Tuesday, June 2, 2020
This is a rush transcript. This copy may not be in its final form and may be updated.
It's Tuesday, June 2nd, 2020. I'm Albert Mohler, and this is The Briefing, a daily analysis of news and events from a Christian worldview.
Religious Liberty, COVID-19, and State Restrictions on Worship Intersect at U. S. Supreme Court
As the nation went into the weekend last week, eyes were on the Supreme Court of the United States because of an expected development there with the Supreme Court asked to grant relief to churches in California against the stipulations and the policies established by the governor of that state that issued severe limitations upon Christian worship. All that turned out to be very interesting because on Friday, the Supreme Court did hand down a decision of sorts. It was a decision to decline an application for what's described as injunctive relief. That means the Supreme Court did not issue an injunction staying a decision by a mixed panel of the Ninth Circuit Court of Appeals upholding the right of Governor Gavin Newsom of California to establish the restrictive policies. And make no mistake, the policies are very restrictive. Churches will be allowed to gather once again, but only up to 25% of the building capacity or a maximum of 100 attendees.
Many of the headlines after the Supreme Court's action on Friday dealt with the fact that the chief justice of the United States, John G. Roberts Jr., had sided with the four traditional liberals on the court to deny the injunction to the churches in California. Thus, it was a five, four decision. Now we have noted that when the Supreme Court acts unanimously, that is very important historically. When it rules in a five, four action like this, you're really looking at the opposite phenomenon. It's just as interesting that you have a divided court. In this case, when you're looking at five, four, it comes down to the fact that by most reckonings, there are five generally conservative justices of the Supreme Court, including the chief justice, and there are four generally liberal justices of the court.
And as we have seen over and over again, it is revealed that the four liberals on the Supreme Court vote as a bloc far more often than the four or five conservatives. But in this case, you had the chief justice side with the four traditional liberals on the court in denying the churches the injunction that they sought. And that reminds us that right now, the chief justice of the United States is the last swing justice. That is to say he is the last justice in which, on cases like this, there's really some question about where he will come down.
On issues, such as the rights of criminals, police power and other issues, you scramble the conservative liberal lines. But on issues where there is a clear liberal and conservative delineation, well, that swing vote used to be the former Justice Anthony Kennedy, but now it's the chief. The chief is conservative, but he's conservative in a different way than other on the nation's highest court. Not so much in how he reads the Constitution, but in how he understands the court.
John G. Roberts Jr. is the chief justice of the United States. It's often said that he's the chief justice of the Supreme Court, but that's not his title. He's chief justice of the United States. He is however, the chief justice of the court, and he has an outsize influence. He stands in a long line of those who have held that office as chief justice and understood that they have a very weighty institutional responsibility. They must represent that third branch of government and its interests. They must contend for an independent federal judiciary. And chief justices tend to be very concerned about the prestige and respect that is earned and maintained by the nation's highest court.
But that means that at times it is hard to know exactly how the chief justice will come down on an issue. Sometimes he comes down according to his legal convictions and his reading of the constitution, but sometimes at least in history, chief justices have ruled in such a way that they are basically waiting for another opportunity when you might have better facts in a case. That's something we also have to watch, and that might be playing into the situation related to the churches in California. But let's just take the action as it stands, and you look at the statement made by the majority of five justices and the statement on behalf of the dissenting justices. You have a very real argument here.
In his concurring opinion, the chief justice noted the fact that the governor of California has issued a rather restrictive order related to the assembly of churches. Again, up to, but not to exceed 25% of the building capacity or a maximum of 100 attendees, whichever number is smaller. That's absolutely crucial. So that means if you have a building that can seat 100, then you can actually seat legally 25. You can reopen your church, but only with 25 people in the building. If you have a building that seats 400, then you can have 100 in attendance. The problem comes down to the math. If you have a building that can seat 10,000, you can still only have 100. That's a part of the reason that the churches in California said that they were being held to a standard far more strenuous and restrictive than would apply to most of the retail establishments in the state.
In deciding against the injunction, the chief justice said, "Although California's guidelines place restrictions on places of worship, those restrictions appear consistent with the free exercise clause of the First Amendment. Similar or more severe restrictions," wrote the chief, "apply to comparable secular gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time."
Well, that's very interesting. There are three criteria that the chief included in that one sentence. The criteria came down to the fact that churches along with other assemblies gather in close proximity, large groups of people for extended periods of time. So you have a large gathering sitting in close proximity for an extended period of time. Those three criteria, said the chief justice of the United States, justify why a different set of restrictions, a more restrictive set of restrictions are being imposed upon churches rather than retail establishments, where you might have a smaller crowd, or at least they would be present for a smaller amount of time and perhaps without the close proximity. So the chief justice said, look at those three issues. On those three issues, churches are demonstrably different than other forms of business.
In rejecting the injunction, the chief ended with this sentence, "The notion that it is indisputably clear that the government's limitations are unconstitutional seems quite improbable." Now here's another technical issue that has worldview significance. The churches were seeking an injunction. In order to gain the injunction, which is a very quick action undertaken by a court when constitutional rights are at stake, the plaintiff churches had to make the argument that the state's policies are patently or obviously unconstitutional. The chief justice said, "I don't think that's right."
But Justice Brett Kavanaugh writing the minority statement in which he was joined by Justice Clarence Thomas and Justice Neil Gorsuch, he said, "I would grant the church's requested temporary injunction because California's latest safety guidelines discriminate against places of worship and in favor of comparable secular businesses. Such discrimination," said Justice Kavanaugh, "violates the First Amendment.” Justice Kavanaugh, very interestingly criticized the majority action because in the opinion of the majority, churches deserve to be treated differently than many other businesses. But in a very sweeping statement, Brett Kavanaugh responded, "In my view, California's discrimination against religious worship services, contravenes the constitution."
He looked at the request for an injunction filed by attorneys on behalf of the churches that made the statement, "Assuming all of the same precautions are taken, why can someone safely walk down a grocery store aisle, but not a pew? And why can someone safely interact with a brave delivery woman, but not with a stoic minister?" Justice Kavanaugh said that the church and its congregants, "Simply want to be treated equally to comparable secular businesses." He goes on to say, "California already trusts its residents and a number of businesses to adhere to proper social distancing and hygiene practices." He then wrote this, citing again their request for the injunction that was prepared by the churches: "The state cannot assume the worst when people go to worship, but assume the best when people go to work or go about the rest of their daily lives in permitted social settings."
One statement made by the chief justice in his argument on the issue said, "The precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement." That is undoubtedly true. These evaluations have to be made on the basis of a fact-intensive investigation and the situation in the pandemic is dynamic. That's profoundly true. We have no idea how the situation may change dynamically by the time we have The Briefing tomorrow. The world is turning that fast and issues are being redefined that quickly in the midst of this dynamic.
But the big issue here is that you do have a very strong difference of opinion, a very clear distinction in the argument presented by the chief justice of the United States and Justice Brett Kavanaugh. You are looking at two declarations. On the one hand, the chief justice said the governor's policies look reasonable and at the very least are not on their face unconstitutional. Answering from the other side comes Justice Kavanaugh to say, on their face, these restrictions are unconstitutional.
On the very same day last Friday, the Supreme Court also turned back a request from two churches in Illinois for a similar kind of relief. The governor of Illinois, J.B. Pritzker, a Democrat like the governor of California, had issued restrictions that would actually have allowed churches in Illinois to reopen, but only with an attendance limit of 10. That's right, 10. And two churches in the Chicago area appealed the governor's decision, again, arguing that the decision is unconstitutional and singles out churches to their detriment as compared to other businesses or forms of association in society. The churches’ pleas went unheard all the way to the Sixth Circuit Court of Appeals, and eventually the Supreme Court on Friday said that they were not going to hear the case either. They were not going to grant the relief that was requested by those two churches.
But here, the story turns even more interesting because the governor of Illinois rescinded that limitation of 10 before the Supreme Court took its action. Illinois then argued that the situation had become moot, but the churches in Illinois through their attorneys argued that the situation was still alive because the governor could reverse his order. You talk about dynamic. That's just how dynamic the situation we face now is.
One last twist on the action, or if you'd prefer the inaction of the Supreme Court on these issues came in the second case when the Supreme Court said that if the facts change, the churches can come back. They said that the churches could, if necessary file "a new motion for appropriate relief if circumstances warrant." As we try to point out over and over again, churches are unlikely to prevail in cases where they claim that a policy is unconstitutional if it is a generally applicable principle or policy that would apply to other similar kinds of gatherings or events. If not, then the churches are likely on a pretty solid constitutional ground in arguing that in singling out or targeting religious services, it is a patently unconstitutional act by government at any level.
But looking at this situation dynamic though it is, it's also troubling or at least we should say concerning because this is what Christians should think about in a far longer span of history. The precedents that are set in the midst of this pandemic could well become lasting in policy long after the COVID-19 pandemic is over. That's actually the greatest threat here. That danger is represented in the truism that when government starts to regulate, if it is allowed to regulate, it rarely pulls back from that regulatory authority. We'll be watching this situation very, very closely.
Cable News, Coronavirus, Chaos — The Changing Landscape of the News
And speaking of watching, there's a whole lot of watching going on in America right now. And I mean, news watching and in particular, the cable news networks. Last week, we talked about an amazing article written by a former president of CBS News, Van Gordon Sauter. But it's also interesting that today in The New York Times, we saw a major article entitled, "Record Ratings and Record Chaos on Cable Networks.” The point made by Van Gordon Sauter is the fact that the liberal media really is liberal and even increasingly so. That's a subtext, but nonetheless, an important theme of this article by Ben Smith, writing in the Media Equation column of The New York Times. He talks about the fact that in the new media ecology, in the midst of the pandemic, Americans are watching record levels of cable news and that cable news is being driven by all kinds of factors.
But from a Christian worldview perspective, let's just consider this: People tend to watch when they believe that the watching is compelling. That creates a circle or a cycle in which the producers of this news—and yes, they do produce it, they don't merely report it—they then in order to keep that attention, have to keep the headlines coming. They have to keep the interest building. They can't come back and say, "Well, this story is basically fizzled out,” because then you'd go do something else than watch their cable news network. They have to say, "There's a big breaking development and it's so important, you can't even take a break to go to the bathroom. Stay tuned, we'll be right back after this commercial message."
One of the points made by Ben Smith is that even recently it's been argued that cable news was coming to a commercial end. It was at least a dying project with the emergence of digital media spelling the end to what had been America's cable news habit. But Smith writes, "In this extraordinary news moment, the primacy of the supposedly dying medium has never been clearer its ratings higher than ever." But the background of this article is not only the COVID-19 pandemic, but the chaos on the streets of America and the aftermath of so many developments we discussed on The Briefing in recent days. In particular, the protests that began in Minnesota, but has spread to so many major American cities and there is very graphic cable news coverage that is now available 24/7.
But one of the things we need to watch is that in a fallen world, that cycle becomes very pernicious. That cycle means that as Americans believe they must watch this, they can't turn away from it. We have to pay attention to this. The cable networks, now running virtually 24/7, have an incentive to say “There's more to this story. The situation's growing worse, not better.” The headlines have to come evermore graphically or the building of this business may well hit some kind of pause.
An interesting subtext, as I said in this article is the recognition that Fox News represents the right wing of the triad: CNN, MSNBC, and Fox News. The article also acknowledges the fact that MSNBC is the left wing. That's been well established from the very beginning. MSNBC at least began in part as an effort to try to corral and capitalize on a more liberal part of the population and offer cable news for that segment. It turned out that segment is not nearly as large as the audience for Fox News, but what's also interesting and documented in this article is that CNN has migrated to the left, especially during the Trump years.
Ben Smith, looking at the ratings very closely, has pointed out that MSNBC has not done particularly well in the ratings in the context of COVID-19 because the story is not as political as other stories. Thus, it doesn't have the same right/left dichotomy or dynamic that so many other stories do. He then wrote this, "Rachel Maddow, the network's star, saw her audience in the 25-to-54 demographic, the one most prized by advertisers, fall below CNN's Chris Cuomo for the first time."
Smith then writes this later in the article, "CNN once positioned itself between MSNBC and Fox on the political spectrum. But during Mr. Trump's tenure, the network concluded that there was no profitable middle ground with a president who seeks confrontation with the media. The channel adopted an increasingly political focus, hosting dozens of Democratic primary town halls and debates. It also competes more directly with MSNBC than ever before for audience, offering Don Lemon and Mr. Cuomo as a more emotional, less cerebral alternative to Chris Hayes and Ms. Maddow." That's just really interesting and not just because of the political dynamic, liberal/conservative, left/right. It's also very interesting because the article gets right to the point that these are profit-making businesses. They are looking to make a profit.
The bald facts told us in this article in the Media Equation column of The New York Times is that years ago, CNN saw very little opportunity to build profit from the political middle. Ben Smith does have a sense of humor. Near the end of his article he writes this, "Lurking in the background for all the networks, though, is the question: How long can this last? Cable news appeared," he writes, "like much of linear television, to be in terminal decline before Donald Trump turned it into the greatest, most terrifying show on earth."
Is the Role of Journalism “Bringing Truth to the American People”? Understanding That There Is More to the Story
Finally, on this story before leaving it, USA Today, yesterday ran an article entitled, "Journalists at Work Cannot be Targets." Maribel Wadsworth, Nicole Carroll, Amalie Nash wrote the article. And the interesting argument they're making is that with some reporters arrested and others threatened, some of them even hit, we are told, with rubber bullets, there should be the concern that journalists should be protected, uniquely protected.
Now, let's be clear. From a Christian worldview perspective, we want no one to misbehave. We want no one to break the law. We want no one to be injured and we want the press to have its freedom. That's a very important issue, not only of constitutional right, but of the free flow of information. That is the essence of a free society. So all that stipulated, the interesting thing here is that you have this trio of reporters making the case that there should be a very special concern for reporters not being targeted. They then conclude, "We must be able to do our job safely. We call for an immediate end to law enforcement harassment and targeting of journalists who are clearly identified, not interfering in police activity and just doing their jobs, bringing truth to the American people."
It's those last words that caught my attention, where they say their jobs are to “bring truth to the American people.” I don't doubt that there is much truth in many reports, a great deal of truth. In some reports, an incredible amount of truth. I don't doubt that for a moment. I don't doubt the fact that the journalistic profession establishes as its own self-identity to reveal and convey and to publish the truth. But the point is from a Christian perspective, we understand it's never that easy. We understand that there is no way to take the human out of the equation. There is no way that you can talk about journalists, be they reporters and writers or editors or producers, or you go all the way through the entire network. The reality is human beings are involved at every level and human beings have their own concerns, their own perspective, and they have their own ambitions and their own prejudices and other forms of faulty thinking that are on display.
And that's true for all of us. That's what's important to recognize. In a fallen world, not one of us is a purely objective thinker. But in order to come to an understanding of the truth in a fallen world, yes, the journalistic profession has a very important role, but as the old Latin maxim reminds us, caveat emptor, buyer beware. And remember that when you are consuming the news, you're consuming a product. Always keep that in mind. You're not just a viewer or a receiver of the news. You are a consumer of the news. Caveat emptor.
A Ministry Fulfilled: Remembering Apologetic Evangelist Ravi Zacharias
But finally, for today's edition of The Briefing, I want to point to the fact that The New York Times in its print edition on Friday offered an obituary for evangelist Ravi Zacharias that took up a full half page of the print edition. That's remarkable. When you think of Christian leaders and Christian thinkers across the United States, they rarely draw this kind of attention from a newspaper such as The New York Times. It tells us something about the influence of Ravi Zacharias that the New York Times devoted a half page of last Friday's edition to his obituary.
Sadly, Ravi Zacharias died two weeks ago today, a loss for evangelical Christianity and for the witness of Christianity in the public square. Ravi Zacharias, who was born in India and came to the United States, had a life transforming experience with Jesus Christ, and he responded to a call to be an evangelist and yet a different kind of evangelist than many. He was an evangelist who used apologetics and intellectual arguments on behalf of theism and Jesus Christ, the gospel and biblical Christianity, and he did so in the public square.
As the obituary writer, Steven Kurutz said in The New York Times, "Mr. Zacharias believed that the way to counter an increasingly secular culture was to make a logical case for theism and to explain why Christianity above all other religions is best equipped to answer life's fundamental questions. His ministry's motto: Helping the thinker believe. Helping the believer think."
I'm glad to say I knew Ravi Zacharias, and as a friend, we were on platforms together and he was a man of ideas, of distinctively Christian ideas. He cared deeply about the projection of those ideas to a secular culture. He had a particular heart for young people on college and university campuses, and he was at his best, he came alive when faced with that kind of audience. Given his own biography, Ravi Zacharias was also in a unique position to be able to speak of the distinctions between the worldviews of the East and historic Christianity. He was able to stand at that intersection and to do so in a way that was true of few others.
Ravi Zacharias, as I said, died after a very short battle with cancer and died just two weeks ago. And Christians always need to remember this: No ministry if faithful, whether long or short, is without the full impact that our sovereign God had intended and will see to.
Thanks for listening to The Briefing.
I want to remind you that today, my latest book entitled, The Gathering Storm: Secularism, Culture, and the Church, is released by Thomas Nelson Publishers. From threats against religious liberty, a defense of Western civilization, redefinitions of marriage, gender and the family, to the imperiled nature of human dignity—the storm of secularism is massive, and my goal is to help Christians think through and live through these challenges with hope, confidence, and steadfast conviction.
Again, the book is entitled The Gathering Storm: Secularism, Culture, and the Church. I'll be telling you more about it, but the book is available wherever books are sold.
For more information, go to my website at 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.