Tuesday, June 29, 2021

Part I

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A Crucial Moment for the Future of Religious Liberty in America: Jack Phillips of Masterpiece Cakeshop Fined Again in Colorado

“The religious freedom bomb may be about to detonate.” That’s actually a headline recently in an opinion piece at the Washington Post, but it’s a reality we’ve been talking about for a number of years now, indeed decades. We have been seeing the bomb coming into place. We’ve been seeing the detonation about to happen. In one sense, it has happened. In many locations, in many cases, we are already looking at the direct contradiction of religious liberty. We’re looking at the subversive undermining of religious liberty, the nation’s first constitutional liberty, the foundational liberty upon which all of the liberties are based, we are seeing the subversion of religious liberty, now routinely, among the academic elites. We’re seeing it amongst those who are also pushing for the progressive vision of this country. This simply sees religious liberty as something that is an impediment to that kind of progressive progress.

Why is it an impediment? Because it allows religious people to be religious. And it is actually, as we have seen over and over again, the fact that religious identification and any kind of religious participation is one of the leading indicators of resistance to the progressivist wave. David Von Drehle has it right when he begins his article by writing, “The 2015 Supreme Court decision extending the right to marry to same-sex adult couples contained a ticking time bomb. Six years later, the noise is getting loud.” He’s a good writer. He’s making a good argument.

Actually, in this article, he presents a very honest assessment of where we are, and he actually gets to the bottom line in a way that many others in the opinion of business simply do not, or they will not. The bottom line is either the Constitution guarantees religious liberty, or it doesn’t. Either the United States cherishes religious liberty as its first freedom, or it is expendable. It comes down to whether or not a cake baker in Denver, Colorado has the right to make cakes that are in accord with his Christian convictions and not to be coerced into making cakes that actually communicate what is an ethical to his own beliefs. The background of this is very important. The foreground is, indeed, explosive.

Von Drehle goes back to the 2015 Obergefell Decision legalizing same-sex marriage. Even before that decision, the outline of the challenge was already clear, and that was made evident in the fact that at least several justices of the Supreme Court, conservative justices, who would eventually decide against same-sex marriage, although they were overruled by others. The fact is that they raised in oral arguments, the collision with religious liberty that was certainly coming. Justice Alito, Chief Justice Roberts, they both pointed to questions such as whether or not Christian colleges would be compelled to violate Christian conviction by requiring, say, same-sex married couples to have equal access to housing as married couples according to Christian teaching.

Now the Solicitor General of the United States under the Obama Administration had answered the justices by saying it will be an issue. In other words, Christians and other people with deep religious conviction are put on notice. Your religious liberty has an expiration date. The ticking time bomb is when that expiration date detonates. And the six years since Obergefell, we have seen the onward March of the left trying to redefine religious liberty, if not to deny it outright. You have many people in the academy, that is in the academic world, making the argument that religious liberty is just one among other interests, one amongst other rights. You also have the argument being made that religious liberty claims are now even artificial. You see many in the press referring to religious liberty only with quotation marks around the term as if it’s a term of art, it’s an invented and artificial description. Now, of course, the founders put their lives on the line to the contrary.

Now you’ll remember the fact that just in recent days, a unanimous decision from the Supreme Court indicated that the city of Philadelphia could not deny a Catholic foster care and adoption ministry access to partnership with the city simply because the Catholic ministry operated on the basis of Catholic conviction. It was a unanimous decision. It was the right decision, but it was a very narrow decision. The point is that the Supreme Court avoided dealing head on with the issue that will inevitably detonate right there at the Supreme Court. David Von Drehle’s article is pointing to the fact that the court can’t avoid having to settle this issue clearly for very long.

At just about the same time, the Supreme Court handed down that unanimous, though very narrow ruling, in the Philadelphia case, back in Colorado, Jack Phillips, the owner of the Masterpiece Cakeshop, found himself once again at the very center of the target of the secularist trying to coerce him to create cakes with a celebratory message that would contradict his own deepest Christian convictions.

As the New York times reported, “The Colorado baker, who won a partial victory in the Supreme Court in 2018 after refusing to make a wedding cake for a same-sex couple, violated the state’s anti-discrimination law by refusing to make a birthday cake for a transgender woman, a state judge ruled.” Listen to this: “In his ruling, Judge A. Bruce Jones and the Denver District Court, found that the baker, Jack Phillips, had violated the Colorado Anti-Discrimination Act when he denied Autumn Scardina’s request for a birthday cake that was blue on the outside and pink on the inside because she is a transgender woman. Mr. Phillips was fined $500, the maximum fine for a violation of the act.”

Let’s just face what we’re looking at here, this is a made up case. There are plenty of other cake shops and bakeries in the area. You have here, activists targeting this particular Christian businessman because of his Christian convictions and for the fact he’s been daring to stand against the tide. This is a made up situation, and yet it found its way into the court system and once again, this man has been found guilty of protecting his own Christian conscience. Now he does it in other ways. It’s not just related to LGBTQ issues. Jack Phillips won’t make Halloween cakes either, because he believes that violates his theological convictions. The point being made here is not just about the making of cake. There’s no real issue here about whether or not cake should be sold to persons without regard to their sexual identification. The issue here is the fact that artistry and communicative action is being demanded of Jack Phillips. What’s being demanded of him is to make a cake that celebrates the transgender revolution. And he can’t do that according to his Christian convictions. He won’t do that. He just got cited again.

Now, remember he won an overwhelming victory at the Supreme Court, but you’ll notice that the activists are simply shaking that off and moving on and so were the legal authorities there in Colorado. The court can’t duck the big question here for long. David Von Drehle gets it exactly right when he writes this, “Either religious freedom protects those who treat same-sex couples unequally in public life, or it doesn’t.” And that doesn’t relate just to a cake baker. It relates to your local Christian college, your local Christian university, for that matter, your local Christian daycare center or adoption and foster care center. The reality is the court is going to have to decide if religious liberty is indeed the nation’s first liberty and must be respected, or if it can be routinely violated and contradicted by state and other government officials, including, as we shall see, the federal government itself, the Government of the United States of America.

As Von Drehle recognizes, in these cases, “Two bedrock principles of the constitution are brought into direct conflict. Americans have a right in their public lives to be free from discrimination based on who they are. This right finds expression in laws, requiring businesses and agencies that serve the public to do so without discrimination.” So that’s supposed to be the first bedrock principle, but we simply have to note that there are limitations to this. We’re told Americans have a right in their public lives to be free from discrimination based on who they are. But as we shall see, that was premised upon the idea that the “who they are” is made up of immutable, personal characteristics, such as, say, race or skin color or ethnicity or gender. It’s a very different thing, all of a sudden, for gender to be something that is severed from biological sex and for identity to be made up in any number of sexual permutations.

The second bedrock principle, as Von Drehle says, is the protected freedom of belief and expression. “They cannot be compelled by the government to express or reject any religious views or political opinions.” That’s absolutely right. American citizens cannot be coerced by the federal government into communicating what the citizen does not believe when it comes to religious or political expression. But that’s exactly what the state of Colorado is intent upon doing. That is exactly what has happened when they fine Jack Phillips $500 for refusing to make a cake one color on the inside and another color on the outside. The cake is expressing meaning. That’s the only reason this entire setup was put into place.

Von Drehle described the situation this way, “Either the baker’s freedom of belief allows him to sell customized cakes only to those people whose identities and conduct comport with his religious beliefs, or the would-be cake buyers of Lakewood have a right to decide what Phillips will write on cakes, as long as he operates a public business.” There’s a little bit of confusion in the way Von Drehle set that up, because the first issue is really not to whom the cakes are sold, but what would be the communication required on the cake? He gets that right in the second sentence. “Underlying this dispute, the really explosive part is a slippery slope. It seems monstrous to think that artisans have no control over the expressive content of their creations. Surely,” he writes, “a seamstress who knowingly provides choir robes and judicial robes should not be compelled to make robes for a Ku Klux Klan rally.”

The bottom line is emphatically clear. The Supreme Court cannot dodge these questions for long, although, as was reported yesterday on a transgender case, this court seems determined to try to dodge the hard questions as long as it can, buying time. The big question is, Buying time for whom? Buying time for what?

Part II

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Is Religious Liberty Just One of Many Government Interests? A Look at the Response to the Fulton v. Philadelphia Decision

But next, I said that we would go back to look at responses to the Fulton Decision itself. A couple are extremely noteworthy. One doesn’t require much description, but it is simply an emphatic illustration of where liberal theology goes. The presiding bishop of the Episcopal Church in the United States, Bishop Michael Curry issued a statement after the Supreme Court unanimously held the right of the Catholic agency of foster care and adoption, there in Philadelphia, to operate on Catholic principles, you would think that the Episcopal church would think that’s a good thing? You would be wrong because the great object of worship that is reflected in this statement by the presiding Bishop of the Episcopal church is not God, certainly not classical Christianity, certainly not the freedom of Christians to worship in accordance with the word of God. It is the great idol of the modern sexual and moral revolution.

He writes this, “My heart is with my LGBTQ siblings in light of today’s ruling by the Supreme Court in Fulton V. Philadelphia. For us,” he wrote, “the affirmation of equal rights for all people is a moral and religious conviction. It is grounded in the Bible, which declares that all people have been created equally in the image of God. LGBTQ siblings,” wrote the presiding bishop, “we stand with you in this moment and we continue to affirm that you are, and always have been a blessing to our church.” The presiding bishop also says, with no touch of irony, “We are also concerned for the impact of this ruling on the foster care system, in which so many Episcopalians offer shelter and care to vulnerable children, many of whom are LGBTQ themselves.” I will simply note that the irony missing here is the recognition that any letter from the presiding bishop of the Episcopal church that refers to “so many of Episcopalians”, should be taken with a grain of salt. There aren’t so many liberal theology has seen to that.

The other response that demands our attention comes from the dean of the law school of the University of California at Berkeley, Boalt Hall. Erwin Chemerinsky is a well-known liberal legal activist, as well as the scholar dean there at the law school at the University of California. He writes something that really should have our attention because it is an extremely dangerous argument. He writes about the Fulton decision saying that it, basically, is the Supreme Court giving people a license to discriminate because of their religious beliefs. Notice the issue here, a license to discriminate.

As I say over and over again, every sane human being discriminates all day long. It’s a discrimination between what you’re going to order on a menu, a discrimination as to which book you’re going to read. Yes, it’s a discrimination as to which human being you will or would not hire as a babysitter for your children. Discrimination is sanity, but the use of the word discrimination here means invidious discrimination, wrongful, immoral discrimination. That’s where Christians understand that partiality is a sin, that giving, for instance, an advantage to someone based upon skin color as an immutable characteristic, is profoundly wrong, and it should be recognized as a sin, as a grave moral wrong.

But when you’re talking about the argument being made here, when you are told that the decision of the Supreme Court gives a license to discriminate because of religious beliefs, you have to understand that religious beliefs are themselves a form of discrimination, a belief in this God, not that idol, a belief in the truth of these doctrines, not those doctrines. In the sense of Christians, faithfulness to the word of God and to God’s intention and design, His command in creation is that we must understand what it means to be a male and a female in biblical terms. We must understand what is legitimate and illegitimate, what is moral and immoral human sexuality, in biblical terms. We have no choice about that if we are to be faithful Christians.

But I said that there was a particularly dangerous form of an argument coming in this piece by Erwin Chemerinsky. It comes in this paragraph, “I fear that this decision,” he means the Fulton decision, “is part of a trend toward expanding the protection of free exercise of religion at the expense of other crucial government interests. Earlier this year, the court found that California violated free exercise of religion when it limited the size of religious gatherings in homes, even though secular gatherings of the same size were restricted.” Well, let’s just work backwards here. First of all, that last phrase about the fact that California was found to have violated the free exercise of religion, because it treated religious gatherings just like other secular gatherings, but that’s exactly what the constitution demands. But it’s that first sentence that’s most important where Chemerinsky wrote, “I fear that this decision is part of a trend toward expanding the protection of free exercise of religion at the expense of other crucial government interests.”

Those last words are absolutely haunting. At the expense of other crucial government interests? So is religious liberty now a government interest, even a crucial government interest? Is that all it is? This is basically the dean of one of the most influential law schools in the United States, treating religious liberty, the first freedom in the US Constitution, as a legitimate government interest, but among other government interests and other important government interests, or crucial government interests, would include the government’s interest in furthering the LGBTQ+ revolution, of which he is an ardent advocate. But just notice what’s happened here. A constitutional right, and by the way, the Constitution doesn’t give us the right of religious liberty, God does. The Constitution respects and protects that God given liberty, but what you have here is the fact that that liberty, that first freedom, is simply put among a list of other government interests.

Now, if that’s all it is, then the government can decide it’s more interested in A or B now, even as it was more interested in D or F in the past. Religious liberty, well, it was really interested in that in the past, but there are other more compelling interests now. That’s exactly the ideology of the sexual revolution. That’s exactly the ideology of the political left in the United States. And you’ll notice that it’s put forward here in this article that appeared as an opinion piece in the Los Angeles Times, with one of the most influential legal educators in the United States, treating religious liberty as just another government interest.

Part III

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Why Did the IRS Deny a Christian Organization Its Tax-Exempt Status? Well, Essentially for Holding to Christian Values

But next, as we shall see, the federal government itself can become a grave threat to religious liberty. Big story on this is developing in Texas, where the Internal Revenue Service has denied 501(c)(3), that is tax exempt status, to a nonprofit group there in Texas, identified on the basis of Christian conviction, because it intends to teach people regarding moral issues that will come up in the public square and in public controversy, and yes, in elections, because the group was told that it is in its convictions, too much aligned with the Republican Party.

That’s the actual argument made by an official for the Internal Revenue Service in a letter to the organization, turning down what should have been its routine application and confirmation of IRS 501(c)(3), that is tax exempt status. In the actual letter from the IRS, dated May 18, of 2021, a letter from Stephen A. Martin, director of Exempt Organizations, Rulings and Agreements. He said, and I quote, “For example, you educate believers on national issues that are central to their belief in the Bible, as the inerrant word of God, specifically”–remember this is a letter from an IRS official to a Christian nonprofit organization–“specifically, you educate Christians on what the Bible says in areas where they can be instrumental, including the areas of sanctity of life, the definition of marriage, Biblical justice, freedom of speech, defense and borders and immigration, US and Israel relations. The Bible teachings are typically affiliated with the Republican Party and candidates. This disqualifies you from exemption under IRC, that’s Internal Revenue Code, Section 501(c)(3).”

Now, I’ll state that I have seen many inane, indeed, nearly insane unconstitutional statements coming from government authorities before, but never anything quite like this, in which a major official with the Internal Revenue Service, actually cites as the cause of this organization’s problem, the fact that it exists to educate believers on national issues that are central to their belief in the Bible, as the inerrant word of God. I’m reading from the letter. And remember, the official went on specifically to say that the disqualification of this organization was the fact that it intended to educate Christian believers on issues of marriage, Biblical justice, freedom of speech, defense, borders, and immigration US and Israel relations saying that “the Bible teachings are typically affiliated with what’s in the letter representing the Republican Party and candidates. This disqualifies you,” says the letter, “from exemption under the Internal Revenue Code.”

Now, remember this is an official letter coming on the letterhead of the Internal Revenue Service of the government of the United States of America, coming from a man identified as a director of the Internal Revenue Service with the authority to announce the disqualification of this organization from tax exempt status. Now, simply note something else. Look at these issues, especially related to marriage, Biblical justice, freedom of speech. Look at issues such as the sanctity of life, the definition of marriage. Notice the affirmation that’s cited in this letter, that this organization affirms the inerrancy of the word of God? We are told that those issues disqualify this organization, because those issues are more closely aligned with one party than another. What’s the Christian response to that? The Christian responses, we long for the day when both parties, all parties, multiple political parties in the United States would affirm the sanctity of human life. We look forward to, we would pray for the day when all major parties, both major parties in the United States, would affirm the sanctity of life and a biblical definition of marriage, which we believe is actually clearly revealed in creation itself.

But notice two other things, first of all, if this is true, if the logic of this letter is true, then the opposite position taken by other organizations should be similarly disqualifying, because they would be advocating positions more aligned with the Democratic Party, but you don’t see that here. Another issue to consider is this, if you are looking at these issues as, basically, held together, aligned with one party and thus disqualifying, what are you going to say about the tax exempt status of the Roman Catholic Church? What are you going to say about the tax exempt status of Evangelical Christian churches and organizations? What are you going to say about the tax exempt status of Christian colleges and universities that operate on the basis of Christian conviction? Wait a minute. We know exactly what they want to say. The organization at the center of the story that was denied tax exempt status by this official of the Internal Revenue Service is being represented by First Liberty Institute and, in particular, by counsel for that organization named Lea Patterson.

In a letter back to the IRS representing Christians Engaged, Lea Patterson wrote, “By Director Martin’s reasoning, any church that teaches these commonly held beliefs and encourages its parishioners to fulfill their civic duty to vote would violate the restrictions on campaign intervention because the IRS views the religious beliefs as overlapping with a particular party’s positions.” The lawyer went on to say, and I quote, “We hope that the proposed determination letter does not imply such a drastic and sweeping shift in how the IRS views encouragement to civic engagement by those who believe the Bible.”

Now that letter reveals a certain level of optimism that I actually do not hold, but let’s be honest here, that is exactly what the proposed determination letter indicates. That’s exactly what this IRS official meant to communicate. That is exactly what he put into print in a letter that he sent back to the organization saying that its tax exempt status would be denied. He put it in his own words. He put it on the letterhead of the Internal Revenue Service. He put it with the authority of the federal government of the United States of America. This cannot stand.

When we regularly talk about the coercion that is coming against believers, understand that this is one central representation of that kind of coercion, a discrimination coming in the form of anti-discrimination laws, as they are packaged in Colorado, a discrimination coming in the form of a letter, what should have been a routine letter from a director of the Internal Revenue Service. It wasn’t routine, of course, that’s what we’re talking about it on The Briefing today.

Part IV

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Despite the Unanimous Fulton Decision, KY Governor Andy Beshear Won’t Back Down from His Administration’s Policy Denying Sunrise Children Service Its Right to Operate by Christian Convictions

And there are other issues that are also living before us, one of them right here in the commonwealth of Kentucky, where even after the unanimous Supreme Court decision in the Philadelphia adoption and foster care case, the governor of Kentucky, Andy Beshear, has not changed the policy of his administration, that would have denied Sunrise Children’s Services, a Christian ministry here in the state of Kentucky, allied with the Kentucky Baptist Convention, from continuing its adoption and foster care ministries, unless it surrendered to the sexual revolution and accepted the governor’s insistence that it cannot operate on the basis of Christian convictions, concerning sexuality, gender, and marriage.

You would have thought that if nothing else, a unanimous decision by the Supreme Court would have sent a clear message to the governor of Kentucky, but evidently not. That raises the huge issue. What exactly will it take to get his attention?