn’t. You’re asking. Well, don’t we have a right to change the rules? Yes, but you don’t have a right to change the facts.”

What’s going on there? Well, what’s going on there is that the former president was setting up an argument that he had handled the situation rightly. If you’re shocked, you should be. Shocked then and shocked now. Later in the interview, Clinton said, “I think I did the right thing. I defended the constitution.”

Now, what we are witnessing in this massive moral change and of course, in the larger secular community is coming with the hashtag #MeToo. What we are seeing is a redefinition in a fairly short amount of time of how consequential these kinds of charges made by women against powerful men are considered to be. What’s most important is to recognize that during the middle of the 1990’s, not only were serious charges made against the incumbent president of the United States, Bill Clinton, but they were eventually confirmed with the admissions made by President Clinton of the behavior that had taken place most infamously with an intern in the White House.

It’s hard to remember that back during the 1990’s, there were accusations that Bill Clinton did not even seem to possess an adequate moral compass to understand what he had done and what we now know he had done over and over again with the succession of women going back to the earliest period of his political career. Looking back, it was clear that President Clinton, formerly Governor Clinton and also Attorney General Clinton in Arkansas, had been incredibly reckless, and not only that, but had been involved in serial breaking of his marital covenant with his wife, former Hillary Rodham.

It also became clear that Mrs. Clinton who became known during his Arkansas years as Hillary Rodham, and then Hillary Rodham Clinton later simply known as Hillary Clinton that she had in some ways helped to protect the president from the political outcome that would have come to him in the midst of this controversy.

Today’s Craig Melvin turned to President Clinton and said, “One of the things this #MeToo era has done, it forced a lot of women to speak out. One of those women, Monica Lewinsky, she wrote an op-ed that the Me Too movement changed her view of sexual harassment. Looking back on what happened and through the lens of Me Too now, do you think differently or feel more responsibility?”

The former president said, “No, I felt terrible then, and I came to grips with it,” Melvin asked, “Did you ever apologize to her?” Here’s the interesting language. President Clinton said, “Yes, and nobody believes I got out of that for free. I left the White House $16 million in debt, but you typically have ignored gaping facts in describing this, and I bet you don’t even know them. This was litigated 20 years ago. Two-thirds of the American people sided with me. They were not insensitive to that. I had a sexual harassment policy when I was governor in the ’80s. I had two women chiefs of staff when I was governor. Women were overrepresented in the Attorney General’s office in the ’70s for their percentage in the bar. I have had nothing but women leaders in my office since I left. You’re giving one side and omitting facts.”

The absolutely astounding issue here is that the former president of the United States speaking of documented acts of which he was guilty in the White House as president of the United States not only sought to completely reframe this as if he had somehow been a victim of the circumstances, but he went on to say that when he was governor of Arkansas, he had a sexual harassment policy. How in the world does it make sense to talk about your own guilt and sexual harassment only to turn around and said, “Hey, I deserve credit for the fact I had a policy in place when I was governor of Arkansas back in the 1980’s.” He violated that policy, but hey, he deserves credit he says for having a policy.

That’s the twisted, convoluted, moral world that many of us remember from the 1990s and the play out of the sordid affairs concerning Bill Clinton as president of the United States. I bring it up today on The Briefing simply because of this. We need to remember that this kind of action has consequences, and the consequences continue.

It’s very telling that in June of 2018, when President Clinton thought he was having an interview about a book, the moral issues that were so important and devastating to his presidency a generation before came out in an interview, an interview for which the former president was clearly not prepared.

To his credit, Craig Melvin went on to press the point. He had asked President Clinton if he had ever apologized to Monica Lewinsky, and the next word out of the president’s mouth was, “Yes,” but as Melvin understood that yes actually meant no. He pressed the question, “But you didn’t apologize to her?” Clinton said, “I’ve not talked to her.” Melvin then said, “Mr. President, I’m not trying to present a side. I asked if you’d ever apologized and you said you have.” Clinton said, “I did. I apologized to everybody in the world,” and then Melvin said, “But you didn’t apologize to her?” The former president said, “I have not talked to her.” Melvin then said, “Do you feel that you owe her an apology?” Clinton concluded, “No, I do not. I have not talked to her, but I did say publicly on more than one occasion that I was sorry.”

Those of us who remember the president who said it all depends on what “is” means now saw in just a matter of a few seconds yes turned to no. This kind of headline just amounts to a massive morality tale, a warning to all of us, but it’s just chilling on the one hand to think about the fact that this man has had nearly 20 years to come up with a better argument, and for that matter, nearly 20 years to say, “I’m sorry.”