Wednesday, August 5, 2020
This is a rush transcript. This copy may not be in its final form and may be updated.
It's Wednesday, August 5, 2020. I'm Albert Mohler and this is The Briefing, a daily analysis of news and events from a Christian worldview.
Supreme Court Decides Huge Cases on Religious Liberty: Little Sisters of the Poor Win Again at the High Court
Every time, every single time, the issue of religious liberty in any dimension comes before the Supreme Court of the United States, a very great deal is at stake. And as you look at the jurisprudence and the decisions of the Supreme Court on the issue of religious liberty over say the last century, you would find a great deal of confusion, no particularly clear direction. But there are two big movements we might say in that history of jurisprudence, that would be very important for us to observe. The first took place during the 1950s, '60s and '70s. And that seemed to be a series of decisions overtly hostile to religion and religious institutions in the United States. But in the month of July of the year 2020, there were three major cases on religious liberty decided by the Supreme Court and at every single one of them, by one degree or another, religious liberty was sustained.
What are the things we need to recognize is that it took a full generation, indeed more than a generation—we're talking about five or six decades—to begin to change the direction of the Supreme Court on the issue of religious liberty at the very time in our society, keep this in mind, when the moral revolution was beginning and then gaining full strength and when the realities of the new sexual morality would run into direct conflict with the religious liberty. That's the landscape, not only behind us, perhaps even more pressingly ahead. That's why we need to look back to the month of July and those three big decisions handed down by the Supreme Court on religious liberty.
One of them had to do with the religious organizations and ministries and birth control. The other had to do with the right of religious schools to employ teachers based upon those religious convictions and principles. And the third had to do with whether or not a state can discriminate against a religious school, in this case, particularly a Christian school, when it comes to the question of state support of private school tuition. Every one of these cases is big. We'll take them beginning with the issue of birth control. This particular case brought back to the Supreme Court the order of Catholic nuns known as The Little Sisters Of The Poor, but frankly, they were standing in for any Christian or religious organization that would oppose the required coerced funding of birth control for employees and particularly for forms of birth control that may turn out to have an abortifacient effect, that is to bring about an abortion rather than merely to avoid the fertilization of the egg.
But as we're thinking about all this, we need to recognize that it wouldn't have been necessary, this case wouldn't have been envisioned, but for Obamacare, the Affordable Care Act, and the fact that under the Obama administration, the Department of Health and Human Services handed down requirements that coerced employers, including most religious employers, other than churches and synagogues and mosques themselves to offer this completely employer-funded healthcare, covering contraceptive without any cost whatsoever and, of course, the issues then arrived to the courts. All this made necessary because of the heavy headedness of the Obama administration and the lack of respect of that administration for Christian ministries, even for groups like The Little Sisters Of The Poor. You would think that just based on the optics, just based upon the public relations considerations, the Obama administration would have avoided a direct conflict with The Little Sisters Of The Poor. Frankly, it sounds like a bad joke, but it's actually a bad reality.
But in this 7-2 decision, the Supreme Court followed up on a decision it had handed down in the year 2014, known as the Hobby Lobby Decision. In that case, the Supreme Court majority found that a closely held private corporation could not be required to offer this coerced birth control and contraception coverage if it violated religious beliefs. The Trump administration, by the way, subsequently handed down a corrective to the Obama administration's policy by stating that only that religious employers could have this exemption, including Christian and other religious ministries. But also employers who might have some other conscience ground for not cooperating with this particular regulation.
But nonetheless, this arrived at the Supreme Court and we might say it arrived at the Supreme Court yet again. The Little Sisters Of The Poor—and as I've said, they're basically a stand-in in this case for any religious organization or ministry that would defy the Obamacare dictate—the Little Sisters Of The Poor, have been at this for nine years, that's almost a decade, fighting for their basic religious liberty. And there was a lot here at stake for evangelical Christians to say the very least.
In his coverage of the decision, Adam Liptak of the New York Times offered these words, "The clash between contraceptive coverage and claims of conscience is a key battleground in the culture wars. And the Supreme Court decision is likely to mobilize voters on both sides of the divide."
Now, in what sense would that be true in the mobilization of voters? Well, in two senses. First of all, we are looking at the fact that this was a decision handed down by the Supreme Court of the United States and the presidential authority, the president's sole authority to nominate persons to sit on the nation's highest court, that's very much a part of the 2020 presidential election, and it has been so going all the way back to the 1980 election, pitting Ronald Reagan against Jimmy Carter. But there's a second sense, and this is extremely important for us to understand. The Supreme Court did not give The Little Sisters Of The Poor an absolutely final victory here. It didn't say that the government had no right to hand down the regulation that was included in the Obamacare authority as exercised under the Obama administration.
Instead, the court by the 7-2 vote found that the Trump administration had the authority to issue the corrective. So what's at stake here? Well, everything. Because everything will come down to who is president in future years, because if you have a future president Joe Biden, well, we already know that he has said that he would return the policy to that which was undertaken in the Obama administration, that administration in which he served—let's remember—as vice president. Shortly after the decision came down, Democratic authorities came out against the decision announcing that it must be reversed, and if there is a President Biden, you can expect the fact that he will reverse the situation, handing The Little Sisters Of The Poor and all the rest in this predicament, right back into the regulatory hands of the federal government.
The editorial board of the Wall Street Journal got right to the point with a statement entitled “Joe Biden Versus The Nuns.” The editors wrote, "Hours after The Little Sisters Of The Poor won again at the Supreme Court, Joe Biden pledged to fight to roll back conscience protections for Catholic nuns and other religious employers who object to providing contraceptives." After several paragraphs of elaboration, the editors wrote, "Mr. Biden projects a moderate Catholic persona, so why continue fanning these cultural flames? If elected, he says he’ll ‘restore the Obama Biden policy of giving an exemption to churches and accommodation to nonprofits with religious missions, and apparently nothing for religious for-profits. By the way,” say the editors, “under his ‘accommodation,’ the Little Sisters employees would be provided contraceptives ‘through their insurance company or a third party administrator.’” As the editors say, "This sounds exactly like the fig leaf they rejected years ago."
The editors get right to the point in the final paragraph. "Harassing nuns in court for four more years won't unite the country and it makes us wonder if Mr. Biden will ever be capable of saying no to the ascendant cultural left."
Supreme Court Protects and Extends Ministerial Exemption in Two Cases Related to Religious Schools
The second big case had to do with whether or not states that offer tax-supported tuition assistance for private schools could discriminate against Christian schools or religious schools in general. The court by a 5-4 ruling said, no, there can be no such discrimination against Christian or religious schools. This case came from Montana and Montana is one of those states, by the way, a majority of states that had adopted something called a Blaine Amendment, a constitutional amendment to the state's constitution that prevents any tax money going directly or indirectly to Christian or religious schools. The high court struck that down basically, nullifying in effect the Blaine Amendments in the many states. What's the story behind that? Well, in order to understand the Blaine Amendments and the necessity of this case, you have to go back to the 19th century. Indeed, you have to go back to U.S. President Ulysses S. Grant.
In 1875, speaking to a group of veterans, President Grant called for an amendment to the U.S. Constitution to prevent any tax money ever going to religious schools. Now, what kind of religious schools were there back in the middle of the 19th century? Well, the answer is Catholic schools. Catholics, and largely immigrant Catholics coming from Ireland and elsewhere, were establishing the Catholic Parochial School System. And especially in big cities on the East Coast, they were becoming a potent political force. This was also at the very time that in the United States, in the name of democracy, there was this enormous push for civic education through the public schools, the public schools seen as a great equalizer. Well, by the time you get to the 20th century, the public schools have an additional mission that they have undertaken, which is to homogenize Americans and that meant, an anti-Christian bias and anti-religious bias that became very apparent. But back in the 19th century, there was basically an anti-Catholic animus on the part of many in the United States that led President Grant and others to demand a constitutional amendment.
Well, after the president called for that amendment, Maine Republican Congressman James G. Blaine offered such an amendment. It passed in the House, but it failed in the Senate then in the 19th century by four votes. But subsequent to the failure of the amendment at the national level, all but 10 of the states passed effectively the same language, their own version of Blaine Amendments. And again, evangelical Christians just need to understand the background of this was animus against Roman Catholics, who at that point were setting up their parochial school system. But the legacy of the Blaine amendments has been overt discrimination against religious schools of all sorts in the explosion of private education and demands for school choice after there've been so many developments, including the liberalization of the public school systems. This has led to court challenges and the decision that was handed down in July is the most important of those challenges, and even though the margin of victory was close, 5-4, it is a huge case, known formally as Espinoza v. the Montana Department of Revenue.
The direct assault upon the Blaine Amendment was clear in the majority decision written by Chief Justice, John G. Roberts Jr., who wrote, "A state need not subsidize private education, but once a state decides to do so, it cannot disqualify some private schools solely because they are religious."
Now here's an irony for you. In Montana, that might become a moot point because Montana might just to dismantle the entire program. The bigger issue might actually arrive in the state of Maine. Back there on the East Coast, the home of the late Republican Congressman James G. Blaine, who was the author of the Blaine Amendments. There's irony. Because in Maine, there is a long tradition of supporting private schools with taxpayer tuition support and now the Supreme Court of the United States has said that no state can constitutionally discriminate in that manner. It's going to be very, very interesting to see what happens in Maine.
The third of the big cases has to do with the right of Christian schools, religious schools in general, to decide on the employment of teachers, without fear of those teachers suing on the basis of anti-discrimination legislation.
As Adam Liptak, once again, of the New York Times reported, "The Supreme Court ruled that federal employment discrimination laws do not apply to teachers whose duties include instruction in religion at schools run by churches." Once again, the vote was seven, two. And in this case you had Associate Justices Ruth Bader Ginsburg and Sonia Sotomayor in dissent. In this case, Justice Samuel Alito wrote the majority opinion for the court. And in his words, "The religious education and formation of students is the very reason for the existence of most private religious schools and therefore the selection and supervision of teachers upon whom the schools relied to do this work, lie at the core of their mission.”
He continued, and this is the most crucial sentence, "Judicial review of the way in which religious schools discharge those responsibilities would undermine the independence of religious institutions in a way that the First Amendment does not tolerate." Extremely clear language. Let's look at what the justice was saying here on behalf of the court. He's saying that if religious schools have to worry about judges or other authorities, but most importantly judges, including federal judges, federal courts, determining whether they have, or have not operated by the right decisions in hiring and employing teachers, and for that matter, even defining who is a church determined teacher, Justice Alito said for the court that would undermine the right of religious schools to be religious. If there is a nonreligious authority in this case, a federal bureaucrat, or for that matter a state bureaucrat or a state court or a federal court making that decision, then those schools are not free as the First Amendment demands they must be free to operate on the basis of their own convictions.
Now, as Christians think about this, let's just ponder for a moment. There is nothing more basic to having a Christian school than the right, indeed I would argue the unquestioned responsibility of a Christian school to hire only Christian teachers and to supervise those teachers and to evaluate those teachers based upon the Christian functions that they are expected to fulfill. At the very least religious schools have the right to determine how the religion is to be taught, who's to do the teaching and whether or not it is being done rightly.
Now, in both of these two cases, the two cases that arrived in this decision at the U.S. Supreme Court, they both originated from Southern California and both of them had what lawyers would call hard facts. So these are hard cases that is to say the employment situations were complex, and that's often the case, by the way, in employment. The important thing here to recognize is that seven out of nine justices of the Supreme Court of the United States said, "This just isn't a matter for the government or even for the federal courts to determine." Now there's a background there that is also extremely important. And the background in this case is a precedent set by the court in a case known as Hosanna Tabor. That goes back to 2012 and that case came from a Missouri Synod school in the state of Michigan.
In that case, the Supreme Court ruled very clearly that religious schools have to have the right to determine who is and is not a religious teacher, in the case of this Missouri Synod school, a church appointed teacher. In the Hosanna Tabor case and in this latest case, which is known as Our Lady of Guadalupe for one of the schools there in Southern California, in both of these cases, the court underlined and helped to define what is known as the ministerial exemption. Ministerial in this case, meaning serving a religious organization, a school, synagogue, mosque, you there on the list. As a religious teacher, the ministerial exemption here has been extended to teachers in Christian schools and religious schools. Now the response to this has been very interesting, predictable, but interesting.
In the coverage from the Los Angeles Times, and I turned to that paper because the schools at issue were in Southern California, the reporter tells us that Rachel Laser, President of Americans United for Separation of Church and State said that the decision, "Demonstrates how the Supreme Court continues to redefine religious freedom—twisting what is meant to be a shield that protects us into a sword to harm others. The court elevates a distorted notion of religious freedom over other fundamental civil rights." Now wait, just a minute. The right of religious liberty is found in The First Amendment to the United States Constitution. The rights that are referred to here as, "Other fundamental civil rights," largely have to do with things that aren't mentioned and were never even imagined in the U.S. Constitution. What we're seeing here is a collision, not only of two different ways of reading the Constitution of the United States, but two different ways of understanding reality.
By the way, I have to mention another irony that is missing from the press coverage mostly because the reporters just don't know. In this case, the person is cited as the president of Americans United for Separation of Church and State. Now that sounds interesting, but what's not included in this news story and what most people would never know is that, that organization with the innocuous name Americans United for Separation of Church and State, that organization was originally known as Protestants and Others United for Separation of Church and State. And those “and others” emphatically, did not include the Roman Catholic Church, which is to say, this is an organization that is steeped in the very same ideology as the Blaine Amendments that the Supreme Court in the very same month basically struck down as incompatible with the U.S. Constitution. But the battle rages on. And in this case, Americans United for Separation of Church and State originally formed out of anti-Catholic animus has turned into an engine for radical secularization.
These three victories are absolutely huge. And again, as I began the broadcast today, this reminds us of the fact that we are in a very long and unquestionably important struggle for the future of the United States. And central to that is the question of the future of the Supreme Court of the United States. As I mentioned, if you go back to the 1950s, '60s, and '70s, you could not have expected the Supreme Court at that time to have upheld religious liberty in any of these cases, much less all of them. But it has taken more than half a century of hard work and of constitutional argument and of laying the groundwork in law schools and legal arguments, legal journals, and others, in order to form this platform by which the Supreme Court would now rule in this way. And as Christians, and for that matter as Americans, we need to ask ourselves, how would it be, if any one, much less all three of these decisions had gone the other way. It would have meant a grotesque, an enduring violation, an abrogation of religious liberty.
Christian Schools Must Be Able to Maintain Christian Conviction: A Parable from Union University
But in order to understand where we now stand, I also need to turn to another story. And this one is datelined from Jackson, Tennessee. This has to do with a Christian university, a Baptist university in Tennessee, known as Union University. It's a private evangelical Christian school. As the Jackson Sun reports there in Jackson, Tennessee, it made headline news in recent days. The headline in the Jackson paper was “Union University Rescinds Nursing Student’s Admission Due to Sexual Orientation.”
Now in this story, let's understand what we're facing. What we have found out here is that there is a Christian school operating on Christian principles and upon the dictates of Holy Scripture as a Christian institution to uphold Christian truth. Now that's exactly what we hope to find, but you can understand that in the secular world, when you find that well, a good many people are appalled.
One of them is a 38 year old who had intended to begin a three year nursing program at Union. The individual is identified as Alex Duron and nine days we are told before he was to begin classes, Union University rescinded the offer of admission “because he is gay." That quote is coming from the news article in the Jackson Sun. Duron told the paper, "I was caught completely off guard. I've altered my whole life. I had quit my job, sold a lot of my stuff and was ready to move."
Now this raises a huge question. If this individual is caught completely off guard, how exactly did that happen? As Union University been hiding its light under a bushel? Is it hiding the fact that it's a Christian institution operating on the basis of Christian morality? Well, not hardly. The president of Union University is Samuel Oliver and through the administration, the university released a statement that said, "As a Christian institution, Union University has standards of behavior for its faculty, staff, and students that are consistent with biblical teaching and historic orthodox Christian practice. We love our students and want them to thrive and succeed and we believe that a standard of conduct that honors God and submits to his authority is an important part of that success." The statement continued, "All students who apply to Union University sign a statement saying they will comply with the university's values. Those students who fail to abide by those values or who show no intention of attempting to do so are subject to disciplinary measures that can include dismissal from the university."
Well, as it turns out, when the university sent the letter to this individual rescinding admission, it cited the fact that he had actually signed the university's value statement. That statement, by the way, is very clear about the university's expectation and the student or applicant signs in agreement, or at least an absolute acknowledgement of the authority of the university to establish those guidelines. So how did this happen? How was this individual so surprised? Well, the Jackson Sun reports, "Duron said he signed the values letter hastily after the university senate to him one weekend saying he needed to sign it immediately." Nonetheless, he is stating that he was discriminated against and he is surprised.
Here's the issue for all Christians. We have to understand the responsibility of Christian schools to operate by Christian principles. In one of those big three cases handed down by the Supreme Court in July, the court affirmed the right of Christian schools to be Christian, of religious schools to uphold not only their religious beliefs in theory, but in practice and in the employment of teachers and other staff. But if religious schools are actually to be authentically religious, Christian schools are to be legitimately Christian, this has to be extended to students as well as to faculty and staff. The requirement naturally and necessarily must be that students sign on to an understanding of the Christian convictions, and that includes the moral principles of the institution, to which they are seeking admission. Students, by the way, are not sentenced to schools. They apply to schools. It is a matter of choice.
And in this case, the applicant who was expecting to go to the nursing program at Union University was discovered in one way or another to be in a same sex relationship, which was evidently very visible on social media, and without going into the details, obviously incompatible with the very statement that is required by the university. Thus, it rescinded the offer of admission and thus as well it fulfilled its responsibility.
Finally, two huge issues here. Number one, we have to be ready to go to court in order to defend religious liberty and not only to go to court, but to take whatever actions are necessary. And this means that this is a political equation because elections eventually determine the composition of the courts. And one way or another, that's true at almost every level in the United States, but certainly when it comes to the federal courts. Elections have consequences, and the future of the federal courts is one of the most important of those consequences.
But for Christians, this begins with the external threats, the outside issues that we need to watch very carefully and where we need to be ready to defend Christian liberty. But when it comes to the inside challenge, we have to understand that's an even prior and greater responsibility. Christians have the responsibility to make certain that our schools, if they're identified as Christian actually are Christian. Christian schools, colleges, Christian universities have the responsibility, if they're going to maintain any integrity, to uphold Christian truth, not only in theory, but in practice. Not only in some kind of esoteric sense of historical connection, but in the living sense of the affirmation of biblical truth. It's our Christian responsibility to make certain that our seminaries, colleges, schools, and ministries are authentically Christian. That's not the court's responsibility, that's our responsibility. And for that responsibility, we will face the judgment of God.
Thanks for listening to The Briefing.
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