Friday, January 17, 2020
This is a rush transcript. This copy may not be in its final form and may be updated.
It's Friday, January 17, 2020. I'm Albert Mohler, and this is The Briefing, a daily analysis of news and events from a Christian worldview.
Virginia Votes to Ratify the Equal Rights Amendment: Why This Proposed Constitutional Amendment Is Undoubtedly on Its Way to the Supreme Court
On Wednesday, the Commonwealth of Virginia became the 38th state to ratify the Equal Rights Amendment to the U.S Constitution. As USA Today reported yesterday, "If codified into the Constitution, the change would explicitly declare that women have equal rights under the law. Supporters," says USA Today, "say it's a long needed protection for women who continue to face discrimination in the workplace and struggle against domestic violence and sexual harassment. Opponents argue it's an unnecessary amendment that could in shrine in the Constitution protections for abortion."
Now, there are such massive worldview issues at stake here. We're going to have to take them in turn. But we also need to note—and this is going to become crucially important because this is largely missing from the media discussion—that description in USA Today might have been accurate a generation or so ago, but it's really not accurate now and that's a part of the big story.
Now, as you're looking at the ERA, let's just remind ourselves something of its history. The amendment was first proposed in the United States Congress in 1923, almost a century ago. It was actually proposed in Congress in 1943 with exactly the same language that Virginia ratified on Wednesday, exactly the same language. What is that language? Well, the entire text of the Equal Rights Amendment to the U.S. Constitution is this:
Section One: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account a sex.”
Section Two: “The Congress shall have the power to enforce by appropriate legislation the provisions of this article.”
Section Three: “The amendment shall take effect two years after the date of ratification.”
It's very simple. You're looking there at just a few dozen words. The most important words say that equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.
Now, if you go back to 1923 or 1943 when this process began in one sense, then you're looking at the fact that in the United States, “sex” meant male and female, period. By the early 1970s, there were enough members of Congress to support the proposed amendment to get it before the states. And then two thirds of the states had to ratify the Equal Rights Amendment before it would become part of the U.S. Constitution.
But it is really interesting to know that the United States Congress put a seven year period during which after Congress had acted, the states would have to ratify or the amendment would die. That didn't happen. Then Congress voted an extension. By the time the extension was added, Congress had given the states 10 years in order to ratify the Equal Rights Amendment, but at the end of that 10 year period, there had not been a sufficient number of states to ratify the amendment for it to actually become part of the Constitution.
And that's where the matter stood in the early 1980s. But ever since then, proponents of the Equal Rights Amendment had been trying to get additional states to ratify the ERA in order to claim that simply by the number of states it would actually now become part of the Constitution.
By most counts, and that might be an odd way to put it, but it's actually accurate. By most counts the ERA was three states short back in the 1980s. But then in 2017, Nevada ratified it. In 2018, Illinois and then now, just a matter of days ago, Virginia has ratified it. Not yet officially, by the way, the Virginia House and the Virginia Senate will have to normalize two different bills. But at the end of the day, there's no doubt that Virginia is moving forward with this ratification.
So is the ERA part of the U.S. Constitution now or not? Well, that turns out to be a very big question and it's one that will almost certainly eventually be decided by the Supreme Court of the United States, which is itself something of an irony. Asking the Supreme Court to rule on whether or not something is in the Constitution, when the Supreme Court is supposed to rule by the Constitution. The Constitution included its own mechanism for amendment, but it really didn't consider that the Supreme Court would have to decide on an amendment which after all, again, it's hard to come up with a better word than “irony” for what the Supreme Court is likely to be asked to do.
But as for the Justice Department and the Trump administration, the Wall Street Journal yesterday reported, "The Justice Department's Office of Legal Counsel, which advises the executive branch said in an opinion last week, the ERA's deadline has long since expired."
Now here's a very interesting historical trivia question, a trivia question about the U.S. Constitution. The question is who decides whether or not at the end of the day the Constitution's text is to be amended? It turns out that that assignment is given to the archivist of the United States. You might think of the department that is known as the national archives. So eventually the archivist will have to make the decision, but the archivist is not about to make that decision and has instead asked for guidance from the federal courts.
But if the situation as it stands now sounds complicated, it's about to get, I regret to say, more complicated because if the number was 35 in the early 1980s—the number of state legislatures that had at that point ratified the Equal Rights Amendment—I have to say it appeared that it was 35 because we're not actually sure now because since then, five of those state legislatures have voted to rescind the ratification that they had previously forwarded to Congress. Those five states: Idaho, Kentucky, Nebraska, Tennessee and South Dakota. But the Constitution itself does not offer any explicit guidance as to whether or not a state can effectively un-ratify what it had previously ratified. And the text of the Constitution itself offers no explicit guidance on the matter, which means this is now going to be an even more hotly contested issue and it will eventually, inevitably arrive at the federal courts, and almost assuredly at the Supreme Court of the United States. And both sides on this issue understand that that could take a matter of years.
It does stand obviously to reason—and conservatives are going to be stating this matter emphatically—that if Congress set a period, a limited period, with an expiration date for the ratification of this amendment and then self-consciously extended it, and if that period of time is now virtually 35 years in the past, it would seem that this is a moot point. But of course it isn't in this political season and we're going to be very, very interested to see how this issue twists and turns in the court. But there really are even bigger issues behind this.
What does an Equal Rights Amendment mean? Well, for one thing, if you go back to 1923 when it was first proposed, 1943 when it was first submitted to Congress, it is clear that women were not recognized then to have many of the rights that were understood to belong to men in this society. Women had been granted the right to vote earlier in the 20th century, but there were other rights, or at least the word “rights” was often invoked.
But here's where there is a very modern confusion over the idea of rights. What exactly are rights? To whom do they belong and in what are they grounded? Do human beings, either male or female have a right to life, liberty, and the pursuit of happiness? The answer to that according to the Declaration of Independence would be, yes. Do men and women have the same right to, say, the same pay for the same job? Well, that would appear to be true under the same circumstances but you do not hear the clause under the same circumstances often invoked here.
Do men have the right to bear a child as a woman does in the womb? Well, at that point, the word “right” appears to be absolutely nonsensical. The problem is that in the culture of what Mary Ann Glendon of Harvard Law School calls rights talk, the Equal Rights Amendment is an explosion just waiting to take place. In the 1960s and ‘70s and through the ‘80s, feminists understood the ERA to be an absolutely explosive engine of social change. That is why there's been so much energy behind getting more states to ratify the ERA, even after that expiration expired a generation ago.
The question is, would the ERA be so explosive now? Well, I want to raise an issue that hasn't been often raised in the media. Let's just look again at the actual text, the important part of the text. "Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.”
Well, do you see the obvious issue here? What is the issue of sex? Back in the early 1970s when Congress sent this issue to the states, there was no doubt that sex meant male and female. That was emphatically true in 1943 when this text was formalized, sex meant either male or female, and a male stayed male and a female stayed female. But I chose specifically that paragraph from USA Today earlier in our discussion, because it said, "If codified into the Constitution, the change would explicitly declare that women have equal rights under the law.”
But you'll notice when I read the text of the constitutional amendment as proposed, the word “woman” doesn't appear. Instead, it simply says that equality of rights under the law shall not be denied or abridged on account of sex. The word “woman” isn't there, nor is the word “man.” But now in 2020, the word “woman” and the word “man” are both in dispute. And now we are told that we're living in the age of the non-binary, in which our society has escaped the very prison of the words, “male” and “female.”
So, what exactly would it mean in 2020? Well, just consider the arguments recently made before the United States Supreme Court in which those arguing effectively from the left said that the text of the Civil Rights Act, which was adopted in the same understanding of male and female now means that transgendered and other LGBTQ persons can claim that they're being discriminated against on the basis of sex, even though of course, the word “sex” when the Civil Rights Act was adopted didn't mean any such thing.
The feminists who in the ‘60s and ‘70s thought the Equal Rights Amendment was a bomb for explosive change I think were right. That's why the proposal for the Equal Rights Amendment actually became one of the key catalysts for the activation of the conservative movement in the United States. Back in the early debate over the ERA, there were questions about whether or not a woman's demand for an abortion would be included within the understanding of the protections of the Equal Rights Amendment.
And you say, "How could that come up?" Well, actually in the Roe v. Wade decision, the arguments made on behalf of abortion rights were the women must be equal to men in that they cannot be trapped into the situation of bearing a child against their will. Of course that can't be true of a man and thus the Supreme Court majority decided it should not be true of a woman either.
What about the existence of same-sex colleges, schools, or organizations? Well, the founders and framers of the ERA clearly wanted to see almost all of them eliminated. What about women having to register for the draft. Under the ERA, there would be no limitation on it whatsoever. But now we have to add to this, given the transgender revolution, that the ERA is likely to become like mercury on glass, it is likely to be used by those who would seize its language to further the moral and sexual revolution far beyond anything that is presently constitutionally imaginable.
And there's another issue at stake here and that is the fact that on the other side of the legalization of same sex marriage, on the other side of so many of the issues crucial to the LGBTQ revolution, what exactly would the ERA mean anyway? Furthermore, you have a front page story in the New York Times just in the last week telling us that there are now more women than men in the American workplace.
This is a huge story and of course Christians understand that there is a great deal at stake here because our understanding of sex based upon Scripture is the same binary that was behind the original authorship of the Equal Rights Amendment. That is, that it comes down to male or female, but of course Christians would add to that, it is male and female created by God in his image.
From Red to Blue: How Changing Demographics Led to the Political Transformation of Virginia
Secondly, we need to consider the dimension that this has taken place in Virginia precisely because in a sweeping win in the Virginia legislature, the general assembly as it is known there, it is the Democratic Party that is now solidly in control. Prior to the 2018 election, the Republicans had control of both houses of the Virginia legislature. Now, neither.
As a recent front page article in the New York Times stated, "Democrats, flush with power, race to make laws in Virginia.” The Democratic majority in the Virginia legislature along with the Democratic governor now have very big plans. That's the whole point of the front page article in the New York Times. Those plans include, further liberalizing Virginia's abortion law, restricting gun rights within the state, and other issues. Let's just remind ourselves, including the ratification of the Equal Rights Amendment.
Former governor Terry McAuliffe said, "This is really a once in a lifetime moment for us." He went on to say, "We've been working on this for 25 years and voters are desperate for Democrats to lead." He said, "Let's do something or risk getting sent home in two years," A part of the background here is Virginia turning from predictably red to purple to now largely predictably blue in just a matter of a decade.
A lot of this has to do with demographics, far more people moving into the metropolitan areas of Northern Virginia nearest to Washington, D.C. That is making a huge difference because that influx of voters has tended to be an influx of rather liberal voters. And the economy there in Virginia, Northern Virginia, is now increasingly devoted to two dimensions of the economy that tend towards attracting very liberal employees. And that would be high technology, you're having an influx of Northern Virginia becoming something like Silicon Valley on the East and also those whose livelihoods are tied to federal budget spending.
Let's just remind ourselves that even though the nation may experience a recession, Washington, D.C. and its environs never experience a recession. A generation ago, Republicans at the national level decided to make a very intentional effort to elect Republicans to statewide office and to the state legislatures. That was enormously effective, especially during the Obama administration, but now the tide may be turning and it's another reminder to us that elections have consequences, not only national elections but state elections as well.
The Intra-Democratic Argument Over Whether a Woman Could Win the White House: Polling Reveals an Interesting Pattern
Third, we need to turn to a very interesting intra-Democratic argument that erupted just about the time of the Democratic debate in Des Moines, Iowa earlier this week. It became known or at least claimed that in a conversation in September of 2018, Senator Bernie Sanders at dinner with Senator Elizabeth Warren decided to create something of a mutual pact in order to propose progressive plans for the Democratic Party. But supposedly in that conversation, depending upon which side you believe, either Bernie Sanders did or did not tell Elizabeth Warren that he did not believe that a woman could be elected president against Donald Trump in 2020.
To the media, that was a very juicy issue. Did he say it or did he not? Who's telling the truth? But there was a very, very interesting take on this that appeared in an article by Michelle Cottle that actually took up the official space of an editorial in yesterday's edition of the New York Times. The headline: “Are We Ready to Elect a Woman President?”
The very interesting thing about this article is that Cottle is writing that even though a majority of Americans say they are open and even perhaps friendly to the idea of electing a woman as president, when pollsters ask a follow-up question, “Do you think your neighbors are equally open?,” it turns out the numbers dropped precipitously.
Now in worldview analysis, there's a lot to consider here, all of it interesting. For one thing, one of the reasons pollsters ask that second question is because it turns out to have something to do with whether or not people are honest when they answer the first question. If people are asked, "Are you open to electing a woman as president of the United States?" The kind of political bias that's implicit in the question means that people want to be seen as answering what is the politically correct way, and so they tend to give an answer that doesn't turn out to be mirrored in the polls, actually voting.
Why would that be the case? Well, it's the case because people tend to appear sometimes more liberal, sometimes more conservative than they are depending on the question in answering a poll question, but when that second question is asked, "Do you think that people around you are equally committed to this position?," the number often drops a lot. And in this case, that's exactly what's happening when in poll after poll, Americans are asked if they're ready to elect a woman as president.
Cottle writes, and I quote, "Polling doesn't much clarify the matter. While most Americans claim they are ready for a woman president, far fewer see other people as quite so open to the possibility.”
Later Cottle writes, "A poll in June conducted by Ipsos for The Daily Beast found that 74% of Independents and Democrats said they were personally comfortable with a woman president, but only 33% thought the same of their neighbors.” Again, you have the difference between that first and second question.
Cottle gets right to the point in her concluding sentence. "Women candidates and their supporters aren't simply outraged that he,” meaning Bernie Sanders, “could be so wrong." Her last words are these: "They're worried that he might be right.”
There's another very interesting dynamic to this in the age of identity politics and the moral revolution, at least some Democratic polling indicates that Democrats might be more open actually to voting for an openly gay candidate as a white male, otherwise known as Pete Buttigieg, rather than for a woman. Believing that, oddly enough, maybe perceptively enough, in 2020 a white male openly gay candidate may be more electable than a woman candidate all things being considered. And trust me, analysts on all sides of the equation are trying to consider all things in order to figure out what these things mean.
That won't be abundantly clear until the votes start coming in with the Iowa caucuses on February 3. But it does tell us something that the same week that Virginia ratified the ERA or thinks it did, the New York Times runs this massive article right on the editorial page saying that effectively Bernie Sanders probably said that, and he shouldn't have said that, but the biggest worry is not that he said it, but that he might be right.
What Do Christians Believe about a Woman Serving as President? Are American Evangelicals as Unsure on the Question as It Might Seem?
That raises for Christians really interesting questions. What do we believe about a woman potentially serving as president of the United States? Christians who hold to a consistent complementarianism understand that the Bible speaks directly and definitively to two of three spheres. Those two are the family and the church. The Bible does not speak so definitively to the public square. That would mean, elective office in government or other kinds of service in the public square from serving as a police officer to serving as a justice of the peace—you could go down the entire list—or for that matter, the CEO of a corporation.
That's why conservatives may hold different positions on the prudence of whether or not an individual should serve, even a man or a woman, should serve in position A, B, or C in the public square. The reality is that the Bible speaks definitively to separate and distinct roles for women and for men in the church and in the home, but not in the general society.
When most conservative Christians are asked the question, "Do you believe that a woman could serve as president of the United States or should serve as president of the United States?" I think in honesty, most evangelical Christians would eventually say, "Well, it depends on the woman," which raises a very interesting issue. I would predict right now that if in some hypothetical national election, conservative Christians face the option of a very liberal man and a far more conservative woman, they would effectively vote very quickly for the woman. And I think there's precedent for that when you consider the trajectory of many Western nations.
Here's something to keep in mind: When you look at the first woman nominated by a major party to be president of the United States, it was Hillary Clinton in 2016. She won, of course, the popular vote, but presidents are not elected by the popular vote, they're elected by the Electoral College vote where she lost.
Why did she lose? Well, in the case of Hillary Clinton, you had a candidate with very high negatives that was true also of her opponent, Donald Trump. But when it came to Hillary Clinton, she was also clearly identified with very liberal social and moral positions. Now, the Democratic nominee in 2020 is likely to be significantly to her left. But nonetheless, Hillary Clinton was the liberal candidate in the race, no question about it.
But when you consider other Western nations, the first women who have served in the highest elected office have often come not from the left, but from the right. Just consider in one case, Angela Merkel, who comes from a moderately conservative party who has been the chancellor of Germany now for many years, or perhaps Americans might think even more quickly of Margaret Thatcher, who of course became prime minister of Great Britain in 1979 and served for well over a decade, famously as Britain's Iron Lady.
Now, as I have argued in many different contexts, I think there is a distinction between men and women even in that third sphere. I think most people actually agree on many of these distinctions, including the fact that we do not want women to be forced into frontline military units in active combat. We just don't want that to happen. We do believe that there are distinctions in roles that create principles, even intuitions, that extend from the first and second spheres, the family in the church to the public sphere.
But we also understand that in the public sphere we are not talking about the definitive answers that God has given us in Scripture to what we have in the family and in the church. In the public square it's different. And I will state emphatically that I'm absolutely convinced that if that hypothetical presidential election were to come around, American evangelical Christians would vote for a conservative woman candidate as president of the United States rather than vote for a liberal man.
Just think about the pro-life positions. Think about the judicial nominations. Go down all the major frontline issues. And it's also interesting to note that when it comes to Angela Merkel and especially Margaret Thatcher, they were also very strong in national defense and they were understood in many ways to be even more ready to defend their nation against military aggression than many of the men.
I will admit that one of my favorite photographs displayed in my study is a photograph of my wife and I with former prime minister Margaret Thatcher.
Let me just put it this way—and this is indeed a hypothetical, but sometimes hypotheticals help us to think. Evangelicals may say they're not sure about how to answer that question, but let's just consider this: If you might consider a hypothetical election in which American evangelicals would face a presidential election with a Bernie Sanders on one side and a Margaret Thatcher on the other, don't waste any of your precious time trying to figure out how evangelicals would vote.
And I know it is impossible and it's just a hypothetical thought exercise, but I can't tell you how much I would ache to see Bernie Sanders and Margaret Thatcher in a debate.
Thanks for listening to The Briefing.
I'd like to invite you to join me this Spring in Washington, D.C. On May 27 through 31, I'll be leading an exclusive tour of our nation's capital and we'll be teaching on a biblical view of government, politics, and the founding of the United States.
Our tour will take us to various locations such as Mount Vernon, The National Cathedral, and of course the important sites on the mall in Washington, D.C. If you have an appreciation for our American heritage and seek to understand government from a Christian worldview, I invite you to learn more about this unique opportunity by going to sbts.edu/dctour. That's sbts.edu/dctour.
For more information, go to my website at AlbertMohler.com. You can find 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'm speaking to you from Orlando, Florida, and I'll meet you again on Monday for The Briefing.