Thursday, May 7, 2020
This is a rush transcript. This copy may not be in its final form and may be updated.
It's Thursday, May 7, 2020. I'm Albert Mohler and this is The Briefing, a daily analysis of news and events from a Christian worldview.
Supreme Court Battle Over Religious Liberty Continues: The Decision Will Either Violate or Validate Conscience
In some of the most expected and then some of the most unexpected ways, the Supreme Court of the United States has leapt onto the headlines in recent days. The biggest development is simply the fact that the Supreme Court justices are meeting in session. The Supreme Court is in session with the justices, not in the august chambers of the Supreme Court in Washington. The coronavirus crisis, the pandemic, has forced the Supreme Court to continue its operations basically by a virtual platform, Zoom or its equivalent, and what Americans can hear is the audio of the oral arguments before the nation's highest court.
Two big innovations here. One is the fact that the justices are not sitting in the famous chambers of the Supreme Court in the Supreme Court building in Washington. The impressive building goes back to 1935 and is itself the symbol of the United States Supreme Court. But social distancing and shelter-in-place orders have forced the Supreme Court to continue its operations by other means. The other big development is that the Supreme Court has decided to allow the American people to listen live by streaming to the audio of the oral arguments. Now, that's a very interesting development. For one thing, it's questionable how many Americans want to listen to the Supreme Court of the United States and that kind of live streaming.
Oral arguments are a part of the pageantry and a part of the important work of the Supreme Court, but they are often not all that interesting to outsiders to the court. It's for that reason that the chambers of the Supreme Court of the United States are basically the most private of all of the three major branches of government. In a sense, that's required not only for the dignity, but for the decorum of the nation's highest court. It is not supposed to be about showmanship, it is to be about the studied process of the engagement of legal arguments, texts, and ideas. But as you know, the other big news is that the Supreme Court is dealing with some very volatile issues even as the court has resumed its work under the conditions of the coronavirus. One of the most important of those issues came up just this week.
Yesterday, oral arguments were held in a case that brings up once again the Obamacare contraception mandate. Once again, the Catholic order of nuns known as the Little Sisters of the Poor are actively involved in the case. This is one of the most interesting ironies of the Obama administration, the administration of President Barack Obama. Of course, its hallmark legislation was known as Obamacare, forced through without a single Republican vote. It was considered to be the most important legislative achievement of Barack Obama. Of course, it was a massive shift in the American healthcare system. It was basically a step towards the nationalization and the federalization of medicine. But perhaps most urgently, it was the policies that were enacted in the wake of Obamacare or the Affordable Care Act that got to the issue of a confrontation with religious liberty, and it was over the contraception mandate.
The Obamacare legislation required employers who had a certain number of employees to offer to female employees free contraception coverage that would cover all FDA-approved contraceptives and it would be without any cost whatsoever to the employee. This has been a major goal of second-wave feminism going back for decades. Of course, contraception itself in terms of modern birth control, such as the birth control pill, it goes back to efforts undertaken by feminists to try to achieve what they declared to be an equality with men by being equal with men in the capacity of being not pregnant. That was an argument extended not only to contraception, but to abortion.
It's interesting to note the progression of this argument. In the mid 1960s, the Supreme Court of the United States said that women in this country have a constitutional right to access to birth control. Now that decision was based upon very dubious legal reasoning, the very lethal legal reasoning that led to Roe v. Wade in 1973. Obviously, the Constitution of the United States addresses neither abortion or birth control, but liberal justices found what they declared to be a right for a woman to access birth control in the Constitution nonetheless. But notice the distinction in the mid 1960s that a woman has a right to access birth control and what was guaranteed in the Obamacare legislation, and that is that women who are employees covered by Obamacare insurance policies must have access to and payment for birth control. That is birth control and contraception without any cost to the woman whatsoever. That's a massive shift in the argument.
But once again we saw one of the newly-created and invented sexual rights, in this case a right related to contraception, coming to direct contradiction to and in conflict with the right of religious liberty, one of the enumerated rights in the U.S. Constitution. The issue came down to whether or not religious employers could be required against their convictions to provide this kind of birth control coverage. There were two different issues here. One might be called a Catholic issue, that was the issue of whether or not an employer should be required to offer any contraception coverage to female employees. The other was a pro-life argument coming down to the fact that there was an argument against not so much contraception in general, but specifically forms of contraception, which it has been argued actually operate as abortions—early abortions, abortifacients, as they are known.
Some of the most famous plaintiffs to take this issue all the way to the Supreme Court include closely-held corporations, such as Hobby Lobby, and religious orders and organizations, such as the Little Sisters of the Poor. But this is not just a Catholic issue, it's not just a Hobby Lobby issue. It has everything to do with what is represented by those organizations and corporations, Little Sisters of the Poor and Hobby Lobby, who were willing on behalf of others to take their case all the way to the Supreme Court of the United States. Hobby Lobby won at the Supreme Court when a majority of justices ruled that closely-held private corporations could not be required to offer this contraception coverage if it violated the moral beliefs and convictions of those who hold the corporation closely as private owners.
It was not, however, a logic that the court extended to the world of even religious nonprofits. This is not only an irony, it's an absolute atrocity. The court was due to take that issue up again, but at that point it was hampered by the fact that conservative justice Antonin Scalia had died, that left the nine-member court with one vacant chair and a four-four split, which meant that the court did not rule on the issue. But it's back. It's back in a big way and it's back once again with the Little Sisters of the Poor. But again, this is not just about a Catholic order. It is about any organization, a religious nonprofit, religious ministry, Christian ministry, that holds to a pro-life position and cannot in good conscience offer this kind of contraception coverage, including abortifacients.
The oral arguments yesterday were very important. CBS News reported, "In a case that pits religious freedom against a woman's access to contraceptives, the Supreme Court on Wednesday heard arguments on whether the Trump administration can make it easier for employers with religious and moral objections to opt out of providing free birth control coverage in their insurance plans."
Well, how did the Trump administration get involved in this? It is because the Supreme Court, not acting on the issue, the Trump administration issued executive orders through the Department of Health and Human Services and other offices in the government to exempt employers who had religious or moral objections to contraception. One of the interesting things to note here is that that executive order or that set of policies was opposed not only by activists demanding a woman's access to abortion without cost, but also some states that argued that their economic burden for medical coverage would be increased by the Trump administration's order. Interestingly, one of the issues that came up yesterday, and this was largely prompted by Justice Clarence Thomas, is the fact that not one of the states has come up with a single individual whose costs would have been shifted to a single state because of the Trump administration's policy.
A background issue to all of this is that the entire issue could have been avoided by President Obama and his administration if there had been decent respect for religious liberty. It is almost as if the administration targeted religious organizations in an effort to try to offend conscience. It was unnecessary, it could easily have been avoided, it still could be easily avoided. Had the Obama administration wanted to guarantee coverage to all female employees coast to coast, it could have done so by other means that did not implicate the consciences of Christian ministries. The Obama administration under pressure did carve out exceptions for religious congregations, but the point is, that is not wide enough. It is not wide enough at all. Christian organizations, including theological seminaries, mission organizations, and even orders of nuns were not exempted by the Obama administration's policy.
The specific issue at stake in the oral arguments yesterday had to do with whether or not the Trump administration policy can stand, if it's constitutional. The arguments went both ways and it is not yet clear how the court will rule, but once again we have to face the fact that much is at stake in the Supreme Court decision, and we just have to remind ourselves underlying the fact that this is not just about an organization like the Little Sisters of the Poor. It's about any theological seminary, any Christian college or university, any Christian ministry mission organization—all could effectively be impacted by this decision and conscience will either be validated or violated.
But there were a couple of other very interesting developments on the Supreme Court front and this led to headlines that actually by my count, outnumbered the coverage of the oral arguments yesterday. One of them has to do with the fact that, for three days in a row, the most traditionally silent member of the Supreme Court, Justice Clarence Thomas spoke, raising a question. Those listening to the streaming audio heard his voice three days in a row. Justice Thomas, one of the most important conservative justices on the nation's highest court, once went 10 years, from 2006 to 2016, without asking a single question. By the way, that doesn't necessarily indicate anything. It's hard to know sometimes why the justices ask questions. They receive almost all of the arguments in written form long before the oral arguments and clearly there are some justices who enjoy the process of asking the attorneys questions, probing, sometimes indicating, sometimes not indicating at all how they will eventually decide the case. Clarence Thomas has famously kept most of his comments close, indeed so close that he didn't say anything for a decade. But now he has asked a question three days in a row and that caught attention.
Was That a Flush? Look at Moral Change Revealed in American Plumbing
But the voice of Clarence Thomas did not catch nearly as much attention from the press as the fact that the audio of Supreme Court session included at one very awkward moment, the flushing of a toilet. Allan Smith of NBC News reported the story this way, "A Supreme Court argument showed Wednesday that it's not just office coworkers who sometimes have difficulty finding the mute button during a conference call. Amid oral arguments in Barr versus American Association of Political Consultants, an unexpected sound projected clearly across the court's live audio stream, somebody flushed a toilet."
Allan Smith goes on to report, "The distinctive flush came as Roman Martinez, the attorney representing the American Association of Political Consultants, was presenting his case before the court. The high court did not immediately respond to an NBC News request for additional information on just what exactly happened on the call." I'm just going to go out on a limb here and suggest that the Supreme Court is never going to clarify that situation, not now, not in the future, not ever.
But actually looking at the coverage, the press has really missed an opportunity here and that is to consider just what is represented in moral change in the United States by either the site or the sound of a toilet. You wonder where we're going here? Well, it's interesting territory, very revealing. For most of American broadcast history, during the time of radio, during the heyday in the 20th century and the birth of television in the 20th century, for most of those decades, the toilet was simply considered to be too off-limits to either be broadcast or telecast. It was not mentioned generally, it was simply hidden. Decent people, the argument went, didn't have anything to do with talking about a toilet. It had no place in the life of entertainment or news coverage or anything else. Toilets were simply offscreen, far away from the mic, out of sight and out of earshot.
But that began to change even in the heyday of black and white television it began to change. Very interesting story behind this. The first time that the image of a toilet appeared, almost appeared, in television, was on the television comedy Leave it to Beaver. The year was 1957. The storyline had nothing to do with the toilet so much as a toilet, as the fact that Beaver and his brother were trying to find a place to hide what they weren't supposed to have in the first place, a baby alligator. The Beave and his brother, Wally, decided that they would hide the alligator in the toilet that they used. But this created a problem for the broadcasting standards, the boys were to put the baby alligator, in a toilet, that would make sense for how boys think after all, but they weren't going to be able to show the toilet. The compromise came when the producers decided to show the baby alligator inside the toilet but without showing the toilet—ever.
That was 1957, the height of the Cold War. It was also the age in which American modesty was receding into the horizon. By the time of the revolutions of the 1960s, the sexual revolutions, the moral revolutions, and yes, the revolutions in etiquette and what was considered to be decent and appropriate for broadcast television, it all changed. It changed in a big way in 1971. In 1971 in the Norman Lear comedy, All in the Family, television viewers listened to for the first time the obvious flushing of a toilet, with Archie Bunker yelling to his wife from the bathroom, even as the toilet flushed. The interesting thing for us to consider is that that was probably the last time the flushing of a toilet made national headlines. You have to go from 1971, that first broadcast toilet flush with Archie Bunker in All in the Family, to 2020 with the anonymous toilet flushing in the oral arguments of the Supreme Court of the United States.
The deeper issue here has to do with the changing moral standards in the United States. It doesn't have to do so much with the toilet. The toilet becomes a metaphor for that moral change in the United States. These days, it would be hard to shock Americans. Americans for that matter aren't so much shocked by the fact that a Supreme Court justice or some other official of the court—let's be clear, we don't know exactly whom, but somebody whose microphone was un-muted in the audio of the Supreme Court of the United States and oral arguments—somebody flushed the toilet and America is not scandalized.
But that raises an issue we actually ought to think about for just a moment. The Christian worldview doesn't deny reality. Let's also consider the fact that flushing a toilet is a civilizational achievement. The flushing toilet has saved millions of lives by removing human beings from their waste in such a way that it has vastly reduced the transmission of much bacteria and disease. That is a very good thing. One of the most important indicators of the health of a society is the ratio of flushing toilets to its population. We should be very, very thankful for this invention.
At the same time, there is something scatological about it. Scatological is an adjective that refers to the fact that there are certain human processes that ought not to be talked about too much in public. In its actual linguistic rootage, that word actually gets to the process of elimination itself. Again, it is a part of what it means to be human, but it does tell us something that human beings tend to find the ill-timed toilet flush to be an inescapably funny. It also reminds us that so much of the humor and the popular entertainment in the United States and elsewhere has become so absolutely crude, so crude that we don't even think about the fact that there once was an era when that kind of crudity would not have been allowed on broadcast or telecasts.
But those days are long gone. We are in a very different world, a world in which crude sells, in which crude has become even a matter of advertising in some cases. But there was something almost remarkably innocent about that unexplained toilet flush in the oral arguments of the United States Supreme Court. Guess what? Those associated with the court turn out to be human too. Human in every way. Human in needing a toilet, human in using a toilet, and evidently human in failing to mute the microphone when it would have been an opportune moment. I must admit, I would like to be a fly on the wall when the chief justice of the United States has a private conversation with his fellow justices about decorum and, for that matter, technology, how to use that mute button and, as one justice indicated, they also need training in how to unmute.
LGBTQ Endorsement Clarifies Joe Biden’s Campaign: Sexual Liberty Wins, Religious Liberty Loses
But next, shifting to another big issue that almost assuredly will appear before the United States Supreme Court once again in some form. As we're thinking about the collision between the sexual revolution and religious liberty, NBC News and the Associated Press, both offered the headline, "Biden endorsed by U.S.'s largest LGBTQ group on notable anniversary." Well, that's an awkward headline, but the story is very important.
"On May 6, 2012, Vice President Joe Biden declared on NBC’s Meet the Press that he supported the legalization of same-sex marriage, getting out ahead of his boss, Barack Obama, on one of the most volatile political issues of the day. The largest national LGBTQ rights organization, the Human Rights Campaign, formally endorsed Biden for president on Wednesday, the eighth anniversary of that event."
Let's go back to the event for a moment. It was as vice president of the United States on May the sixth of 2012 on the program, Meet the Press, that Joe Biden did say that he supported the legalization of same-sex marriage. Now, the Obama-Biden ticket when it ran for president and vice president in 2008, opposed the legalization of same-sex marriage. This was in the context of the 2012 race. President Barack Obama had not yet formally endorsed same-sex marriage, although he had been giving hints, more than hints we should say, during the years and months previous but he had not demonstrated the political will to actually put himself out on the issue in the midst of the election. But the vice president effectively opened the barn door and left it open so that the president would have to respond, and so a few days later, President Obama said that he too supported the legalization of same-sex marriage.
Now, at the time, it was no surprise that this is what the president or the vice president believed, rather Obama and Biden had been playing a game of charades for a matter of years at which they seem to deny their support for the legalization of same-sex marriage while they gave explicit support to political efforts to legalize same-sex marriage. They were reaching out to the LGBTQ community in a very big way and their signaling was clear. But it tells you about moral change in the United States that in 2008 they felt they had to be opposed to same-sex marriage to get elected, but in 2012, that's just four years of distance. In 2012, they believed it was to their political advantage, if not necessity, to endorse the legalization of same-sex marriage.
When it comes to President Obama, the situation was even more complicated. As a state senator in Illinois, he had indicated support for the legalization of same-sex marriage until he ran for the United States Senate just a couple of years later, when he said he opposed same sex marriage. He opposed same-sex marriage again in 2008, but reversed his position again in 2012, meaning that in 2012, President Obama was for what he had been against, which he had been for before he was against. That's just extremely revealing about the way politics works and about how moral change works. Politicians on the left, moving in a progressive direction have to balance just how honest they're going to be about what their positions actually are because they want to be seen as on the leading edge of the majority of the American people, but not out on a limb. In 2008, they would have been out on a limb. In 2012, it obviously felt safe to President Obama and Vice President Biden to go explicit with their support for same-sex marriage. That was three years before the Supreme Court decision, the Obergefell decision, that legalized, required the legalization of, same-sex marriage in all 50 states.
So the bigger issue here is not just looking at the game of charades that have been played by the then president and vice president, but to look at how moral change had taken place in the United States between 2008 and 2012. To this day, no one knows exactly what went down eight years ago yesterday on Meet the Press. Was that an orchestrated effort by the Obama administration or campaign to try to get the issue out? Was it orchestrated to make it look like the vice president had opened the door and lifted open for the president, or had the vice president actually gotten himself out in front of the president? Either one is plausible because Joe Biden is known for saying things that are inopportune and ill-timed, but it's also a matter of politics that sometimes these things are very carefully orchestrated. That, oops, you just heard is not a reflection of an accident.
But the importance of the headline news story today is the fact that yesterday the nation's largest LGBTQ rights organization did endorse the former vice president. As NBC said, "The endorsement itself is no surprise given the antipathy that most LGBTQ activists have towards Biden's rival, President Donald Trump. But," said NBC, "the timing is a way of highlighting Biden's bona fides among activists who gratefully remember his 2012 roll."
There's another very interesting dimension to this story, and it's theological. The Roman Catholic Church, of which Joe Biden is very publicly a member, officially teaches that marriage is and can only be the union of a man and a woman. The Roman Catholic Church still, in its official catechism, makes very clear that a same-sex orientation is itself objectively disordered. But the fact is that as the sitting vice president in 2012, Joe Biden, the Catholic, officially defied Catholic Church teaching. The point is, he has done that on the issue of abortion for a very long time.
It is clear in the news coverage today about the endorsement yesterday that the LGBTQ rights organization and other major organizations are going to be trying to make this an issue, an issue to the advantage of Joe Biden in the 2020 presidential election. By the time you get to the platforms of the two parties, the distinctions are going to be incredibly clear. But in conclusion, the reason I brought up the Catholic issue related to the former vice president, almost assuredly now the 2020 Democratic presidential nominee, is the fact that when it comes to the collision between sexual liberty and religious liberty, the former vice president has made his intentions clear. He's going to go with sexual liberty even at the expense of religious liberty. It's what the Obama administration did when in office. That's why today, with the hearings before the Supreme Court, we're talking about the Obamacare contraception mandate. It's the position that is now being taken by the former vice president and soon to be Democratic nominee, who as president when it comes to LGBTQ issues, has signaled the very same direction: Sexual liberties win, religious liberty loses. This endorsement of Joe Biden certainly is not a surprise, but at the same time, it really is important.
Thanks for listening to The Briefing.
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