Wednesday, March 10, 2021

Part I

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Does $1 Really Matter? In 8-1 Ruling, the Supreme Court Supports the Validity of Lawsuits Seeking Only Symbolic Monetary Damages

The Supreme Court handed down an 8-1 decision and a very interesting case this week. It deserves our attention. It deserves our attention, first and foremost, for the facts of the case, long before we get to the actual decision handed down in that rather remarkable eight-one pattern by the nine justices of the Supreme Court. The facts take us back to a young college student named Chike Uzuegbunam on the campus of Gwinnett College, just outside of Atlanta. The college had set up what it declared to be free speech zones, but Chike Uzuegbunam got in trouble when his free speech was openly evangelistic.

There were those who claimed he was too loud. There were those who claimed that his message itself was offensive. In any case, the college authorities told him that he could not share the gospel publicly as he was an effective form of something like street preaching there on the campus. He was told that he would have to take his message elsewhere. Eventually, the college came up with a system of free speech zones that amounted to something close to 1/100th of 1% of the campus. Now, unsurprisingly, the State of Georgia eventually backed down from this and the college authorities changed their policy.

Now, the scary thing is that this would ever take place, that in a state like Georgia on a campus of a public university there in Georgia, there would ever be this kind of absolutely unconstitutional violation of both free speech and religious liberty. We ought to be able to assume that this kind of case would never arise in the first place, but of course it did. Now, this case has arrived at the Supreme Court, but let’s just ask the question. Why is the case before the Supreme Court now if the college backed off and changed its policy? Well, that gets to a very interesting legal question and that legal question ended up this week with a very strange pattern.

I mentioned eight justices on one side, one justice on the other. But it’s actually the first case in his 16 years as Chief Justice of the United States that John Roberts was alone in a dissent. In 16 years on the nation’s highest court, that had never happened before. It’s actually a very interesting historical development. You have all eight of the associate justices on one side liberals and conservatives, very, very liberal, very, very conservative, united. The odd man out in this case is the Chief Justice of the United States, an eight-one decision is an extremely clear decision. When that one is the Chief Justice of the United States, well, there’s an interesting story here, an interesting legal principle.

The legal principle came down to what is basically symbolic monetary damages because Chike Uzuegbunam has been suing the authorities of the college and the state authorities because of their abrogation of his free speech and religious liberty. But the authorities backed down, but Chike Uzuegbunam was arguing that he still had the right to bring a case against the authorities that would come down to monetary damages. Well, you say he is just, in this case, perhaps showing himself to be an opportunist, looking to find some kind of financial windfall from the mistake made by the college authorities and thus the State of Georgia, and now he is seeking to gain advantage by suing them for a large amount of money. But he didn’t Sue them for a large amount of money. He sued them for $1.

Now, legally that $1 is referred to as nominal damages. In this case, nominal means small, and boy is it nominal. We’re talking about the acknowledgement that a case like this that would work its way all the way through the federal courts, the appellate courts to the Supreme Court, it involves millions of dollars of legal work. You’re telling me it all comes down to a penalty of $1, and the answer is yes, it does. Behind this is a very key legal principle. The legal principle is this, even if there are merely nominal damages, there is a moral principle that is at stake in the court making a decision in favor of the defendant. That turns out to be a very important legal issue.

Yes, the college authorities did back down. Yes, there was a resolution to this case, but as Chike Uzuegbunam and his attorneys argued, there is more to this case than the authorities backing down, a signal needs to be sent that in similar cases, those who are in the wrong, government authorities, campus authorities, who act unconstitutionally, they should be ready to face the consequences. When you’re looking at the nominal damages in this case, the $1, a lot of it comes down to the fact that Chike Uzuegbunam having made his statement about gospel preaching, as he found himself on the wrong side of college authorities is now making another moral statement and that is his case might not be singular. This same pattern might be a threat elsewhere. It is important that the nation’s highest court declare the fact that even if the damages come down to $1, there was real damage.

But now putting the facts of the case, which for Christians turn out to be the most important issue, but putting the facts of the case aside, because this could be about something else. It could be about some other cause that someone’s bringing before the nation’s highest court for nominal damages. The issue is nominal damages. If the government or the offending entity has changed the policy, if the problem is removed, is there really any legal recourse for citizens to go to the federal courts and even to the Supreme Court demanding nominal damages in the name of justice? Here’s what’s really interesting, eight of the justices said yes. Yes, it is important in our judicial and constitutional system for citizens to be able to press for even nominal damages in order to make a very non-nominal point.

But that raises another very interesting question, then why not the chief? Why was the Chief Justice on the other side, not only on the other side, on the other side to the extent that he broke with his own intention to bring as many unanimous decisions as possible to the public, and he is breaking all precedent for the 16 years he’s been on the nation’s highest court and Chief Justice of the United States. Why draw the line here? Well, it is because the Chief Justice is not, by the way, just the Chief Justice of the Supreme Court of the United States. He is the Chief Justice of the United States of America. What does that mean? It means that not only is he the Chief Justice of the sitting court we know as the Supreme Court, he is actually the Chief Justice over the entire federal judiciary.

Now, that’s a rare responsibility. So rare that most Americans do not know that he has it. But having it, the Chief Justice is looking at this and understanding in practical terms that if there is an opening of the doors to cases for nominal damages when the nature of the cause has been removed, the federal courts could be flooded with such cases. He also appears to be thinking in other terms, and that is the fact that in cases like this, it might be that the law would matter less to some juries in some courts or to some judges in some situations than the facts of the case. He wrote in his dissent that the Supreme Court given this decision might just turn itself into a body with an opinion on many issues. The Chief Justice rightly pointed out, that’s not the role of the courts.

On the other hand, the eight justices who stood together in an opinion written by justice Clarence Thomas, again, that’s very interesting. So Steven Brier and Elena Kagan and Sonia Sotomayor were joining in a decision written by Clarence Thomas, yes. That tells you that sometimes the issue really is the law, not so much anything that can be defined as liberal or conservative. That’s important for us to recognize. Sometimes the law comes down to a constitutional principle that liberals may see one way, conservatives may see another way, but when it actually comes to a given case, in some cases, they’re going to see the same thing together. That’s important. The law is the law. In this case, eight justices stood together from both polarities in America’s very divided culture to say, “Yes, cases for nominal damages turn out to be the right of Americans, at least as a possibility. That possibility that they united even eight to one said we are not going to shut down.

In closing on this issue, I want to cite that majority opinion, a majority of eight written by Justice Clarence Thomas, he said this, “By permitting plaintiffs to pursue nominal damages whenever they suffered a personal legal injury, the common law avoided the oddity of privileging smaller dollar economic rights over important but not easily quantifiable non-pecuniary rights.” Fascinating language here talking about rights that are not easily quantifiable, non-pecuniary rights. What does that mean?

It means that Justice Thomas and the other seven justices in this unusual majority said, “Sometimes, it’s really not about the money. It’s not about trying to quantify in monetary terms the damages against Mr. Uzuegbunam. Sometimes it comes down to the fact that $1, just a single dollar bill, as a stand in for an issue of far greater, even infinitely greater importance, something that can’t be measured, something that can’t be stacked in dollar bills, but is real nonetheless.” In that sense, this case was a real victory from the United States Supreme Court.

Part II

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$17,000 Electricity Bills in Texas? Are Americans Given Too Many Choices Today? A Look at the Nature, Necessity, and Morality of Consumer Choice

But next, even as there are many headline issues that would rightfully demand our attention, I want to turn today to a few issues that might not have caught as much national attention, but turned out to be actually quite important. One of them is an opinion piece written in the New York Times by Paul Krugman. Professor Krugman has taught at Harvard University. He is also the recipient of the Nobel Prize in Economics. But he’s in the New York Times as a very liberal columnist, so liberal that his very, very strong language has often offended people on the left who fear that his arguments are often simply too divisive. In this case, you have to say that Paul Krugman doesn’t just divide liberals from conservatives. He often divides liberals from the more liberal and the even more liberal.

But nonetheless writing from the left, and a very aggressive left, he writes an argument with the headline too much choice is hurting America. It’s an interesting argument. By the way, we look at this and say, “This isn’t just a liberal conservative issue, but there is a very interesting worldview dynamic behind this.” Now, he’s writing about too much economic choice and he points to the fact that in the recent weather tragedy that took place in Texas, there were those who discovered that their energy bills went to skyrocketing high. How high? Well, in some cases, something like $10,000 for the month, or even the days of that very dramatic cold weather in Texas.

And as you look to it, you think that sounds absolutely ridiculous. Maybe it is absolutely ridiculous. But the bottom line is that there were people in Texas who were given choices about the kind of energy contracts they wanted. The cost of supplying energy for their homes and businesses and at least one of the options was a very low cost model based upon actual usage and drain on the total system, as compared with what would go up under unusual circumstances and it might go up a great deal. Unfortunately, it did go up a great deal. There were people who discovered that their energy bills had gone up so much in kilowatt hours charged that they were looking at tens of thousands of dollars, or in many cases, at least several thousand dollars of energy charges.

There was outrage, and then there was the response, well, they signed the contract. Well, we do that all the time. Don’t we? Well, we do in some sense. We come to the cash register and we sign the pad saying that we’re going to pay the bill or we check off you accept the terms and conditions when you’re somewhere on the web making a purchase, or just even signing up for an email account. The reality is very few Americans read through the thousands of words that are likely a part of those texts. But at the same time, those consumers in Texas had faced a choice. They could have had bills that would have been on average higher some months, but not unreasonable. They decided to go with the lower charges, knowing that the risk was present of those charges going much higher given demand.

Now, they certainly did not foresee that unusual cold spell in Texas. Neither did the energy companies have adequate reserve to deal with it. But the bottom line is they made a choice. Paul Krugman is writing this article too much choice is hurting America because he says, “Americans shouldn’t be burdened with that many choices, with choices that could end up injuring them. People need fewer choices.” That’s his argument and it’s a very interesting argument. It actually has some very deep relevance for us in thinking about things far beyond energy bills in Texas. Krugman’s writing with a bit of outrage, he asked the question, “How did we become a country where families can face ruin unless they carefully study something as mundane, as normally routine as their electricity contract?”

Well, I just want to step back and say Americans face that kind of danger all the time and there’s no way to prevent or to protect Americans from every one of those possibilities, because we are in a nation in which you have free economic agents, making contracts with other free economic agents. We make choices. Sometimes those choices pan out. Sometimes they don’t. Krugman predictably blames conservative economics for this, “It’s true that both economics 101 and conservative ideology say that more choice is always a good thing. Milton Friedman’s famous and influential 1980 TV series extolling the wonders of capitalism was titled ‘Free to Choose.'” Krugman continues, “The spread of this ideology has turned America into a land where many aspects of life that used to just be part of the background now require potentially fateful decisions.”

His next sentence is very important, “You don’t get a company pension, you have to decide how to invest your 401k. When you turn 65, you don’t just get put on Medicare. You also decide which of many Medicare advantage plans to sign up for you. Don’t just get power and phone service. You also have to choose from a wide variety of options.” Now that’s really important, but Paul Krugman’s writing as if this increase in choice is a bad thing. But let’s recognize the concrete example he gave here that turns out, I think, to be most important and that is, he said, “Now in this day of so much choice, you don’t just get a company pension, you get a 401k and you have to decide how to invest it.”

Well, here’s the bottom line. You either think that was a good or a bad thing. During the old days, when you did have a company pension, it was a defined benefit. If your pension said it was going to pay out $175 a week upon your retirement, that’s what it would pay out. The company or the employer and the financial resources behind would have to come up with a $175 a week. But the problem is most people came to realize that given the opportunity to invest those funds more strategically, most people could end up if they invested rightly with a lot more than $175 a week. They might be able to improve upon that seismically and many Americans have.

As you look at the performance of the stock market, you see the fact that most Americans will do better under a defined contribution plan, a 401k, that they have to take responsibility for investing rather than a company pension. That doesn’t require any intellectual activity, doesn’t require any particular attention for a pension. But the fact is, most Americans, if they have the opportunity, will likely take the opportunity to receive more in retirement rather than less. It all comes down to how much is actually earned from the monies that are invested. Well, a 401k turns out to be a very good thing in the views of Americans who are using them by the hundreds of millions.

But the question comes down to whether or not those investors are always going to make the right decision, and the answer to that is no, they will not. Furthermore, I was president of this institution when we shifted the faculty contract now almost 30 years ago from a defined pension benefit to a retirement plan that faculty members could take responsibility for. But it also turned out that some of them didn’t want to take responsibility for it. But fast forward to today, I think virtually no employees at Southern Seminary and Boyce College would prefer to go back to the pension plan. Most of them will look with a lot of satisfaction at what has happened to their own investments, their own individual retirement account under their own management. But it also means under their responsibility.

So one aspect here is the realization that if we are going to want to do something other than what other people would do with our money, we do have to take responsibility for the choices that we make in investing our own funds or our own retirement or our own savings account, our own piggy bank. But of course, you are looking at some kind of boundary here. Paul Krugman, though, he’s writing from the far left, I’ll agree with him. There are situations in which Americans are simply inundated by so many choices and so much material, so much information that it’s hard to argue that informed decisions have been made. That is a problem. I think we need to acknowledge that problem. That problem surely came to national attention given the crisis in Texas.

But here’s where we also need to understand how to solve that problem. There is an easy way to solve that problem, reduce the economic choices. Oh, well then who will do that? Well, somebody’s got to decide which economic choices are then going to be authorized or not authorized. That means someone other than you. That means that someone basically operating as big brother or big sister is going to have to make those decisions. Who’s going to decide, by the way, if you have an older car, if you’re going to buy a collision policy or just liability automobile insurance? Well, if you take the collision policy, you’re going to pay a lot for that. If you don’t have an accident, you will regret having paid that money.

On the other hand, you might make the decision you’re going to forego the collision coverage, and that means that if there is an accident, you might end up paying for the collision damage. So, which is right and which is wrong? Well, I think most Americans would say, “I still want to have that choice.” Later in his article, Krugman makes it psychological. He writes, “Beyond all that, I’d suggest that an excess of choice is taking a psychological toll on many Americans even when they don’t end up experiencing disaster.” He then cites a very interesting worldview category, cognitive burden. He says that we bear a cognitive burden when we bear the burden of having to try to think things through and figure things out.

I think we have all felt that burden before. Someone puts before you a set of insurance options, you go to the car dealer and you pick out a car. You’re trying to buy a house. Good grief. There is often simply too much cognitive demand made on us. On the other hand, we do want to choose our house. We do want to choose our car. We do want to choose our insurance. That’s a cognitive burden. Yes, it takes a psychological toll. Yes. But the absence of it turns out to be a form of tyranny. Yes.

I remember reading an article years ago, it was in the grand old age of American department stores as a matter of fact, and a man whose wife had generally bought him socks told him he needed to go buy his own socks. He went to the sock department of the men’s department of local department store. By his count, he found more than 150 different varieties of men’s socks. He said, “He sat down in a chair and was ready to weep.” He did not have the intellectual or emotional resources to pick out a pair of socks. But then again, you just think about the alternative. Yes, I really don’t want to choose from 150 pairs of socks. But I am pretty particular about my socks and I don’t really want someone else picking out my socks, including some bureaucrat somewhere who decides just how many socks American men should be able to choose from. Hands off my socks.

But I want to note something at an even deeper level. I wonder how many on the left who think that a consumer economy gives us too much choice recognize that on the biggest issues of the day, it is those who are their moral rebels and revolutionaries who are insisting on choice. We’re talking about choice or at least personal preference, or we’re talking about personal identity and so many issues. When it comes to, we’ll just take the issue of abortion and remember how the attempt has been made to reformulate it as the pro-choice position. That’s a choice between life and death. That’s a choice I believe that human beings shouldn’t have the right to make.

So yes, on the right and the left, from the secular viewpoint and from a Christian worldview perspective, there are necessary concerns about choice. There is a moral responsibility for choice, and there is an understanding of the fact that some choices should be available to us and other choices should not. That just underlines the fact that even though I agree in part with Paul Krugman, that there is a cognitive burden associated with choice, I believe that what we see here is a great distinction between worldviews, a clash of worldviews in what should be allowable choice and what should not be.

Part III

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The Wisdom of Repugnance: An Important Theological and Moral Insight from the Human Impulse of Disgust

But finally, I want to look to an interesting argument that appeared recently in a report from The Seattle Times, the headline feeling disgusted could be good for your health. Interesting headline, very interesting story. It comes down to the fact that as Christine Clarridge writes in this report, “There’s no need to feel there’s something wrong with you if you recoil when foodie friends talk about the interesting delicacies they’ve tried, still beating cobra hearts, soft boiled fetal duck, or even the more banal, chocolate covered crickets. And you don’t need to change.” In fact, she writes, “These reactions could keep you healthy.” She explained, and I quote, “Disgust it turns out is good for you. According to a new study published last week in the proceedings of the National Academy of Sciences, it suggests that revulsion could be the body’s way of avoiding infection.”

Now, this isn’t a particularly new observation, but this was headline news in The Seattle Times, and it is very interesting. The context of why this story appeared is also very, very interesting. It is because one of the most unusual symptoms that has come with the COVID-19 virus is the absence of smell and taste. Most importantly, many people report the absence of smell. It turns out that an absence of smell, a loss of the ability to smell can be not only inconvenient, it can actually be dangerous. The article here is pointing to this academic treat is telling us that it turns out that the ability to smell things you should not eat is good.

As a matter of fact, this academic study found that there was a tie between the ability to smell trouble and the spread of infectious diseases. It turns out that not eating certain things, for example, or food that may have spoiled, just to give one example, is very important for the survival of humanity. You might want to keep that in mind. Now, I don’t mean to ruin your breakfast, lunch or dinner. I may be telling you more than you want to know when I cite Professor Aaron D. Blackwell, who teaches at Washington State University, he’s the coauthor of the study, and he tells us that participants from three indigenous Ecuadorian Shuar communities were asked to rate their level of disgust on things like, and this is the list, “Touching a dead animal, stepping in animal droppings, or drinking a fermented corn drink known as chicha, made in this instance by someone with rotten teeth chewing the corn and spitting it into water to let it ferment.”

I told you, you might not want to know this, but now you do. But here’s the result of the academic study, and you’ll want to hang onto this, “The higher, the level of disgust, the lower the level of their inflammatory biomarkers indicative of infections.” The researchers wrote, “While the study shows that disgust functions to protect against infection, it also showed that it varies across different environments based on how easily people can avoid certain things.” The article concludes by stating, “Avoiding things that disgust you seems like a good overall bet.” Well, I bet that’s true. But here’s what we need to recognize. There is a deeper theological insight and principle than you might notice in this. This is a purely secular perspective pointing to disgust as something that might turn out to be important for our health. Don’t touch that. Don’t eat that. Don’t drink that water that doesn’t look good and smells. Don’t take it.

But this comes down to what prominent Jewish philosopher Leon Kass called the wisdom of repugnance. He pointed out that there is a moral wisdom in the fact that there are certain things that are disgusting, repugnant. They ought not to be touched. They ought not to be eaten. They ought not to be allowed in our homes. That wisdom of repugnance he says isn’t enough and he’s right about that. It isn’t enough. Furthermore, as Christians, we have to say, “In a sinful world, we can get that wrong. There are things that might disgust us that actually aren’t wrong.” But it is at least an early warning system. Then we need to check that wisdom of repugnance over against biblical Christianity, biblical morality. Does the Bible say that this is wrong? Is this something that is not godly and ought to be avoided?

But it’s really important to recognize that Leon Kass was writing about the wisdom of repugnance, this basic issue of moral disgust when he was talking about not what we eat, but what we do with our bodies, even how we order our sex lives and whether or not we will destroy fetal and embryonic human beings simply for purposes of medical research. Leon Kass, who was head of the President’s Commission on Bioethics during the administration of George W. Bush rightly said that the wisdom of repugnance should tell us that there’s something inherently morally wrong with destroying unborn life, even at the level of the embryo.

So from a Christian worldview perspective, from a biblical theology, the wisdom of repugnance, this instinct or intuition of disgust isn’t enough, but it didn’t come from nowhere. God made us in such a way that we have the capacity for moral revulsion. There’s a certain knowledge within us. Those things we cannot not know that tell us we shouldn’t touch that, we shouldn’t do that. But we’re living in a time, we’re living in the context of a society that on so many issues of life, sexuality, morality is saying, “Forget the wisdom of repugnance and go with modern liberation.”

But I’ll end The Briefing today by just pointing out that sometimes the wisdom of repugnance has to be taught, and without being too graphic here, every parent of a toddler had to understand how to teach that toddler, “Don’t touch that. Don’t do that.” We’re living in the midst of a very confused society in which we, as Christians, may often have the responsibility simply to say as a first line of argument, “Don’t do that. Don’t touch that. Don’t eat that.” There’s a wisdom in that repugnance.