The Briefing

Documentation and Additional Reading

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Opinions of the Supreme Court

American Legion v. American Humanist Assn.

Wall Street Journal

The Turnabout on Religious Freedom, by Barton Swaim

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Monday, June 24, 2019

Monday, June 24, 2019

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Transcript

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The Peace Cross Still Stands: An Analysis of the Supreme Court’s Big Decision for Religious Liberty

Was it a big decision or not? Yes, it was. Last Thursday, the Supreme Court of the United States handed down a big decision on religious liberty. In a 7-2 decision, the Supreme Court decided that a memorial cross 40 feet high now on public land in Bladensburg, Maryland, could remain, that its presence in the shape of a cross honoring the World War I dead of that community is not unconstitutional. It does not violate the Constitution. As the New York Times reporter, Adam Liptak tells us, "The Supreme Court ruled that a 40-foot cross honoring soldiers who died in World War I could remain on state property in suburban Maryland. The cross, the court said, did not violate the First Amendment's ban on government establishment of religion."

The case is complex. It was a 7-2 decision, but there were no less than six opinions handed down amongst the seven member majority. There was one dissenting opinion joined by two of the justices. In the practice of the United States Supreme Court, when the Chief Justice of the United States is in the majority, he has the privilege of assigning the writing of the majority opinion. In this case, Chief Justice John G. Roberts Jr. assigned Justice Samuel Alito to write the majority opinion in the case American Legion vs. American Humanist Association. In the majority opinion, Justice Alito said, "The religion clauses of the Constitution aimed to foster a society in which people of all beliefs can live together harmoniously and the presence of the Bladensburg Cross on the land where it has stood for so many years is fully consistent with that aim."

Earlier he had written, "Although the cross has long been a preeminent Christian symbol, it's use in the Bladensburg memorial has a special significance. After the First World War, the picture of row after row of plain white crosses marking the overseas graves of soldiers who had lost their lives in that horrible conflict was emblazoned on the minds of Americans at home, and the adoption of the cross as the Bladensburg memorial must be viewed in that historical context."

In his decision, Justice Alito set down four different arguments in favor of the constitutionality of the cross. He said, first of all, that when you're looking at a monument that has been there for so long, it's historically untenable that we can now go back and know all of the intentions behind the choice of that particular symbolism. He said, "It would be inappropriate for courts to compel their removal or termination based on supposition."

He also argued, secondly, that over time the purposes that are associated with an established monument symbol or practice often multiply. That's to argue that generation by generation, there are different meanings are applied to a monument and to the symbolism on the monument.

His third argument was very similar, and he said then that when you're looking at monuments that take on different meanings, just consider, for example, Paris and the cathedral of Notre Dame. Even though France is a very secular society and its government is explicitly secular, both the French government and the French people look to the cathedral of Notre Dame as a symbol of France. Is it a Christian symbol? Well, the cathedral itself is in the shape of a cross, but it's more than that. That's one of the arguments made by Justice Alito in the case of the Latin Cross, 40 feet high, that is the symbolism chosen for the war memorial there in Bladensburg, Maryland.

But finally and most interestingly, Justice Alito argued that it would be wrong for government to force the taking down of these monuments after so much time. His words were perceptive: "A government that roams the land tearing down monuments with religious symbols and scrubbing away any reference to the divine will strike many as aggressively hostile to religion."

But Justice Ruth Bader Ginsburg was not accepting this argument at all. Going back to the cross, she wrote, "The Latin cross is the foremost symbol of the Christian faith embodying," and here she citing another document submitted to the court, "embodying the central theological claim of Christianity that the Son of God died on the cross, that he rose from the dead, and that his death and resurrection offer the possibility of eternal life."

Now, some of the major press coverage after the handing down of this decision last week said that the court's majority had ruled that the cross could stand because it is now an essentially secular symbol. But that's not exactly true. That is not what Justice Alito indicated in that majority opinion. He did not deny that the cross has this inherent Christian symbolism, and Christians in particular must insist that it is a Christian symbol. But when applied in this case to a war memorial in the context of the fact that already there in Europe, the American dead were buried with row after row of those gleaming white crosses, Justice Alito said that the meaning of the cross is not singular and in this context is not unconstitutional.

But Justice Ginsburg expressed her argument with these words: "Decades ago, this court recognized that the establishment clause of the First Amendment to the Constitution demands governmental neutrality among religious faiths and between religion and non-religion. Today,” she wrote, "the court erodes that neutrality commitment diminishing precedent designed to preserve individual liberty in civic harmony, in favor of a presumption of constitutionality for longstanding monuments, symbols, and practices."

At this point, Christians should ponder the fact that we should look askance at any argument that a practice of the framers of the Constitution is unconstitutional if they indeed wrote the language of the Constitution and argued about that language and eventually were active in ratifying the Constitution. You have to use an argument that says that the framers took actions that were actually unconstitutional subsequent to their adoption of the Constitution.

But this takes us back to a major shift in our culture over the last several decades, and this comes back to the effort that has been undertaken, especially since the mid-point of the 20th century, to try to force upon the American republic a strict separation of church and state. Let's just remember the fact that that language is not in the Constitution at all. The constitutional language that pertains here is the First Amendment to the U.S. Constitution, the very first amendment in the Bill of Rights, and that amendment states simply, "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof."

The amendment goes on to guarantee freedom of speech, of the press, and the right of people peaceably to assemble and to petition the government for a redress of grievances. But when it comes to religion, there are only a few words. Traditionally, they've been described in two different clauses: the establishment clause and the free exercise clause. When it comes to the establishment clause, it refers to these words: "Congress shall make no law respecting an establishment of religion." When it comes to the free exercise clause, we look at these words: "or prohibiting the free exercise thereof." There is no language here about separating church and state. That instead is traced back to a single letter written by the third president of the United States, Thomas Jefferson. But that kind of logic nonetheless is now deeply driven throughout American jurisprudence, and it's not an accident. There were deliberate efforts undertaken in the last half of the 20th century to try to secularize the American society as much as possible.

The claim was that the government was unconstitutionally entangled with religion, whether through the public schools or some other mechanism. So the Supreme Court of the United States in the 1950s and 60s and 70s and even thereafter handed down a series of decisions that had a secularizing effect, ruling as unconstitutional such practices as organized student prayer in the public schools, certain kinds of funding for Christian schools, on and on.

But most importantly, in 1971 the Supreme Court handed down a decision in the case known as Lemon v. Kurtzman, and that had to do with the court’s ruling that a Rhode Island law that allowed some tax money to go to Catholic schools was unconstitutional. The importance of the case, however, is far beyond the particulars and its effect goes far beyond Rhode Island. Instead in the decision then, and it was an 8-1 decision in 1971, the court handed down what has become known as the Lemon Test, the test of the constitutionality of any kind of government involvement when it comes to religion.

In the court's words back in 1971, "Three tests may be gleaned from our cases. First, the statute must have a secular legislative purpose. Second, its principle or primary effect must be one that neither advances nor inhibits religion. Finally, the statute must not foster an excessive government entanglement with religion." But the problem with that test and all three parts of that test is that it is and will always be basically subjective.

Furthermore, it seems to go far beyond the First Amendment to the U.S. Constitution. We just read the actual words. But the Lemon test has become a major wedge in American society, and the court came back to it again and again, and not only the Supreme Court but lower courts. Furthermore, it became the kind of test that was used in order to argue, even school district by school district, against certain practices with the argument preemptively that they would be unconstitutional.

In the decision handed down on Thursday, the Lemon Test appears to be effectively ended by the nation's highest court. Noah Feldman, a major constitutional expert who teaches at the Harvard law school, said that the Lemon Test had been "declared close to dead for over 30 years." Speaking of the decision had to down Thursday, Feldman said that, "The agonizingly slow death throes ended here."

In a concurring opinion, Justice Neil Gorsuch declared simply, "Lemon was a misadventure." In other words, he stated openly, "It was mistaken at the very start." Justice Brett Kavanaugh said that the Lemon test "no longer applies." He also went on to say that it was not good law.

From a Christian worldview perspective, I think the most important effect of this case is not going to be merely the fact that this 40 foot cross can remain on public property in Maryland, but that the Lemon Test is effectively concluded, declared openly by at least one justice to have been a misadventure.

Reflecting the nature of the decision on Thursday as something of a turning point for the Supreme Court of the United States, David Skeel, a professor of law at the University of Pennsylvania, stated that in the future he believes the most important challenges faced by the court are likely to be over the free exercise clause rather than the establishment clause. That's extremely insightful, and it reflects a point made by professor Skeel that for most Christian believers in the United States, it might well be that the biggest challenges we face to the free exercise of religion are coming not from government but from some other kind of authority—the coercive power of culture exercised through, for example, mandates handed down by employers or others. The most graphic example of this threat to Christians is the constriction of free speech and that includes the free exercise of religion on America's elite college campuses, becoming aggressively to many arguments including Christian arguments.

Another interesting twist in this case was the fact that Justice Ginsburg, in her dissent, said that the presence of this Christian cross, as she described it rightfully as a Christian symbol, on government land was effectively a harm to secular citizens or to non-Christian citizens who were offended by the fact that the cross is now standing on what is public property. But Justices Clarence Thomas and Neil Gorsuch were absolutely dismissive of that claim. They denied that the plaintiffs in this case, the American Humanist Association, effectively even had standing to bring this kind of case to the United States Supreme Court. They argued that there was no harm.

It's also interesting that Justice Ginsburg argued that one of the ways to harm might be alleviated would be "by relocating the monument to private land or by transferring ownership of the land and monument to a private property." But in many cases, it's hard to see how that would be workable and for that matter how it is that that would effectively eliminate the harm. The harm in this case is, to put the matter bluntly and charitably, an invented harm. The American Humanist Association is ardently trying to eliminate all religious symbolism from American public life, but in this case, as Justices Thomas and Gorsuch indicated, they could really demonstrate no harm.

It's also interesting to note that Justice Stephen Breyer was in the majority in this case, although he offered his own concurring opinion in which he basically defended the Lemon Test. But this takes us back to January the 27th of 2005 when there were two cases decided by the high court when it came to monuments with religious symbolism, in this case, the Ten Commandments. Both of them were on government land, one in the state of Kentucky, one in the state of Texas, and the Supreme Court ruled, oddly enough the same day, that the Ten Commandments in Kentucky must go, but the Ten Commandments in Texas could stand. Because of contextual issues, that subjective interpretation, both of those decisions were 5-4, and Justice Steven Briar was the swing vote, the deciding vote in both of those cases. In one case, the monument could stand. In the other case, the monument had to go, and in both cases it comes down to a complex and subjective determination by the high court. So it's very good news that it appears that for a majority of the justices, the Lemon Test is no more.

Part

The Naked Public Square? What’s Behind the Effort to Remove Religious Symbols and Language

But finally, in this case, we do have to ask that question. What would it mean if the case had been decided otherwise? What would it mean if that 40 foot cross in Maryland had to come down because it is unconstitutional? Well, the answer is it wouldn't stop with that one monument in Maryland. That same logic would have to be extended to Arlington National Cemetery, and not only there, but on and on and on. So it is very important to recognize that there have been arguments that this case was wrongly decided by the Supreme Court in this 7-2 vote.

Mark Joseph Stern writing for Slate offered an article with the headline, "The Supreme Court's Giant Cross Compromise Will Erode the Separation of Church and State." What this tells us is that those who have been arguing for a strict separationism predictably do not like this decision. In his words, "The majority opinion portends more radical decisions to come while doing real damage to the establishment clause today, diminishing the state's obligation to respect all faiths by endorsing none."

Yesterday, the editorial board of the Los Angeles Times criticized the decision. The editors wrote, "If the United States aims to be a tolerant, pluralistic country that treats all its citizens with respect, the Supreme Court shouldn't be giving its blessing to the display of one faith's sacred symbols on property that belongs to the public. But," said the editors, "that's what seven justices did last Thursday when they ruled that a giant memorial cross at a highway intersection near Washington, D.C. doesn't violate the First Amendment."

But the question to be asked and responds to both of these criticisms as not just what would you take down, but what would you leave standing? And this gets to something that Christians need to recognize, and it comes down to the fact that in America's civic culture, there is a predominant influence of Christianity. It has been that way from the very beginning. Sometimes Christians over-argue that point, trying to argue for example, that all of the framers of the Constitution and the nation's founders were, by some definition, evangelical Christians. That's over-arguing the case. But there can be no denying that there has been a majority Christian influence throughout the entirety of the experience of the United States of America, and thus it should come as no surprise that when it comes to something like memorializing the dead, there is going to be a natural civic reflex to Christian symbolism, not at the expense of any other kind of symbolism, but when it came to those who died in World War I memorialized in this way by those who created this monument in Maryland, they were explicitly seeking to honor those dead in the way that fit the community.

A generation ago, Richard John Neuhaus argued that the effort undertaken by those who are seeking to secularize the society was an effort to create an absolutely naked public square, that is public space in the United States in which all Christian or religious language and symbolism had been effectively eradicated. We are not there yet, but it is really clear that that's where the secular elites want us to be, and that's why so many of them are frustrated with the decision handed down on Thursday. But I'm thankful for it, and the American people should be thankful for it, and for organizations like the First Liberty Institute that defended the American Legion and the cross in this case.

Part

The Planned Parenthood Democratic Candidate Forum: What Happens When 20 Democrats Can’t Run to the Left Quickly Enough

Next, we turn to the fact that the first major southern primary is that of South Carolina in the 2020 cycle, and it's very interesting to note that on Saturday, Planned Parenthood there in South Carolina through the Planned Parenthood Action Fund, hosted a forum that attracted twenty of the Democratic presidential candidates, and they fell over themselves Saturday trying to defend and expand abortion under any circumstance, and they also were insistent that the American tax payer should have to pay for abortion. As the Washington Post reported, "Twenty Democratic presidential candidates attending a Planned Parenthood forum on Saturday vowed to defend abortion rights under nearly any circumstance, while largely ignoring nuances around the issue that have already roiled their party leading into the 2020 election." What's so important there is that that's the lead in an article by The Associated Press that ran at the Washington Post. This is not some kind of Christian news source saying that those Democratic candidates had defended abortion "under nearly any circumstance." That's the Associated Press.

Massachusetts Senator Elizabeth Warren, speaking of Roe v. Wade said, "We've been on the defense for 47 years, and it's not working." She said that all efforts to restrict abortion are really efforts that are explained by sexism. "You're not going to lock women back in the kitchen. You're not going to tell us what to do."

New York Senator Kirsten Gillibrand, who is herself staking out some of the most radical landscape when it comes to abortion rights even though the other Democratic candidates join her position almost as soon as she articulates it, she said, "If President Trump wants a war on America's women, it's a war he's going to have and it's a war he's going to lose."

In the background of this is of course the fact that the leading Democratic candidate in the polls, former vice president Joe Biden—who for years had defended the Hyde Amendment, that's a bipartisan amendment that eliminates federal funding for abortion through Medicaid except in cases of rape and incest—Biden effectively facing pressure from within his own party if he were to have any hopes of gaining the nomination, he took a step just in recent days denying what he had affirmed. Switching his position, he now says that if elected, he would seek to eliminate the Hyde Amendment.

But New York mayor, Bill de Blasio, famously liberal and pro-abortion, just spoke to the crowd Saturday asking "Can we just be clear that if you're a Democrat, you're against the Hyde Amendment, period?"

Now, the important thing to recognize is that when you have The Associated Press reporting that the Democratic candidates in this forum on Saturday night defended abortion rights "under nearly any circumstance while largely ignoring nuances around the issue," what you have here is positive of the fact that the pro-abortion argument in its most extreme form is now becoming the orthodoxy of the Democratic Party. But it's also interesting to note that this took place in the state of South Carolina. Again, it took place in a southern state. It took place even as South Carolina is the first major political decision point in the 2020 Democratic presidential nomination process. It's very important to recognize that the action arm of Planned Parenthood sponsored this forum, and that no less than twenty of the Democratic candidates, that's right, twenty of roughly twenty-four, agreed to come and to participate. It's very significant that every single one of them wanted to be seen as the most pro-abortion on the platform.

This does represent a change, and the New York Times offered a story just a few days ago indicating the scope of that change. The headline of that article by Stephanie Saul: "Joe Biden Said He Did Not View Abortion as a Choice and a Right in 2006." Now, the Hyde Amendment goes back to the mid 1970s, but this statement by the former vice president goes back merely to 2006. That's just 13 years ago. That was just two years before Barack Obama would choose Joe Biden as his running mate in the 2008 presidential election. So it's very important when Saul writes, "In a newly unearthed video from 2006, Joseph R. Biden Jr. said he supported Roe v. Wade but did not view abortion as a choice and a right, which," Saul said, "are remarks that raise further questions about how he views abortion rights as he runs for the Democratic presidential nomination and faces pressure over his position on the issue." In the video that was unearthed, Biden said, "I do not view abortion as a choice and a right. I think it's always a tragedy." He went on to say, "I think we should be focusing on how to limit the number of abortions."

The issue is that was then, this is now. Those 13 years represent a sea change on the question of abortion as evidenced in the Democratic Party. What's important from a Christian worldview is not so much the politics, that's not unimportant, but to recognize what that tells us about our culture and about the subversion of the sanctity of human life and the threats to the unborn that we now face. We're looking at a massive cultural shift on this, but it's not the only shift. We are also looking at the fact that the logic of the pro-life position has also grown and intensified over the same period. Perhaps the most important issue is understanding that the stakes could not be higher, and the two positions now could not be more polarized.

Part

The Rooster at the Center of France’s Culture War? How Maurice the Rooster Points to the Larger Worldview Divide Between Urban and Rural

But finally, if you think the issues of the culture war in the United States are hot, yesterday's front page of The New York Times tells us that things just might be even hotter in France right now, and the culture war is over a rooster. The headline in the article: "On the Front Lines of the Culture War in France: Maurice the Rooster." The article's dateline from Saint-Pierre-d'Oléron, that is the largest city on an island off the French coast, and on that island, the big focus of political attention in what's described there as a culture war is a rooster named Maurice.

As Adam Nossiter of The Times tells us, "Maurice has become the most famous chicken in France, but as always in a country where hidden significance is never far from the surface, he is much more than just a chicken." As the New York Times tells us, "He has become a symbol of a perennial French conflict between those for whom France's countryside is merely a backdrop for pleasant vacations and the people who actually inhabit it." Maurice and his owner are being sued by a couple of neighbors, and we're told the neighbors are basically vacationers who want to come to rural France, and they do not want to be awakened early in the morning by a rooster.

But of course the point is that if you're going to rural France for the scenery, you're also going to have to confront the fact that in rural France are rural realities, including farms and including chickens, and that would include roosters. And Maurice, it turns out, is no minor rooster. Even the New York Times tells us that "Maurice is a cantankerous foul with a magnificent puffed out coat who struts around his yard with three hens in tow."

But even as this primary focus is Maurice the rooster, it really does point to a far larger issue, and it's not limited to France. It's found here in the United States as well. We are looking at the United States, at the fact that many of our cultural and moral issues are divides between the urban and the rural, and we're also seeing that there is a decline in the rural culture, and there's a marginalization of agriculture that is represented, rather hilariously and ironically in this case, by the fact that vacationers want to eat chicken, they just don't want chickens to live anywhere.

Lawyers for the vacationers argue that it was about their right to be undisturbed by a rooster, but as The Times tells us, "A random sampling of the other neighbors uncovered only staunch defenders of Maurice." Katherine Karom said, "Why must a rooster be arrested?" She continues by arguing that the effort to silence Maurice is the same as the effort to silence church bells from ringing.

But going back to our first issue on The Briefing today, that's the point, isn't it? It's Maurice the rooster today, it's the church bells tomorrow, and who knows what comes after that.

Thanks for listening to The Briefing.

For more information, go to my website AlbertMohler.com. You can follow me on Twitter by going to twitter.com/albertmohler. For information on the Southern Baptist Theological Seminary, go to sbts.edu. For information on Boyce College, just go to boycecollege.com.

I'll meet you again tomorrow for The Briefing.

R. Albert Mohler, Jr.

R. Albert Mohler, Jr.

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