Monday, August 3, 2020
This is a rush transcript. This copy may not be in its final form and may be updated.
It's Monday, August 3, 2020. I'm Albert Mohler and this is The Briefing, a daily analysis of news and events from a Christian worldview.
The Supreme Court Favors Casinos Over Churches: Malpractice at the Nation’s Highest Court
Welcome to the new season of The Briefing. Over the course of the last several weeks, there have been massive developments, many of them directly involving the Supreme Court of the United States: decisions on abortion, birth control, religious schools, many other issues to which we will turn. There's unrest in the society and on the streets of major American cities, most notably, cities such as Portland. We have continuing controversy over racism and policing, and at the deepest level, we have a revelation of an even more basic clash of worldviews than most Americans could ever have imagined as possible.
We've reached the point in the beginning of August 2020 that the looming question over so many of our contemporary controversies is this, was the formation of the United States of America a mistake? We'll be turning to that question and all the related issues. We're looking at unrest in the media and in government. And of course, when we speak of government, we're looking at the 2020 American presidential election looming over everything. And it becomes an amplification chamber for just about every conceivable issue. All of that's going on at the very same time. The most pressing question, by the way, related to the 2020 presidential election is the choice by former Vice President Joe Biden of his running mate as the head of the Democratic ticket, looking to the 2020 presidential race. And time's running out for Mr. Biden as both of the party conventions in so far as they are going to meet are about to meet. And of course, that just underlies the fact that we are in an unprecedented season politically as well as in every other dimension of life.
And the background reality to all of this, of course, is the global pandemic of what is known as COVID-19 and the associated coronavirus. We are looking at the reality that just as the month of August began in the United States, we passed a very tragic milestone with over 150,000 Americans dead of COVID-19.
But of all the issues, and I could imagine more than 100 issues to which we could turn for the very first consideration of this new season of The Briefing, there's one issue that appears to me to be most important and urgent. And that is a very tragic case of malpractice by the justices of the United States Supreme Court. In particular, by five of those justices.
The name of the case was Calvary Chapel vs. Sisolak. In this case, Sisolak is Steve Sisolak, the governor of Nevada. And this was a case that the court decided not to take. Now, they considered whether or not they would take the course and they denied temporary relief by means of an injunction that had been sought by this evangelical congregation in rural Nevada. The complaint of the church is very straight forward and it is easy to understand. The governor of Nevada had handed down an edict in the midst of COVID-19 that limits the total attendance in any church service to 50. Now, that's to be contrasted with the fact that major businesses, including businesses that draw thousands of people such as the casino industry, the larger gambling enterprise in Nevada, are allowed to go up to 50% of capacity.
By any definition, you are looking at a targeted, non-neutral abrogation of this church's religious liberty. They're being singled out. This is not a generally applicable law. The whole point is you can go to the casino but you can't go to church, at least under the same circumstances. This followed within a matter of weeks another case that had come on appeal from a church in California, but the facts in the case of the church in Nevada are very different. So different as a matter of fact, the unconstitutional nature of Governor Sisolak's order so transparent, that even people on the other side, that is on the far more liberal side of the political and legal equation, expected the Supreme Court to take the case and to grant at least temporary relief to this church in anticipation of the fact that the church would win the case on its merits when it could eventually be heard.
But instead, in a 5-4 decision, the Supreme Court of the United States decided not to take the case. And in this particular case, as tragically in so many similar cases as we've been looking at the Supreme Court over the last several months, the Chief Justice of the United States, often identified as a conservative because he was appointed to that role by former President George W. Bush, he sided with the four liberals on the court. The four conservatives issued very strident and clear dissents. The most extensive dissent was authored by Justice Samuel Alito and he was joined by Justices Clarence Thomas and Brett Kavanaugh. Justice Alito, joined by the other two justices said, "The constitution guarantees the free exercise of religion. It says nothing about the freedom to play craps or blackjack, to feed tokens into a slot machine, or to engage in any other game of chance. But," continued Justice Alito, "the governor of Nevada apparently has different priorities."
The dissent continues, "Claiming virtually unbounded power to restrict constitutional rights during the COVID-19 pandemic, he,” meaning Governor Sisolak, “has issued a directive that severely limits attendance at religious services. A church, synagogue or mosque, regardless of its size," and this means in this case both the building size and the congregational size, I would insert, "may not admit more than 50 persons, but casinos and certain other favorite facilities may admit 50% of their maximum occupancy. And in the case of gigantic Las Vegas casinos, this means that thousands of patrons are allowed." Remarkable clarity coming here from Justice Alito. He continues, concluding in this paragraph something that's very important. "That Nevada would discriminate in favor of the powerful gaming industry and its employees may not come as a surprise, but this court's willingness to allow such discrimination is disappointing." Justice Alito, joined by Justices Thomas and Kavanaugh said, "We have a duty to defend the constitution and even a public health emergency does not absolve us of that responsibility."
Now, as I began, I said that I'm turning to this story, first of all, precisely because it is a case—a tragic case—of malpractice by the United States Supreme Court. “Malpractice” is a word that I chose very carefully. It means it is a violation of the practice that is to be expected as the responsibility of an entity. In this case, the practice that should be expected of the United States Supreme Court is that it would uphold the United States Constitution because that is its central and essential role. Justice Alito went on and elaborated a great deal, but his point becomes extremely clear when you consider the fact that on page eight of his dissent, he points out the hypocrisy of the Nevada Governor in this case. "Calvary Chapel has also brought to our attention evidence that the governor has favored certain speakers over others." Continuing, "When large numbers of protesters openly violated provisions of the directive, such as the rule against groups of more than 50 people, the governor not only declined to enforce the directive, but publicly supported and participated in a protest."
So the governor says no more than 50 under any circumstance like this, but when you had protesters on his side of the political argument, or at least to whom he was going to politically pander on the streets there in Nevada, he not only did not enforce his own directive that he now enforces against churches, but he joined in the protest. And as Justice Alito pointed out, "He even shared a video of protesters standing shoulder to shoulder." As Justice Alito went on to say, "The state's response to news that churches might violate the directive was quite different.” The attorney general in Nevada, we are told, is reported to have said, “You can't spit in the face of the law and not expect law to respond."
A second dissent, an outrage dissent, was issued by Justice Neil Gorsuch. And it turns out to be one of the shortest but most pungent dissents in the history of the United States Supreme Court. It is probably right at about 100 words. Justice Gorsuch said, "This is a simple case. Under the governor's edict, a 10 screen multiplex may host 500 moviegoers at any time. A casino too may cater to hundreds at once with perhaps six people huddled at each craps table here, and a similar number gathered around every roulette wheel there. Large numbers and close quarters are fine," he says, "in such places. But churches, synagogues, and mosques are banned from admitting more than 50 worshipers no matter how large the building, how distant the individuals, how many wear face mask, no matter the precautions at all."
Justice Gorsuch then very memorably concluded, "In Nevada it seems it is better to be in entertainment than religion. Maybe that is nothing new," he said, "but the First Amendment prohibits such obvious discrimination against the exercise of religion. The world we inhabit today," he said, "with the pandemic upon us poses unusual challenges, but there is no world in which the Constitution permits Nevada to favor Caesar's Palace over Calvary Chapel." Now, in the usually rarefied and dignified language of the Supreme Court of the United States, that's an incredible statement. I repeat it: "There is no world in which the Constitution permits Nevada to favor Caesar's Palace over Calvary Chapel." That amounts to outrage.
Now, as I said, Justice Alito's dissent was joined by Justices Kavanaugh and Thomas, but Justice Brett Kavanaugh also wrote a dissent to continue the argument. He began by saying, "I join Justice Alito's dissent in full and respectfully add these further comments." These further comments were actually quite important. But at one point he said this, "Nevada has offered no persuasive justification for that overt discrimination against places of worship. The risk of COVID-19 transmission," said Justice Kavanaugh, "is at least as high at restaurants, bars, casinos, and gyms as it is at religious services. Indeed," said the justice, "people congregating in restaurants, bars, casinos, and gyms often linger at least as long as they do at religious services."
Now, a part of what is demonstrated in these three dissents is the fact that this church, Calvary Chapel of Dayton Valley in Nevada, had actually gone to extreme plans when it comes to health practices, social distancing, the wearing of mask, over and above what is required or expected of the casinos that are allowed to have thousands of people so long as they do not exceed 50% of capacity. Observers of the case knew exactly what they were seeing. At the Washington Post, Columnist Henry Olsen wrote an article, a column with a headline, "John Roberts Strikes Again: Conservatives Should Be Furious." The most important line in this article is this: "A Nevadan who worships Lady Luck, therefore is treated more favorably than one who worships God." Again, he knows exactly what he's seeing here.
At Vox, Ian Millhiser wrote an article with the headline, "The Supreme Court's Surprising Decision on Churches and the Pandemic, Explained," but the subhead is even more important. "Nevada churches brought an unusually strong challenge to the state's public health rules, but they lost anyway." An article by Richard Wolf at USA Today ran with the headline, "Supreme Court Says Nevada Can Impose Tighter Virus Limits on Churches Than Casinos." At the Wall Street Journal, the editorial board released a statement with the headline, “Rendering Unto Caesars Palace.” The editors wrote, "The Supreme Court has in recent years strengthened protections for religious liberty, but during the pandemic, it has been missing in action." In the next sentence, the editors accused the Supreme Court of abdicating its responsibility.
There are so many issues to consider here, but one of them is the role of the chief justice of the United States, Chief Justice John G. Roberts Jr. What is he doing here? What was he doing in the abortion case? What was he doing in the LGBTQ rights case? What is he doing siding with the liberals? Has he turned liberal? Well, there is a lot to consider in answering and asking that question. But as we think about Justice Roberts, one of the things we have to note is that even though it was intended that the Supreme Court of the United States would be the least dangerous and least political branch of the three branches of our national government, the fact is that it is still political. This is obvious now. You're looking at the fact that we now routinely refer to justices by the president and the party of the president who nominated the justice to office. And of course, we're also looking at a confirmation process that is not only a political circus, it is political in every imaginable dimension.
How does that play into this case? Well, this summer, and in particular over the last several months a pattern, a two-fold pattern, has become clear with Justice Roberts. There are other issues to consider, but at least these two things appear to be applying. One is when it comes to decisions on voting rights or voting systems and when it comes to questions of handling the pandemic. Justice Roberts on both of those issues seems to have a very important political interest in deferring to local authorities. When you look at the court's decisions over the last several weeks when it comes to voting issues, the Supreme Court, and especially the chief justice, have said, "We don't want to touch it." And when it comes to these pandemic rules, the court appears, with the chief justice's leadership, to be following the same direction.
Now, if you're thinking about that explanation, at least in part telling us what the chief justice is up to, the context of the 2020 presidential election, in which the future of the court is very much a part of that controversy, would be part of the explanation. But here's the malpractice issue. The Supreme Court of the United States must not, and the chief justice, even more importantly, of the United States, must not be political in such calculations. The responsibility of the court is to uphold the Constitution and not to forego that responsibility one out of every four years because of a national presidential election, with the Supreme Court itself at issue in the election.
Why Is the Media Negatively Portraying Churches in the Pandemic?
At this point, I also want us to consider some of the press coverage about churches and the coronavirus. Two articles in particular, one of them ran on July the 9th in the New York Times with the atrocious headline, "Churches Open Doors and the Virus Sweeps In." It was by a team of reporters: Kate Conger, Jack Healy, and Lucy Tompkins. The headline was bad enough, but then they go on to say, "The virus has infiltrated Sunday sermons, meetings of ministers and church youth camps in Colorado and Missouri. It has struck churches that reopened cautiously with face masks and social distancing in the pews, as well as some that defied lockdowns and refused to heed new limits on numbers of worshipers."
But then you jump down and you say, where are the numbers behind the story? And four paragraphs into the story we read this: "More than 650 coronavirus cases have been linked to nearly 40 churches and religious events across the United States during the pandemic." 650? For Christians operating from a biblical worldview, every single human life is precious, but in the midst of a plague or a pandemic, we have to do some math. 650 here over against a confirmed 4.75 million cases of COVID-19 in the United States.
Now, notice something here. I am not saying, I am emphatically not saying that only 650 cases of COVID-19 can or should be traced to a church or religious service meeting. I'm not saying that. I am saying that the New York Times documented only 650 cases and used that as justification to run what was in the print edition, a half page of the paper. This tells us that there's something behind the story other than the math. There's indeed something behind the story other than the story.
And this gets even more complicated when you consider the fact that that was the 9th of July. On the 21st of July, do your own math, more than 10 days later, Jorge L. Ortiz of USA Today ran an article which was headlined, "Houses of Worship Can Be Dangerous Environment." And what numbers does Ortiz cite? "Almost 40 places of worship and religious events have been linked to more than 650 cases of the coronavirus since the pandemic began, according to tracking by the New York Times." That's lazy journalism at the very least. You're talking 10 days later and all this reporter cites is the number from the New York Times more than 10 days old, and a number that didn't justify the New York Times article in the first place.
There's something going on behind these stories, more than the math. It tells us something of the view of the secular media towards churches and church services.
Honoring Christ, Loving God, and Loving Our Neighbor: The Christian Church in the Age of COVID-19
But of course, as Christians, let's go back to the Christian worldview. As Christians, we should be very, very concerned about whatever risk, any risk that might be associated with the fact that we would meet under the conditions of COVID-19 and the pandemic or how we would meet. And this gets back to an argument that I have sought to make consistently from the beginning of this pandemic. As Christ himself said, we are to first understand the greatest commandment is love of God, and the second, like unto it, love of neighbor. Love of God and love of neighbor means that we must obey God in all things. And that of course comes down to the fundamental issue of obedience, and love of neighbor comes down to the fundamental realities of respect and care.
Out of obedience to God and to God's Word and passages such as Romans 13 and out of love of neighbor with respect and care, I have argued that churches should cooperate with authorities and should respect and follow guidelines handed down that are reasonable and neutral and generally applicable. I didn't come up with those words, especially the second two. When you come to “neutral” and “generally applicable,” that is the very wording of the Supreme Court in its tradition of defending the free exercise of religion in the First Amendment to the US Constitution. Laws that are not neutral or generally applicable are on their face likely to be unconstitutional in restricting a church.
But if the rule, if the regulation or the policy is neutral and generally applicable, then it probably is justified, at least in some sense for some time. Generally applicable laws or regulations and guidelines would come down to things that are very easy to understand such as regulations for elevators or for parking spaces. Zoning laws, they can get complicated, but the bottom line is there is no justification for any negative or non-neutral application against a church or any kind of religious entity that would violate the letter and the spirit of the First Amendment to the US Constitution. A church or a religious camp or a Christian school would follow the same health regulations as any other enterprise of similar size and operation in this society.
It is also clear that there have been many government officials who have gone over the line. There have been legal authorities, constitutional authorities who have acted unconstitutionally. In Louisville, we had a mayor who at one point was not going to allow drive-in services for churches, but did allow drive through liquor stores. That's just one example and place by place, jurisdiction by jurisdiction, there have been other kinds of unconstitutional restrictions.
Months ago I pointed out, early in the COVID-19 pandemic, that you had health authorities in at least one California county who were already identifying exactly who could and could not sing or speak in a service. And well, it went on from there basically to dictate, at least by inference, the form of a Christian worship service. That is unacceptable. Similarly, I have warned that the use of the word “essential” or “nonessential” as a cognate is out of place when it comes to government officials speaking about churches, congregations, religious organizations. I believe that deeming any kind of congregation, mosque, synagogue, or church nonessential is on its face unconstitutional. It's not the right of any government to say so. That's above government's pay grade.
But in the context of the COVID-19 pandemic, churches and congregations are trying to figure out what to do, and no shortage of controversy there either. Controversy emerged in evangelical circles with a statement that came days ago from Grace Community Church in Sun Valley, California. The title of the statement was, "Christ, Not Caesar, Is Head of the Church." And that title gets to an essential point. Of course, Christ, not Caesar, is head of the church. The church was basically calling for civil disobedience in the face of the fact that California Governor Gavin Newsom has basically made it largely impossible for congregations of any size to meet, at least indoors. In essence, if not in exact wording, the Grace Community Church leadership was calling for an act of civil disobedience over against the governor's order.
At one point in their statement, the Grace Community Church leadership says, "Pastors who cede their Christ-delegated authority in the church to a civil ruler have abdicated their responsibility before their Lord and violated the God-ordained spheres of authority as much as the secular official who illegitimately imposes his authority upon the church." That statement is true on its face, of course, but the application of that principle in context will vary from congregation to congregation, place to place. In the COVID-19 pandemic, we have a complicated situation of multiple and diverse and overlapping jurisdictions. We also have a difference of context, even from one community or state to another. We have 50 governors with 50 states, and we also have health regulations that are handed down by local officials, whether city or county.
And every Christian congregation—and I'm an ardent congregationalist so I'm speaking to congregational churches here—every congregation will have to make a decision through its leadership as to how it will apply New Testament principles and indeed the Lordship of Jesus Christ, and yes, love of God and love of neighbor in the context of the pandemic. I believe that in the main, Christian churches and Christian leaders should respect all temporary, neutral, and generally applicable guidelines that are handed down by appropriate government and health officials in the midst of the COVID-19 pandemic.
There is, of course, a very clear New Testament principle about the Lordship of Christ. And yes, we do bend the knee to Christ and never to Caesar. And the New Testament does tell us of the responsibility not to forsake the assembling of ourselves together. The New Testament tells us about Christian worship under the Lordship of Jesus Christ, which is the congregation gathered together in order to observe and practice the ordinary means of grace. And that points to the centrality of preaching and in worship, also the fact that we sing. We encourage one another through psalms and hymns and spiritual songs. But even as those things are made clear as is the practice of the church in gathering in the main on the first day of the week in honor of the Lord Jesus Christ’s resurrection from the dead, there is no specific reference to the frequency. There is no specific application to how this has to be understood under different kinds of contexts, such as a pandemic. There is no particular reference to meeting indoors rather than outdoors. And there is no New Testament reference to worship that has to do with the regulation or the necessity of choirs or orchestras. I like both, by the way, and enjoy them in worship.
But the reality is that Christians have had to be adaptable throughout the Christian centuries, more than two millennia of Christian experience. And yes, I long for the day when we all, all of our gospel congregations are back all together in our buildings and when we are able not to be restricted in any way in the assembling of ourselves together. I look forward to a day when we are past face masks and social distancing, and we can return to the way we knew the gathering of ourselves together before. And of course in the midst of this, I think Christians at the very least should respect one another and pray for one another. As individuals and Christian leaders and congregations, we should pray for an end to this pandemic. We should pray for the health of our churches and the health of all people.
We need to pray that the leadership of every gospel church would be rightly directed by Scripture under the Lordship of Jesus Christ to be a model of obedience to God and of respect and love and concern for neighbor. We need to demonstrate courage and commitment, and we need to pray for discernment. We need, at this point, to call out the malpractice of the United States Supreme Court and do our very utmost to avoid any malpractice of our own. And in all of this, if we're going to act like Christians, we have to think as Christians. That's why we gather together for The Briefing. And that's why, as we look at the current moment, there is more than enough for us to consider for the season ahead. A lot of issues to which we will turn very quickly, but I want to thank you for joining me for this first episode of the new season of The Briefing today.
Thanks for listening.
For more information, go to my website at AlbertMohler.com. You can follow me on Twitter by going to twitter.com/albertmohler.
And of course, we're looking forward to gathering together our faculty and students in the Southern Seminary and Boyce College communities. We're going to open the campus once again, Lord willing, on August the 6th. We'll be welcoming students back beginning on the 14th of August, and we just can't wait to be back in the classrooms beginning on August the 17th. For more information, go to the website sbts.edu/backtocampus. That's sbts.edu/backtocampus.
For more 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.