Friday, January 7, 2022

Part I

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Tyranny Can Come from Bureaucracy: The OSHA Mandate Comes Before the Supreme Court — At Stake Is More Than The Vaccine

The Biden administration’s vaccine mandate lands today at the Supreme Court of the United States. Today, a special hearing is going to be held by the nation’s highest court and at stake is the question as to whether the Biden administration has the authority through the occupational safety and health administration to force all employers that have more than a hundred employees, to require vaccination of employees or weekly testing other requirements as well. This is a vaccine mandate.

The issue right now before the court is not the vaccine. It’s not the vaccine up or down, yes or no, it’s whether or not there is a valid, constitutional authority on the part of the Biden administration through a national regulatory agency to require employers to act in this way. Immediately after the vaccine mandate was announced, and even as the rule was being promulgated by OSHA, there were many who were lining up to sue the Biden administration in opposition to this mandate. Small businesses, organizations of businesses and employers, state attorneys general, and yes, The Southern Baptist Theological Seminary joined as plaintiffs in various suits, seeking an injunction against the Biden administration.

Once again, let me make clear, the issue here is not the vaccine. I have taken the vaccine. I encourage the vaccine. Evangelicals traditionally have been pro-vaccine even as we have been pro-medicine in the appropriate sense, but there is, at the same time, a separate question. I oppose and have opposed in the very beginning any form of mandate, especially when that comes in the context of such a highly politicized environment and one in which issues of genuine religious conscience are at stake.

The Southern Baptist Theological Seminary led an a suit against the Biden administration’s vaccine mandate precisely because it is an unconstitutional imposition and intrusion into the life of a Christian institution creating a relationship between the employer and employees that allows for no understanding of the religious conscience issues at stake. It would turn a religious institution, such as a theological seminary, into what is in effect, a regulatory agency as an extension of federal power. I think that’s not only unconstitutional, it should be unconscionable.

We need to note that the Biden administration chose to try to force this issue through a regulatory agency that does have a certain kind of authority, but that authority doesn’t extend to anything like a vaccine mandate under these conditions. As a matter of fact, looking to the authorization of OSHA, that’s the Occupational Safety and Health Administration created by the Act of that name in 1970, OSHA is authorized to offer what might be defined as an emergency rule, a temporary emergency standard when, and this is in the language of the Act, a grave danger exists. As USA Today summarizes the rule, when a grave danger exists that could expose workers to, and I quote from the text, “substances or agents determined to be toxic or physically harmful or from new hazards.”

You’ll simply note that there is nothing in that language that even speaks to epidemiology, but we are looking at a very serious constitutional question and it arrives before the Supreme Court today. It’s going to be very interesting to see what happens. The oral arguments are sure to be interesting. We may get some kind of indication of where a majority of the justices will land. The request here is for an injunction against the Biden administration’s policy. If such an injunction were to be granted, it would effectively stop the rule making authority of OSHA in this regard and it would put this policy on hold. That’s what the plaintiffs in this case are hoping for.

The main plaintiff in the case that arrives at the court today is Brandon Trosclair. As USA Today’s John Fritze reports, “He is a grocer” and as is explained here, he saw the legal fight taking shape months ago, “back when president Joe Biden first outlined the idea of requiring millions of American workers to get a COVID 19 vaccine or submit to weekly testing. We are then told the Louisiana businessman, who employs nearly 500 people at more than a dozen grocery stores was among the first to sue in federal court one of a series of challenges to the vaccine or testing mandate that some experts say has raised the most important legal question posed during the pandemic.”

Trosclair, by the way, made this statement, “It’s none of my business as an employer to get into the medical decisions of my employees.” That’s a point that we, that is to say Southern Seminary made in our own suit against the Biden administration but for us, there is the religious liberty aspect as well, because when you are looking at the question of vaccines, there are those who have very legitimate religious concerns and as to whether or not every one of those claims is legitimate according to a federal authority, that’s a different question. It should not be that an employer is put in the position of basically acting on behalf of the government in this regard.

Something else we need to note is that there are two huge issues here beyond religious liberty and beyond just the question as to whether OSHA has the constitutional or legal authority to promulgate such a rule. One of the issues is the relationship between the federal government and the states. These issues have generally been left to the states in terms of making these kinds of medical decisions. There is another issue and that is whether or not Congress should act in such a case to pass a law.

Now there might well be suits against that kind of law adopted by Congress and, if signed by the president, enacted into law. But the reality is that would be an entirely different affair, but there is no chance that you could get that kind of legislation through Congress and once again, what we see is that you have those who are trying to get something through the regulatory agencies, they couldn’t possibly get through legislation, and just to state the obvious that is something the founders of our political order never envisioned. If they had envisioned it, they would’ve opposed it as yet another form of government tyranny.

I might put it another way. If O.S.H.A., as a regulatory agency, the federal government, without explicit congressional authority has the right to extend this kind of rule, and if a president of the United States, through a political statement is able basically to order a regulatory agency to take such an action without congressional authorization, then what can the Federal Government not require of an employer? Or to go back to the religious liberty issue, what could the Federal Government not require of a Christian institution? Just think of the LGBTQ array of issues and you’ll understand there is a lot more at stake here than a vaccine.

And our hope is that there will be a majority of justices and there almost assuredly going to be the conservative justices who see that that is a legitimate problem and part of a larger problem about the role, power and authority of the federal government and its regulatory agencies. But there’s another issue here and that is just a warning about the ever present threat and danger, even the temptation of a form of tyranny.

Now, we understand that tyranny is a bad thing. It is an evil that is visited upon a people, but we often think of tyranny just in terms of a singular tyrant, the dictator, an autocrat, an evil monarch, but as you’re thinking about tyranny, we need to understand what the framers of the U.S. Constitution and our ordered liberty experiment well understood and that is that tyranny can come in many different forms, including in the form of what might appear to be an innocuous government entity.

The problem is that that innocuous government entity might itself turn tyrannical and if it’s operating outside of its legal, constitutional and rightful bounds, that’s exactly the temptation we’re looking at.

Part II

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‘Our Servicemen Do Not Give Up Their Religious Freedom When They Serve This Country: Judge Strikes Down Vaccine Mandate in Suit by Navy Seals

But there’s another case before the federal courts concerning the mandate and this one has to do with an injunction that was handed down, a temporary injunction on Monday.

It was handed down by Judge Reed O’Connor of the US District Court, a judge for the northern district of Texas in a case that was brought by several Navy Seals, that is to say, special service members of the United States Navy. And in this case, they claim that their own religious liberty was being violated by the fact that the United States Navy not only had a vaccine mandate, but it basically was making it impossible for legitimate claims of religious conscience to be considered.

Now in the process of this case coming before the Federal Courts, information has come to light that I think most Americans will find very interesting. But at this point, I’m very thankful for the decision that was handed down, the temporary injunction that was put into effect by Judge O’Connor in his ruling, he said this, “There is no military exclusion from our constitution, which is to say our service members have the same constitutional rights as civilians. They operate under a different authority. They operate in a different context and there are rules, special rules that are specially applicable to members of the military, but that does not abrogate their constitutional rights.”

Now I said that there’s some interesting information that comes to light in this particular case and it’s evident in the judge’s order. For instance, listen to this part of the background information offered by this US District Court judge, “the Navy’s accommodation process”–that means the accommodation or the consideration of requests for religious exemptions–“the Navy’s accommodation process confirms those fears. That is the fears that is not taking those considerations seriously. The Navy uses a 50 step process to adjudicate religious accommodation requests. Under the standard operating procedures for the process, the first 15 steps require an administrator to update a prepared disapproval template with the requestor’s name and rank.”

Now let’s just stop there for a moment. In other words, the Navy starts with a form that says that the request is disapproved. It has 50 different considerations, the first 15 have to be filled out assuming that the request is going to be disapproved. As a matter of fact, the form really only allows for disapproval. The judge goes on and states, “In essence, the plaintiff’s requests are denied the moment they begin.” That prepared letter, he says, is then sent to seven offices for review. After those offices review the disapproval letter, the administrator packages the letter with other religious accommodation requests for final signature. The administrator then prepares an internal memo to Vice Admiral John Nowell, asking him to “sign letters disapproving immunization waiver requests based on sincerely held religious beliefs.” That is simply stunning. You’re looking here at something that sounds like it comes right out of George Orwell’s 1984. You’re talking about a form that states disapproval even as it is filled out in a request for approval.

The judge’s order also includes this statement, “Several plaintiffs have been directly told by their chains of command that quote the senior leadership of Naval special warfare has no patience or tolerance for service members who refuse COVID 19 vaccination for religious reasons and wants them out of the Seal community.” End quote. Now, remember, these are some of our most highly dedicated, highly trained Naval personnel. They are members of a Seal team. The Washington Post report on the judge’s order cites Michael Barry. He, by the way, is a lawyer for the First Liberty Institute, that’s a nonprofit that specializes as the post recognizes, in defending religious liberty.

That’s an important statement. Michael Barry, the attorney for First Liberty Institute said in a phone interview with the Washington Post, that the judge’s ruling “sends a clear signal to the Biden administration, to the Pentagon and to the Navy that our service members do not give up their religious freedom when they serve their country.” Again, just consider the precedent here. It’s the same issue that motivates Christian institutions to be very alarmed when the federal government starts to its regulatory agencies or in this case, the military, the option of basically disregarding in toto, issues of religious conscience.

If the Navy can take this kind of action and put into effect this kind of process when it comes to adjudicating claims for religious exemption, it is basically decided that religious exemptions do not or should not exist. Now just consider the larger array of issues we are facing in terms of our contemporary American moment, just consider the issues of religious liberty, and again, the LGBTQ issue, look at all the power of regulatory agencies from the Department of Education to the Department of Health and Humans Services and yes, even to the Occupational Safety and Health Administration and understand if those regulatory agencies can do this, just ask yourself the question, what can they not do?

Part III

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Why Does the Christian Tradition Oppose Cremation? – Dr. Mohler Responds To Letters From Listeners To The Briefing

Next week on The Briefing, we’re going to take up any number of really fascinating and important issues. For instance, after more than a hundred years, a century too late, a pardon has finally arrived for Homer Plessy. We’ll explain why that is so important to the entire nation. We’re also going to be looking at other developments, including controversy over Pope Francis saying of all things, that people should not choose pets over children.

That’s a controversy now, but all that’s going to have to wait until next week with a host of other issues, because now we’re going to turn to the Mailbox, the first time in the year 2022 and the interesting thing is how many questions came with reference to cremation. I mentioned cremation and the fact that the Christian tradition has been almost universally against cremation for about 2000 years.

I mentioned it in reference to the death of South African Bishop, Archbishop Desmond Tutu. Desmond Tutu had requested that his body be cremated, but it actually wasn’t cremated, it was aquamated, a process that uses water rather than fire but the end result is the same. The body is reduced either to ashes or to some other substance of a granular nature that can be put into an urn. Now, why did this issue come up as a matter of Christian conscience? Why have Christians actually resisted and opposed cremation throughout most of Christian history? Well, let’s just think about it for a moment. When you think about the biblical anthropology, that is to say the biblical understanding of what it means to be human, you are talking about the fact that we are embodied. And, by the way, we will be embodied in glorified bodies in the age to come.

Among those who wrote, Marcus just asked straightforwardly, why do you believe cremation is wrong? And then he goes on to ask, what about people who are burned to death? Even those martyrs that were burned to death. Interesting way to put it, good question. Jerry wrote in about his own considerations of these issues and he mentions that he finds it more comforting to visit a grave site, when there is, he says, indeed, a grave site and a headstone and not just a special place where ashes have been laid to rest.

Well, you’re pointing to the answer here Jerry. Will wrote in and he raised the same issue asking what’s the significance of cremation, aquamation, mummification, casket burial, or even cryo-preservation. Well, Will, there’s more there than I can answer, I’m going to zero in on those efforts to reduce the body to a non-recognizable form. In this case, reducing it to ashes or the product of aquamation. Why does the Christian tradition believe that to be wrong? It’s not because God cannot resurrect ashes or resurrect molecules because over the process of time, even those who are buried in a casket in the ground, their bodies, our bodies, will one day return to the dust out of which we were made. On that day of resurrection, our bodies will be, indeed, just that, resurrected.

There will be those who died by fire. There’ll be those died who by any number of means and there will be, yes, as Marcus brought out, those who were martyrs, who were burned to death, the issue here is not the power of God to resurrect a human body from whatever dissolution it has suffered. The issue is how do Christians recognize death? How do we commemorate death? How do we organize our funeral and burial practices in a way most consistent with Christianity?

Going back to that biblical anthropology, the most important thing is we do not despise the body. Many Eastern and other non-Christian ways of thinking understand the body to be something that entraps the spirit, the spirit needs to be liberated out of the body. That’s exactly why, in so many of the religious traditions of the east, you have formal cremations in which it is declared that the spirit is being liberated from the body. That is exactly a contradiction to biblical Christianity. We do not believe that we are spirits trapped in a body.

Christians believe that human beings are a psychosomatic unity. That is to say every single human being is both body and soul. And you see this testified in scripture, not only in the beginning of Scripture, where, by the time you have the declaration, the human beings have been created, you have a body made out of the dust into which God breathes spirit. You also have the fact that when Christians die, the Scripture describes those dead Christians as being absent from the body but present with the Lord. That absent from the body is a temporary condition. When between death and the day of resurrection, we are temporarily separated from our bodies, but we will be reunited. Our body will be different. It’ll be a resurrection body. And as the apostle Paul says in First Corinthians 15, even as Christ is, we will be in our own resurrection bodies by the power of his resurrection, those who are in Christ, but this is why Christians have understood we should not do anything that implies we’re trying to be liberated from a body.

We also can’t do anything that acts as if the body is merely material substance. It’s not just material substance. And by the way, some Christians seeking to explain the Christian understanding of death and of eternal life speak wrongly about the body saying, for instance, perhaps speaking to a child that is no longer Joe or Mary or whomever, but that’s a huge problem because there’s only a limited sense in which that is true. We need to teach children. We need to remind ourselves that that psychosomatic unity is not something that is only what marks our earthly existence, but also our eternal existence by the power of Christ’s resurrection. So just looking at this issue, because so many people wrote about it, looking at it in a little greater detail than we can often take questions, Christians throughout the centuries have sought to understand how do we rightly treat the body?

How do we in our burial traditions point to our theological convictions? Now this is not to say that it is a sin to cremate a body. It’s not to say that what is non-Christian, but it is to say that there is tremendous wisdom in the fact that virtually every Christian church of every tradition, whether in the east or in the west, whether Roman Catholic, Eastern Orthodox or Protestant, virtually all of those theological traditions insisted upon some form of burial and opposed cremation until very recently. But I want to go back to something that Jerry wrote in his message and in his question, he pointed to the difference between going to a grave site and then just going to some kind of so-called special place where someone’s ashes have been spread. There is a huge difference here. And by the way, just think of the Old Testament, think of how many times the patriarchs of the children of Israel are described as sleeping with their fathers.

Just look at the burial traditions, not only the Old Testament, but in the New Testament, look at the care with which the body of Jesus was buried and look at the burial traditions of the early church and just consider what it does mean to be able to go into a cemetery or to a grave and know that a very real person who lived a very real life, and yes, lived a real death is in this grave awaiting a very real day of resurrection. And even as those patriarchs slept with their fathers, so also in a real sense, we should aspire one day to sleep with our own fathers and our own mothers in the faith until together we are raised immortal. Now I just want to be clear, there is no specific verse in scripture that says, thou shalt not cremate or thou shalt not aquamate, but that’s not the only way Christians learn to read Scripture.

We learn to read scripture in terms of the biblical theology, the principles, the embedded convictions. We look at the practices of God’s people. We look at the practices of God’s people that God commends. We look at the practices that God condemns. We look at how we model ourselves upon the respect for the body. We find in both the Old and the New Testament and we place that in the larger context of a biblical theology of what it means to be a human being created in the image of God. Now this makes the question of cremation, aquamation or whatever, a question of wisdom, but that doesn’t mean that there isn’t a very clear, consistent consensus throughout the history of the Christian church that Christians should respect.

But as I conclude, I want to go back to the message that was sent by Marcus, raising the issue about God raising immortal the martyrs that had been burned to death. And yes, Marcus, it makes me think in this way. It’s one thing for the enemies of Christianity to burn the body of a Christian, it’s another thing for the friends of Christianity to burn the body of a Christian. It is an issue of wisdom, but it’s an issue in which the Bible has a very great deal to say. And the Christian tradition has been incredibly clear. We need to respect that and learn from it.