Thursday, December 9, 2021

Part I

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Can States Constitutionally Discriminate Against Religious Schools? — Nation’s Highest Court Hears Oral Arguments over Big Separation of Church and State Case from Maine

Well, we’re back to the Supreme Court yesterday, fascinating oral arguments held in a big church state religious liberty case. So much for us to consider there and even as we knew this case was going to get interesting, well, the oral arguments were far more interesting than you might have imagined. Why all these oral arguments this time of year? Well, just think of the Supreme Court term much like a school term. It begins in the fall, it ends in the late spring, the Court takes the summer off and the oral arguments are now being lined up as we’re approaching the end of the year in order for the Court to do its deliberations and the decisions to be written, the opinions to be penned and eventually to have the biggest cases announced at the latest point in the term. That’s the Supreme Court tradition. The bigger the case, the later the likely announcement.

We’ve often had to wait this thing out in the last days of June and that’s likely to be true again. But right now, what we’re looking at is this big church state case and it comes from what might be considered to be a small question. The small question is this, can the state of Maine allow government vouchers or grants to be given to parents under certain circumstances in which the parents can choose to use these funds in order to underwrite tuition at a public school so long as it is not a very religious school? Can Maine do that? Well, let me just give you the bottom line, and this is good news, the oral arguments reveal the fact that a good many of the justices clearly do not believe that the state of Maine can constitutionally discriminate against religious schools in this way.

But there are some really big issues here. There are some interesting twists and turns. First of all, the whole situation in Maine. Why is this question coming from Maine? Well, it’s because Maine is a very rural state and indeed some of the counties in Maine have such a low population that the county does not have a public high school. So in the absence of a public high school, the state of Maine has a program that gives financial assistance to families to send their children to private schools for high school. By the way, those can be used even in a school outside the United States, but the one thing that those funds cannot be used on is tuition for a religious school that is very religious. You may say that’s an odd way to put it. Well, that’s the bottom line, and that’s why we’re looking at this case with such interest.

The Maine program really is interesting. Parents are given about $11,000 per child, and that’s a significant amount of money, and this has been going on for decades. But the issue has come down to the fact that certain religious schools, in this case, let’s be honest, they’re Christian schools, they are conservative evangelical Christian schools. They’ve been disqualified from the program. Parents are told they cannot use these government funded vouchers or grants in those specific Christian schools. The question is why? Well, the state of Maine has a rather unconventional and, I would argue, unsustainable explanation, and that is that what they are trying to do is to fund private schools that are sort of like public school. They are not intending to fund religious schools. If you think that sounds like a strange argument, well, that argument was actually made before the nation’s highest court yesterday.

The attorney making the case for the state of Maine and the Biden administration was Malcolm L. Stewart, who is the deputy solicitor general of the United States. The solicitor general is the government official who represents the United States government in court, and most importantly, before the Supreme Court of the United States. This was an assistant or deputy solicitor general. Mr. Stewart was asked this question by Brett Kavanaugh about how he would defend this Maine policy and the deputy solicitor general said this, “Maine is willing to provide a secular education, an education that is the rough analog to what the public school would give you at state expense. It’s not willing to pay for religious inculcation.”

Now, fascinating. Here you have the deputy solicitor general of the United States telling a justice of the Supreme Court, thus telling the entire Court, “Look, what Maine’s trying to do here is to have a public education that isn’t actually a public education. In the absence of a public high school, it’s willing to give these parents to $11,000 a child to underwrite private education and those parents can choose any school they want, except a school that is, well, actually religious.” Now, you say why the word sectarian, why am I speaking about being really religious? It’s because of the tortured logic of Maine and boy, is it interesting?

It comes down to this. The state of Maine is saying to the Supreme Court, “Now, wait a minute. We’re not discriminating against Christian schools. We’re not discriminating against religious schools. Those schools can be religious. They can be tied to a church. They can have even compulsory chapel attendance, but here’s the one thing they can’t do; they can’t seek to inculcate religious beliefs.” Now that’s an absolutely ludicrous argument. Basically it is saying that a religious school can participate unless it’s too religious. Now, of course, even at the practical level, that raises the huge and inescapable question of who exactly decides when a religious school is, well, too religious, but it’s the issue of principle that’s even more important. What right does any government in the United States have to say that a school can be religious, but not very religious or that it can have a policy that says, “Look, we’re going to use taxpayer money and we’re going to give parents the choice of how to use it, but we’re then going to tell parents they can use it anywhere but in sectarian schools.”

Now that word “sectarian” is just a way of making the argument that these are schools that hold to a particular doctrine. They hold to a particular set of religious tenets, principals, doctrines policies. That’s, of course, what Christian education is all about. As a matter of fact, the two schools that are at the heart of this issue, they’re in Maine, the two Christian schools, both speak about their educational purpose as presenting, teaching and inculcating a Christian worldview in their students and that’s what has so offended the state of Maine. You can say, says the main government, that you’re a Christian school or religious school, you can name yourself whatever you want, but you just can’t teach any religious doctrine seeking to inculcate that doctrine in your students.

Now, I’m going to telescope back for a moment and just say that the purpose of a school is to inculcate doctrine. You say, “Well, you’re talking about Christian schools.” You bet I am, but that’s actually the purpose of any school. The word doctrine means teaching and that’s what schools do, and here’s where the Christian world view reminds us you can have what’s declared to be a secular education, but there’s some kind of ultimate purpose, ultimate truth. There is some kind of dominant, orthodox doctrine being taught by that school, even if it is a godless doctrine, even if it is a secular humanist doctrine, even if it is a communist, socialist or, for that matter, Hindu or Buddhist doctrine, it’s going to be some kind of doctrine and secular doctrine is as understood by Christians and biblical terms just as religious as what might be defined as religious doctrine.

Now, when you listen to oral arguments before the Supreme Court, or you read them as you look backwards in history, sometimes you see an attorney say something and you think, “Wow, he fell right into a trap.” Sometimes attorneys make bad arguments where they had access to a better argument. But in this case, the deputy solicitor general of the United States was trapped by the policy in Maine. He actually had to say right out loud that the purpose Maine is trying to accomplish is to provide the equivalent of a secular education where there is no secular school available, no government public school available. Here we need to be heartened by the fact that a clear majority of the justices seem to consider that argument as patent nonsense.

As you look at the history of the Court in recent years, there’s good reason to believe that the Court will continue along the line of other recent decisions. Several years ago, a large majority on the Court found that the state of Missouri could not discriminate against Christian schools when it came to participation in programs that would for something like playground equipment. Just last year in a case known as Espinoza v. Montana Department of Revenue, the High Court decided that the state of Montana could not have a voucher system when it came to paying for school costs and eliminate only religious schools. It couldn’t target religious schools for discrimination. Writing the majority opinion in that case last year, the Chief Justice of the United States, John G. Roberts Jr said, “Once a state decides to do so, that is to have such a program, it cannot disqualify some private schools solely because they are religious.”

Well, on the face, it looks like this Maine case is just like Montana, so why are we even at the Court on this question? It’s because the state of Maine is insisting that it is not just like the state of Montana, because it has not eliminated or discriminated against religious schools, only those schools that tend to be rather religious. This is where we really need to take a closer look. By the way, one of the issues of shame in higher education is how many schools present themselves as Christian and art, or they present themselves as religious. There’s no legitimacy to that.

You also notice that a secular society has no basic problem with the mildly religious. Even as the case was being heard before the Supreme Court, the reality is that one of the schools that does qualify for this particular program is a private school that was attended by none other than the son of the Chief Justice of the United States. It’s one of those schools that has a rather mild religious identity, thus it qualifies.

Part II

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The State of Maine Is OK with Funding Religious Schools — So Long as They Are Not Actually Religious

But the schools that have a Christian worldview curriculum, the schools that hire according to Christian truth and Christian doctrine, the schools that define themselves in their moral code by biblical Christianity, they’re the ones against whom the discriminatory judgment has been made. Just in order to understand what we’re looking at here, it’s very interesting to see the essays and the arguments against including these schools, and you see this in argument, such as New York Magazine, Jay Michelson reported, “The Supreme Court is ready to make taxpayers fund religious schools.” You’re supposed to be scared about that. An article by two reporters, Madeline Carlisle and Katie Riley at Time ran the headline, “The Supreme Court case would take a wrecking ball to the separation of church and state.”

Similarly, Ian Millhiser wrote an article, “Supreme Court appears ready to force taxpayers to fund religious education.” Mark Joseph Stern at Slate, “The Supreme Court’s new religious liberty case could destroy public education.” What’s the big complaint here? It’s the fact that these Christian schools are actually Christian in terms of the content of their curriculum. Beyond the curriculum, you could add other policies, including admission and student conduct policies. Mark Joseph Stern goes on to complain that these schools hold to a biblical understanding of sexuality, marriage, and gender, and they make admissions and disciplinary decision according to that biblical conviction. We are told that one of these schools, Bangor Christian School, “compels all teachers to affirm that they are a born again Christian and an active tithing member of a Bible believing church.”

Mr. Stern goes on to complain that the school says, “It will not hire teachers who are gay, transgender or gender nonconforming.” In the next complaint, we read this, “Bangor Christian School explicitly denounces non-Christian faiths. In social studies class, for example, ninth grade students are taught to ‘refute the teachings of the Islamic religion with the truth of God’s word.'” That’s put in quotation marks. You’re supposed to be scared off by that. “All students are instructed that men serve as head of the household.” Temple Academy, we are told, has a pretty hardline rule against accepting non-Christian students. Now, just remember, it is a Christian school. The point being made by the state of Maine is that this parade of issues of complaints against these religious schools are supposed to justify saying that parents can use these tax monies to send their children to any school except these schools. They actually go on to make that argument that they are not discriminating against religious schools, only religious schools that are religious.

By the way, Stern also complains about the moral teachings of these schools and, of course, that’s based in Christian commitment, and he complains that if these tax monies go there according to parental choice, that then others in Maine will be offended that they’re subsidizing a curriculum that teaches a morality they do not accept. Now, there’s irony there, of course, because of all the millions and millions of Christian parents around the United States whose tax monies are confiscated in order to pay for a progressive liberal education that serves the cause of a sexual revolution, they reject on conviction. There’s the irony. Trying to defend the state of Maine’s logic, Ian Millhiser writing at Vox says, “The issue in Carson is that only non-sectarian schools are eligible for this subsidy. Families may still send their children to religious schools, but the state will not pay for children to attend schools that seek to inculcate their students into a religious faith.”

Again, it would be fairly hilarious if the stakes here were not so high and the principle was not so urgent. Here you have a state saying, “Hey, we don’t mind religious schools, as long as they’re not very religious.” Now, you can imagine that there are many people who’ve been making that argument under their breath. That’s one thing. But to make this argument before the Supreme Court of the United States, that sort of redefines audacity. Doug Laycock, a constitutional scholar teaching at the University of Virginia School of Law made the point, “The concept of a religious institution that doesn’t do anything religious is pretty much an empty set. It’s a distinction based on a difference that doesn’t exist in the real world.” Well, Professor Laycock, you’re making a real old logic that is based in truth and should be obvious to everyone, but clearly it’s not yet.

Those who paid close attention to the oral arguments yesterday probably came up with an arithmetic something like this, five conservative justices very clearly seem to see through the logic of Maine. It’s not exactly clear where the Supreme Court Chief Justice is, and the three liberal justices seem to be ready to accept the argument made by the state of Maine. Why would they do that? Finally, as we look to this issue, we need to ask the question, why would the state of Maine take such a ludicrous position? Why would so many liberals and secularists in this country, so many who style themselves the defenders of the public schools, why would they take such a radically secular and secularizing perspective?

It is because of the tremendous fear of the power of education. That’s the issue. Those who seek to redefine, realign, reshape our culture understand that if they control the schools, they will control the young, and if they control the young, they will control the future. Here you have the reality that these schools will indeed influence the young, that’s the very purpose of having a Christian school, but not the way so many want them influenced. That’s the problem. We’ll see where the Supreme Court goes with this and as we began the program, we’re likely to be waiting until June. By that time, by the way, the original plaintiff bringing this suit against Maine won’t be able to receive any compensation because their own child will have graduated from high school. But they will have made a principle and a brave stand for religious liberty, for fairness, and for the liberty of Christian schools to be Christian. That’s a noble cause any day of the week.

Part III

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Biden Appointee for Office of the Comptroller of the Currency Withdraws from Confirmation Fight . . Over Questions About Communism?

Next, we all understand that we are involved in a great conflict and collision of worldviews and we see that collision of worldviews constantly in the world around us, but sometimes it’s a bit difficult to unearth what we’re really looking at. At times we have to do something like the archeology of a situation, of an idea or system of ideas. But sometimes the issue is just front and center and unavoidable, and that’s the case with headlines having to do with two of President Biden’s administrative appointments. One of them failed, one of them successful just in recent days. By failed I mean that one of President Biden’s major nominees has withdrawn from consideration in the Senate confirmation process. This would be Saule Omarova, who had been nominated to be comptroller of the currency by President Biden.

Now, what is that? Why does it matter? What is this story telling us? Well, it’s a lot more interesting than you might think. The comptroller of the currency is a treasury official who has a lot to do with how banks are regulated, has a lot to do with the banking system. This is a major role in our economic system. It’s one that many Americans don’t think about, don’t hear about, but like so many other posts in government, this one’s crucial. The fact that it’s so important is reflected by the truth that it’s a position that has to be confirmed by the Senate, but in this case, Saule Omarova is not going to be confirmed by the Senate because she withdrew under a great deal of pressure. But what’s really interesting is that the headline in yesterday’s addition to the New York Times included these words.

Now just listen, this is 2021. This isn’t like 1955 with the Cold War very much in the background. This is just yesterday: “Smeared as communist, Biden’s pick for bank regulator post withdraws name.” Wow. Smeared as communist? Is that possible? Well, actually it is because Saule Omarova holds to a very radical understanding of the federal government and of the economy. She basically, even in recent times, has written an article for a law review in which she calls for what could only amount to a socialization of the banking system in the United States, even private banking accounts, with everything basically coming under what she calls the public ledger of the federal reserve bank.

She understands her proposal to be audacious. She knows that it’s coming from the far left wing. The question is how far left. Well, that’s one of the questions that at least many Republicans, but also it’s not just Republicans, those identified as moderate Democrats, they were pressing this question. After all, we’re not just talking about what should be an alarm about any federal nominee or employee, but someone who was nominated to be comptroller of the currency of United States. Emily Flitter reporting for the Times tells us, “Saule Omarova, a Cornell Law School professor whom critics painted as a communist after President Biden picked her for a key banking regulator job, withdrew from consideration for the post on Tuesday.” Now, there were those who lamented this and one of them was Senator Sherrod Brown of Ohio, a Democrat. He’s, by the way, the chairman of the Senate Banking Committee. He said he was really outraged by this.

She said, “Dr. Omarova is one of the most qualified nominees ever for this job because of her experience as a policymaker in the private sector and in academia.” Senator Brown went on to accuse powerful interests of opposing Ms. Omarova and he described the opposition to her as, “A relentless smear campaign reminiscent of red scare McCarthyism. They have shamelessly attacked her family, her heritage, and her commitment to American ideals,” Now, wait just a minute. On the other hand, Senator Patrick Toomey of Pennsylvania, he’s the highest ranking Republican on the Senate Banking Committee, he said that the opposition to Ms. Omarova arose from the fact that she was a self-proclaimed radical and he said there was a bipartisan consensus about the self-proclaimed radical ideas she held that were, “Not suitable for our nation’s top banking regulator.”

Where would you find evidence about this? We talk about a clash of worldviews. Let’s just state that when you’re looking at communism, when you’re looking at Marxism, even when you’re looking at the Marxist variant of socialism, you’re looking at something that’s incompatible with the American economy. Now, furthermore, I’m going to argue it’s incompatible with the Christian worldview, it’s incompatible with economic reality. But nonetheless, when you look at the case of Saule Omarova, you are looking at someone, well, who has an interesting background. One of the interesting things that came up in her failed confirmation process is that Senator Toomey, again, the highest ranking Republican on the committee, asked to see Ms. Omarova’s thesis, a thesis she had done years ago, a thesis she had written at Moscow State University, a thesis that had the title, “Karl Marx’s Economical Analysis and the Theory of Revolution in The Capital.” That is Das Kapital, Marx’s massive economic work.

So we’re not just talking here about rumors. We just note the fact that until recently, Ms. Omarova had on her faculty page at the Cornell University School of Law, the fact that she held this degree from Moscow State University and, of course, she even had the title of her thesis, “Karl Marx’s Economic Analysis and the Theory of Revolution in The Capital.” She was asked by Senator Toomey for a copy of this thesis. He said that he would arrange for the translation from Russian into English. He never got a copy of that thesis and that the thesis disappeared from the professor’s page at the law school. It’s also interesting to note that Ms. Omarova was there at Moscow State University on a Lenin scholarship. Now, where would anyone get the idea that she ought to be asked questions about Marxism, her thesis and communism?

Presumably having withdrawn from the nomination process, she’ll go back to teach law at Cornell.

Part IV

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Identity Politics Never Gives Up: The Media's Constant Focus on LGBTQ Identity, as in “First Openly Gay Commissioner of Customs and Border Control"

But then I said, the other interesting case has to do with a successful nomination, that is to say someone who has gone through the nomination process. This is interesting on entirely different grounds. This is just a sidebar article. It appeared in several newspapers. This time I’m looking at the New York Times, the headline, “Biden’s pick to oversee U.S. borders clears Senate.” Here’s the issue, “The Senate on Tuesday approved President Biden’s choice to run customs and border protection, filling a key post that is oversight on one of the president’s earliest and biggest challenges handling the historic spike in illegal crossings at the nation’s border.” But then listen to the next sentence. This is what’s really of our interest in this point. “With the 50/47 vote, Chris Magnus, the police chief in Tucson, Arizona, is set to become the first openly gay commissioner of the federal agency’s largest law enforcement agency.”

Now, there’s a breakout quote in the article and there’s a photograph of what’s called a cut line under it. The cut line says, “Chris Magnus will be the first openly gay customs and border protection commissioner.” We’re talking about this today because being gay or not being gay doesn’t appear to have any apparent function or meaning when it comes to this job. Thus, there’s a big question as to why in the world would this person’s sexual identity or claimed sexual orientation appear in this news article, and it’s because sexual identity politics means it’s going to appear everywhere. Here’s how moral revolutions work. You create an ideology and then you pair it to something like identity politics, and then you push this through the agenda of the society so far that a routine news story about a new federal commissioner includes the fact that he’s the first openly gay commissioner when the commission, at least at faces value, has nothing to do with being gay or not.

When it comes to this revolution, make no mistake, the revolution is marching on.