Wednesday, March 24, 2021

Part I

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Kristi Noem Disappoints in South Dakota: Why Did the Republican Governor Veto a Bill Banning Transgender Participants in Women’s Sports That She Pledged to Support?

In one of the most famous plot twists of his Sherlock Holmes stories, Arthur Conan Doyle described the main clue as the dog that didn’t bark. Sometimes what is most important is what did not happen. And in the State of South Dakota right now, the most important thing is a bill that was not signed by the Republican governor of that State, Governor Kristi Noem. It has made headline news all over the country and for good reason, because what we see here is not just a political failure, a failure of nerve, what we see here is the form of coercion that is brought in the larger culture against anyone who would defy the LGBTQ revolution. What we’re looking at is how change in society actually happens.

It often happens by legislation or court action, but where the action really happens, the most effective action is often in the form of social and emotional and financial coercion. Sometimes a threat, sometimes a threat that doesn’t even actually have to be spoken. What are we talking about? Which dog didn’t bark? Well, in this case, the bill that was not signed into law was South Dakota house bill 1217. That would require athletes participating in state sanctioned sports to compete in events that aligned with their sex determined at birth. Now, again, throughout virtually all of human history, through the millennia of human history, prior to our common moment now, there would have been no controversy at all in suggesting that there is an innate and unchangeable difference between boys and girls, men and women, males and females.

And that this is to be reflected in respect in society in the age of modern sports and in particular, intercollegiate and interscholastic sports. The reality is that one of the great advances that was celebrated in the 20th century was the rise of girls and women’s sports alongside the sports that had been previously dominated almost entirely by boys and the men. The rise of girls and women’s sports teams, sporting events, even professional sports, intercollegiate sports, intermural, interscholastic sports, all of this was celebrated as an advance for women and girls, but after all, they were defined by the fact that there is a difference between girls and boys, men and women. And thus, there is a WNBA as well as an NBA. Thus, there is a women’s volleyball team, as well as a men’s volleyball team. There is girls softball and boys baseball.

The bill that arrived to the Governor in South Dakota was a bill that would simply do what has happened in other States. It would put into law the fact that when you have State sanctioned sports at the intercollegiate, interscholastic level, then at that level, you would have to have girls participate on girls teams and boys on boys teams. And that there would have to be an attestation of the fact that the gender identity, when it came to sports is actually aligned with the sex determined at birth.

Now, as I’ve noted before on The Briefing, that language “sex determined at birth” is generally evasive. It’s actually the sex that is acknowledged at birth. And usually it’s acknowledged very, very quickly as soon as the baby is born as if there’s any question now on the day of prenatal testing and ultrasound, as if it’s not already known, there is the declaration, it’s a boy, it’s a girl in the vast majority of cases that becomes immediately apparent.

And it’s not so much that people say, “Look, we’re just coming together to decide it’s a boy or a girl.” In the vast majority of cases, there is no question. So again, except in a tiny number of cases, when you say, “The sex determined at birth,” it’s like saying the sum that is determined when two plus two are added and the sum is four. It’s not so much that it’s determined as it is acknowledged. But in this case, the politician at the center of the story is the governor of South Dakota and this story is very interesting because Kristi Noem, the governor not only served in Congress as a Conservative, Republican, and was elected as the governor of South Dakota as a conservative Republican, she had actually indicated that she was eager to sign this legislation. She was eager to sign the bill until she didn’t and that’s why we’re talking about it.

What she did was to issue what is known in South Dakota as a style and form veto. That means that she didn’t veto all of the legislation, but she basically vetoed two very significant parts, for one thing the law that was passed to her was extended not only from interscholastic sports, from say K-12, but went on to collegiate events. It also made very clear that the issue was the sex that was understood at birth, the sex determined at birth, the sex respected and acknowledged at birth, but she changed the bill so that the individual in question merely has to provide some documentary evidence of the gender identity at the time. And as we know, in these days, that isn’t necessarily the sex that was acknowledged at birth. To put it another way the governor of South Dakota gutted the bill, she gutted the bill of what’s actually most important because right now it’s the inner collegiate realm of activity that is likely to bring the most immediate violations of this norm.

And also, because as you’re looking at the definition of what is at stake, there’s a huge difference between the gender that is somehow determined by documentation upon entry of the sport and the sex that was determined at birth. We’re talking about two completely different things, basically the governor caved, but to whom does she cave? What do we learn from this? Why did she do this? Why did she backtrack on a bill that she had enthusiastically supported? Why is she now saying that this is a bill that doesn’t pass muster, thus it required the form of the veto that she issued. Well, let’s just look at the sequence for a moment back before the legislature passed the bill, she said she was for it and was eager to sign it. Once the legislature passed the bill, she said, “Well, I see problems in the bill and I’m going to force these changes,” that again, basically cut the heart out of the bill. What happened?

Well, the Governor is not telling us straight up what happened, the context and her comments put together have to explain what happened. And what happened is that whether or not there was some kind of overt warning that was given to the Governor of South Dakota. She came to the conclusion that pressure from groups such as the NCAA could mean that South Dakota could be denied NCAA events, and that there could be other sanctions brought against the State if indeed, the State went ahead with this law and she signed it into effect as governor. But as it turns out the twists and the tail indicate as you expect, there’s more to the story, the outright economic coercion or pressure may well have been brought either overtly or not so overtly by Amazon, because Amazon has been planning to build a major distribution center in the State. Now we have seen similar things like this, take the state of North Carolina.

North Carolina’s legislature passed what was known as a bathroom bill. And it was directed towards a very real situation, not just hypothetical, where you have a biological male show up in a locker room, a gym changing room, or a bathroom in a public school and you have a biological male in the girl’s bathroom. Now the State of North Carolina said it shouldn’t be that way and passed the legislation. But then you had the NCAA threatened that it would not hold events, also professional sports teams threatened that it would not hold events in North Carolina. You may have noticed that sports are big in North Carolina. You had pressure from the mayors of many cities in North Carolina, far more Liberal than the rest of the state who were saying that this is going to bring a bad economic effect.

You had major businesses say that they weren’t going to do business or start new facilities in the State of North Carolina, unless a change was made and guess what? Presto, a change was made, and the State reversed itself on the issue of bathrooms. And it did so not because it came to the conclusion that yes, young people would be safer and better off and society will be stronger if indeed, we go back on this legislation saying that boys should use the boys restroom and girls should use the girl’s restroom, no, or redefine what it is to be a girl or a boy, by the way. No, the State said, “We can’t afford this bill because outside coercion and inside political pressure is simply too great.” Now notice how effective this is. The Supreme Court of the United States did not at all take up a case in which it said to the State of North Carolina, “What you’re doing is unconstitutional.” Didn’t happen. Never got to that. Didn’t even get close. Didn’t have to.

North Carolina caved long before the Supreme Court or any court for that matter could really do anything about that particular bill explicitly as written. But the situation in the State of South Dakota becomes more interesting because if you have heard the name of Kristi Noem, it’s probably because she has been rather commonly discussed as a potential contender for the 2024 Republican presidential nomination. Now that nomination race becomes a little less likely when you consider the population of South Dakota, generally, you’re looking at a larger political base and looking at that, a governor like Ron de Sanctus there in Florida probably has a better State from which to run in terms of the population and political strength. But if you think that the governor of a smaller State can’t gain the nomination and be elected president, you better go talk to the former Arkansas governor Bill Clinton, who did in 1992 win the democratic nomination was elected president. It can happen.

Kristi Noem was known for close association with former President Donald Trump. She has held to quite a conservative and populous reputation and yet, when push comes to shove on an issue like this, her position turns out not actually to be all that conservative. Indeed from a worldview perspective, not to be conservative at all. She is willing in this case under a pressure that is coming from groups, such as the NCAA and Amazon who knows who else may be involved in that line, the fact is that she vetoed the bill. She vetoed the bill that she had previously celebrated and said she would look forward to sign. In a statement from the Governor she said, “Unfortunately, as I have studied this legislation and conferred with legal experts over the past several days, I have become concerned that this bill’s vague and overly broad language could have significant unintended consequences,” that in a letter that she sent to legislators.

Now, what makes this issue particularly painful in the State of South Dakota is that the State has been here before, because a previous governor, Governor Dennis Daugaard also had pledged to sign the bill and then didn’t sign the bill. He said he didn’t sign the bill after he met with the families and some persons identified as transgender and decided that he then saw the legislation, “through their eyes.” Now, in terms of personal sensitivity, we understand exactly what he’s talking about, but we have to understand that the bottom line of what he’s talking about is that he gave up millennia of human wisdom, he gave up a clear understanding of male and female and instead with his feelings simply decided that he would not support the legislation. Now, a second South Dakota governor has backtracked on the legislation again.

Why do we point to the NCAA as at least partly behind this? Well, because the NCAA has offered this threat in the past, but we also know this. If you look at what the governor actually did, Governor Noem actually took the bill that went all the way up through collegiate athletics and said she would support it in her style and form veto through high school years, which means she has cut out the collegiate years.

Why did she do that? Well, the USA Today report gets right to it. “The NCAA has inclusion policies for transgender athletes that conflict with the legislation. NCAA sports teams are required to certify there are no laws or ordinances affecting the welfare of student athletes or staff.” Trying to explain all of this, the USA Today reporters tell us, “Noem,” that is, Governor Noem, “didn’t say that the potential loss of revenue drove her decision, but economy boosters warned that the bill that was originally written ‘could pose unintended consequences for South Dakota.'”

Other reports, including a report at National Review point to the issue of Amazon as well and the fear that the governor might have held that Amazon would back out of an agreement to open what’s described as a fulfillment center in Sioux Falls. Governor Noem has no doubt severely hurt her political chances in the Republican party, not just on the fact that she backtracked on this issue, but that she did so, so cravenly. But her predicament is one that is going to be faced by others, not just governors or political leaders, but those who are leaders of other institutions, including Christian institutions, Christian denominations, and others. You’re going to be faced with the issue, are you going to choose participation in sports or remembering what it means to be a girl or a boy? Are you going to maintain some kind of sexual and gender sanity or are you going to say, “We have to participate in the sports, we have to be seen in the good graces of the NCAA.

We can’t possibly offend Amazon or other major employers?” That’s a very real pressure that politicians and others are now facing. It’s not a small thing for the governor of a State like South Dakota to understand that a major fulfillment center and new business with new jobs could be taken away from the State. It’s not a small thing to be said that the State could be disqualified from NCAA post-season play, tournaments and other events. It’s not a small thing. No one should argue that the issue is small or that it comes without a price. But here’s where we, as Christians have to ask a very fundamental question and that is what would be the cost of surrendering to the LGBTQ revolution? If it’s just a matter of changing the rules, if it’s just a matter of placating the NCAA or a major employer that’s one thing. But if it means that human society is going to eventually unravel because we are losing the ability to define what it means to be human.

And that means we’re undermining human dignity and there is no, and Christians must know this, there is no way to maintain human dignity while undermining the distinction between male and female, which is essential to understanding human dignity. All this helps us to understand that the stakes are only growing higher in all of these conflicts. This was an unexpected development in South Dakota but when you look at what’s at stake, maybe it was predictable after all. Similar kinds of struggles have already taken place State by State and at the very best in a political equation. What you end up with is some kind of compromise one or the other, or at least an understanding that we’re going to do what we believe is right and it may come with a price. The question is whether the voters of South Dakota would have been willing to pay that price. We’ll now perhaps never know.

One last thing Governor Noam also said, she said this on Fox news, “I’m not interested in picking a fight,” she meant in court, “that we can’t win.” Very interesting. “I’m not interested in picking a fight that we can’t win.” Let’s think about that for a moment. In truth, moral sanity sometimes requires us to go into court with arguments that we know we might well lose in court, which just about all the legal experts may tell us we will lose in court because there are two different ways to lose. One of the ways to lose is by going into court, making your best argument and losing before a judge or a jury or a panel of jurists. The other way to lose is to give up the fight before you have that opportunity, before you take the risk of making the arguments and before you find out how a court will rule.

In the State of Arkansas, for example, the legislature recently passed a bill that restricts abortion, that restricts abortion rather severely, that restricts abortion in ways that are clearly contrary not to the U.S. constitution, but to the Roe v. Wade decision handed down by the Supreme Court in 1973. Governor Asa Hutchinson signed that bill into law. When asked about why the legislature would have passed such a bill, the governor would have signed it if after all the Supreme Court has already ruled and that was 1973 in ways that would make the bill unconstitutional. Well, the legislature and the governor there in the State of Arkansas actually passed this bill in order to create the opportunity to make the argument before not only the Supreme Court of the United States eventually, but before the American people as well.

So just before leaving this, let me remind you. Sometimes you actually do need to make arguments you think that may fail in court. Sometimes you do need to allow yourself to be sued in order to make a case for the cause of truth and righteousness and virtue. Sometimes you have to be willing not only to make an argument, but to lose an argument before the court because failing to make the argument would be the greatest unfaithfulness.

Part II

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Is the Christian View of Marriage Irrational? Japanese Court Declares There Is No Rational Basis for Defining Marriage as Between One Man and One Woman

But finally, as we’re thinking about courts, and we’re thinking about massive moral change, we have to look at a recent court decision that comes from Japan. As the Wall Street Journal reported a Japanese court for the first time said the country’s ban on same sex marriage violates the constitution described as, “A path breaking decision and a region where most countries forbid gay and lesbian couples from marrying.”

Well, sometimes you see Japan described as an outlier because it has not yet legalized same sex marriage. In this case, you have Japan explained as one amongst other countries in Asia and the Pacific rim that do not recognize same sex marriage. The fact is that what makes Japan rather unique is that it has an advanced economy long associated with the West and economic terms. And it also has a legal system that after World War II was largely constructed along Western lines. The government had argued for its law defining marriage as a union of a man and a woman. And as the journal reported, “The government argued that the institution of marriage was established in Japan to protect the right of heterosexual couples to have children and raise them, giving parliament a rational basis for denying marriage rights to same sex couples.”

Well, a three judge panel, this is not the final court of appeal there in Japan, but a lower court three judge panel threw out the government’s argument saying, “The difference between heterosexuals and homosexuals is nothing more than a distinction in sexual orientation that people do not choose because of their own will and cannot change.” That, by the way, is a bit of editorializing from the court. But nonetheless, the court went on to say, “No matter what sexual orientation people possess, there is no distinction in the legal privileges they enjoy.” And the court said that there was no rational basis for the government there in Japan limiting the definition of marriage to heterosexual couples. The court’s ruling said that the Japanese law defining marriage as the union of a man and a woman constituted, “Discriminatory treatment without a rational basis.” Very, very crucial we understand what’s being argued here.

Rational basis. What is that? Well, the rational basis test says that for a law to be considered legitimate, there has to be a rational reason why the law exists in the first place and secondly, is written as it is written. That’s to say that you have to be able to make a legal argument, a compelling legal argument for your law. So let’s just stipulate right up front that according to the Christian worldview, we also believe there should be a rational basis to laws, that there should be a rational basis, a good argument for the existence of the law and there should be a good argument for the law as it exists and in the way that it is written. What becomes so important at this point is to understand that the Japanese government defending its marriage law said that the rational basis was that the Japanese legal understanding of marriage was based upon the right of a man and a woman to have children and to raise them as their children.

That becomes absolutely crucial because even as our definition of marriage might not begin exactly what the same words, it gets exactly to the same place. You might put it another way. The Japanese government defended its law concerning marriage by saying, “It’s about a conjugal relationship between a man and a woman that becomes a public commitment that authorizes them to have children and to raise their children as their own because they have come from within the marital union.” But here’s what’s crucial. As rational as that is, as well understood is that rationality would have been through millennia of human experience, as universal as that rational basis would have been until very recent days, it nevertheless fell when this court in Japan said that there was no rational basis for limiting marriage to the union of a man and a woman. No rational basis. Just think about that.

This court’s actually used that language, saying that “defining marriage legally as the union of a man and a woman fails to have any rational argument to sustain it.” Now, unlike in the United States, this federal court ruling doesn’t immediately change the landscape there. In the nation of Japan, Japan’s parliament, the diet will still have to act if indeed same sex marriage is to be legalized, but the point is to follow the argument because the argument’s likely to lead to the change. And here’s the argument. It’s not just about Japan because this argument didn’t begin in Japan. The Japanese can point to us and say, “We know where that argument originated.” It is the argument that any definition of marriage as human beings have defined marriage as the union of a man and a woman is now irrational, lacking any rational basis.

And this is where Christians operating out of a biblical worldview really must face our own predicament. We began looking at the predicament of the South Dakota governor. Well, here’s our predicament. We’re living in a society that is increasingly describing our understanding of marriage, which was the universal understanding of marriage until extremely recently, we are now facing the reality that many of the people, most of the people in many of the sectors of our society think that our own understanding of marriage is irrational. Not just wrong, but lacking in any rational basis.

Part III

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Gavin Newsom Faces Recall Challenge in California, Setting Up a Potential Political Free-For-All

But finally, on The Briefing today as we’re thinking about governors, we have to go to the most populous State in the union, the State of California where it appears that California’s Governor Gavin Newsom is going to face an actual recall vote.

The California State constitution is an oddity unto itself, but it does have this recall provision. And that means that if you get a sufficient number of signatures, something close to 1.5 million California citizens today, then you can actually put on the ballot the question as to whether the governor should be recalled from office. It happened to California Governor Gray Davis back in 2003, he was replaced by Arnold Schwartzenegger, something that wouldn’t have been foreseen just a matter of months earlier.

How will this turn out? Well, time will tell, but this much we know, Governor Gavin Newsom is not only a Democrat, he’s a man that had been identified with the left wing of the Democratic party. But here’s what’s interesting. The left wing of the Democratic party has moved further left then the governor can actually move on some policies. He’s also brought an awful lot of ill will because of his disregard for religious liberty in the context of the COVID-19 pandemic.

Showing up violating his own policy at a very expensive, indeed, unbelievably expensive French restaurant. It’s hard to know how all of these things come together, but they did come together and it now appears that Governor Newsom will face a recall vote. It could also be a political free for when it comes to the question as to who would replace him. It was last time, it may well be again. It’s going to be interesting to watch and we’ll be watching it with you.