Wednesday, August 19, 2020
This is a rush transcript. This copy may not be in its final form and may be updated.
This Wednesday, August 19, 2020. I'm Albert Mohler, and this is The Briefing, a daily analysis of news and events from a Christian worldview.
Urgent Question One: Can a Christian Share the Gospel in a ‘Free Speech Zone’ on a College Campus in Georgia?
[An update to the story: Georgia's attorney general, Christopher M. Carr, has informed me that he emphatically does not identify the gospel of Jesus Christ with the language of fighting words when it comes to constitutionality. Since assuming his post, he has worked with Georgia Gwinnett College to change its blatantly unconstitutional policy. Further, as soon as he became aware of the argument being made by the state on behalf of Georgia Gwinnett College against Chike Uzuegbunam, namely, that Mr. Uzuegbunam's proclamation of the gospel on Georgia Gwittett College's campus could be considered as "fighting words," he removed that argument from the case. I want to express appreciation to Georgia attorney general, Christopher M. Carr, for reaching out personally and making that point. It was really good to hear.]
Today, we're going to start with two huge and urgent questions. Number one, can a Christian share the gospel of Christ in a free speech zone on an American public university campus? The second question, can a Christian wedding photographer who believes that marriage is a union of a man and a woman be compelled to use her artistic skill to portray a same sex wedding? Both of these issues recently taken up by the federal courts, both of them of urgent importance. We'll turn first to the free speech case having to do with the gospel and in this case, the dateline is from Gwinnett County, Georgia, Lawrenceville, Georgia.
That's shocking in itself because we're talking here about a public university that said to a student who had gone through the entire process to reserve a very limited space in a "free speech zone" that was only available on limited terms, who had previously tried to bear witness to Christ and had been told he could not do so, except in one of these zones with permission. He got the permission, he made the reservation, and yet that wasn't enough. Eventually, the college authorities told him that he could not bear witness to the gospel of Jesus Christ, couldn't give his testimony, couldn't street preach in this context because it was a public university.
Thus, the argument was this is violating the separation of church and state, you have no right to talk that way here and to create a ruckus with students who might not want to hear what you have to say. This story made the New York times this week. Adam Liptak writing the sidebar column for the New York Times begins this way, "A few years ago, a college student in Georgia stood on a stool outside a campus food court to talk about his Christian faith. He spoke for 20 minutes about human frailty and the possibility of salvation when school officials told him he had to stop or face discipline." The reason this story broke this week is because of what follows.
"This fall, the Supreme Court will hear arguments on whether the student, Chike Uzuegbunam, can sue the officials for violating his First Amendment rights when they enforced a particularly severe version of the school speech codes that have become commonplace at colleges and universities around the nation." Well, let's just back up a moment. What in the world is a speech code? A speech code is indeed something that has become repressively more present on American college and university campuses and in some other public spaces as well.
The speech codes say what you can say and you can't say, and given so many of the moral revolutions around us and given the reality of the therapeutic culture where so many people say they are harmed by mere speech, the reality is that these speech codes cut down on particular forms of speech and in this case, in particular, on a young man who was bearing witness to his faith in the Lord, Jesus Christ and was speaking biblically about the gospel of Christ.
Liptak, a veteran reporter for the Supreme Court and the federal courts for the times goes on to say, "Mr. Uzuegbunam had tried to comply with the rules at his school, Georgia Gwinnett College, a public institution in Lawrenceville, Ga., that sprawls over 260 acres. The college had designated two small patches of concrete as 'free speech expression areas.'" Now, that's a pretty fascinating, indeed, ominous reality in itself. We're talking here about a college. Aren't colleges about free speech? Didn't the free speech movement begin on a college campus? We're talking about the University of California at Berkeley in the 1960s.
Aren't we talking about a First Amendment freedom? And aren't we actually talking about the combination of two First Amendment freedoms, the freedom of speech and the freedom of religion? Aren't we talking about something that shouldn't ever have to reach the federal courts in this way? Yes, of course we are, and that's the point. By the way, the lawyers from the Alliance Defending Freedom who had represented Mr. Uzuegbunam, they pointed to the fact that we are talking about an incredibly restricted space on this public college campus. Indeed, they presented evidence that if the campus were to be reduced to the size of a football field, the two free speech expression areas would have combined been about the size of a sheet of paper, about eight and a half by 11 inches on a football field.
That tells you something of how free speech had become expendable at Georgia Gwinnett college. The lawyers estimated the so-called free-speech expression areas, and by the way, that implies that free speech only applies in those areas on a public college campus, they amounted to 0.0015% of the campus. Liptak then writes, "The free speech zones were available, moreover, only on weekdays and only for four hours on most days and two on Fridays. Students could reserve them once every 30 days." Well, Chike Uzuegbunam did so, and he stepped onto his stool as Liptak said in August of 2016. At a news briefing, the young man said, "All I wanted to do was to share with other students the faith that has changed my life."
Liptak then summarizes, "A campus police officer told him that he could distribute literature and have one-on-one conversations. But public speaking in a free speech zone, the officer said, amounted to disorderly conduct." Well, we'll have to make the story a bit short here. Mr. Uzuegbunam sued the school and the school eventually backed down, but before the college actually backed down, it and the attorney general of Georgia made some genuinely horrifying arguments. Christopher M. Carr, the Republican attorney general of Georgia actually suggested to the court that the young man's open-air speaking "arguably rose to the level of 'fighting words.'"
Continuing in the statement to the court, "Plaintiff exclaimed a divisive message directly to a group of 'many' individuals while standing on top of a stool, and, in doing so, actually caused a disturbance.." That phrase fighting words is so ominous because it does have a basis in United States law, and it goes back to the fact that the courts have found that certain speech that might lead directly to some kind of violent action would be impermissible. Similarly, one of the most famous curtailments on the freedom of speech is as the Supreme Court ruled that a citizen cannot yell fire in a crowded theater.
You can understand the category of fighting words or fire in a crowded theater when there is no fire, and understand that those words could directly lead to injurious action, but in the case of this young man at Georgia Gwinnett college, we're talking about someone who may have been speaking loudly, but what he was speaking was his own testimony of a gospel of Jesus Christ. Now the argument that came from the attorney general and started with the college is that this was divisive, that it caused a disturbance, that there were students who didn't want to hear what Chike Uzuegbunam had to say, but that's the whole point of free speech. By the way, any free speech that really matters is free speech that is going to disturb someone.
That is so basic to the American understanding of constitutional liberty that it not only goes back to our constitution. It long precedes it, but this also tells us something even beyond the legal arguments about where we stand as Christians in the early years of the 21st century. Here's where we stand Christian witness, Christian speech and as we shall see, even bearing witness to biblical truth concerning marriage, sex, gender sexuality, you go down the entire list. All of this can now be described by the current, very dangerous parlance of hate speech. Now, no doubt Christians understand that speech can be used in a hateful way, but the category of hate speech itself is a violation of the very logic of the First Amendment.
It means that there are certain kinds of speech that aren't allowable because someone, some judge, some court, some bureaucrat and a college, someone somewhere will say that's designated as hate speech, and furthermore, you will know that those authorities are not saying that speech is wrong, making a moral point. They're saying that speech is forbidden. Now there's something else we have to recognize here. I mentioned the therapeutic age. We have allowed in this country, the notion to gain space and to gain momentum that there are certain forms of speech that cause harm, but in this case, we're talking about emotional harm. Now again, Christians do understand this.
We understand that certain kinds of speech can cause emotional harm. Here's something else we understand. We even understand that bearing witness to the gospel can bring about an emotional response. There's a sense in which the gospel itself does, by the modern therapeutic definition, cause a certain amount of harm to one's dignity if one's dignity requires that we never know that we are a sinner. The Bible is extremely clear about that, and not only that, the Bible is emphatically clear about what sin is, right down to the details.
In sum, this tells us a great deal about where we are long before we get to the case of Mr. Chike Uzuegbunam, but we are also looking at the fact that this was a real life conflict that led to a real life shutdown of this speech by a young man on a public college campus, not somewhere for instance, in North Korea or in Iran as his lawyers pointed out, but in the United States of America, in the state of Georgia. Now, why is this coming before the Supreme Court? Well, it's coming before the Supreme Court not because the college has stood by its policy. After the challenge by Mr. Uzuegbunam, it backed off the policy.
As Adam Liptak says, the college changed its policy, "perhaps sensing that it was a constitutional catastrophe." That's an unusually clear language coming from a Supreme Court reporter, saying that in this case, the college's argument was a constitutional catastrophe. So was the argument that was submitted in defense of the college's policies by the state's attorney general. The attorney general then turned to make the argument in federal court that the case was moved because the college had changed its policy. According to the newly revised policy, students may "may speak anywhere on campus and at any time without having to first obtain a permit" Refreshingly American.
The attorney general is arguing that the lawsuit brought by Mr. Uzuegbunam is thus moot because the college changed its policy, but his lawyers are arguing that his lawsuit wasn't just that the college revise and reverse its policy, but that there be some form of monetary damages. In this case, what he's actually demanding is what's called nominal damages, and it's not going to amount to a lot of money. It amounts to a lot of principle, and here's something to watch. There is a very important issue in this kind of lawsuit, not only that the college which is acting unconstitutionally must change its policy, but that there would be an award of some form of damages because that further establishes the decision in law.
That's what Mr. Uzuegbunam and his attorneys are hoping for, and it becomes crucial at this point because the federal courts have recognized in many cases that it is the demand for damages that allows the lawsuit to continue as a matter of principle, even if the cause is removed. That is, the policy has changed, which it was. A federal judge nonetheless said that the case had become moot and the 11th US Circuit Court of Appeals upheld the very same decision that was handed down by the judge, but Mr. Uzuegbunam and his attorneys are now headed for the Supreme Court of the United States. We have to hope that the Supreme Court understands the logic and accepts the logic and takes the case and makes a very clear statement beyond declaring the lawsuit to be moot because the policy was changed. A very clear statement, upholding religious liberty and liberty of speech in an age in which both are endangered.
Before leaving this case and turning to the case of the Christian photographer, I want to point to the fact that this college's policy was a constitutional catastrophe, so much so that Mr. Uzuegbunam's case is being backed at least in terms of public support by an array of groups including Catholic, Jewish, and Muslim organizations, and also the American Humanist Association. Just in case anyone missed the point, the American Humanist Association, which is basically very avidly atheistic in its orientation, has declared that it is "on opposite sides of the ideological spectrum" from the Alliance Defending Freedom that is representing Mr. Uzuegbunam.
Of course, they are. They are at opposite ends of the ideological spectrum. That's a given. That's very important, and that also underlines how freedom of speech works. The lawyers for the American Humanist Association and the lawyers for the Alliance Defending Freedom, even though they're on opposite ends of the ideological spectrum, they agree when they state their "esteem for First Amendment liberties and their conviction that such rights are meaningless if they cannot be vindicated" The vindication of those rights is exactly what Mr. Uzuegbunam is now seeking.
Urgent Question Two: Can a Christian Wedding Photographer Exercise Her Christian Convictions in Louisville?
But it was a very different issue, though related when it comes to liberty, that brings us back to Louisville, Kentucky. The case here has to do with a young woman who is a Christian and a photographer. She's very clear about her Christian convictions. She's very clear about the fact that as a Christian bound by scripture, she believes that marriage is and can only be the union of a man and a woman. Her business is wedding photography, but she doesn't merely see it as a business. She sees it as an extension of her convictions and of her artistry. She defines what she does as art as being expressive. Now, as I've often pointed out in dealing with these cases, that expressiveness is crucial to understanding that what she does is speech. She is effectively speaking by means of her communication through art.
Well, if you're thinking that's strange, understand that this is pretty crucial to understanding freedom of speech in the United States. It is also true that, say, saluting the flag, as has been pointed out, is not a form of words, but it is a form of speech. This case came about because the City of Louisville in the form of its Metro Human Rights Commission investigated this young woman on the claim that she was discriminating against same sex couples and in particular, violating the 1999 Fairness Ordinance here in Louisville, Kentucky, an ordinance that states that it is illegal in the city to discriminate on the basis of sexual orientation. Thus, the argument was that she was violating the Fairness Ordinance by declining to use her artistry and her commercial firm in photography for a same-sex wedding.
Just in recent days, a federal district court judge has ruled for the young photographer saying that she was not acting illegally when she declined to use her expressive artistry for the photography of a same sex wedding. His decision actually took the form of a preliminary injunction that enjoying the city from continuing any prosecution of Chelsea Nelson in this case, and the judge went on to state that it was granted because she was likely to win on the principles. US District Court Judge Justin Walker cited three different issues in what you might consider to be a syllogism of sorts, that is, a form of argument when he said one, her photography is art. Two, art is speech. So three, the government can't compel speech when it violates the speaker's religious or political principles. Let's look back at those three points. The first point, her photography is art. The second point, art is speech. And the third, the government can't compel speech when it violates the speaker's religious or political principles. By every one of those points, Judge Walker put a footnote citing a case as precedent.
Making his argument including citing language from Supreme Court decisions handed down just in recent weeks, Judge Walker wrote, "Just as gay and lesbian Americans 'cannot be treated as social outcasts or as inferior in dignity and worth,' neither can Americans with a deep faith that requires them to do things passing legislative majorities might find unseemly or uncouth. They are members of the community too." The judge continued, "Under our constitution, the government can't force them to march for or salute in favor of, or create an artistic expression that celebrates a marriage that their conscience doesn't condone." He then made this very important statement, "America is wide enough for those who applaud same-sex marriage and those who refuse to. The constitution does not require a choice between gay rights and freedom of speech. It demands both." Now that's just incredibly important language because this district court judge is stating that there need not be an inevitable collision in every case between same-sex marriage or the new sexual liberties on the one hand and religious liberty on the other. Now the clear fact is in general, there is an inevitable collision. Otherwise, this case never would have come before the judge in the first place, but it is refreshing that this judge was clear to say that religious liberty can't simply be sacrificed on the alter of the new sexual liberties. It's a very important decision.
It sends a very clear signal, even if it is just one more shot in a very long battle. It's also important to note that this district court judge went back to the case and actually pointed out how expressive speech, and let's remember this includes categories that have been a matter of litigation: cake bakers, such as one man very famously in Colorado, and florists who used their artistic abilities when it comes to weddings, different kinds of cases. But in this case, as Judge Walker wrote, "In Louisville, since 1999 and still today, Marriott cannot refuse a room to a same sex couple. McDonald's cannot deny a man dinner simply because he is gay," but then the judge declared, "Neither an empty hotel room nor a Big Mac is speech."
Now, clearly there are even larger issues to debate here. We're talking about the collision between religious liberty and the newly-styled sexual liberties invented by the Supreme Court, but we have also seen that those same newly-invented liberties run right into direct collision with the freedom of speech and the freedom of association as well. The aftermath of Judge Walker's decision just yesterday, the Louisville courier journal ran an article again by Andrew Wilson stating, "Louisville Metro will continue to enforce the Fairness Ordinance to prevent discrimination based on sexual orientation, despite a federal judge’s preliminary ruling last week blocking punishment of a Christian photographer who says she will shoot only weddings between a man and a woman."
The next sentence, "'Jefferson County Attorney Mike O’Connell said Tuesday the ruling applies only to Chelsey Nelson, and the city will try to prove at trial its “compelling interest in preventing invidious discrimination against its LGBTQ citizens.'" The trial will go forward. In this case, the city is not changing its policy, and thus, we're going to have to watch this case as it continues to unfold, understanding that this isn't just the case about one young Christian photographer in Louisville, any more than the previous case was just about one young Christian man in Lawrenceville, Georgia. Every single Christian is actually represented in both of these cases.
We better understand that, but I also can't leave this issue without pointing to the fact that when we talk about United States District Court Judge Justin Walker, we're talking about someone we have mentioned again and again on The Briefing of late, and that is because he was just recently confirmed as the newest judge of the United States Court of Appeals for the DC Circuit. The District of Columbia circuit, the court that traditionally in the United States is second only to the Supreme Court of the United States in lasting precedential authority.
It's extremely important to understand once again, that the president of the United States, in this case Donald Trump, gets to make nominations to the federal courts, and in this case, President Trump nominated Justin Walker, not only to the federal district court where he made this decision, but to the DC Circuit where he is very soon headed. It's not only the president of the United States who makes those decisions. It is in the United States Senate, which has the power of confirmation, advice and consent, and thus, elections have consequences. The election of president and the election of senators in this case. Otherwise, you don't get a Justin Walker either at the federal district court or at the DC Court of Appeals.
The War Against Nature and Reason: CNN Refers to Women as “Individuals with a Cervix”
Finally, as we try to understand the times, I mean as today we're running out of time, I want to turn to the fact that CNN that supposedly is about reporting the news recently made the news; it was the news. And that's because in a news report about the dangers of cervical cancer in women and encouraging women to have exams about cervical cancer, they actually didn't refer to women, but rather to people with a cervix or individuals with a cervix. They suggested that individuals with a cervix ought to be examined for the danger of cervical cancer. Now, this is increasingly where we are as a country. You can't talk about boys and girls, men and women.
You can't even talk about male and female. Instead, in a war against biology, they simply declare humanity is now going to be divided between individuals with a prostate and individuals with a cervix. Why is that important? Because cervical cancer and prostate cancer don't care what you declare your gender identity to be. A prostate is a prostate, a cervix is a cervix. And cancer is deadly. After CNN became the topic of cultural conversation because of this language, CNN Vice President, Matt Dornic said, "I'm sorry it's so upsetting for some of you to acknowledge the existence of transgender men and women."
What's upsetting is not the existence of any human being, but the fact that what we're now looking at is the existence of insanity that is being mainstreamed through the culture by organizations such as CNN, but in an episode of The Briefing in which we have had to talk about freedom of religion and freedom of speech, we also had to cite such language as fighting words. You understand that in this day, we now confront the fact that those who speak from the conviction of biblical Christianity can be charged with engaging in fighting words, simply by using words that are essential according to the biblical worldview, like man and woman, male and female mother and father, brother, and sister, boy, and girl, you go down the list.
Given the logic and trajectory of where we are undeniably headed, it won't be long before those are the words that bring someone before a federal court all too soon.
Thanks for listening to The Briefing.
I discussed the very issues we've been talking about today at length in my newest book, The Gathering Storm: Secularism, Culture, and the Church. Again, the title of the book, The Gathering Storm, and yes, we can see the storm clouds gathering even now. 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, just go to sbts.edu. For information on Boyce College, go to boycecollege.com.
I'll meet you again tomorrow for The Briefing.