Monday, October 7, 2019

Part I

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As Supreme Court Begins New Term Today, Big Decisions on LGBTQ Rights Hang in the Balance

Today, a new term begins for the United States Supreme Court, and the Court will soon take up cases it has already accepted, many of them very important and several of them portending vast Constitutional ramifications. In recent days, The New York Times issued a front page story with the headline asking, “Does Sexual Equality Law Cover Gay Workers?” Then the statement, “Justices will rule.” Adam Liptak is the reporter.

He writes, “The Supreme Court has delivered a remarkable series of victories to the gay rights movements over the last two decades, culminating in a ruling that established a Constitutional right to same-sex marriage. But in more than half the states, someone can still be fired for being gay.”

Next we are told, “Early in the new term, the Court will consider whether an existing federal law, Title VII of the existing Civil Rights Act of 1964, guarantees nationwide protection from workplace discrimination to gay and transgender people, even in states that offer no protections right now. Very importantly,” Liptak goes on to tell us, “it will be the Court’s first case on LGBT rights since the retirement last year of Justice Anthony M. Kennedy, who wrote the majority opinions in all four of the Court’s major gay rights decisions, and without Justice Kennedy,” warns The New York Times, “who joined four liberals in the 5-4 ruling in the marriage case, the workers who sued their employers in the three cases before the Court may face an uphill fight.”

Contrast that with last week’s cover story in Newsweek Magazine, asking the question, “What Would Scalia Do?” Scalia here, of course, referring back to the late Supreme Court Justice, Antonin Scalia, who made his mark in decades on the Court arguing for a strict construction of the law and of the Constitution, an originalist interpretation, a textualist interpretation that became shorthand for a conservative approach to the Constitution that avoided developing new rights or taking laws beyond the actual text of the statute or, for that matter, taking the Constitution beyond its words, its syntax, and its grammar.

The subhead in the headline story of Newsweek is, “Three LGBTQ cases put the Supreme Court’s conservative principles on trial.” We’re going to take a closer look at that statement in just a moment. But first, we need to consider the fact that any opening day of a new term of the Supreme Court of the United States reminds us of the outsized importance of the Supreme Court in American politics and cultural life today as contrasted with just, well, several decades ago.

Consider this, throughout most of American history, it’s unlikely that most Americans could have named a single sitting Justice of the United States Supreme Court. The Supreme Court was the largely silent branch of government. It was considered by, even some of those who framed the Constitution, as the least dangerous branch because it didn’t initiate. The Supreme Court of the United States is a Constitutional Court, it is the highest Court of Appeals. That means it does not initiate.

Presidents can initiate by executive order. And, of course, Congress may initiate by legislation. But the Supreme Court is not to initiate. Thus, it was considered to be the least dangerous branch. But it’s also important to recognize that something basic happened in the Supreme Court and its role in the country, and it didn’t begin in the 1950s through the 1960s. It really began in the first two decades of the 20th century. That’s when a new idea emerged of how the Constitution should be read by the nation’s highest court, and furthermore, how it should be read by others. But most importantly, by the Supreme Court.

This was a so-called progressivist interpretation of the Constitution that held what was later called a living Constitution as the model. The Constitution is understood to be a living document. Its meaning would evolve over time. As President Woodrow Wilson argued, himself an icon of progressivist ideology, Wilson said that the Constitution would grow along with the nation.

Now, let’s be clear, the Constitution is not an inherent and infallible revealed document. The framers of the Constitution understood that, that’s why they wrote into the Constitution a provision for the Constitution’s revision or amendment. But that’s not what we’re talking about here, we’re talking about Judges deciding to interpret the Constitution differently, to find what’s not there in the actual words and sentences of the Constitution.

Perhaps the most glaring example of that was the Roe v. Wade decision in 1973, in which a majority of the Supreme Court Justices at the time found, even though there is no reference to abortion or any right to privacy in the Constitution, they found that a woman had a Constitutional right to abort the unborn child within her because they developed it out of the idea, this living Constitution that is allowed to evolve along with the nation. And that means it evolves along with the judges, who eventually decide what the Constitution means, rather than the Constitution’s text or even the intentions of those who adopted it.

That becomes extremely crucial when you consider the headline news story reminding us of what just might be the most important case that will be heard in this new term. It is, actually, a series of cases that are going to be considered together concerning transgender and LGBTQ rights, but particularly whether or not the Civil Rights Act, as it exists now, the Civil Rights Acts Title VII of 1964 actually protects transgender persons and creates a new category of transgender identity as a protected category, even though, you can write this down, no one involved in adopting that legislation in 1964 would have even understood what we are talking about because the terminology did not even exist, nor frankly did the ideas exist in American culture at the time.

But here’s where you’re not only looking at two opposing sides in a Constitution argument, you’re not just looking at two sides of an instance of litigation here, you’re looking at two radically contradictory understandings of the world frankly, but most importantly of how to read a text.

And that takes us to the article in Newsweek Magazine, the cover story. Roger Parloff is the reporter, “Three explosive cases are about to test whether conservative Supreme Court Justices are seen to rule according to their professed legal principles or their politics.” He continues, “On October 8, just day two of the new term, the Court will hear arguments questioning if the federal law that prohibits workplace discrimination ‘because of…sex,’ Title VII of the Civil Rights Act of 1964, applies to discrimination on the basis of sexual orientation and gender identity.”

Parloff goes on to write, “Millions of Americans’ rights are at stake. About 4.5% of the adult U.S. population identify as gay or lesbian, about 11.3 million people, according to a recent Gallup poll.” So what’s really going here? Why did that subtext on the cover of Newsweek Magazine state, “Three LGBTQ cases put the Supreme Court’s conservative principles on trial”?

Well, there’s a very interesting twist to the argument as it’s made in Newsweek Magazine, and it also shows up in The New York Times coverage, in a quotation from William N. Eskridge, Jr., a law professor at Yale. He stated, “Lesbian, gay, bi-sexual, and transgender Americans continue to face widespread job discrimination because of their same-sex attraction or sex identities.” Professor Eskridge went on to say, “If the Justices take seriously the text of Title VII and their own precedence, LGBTQ Americans will enjoy the same job protections as other groups.”

What are they talking about here? What are the conservative principles that are supposedly now on the line? Well, it comes down to this, if you go back to the late Justice Antonin Scalia and his argument for textualism or, for that matter, a strict constructionist reading of the Constitution, what he meant was, you read the Constitution or you read the law according to the words.

As Parloff wrote in Newsweek Magazine, “For at least 20 years, conservative jurists, led by the late Justice Antonin Scalia, have championed a doctrine of statutory interpretation called ‘textualism,’ which purports to provide an objective decision-making methodology that transcends ideology. It hinges on the plain meaning of a statute’s words, rather than on the subjective intent or expectations of the legislators who enacted it. Those rules,” said Parloff, “now dictate an outcome in favor of the LGBTQ employees, they and their allies insist.”

Again, Yale professor William Eskridge, Jr. is quoted in this article. “This is a moment of truth for textualists. It’s either put up or shut up. Either give Title VII’s text and structure the effect its breadth demands or admit that textualism does not free statutory interpretation from ideology.”

All of this is basically an effort to bring public intimidation to try to force the Court into a situation in which it will find for a new understanding of Title VII to include same-sex orientation and activity and relationships, and the entire category of transgender. Everything within LGB and T.

The actual arguments presented by those in favor of the LGBTQ revolution are rather complex, but they come down to this, the word “sex” now means everything covered, not only in heterosexuality and in the marriage of a man and woman, not only in the conjugal relatedness of a man and woman, but frankly now covers everything in that spectrum of LGBTQ. And so “sex” is now to be read even as it appears in Title VII of the 1964 Civil Rights Act, as if Congress meant that at the time.

But that’s not actually a fair representation of Justice Scalia and textualism because textualism was never without context and it gives attention to the words, and it’s the meaning of the words that is important. And that’s where it’s just basic intellectual honesty to say that it is sheer lunacy to argue that in 1964, the legislative intent of Congress had anything to do with any dimension that could be described in the letters LGBT or Q. It’s just not plausible.

But here’s where we see something else, not only has the Supreme Court taken on an outsized influence because it took on such a progressivist bent in the 1950s and ’60s and ’70s, even into the ’80s, but because Congress has failed to legislate. Here’s the important thing: If Congress wanted the Civil Rights Act to include LGBTQ persons in those who are offered a protected a category, then Congress could do so. Congress could adopt that legislation. Congress hasn’t. If Congress would adopt that legislation and a president would sign it into law, or if Congress had such a super majority that it could overcome a presidential veto, then Congress could say that.

But Congress hasn’t said that, and it is absolute intellectual dishonesty to suggest that Congress was intending, or even imagining, such a thing in 1964. Just yourself imagine going up to one of the senators in 1964 and saying, “How would this apply to a transgender person?” And then try to explain to a United States senator in 1964 what transgender means. I will simply say, good luck with that.

But it is also very interesting to see how much interest in this new Supreme Court term is found even across the Atlantic. In The Economist of London you see another story with the headline, “Robes On.” The subhead of this article, “Fallout from America’s culture wars looms over the justices’ new term.” And again, internationally, what seems to be the biggest question is how the Supreme Court now constituted with Neal Gorsuch and with Brett Kavanaugh sitting on the Court, how this Supreme Court will in this new term, with these nine Justices, decide some of the most controversial issues facing the nation.

This article from The Economist is another reminder that what happens in one Supreme Court doesn’t stay there, because judges also increasingly watch one another across national lines, and frankly, that’s another one of the problems. We have too many American judges looking over their shoulders at how European courts have decided these cases or would decide these cases.

So, we’re looking at a new Supreme Court term, we’re looking at huge issues, we’re looking at some of the most important Constitutional questions being asked, and frankly, Christians understand there are few questions more important than how to read a text. And this is where we also understand that the progressivist ideas of how to read the U.S. Constitution came along at the very same time that higher critical and liberal understandings of how to read the Bible were being also argued for and emerging in so many places.

You have liberal scholars saying that the Bible itself is not to be read simply in terms of the words and its natural meaning, but rather the Bible is to be understood as a document that will have to be reinterpreted over time. It all comes down to the authority of a text, and Christians understand that we don’t look to the Constitution of the United States as having anything like the same authority as Scripture. We’re talking about Scripture as a revealed document. We’re talking about the Constitution as a humanly written and ratified document. But we’re also considering the fact that when you read words, it really comes down to whether or not you believe an order of words on a page matters. That matters when you’re reading the Bible, it also matters when you’re reading the U.S. Constitution.

Part II

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Is Belief in God Necessary to Be Good? Richard Dawkins Says “No” in New Book, But Hopes People Act As If It Were True

But next, we turn to Richard Dawkins, perhaps the world’s most famous atheist. He has a new book out, it’s been released in both the United States and in Great Britain. It’s entitled, Outgrowing God: A Beginner’s Guide. The most interesting thing about it, and perhaps the most alarming, is that it is addressed to teenagers.

We are talking about a man who is rightly counted as perhaps the most influential atheist in the world these days. One of the four horsemen of what’s been called the New Atheism: Richard Dawkins, Daniel Dennett, Samuel Harris, and the late Christopher Hitchens. This new book is addressed to teenagers.

I was just recently with others in York, England, and an article appeared just this last week in the York newspaper, The Press, with the headline, “Dawkins preaches beliefs on atheism to the converted.”

The article from there in York stated this, “Richard Dawkins’ new book, Outgrowing God, is aimed at teenagers, so it was fitting that high school pupils were well represented in the near sellout audience. Dawkins, now aged 78, is one of Britain’s most celebrated scientists who made his name with his breakthrough 1976 text, The Selfish Gene. Alongside his work in evolutionary biology, Dawkins is an outspoken atheist and was in York as part of tour to promote his new work.”

The article continues colorfully, telling us that Richard Dawkins was looking dapper in a pale blue suit and shirt and tie. And we’re also told that the audience was largely made up of teenagers, and they liked what he had to say. What he had to say is that belief in God is not only wrong, but it is dangerous. That religion is dangerous. That it is not necessary to believe in God in order to be a good person. Indeed, he argues that it is morally inferior to believe in God.

But remember, this is a book written for a teenage readership, and he was speaking to an audience that included many teenagers. And then the article in the York newspaper concludes, “Applause levels suggested that the crowd were with him on this, and he was very much preaching to the converted.”

That’s interesting. Isn’t it interesting that the word “converted” appears in the headline, and it also is the very final word in the article? It’s interesting to note that even in a secular age, a supposedly secular newspaper writing about a most secular author has to use a Christian terminology in order even to make the point.

But then, at virtually the same time, another article on Dawkins appeared, this time in the Saturday edition of The Times of London, with the headline, “Ending religion is a bad idea, says Dawkins.” The correspondent on the article is David Sanderson.

He writes, “Richard Dawkins said he feared that if religion were abolished it would give people a license to do really bad things. He said that security camera surveillance of customers in shops did appear to deter shoplifting, adding that people might feel free to do wrong without a ‘divine spy camera in the sky reading their every thought.’” Dawkins said, “People may feel free to do bad things because they feel God is no longer watching them.” He then cited an experiment undertaken by one of his former students.

But then I go back to the book that is the very subject of the tour that he is taking, and I remember that in his chapter entitled, “Do we need God in order to be good?” he basically raises and then dismisses what he calls “the great surveillance camera in the sky” theory.

I want to step back and ask a question, is this plausible? Is it true that people are actually more honest if they know that surveillance cameras are watching them? Well, of course they are. Can we draw a lesson from that? Well, of course we can. The problem is that Richard Dawkins, who seems to argue that the argument is implausible in his book, seems to think upon reflection that maybe it’s a bit more plausible when he actually thinks about it, and in the article that appeared in The Times after the book was released, he argues that ending religion might be a bad idea because people might not behave if they don’t believe in a God who is watching them, much as a surveillance camera.

But here I need to step back from Dawkins, and let’s do just a bit of biblical theology because the Bible tells us from the very beginning that the self-existent Creator God who made all things and who made us in his image is also both omnipotent and he is omniscient. He knows all things. Indeed, we understand that nothing is hidden from his sight, absolutely nothing.

The Psalmist makes very clear that God actually knows our words before we speak them. He knows our thoughts before we think them. In the book of Hebrews, chapter four, we understand that the Word of God is living and active and sharper than any two-edged sword, and that it is able to pierce to the innermost, and it reveals all things.

So, we really do believe in an omniscient God. We really do believe that human beings made in his image know that they are known and they know that they are watched. Richard Dawkins, operating out of a simple evolutionary worldview, has to explain everything in terms of evolution. He doesn’t believe in God. He doesn’t believe there is any God who’s omniscient and watching. He doesn’t believe that there is a great surveillance camera in the sky, to use his condescending language. But he does have to admit that human beings think there is. And actually, even as he dismisses religion, he has to admit, maybe it’s a good thing that people do think there is.

But then, let me ask anyone who has been the parent of a two year old, did you have to tell that toddler that he or she is being watched? There comes a moment in the experience of almost every parent, when the parent observes a child who does something wrong and then hides himself or herself. What’s the point? They are hiding for a reason. They believe they have been seen doing wrong, even when the child does not believe that the parent saw them doing wrong. They know that they have been seen, even when there is no one in the room, they believe, to have seen them.

What does that tell us? It tells us that a part of what it means to be made in the image of God is that we actually, as Thomas Aquinas would imply, we cannot not know that we are being watched.

Richard Dawkins may seek to dismiss that, but even in terms of its utility, he seems to believe that even if not true, he wants people to act as if it is. But that’s another part of the condescension of the new atheism. In other words, he implies that people as smart as he is, who knows there is no God watching them, will be behave all right because they’re intelligent, sophisticated people. But those other people, the great unwashed hoard of people who aren’t smart enough to believe in evolution and understand his argument, well maybe it’s better off at least for our bank accounts that those people at least think that there’s an omniscient God who is watching them and will judge them.

It’s another interesting pattern of the kind of intellectual condescension that we see coming from so many in the secular elite, and particularly from this aggressive new form of atheism.

But that raises a huge issue. I mean, after all, Dawkins entitled the chapter, “Do we need God in order to be good?” And here’s where Christians come back and say, the wrong place to begin is with the understanding, true as it is, that we know that we are known, and we know we’re being watched, and we know that we will be judged. It begins with asking the question, how do we answer that question by even knowing what good is? You ask, do we need God to be good? How do I know what good is? How does Richard Dawkins know what good is?

The fact is, that if you remove God, you remove any objective criteria in our foundation for even knowing what good is. Is good what is convenient at this moment? Is good what a majority people decide is good at this moment?

In an evolutionary worldview, you really have no sense of a category of good and evil. Just that which works, and that apparently which doesn’t, that which has been selected out as a trait or as a behavior or that which natural selection operating by its own mechanisms has selected in.

The reality is, Richard Dawkins can’t ask the question, “Do we need God to be good?”, if God had not already implanted the ideal and the revelation of the good, not only in the world around us, but even in the interior structures and consciousness of the human heart. Richard Dawkins insists that he’s an atheist. I believe that he seriously means to insist that he is an atheist. But you really can’t be a good atheist if you’re going to use the word “good” as if it has any meaning beyond your own moral sentiments.

And if he believed it is only about his own moral sentiments, it would be nonsensical to write a book. He wrote a book because he wants to argue about what is good and how people are good. And even though he insists he’s an atheist, and even though entitles book, Outgrowing God, the fact is that Richard Dawkins hasn’t outgrown God, and, as the Bible also makes clear, not only can human beings not outgrow God, we cannot outrun God.

Some people may try to run right past God in making their argument, only to find out that the very language of their argument only makes sense if God truly does exist.

Part III

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The Battle for the Hearts and Minds of Young People: Christians Must Understand What those with Opposing Worldviews Already Know

But finally, on this topic, it is really interesting to go back to the fact that Richard Dawkins has written this book for teenagers, for young people. And he entitled it, Outgrowing God: A Beginner’s Guide. That’s also very revealing. It’s, in its own way, a kind of encouragement, a kind of exhortation. It’s a moral argument right there in a two word title, Outgrowing God. The argument is, we should outgrow God. If we grow up into being adult thinkers, we will outgrow God. We don’t need God any more. Children might need God, but grownup adults intellectually, morally, and otherwise, we don’t need God.

Just two days ago, I was in Durham, England, and I went into a little bookstore that turned out to be a radical leftist bookstore. It was filled with Communist literature. And considering the battle of worldviews, I picked up an original copy in English of an 1880 address given by Peter Kropotkin, entitled, “An Appeal to the Young.” Kropotkin was a very famous radical leftist, and he addressed this particular message to young people in 1880.

He wrote in the beginning of this document, “I assume that you are about eighteen or twenty years of age; that you have finished your apprenticeship or your studies; that you are just entering into life. I take it for granted that you have a mind free from the superstition which your teachers have sought to force upon you; that you don’t fear the devil, and that you do not go to hear parsons and minsters rant.”

That was 1880. Both Kropotkin’s pamphlet from 1880 and Richard Dawkins’ new book from 2019 remind us that in every generation, we are in a white hot battle for the hearts and minds of young people. Leftist radicals know it, Richard Dawkins and the New Atheists know it, and we, as Christians, of all people, we had better know it.