Thursday, February 28, 2019
Thursday, Feb. 28, 2019
This is a rush transcript. This copy may not be in its final form and may be updated.
It's Thursday, February 28, 2019. I'm Albert Mohler, and this is The Briefing, a daily analysis of news and events from a Christian worldview.
Will the Peace Cross still stand? The Supreme Court must clarify the confusion it has created in previous cases and respect the role of religion in public life.
Does the very existence of a large concrete cross honoring veterans of World War I violate the United States Constitution just because it now stands on public land? That was the central question at stake in oral arguments before the Supreme Court of the United States yesterday. The case that centers on the Memorial Cross in Bladensburg, Maryland, is in truth one of the most important religious liberty cases to come before the Supreme Court in a very long time. In one sense, the case might be understood as virtually inevitable. We are talking about a very visible cross in suburban Washington, D.C. It is a towering structure about 40 feet high. In order to understand the issues at stake, I went out to look at the cross myself.
The cross was largely the effort of the mother's of men who had fallen in World War I, from the area there at Bladensburg, Maryland. It was later championed by the American Legion, and at about the midpoint of the century, the land was transferred to the county. The county then took responsibility for maintaining the cross, which is extremely visible, as people come into Bladensburg, Maryland. That's the issue that points to the virtual inevitability of this controversy. We are now living in a time when there are many Americans who claim to be offended, who claim that their constitutional rights have been violated simply if they have to see a religious symbol. And overwhelmingly, the offense comes at Christian symbols. In this case, a Latin cross.
Now, of course, this was first erected as a World War I memorial, a memorial to about 49 men, all of them as the Washington Post indicated, likely to have been Christians. The shape of the Latin cross was due not only to a decision made by those who erected the monument back after World War I, it was also at that time understood as the basic symbol that marked the graves and the memories of the fallen, going back to Europe and to the United States after World War I. It was very evident that at that period, the United States and Europe both had an overwhelmingly Christian identity. The division would've been primarily between Catholics and Protestants for the majority of the population.
The shape of a Latin cross would have been, and it was, uncontroversial in 1925. But it's very controversial now. Indeed, any public expression of Christianity in any form seems to be very controversial in our increasingly secularized age. Nina Totenberg of NPR reporting on the oral arguments tells us, "The US Supreme Court appeared ready to let stand a 40-foot cross on public land in Maryland, but the justices struggled to come up with a test to clarify the separation of church and state in this country.” Now, a similar kind of lead is found in almost every major article written about the oral arguments.
The questions asked by the justices of the various attorneys indicated that at least a majority of the justices appear to believe that the cross in its current existence, even on public land, should not have to come down. At least based upon a clear constitutional argument. But if that was clear, it is yet unclear how the justices are reasoning on this issue, and that points to a very basic question about our constitutional order. How exactly would the Supreme Court of the United States have us to understand the first amendment to the United States Constitution, and the question of religious liberty and the public expression of religion? That's a huge question and it is the responsibility of the Supreme Court of the United States to both answer the question and to answer it consistently with the guarantees of religious liberty found in the US Constitution itself.
Over the last several decades, the Supreme Court has made a massive mess of these questions. Justice Neil Gorsuch, in the course of the oral arguments yesterday, referred to existing Supreme Court precedence as, "A dog's breakfast.” Much of this is traceable back to about the midpoint of the 20th century when the Supreme Court began to strike down what were declared to be establishments of religion, that were unconstitutional. Questions about school prayer, and other forms of the public expression of Christianity. But at the same time, the United States, and its highest court have never been clear on these issues. Even as a handful of secularists complained that their constitutional rights were violated merely by having to see the cross in Bladensburg, Maryland. You also had the Supreme Court handing down confusion after confusion at times even on the same day handing down decisions that appear to be contradictory in principle.
In her lead to the NPR report on the oral arguments yesterday, Nina Totenberg referred to the responsibility of the Supreme Court, "To clarify, the separation of church and state in this country.” But the very phrase, the separation of church and state, does not appear in the United States Constitution at all. The language about a wall of separation between church and state is traceable to one letter by President Thomas Jefferson, not to the constitution, and not to any coherent pattern of decisions by the United States Supreme Court. Both houses of Congress open every single session with prayer. Our bills have upon them printed the words, "In God We Trust." Even at the Supreme Court of the United States, where every session begins with the declaration, "May God save this honorable court", the building itself features a massive freeze of Moses holding the 10 commandments.
The actual text of the first amendment of the constitution has two different clauses. One guarantees the free exercise of religion, and the other forbids the national government from establishing a state church, establishing any religion. Many of the arguments now coming from secularists take the form of assertions that acts are now unconstitutional, that were actually clearly not seen as unconstitutional at all by those who framed the United States Constitution. There is no indication whatsoever that back in 1925, when the cross was erected in Bladensburg, Maryland, that there was any opposition whatsoever. There is no record of opposition when the local government took over the ownership of the land, and the maintenance of the monument. But we're not only living in an era that is increasingly secularized, we are also living in an age of incredibly heightened sensitivities.
People now claim to be offended merely by seeing religious symbolism, and more often than not, the complaint is against some kind of Christian symbol. And make no mistake, the cross is an essentially Christian symbol. Adam Liptak, reporting on the oral arguments for the New York Times, summarized the issue this way, "The Supreme Court seemed ready on Wednesday to allow a 40-foot cross honoring soldiers who died in World War I to remain in place on public land in Maryland. But the unusually vigorous, and at times heated argument over the issue revealed deep divisions among the justices on the more general question of what role religion may play in public life. That's a very important statement of summary.
It's a very important acknowledgment by Adam Liptak of the New York Times, that the larger issue really presented by this case is the role that religion may play in public life. He continued to tell us a majority of the justices appeared inclined to rule that the particular cross at issue in the case, which is part of a memorial to 49 fallen soldiers in Prince Georges County, did not run afoul of the first amendment's ban on government establishment of religion by sending a message of favoritism to Christianity.”
At least two of the justices, Justices Alaina Elena Kagan and Stephen Breyer, seemed to base their argument on the age of the monument. It wasn't controversial back in 1925, the United States was an overwhelmingly Christian nation by identity back in 1925, so this cross that was erected in 1925 might be allowed to continue to exist, even on public property. But as Justice Briar said, "No more. A line is drawn in the sand. We are not that same nation now." In general terms, the Supreme Court has agreed that government may not show a preference for any specific religion. But David Savage, reporting on this issue for the Los Angeles Times, points to a religious division on the court itself: "The Justices have disagreed on how to apply this no-preference rule. With conservative Catholic justices, often pitted against liberal Jewish justices.”
Just consider that for a moment. We're not even here actually talking about the constitution. For some reason we are talking about the religious identity of justices of the United States Supreme Court. What does that tell us? It tells us that intelligent Christians should understand that we do not see any justice of the United States Supreme Court as some kind of of disembodied legal automaton, that is worldview neutral, and somehow is able to operate without reference to his or her own deepest worldview commitments. The very fact that the Los Angeles Times, points to a pattern of distinction on these questions between conservative Catholic justices, and the liberal Jewish justices, that's an amazing assessment. It's important to recognize that the LA Times pointed it out.
Charles Haynes, writing and analysis for the Washington Post, notes, "Up through the 1950s, when the local government took over maintaining the peace cross, American culture was dominated by Christian. Generally, Protestant symbols and expression including in public schools." He continues later in the article, "When Protestants, across their own deep differences, agreed to no establishment," that means back in the framing of the constitution and in its later interpretation, "They did not envision giving up cultural dominance. For many in the minority, Christian, by which they meant Protestant, was synonymous with civilized."
Concluding his article writes, "However the court decides the case, the United States will never again be a country where the government can use the Christian cross as the universal symbol for memorializing our war dead. Or for any other purpose. Our diversity of religion and belief is so great that any attempt to impose one symbol on everyone, would be met with outrage and opposition in almost every American town or city.” Another interesting point of change in the United States over the last several decades.
In the face of hostility, Christians must uphold that the cross is, in fact, a Christian symbol
In its editorial published today concerning the oral arguments, the editorial board of the Washington Post wrote this, "The Latin cross symbolizes Christianity. If Americans today got together to design a new memorial on public space at public expense to their fallen soldiers, they would almost certainly not choose this patently sectarian form. The days are long gone", said the editors, "When it could be plausibly assumed that all or nearly all of this country's soldiers are Christian. And so, whatever else might be said about the granite and cement Bladensburg Peace Cross, which towers 40 feet above a busy intersection in Prince Georges County, it is no at model for the future.”
But what we need to note is that in those words, the editors aren't reflecting some kind of simple historical assessment, they appear to be joining in the general celebration of the fact that Christianity is now been displaced. They did acknowledge that a majority of the justices in the oral arguments yesterday, seem to be unwilling to require striking down the cross, but then the editors wrote, "Admittedly, their thinking was not crystal clear beyond general unease at purging any and all religious symbols from the public space of a country whose present may be increasingly secular, but whose past was not.” Again, note carefully what's being argued there. America, we are told, is now secular. But in the past, it was religious. It is also interesting to note that in their editorial statement, the Washington Post editors basically called upon the Supreme Court not to clarify this issue too much, but rather acknowledging the massive current precedence suggested that case by case, the Supreme Court, and through the court the nation should just continue to muddle through.
The editorial board of the Wall Street Journal argued exactly the opposite, in an editorial entitled, "A Supreme Court Crossroads." The editors called upon the court to clarify the confusion the court has created, "The Supreme Court will consider whether a 93-year-old cross-shaped war memorial on public land violates the constitutional prohibition on government establishment of religion. The specific case is an easy call, said the editors, but the justices also have an opportunity to clear up their messy establishment clause jurisprudence.” Now, why would the Supreme Court's precedence on this be so confusing? Well, in order to understand that, we have to go back to the year 1971. The Supreme Court case Lemon vs. Kurtzman. In that case, the Supreme Court's majority handed down what has become known as the Lemon Test. It has three different aspects.
First, the argument that is if constitutional, a measure, a law, or a monument must have an essentially secular purpose. Secondly, its principle effect must be neither too advanced nor too inhibit religion. And third, it must not foster excessive interference between government and religion. But just consider that for a moment. That's almost like saying it has to be beautiful, or it has to be neat, or it has to be cool. The Supreme Court's own test is so confusing and subjective, that not only does the court at different times on different days, and different justices, at different times, come up with a completely inconsistent interpretation of the same constitution, and the same supposed test, but as I have said, this court has even handed down contradictory decisions on the very same day. There are so many huge issues at stake here. For example, if this cross is found to be unconstitutional because it is unquestionably in the shape of a Christian cross, and it stands on public land, then by extension, that would also mean that the famous cross in Arlington National Cemetery would be equally unconstitutional.
And you can go monument by monument, town by town, all across the United States, in what would amount to a cleansing of all Christian symbolism from the public square. And that's exactly what some of the secularists bringing this cause are demanding. That's what they want, that's what they've been pressing for, for some time. But behind all of this is a general hostility that is directed towards Christianity specifically. We see complaint after complaint about Christian prayers, or Christian involvement, or Christian symbolism, or a Christian monument. We are looking at the demands on the part of many secularists, for an ideological and secular cleansing of the entire public culture, not to mention the public lands, of the United States of America. But Christians also have to be wary of other arguments that are being offered here.
Some have argued that this cross, the Peace Cross in Maryland, is not unconstitutional, because even as it is in the shape of a cross, the cross in this context is not an inherently Christian symbol. But here is where Christians have to say if the cross isn't a Christian symbol, than nothing is. Justices Breyer and Kagan and Ginsburg have all in their own way, and again, and those are three of the Jewish justices on the court, they have pointed to the fact that the cross is a Christian symbol, and Christians must not argue back that it is not. The reality is that the cross is only a symbol for the memorializing of the dead, because of its association with Jesus Christ, crucified, buried, and raised from the dead.
The kind of secular onslaught we are looking at here is indeed an effort to try to remove Christianity from the public square, but Christians cannot resist and argue against that kind of assertion by turning around and then arguing that the cross must be emptied of its content, and reduced to merely a secular symbol. Let's be clear, there is no victory for religious liberty if the cross is reduced to a secular symbol. If it is a secular symbol, then there is no religious liberty issue at stake. But for Christians, our ultimate concern can't be religious liberty, it has to be the message and the meaning of the cross. We dare not do anything, and we dare not make any argument that robs the cross of Jesus Christ, of its power.
The meltdown of identity politics: Even an all-LGBTQ city council cannot satisfy the ever-growing expectation of intersectionality
Next, even as I am now in California, I want to turn to the intersection of so many modern issues including identity theory, and intersectionality. Identity politics as it is rightly called. Scott Wilson, reporting for the Washington Post, a story with a headline, "In Palm Springs, the nation's first all LGBTQ city counsel tests the modern meaning of diversity." Now, that's the headline, but the story is a lot more interesting than the headline would suggest. Wilson writes, "This glamorous desert getaway achieved a measure of fame a little more than a year ago, when voters elected the first city counsel consisting entirely of members of the LGBTQ community.”
That's the lead paragraph, and you would think that what follows is a celebration of this kind of identity politics. The entire city counsel made up of members of the LGBTQ community. But no, the story takes an interesting turn, "A bisexual woman and a transgender woman joined three gay men on the counsel. The gay and lesbian community, a majority of the electorate in the city of 45,000 people cheered the milestone as an affirmation of the community's model tolerance, but then says Wilson, the happy moment did not last long. The counsel elected in November, 2017, also happened to be all white. And some people did not think that was cool at all. So, says Wilson, what was viewed by many as a broad step towards greater diversity instead turned Palm Springs into a forum for a debate about what diversity means, and who exactly is best suited to represent whom in a state shaped for decades by identity politics.”
Now, as we have argued over and over again, identity is not something that is irrelevant for human beings, but the Christian worldview makes very clear our basic identity must first of all be grounded in creation, with every single one of us members of the same family, equally made in the image of God, but it is also for Christians as we think of Christians, grounded primarily in our identity in redemption. Our identity in Christ. Other forms of identity, not meaningless, but not ultimate, are simply not as important as those primary identities, and focusing on identity politics turns out to be a repudiation of the gospel. But it also turns out to be an absolute ideological and political meltdown. That's what we're seeing in Palm Springs, what was celebrated as an entire city counsel made up of those who represent the LGBTQ community beings then to turn into a sad tale, according to the story in the Washington Post, when it's discovered that there is no racial diversity, and then the entire city, which had prided itself on so much diversity.
Again, we're told that a majority of the voting citizens in the city are members of the LGBTQ community. Well, then we're told that it simply isn't ethnically or racially diverse enough, and then the argument found in the article becomes very clear, even that would not be an adequate definition of diversity. Benjamin Bashein, a University of California at Riverside political science professor wrote, "What is happening in Palm Springs is the kind of challenge more cities and more states are going to face as the country becomes more diverse. The real question, he said, is whether these representatives from one traditionally marginalized group, can adequately represent those from another, in this case, Latinos. But representation, he said, is not just about what constituents want. If it were, we'd see the same chromatic people running things over and over again. Well, what we see here is sexual identity politics, meeting ethnic and racial identity politics, meeting other forms of ideologically based identity politics, and it is simply going to melt down even further.
Intersectionality implies that the more of these minority identities you can pile up, the more underrepresented you are, and thus the more you should have your voice heard. But there's no end to this. You're taking about Palm Springs, and by the way, it's also interesting to note, that the article seems to celebrate the fact that a majority of the voting citizens there in Palm Springs are members of the LGBTQ community. Well then, they can hardly be called a minority, at least within that community. But of course, you're not looking at one community according to their theory, you're looking at L, you're looking at G, you're looking at B, you're looking at T, you're looking at Q, the letters are going to continue, and you're also looking at all kinds of other identity factors that are supposed to be added on and factored in, weighed in the balance, and represented.
By the time the article unfolds, paragraph by paragraph, and claim of identity politics after claim, you have the assertion that the city counsel isn't diverse enough when it comes to age. Also, when you're looking at LGBT, you are not looking at what must be demanded in the name of identity politics, which is a representation of men and of women, of males and of females. But wait a minute, that's binary, and furthermore, of you're going to add in the T, who knows what a male or a female is, and you're also going to have to simply allow just about everything to be claimed along an ideological spectrum, but if you're looking at an infinite number of points along an ideological spectrum, you're not going to be able to reduce that to any form of representation, by a counsel of just a handful of people. The final word in the article went to one citizen who said, "If we get to a broader spectrum of diversity on the counsel, I think frankly everyone will be happier.”
Well, at least in one sense we can say good luck with that.
Judgement after death: The Supreme Court overturns decision of judge who was already dead when ruling was published
But finally we return again to the Supreme Court of the United States, where earlier in the week, as David G. Savage of the Los Angeles Times reports, the court struck down a US 9th circuit court of appeals decision on equal pay, because Judge Stephen Reinhardt, from Los Angeles, died 11 days before the ruling was announced. In an unsigned five-page opinion written for the court, the justices said, "Federal judges are appointed for life. Not for eternity.” Savage is right in pointing to the fact that Stephen Reinhardt was a very famous, or infamous legal jurist. He was the liberal leader of the 9th circuit, a very liberal court, and as is stated in the article, he voiced a certain pride in being reversed often by the more conservative Supreme Court.
But when the Supreme Court overturned this last decision, it wasn't because they ruled that Judge Reinhardt was wrong, or that his interpretation of the constitution was faulty. Instead, the justices of the United States Supreme Court, overturned the decision because Judge Reinhardt was dead. The justices ruled that when other judges on the 9th circuit used Judge Reinhardt's vote as the crucial swing vote in this decision, by using the vote of a dead judge, they had effectively acted contrary to the US Constitution. Regardless of all the details in the argument of five pages, that one single line is worth repeating again, "Federal judges are appointed for life, not for eternity.”