Monday, February 8, 2021

Part I

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Supreme Court Rules in Favor of Churches Challenging California’s Restrictions During Pandemic: What to Know From This Important Religious Liberty Case

Big news this weekend from the Supreme Court of the United States. The vote was 6-3 in the Supreme Court, deciding to grant an injunction to two churches in California that had been seeking to challenge the orders coming from California’s Governor Gavin Newsom that effectively shut down all indoor worship services for churches and other religious bodies in California. The 6-3 decision is huge in its impact. It’s also interesting because the Supreme Court, in that 6-3 decision, did not in the majority strike down all of the California restrictions, it left in place a 25% cap, that’s 25 rather than zero, where Governor Newsom had set it, and it also left in place an injunction against singing in worship services. It’s a very interesting story. It continues to unfold of course because the pandemic itself continues to unfold.

And there are some really interesting arguments here. First of all, the majority granting these two churches and thus through them all religious congregations in California the relief, but then the decision to stop short of granting full relief, not giving a 100% cap, not, for that matter, allowing singing and worship. But the breakdown of the court becomes very interesting. First of all, in the decision that was handed down, the court simply said that the State of California is enjoined from enforcing the blueprint tier one prohibition on indoor worship services. But then, the application was denied with respect to percentage capacity limitations, and then the court said, “Respondents are not enjoined from imposing a 25% capacity limitation on indoor worship services in tier one.”

That may sound rather technical. What it means is that right now the churches were asking for relief from the nation’s highest court because the Governor’s number had been zero, 0%. Absolutely no indoor services. The Supreme Court majority here said that zero is the wrong number. It is clearly the wrong number. They granted relief, but they said in the context of the pandemic, there might be some number, in this case 25%. Where do they get that? Well, when you look at the decision, it appears that they put together data from other restrictions that California had put in place, saying that the state does have the right and the responsibility to set some restrictions if it deems them in the public interest during a pandemic, but that there is a particular consideration, strict scrutiny, when it comes to abrogations of religious liberty.

As we look at the breakdown of the decision that was announced, we are told, “Justice Clarence Thomas and Justice Neil Gorsuch would grant the application in full.” That is to say they would have given the churches relief from the governor’s restrictions altogether. They would have set no cap on indoor attendance. They would have allowed singing as well. The next statement tells us that Justice Samuel Alito is basically where Justices Thomas and Gorsuch are, but when it came to the percentage restriction and to the singing restriction, he would have given the state 30 days to prove its case. Not only to prove the effectiveness of the policy, but also to prove the fact that it did not overburden religious liberty.

Chief Justice Roberts, as the decision says, “Concurred in the partial grant of application for injunctive relief.” That turns out to be really, really crucial, because remember, in May of last year when we were looking at a church in Nevada making a very similar case, and I would argue making almost exactly the same case, by a 5-4 vote, the Supreme Court turned down its appeal and the Chief Justice was in the five, not in the four. But this time he was in the six, not in the three. Now in one sense the math changed because in the five of the 5-4 majority that turned down the Nevada church was the late Supreme Court Justice Ruth Bader Ginsburg, but she was replaced by the new Justice Amy Coney Barrett. But if Barrett’s vote merely replaced Ginsburg vote, that would have been a 5-4 decision for the churches in California. But it was 6-3. The reason it was 6-3 is because the Chief Justice of the United States, who had turned down an almost identical argument back in May, responded to the argument and he upheld religious liberty in the decision that was handed down on Friday.

Now there are lots of interesting questions here. What caused the Chief Justice of the United States to change his mind? And no matter how you read it, that’s effectively what he did. You could almost instantly explain why the math changed with Justice Barrett replacing Justice Ginsburg, but when it comes to the Chief Justice, well, the situation gets very interesting. In a concurring opinion handed down by the Chief, he said this, “I adhere to the view that the Constitution principally entrusts the safety and health of the people to the politically accountable officials of the states,” citing a previous Supreme Court precedent. But he said, “The Constitution also entrusts the protection of the people’s rights to the judiciary. Not despite judges being shielded by life tenure, but because they are, deference, though broad, has its limits.” That’s really, really interesting. He said, “Deference,” that means deference to the state authorities, “Is broad, but it has its limits.” Where was that limit reached? Well, you could put it this way. Somewhere between May of last year and February the 5th, when the Chief Justice changed his mind.

Now that’s not to imply that the Chief would have decided the case in May differently. I think he decided it wrongly, but nonetheless, I do not argue here that he would have changed his mind back then. But time does have an effect on human beings, and time has an effect upon the facts in the case. The reality is that the Chief Justice came to the conclusion along with his conservative colleagues, that the State of California was miserably failing to prove its case about its mistreatment of churches, banning all indoor services in that state in the name of the COVID-19 pandemic. “Deference,” said the Chief, “Though broad has its limits,” and evidently this was way past his limit.

Justice Amy Coney Barrett handed down her first written opinion in another concurring opinion in this case, and she was joined by Justice Brett Kavanaugh. They joined in saying that they emphatically, along with the Chief and their two conservative colleagues, believed that the state had gone far beyond its authority in shutting down all indoor services, but they would have allowed some injunction, including the injunction on singing.

But then the final concurring opinion came from Justice Neil Gorsuch, and he was joined by Justice Clarence Thomas and Justice Samuel Alito. We mention the fact that all three of them would basically have said all the restrictions that are put in place by the Governor of California are unconstitutional. Strict scrutiny and review means that they do not pass constitutional muster, and thus the judiciary is the last line of defense for religious liberty, and the judiciary must step in.

Now, what we need to note here is if you put all six of the conservatives together, that leads up to the 6-3 vote on behalf of these churches, it is a big win for religious liberty. As a matter of fact, when you look at the Chief Justice statement that deference is broad, but it has its limits. It’s a signal sent not only to the Governor of California, but to any state or government authority that they cannot shut down houses of worship indefinitely, even in the midst of a pandemic, especially when, as the decisions handed down made clear, the reality is that the State of California was demonstrably treating churches differently than other kinds of groups or organizations or entities such as businesses. Justice Gorsuch, in his opinion, that was joined by Justices Thomas and Alito said that what was going on in California is impermissible targeting of religion.

This is what he wrote, “When a state so obviously targets religion for differential treatment, our job becomes that much clearer.” Now that becomes very clear itself. He’s saying that the judiciary must step in, the Supreme Court at the very top of the judiciary, the judicial branch of government, when the other branches of government fail. In this case, neither the executive there in California, that is Governor Newsom, a Democratic governor who is currently facing calls for his recall, or the legislature there, neither one of them had stepped up for religious liberty and the governor was actually violating religious liberty in a demonstrable way.

Interestingly, Justice Gorsuch also wrote this, “Of course we are not scientists.” The we here meaning judges, Justices on the Supreme Court. “We are not scientists,” he said, “But neither may we abandon the field when government officials with experts in tow seek to infringe a constitutionally protected liberty.” That’s also just incredibly important. I haven’t seen anyone in the mainstream media point to that sentence, but let me tell you what it comes down to. It comes down to the fact that they are acknowledging that scientists genuinely have something to say. They come with a scientific expertise and insofar as you would call it an authority, they come with a scientific authority. But, as the Justice has made clear, they are not the Supreme Court of the United States, we are. And we cannot just step back and say, “Well, the scientists say,” when a basic matter of constitutional law and religious liberty is at stake. That is a profoundly important sentence.

Speaking of the standard of strict scrutiny, Justice Gorsuch then wrote, “The whole point of strict scrutiny is to test the government’s assertions and our precedents make plain that it has always been a demanding and rarely satisfied standard.” That again is just really, really important. What these three justices, Justice Gorsuch joined by Alito and Thomas are saying is that when it comes to a government that is limiting any kind of fundamental freedoms, such as religious liberty, strict scrutiny means that the government must prove its case and in actuality, it rarely proves its case effectively.

Making their argument really tangible, the three justices together said this, “Consider California’s arguments in turn. The state presumes that worship inherently involves a large number of people, never mind that scores might pack into train stations or wait in long checkout lines in the businesses the state allows to remain open. Never mind too, that some worshipers may seek only to pray in solitude, go to confession or study in small groups.” They went on to say, “Nor does California explain why the less restrictive option of limiting the number of people who may gather at one time is insufficient for houses of worship, even though it has found that answer adequate for so many stores and businesses.”

They go on making other very tangible arguments where the State of California was allowing this, that, and the other thing, but not religious expression, but not religious gatherings, but not freedom of worship. When it comes to the most important statement in the decision, it is this, “California singles out religion for worse treatment than many secular activities. At the same time, the state fails to explain why narrower options it finds sufficient in secular contexts do not satisfy its legitimate interest.” Again, note the fact that even the most conservative justices recognize that the state has legitimate interest, legitimate interest in the context of a pandemic, but those legitimate interests do not give the state unlimited power.

Also as a footnote here, it’s really interesting when it comes to the singing, these justices indicated that it might be the case that some restrictions on singing would be justified. But they went on to say, “What about even a single soloist who would be singing in the context of worship?” They pointed out that that kind of singing is allowed by what they call California’s powerful entertainment industry in winning an exemption. But you’ll notice, California’s powerful entertainment industry does not represent a constitutional right to entertainment. This is a very similar argument to what failed before the Supreme Court and even with the chief justice in May of last year, when a church in Nevada came and said, “People are free to gather together at Caesar’s Palace, a casino, but not in a Christian Church, that’s fundamentally wrong.” We can only be thankful that the Chief Justice has now recognized that fact.

The three liberal justices issued a common dissent that was written by Justice Elena Kagan. She was joined by Justice Stephen Breyer and Sonia Sotomayor. She said that when it comes to the governing law, the First Amendment grants neutrality, but the government, that would include the federal government and the state governments, must be given a lot of deference, particularly in the context of a pandemic. They went on to argue about weather, no kidding, so did the State of California, trying to defend its position, “Given California’s mild climate that restriction, the one the Court today lists for houses of worship alone does not amount to a ban on the activity.” In other words, you can make churches go outside, but you’ll notice that is not equivalent to what the state is allowing in other enterprises, and that’s the point.

The most interesting thing is that the three liberal justices basically avoid the religious liberty argument almost as if it’s an allergy. They really just don’t deal with it. And when it comes to the three liberal justices, they seem to assume that science has a certain authority that trumps even constitutional rights as when they conclude by making the argument that the majority has insisted that science based policy yield to judicial edict. You’ll notice the argument there.

At the end of the day, you find out in a case like this, what a person in responsibility, a person who must respond to the question, actually believes about what we might call ultimate authority or even ultimate epistemic authority. If that wakes you up, what I’m talking about there is the basic authority for knowing what is true, who gets to say what is factual, and who gets to decide on what information a decision is made. The conservative justices, one way or another, all six of them got to the issue of religious authority and the court’s own responsibility. The three liberal justices ended up criticizing the conservative majority for denying the science. That’s the kind of language you now hear routinely.

But even if you try to follow with that worldview, it raises all kinds of questions. Which science or what science, and which scientists are to be recognized as having that authority? Science is not a unified block of opinion or judgment. But all that’s in the background, what’s in the foreground is a very big win for religious liberty coming from the nation’s highest court, and any way you look at it, that’s very good news.

Part II

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Biden Administration Takes Its Aim at Religious Liberty at Home and Faces Challenges to Religious Liberty Abroad

But next, it’s not just the judiciary and most importantly, the Supreme Court of the United States to whom we look when it comes to issues such as religious liberty. We sometimes look with concern. We sometimes look with hope. It is also to the executive branch, and most particularly to the President of the United States and President Joe Biden is very much on the line when it comes to religious liberty issues. And there’s massive reason for concern here. Mary Vought, writing an article in the Wall Street Journal entitled, “Joe Biden’s Choice on Religious Freedom,” actually enumerates several of the issues of greatest concern.

Number one, when the president speaks of his absolutely unallied support for contraception coverage and the Obamacare legislation, you need to recognize that what that means is that groups such as the Little Sisters of the Poor are once again put in the center of the bullseye. And it’s not just the Little Sisters of the Poor, it is anyone who, on the basis of any religious conviction, as an employer does not believe that conscience would allow involvement in the supply for contraceptives that could include even some forms of birth control that function as abortifacients, that is to say, are involved in abortion. The issue here is that the Supreme Court actually handed down a decision that decisively said that closely held private corporations have a right to an exemption from that policy.

But the Obama administration, while offering a limited religious exemption did not exempt groups such as the Little Sisters of the Poor. That’s a Catholic order of nuns, in case you aren’t familiar with them. It is almost like satire to say that the Obama administration went after the Little Sisters of the Poor, but they did. And just keep in mind that when he was running for president and now as president, Joe Biden has made very clear that’s exactly what he intends to do, to put the Obamacare contraception mandate right back into place.

The second issue that Mary Vought raises is Biden’s support for taxpayer funding of abortion. Again, he was against it before he was for it. He was against it for decades in the United States Senate and proudly campaigned on his opposition to taxpayer funding of abortion. But all that’s changed, both with the executive order, with which he rescinded the Mexico City policy put in place by President Reagan and now in his opposition to the Hyde Amendment, that’s the budgetary provision passed since the late 1970s, that prevents taxpayers from being coerced to pay for abortion. He was for the Hyde Amendment, now he says he is against it again, a huge, huge issue, with religious liberty very much at stake. If indeed the Hyde Amendment is defeated, then what it would mean is that every single taxpayer, including Christians who are opposed to abortion, would have our own tax money now paying for abortions internationally and nationally, if the Biden administration gets its way.

The third issue here is one you can immediately get to, and that is the fact that as candidate and as president, President Biden has indicated that he would pledge to sign the Equality Act. And remember, the Equality Act is, as we underlined several times on The Briefing, it is a locomotive that would drive the moral revolution in such a way that the inevitable collision between the moral revolutionaries and people of religious conviction, religious liberty, what would have to give in almost every case is religious liberty. The Equality Act is probably the single most dangerous piece of legislation when it comes to the preservation of conservative Christian biblical conviction in the United States.

But fourth, as Mary Vought also points out, the Biden administration is going to be severely tested on religious liberty when it comes to foreign policy. What about the beleaguered Uighurs, now targeted with genocide by the Chinese Communist Party? What about those whose religious liberty is now directly threatened in the nation of Myanmar? Those are just examples of the foreign policy challenges when it comes to religious liberty that the Biden administration will face and actually already does face. Most importantly, I would say, the challenge coming from the Uighur genocide in China. But as we follow, Mary Vought concludes her article by saying, “Mr. Biden has spoken about national unity, pitching himself as the man to help the U.S. heal. That’s harder than it sounds. He shouldn’t make it even more difficult by undoing the policies that respect and promote religious freedom at home and abroad.” Very well said.

Part III

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George P. Shultz, Former Secretary of State, Dies at 100: A Steady Hand in American Diplomacy Following the Leadership of President Ronald Reagan

But finally, let’s look at some of the interesting worldview dimensions that come down to an individual life. The milestone that is registered in a news story that came out late yesterday of the death of the former Secretary of State George P. Shultz. He was secretary of state for six and a half years. The longest tenure of any modern secretary of state in the administration of president Ronald Reagan, George Shultz, just a matter of a few weeks ago, celebrated his 100th birthday. That’s an incredible milestone and probably singular when it comes to anyone who had been a cabinet member in a presidential cabinet. And in commemoration of his own 100th birthday, George P. Schultz wrote an opinion piece that was actually published in the Wall Street Journal at age 100, but he didn’t live long after this 100th birthday.

And his death was announced yesterday by the Hoover Institution where he was a senior fellow. There will be a lot of obituaries about George P. Shultz. But one of the interesting things about living to 100 is that you live past the headlines for which you’re most famous. The reality is that the majority of people now living in the United States would not remember, nor could they have known George Shultz as not only the former United States Secretary of State, but one of only two individuals in the entire history of the United States to have held not just one, not just two, not just three, but four full cabinet level positions. The other by the way, would be the late William Simon, also of the Nixon administration, he served in four cabinet posts.

George Shultz served in four cabinet posts. He was the director of the Office of Management and Budget. He had actually entered the federal government as an MIT PhD in economics hired by the Eisenhower administration, but he served in the cabinet positions, three of them under President Nixon. He was director of the Office of Management and Budget. He was Secretary of Labor and he was Secretary of the Treasury.

As I discussed on The Briefing sometime back, the Secretary of the Treasury is one of the four big historic positions of priority in the United States presidential cabinet. But at the very top of that hierarchy is the United States Secretary of State, and it was in the Reagan administration that he served in that capacity for six and a half years. He followed Secretary of State Alexander Haig, who had a very tumultuous year and a half or so in that office. Haig was a retired military figure. George Shultz was a veteran. He had fought in combat in World War II, like almost every other young man of his generation, but he was primarily known for his service to the country in a succession of appointed positions in the executive branch.

George Shultz came of age as America was coming of age, he graduated from Princeton University, an Ivy League institution. He emerged into the nation’s elite. He went on, as I said, to do a PhD in industrial economics at the Massachusetts Institute of Technology, known as MIT. Once he was in government in the Eisenhower administration, he spent most of his successive years until his concluding years as secretary of state, in government service in one way or another. He survived the Nixon administration and the Watergate scandal because he was understood to uphold the rule of law. He was massively respected by both parties, but even when people talk about some previous bipartisan age, the reality is that by the time one is in a senior appointed position, most individuals are pretty much marked with a D or an R. There are some fairly rare exceptions, but after that, the trajectory becomes very clear, when the president is the president of your party, you may well serve in some kind of senior capacity, otherwise you’re basically out of government. George Shultz didn’t spend much time out of government until his retirement from public life.

George Shultz was an institutionalist of the old form. He believed that the American experiment and the American form of government, the executive branch in particular, came down to the maintenance of certain institutional goods that were to be protected. He saw himself as a steady hand, who came to the Department of State as the secretary at a very time when both the world and the nation were in some form of tumult. The State Department needed an institutionalist after Alexander Haig, and the world needed a very steady hand at the State Department during some of the most intense years of the Cold War. George Shultz was the kind of institutionalist and the kind of steady hand that had enormous credibility with America’s enemies, as well as America’s friends.

But as we look to the worldview dimensions, I want to point to something else. As you look at the press coverage of the death of former Secretary of State George P. Shultz, you are likely to see just about everyone in the mainstream media say that he formed some kind of a buffer or corrective, a moderating force in the Reagan administration upon President Ronald Reagan himself. You see this in the case of almost every Republican administration. When it comes to the making a policy, the argument is the president has to be somehow influenced by a cabinet member who actually deserves credit for the foreign policy or whatever policy may be at stake. The reality is that we need to take nothing away from Secretary of State George Shultz, he was a steady hand.

But the great moral influence in American foreign policy and the opposition, most importantly to the Soviet Union, came not from the secretary of state, but from the president of the United States, Ronald Reagan. But Reagan was very clear in speaking about the world and about the Soviet Union in terms of good and evil, something that many in the American establishment don’t like to talk about. They don’t like those categories. They find them both morally offensive and politically awkward. Ronald Reagan would have nothing of that, neither did Margaret Thatcher in the United Kingdom. There can be no doubt that Secretary of State George Shultz gave much good advice to President Reagan, but President Reagan was himself at the helm of American foreign policy. And history makes that very clear, as did the leaders of the Soviet Union once it was no more.

But the death of George Shultz reminds us that time does pass and don’t we know it, don’t I know it. It passes very quickly. There’s only one living member of the cabinet of President Lyndon Johnson now alive. There’s only one member now of the cabinet of President Richard Nixon now alive. As the great hymn reminds us, “Time, like an ever-rolling stream bears all its sons away.”

It’s true. And not just sons, daughters, too.