Tuesday, October 6, 2020

Part I

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The Newly Invented Rights of the Sexual Revolution vs. The Future of Religious Liberty in the United States: Much Is at Stake as New Supreme Court Term Begins

The new session of the Supreme Court of the United States began yesterday, and the new term has begun with eight justices seated rather than nine due to the death just a couple of weeks ago of the late justice, Ruth Bader Ginsburg. That is a big factor. Because with eight rather than nine justices, a divided vote of four-four will leave many fundamental questions unanswered. And the court is going into a term of very big cases.

Of course, it is doing so even as the confirmation process for Judge Amy Coney Barrett to replace Justice Ginsburg continues to heat up and in a big way. We’ll be turning to that in just a moment. But at this point, we need to understand that some of the issues that might arrive before the Supreme Court either this term or next are issues of direct concern to Christians. Now, one of them came up just yesterday, and it has to do with statements made by two of the justices, Justice Samuel Alito and Clarence Thomas, about a case that the Supreme Court declined to take.

Now, this is a fascinating story. We need to pay close attention to it. The case brings us to the Commonwealth of Kentucky and to a person named Kim Davis, who was the Rowan County clerk who refused to issue a marriage license for a same-sex couple. Now, that led to all kinds of issues including court fights, and this is still a court fight, or at least it wasn’t until yesterday when the Supreme Court declined to take the case, because Kim Davis has been fighting a lawsuit against her, claiming that she had the protection of qualified immunity as a government official. The Supreme Court did not take her case on appeal.

And thus, when it comes to the case itself, it will not move forward to the Supreme Court. The Supreme Court together decided not to take the case, but two of those justices who had agreed with the decision not to take the case did not want their point to be missed. Their point was this: even as they voted not to take the case, because the issues of their concern were not “clean” in the case, to use the language of one of the justices, the reality is that both justices, Alito and Thomas, indicated that what we are looking at here is the lamentable effect. A foreseen and predictable effect in which religious liberty is threatened by the Obergefell decision of 2015 legalizing same-sex marriage.

But as these two justices pointed out, the threat to religious liberty was already clearly visible when the high court handed down that decision in 2015. It was just a matter of time. In a statement written by Justice Clarence Thomas, but joined by Justice Samuel Alito, the two justices said that even as they agreed not to take this particular case because the issues were not clean, the case was “a stark reminder” of the consequences of the Supreme Court’s 2015 decision, which rendered same-sex marriage legal. They wrote that because of the decision “those with sincerely held religious beliefs concerning marriage will find it increasingly difficult to participate in society without running afoul of the decision and its effect on other anti-discrimination laws.”

The court instead chose to endorse “a novel constitutional right” over the religious liberty interests explicitly protected in the First Amendment. And by doing so, undemocratically, the court has created a problem that only it can fix. “Until then,” said Justices Thomas and Alito, “Obergefell will continue to have ruinous consequences for religious liberty.” Now, that’s incredibly strong language. It deserves our attention, and frankly it deserves our appreciation. Here you have two justices on the nation’s highest court who have indicated that they know now, and they knew at the time, that Obergefell would pose a direct threat to religious liberty.

Let me just remind you that this came up in the oral arguments for the case when the then Solicitor General of the United States, Donald Verrilli, was asked by the court whether or not a decision in favor of same-sex marriage would mean that religious institutions such as Christian colleges would have to adjust their admissions, and hiring, and student discipline, and housing procedures. And in a chilling manner the solicitor general, then serving under President Barack Obama, said it will be an issue. In other words, it’s just a matter of time.

We pointed out again, and again, and again that when you try to create out of the blue this kind of newly constructed right that isn’t in the constitution to say the least, but is rather a part of this new moral revolution, then you are creating a right that will run into direct conflict inevidently with religious liberty. And Justices Alito and Thomas have indicated that that has already happened. But don’t miss the clarity of their language. When these two justices referred to Obergefell as having ruinous consequences for religious liberty. When you hear these two justices pointing out that religious liberty is clearly articulated and protected within the United States Constitution, where you will find no right to same-sex marriage.

One of the primary proponents of same-sex marriage, Yale law school professor William Eskridge, he said, “It is alarming that there are justices on the Supreme Court who want to overrule Obergefell, which is a precedent the court has reaffirmed and which hundreds of thousands of couples have relied on to seal their unions and matrimony.” The Guardian, a liberal newspaper in London, cited an attorney with the American civil liberties union named Chase Strangio. He said that what you are looking at in this statement from Thomas and Alito is “a reminder that stare decisis, the principle of applying precedent will not protect even recently decided cases.” He went on to say, “The brazenness of the rightward direction of the court is a threat to even the most basic expectation of legal protection.”

Now, you have to understand the argument that he’s making here. This attorney for the American civil liberties union is arguing that even if the decision were wrong, according to the Constitution, it should stand. Because after all, it has now created a new right upon which some Americans depend. It goes back to the statement from that Yale law professor, William Eskridge, who says, “Look, hundreds of thousands of people have gotten married according to this law. You can’t go back now and fix it according to the Constitution.”

But that gets down to a basic question that divides liberals and conservatives over the Supreme Court, over the Constitution, and over how the Constitution is to be read and applied. Because after all, here you have the argument coming from the left, “Hey, the Constitution has now been read as demanding same-sex marriage is not in there. But trust us. Judges have decided it’s there.” And on the other side, you have those on the conservative end who say, “If it’s not in the Constitution, if it’s not there in the text, if it’s not in the words, then get a clue. It’s not in there.”

But then again very quickly speaking of this inevitable collision between these newly created “rights,” and the enumerated very clearly articulated protection of religious liberty guaranteed in the Constitution, even as we look at this we need to recognize that in this Supreme Court term, we already know that one case of gigantic proportions on this very issue is going to arrive. That case comes down to a Catholic charity in Philadelphia that has been involved in foster care and abortion. But the city of Philadelphia said that that Catholic organization must choose between either continuing in the foster care and adoption enterprise helping families, or give up their Catholic convictions concerning sexuality in marriage.

That case has already on the docket, and is going to come before the court. This case, all kinds of other big issues that relate to voting rights. A number of very big questions are going to be settled, again, by the court this term. Every term of the Supreme Court is consequential, but we are certainly seeing an underlining of that fact when you look at eight justices seated there in the Supreme Court chamber rather than nine. The identity of that ninth justice becomes absolutely crucial.

For constitutional conservatives, the successful and speedy confirmation of Judge Amy Coney Barrett to the Supreme Court looms as one of the largest issues of our time. And looming before us as well is the 2020 general election, including the presidency and the control of the Senate. You understand exactly how the Supreme Court, even as it begins its term this week must understand that that election has a great deal to do with its future. And that means with ours.

Part II

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The Scandal of Amy Coney? She’s a Roman Catholic Who Believes Roman Catholic Doctrine. This Will Happen to Evangelicals, Too

But next, speaking of Judge Amy Coney Barrett, we need to understand that even as the Supreme Court confirmation hearings are set to begin in the judiciary committee of the Senate on October the 12th. That’s just a matter of a few days away, we also need to recognize that the opponents of Judge Barrett are coming out fast, and furious, and loud. And over the course of the last several days, they thought they had found something about Judge Barrett that they could bring to the national conversation. It has to do with the fact that in 2006, 14 or 15 years ago depending on how you’re counting, Judge Barrett, then a professor at the university of Notre Dame law school and her husband, also an attorney, had signed an advertisement for a pro-life statement that said two things basically.

First that the sanctity and dignity of human life extends all the way from fertilization to the end of natural life. And secondly, that Roe V Wade was a lamentable decision that is a blot on the nation’s conscience. As a team of reporters for the Wall Street Journal tells us, “The two-page advertisement was placed in a South Bend, Indiana newspaper in January 2006 by a group called St. Joseph County Right to Life. The ad, pegged to the anniversary of Roe, contained one page with a list of signatories under a statement saying, ‘We the following citizens of Michiana oppose abortion on demand, and defend the right of life from fertilization to natural death.'”

Now, you probably already figured out that Michiana refers to that border territory of Northern Indiana close to Michigan. On the second page of the ad, the statement said, “It’s time to put an end to the barbaric legacy of Roe V. Wade and restore laws that protect the lives of unborn children.” Now, opponents of Judge Barrett’s nomination to the Supreme Court seized upon this advertisement from 2006. Headlines and stories included the New York Times, “Barrett signed a 2006 ad by an anti-abortion group;” USA Today, “Barrett signed 2006 letter against Roe V. Wade in ad;” The Wall Street Journal, “Barrett didn’t reveal anti-abortion ad role;” The Guardian in London, “Amy Coney Barrett supported a group that said life begins at fertilization.”

Those are headlines intended to get immediate attention. The one that’s most important is the one in The Guardian, “Amy Coney Barrett supported group that said life begins at fertilization.” Now, what would that group be? Well, presumably in the article, indeed, we have to say explicitly in the article, it’s the St. Joseph County Right to Life organization. Which is…Here’s a shocker. An organization that contends for the right to life, especially of the unborn. But you might also recognize, indeed, we must recognize that what’s going on here is the implication of another group. A very different group. And it turns out to be one of the biggest groups on planet earth.

That would be the group known as Roman Catholics, because here’s a little surprise for the secular media. It’s not just what’s described here as an extreme right wing pro-life organization that believes that life begins at fertilization. It is the Roman Catholic church of which Amy Coney Barrett is a member. She has been found guilty here of actually being a Catholic who believes Catholic doctrine. Now, let’s back up for just a moment. Evangelical Protestants and Catholics disagree on an entire range of theological issues. That’s beyond our conversation here. But what’s important to this juncture is to recognize that we must be in agreement on the fact that life begins at the moment of fertilization.

Here’s where Protestant Evangelicals need to recognize as Christians that if we do not answer the question with that answer, then we are going to provide some other answer. Which means at some point after fertilization, which means that we would set ourselves up as God in effect to decide when life begins. When life becomes sacred. This is an issue that evangelical Christians had to be awakened to in the late 1960s, and particularly in the 1970s and ’80s. Evangelicals had to understand that we were not talking about this enough. We were not active enough in defending life at every stage, and we also did not have arguments ready to oppose abortion. That’s why so many evangelicals appeared to be caught absolutely by surprise by the Roe V. Wade decision in 1973.

And not only were they caught by surprise. I’ll use the ‘we’ language here, even though I was only 13 at the time. The reality is that we were caught without adequate thinking. Without adequate argument. It was as if we had voluntarily disarmed intellectually on the issue of abortion. We had to catch up fast. But this also means something else. When you look at the abject anti-Catholicism that is now being directed at Judge Amy Coney Barrett, we are looking at not just anti-Catholicism, we’re looking at anti-Christianity. We’re looking at opposition to any form of theistic religion, revealed religion that would oppose the sexual revolution, or that would not surrender. We’re looking at the fact that even as Judge Amy Coney Barrett is going to be sitting in that seat in the hearings before the Senate Judiciary Committee, we are sitting there too.

There will be a lot more for us to consider here. But right now, it’s just really important to recognize how this advertisement that was signed by a woman who was then a professor at the University of Notre Dame Law School. Now, let me just ask you a question. How surprising should it be to anyone with any intelligence at all that a professor at the University of Notre Dame who is Catholic just might agree with the teaching of the Roman Catholic church? If you need to be alerted to that, you probably shouldn’t be a reporter.

But what this really shows is that anyone who dares to defy the new regime of abortion rights, and the sexual revolution, and all the rest is considered an extremist. Someone who is and ought to be considered outside of allowable conversation. Now, interestingly that is the exact argument that was used by justices Alito and Thomas about the effect of the Obergefell decision when it came to opposition to those who hold with religious conviction to a definition of marriage. Now you see it right here when you have even mainstream media in the United States referring to a Right to Life organization that is about as classically right to life as you can imagine and calling it extreme.

There’s more to this made up controversy concerning Judge Barrett. You also have figures from the left saying, “Look, if life begins at fertilization, then that means that mistreating human embryos is also an assault upon human dignity.” And the answer to that is yes. Emphatically, yes. You have not misunderstood us. You have understood us. For example, the head of this pro-life ministry there in South Bend, Indiana argues that discarding and destroying human embryos either by experimentation, or by simply declaring them surplus in IVF treatments is an assault upon human dignity. He is exactly right.

Almost 20 years ago, I entered this controversy by writing a major book chapter arguing that very fact. But the reality is that many evangelicals don’t want to consider the logic of what it means the life really does begin in fertilization. Because that means the issue is not only about abortion. It is also about reproductive technologies including IVF, or in vitro fertilization. It deals with the fact that mistreating any of those embryos, destroying them is also an assault upon human dignity and the sanctity of human life. Period.

My favorite line in the report by the way from USA Today is this: “Experts say it’s not surprising that she,” meaning Amy Coney Barrett, “opposes abortion given her religious beliefs and conservative tutelage.” You actually had to say “experts say.” You can’t just say that anyone with a modicum of intelligence can read the official teachings of the Roman Catholic Church and understand that these are indeed those teachings? You need experts? Another very important line came from democratic Senator Patty Murray of Washington, who responding to the ad said, “This is certainly black and white to the extreme. It puts a huge exclamation point on what is at stake.” Well, Senator Murray, you are exactly right. It puts a very clear exclamation point on what is at stake. It’s just that the Senator and I define what is at stake in exactly opposite terms.

Part III

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Chrissy Teigen and John Legend and the Heartbreak of Miscarriage: Another Recognition of the Intrinsic Value of Human Life from the Moment of Conception

But next, let’s move forward to understanding something else that’s closely related to this and also in the headlines. Very tragically, Chrissy Tiegen and John Legend, a married couple who were expecting their third child, announced with anguish in recent days that they had experienced a miscarriage. Chrissy Tiegen posted photographs of herself at the hospital and they shared their loss with the entire world. They spoke with deep and incredibly sincere anguish, and there were many who immediately identified with them because they too have experienced a miscarriage, the loss of an unborn child, and they have mourned that child. They understood. Whether or not they defined it in explicitly theological terms, they understood that they had not lost a bio-mass. They had lost a child.

What ties all this together is the understanding that Chrissy Tiegen and John Legend were absolutely right. They lost a baby. The New York Times ran an article, the headline, “Chrissy Tiegen and John Legend lose baby after pregnancy complications.” Now, let’s ask the question. How does one end up a baby rather than a fetus, or a fetus rather than a baby in the text and in the headlines of the New York Times? It comes down to this. This is incredibly morally significant.

It comes down to the fact that a baby is desired. A fetus is not desired. A baby’s personhood, and life, and dignity are recognized. A mere fetus’s dignity, and sanctity, and wanted-ness are denied. But what we have to understand here crucially is that the unborn child is exactly the same unborn child. Whether wanted or not, whether discussed in terms of a miscarriage or of an abortion. The fact is that the child is exactly the same.

And when you look at the loss experienced by Chrissy Tiegen and John Legend, you have to understand that they’ve actually done a very brave thing here in two ways. Number one, they have shared the loss of an unborn child by means of miscarriage in a way that many other couples would not do, and that the press and even the larger public don’t know how to handle. It’s very interesting that Alyssa Rosenberg, a columnist for the Washington Post, felt the need to run an article with the headline “Chrissy Tiegen and John Legend are heroes, not oversharers.” Now, that’s really important.

And even though I probably don’t agree with Alyssa Rosenberg on much, I agree with her on this. They were not oversharing. They were speaking, yes, of a great loss, and they were taking personal risk in talking of that great loss publicly. In so doing, this celebrity couple actually served the cause of the dignity and sanctity of human life. They also served the cause of all parents and all families who’ve experienced this kind of loss by miscarriage. It is too often neglected not only by the secular world, but also by believing Christians, by Christian churches, who simply somehow emotionally seem not to know how to respond.

But here’s where we as Christians need to just go back to our theology, back to the fact that human life does begin with fertilization and extend until natural death. If we are consciously aware of that life, we must mourn that life when it ceases to exist. It is also true that human beings just given our own consciousness, and even as we’re created to relate, our relatedness grows over time. We have friendships that grow deeper over time. The relationships between parents and children grow deeper over time, and women who are bearing children carrying them in pregnancy will relate to the fact that they develop a deeper and deeper relationship with that unborn child over time.

And thus, just experientially, we can understand why losing a baby nearer the end of term is a more emotional experience and a greater sense of urgent personal loss than the loss of a pregnancy earlier. But it might not, especially among couples who might have been experiencing infertility or other fertility issues, and who have invested such great prayer and hope in this pregnancy, whether it’s at the very beginning or at the very end.

Are we living in an age of oversharing in social media? The answer to that has to be yes. Is talking this way in public oversharing? Well, I’ll let someone else debate that, but I’ll simply say this: it’s not oversharing if the loss of this child is dealt with just as seriously as the birth of another child. But the second issue is the grief that is being experienced by this couple in public, is it genuine? And is it justified? And we as Christians have to answer, yes, of course it is. Shame on us if we ever fail to recognize it.

And also, we just have to go back again and again to that basic theological issue. Every single human being is equally made in the image of God, and possesses full dignity and sanctity of life from the moment of fertilization until the moment of natural death. Period. In this case and even in that headline in the New York Times, that reality actually shines through, even against opposition.

Part IV

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While Society Says There Is No Such Thing as the Gender Binary, the National Zoo Announces that New Baby Panda Is a Boy

But speaking of that, every once in a while there is a moment of clarity that comes in a birth with a new life, and that moment of clarity sometimes comes in the moment of gender. Even in a society that is in rebellion against the idea of a gender binary, that indeed babies are as boys or girls, and they are to continue that way with boys growing into men and girls growing into women. Even as our society says, no, that’s not true. When even as the transgender advocate say, “We’ve got to stop saying it’s a boy or it’s a girl in human delivery rooms,” well, it turns out the National Zoo isn’t with the program. Here’s a headline from yesterday’s Associated Press, “It’s a boy! National Zoo reveals baby panda gender.” Reporter Ashraf Kahlil tells us, “The National Zoo has confirmed that their six week old baby Panda is a boy.” Now, a recent press report celebrating the birth of the panda indicated that the little pink animal was not yet identified as male or female, but now the zoo says it’s a boy.

Now, let’s not speak graphically, but let’s just understand how they came to that conclusion. They found something. And what they found led them to say, “It’s a boy.” This was not a committee decision. This was not a political decision. But it was nonetheless a very bold decision to say “it’s a boy” when it comes to the new baby panda. By the way, at least some press reports indicated that the baby panda received a genetic test via a cheek swab to confirm the gender. The AP continued, “Photos and videos released by the zoo show the baby, which was born pink, blind, and nearly hairless starting to take on the familiar black and white coloring.”

By the way, as another sign of the times, the Smithsonian National Zoo decided to announce the sex of this new baby panda by inviting the panda’s father, Tian Tian, to step into blue paint and then to step on poster board in order to make the announcement himself. Tian Tian is one very proud father, and I’ll give him credit for this, he didn’t start a fire with his gender reveal.