Wednesday, March 17, 2021
It's Wednesday, March 17, 2021.
I'm Albert Mohler, and this is The Briefing, a daily analysis of news and events from a Christian worldview.
“The Determination Will Have to Be Made”— The Equality Act Threat According to Its Own Lead Sponsor
The legislation known as the Equality Act represents the greatest present threat to religious liberty. In many ways, as legislation, it represents the greatest threat to religious liberty in the United States in our lifetimes. But we're also looking at what is a clear and present danger having been adopted by the house twice in the last Congress, and then more recently in this Congress, now passed on to the Senate for consideration.
The Equality Act, as it is packaged, died in the Senate in the last Congress because it had a Republican majority that refuse to move forward. But now, of course, there is a Democratic majority, and even though there are not 60 votes in the Senate to move the legislation along, we are likely to see political maneuvering, trying to get to that number. But let's just remind ourselves what we're looking at here. The Equality Act would amend the Civil Rights Act of 1964 to include the entire array of relationships, and behaviors, and identities, known as LGBTQ, and to put those identities alongside, for example, race and gender as protected classes against whom there could be no discrimination in employment, in education, in public funding.
It would totally transform the United States as we know it. And one of the most important things for us to recognize is that this is a bill that represents a direct subversion of religious liberty. We have been seeing a pattern coming, a collision between the newly invented sexual liberties, and the liberties that are actually enumerated, that is to say explicitly defined and respected within the United States Constitution. These newly invented artificial rights are pushing out the established constitutional rights, and let's understand that the founders of this nation were absolutely right that religious liberty and religious freedom is the first freedom, it's not only first in priority, it also is the basic freedom from which all other freedoms are eventually derived. If you eliminate religious freedom, if you redefine it, if you subvert it, you are subverting all authentic liberties, and all authentic rights.
Now we've seen this collision coming, and yet we have also understood that the threat was coming from two very important directions. One would be the courts, and the other would be Congress. And in this case, it's Congress and the incumbent president of the United States, Joe Biden, who are pushing this Equality Act, and it would utterly transform society because it would remove the right, for example, of Christian institutions, such as Christian schools, to operate on the basis of Christian conviction. If you go back to the Obergefell decision from the Supreme Court, the oral arguments in that case included an exchange between the solicitor general of the United States and the chief justice of the United States, and also exchange with Justice Samuel Alito.
When asked if the legalization of same-sex marriage by the court would mean that, for example, religious colleges that offered married student housing would be required, because of the new definition of marriage, to house same sex couples, the then solicitor general representing the Obama administration chillingly said, "It will be an issue." Well, of course it will be an issue and it's already an issue, and we notice now that what is coming along in the Equality Act is actually an announcement that religious liberty is being curtailed. That announcement comes not only in the redefinition of the Civil Rights Act, it comes in the fact that the congressional legislation now, that has been passed by the House to the Senate, explicitly denies the right of citizens to appeal on the basis of the Religious Freedom Restoration Act.
Now, wait just a minute. What's that? The Religious Freedom Restoration Act was adopted by Congress and signed into law in 1993. It was remedial legislation, that means it was to correct an infringement of religious liberty that had come by the Supreme Court in a 1990 decision. Now here's what you need to note, the Religious Freedom Restoration Act passed in Congress, unanimously in the House of Representatives, where the lead sponsor was then US Congressman, Charles Schumer, Democrat of New York, the current majority leader of the United States Senate. And by the way, a proponent of the Equality Act.
But in one strange provision in the Religious Freedom Restoration Act, the legislation said that it would be binding upon all further acts or bills passed by Congress, unless that legislation explicitly denied appeal to the Religious Freedom Restoration Act. That's what's in this Equality Act. Christians need to understand that the legislation that is now before the Senate, known as the Equality Act, actually not only includes no provisions respecting religious liberty, respecting the right of, say, Christian institutions to operate on Christian conviction, it actually goes further and says that Christians and other citizens can make no appeal based upon the Religious Freedom Restoration Act.
We're talking about a U-turn in American public life. We're talking about legislation that passed unanimously in the House, and by a vote of 97 to three in Congress in 1993, Congress has now reached the point where it is basically putting its own previous action on hold in order to push the LGBTQ agenda. And it's doing so, at least we must say, honestly, it's telling us what it's doing.
In an article published on Monday at Public Discourse, I make the argument that what we are looking at now is actually the rise of what must be understood as the anti-theological state. I'll explain that more in just a moment, but what I want to make clear right now is that what we are looking at in the Equality Act is a direct subversion of religious liberty, and we also need to understand that the lead sponsor of the bill in the House of Representatives has told us exactly what the bill will do.
This time, the lead sponsor of the Equality Act in the House is representative David Cicilline, a Democrat of Rhode Island. He made the statement quite confident of the passage of the Equality Act and notices logic, "This is going to be a vote that's going to be remembered in the history books, and I think people are going to want to be on the right side of history." How many times have you heard that thus far?
But I really want to direct our urgent attention to a comment that Congressman Cicilline made when he was asked if this Equality Act would represent a challenge to religious liberty and to religious institutions. He said this, and I quote, "The determination would have to be made as to whether or not the decisions they are making are connected to their religious teachings and to their core functions as a religious organization, or as a pretext to discriminate."
Now, just pause for a moment. If you haven't heard anything else I've said, just understand what this Congressman said. He said straightforwardly that if this act pass, some agent of government, some bureaucrat, some regulator, some judge, or some legislator, for instance, is going to have to make the determination as to whether or not a religious institution is making a bona fide religious claim based upon legitimate religious conviction in order to be understood as operating on the basis of some kind of legitimate religious liberty, or if it is simply using religious liberty as, in his words, "A pretext to discriminate."
Now I am unaware, to be honest, of any precedent in this in the entirety of American history. I cannot imagine that in any previous epic you would have a member of the United States Congress dare to say that the legislation he has sponsored will put the government in the position of deciding whether or not, for example, a Christian college is actually operating on the basis of Christian conviction in its admission, or hiring, or student conduct regulations, or student housing arrangements, or if it's just exercising some kind of pretext to discriminate.
Sometimes you hear exaggerated language out there when it comes to threats from legislation or court decisions, but let's be clear, if the government, government regulators, government agents, get to decide when a Christian institution is actually operating on the basis of legitimate Christian teaching, then religious liberty is completely dead. Religious liberty disappears if the state is going to tell Christians what Christianity is. There is no religious liberty if the state tells the Jewish people what Judaism is, if the Muslim people are told an official government understanding of the teaching of the Quran, you go down the list, there is no religious liberty if the Equality Act, as it is currently written, is adopted into law.
Here's where we need to understand another danger. The other danger is that there will be some members of the United States Senate who will try to claim that they made some accommodations to religious liberty, but here's what we need to note, they are likely to be extremely minimal because those pushing the Equality Act don't believe they have to make any concessions. And furthermore, even if they are more substantial, they are likely to be temporary.
And here's the pattern you need to watch. Congress makes adjustments in order to meet some kind of public expectation for the protection of liberty, Congress then comes back in a later time to review and revise the legislation, but it does so outside of the public eye, without that kind of public attention, and it comes back and does, eventually, what members of Congress planned to do in the beginning, but they couldn't get away with it in the beginning, they'll get away with it in the end. That's their confidence. After all representative Cicilline has already put us on notice that he, and not we, is on the right side of history.
So in my experience, working on these issues for decades in American public life and in Christian leadership, I have to say that I want to put two statements alongside one another to recognize our current situation of peril when it comes to religious liberty. First of all, go back to the oral arguments and to the statement in the Obergefell case in which the solicitor general of the United States said it will be an issue.
But in this case, the second statement that just came from representative Cicilline in recent days about the Equality Act, the second statement is this, "The determination will have to be made." Well, those are chilling words. Those are words that tell us that the government is now poised, by the very instigation of representative Cicilline, to tell Christian organizations what Christianity is and to judge whether or not we are legitimately Christian, or just merely discriminatory.
This is an act, let's recall, that now threatens to basically undermine and effectively abolish a constitutional right. That is a right that is preserved and respected in the very beginning of the United States Constitution in its Bill of Rights, and to replace it with a new set of rights that basically come down to those letters, LGBTQ, and don't forget the plus sign, there's more coming.
Where Does the Equal Rights Amendment Now Stand? How Can You Resurrect a Proposed Constitutional Amendment That Officially Expired Decades Ago?
But then next, just to keep life interesting, some issues just never seem to go away, and one of them is the Equal Rights Amendment. It's back in the news, it's on the front page of yesterday's edition of USA Today with a headline telling us that President Biden supports the passage of the ERA, but he's making no comment removing a barrier to the adoption or ratification of the amendment.
What in the world are we talking about here? Well, it's interesting that when you consider that headline, that President Biden supports ERA passage, the Equal Rights Amendment is something that dates back to 1923 as a proposal, and it would amend the Constitution of the United States to prevent any kind of discrimination on the basis of gender. And here we're talking about the old meaning of gender and sex, that would be male and female. But of course, we're now living in a society that is post binary, according to its own declaration and to legislation and court action, and thus included within what is known as the ERA, at least by the self-claimed identity of certain Americans would be the identities beyond male and female, or at least flexible when it comes to male and female.
But the Equal Rights Amendment didn't make much headway in 1923, it made a lot of headway in 1972. Now, just to remember, what you're looking at there is the rise of so-called Second Wave Feminism, all kinds of demands for women's rights, the Roe v. Wade decision on abortion is coming the very next year. In 1972, there was bipartisan support in Congress to adopt, by congressional action, this amendment to the US Constitution. But of course that's not enough actually to amend the Constitution. Not only must Congress act in approving, but by this process, the measure would then have to go to the states, and at least three quarters of the states, that'll be 38 states would have to also ratify the amendment. Upon the 38th state ratifying the amendment, it would become an amendment to the United States Constitution.
But back in 1972, Congress actually put an expiration date on the Equal Rights Amendment. That expiration date was 1979. Now in 1979, they didn't have 38 states so Congress extended the expiration date for ratification three more years to 1982. But in 1982, the number was 35 states that had ratified the Equal Rights Amendment, that was three states short, and the expiration came in 1982, and the nation moved on.
By the way, the threat of the Equal Rights Amendment, which would have basically confused so many gender issues back in the 1970s and beyond, even in the 1970s, conservative Christians began to understand what was at stake and you had the rise of conservative women's groups, including the Eagle Forum, figures such as Phyllis Schlafly, who led a pushback against the amendment, it seemed unstoppable in the mid 1970s, but it was stopped at 35 states, that left three. In other words, the ERA failed, but in 2017 women's rights groups declared that they were going to resurrect that process, and they were going to claim that Congress actually had no right to put an expiration date on the Equal Rights Amendment. And thus, if they got 38 states total to ratify, it would become an amendment to the US Constitution. And three states played along.
First of all, in 2017, the state of Nevada approved the ERA, then Illinois in 2018, and then Virginia in 2020, just last year, became the 38th state. And so, it did so claiming that the amendment had now been ratified by the sufficient number of states, and thus the Constitution is amended. And furthermore, you had feminist groups and pro-abortion groups claiming that not only would this mean the permanent end to any legal discrimination against women, but it's not just that, it's actually any legal discrimination between men and women in any normal sense. And furthermore, you have the abortion rights activists saying that a part of what would come with this end of what was called discrimination against women, was an end to any kind of limitation upon abortion. And furthermore, the limitation of any kind on federal taxpayer funding of abortion. So that was all a part of the revolution claimed under the initials ERA.
But even some on the left were warning that this just doesn't pass the smell test. If Congress put on an expiration day, and Americans assumed at the time that it was real, and if Congress even extended that by three years, and Americans believed that that was real, that Congress thought it was acting in this way, after all, there wouldn't be an ERA even to the states of Congress didn't act, they're asking the question, what kind of legitimacy is there in going back to, say, 1982, and acting as if the restriction wasn't real?
And of course, what you're looking at here is a convoluted argument that would eventually, if this is even recognized by the Biden administration, find its way into courts. And the courts are likely to rule that Congress had the right to do what just about everyone assumed they had the right to do, and almost no one said they didn't have the right to do when they did it. You're also talking about almost 50 years. If you go back to the passage of the Equal Rights Amendment in 1972, that is just shy of 50 years ago, how can you now resurrect something that's just about 50 years old?
Well, even the late United States Supreme Court Justice, Ruth Bader Ginsburg, saw a problem here. Ginsburg, who was the primary lawyer for feminist groups during the time of her advocacy before the court, that is before she became a justice of the court, she, herself, an avid proponent of the Equal Rights Amendment, pointed out that the process really needed to be begun all over again simply because there was no legitimacy in trying to resurrect something that had officially expired.
Remember something else, the ERA came after the Civil Rights Act in 1964, and the argument was that the legislation, though good, wouldn't be enough, and the Constitution itself had to be amended. Now just track this, track our discussion earlier of the Equality Act, you're going to see the very same argument come even if the Equality Act is adopted. The arguments going to be, "Yeah, but that's not enough. We actually need to amend the Constitution to put this permanently into American public life."
But once again, there's another issue we have to credit the late Justice, Ruth Bader Ginsburg, though a proponent of the ERA, we have to credit her with honesty. She pointed out that not only did these three states come along about a half century after the passage of the ERA, to ratify, but there were five states that had acted to ratify that rescinded their ratification. So this would mean that we would go from 35 down to 30 and then up to 33, nowhere near 38.
And the late justice said this, "If you count a late comer on the plus side, how can you disregard states that said, "We changed our minds."?" That's a very honest question. Where does the issue stand right now? Well, in a very interesting place after the election of Joe Biden as President of the United States, Joe Biden as candidate, and now President Biden has said that he supports the Equal Rights Amendment and wants to declare that the Constitution has been amended as of Virginia adopting the ERA in 2020, a generation after it had actually expired.
But here's the issue. In the Trump years, the Trump administration had issued a judgment from the Office of Legal Counsel in the Justice Department stating that the official understanding of the United States government is that the expiration actually took place. Again, going back to 1983, the issue is moot. No matter what Illinois, and Nevada, and Virginia do, the ERA is dead. If you want to address it, you want to bring it back, you're going to have to start in the beginning.
Now, there are reasons why, by the way, those who are pushing the ERA don't want to go back to the beginning. It's not just that they would find difficultly getting the process through, it's that given the fact that we're talking about the year 2021, there is no way that the Equal Rights Amendment would ever be adopted by Congress with that old language. You can count on the fact that just about every group and sexual identity imaginable is going to demand to be counted in officially in the language of a proposed amendment.
And here's where it gets very interesting. I asked the question, where does it stand today? Well, here's the thing, the Biden administration and President Biden himself won't say. We're looking at a new Attorney General of the United States, Merrick Garland, will he reverse the judgment of the Office of Legal Counsel of the Justice Department? If so, what argument would he make?
Just to make one little footnote here, the Supreme Court of the United States does not appreciate the Office of Legal Counsel changing its argument. Here's where we need to note something that the Supreme Court understands if the press and the American people and even the White House do not, and that is that there is no Trump administration Justice Department, there is no Biden administration Justice Department, there is merely the Department of Justice of the United States of America. And as the court reminds it regularly, if it is the Department of Justice of the United States of America, it had better learn how to make a consistent argument.
But for Christians, I just want us to think in worldview terms for a moment, looking at these separate issues, the Equal Rights Amendment and the Equality Act, and recognize that what these two different legislative and constitutional initiatives would do. Now, if indeed, they come together, it going to completely reshape the moral, cultural, political, and legal landscape of the United States. Both of them would pose enormous challenges to Christian schools, Christian ministries, Christian denominations in maintaining any kind of consistent Christian conviction. All of these issues would eventually arrive to the courts, but here we have to understand that Christian institutions and other religious organizations seeking to operate by their own convictions would have to go into the courts on the defensive.
A Symbolic and Telling Event in the History of American Entertainment: Video Rental Stores, Technology, and the Seduction of Sin
Just keep that in mind as, finally, we move, not to the great moral issues of our day, but to one that does have an interesting moral dimension, and that is the passage of the last major video rental store in the United States. The ERA goes back to the 1970s, the video revolution, basically to the 1980s. The first major movie to be readily available on the VHS format was Top Gun starring Tom Cruise, again, from the 1980s. Previously, any kind of recorded version of a movie could cost the equivalent in today's dollars of hundreds of dollars.
But it's very interesting that USA Today blames COVID-19 for driving the final nail into the final major video chain store, this one in Des Moines, Iowa. The Family Video store there closed, and the announcement was made on the 5th of January, and COVID was blamed. But even as USA Today reports on the story and the liquidation sale that followed, it turns out this is a very interesting, very symbolic event in terms of American entertainment and American culture.
The videotape took over in American public life in so many ways, it transformed American entertainment and allowed families, and individuals for that matter, to watch movies in their own homes. The VCR became common in American households and a library, small or large, a VHS tapes often joined, and these were homemade tapes sometimes, the equivalent of family videos, family movies, but they were also often commercially produced Hollywood entertainment films. And they could range from the rather inexpensive to the very expensive, some of them were indeed considered blockbusters in VHS sales, and it wasn't long before a major chain came with that name, Blockbuster, but Family Video was there first, and as it turns out, Family Video was there last. As USA Today reported, "The liquidation sale is over and there are no more locations. A decade after Blockbuster met the same fate, the last major video rental chain in the country has come to a definitive end."
Of course, we understand the technological shift, there was the shift to VHS, and then the shift to the video disk or DVD, and then there was the shift to streaming video. And in reality, the old VHS tapes seem hopelessly antiquated. But the interesting thing about this article and the issue to which I want to draw attention is that the survival of many of these video stores, into our own times, albeit coming to an end, just a matter of weeks ago, it was actually fueled by something you might not have expected, and that is not family movies, even though the chain was called Family Videos, but rather, pornography, so-called adult video products.
As USA Today reported, "Despite its name, one of the reasons Family Video in particular was able to outlast Meyer, Blockbuster, and other competitors was pornography. Though the company didn't comment when time reported on the rental chain in January, 2014 regarding the more risque side of the business, the genre was enough of a draw that a Family Video store with an adults only back room was a common sight." Just consider the irony here. I appreciate USA Today drawing attention to this irony. A chain that dared to call itself Family Video actually had a backroom section in many stores marked adults only.
What does that tell you? Well, what it tells us is an affirmation of what the Bible says about sin crouching at the door and seeking an opportunity. Sin will take every opportunity that is made available by technology. Sin will come by VHS, you come along with the DVD, sin will come on the DVD. DVD is supplanted by streaming video, and the pornography is very ready as an industry to be, not only right along, but actually a technological pioneer. Sin will seize the opportunity and sinful humanity will spring the trap even when technology changes, maybe especially when technology changes. Christians ought to ponder that truth and recognize it when we see it.
Thanks for listening to The Briefing.
For more information go to my website at albertmohler.com.
Today, we'll put up a link to my article at Public Discourse, "The Equality Act and the Rise of the Anti-Theological State."
You can follow me on Twitter by going to twitter.com/albertmohler. For information on The Southern Baptist Theological Seminary, go to sbts.edu. For information on Boyce College, just go to boycecollege.com.
I'm speaking to you from Jackson, Tennessee, and I'll meet you again tomorrow for The Briefing.