Thursday, October 15, 2020

Part I

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Confirmation Hearings for Amy Coney Barrett Conclude: What Are Super Precedents and Is Roe v. Wade One of Them?

Well, this part’s over the Senate Judiciary Committee’s hearings for the confirmation of Judge Amy Coney Barrett as the next Supreme Court justice. And as it turned out, the chairman of the committee, South Carolina Senator Lindsey Graham was absolutely right. It is unlikely that anyone was actually persuaded in the course of the hearings because no one was really persuadable.

By the time the hearings began just about everyone knew exactly how senators would vote. As Senator Graham said, all the Republicans are going to vote yes, all the Democrats are going to vote no. Why? Because the Supreme Court has never been apolitical it’s never been nonpolitical, but at this point, no one can deny with these hearings taking place and the future of the court at stake, just days before a presidential election, no one can deny that right now, everyone knows exactly where we stand.

Now, one of the arguments we need to make, one of the issues we need to consider is the fact that it really has been this way now for about 40 years. The difference is that right now, in the course of this pandemic and right in the course of the presidential election, there’s no denying that things are as they are. This is the picture as it is. We’re looking at a politicized process because the court has been turned into basically a political unit. It wasn’t intended to be, was intended to be the least political. And in one sense, it’s still the least political. But when you’re talking about adding someone to the court and determining the future of the court, it’s extremely political because politicians are involved. Only the president gets to make nominations and only the Senate gets to give advice and consent in this case, confirming a nomination.

At this point and this is very encouraging, it looks like Judge Barrett is about to become Justice Barrett. This is an achievement. This is a major development that cultural and Christian conservatives in the United States have been hoping for, working for, praying for, for a very long time. Back decades ago, no one knew the names of the justices who would be named by conservative presidents to the United States Supreme Court. And that’s important. What was known is that the candidates’ judicial philosophy was absolutely crucial and that philosophy would have to be demonstrated in actual writings and intellectual commitments decisions in other judicial contexts.

And all of that is the case with Judge Barrett. And that means that those who are hoping for a more conservative direction of the court redressing and correcting the politicization of the progressive left of that court in recent decades, they’re very encouraged. And on the other side, those who look to the court as an engine, a progressive as to liberalism, well, they’re very discouraged, but at least both sides honestly know what is at stake.

And in the course of the hearings, very little new ground was uncovered at all, but there was one really important moment on Tuesday. It wasn’t a surprise, but it was clarifying. What was that moment? Well, the questions were being asked by Minnesota Democratic Senator Amy Klobuchar, who after all was just a matter of months ago, a candidate for the Democratic presidential nomination and a candidate of some consequence in that race. Her withdrawal from the race just before the South Carolina primary prompted other withdrawals and led to the fact that the Democratic Party was able to avoid what then appeared to be the almost inevitable nomination of a Democratic socialist as their nominee. That would be Vermont Independent Senator Bernie Sanders, his train appeared to be almost unstoppable at that point, but it was the orchestrated withdrawal of other candidates who were running against former Vice President Biden and Senator Bernie Sanders that left the door open for Biden to charge through. Joe Biden owes Amy Klobuchar a great deal.

But as we think about the hearings, it is clear that the process of running for the Democratic nomination has meant that Senator Klobuchar sometimes previously described as a moderate, really isn’t a moderate anymore if she ever was. The question that she asked of Judge Barrett came down to, you’re not surprised by this abortion and Roe V. Wade. She followed the pattern of asking about the question of abortion, but she asked specifically if Judge Barrett would look to the Roe V. Wade decision legalizing abortion in 1973 as a super-precedent. Now that’s a very interesting question. First of all, where did the phrase “super-precedent” come from? Aren’t precedents, precedents? How do you have precedents and super-precedent?

Well, that goes back to a law article written by two law professors. One indeed, a judge that will be Judge Richard Posner and William Landis, the professor who in 1976, wrote a law article in which they sought to make a distinction between precedents, previous decisions of federal courts and in particular, the Supreme Court and super-precedence. Now, the point they were making is that all precedents are exactly alike and some precedents need to be recognized as having a stature that means that they are beyond any scrutiny. They’re never going to be revisited by the nation’s highest court.

Now, just speaking of this as an outsider to the court, I would say that the idea of a super-precedent that would operate that way is quite dangerous. What good is there to have a court of living justices if there are certain issues that they will never consider again? That doesn’t sound fully responsible when you think about the role of the court for a living nation. On the other hand, we do understand precedent. Conservatives have a particular investment in precedence, but we have a greater investment in the Constitution. And that means that if there is a choice between a precedent and the Constitution, it is the Constitution that must rule.

The late Justice Antonin Scalia made the point that if the precedent rules, rather than the Constitution, then we have a government of judges, not a government of laws. And in the confirmation hearings on Monday, also in previous testimony for her confirmation to the Seventh Circuit, Judge Barrett made very clear that she would respect precedent. But if she had to choose between precedent and the Constitution, as she wrote in a 2013 law article, the Constitution must win.

In questioning on Tuesday, Senator Klobuchar asked Judge Barrett, “Is Roe a super precedent?” The Judge then asked the question, “How would you define a super-precedent?” Senator Klobuchar responded, “I actually might’ve thought someday, I’d be sitting in that chair. I’m not, I’m up here. So I’m asking you.” Judge Barrett then said, “Okay, well, people use super-precedent differently.” The Senator said, “Okay.” The Judge then continued, “I’m answering a lot of questions about Roe, which I think indicates that Roe doesn’t fall in that category.” I insert here, that means the category of super-precedent.

And scholars across the spectrum say that doesn’t mean that Roe should be overruled, but descriptively, it does mean that it’s not a case that everyone has accepted and doesn’t call for it’s over ruling. Senator Klobuchar wasn’t satisfied, but that’s really an important response. First of all, it was right of Judge Barrett to ask the Senator to define what she meant by a super-precedent. Does that mean an older precedent? Does it mean a precedent that’s been reaffirmed by the court over and over again in subsequent cases? Or does it just mean an issue that at least some people in this country don’t want ever to arise again? Judge Barrett was then very skillful in saying, “If you mean that last definition, then clearly Roe is not a super-precedent.”

And then she went on to make a statement that was really, really important if Americans caught it. She said that Roe, by the very fact we’re talking about it in 2020 is not a Supreme Court decision that has been considered settled by the American people. If it had been considered settled by the American people, it wouldn’t come up in 1975 in hearings for the Supreme Court, much less 2020. You might look at it this way. It actually takes a very bad decision by the Supreme Court to age so poorly that when you’re looking now at almost 50 years later, there is an absolute cultural consternation over the issue and over the decision.

All that was very interesting. And it is much more important than just a matter of some kind of constitutional argument. We’re talking about whether or not we actually believe in constitutional self-government and in a rule by the Constitution and thus of law rather than of human beings, men and women, most particularly nine unelected justices of the United States Supreme Court.

Part II

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Senator Hirono Chastises Judge Barrett for Using the Term “Sexual Preference” — What’s it All About?

But next, there was another very unexpected development that also demands our attention. And in this case, the issue is not so much constitutional interpretation, but the language of the revolution in morality taking place all around us. Now, the issue comes down to this. In responding to a question about the decision of 2015 legalizing same-sex marriage, Judge Barrett in her response just made a reference to an individual’s sexual preference. And immediately that became something of an issue. In this case, it came from Democratic Senator from Hawaii Mazie Hirono who complained that Judge Barrett had used an outdated and offensive expression, sexual preference.

Now what’s going on here? Well, for one thing, it’s the unfolding of the language and changes in language over time. If you go back a certain number of years ago, sexual preference actually meant whether or not one would claim to be straight or gay. Yes, those are all old terms, aren’t they? But those were the terms of say 15 years ago, sexual preference gay or straight. That’s how it adds up. And people use that language as if they were entirely up-to-date, but then something very important happened. The LGBTQ movement, that’s how it’s known now, not the gay rights movement anymore. It decided that it needed to change the language. And it changed the language from sexual preference to sexual orientation.

Senator Hirono chastised Judge Barrett for using the phrase sexual preference. She said it was an outdated term. She went on to say, “You use the term sexual preference to describe those in the LGBT community. And let me make clear sexual preference is an offensive and outdated term.” Now it’s a good thing she said offensive and outdated because the outdated part is really important. It was actually the term that was used by and pun intended preferred by gay rights activists back during that period of time. It was actually so formalized as to show up at mainstream media reports. It was a part of the academic conversation. It was a part of the therapeutic conversation. It was a part of the conversation of the gay activists at the time, but they made a change and they’ve made many changes over time.

I cover this extensively in my book of just a few years ago, entitled We Cannot Be Silent where I trace the changes in the language as part of the revolution in morality, part of the sexual revolution. It goes back to a work that was co-authored in the early 1990s, entitled After the Ball. It was a manifesto for how to change America culturally and legally and morally on what we would now call the LGBTQ issues. But it was basically then rights for gay men and lesbians. They were the center of the conversation described as gay rights. Lesbians later complained they weren’t included in gay rights. That was at least the beginning of LGBTQ. That explains the “L” and the “G.”

But before we go on with that, let’s just consider that the language is changing. And Hunter and Madsen, the authors of that book, After the Ball, made the argument that the language could win. And thus the term gay was used to replace homosexual, but after gay, there were other euphemisms that were also used as a way of avoiding the use of anything that would include either homo or sexual. By avoiding the word homosexuality, they wanted to do everything possible cosmetically. And that meant politically to avoid any reference to sex. Although, of course it was all about sex, but the point is that they have made others strategic changes in language. And one of these was the insistence, which has now been drilled through mainstream American culture as reflected in this exchange Tuesday in the Senate Judiciary Committee, a change from sexual preference to sexual orientation.

Now, do Christians believe in the reality of sexual orientation? The answer has to be yes and no. That is to say that given our understanding of how God has created us as male and female, and the fact that God made us as a man for a woman and a woman for a man, made us for a marriage, made us reproductively and biologically male and female and intended for us to live according to his definition of our sexuality and our sexual behavior entirely limiting sexual expression to marriage. But at this point, we know that there are people who say they didn’t decide just simply make a decision like a preference, that this is the way they want to be other than heterosexual. Now, do we believe that or not? Well, to some degree, we understand that there are pre-conscious dimensions of sin. You can consider the fact that we are responsible for our temptations, but we sometimes don’t even know where these temptations came from.

When you’re talking about a young person, say struggling with the first sexual impulses, trying to figure this out, it certainly is not enough simply to say that they’re choosing one or the other, but as we’re thinking a biblical theology, that means that even though sexual orientation is in some sense, a real category, it’s not a theologically neutral category. That is to say there is one sexual orientation so to speak that honors God and all the rest rob God of his glory, they are contrary to God’s purpose in creation. They are contrary to the clear teachings of Scripture.

Now, what does that mean? That means that in a fallen world, those who are sinners, who come to faith in the Lord Jesus Christ are called to holiness and obedience, regardless of what kind of temptations or sexual temptations we might have to struggle with. And that means that we believe that all Christians can and are called to live lives of holiness before God. We believe in the ministry of the Holy Spirit, the indwelling spirit. We believe that Christians by the ordinary means of grace, by the preaching of God’s word, by the power of the gospel, we’re being conformed to the image of Christ. And that means we’re being reshaped into obedience.

When just a few days ago in The Briefing, I talked about what the city of Louisville had done in outlawing conversion therapy. I said, it’s not so much the therapy that Christians are concerned about. It’s the conversion part because we are conversionists. We believe that as we are converted, we become new creatures in Christ. That doesn’t mean instantaneously all the things we struggled with in the past, simply evaporate. We as Christians know that’s not true. It’s not biblical. We do know that even as we are united to Christ, we are not united to sin because Christ is not united to sin as the New Testament tells us. And we also believe in progressive sanctification by the ministry of the Holy Spirit in us, conforming us to the image of Christ and making us progressively over time, more obedient to Christ.

But there’s a sense in which we don’t believe in sexual orientation. We have to be careful in these terms. It’s a term we can’t avoid, but it’s a term we have to keep defining. We don’t believe in sexual orientation the way the gay activists speak of sexual orientation, the way the therapeutic community now defines it. They define it as something that is immutable and morally neutral. And there are some liberal theologians who also try to say that it’s theologically neutral, but it’s not because God’s not neutral. The Scripture is not neutral. The Christian Church isn’t neutral. We come to understand, God has a plan, God has a pattern and God has commanded us.

The sense in which we don’t believe it is the sense in which many people will say, well, this is just biological or it’s just chemical or it’s just genetic. There is absolutely no research indicating any single explanation for sexual orientation, sexual preference, sexual attraction at all. Rather, we as Christians have to understand it is sin. Anything that pulls us away from God’s pattern, anything that pulls us into disobedience to God’s command is itself in itself sin.

One LGBTQ writer in this case, writing at USA Today tells us that he makes the distinction by referring to a conversation with his mom. He writes these words, “To further the distinction, I reminded my mother that she preferred orange marmalade to any kind of jam, ditto when it came to their views on pets, they prefer dogs, especially Spaniels to cats.” “That’s your choice,” I continued, adding that “who I’m attracted or have sex with is not a choice. I was born this way.” That’s where Christians have to say, no, that’s not true. That’s not accurate. And that doesn’t square with Scripture. It may be that you can’t explain why you have a pattern of temptation, but no, you weren’t born this way. And this was not God’s intention. And that is no excuse for claiming an orientation that is contrary to God’s word and to creation.

And furthermore, we also have to note, this is interesting. That’s an artificial distinction. How does he know why his mother prefers orange marmalade to any kind of jam? As I discussed in an upcoming writing project, if you’re going to follow a deterministic understanding of how human beings behave increasingly popular in the academy, then all that’s a matter of biology too. I don’t believe it’s true, but that is the argument that is gaining ground in the academy. And in this sense, the reason why you prefer dogs to cats, the reason why you turn on the light or prefer the dark, the reason why you like hot dogs better than hamburgers, the reason you like orange marmalade better than other jam is not really about you. It’s not a matter of choice. It is absolutely determined. That’s the argument gaining ground.

So that’s an artificial distinction. It’s not enough to say you have your orange marmalade. I have my sexual identity. And one is a choice. And the other is merely born that way. Now, by the way, here’s where Christians also have to think for a moment. In a fallen world, even if there are biological factors that doesn’t make it right, that doesn’t make it good. It doesn’t make it a part of God’s intention because we understand that the creation as we experienced now is fallen creation. It bears all the effects of sin, but here’s the bottom line. We as Christians understand that these issues are for us biblically defined. They’re not defined by any team of scientists. They’re not defined by any group of therapists. They are defined theologically. They are defined biblically. And our creator has gone to incredible links to make very clear his definition in creation and in Holy Scripture.

Part III

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The Breakneck Speed of the Sexual Revolution: Merriam-Webster Updates Dictionary Hours After Hirono’s Attack on Barrett’s Choice of Vocabulary

But next, I use that word define intentionally. And that’s because of an article that appeared in the National Review telling us that just after that exchange between Senator Hirono and Judge Barrett, Miriam Webster changed its dictionary definition of preference in order to meet the new progressive demands. Now that’s just how fast this moral revolution is happening. The sexual revolution is happening now so fast that a dictionary is editing itself just a matter of less than a day, even less than less than a day after this kind of exchange took place in the Senate Judiciary Committee.

As Mairead McArdle tells us, “Miriam Webster changed its definition of ‘preference’ to note that the term is ‘offensive,’ when used in connection to an individual’s sexual orientation, just as a Senate Democrat was criticizing Judge Amy Coney Barrett for using the term during her Supreme Court confirmation hearings.” “At least until September 28,” the article continues, “the dictionary had defined preference to include a reference to sexual orientation, but on Tuesday, the official definition was edited to include a note the word’s usage in that context is offensive.”

That’s how fast this is happening. And remember dictionaries aren’t supposed to change definitions all that often. Otherwise, it undermines the stability of language, but you know what these days, the stability of language is routinely sacrificed to the moral revolutionaries. They demand it and they’re getting it. They got it at Miriam Webster just a matter of the blink of an eye after Senator Hirono to chastise Judge Barrett.

Part IV

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What Goes Around Actually Doesn’t Come Around? “Karma” Doesn’t Mean What Many Westerners Might Think

But finally, as we’re thinking about changes to the language and the importance of words, I always look forward in every weekend edition of The Wall Street Journal to Ben Zimmer’s’ column entitled, “Word on the Street.” He looks at a word, considers its history and its usage. The word that he dealt with last week was the word “karma.” It’s a word you hear all the time. It’s a word that was being used on social media to refer to the fact that President Trump had COVID-19. And so people were arguing, Hey, what goes around, comes around. And has Ben Zimmer says, that’s basically the way the word “karma” works, but where does it come from?

Well, it comes from an ancient Sanskrit root, which means “an action with consequences.” He then tells us “karma” first showed up in English language sources in the early 19th century and learn a discussions about Eastern philosophy from a derivation that is both Hindu and Buddhist. He points out that the word was used back in the 19th century, but he writes, “‘Karma’ became part of the more mainstream lexicon in the 1960s, as Asian spiritual teachings attracted larger numbers of Westerners, often through meditative practices and yoga.” For example, in 1969, Surfer Magazine was cited by the Oxford English Dictionary, that’s the most authoritative dictionary in the English speaking world, as illustrating the broader counter-cultural pickup of the term with a reference to “a bad karma contest.”

Zimmer points to the fact that “karma” came into the English language from the East because of rather liberal and cosmopolitan forces in the 19th century. And then the counterculture in the United States during the 1960s. He points to mottoes such as “my karma just ran over your dogma.” And we’re also told that branding expert, Nancy Friedman noticed five years ago in 2015, that some 460 companies had pursued trademark protection for names that had “karma” in them. That includes the finance company Credit Karma, the luxury car maker, Karma Automotive. She also noted were told that, “Karma has been among the top 1,000 names for baby girls since 2006.” Just a little footnote, the top 1,000 is a very big list.

But before Zimmer ends the article, he points out that as is so often the case you are looking here at something like the influence of Eastern worldviews. Christians understand this theologically. This goes back to the cyclical understanding of history of the East, rather than the linear understanding past, present, and future of the Christian worldview. It also is a form of determinism or fatalism, certainly of fate. Again, what goes around comes around, Zimmer says is probably the best definition of how it functions as a word in the United States, but then Zimmer very honestly points to the fact it really doesn’t have that meaning in the East. He cites one commentator who clarifies by saying about karma is: “It is not a vengeful god doling out what people ‘deserve,’ it’s not comeuppance, it’s not a punishment, it is the very neutral consequences of your actions.”

Well, there’s a sign of what Westerners do with Eastern thought. They incorporate it because it gives them an exit from Christianity and the Christian worldview, but then they can tort it so that it basically becomes a part of the counterculture, the therapeutic and moral permissiveness. But it comes down to the fact that when Americans take a term like this, it not only reflects the fact that there is an Eastern influence, it also reflects the fact that Americans often misuse just about any term they borrow, or as you might say about how Americans deal with so many of these issues, what goes around, comes around.