The Briefing, Albert Mohler

Tuesday, May 11, 2021

It’s Tuesday, May 11, 2021.

I’m Albert Mohler, and this is The Briefing, a daily analysis of news and events from a Christian worldview.

Part I

The Modern Administrative State Embraces the Transgender Revolution: Where the Federal Government’s Money Goes, Its Moral Coercion Also Goes

Today, a big moral issue, but behind that, an understanding of how culture works. In particular, how the American culture works. In our American system of government and far beyond the reach of government, the way that society begins to organize itself around a new morality. We’re talking about political coercion. We’re talking about the power of the state, particularly the federal government, to change the way Americans live and to impose new moral judgments.

Now, in order to understand this, let’s look at the contemporary headline yesterday, the White House revealed that the Department of Health and Human Services is going to extend non-discrimination policies to transgender persons. That might not sound like a big surprise, but actually it is a reversal of the practice of the Department of Health and Human Services. And on the ground, the likelihood is that this is going to mean that Christian organizations and Christian healthcare providers are going to be coerced into participation with transgender procedures, therapies, and treatments with which they are in convictional disagreement. That is to say contrary to their religious, their Christian convictions.

You’re also going to see a crisis of conscience likely for many religious hospitals and different kinds of healthcare organizations and ministries. You’re also going to see the fact that the American taxpayer may well turn out to be paying for some surgical and medical and beyond that psychotherapeutic procedures that are associated with the transgender revolution and the larger LGBTQ movement, because the new policy put in place by the Department of Health and Human Services says that failure to accomplish virtually all of these things will represent an illegal form of discrimination.

So we’re going to look a bit more at what this policy change means, but let’s back up and wonder how in the world does such a thing even happen. And why does it have such an outsize importance in American public life? In order to understand this, we have to go to some of the most controversial language and American politics and public culture today. For example, here’s a term that’s indispensable for our consideration: the administrative state.

Now, as you hear the administrative state, you hear an argument. The argument is either that the United States government should increasingly exert itself through administrative agencies or that it is a disaster that the federal government is now exerting so much influence over American public and private life by means of unelected bureaucrats. You either see this as a good thing or as a very dangerous thing, and no doubt it is a very controversial reality. It goes back to the early decades of the 20th century. Actually, it goes back beyond the United States. It goes back to the 19th century, and the headlines then would have come from Germany.

Germany was actually united as a country, only in the last third of the 19th century. Prussia had been the major German state, and under the rule of the chancellor known as the Iron Chancellor, Otto von Bismarck, Germany was united. All the different German states basically came into a new German Imperial identity and under Bismarck’s leadership, Germany took on the role of a modern administrative state.

Now there’s a huge worldview issue behind this. When Germany came into being as a modern state, remember there had been various German states, there had been Prussia, but looking at a unified Germany, you were only talking about the 1870s. When Germany came together, it came together as a secular government under a secular decision-making process. Now that’s different from most other European states that have been deeply rooted in a much longer history and understood their political legitimacy to be deeply grounded in some kind of Christian identity. But when you’re talking about Germany, you’re talking about a very different understanding. You’re also talking about one German philosopher, Hegel, in particular, and Hegel’s understanding of the national spirit unfolding in a direction of the future that is inherently progressive.

So if you’re wondering what all this has to do with the shape of government, the shape of the American government and the decision handed down yesterday as new policy by the Department of Health and Human Services, understand that the cultural left is Hegelian in the sense of seeing an unfolding world spirit that is inevitably working its way towards progress. And that progress is marked by professionalism and administrative efficiency. And that means that the modern administrative state is seen as one of the major engines for accomplishing liberal goals.

Largely under the influence of president Woodrow Wilson early in the 20th century, Wilson understood that the US Constitution as framed by the Founders would not allow for the vast expansion of the federal government and for the creation of an American administrative state. Thus, you had Wilson arguing for this vast administrative state for a Federal government, now taking on many responsibilities that were not only not mentioned in the Constitution, but would have been considered in the founding era unconstitutional themselves.

Thus, you had Wilson arguing for a progressivist understanding of the Constitution whereby the courts and the government would not be bound to the explicit text of the Constitution; not to the words, to the grammar, to the sentences; but rather the Constitution would be understood as a living document and the constitutional interpretation would grow. And so would the size of the United States government. And both have considerably grown in the course of the last century.

But as we speak of the United States right now, and when we think about our government, most of the contact Americans have with our federal government doesn’t come in the form of contact with an elected official. There aren’t that many of them. Rather, the contact has to do usually with someone who is an employee of the administrative state. They are hired as a part to the civil service. Most of them, they have an understanding of a bureaucratic responsibility and an administrative loyalty.

But here’s what many Americans simply don’t understand. Vast sections of American law and public policy are not established by Congress at all. Rather, they are established by executive agencies acting as an administrative state. The administrative state comes up with these policies and they now have, in so many cases, the force of law as if Congress had adopted them. Needless to say, our founders would not have recognized this as in any way a legitimate form of American constitutional government, but it is now the major way that Americans encounter both the policies and personnel of the federal government.

The report coming from the Associated Press says this: “The federal government will protect gay and transgender people against sex discrimination in healthcare, the Biden administration declared, reversing a Trump era policy that narrowed rights at the intersection of changing sexual mores and sensitive medical decisions.” The AP says, “It marked the latest step by president Joe Biden to advance the rights of gay and transgender people across society from military service to housing, to employment opportunities.”

Now, wait just a minute. Does the president of the United States personally, individually direct this kind of policy? No. He directed that this policy would be put in place. Is the president of the United States going to be policing this policy? No, it’s going to be policed by the administrative state. Did Congress authorize this specific language or policy? No, not at all, but it did pass legislation establishing certain mechanisms of funding, and it did leave up to the Department of Health and Human Services how exactly those policies are to be put into place. And once they are put into place, they have the force of law.

The terminology of the administrative state actually goes back to Yale University at the mid-point of the 20th century and to a man by the name of Dwight Waldo. Waldo, as a doctoral student at Yale, tracked the development of what he saw as the administrative state and in a 1948 book by that same title, he named this new, ever-growing bureaucracy the administrative state. He did not mean it as a hostile statement, but nonetheless, when most Americans hear the administrative state, they do recognize this isn’t what our constitutional order indicated at all.

If you’re going to summarize how the administrative state now works, you might speak of it in five principles. The first one is the principle of non-delegation, and this means that Congress adopts laws, but it has to leave a great deal of vagueness or un-clarity in the law because Congress isn’t actually going to get right down into the actual policies that will be required for the legislative aim to be accomplished. That instead, will be delegated to, it will be assigned to an administrative agency. Generally, one of the big executive agencies.

The second principle is judicial deference and that means that the courts defer to the administrative state to define what Congress meant when the language is unclear. Most importantly, this goes back to a 1984 decision by the United States Supreme Court known as the Chevron decision and the deference the court show to the administrative state is called Chevron deference. By the way, conservatives on the Supreme Court see this as a very bad precedent. So watch for further developments there.

The third principle is executive control. Now I often say that elections have consequences and there is no set of consequences more substantial in American politics than the consequences that come with electing a president of the United States, because it’s not just electing the nation’s chief executive. It is electing the individual whose administration will populate all of these administrative agencies and make all of these policy decisions and interpretations. You elect a president, you’re electing a worldview, and that worldview is going to be driven through the untold billions and billions of dollars of Federal money spent and the thousands and thousands of federal employees who are about the development of, and the implementation of, and indeed the enforcement of these policies.

The fourth has to do with procedural rights. And if the bureaucratic administrative state means anything, it means procedure. Rights here are simply reduced to matters of procedure. And then there’s agency dynamic. And this means that it is up to the agencies to not only develop the policies, but sometimes even to develop the areas in which the policy needs to be developed. All of this comes under the administrative state. And that’s a big problem because here’s where Christians understand there is a huge issue here. And it’s because the administrative state is creating, implementing and enforcing policies that have to do not only with American public, but also American private life. And there are issues here that are clearly of religious conviction. And in particular, for Christians of Christian conviction.

Just consider the LGBTQ+ revolution, the inevitable collision with religious liberty, and understand that the religious liberty and conscience protections that the Trump administration to put in place have now been, as of yesterday, revoked by the federal government, through the Department of Health and Human Services. That’s no small thing. The Associated Press report understands this and one later paragraph we’re told, “Monday’s action means that the HHS Office for Civil Rights will again investigate complaints of sex discrimination on the basis of sexual orientation and gender identity. Hospitals, clinics, and other medical providers can face denial of Medicare and Medicaid payments for violations of the law.”

Another principle, by the way we just need to watch, where the federal government’s money goes, the Federal government’s moral coercion goes. Count on it. But this doesn’t mean just to individuals. This could mean to a healthcare system and thus the policies could effectively entrap Christian doctors, nurses, medical professionals who are working within those hospital settings. And what about say a Catholic hospital, an evangelical hospital, a Jewish hospital? Well, where the Federal government’s rules go, these policies, these are going to go, even if they coerce and violate the Christian conscience.

One example by the way, and this should be something that illuminates the situation, tragically so: We are told that, “A hospital could be required to perform gender transition procedures such as hysterectomies is if the facility provided that kind of treatment for other medical conditions.” Now wait just a minute. For other medical conditions? Hysterectomy here, we are told, could now be required to be covered in hospitals, by their services, and also by other kinds of medical service plans and providers if the hospital, for example, does hysterectomies for reasons other than “gender transition.” If it does them for other reasons, then now it can be required to do it for gender transition, that’s their language, for that reason as well.

Now you can see exactly how this is working. And by the way, it comes down to the definition of sex and sex discrimination. What you see here is very reminiscent to the Bostock decision handed down by the Supreme Court last summer. And that is the fact that sex, as in the phrase, sex discrimination in the law is now being read to include sexual orientation and gender identity, which of course was never intended in the legislation whatsoever. But according to the administrative state, under the current administration, that is now going to be the law of the land. Deal with it.

Part II

You Were Warned: Radical Worldviews Reshape U.S. Federal Policy

Now, as you’re thinking about the administrative state, the leadership of that administrative state is very important. Not only the president and not only the cabinet, such as the secretary of Health and Human Services, you’ll recall that the Biden administration secretary of that department is the former California attorney general Xavier Becerra, and there we’re talking about someone who as California attorney general and as a member of Congress basically said that he doesn’t even believe that religious liberty is a right that belongs to Christian or religious organizations, Christian schools, et cetera.

Rather, it only belongs to individual citizens, not as citizens gathered together freely and forming, say, a Christian congregation, a Christian school. You go down the list. That’s dangerous enough, but Xavier Becerra also used the powers of the administrative state when he was attorney general of California to try to put crisis pregnancy centers and pro-life ministries out of business. He also did everything he could to try to define the law and the unfolding public policies in such a way as to drive the LGBTQ+ agenda. And now he’s the secretary of the Department of Health and Human Services.

But it doesn’t stop there, as you try to understand this picture. Also, don’t forget Dr. Rachel Levine, the first openly transgender Senate confirmed member of any president’s administration. Dr. Levine now serves as assistant secretary of Health and Human Services. Just recently, the New York Times ran a profile of Dr. Levine. It was in the Sunday, May 9 edition of the newspaper. The headline: “Confirmed by Senate in a Transgender Minefield” The subhead: “Biden health pick enters a new job amid culture war.” The reporter, Sheryl Gay Stolberg.

The story begins by telling us of Dr. Levine going back to visit the prep school the doctor had graduated from as a teenager. It’s an all-boys school. And now, oddly enough, you catch the irony. Dr. Levine is described in this New York Times article as the only woman who is known to be a graduate of this all-boys high school. But you’ll notice that in this article, the word boy as in all-boys high school makes sense, but the use of the word woman does not. You just haven’t caught on with the revolution. But Stolberg says in this article, “Dr. Levine is the highest ranking openly transgender person ever to serve in the federal government.”

Dr. Levine said, “It’s political. Some people feel this could be a wedge issue in upcoming elections.” Levine went on to say, “It’s also that transgender people have become more prominent, so I think maybe some pushback for that, but I think at heart, this is politics.” This is politics. In other words, it’s not reality. It’s not being, it’s not creation order. It’s not morality. And here you see the kind of argument that’s being used by the left. The only reason anyone would be opposed to this and refuse to go along with the revolution is political. But there are two other sections of this article that are just really, really interesting because of how they illuminate where we stand in society today.

For example, the New York Times article includes this paragraph. “The prominence of transgender issues in politics is remarkable, considering what a tiny sliver of the population transgender people represent. An estimated 1.4 million adults, and 150,000 youth age 13 to 17, identify as transgender in the United States, according to the Williams Institute, a research group at the law school of the university of California, Los Angeles. That is slightly more than one half of 1% of the population.”

Well, I’ll go along with that math. Let’s just accept that math for a moment. Why is this issue discussed so much? Well, because the mainstream media won’t shut up about it. They simply can’t stop. Headline after headline, story after story profile after profile editorial after editorial, including the fact that that statement about the weirdness of transgender visibility is in an article published in the New York Times with the headline, “Confirmed by Senate in a Transgender Minefield.” The mainstream media in this country are those who keep trumpeting this issue day by day, hour by hour, story by story photograph and cover story by cover story. And then they say that it’s odd that the issue would have so much public attention.

The other thing that makes basically the same as the fact that in this article, there’s the claim that you have people who have made too much out of the transgender identity, and it must be conservatives that are making too much out of it. But what’s not acknowledged is the fact that when the Biden administration made the announcement of this nomination, the first thing they said would be that this doctor would be the first openly transgender member of any administration at this position of stature. In their press release, in their discussions about the general picture of presidential appointments, the one thing they said over and over again was transgender, transgender, transgender. And then they turn around when there are questions raised about the transgender issue, and they say, “Why are you talking about this? That’s not the real issue.”

Part III

“Birthing People”? Do You Perhaps Mean “Women”? The Invented Language of the Moral Progressive Agenda

Then we shift to another issue of terminology and this one, well, it almost seems as if this can’t be real. But folks, it’s very real and it’s the shape of things to come. This has to do with a member of Congress, representative Cori Bush, a newly elected member of Congress from Missouri, a Democrat and representative Bush testified before Congress last week about what she described as the racist treatment that she and other black people had experienced in America’s healthcare system, particularly as women have undergone childbirth and pregnancy. Cori Bush, by the way, is herself a nurse. And she’s also a mother of two. And the article by Aris Folley at The Hill tells us that she, “Opened up about her personal experience in which she said that she had to be her own advocate while trying to receive medical care in the past, after voicing problems to her doctors about serious health issues that went unaddressed.”

Now let’s be clear as Christians, we want everyone to receive medical care. We want everyone to receive medical treatment. We don’t want anyone’s life to be endangered regardless of how they’re identified. But her testimony in that respect is not what has received so much attention. Instead, it is her use of language. She referred to black birthing people. Rather than women, rather than making very clear that it’s women who become pregnant and who have babies. Instead, the Congresswoman referred to black birthing people. She issued a tweet that said, “Every day, black birthing people and our babies die because our doctors don’t believe our pain. My children almost became a statistic. I almost became a statistic.”

Christina Zhao reporting for Newsweek Magazine speaks of the member of Congress’s testimony and the fact that she used the phrase birthing people and thus Newsweek reported, “On Thursday, Bush drew praise and criticism after she used the term birthing people to describe mothers during a speech in Congress.”

Now wait just a minute. You’ll notice that Newsweek there made a huge error, according to the very language that they were reporting on here. If you use the phrase birthing people, you’re precisely trying to avoid the phrase mother. But Newsweek’s predicament, and here Christians have to understand with a smile Newsweek’s predicament is can’t describe the normal process by which a baby is born without mentioning a mother even if you’re trying to write a story about someone trying to avoid using the word mother by using the phrase birthing person. Right on cue, the abortion rights group, NARAL, Pro-choice America also praised the Congresswoman and said, “When we’re talking about birthing people, we’re being inclusive. It’s that simple.”

Inclusive of whom? Who exactly other than women might be birthing people? NARAL said in a tweet, “We use gender neutral language when talking about pregnancy, because it’s not just cisgender women that can get pregnant and give birth. Reproductive freedom is for everybody.” Controversy over the congresswoman’s statement both on social media and in congressional testimony continued over the Mother’s Day holiday with some suggesting that maybe the name of the holiday needs to be changed to Birthing People’s Day or Birthing Person’s Day.

And it’s not just representative Cori Bush, one of the newer members of the feminist group known in the House as The Squad. It’s another member and that’s representative Ayanna Pressley, in this case, a Democrat of Massachusetts. And she said that she, along with democratic Senator, Cory Booker also of Massachusetts, had introduced what they called the MOMMIES Act, actually they re-introduced it, described, “To expand Medicaid coverage for birthing people and promote community-based holistic approaches to maternity care.” This congresswoman, Ayanna Pressley said, “Every pregnant person should be listened to and treated with dignity and respect during and after childbirth.” Every pregnant person. The MOMMIES Act, which is to expand Medicare coverage for birthing people. Well, if you’re trying to avoid the word mom or mother or mommy, maybe you shouldn’t use mommy in the very name of your legislation.

And let’s face the reality. They use the word mommy here in order to have emotional appeal, because it does have an emotional tug. An emotional tug that appears to be radically, if not entirely lacking in the language of birthing person or birthing people. And that’s because the language of birthing person or birthing people is invented, it’s ideological. It is in service of the moral progressive agenda and it isn’t real.

And on this matter, nature. Creation is fundamentally clear on who has a baby, even if the moral revolutionaries are trying their best, if inconsistently, to argue that all it really means is a birthing person. But these were actual arguments and actual words made by two members of Congress and they are the indication of the future of this argument and the future of the language if the American people allow it.

Thanks for listening to The Briefing.

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I’ll meet you again tomorrow for The Briefing.

R. Albert Mohler, Jr.

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