Friday, June 18, 2021

Part I

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A Huge Win for Religious Liberty at the Supreme Court: What Signal Does the Unanimous Decision in Fulton v. Philadelphia Send?

As you’re looking at the American governmental system, it is clear that June is a crucial month, the most crucial month of all for decisions handed down by the United States Supreme Court. The reason for that is historic. The court gets to set its own session dates, and it begins oral arguments in the fall, and generally delivers all of its decisions in the cases that it has heard during that term, by the end of June. The justices then take a summer break, in which the court is not in session. And so, by the time we get to June every year, we know that as the days of June are dwindling, the intensity of expectation is increasing. But the most important case this year, at least in terms of Christian interest, is the case known as Fulton vs Philadelphia. It is a huge religious liberty case, and it was handed down, not at the very end of the month, but on the 17th.

What that tells us about the court’s deliberation is not so important. It’s just interesting. What is most important is the fact that the Supreme Court handed down a unanimous decision on a very contentious question. Now, as we can see, the reason for that could be either, say, A or B or C, that turns out to be a very interesting question. But, the impact of a unanimous decision is undoubtedly one that grabs the headlines, deservedly so. You’re looking at nine Justices of the Supreme Court, who unanimously struck down a policy of the city of Philadelphia that did not allow a religious charity in Philadelphia, Catholic Services, an historic foster care and adoption agency, to operate on its Catholic principles. It said instead, that the LGBTQ non-discrimination policies, laws and statutes of the city of Philadelphia meant that every single entity that did business with the city, in any way, including in adoption and foster care, had to adhere fully to the LGBTQ non-discrimination policies of the city.

And thus, the city effectively shut down Christian and other religious ministries that had been operating in this very important work of adoption and foster care, because in this case, Catholic Social Services could not accept the same-sex couples as validly, married couples without violating official Catholic teaching. It was acting on Catholic principles, and Catholic doctrine, in what the ministry clearly believed, was the best interest of the child. The Supreme Court’s nine to zero decision did grab headlines instantly yesterday. It was a surprise, because when you’re looking at anything that includes the initials LGBTQ, you are looking at what is deeply controversial. And in particular, everyone knew that this case pitted religious liberty, over against the newly-invented liberties of the sexual revolution. Time and time again, religious liberty has lost. It lost at the City of Philadelphia, in terms of the city’s policies. It lost even at lower federal courts. But it won yesterday at the Supreme Court, and it won big, nine to zero.

But as I said, that could mean many different things. Figuring out what it means is extremely important. At least the bottom line is this, it sends a double signal. Number one, it sends a signal on the issue. It sends the signal that cities, states, other legal jurisdictions had better be very careful about, at least, directly contradicting religious liberty. In this case, shutting down an organization like Catholic Social Services, rather than to allow it to operate on Catholic principles. That’s the first signal. The second signal is at least equally interesting. The nine justices together, six appointed by Republican presidents and three by Democratic presidents, has sent the signal that they really do not want a succession of cases presenting the same facts. A unanimous decision means that the court is effectively saying, you don’t have any hope of a different kind of decision, if any case comes back to this court with basically the same facts. The majority opinion of the unanimous court was handed down by none other than the Chief Justice of the United States, John G. Roberts, Jr.

And in the decision of the court, he points out the fact that the Catholic Church had been involved in foster care and in, what we know is, adoption ministries going back to the year 1798. So, that’s an important date for a couple of reasons. Number one, it establishes a very longstanding ministry, over 200 years. There actually aren’t many locations in the United States where that is possible. The second thing is that, it establishes the fact that the change in policy was not on the part of the Catholic Church nor Catholic Social Services, as it is known now in Philadelphia. The change in policy was on the part of the city of Philadelphia. It was the city that changed its policy. And, once again, we see evidence of the inevitable results of the sexual revolution.

The Chief Justice, speaking on behalf of the court said, “The Philadelphia foster care system depends on cooperation between the city and private foster agencies like CSS. When children cannot remain in their homes, the city’s Department of Human Services assumes custody of them. The department enters standard annual contract with private foster agencies to place some of those children with foster families.”

There’s a very interesting issue there that many Christians don’t understand. Why is the entire enterprise of adoption and foster care, now, so entwined with, what we might call, church and state, the ministry side and the state or the government, the legal authorities? The answer is, that the difference between 1798 and, say, 2021 is that, the State has assumed legal authority for all children in this kind of crisis, all children. And so, if there is a situation in which any court has intervened, or in which there is any kind of intervention that is recognized by legal authorities, the adoption and foster care enterprise is ultimately under the custodial influence of the state.

The state says, “We take custodial responsibility for this child in crisis. We will partner with others.” But notice what that does. It turns historic religious organizations into agencies of the state, or at least agencies hired by the state. That’s the legal basis for the collision that took place in Philadelphia. And, by the way, in no state is this fully avoidable. There is no state in which you could just set up a Christian foster care agency that would not entail the authority of the State, because the State claims authority over all of those children in need. The Chief Justice cited the fact that the religious beliefs of Catholic Social Services are longstanding, including the belief that “marriage is a sacred bond between a man and a woman”. The Chief Justice then wrote, “Because the agency understands the certification of prospective foster families to be an endorsement of their relationships, it will not certify unmarried couples, regardless of their sexual orientation, or same-sex married couples.”

There’s a key line on page three of the opinion handed down by the Chief Justice. It’s a sentence that’s very short. “But things changed in 2018.” I underlined and circled that sentence, because the Chief Justice is pointing to the agent of the change. It wasn’t the foster care agency. It wasn’t Catholic Social Services. It was the city of Philadelphia. The city changed the rules, and it did so in a way, say all nine of the Justices of the Supreme Court, that was unconstitutional, because the city’s policy was not neutral. It was anti-religious. In this case, it was anti-Catholic. It said that this official teaching of the Roman Catholic Church means that this Catholic agency was disqualified from working with the City and adoption and foster care.

Now, there are other things we need to note in this. For one thing, there’s a fog of disinformation. Just consider the fact that The Guardian in London ran a headline, “US Supreme Court says foster agency can discriminate against LGBTQ people”. Now, it’s not so much wrong as it is a form of casting. What you have in the headline is the insinuation that the big issue here was whether or not there could be discrimination against LGBTQ people. That’s not fair.

The big issue here is whether Catholic Social Services could be Catholic. And the reason for that is actually made clear by the Chief Justice and by those who were attorneys for Catholic Social Services. There was no same-sex married couple that had ever applied and was ever even denied. Now it would have been, according to Catholic social services, but here you see something very revealing.

The city of Philadelphia was operating with a very evident animus against Catholic Social Services. And, if they’re acting with that animus, with that opposition, that is rooted in more than just a legal conflict, if they were responding that way to Catholic Social Services, they were actually responding that way to Catholic doctrinal teaching. Now, just take out the word “Catholic” and put in, say, “Baptist,” “Presbyterian,” “Lutheran,” or just about anything else, you see the point. The City of Philadelphia is not constitutionally competent to make judgements of that kind when it comes to theological matters. The Chief Justice summarized a key constitutional issue this way, “The Free Exercise clause of the First Amendment, applicable to the states under the 14th Amendment, provides that Congress shall make no law prohibiting the free exercise of religion. As an initial matter,” said the Chief Justice, “it is plain that the city’s actions have burdened Catholic Social Services’ religious exercise, by putting it to the choice of curtailing its mission or approving relationships, inconsistent with its beliefs. The city disagrees, but the court disagrees with the city.”

The impact of this argument is made very clear in a statement that was made in response to the decision by Richard Garnett, Director of the University of Notre Dame Law School Program on church, state and society. He was speaking to John Fritze of USA Today. He said, “It is striking and telling that the Court’s more liberal Justices joined the Court’s decision. Today’s ruling,” he said, “illustrates that respect for religious freedom should not be a partisan or left-right issue.” But here’s where you also have to look deeper at this decision. Is it a big win for religious liberty? Yes. But sometimes, we have to understand that the big issue here is what it would have cost if the decision had gone the other way. If this decision had gone against Catholic Social Services, we would really see the denial of any free exercise of religion when it comes, not only to this case, but expanding by the logic of that decision to any number of other states and any number of other issues.

We are looking at the fact that religious liberty is increasingly treated by the mainstream culture and the mainstream media, as if it needs scare quotes around it, quotation marks as if to say, we’re not sure what this is, or if it is even real, but there are people who try to make this argument. So, the cost of losing this decision would have been catastrophic. There is great satisfaction in the fact that the Court ruled in favor of Catholic Social Services, and thus in favor of religious liberty. There is also great satisfaction in that it was a 9-0 decision. Professor Garnett at Notre Dame is exactly right. It sends a very clear signal. But there’s more to the story. How in the world did this Court, given such a contentious issue, get to a 9-0 decision? I think it’s fairly easy to see how it got there, and there are warning signs in that number.

The current Chief Justice of the United States, John G. Roberts, Jr., is very clear. You don’t have to read the tea leaves. He tells us right out, in many of his public statements, that his goal is to achieve as many unanimous decisions by the court as possible. He sees that as affirming the rule of law and the stability of the court, and the respect and deference the court should deserve within American society and within the American political order. Now, that means that when the chief is working with the court, in what’s known as its conference, a private session in which the justices alone are arguing these cases, you have a situation in which you have six conservative justices, as we would consider them generally, and three liberal justices, that both had to give up something to get to a 9-0 decision.

What did the liberal justices give up? Well, what they gave up was what would have been a big win for the LGBTQ community, at the expense of religious liberty. That’s clear. But it also tells you something really important about the binding nature of the text. This is something Christian should certainly understand. The binding nature of the Constitution means that even the three liberal justices of the Supreme Court, holding to a progressivist understanding of how to interpret the Constitution, there is still enough binding authority of the text of the Constitution, that they ruled in favor of religious liberty, rather than the LGBTQ agenda, on this one. But what did the six conservative Justices give up? Well, at least three of them lost on whether or not the court should proceed to overturn the Smith decision, a 30 year old precedent in the Supreme Court that represents one of the most disastrous decisions for religious liberty in the nation’s history.

In the Smith decision, the free exercise clause was effectively conditioned, so that laws that were declared to be generally applicable would be valid, even against religious organizations. Now, there are huge problems there. And, as you’re looking at the history of the Smith decision, it has created legal and constitutional mischief for three decades. And so it becomes very clear, that in order to get the 9-0 ruling in the Fulton case out of Philadelphia, the conservative justices basically gave up on the goal of overturning the Smith decision. That would be an absolute reversal of the court, and the Chief Justice did not want the court to go in that direction. That’s a warning signal to Christians, because what we’re looking at in this big win is a provisional and limited win, because this turns out to be a limited decision. That means that a case coming in similar principles, but in different facts, could make its way through the courts.

Once again, we can have other cities say, “Yes, but our policies don’t meet these exact facts, and thus we are within the Constitution.” The Smith decision must be overturned, eventually, if we are to have any assurance of the continuation of religious liberty, and, in particular, of the free exercise clause in the United States. Three Justices were extremely clear about this, most importantly, Justice Samuel Alito, who issued an opinion in this case that ran 272 pages, castigating the court for not taking on the larger issue and its larger responsibility to grapple with the Smith decision, and eventually, to overturn it. Looking squarely at that precedent to the Smith decision, and the fact that it needed to be overturned, Justice Alito wrote, “Regrettably, the court declines to do so. Instead it reverses, based on what appears to be a superfluous and likely to be short-lived feature the city’s standard annual contract with foster care agencies.”

In extremely clear and the graphic language, Justice Alito, joined by Justices Thomas and Gorsuch, wrote, “This decision might as well be written on the dissolving paper sold in magic shops. The city has been adamant about pressuring Catholic Social Services to give in, and if the city wants to get around today’s decision, it can simply eliminate the never used exemption power. If it does that, then voila, today’s decision will vanish, and the parties will be back where they started.” The three justices then summarized, “Not only is the court’s decision unlikely to resolve the present dispute, it provides no guidance regarding similar controversies for other jurisdictions.” In yet another concurring opinion, this one on the part of Justice Gorsuch, he wrote, “Smith committed a constitutional error. Only we can fix it. Dodging the question today guarantees it will recur tomorrow. These cases will keep coming until the court musters the fortitude to supply an answer. Respectfully, it should have done so today.” It’s also worthy of asking the question, where was the newest Justice of the Supreme Court on this issue?

Amy Coney Barrett, where was she? She’s a defender of religious liberty. She also understands the issues and has made public comments about them in the past. Where was she on this issue? Well, she was certainly in the nine justice vote of the unanimous court, but where was she on the necessity of overturning the Smith decision? Well, she issued her own, rather short, concurring opinion in which she wrote that her concern was that the court was, at this point, going to be unable to come up with a test to replace the Smith test. She wrote, “Yet, what should replace Smith? The prevailing assumption seems to be that strict scrutiny would apply whenever a neutral and generally applicable law burdens religious exercise. But I’m skeptical,” she wrote, “about swapping Smith’s categorical anti-discrimination approach for an equally categorical strict scrutiny regime, particularly when this court’s resolution of conflicts between generally applicable laws and other first amendment rights, like speech and assembly, has been much more nuanced.”

So, if you add up the math apparent in the decision and in the various concurring opinions, it becomes rather clear that there is a 5-4 majority on the court to overturn the Smith ruling. That’s good news. But it’s not good news that the Court dodged the question in this case. It should have addressed the question. That means that the victory that is real in the 9-0 zero decision, handed down by the Supreme court yesterday, even though it’s real, it might not last long, and it doesn’t establish the kind of lasting constitutional protections that the American people and that American Christians have every right to expect from the Supreme Court of the United States. That’s where we’ll leave the issue today, in terms of the Fulton decision. A big win, a big unanimous win at the Supreme Court. But the second issue we’re going to have to look at in days to come is the response to the decision.

What will the LGBTQ advocacy organization say? What will the city of Philadelphia say? It’s going to be a very interesting and expanding story. We’ll be looking to that story next week, and in the days to follow.

Part II

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Education Department Announces Protection for Transgender Students Under Title IX: A Reminder That Supreme Court Decisions Can Have Seismic Effects

Next, we turn to another issue on the very same front. The headlines that came from Wednesday’s decision by the US Department of Education were similar to what you see in the New York Times, “Education department says Title IX rights protect transgender students.” This was yet another shoe to fall. As we’re looking at the transition from the Trump administration to the Biden administration, and you’re looking at the continuing power of the regulatory state in the United States, we are looking at regulatory agencies, in this case, the Department of Education, having legal authority, handing down decisions like this, in order to say that, all of a sudden, Title IX, dating back decades, using the word “sex” now includes transgender students in the category of sex.

That is to say, just as we saw devastatingly enough in the Bostock decision handed down by the Supreme Court last year, all of a sudden the word “sex,” we are told, includes those who are claiming transgender identity. And thus, it is wrong to say no to anyone making a claim based upon transgender identity, if a similar claim could be made on the basis of being male or female. It’s a devastating decision from the Supreme Court last year. And it comes with the results. We have here the fact that Supreme Court decisions have effects, and elections have effects, and the headlines that came from Wednesday’s announcement at the Education Department, just remind us that those effects can be seismic. Now, what will this mean? It means that the signal is being sent to states and to all who are participants in federal funding in any way for education.

That means almost every school, not Southern Seminary and Boyce College, by the way. There are a few holdouts. We will not accept government money, because we will not accept government control. But the vast majority of schools, public and private, come under Title IX, and those schools are now being told that they cannot discriminate on the basis of the transgender issue. But more than that, it really means that this is an absolute coercion from the State, saying that all institutions have to completely surrender to the transgender ideology and all that that means. Now, we’re at a very interesting political moment in the United States, because several states either have taken or are taking action to make clear that, for example, girls may participate in girls sports and only girls in interscholastic competition and inter-collegiate competition. Depending upon the level, you’re looking at high school and collegiate sports, having states say, “Girls only participate in girl sports, not those who claim to be transgender girls, but are biologically male.”

So, what’s going to happen? Well, the announcement that was handed down on Wednesday by Secretary of Education, Miguel A. Cardona, is addressed to the states, but it is very likely that this is going to set up all kinds of conflicts with many states, because many of the states are going to say that they will not accept or even perhaps, pay attention to or recognize this policy as they are conducting their own affairs. This will set up innumerable conflicts and claims that will eventually get to the Supreme Court. Now, in the decision that was handed down in Bostock, the Court said that it was not making decisions on such issues as interscholastic sports, bathrooms, locker rooms and all the rest. Here’s the fact. The Supreme Court set up the problem, and this problem will eventually get back to the Supreme Court. And at the Court, under these circumstances, there is very little reason to be hopeful.

Part III

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The Moral Issues of World War II Come Rushing Back Decades Later: What Happened to Hideki Tojo’s Remains After His Execution?

But finally, for this week, the New York Times released an interesting story, having to do with a mystery that has now been solved, a mystery resolved after 70 years. It came down to this. Where are the remains of Hideki Tojo, the Japanese Prime Minister who was known as the Warlord of Japan during World War II? The man who bore main political responsibility for the surprise attack upon the United States at Pearl Harbor, and not only for the Japanese conduct of the war, but for the many atrocities, including genocide, that were undertaken by the empire of Japan, under his political leadership. Tojo was classified as a class A criminal in the war crimes tribunal. He was found guilty and he was executed. But what happened to his remains? Well, the mystery seemed to be resolved with the news that came this week, at least in a public acknowledgement, that Tojo, once he’d been executed, was then cremated.

And then a United States army major took his remains, and with the provision of the United States Army Air Corps, flew about 30 miles off the Japanese coast and scattered the ashes, so that there could be no shrine built to Tojo and the other war criminals. And this is a big issue, especially given the ancestor worship that is very much a part of Japanese culture. From a Christian worldview perspective, just think of this, all of the moral issues of World War II come rushing back, 70 years later, with a question like this, that created headlines and an entire half page print story in the New York Times. That tells us that history is never as remote to some might think. All of a sudden, history can jump right back into the headlines, and all the moral issues that are contained in that history come back as well.

There’ll be more for us to consider next week, but here’s one thing to consider. Some of them are predictable. Some of them are not. Many of them, if not most of them, will deserve our worldview analysis. We’ll get to that next week.