The Briefing, Albert Mohler

Wednesday, March 30, 2022

Part I

An Important Affirmation of Religious Liberty: SCOTUS Rules Condemned Criminals on Death Row Have Right to Clergy in Final Moments

The intersection of all kinds of really important issues come together in a decision handed down at the end of last week by the Supreme Court of the United States. Now, if you heard about this decision, it has likely been summarized as the Supreme Court deciding that a condemned prisoner cannot be denied the presence of a pastor at the time of the prison’s execution. But there’s a lot more to the story. It is a big victory for religious liberty and one that all of us should basically understand and appreciate. Let’s just consider what’s at stake here. For one thing, there is the issue of the death penalty, of capital punishment. We discussed that many times, we’ll have to come back to it again.

There has been a weakening of resolve in this country about the death penalty over the past several decades and the basic loss of the initial moral horizon about the death penalty in terms of its rationale as given by God in Genesis 9, it is to affirm the image of God and thus the infinite value of every single human life. If you take a human life by an evil action, then you forfeit your own right to live. But as we’re thinking about this, recognize the death penalty itself was not in question before the Supreme Court in this case. Rather, it goes back to the state of Texas telling a condemned prisoner that he could not have a pastor with him and touching him in order, in the language of the prisoner, to pray over him at the time of his execution.

That prisoner appealed and the appeal went all the way to the Supreme Court and the Supreme Court ruled overwhelmingly. It was an 8-1 decision headed down at the end of last week. It’s a big victory for religious liberty, but there’s actually more here that is implicated in this story than just religious liberty, as if you could say that. As I said, it was an 8-1 decision on a nine-seat court. That one dissent came from Justice Clarence Thomas and he argued that the appeal made by this condemned prisoner was insincere and that this prisoner had a trail of insincere appeals. Well, here’s where Christians understand that even when you have an insincere plaintiff in the case, the principle is what is most important. And the principle in this case is religious liberty.

But here’s where Christians also have to recognize that in the history of Western civilization, there’s a long history to this question, the history to the very exercise of capital punishment and also an understanding of how, at the time of execution, a prisoner is to be simultaneously respected as a human being, even as brought to the moment of ultimate justice. To put the matter simply and straightforwardly, over the Western tradition, there has emerged a decorum that is to be observed, and in just about every Western nation, that decorum has included the fact that clergy, meaning minister, religious representative of one form or another, should be present at this time. It is an understanding, indeed, an underscoring of the moral importance of the criminal sanction itself.

The majority opinion in this case was written by the chief justice of the United States, John G. Roberts, Jr., another indication of the importance of this decision, which has received too little attention. And the chief justice said that the condemned prisoner has a right to the presence of clergy. It’s not without restriction. The member of the clergy, the minister, the rabbi, whatever, cannot get in the way of the state’s process when it comes to the protocol for execution, but denying a condemned prisoner the presence of clergy at that particular moment, the high court said overwhelmingly, that is simply not acceptable. In the majority opinion, the chief justice wrote, “Ramirez,” that’s the prisoner, “seeks to have his pastor lay hands on him and pray over him during the execution.”

The chief justice said, “Both are traditional forms of religious exercise.” The chief justice went on to say that there is “a rich history of clerical prayer at the time of a prisoner’s execution, dating well back before the founding of our nation.” It’s also important to recognize that I’m using the word clergy here in its legal context, and that refers to the fact that this is not a religious liberty right understood to belong to Christian citizens, but rather to all citizens. And that means that a condemned prisoner may ask for and receive this kind of clerical ministry from whoever is designated. That’s why religious liberty experts are looking to this particular decision handed down last week as a significant gain for religious liberty, not just for the religious liberty of Christians.

Justice Brett Kavanaugh, in a concurring opinion, that means an opinion that agrees with the majority opinion wrote, “To avoid persistent future litigation and the accompanying delays, it may behoove states to try to accommodate an inmate’s timely and reasonable requests about a religious advisor’s presence and activities in the execution room if the states can do so without meaningfully sacrificing their compelling interests in safety, security, and solemnity.” With reference to the families of murder victims, the justice went on to write, “Doing so, not only would help states avoid future litigation delays, but also would serve the exceptionally powerful interests of victims’ families and finally obtaining closure.”

It is important to note that the condemned murderer in this case carried out a horrific crime. It’s also important to recognize that the murder victim’s family was not opposed to the presence of a pastor at the time of this inmate’s execution. In this case, it’s important for us to recognize that the decorum of this horrifying event, which is nonetheless necessary because of the demands of justice and very much explained by a biblical worldview, the solemnity, the weight, the gravity of it means that there should be no way to deny that there is an eternity that is at stake here. And the Western tradition of allowing priest, preacher, pastor, rabbi, imam, to be present at such an event underscores the fact that there are ultimate issues that are at stake here.

But there’s another aspect to this before we move on. The decision was based not only on the Constitution and not only on the history of constitutional law, but on one particular piece of legislation that was adopted several years ago that has a very unwieldy title that might not indicate that it has anything to do with this at all. It is known by the acronym RLUIPA. That law goes back to 2000 and it was sought by advocates for religious liberty, a very important legislative gain. That federal law is known officially as the Religious Land Use and Institutionalized Persons Act. Now, just think about it for a moment. It tells you something about how legislation often comes together. Those appear to be two issues that are not joined together, the use of property and the rights of institutionalized persons.

But the issue here that joined them together was religious liberty. And the legislation that joined them together meant that a significant coalition had joined in order to pass this legislation. It’s the second part of that act from 2000 that is very important here, that second part has to do with the rights of imprisoned persons. All this points to the fact that even as religious liberty, the free exercise of religion is guaranteed in the Constitution. The reality is that Congress, from time to time, has to come back and codify, stipulate exactly what that means. And a decision like this, we need to recognize, is not in the history of constitutional law based mainly on the rights of an individual, but rather upon the rights that should be respected by the community. And religious liberty rights are at the very top of that list.

Part II

‘The Billionaire Tax’: It Might Start with the Few, but It Will Not Be Long to Until It Reaches the Many

But next, we’re going to turn to an issue that is, to use the old adage, inevitable, I’m talking about taxes. And in this case, I’m talking about a specific tax proposal that has been made by President Biden in the course of the president presenting his $5.8 trillion budget proposal for the next fiscal year. Now, just let that number settle in for a moment, $5.8 trillion. Now, recognize the United States government does not expect to have $5.8 trillion of revenue. That means it’s going to be borrowing money again. In terms of the social agenda of the left, and this is something of a retreat, President Biden in this budget proposal, not only does not call for defunding the police or defunding the military, he actually given present concerns, and political inevitability is bowed to the fact that he’s going to have to ask for more defense spending.

Just think of Russia’s invasion of Ukraine, the challenges given to NATO and to the United States. And also, look at the fact that the American people are not about to support any cutback in funds for policing. In fact, given increasing rates of crime, they want the police to have more. And that’s exactly what President Biden, to a limited degree, is proposing here. I’m not going to go line by line to the budget, not to any extent, I’d simply want to point to the fact that this begins the budgetary conversation. The president will have a very hard time getting this budget through his own party in the House or in the Senate. And then, you just bring in the Republicans and you understand that there will be a lot of debate, there will be a lot of discussion.

There will be a lot of backdoor deals before the budget is actually finally adopted by Congress and signed by the president. But as you know, for a family, for an individual, for a church, for a country, the reality is that the budget indicates a major moral statement. You find out what you really believe when you find out how you propose to spend your money. But this new budget proposal comes with something that is really interesting and worthy of our discussion, and that is what the president calls a billionaire’s tax. Now, let me just give you a word of warning. Whenever you have a new tax, it’s always going to be called something that is going to try to increase public support. Because after all, there are very few billionaires. And thus, the president has named this increased tax a billionaire’s tax, a tax against billionaires.

It’s actually when it comes to families whose wealth is estimated at $100 million or higher, but the idea here is, “We will tax just a few, a very few wealthy people, we’re going to increase their taxes in order to help pay the bills.” The insinuation here, if not the outright claim, is that we can get what we need by raising the taxes from just a few in order to avoid having to raise the taxes on the rest, which means you. Richard Rubin and Andrew Duehren, writing for The Wall Street Journal, say that the proposal from the Biden administration would affect fewer than 20,000 households, “and it would apply only to those who don’t pay at least 20% in tax on a combination of income as typically defined and their unrealized gains on unsold assets such as stocks and closely held businesses.”

That took a lot of words that tells you about the problem. Some political strategists supporting the president’s move say that there are two important reasons why this just might happen. First of all, you have the fact that it is presented as a tax on wealth. And at least, according to Peter Coy, writing an opinion piece for The New York Times, a tax on wealth out-polls in popularity a tax on income with the American people. Well, hold that idea for just a moment. The second issue again is that this would actually tax a relative few rather than the many. And therefore, the many will say, “Let’s just tax the few more in order that we will not have to pay higher taxes.” But here’s where we need to recognize, that deal is never honest.

You have the tendency of government to say, “Here’s a new tax. It will apply only to a very few.” But watch closely. It doesn’t take long until it applies to many. Once the government finds out, it can create a new revenue stream by taxation. It is never going to be satisfied to limit that taxation basis to a few. It is going to be the many and it’s going to be the many in a hurry. The idea of taxing wealth is not a new idea. But just understand what’s at stake here. Because you can easily imagine that the American people would say, “Yeah, when it comes to Bill Gates, when it comes to Jeff Bezos, when it comes to any number of people, even the megamillionaire right down the street, let’s make it difficult for that person to pass on wealth to the next generation while evading taxes. That sounds like a good idea. Let’s close that loophole. Let’s stop the stepped up basis when it comes to inheritance.”

But you have to understand that the average person who benefits by that tax strategy is not a decimillionaire, but is rather someone right down the street. Or to put it even more bluntly, someone living in your house. To put it more specifically, probably you. Now, the government is proposing this with a minimal threshold of $100 million. But recognize that the government won’t stay there. Also recognize that when it comes to family businesses, it’s simply possible to get to something that on paper could be $100 million dollars in a hurry even as you don’t have anything like $100 million in assets.

But the big issue here is to understand that when the government sees a new revenue stream, it is never going to be satisfied to keep the percentage where it is or to keep the population as limited as is promised. It’s a $100 million threshold today, just imagine what it will be next year, 10 years from now. Think about your own inheritance or what you want to leave to your own children. Think about the middle class and the fact that the vast wealth is actually there, and if the government wants to raise the kind of revenue the hungry government wants, it is not going to be able to stay only in the basis of taxing the super wealthy with this pattern, it’s going to have to turn to the rest of us.

But CBS News and others are also pointing out that the government, in order to find out or at least to determine who’s worth a $100 million or more, is going to have to adopt its own means of valuation, including the valuation of assets that aren’t yet sold. So, you actually don’t know what they’re worth until they sell, but the government is going to tax you on that basis anyway. In other words, what is at stake here is not just realized gains, that’s what you actually have in your account when you say sell a piece of property that’s more valuable when you sell it than when you bought it, you realize the gains when you sell the property. You paid a $100,000 for it, you sell it for $175,000, that is $75,000 of realized gains.

But this tax doesn’t stop there. It goes on to base the calculation on an estimate of unrealized gain. So, you own $100,000 piece of property but someone says it’s worth $175,000, and so the claim is going to be that even though you don’t have the money and you’re still living in the house, the assumption is that you just gain $75,000 and that the government, at least over a period of time, even before you sell the property, can come and say, “We’re going to tax that as income.” Now, President Biden would respond to the comment I just made by saying, “Oh, come on.” By the way, that’s one of his expressions, “come on.” “It’s not fair to talk about middle class Americans in this. I’m only going after the extremely wealthy.”

Now, notice the propaganda technique, by the way, of saying billionaires when actually the basis is a 10th of that, but nonetheless, let’s just let the verbiage go for a moment, the reality is, once again, that it’s the logic of the tax that is the problem. Because this tax and its logic will not stay assigned to Jeff Bezos and Bill Gates, it will be coming for you. You can absolutely count on it and American history will demonstrate that conclusively. Now, there’s another major problem with this and that problem is otherwise known as the Constitution of the United States. The government’s current constitutional basis for income taxation comes in the form of the 16th Amendment.

That amendment reads, “The Congress shall have the power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several states, and without regard to any census or enumeration.” Which is to say the federal government can’t charge taxes by percentage to a greater or lesser degree depending upon where you live. It also means it’s not based upon the population of your state. But the big thing here is the definition of the basis of taxation as income, not wealth, but income. And the big side of hand and the really dangerous issue in this tax proposal is that it is going to define unrealized gains, again, unrealized gains as a form of income. That is an action that is, I believe, patently unconstitutional.

It’s not income. You don’t have any money in your bank account. But furthermore, it’s very injurious to the logic of our society and at least the origination of our tax policy, which is to respect the fact that we want to encourage families to save. We want to encourage families and taxpayers to invest. We want to encourage a growing economy. It’s hard to imagine anything that once applied to a large basis of our population, it will be more economically damaging than a tax on money that hasn’t yet been made.

Part III

Seismic Moral Change Hidden in a Legal Filing: Citigroup Reveals That It Will Cover Travel Benefits to Employees to Receive an Abortion

But next, sometimes, a major moral change and one to which we definitely better give attention is hidden in the language in a government filing, in this case with the Securities and Exchange Commission, otherwise known as the SEC.

Major corporations whose stock is traded in the stock markets have to issue reports to the Securities and Exchange Commission. They have to give information about their business model. And one particular company known as Citi or Citigroup, in its filing with the Securities and Exchange Commission, on page 20 of a document that is 152 pages long says, “In response to changes in reproductive healthcare laws in certain states in the U.S., beginning in 2022, we provide travel benefits to facilitate access to adequate resources.” What does that mean? It means that Citibank is now redefining its benefits package for employees so that it will pay for employees in states that restrict abortion to travel to states that do not.

Now, there’s a lot to note here. Number one, Citibank did not announce that change to its benefits policy. No doubt it did not want to attract undo attention, indeed negative attention. But it had to release this fact in its filing with the Securities and Exchange Commission and now we know it. USA Today points to this action by Citibank offering, again, to cover travel benefits of its employees seeking abortions in other states. Citibank is presenting this as just a way of doing business and retaining employees including women employees. USA Today, in its news coverage of this on the front page of the money section, is pointing to the Citibank policy and suggesting that other major companies should follow suit.

The article cites Jen Stark, identified as an executive at the Tara Health Foundation, “a philanthropic organization aimed in improving health outcomes for women.” Again, read abortion rights into that description. USA Today tells us, “If companies with the presence in states that restrict abortion access don’t offer financial assistance to workers seeking one, they’ll likely have a hard time attracting and retaining women.” That again is attributed to Jen Stark. She went on to say, “The ire of lawmakers is something that companies need to mind.” Well, indeed, they should. The article also cites Shelley Alpern, director at what is known as Rhia Ventures, identified as “a private equity firm that focuses on reproductive health.” Alpern is calling for other companies to follow the example of Citibank.

The article concludes with a statement by Alpern that the movement by Citibank “could really herald a sea change.” She went on to say, “I certainly expect that their top competitors and industry peers will try to match that policy.” Again, notice how a revolution in morality happens, how a shift, a significant, indeed seismic shift in morality occurs. It occurs when you have major corporations begin to align themselves and to reference one another in decisions that have a major moral importance and a moral impact. And we know in this case exactly what is at stake, what is at stake is the lives of unborn children.

Part IV

San Francisco’s Virtue Signaling Backfires as It Is Runs Out of States With Which It Can Conduct Business

But finally, for today, the Washington Examiners run a couple of articles about the fact that San Francisco’s city government boycott of 28 states is now creating a lot of problems.

Well, here’s the surprise for San Francisco. Because it turns out that if you try to operate as any form of entity with a budget, trying to purchase the kinds of things that the city government has to purchase and you establish that you’re not going to do business with 28 of the 50 states, you just might have a problem. And San Francisco’s virtue signaling, its moral posturing from a progressivist liberal direction, now means that San Francisco’s government is between a rock in a hard place so to speak. It has established its moral principles saying that it will not do business with jurisdictions, in this case, with states that restrict abortion, that have any kind of laws restricting sexual orientation and gender, or states that according to San Francisco have restrictive voting laws.

So, that means probably most of the states. But you look at this again. Yes, that’s not even an exaggeration. 28 states is a majority out of 50. And San Francisco finds itself in a problem, and one of the leaders of San Francisco who actually brought the policy in the first place, he’s one of those who is reconsidering the situation. His name is Scott Wiener, he’s now a California State Senator. At the time, he was a supervisor on the city government there in San Francisco. But given the current situation, Wiener said, “I’ll be honest. Over time, I have come to have mixed views on the approach.” It’s also led, of course, to some unintended consequences, such as the fact that one democratic majority state accidentally found itself on the naughty list.

That would be the state of Nevada. And it found itself on that list because it expanded the maximum precinct size in the state of Nevada from 3,000 to 5,000 residents. And thus, in moral outrage, the city of San Francisco says, “We won’t do business with Nevada.” But here’s the problem. Nevada is, well, just look at the map, right next door. It turns out that you just might need a plumber from Nevada because your toilet is backed up. But if you’re the city of San Francisco, good luck with that. There’s also a bit of government hypocrisy. And again, hypocrisy is an equal opportunity employer. It happens on the left and on the right. We need to learn from it and understand it every time we see it.

But here you see hypocrisy on the left because in order to get around the very policies that San Francisco has put in place, they have to do business with third party vendors who actually do the dirty business of say, buying this stuff in Atlanta and trucking it to San Francisco. But and here’s a hint, that is not only dishonest in terms of the business you’re actually doing, but it also adds costs. And those costs are now being added to the taxes paid by the citizens of San Francisco. And you have probably figured out already that the citizens of San Francisco are already not facing low levels of taxation. It is morally significant that in this case, as in some other cases, San Francisco is a moral outlier, even among liberal majority cities. No other city is joined in anything like the frenzy that we see in San Francisco.

Conn Carroll writing another report that appeared in the Washington Examiner on this issue pointed out that the state of California has adopted travel restrictions when it comes to any number of issues undertaken by other states. And again, there are a lot of states that are getting on California’s naughty list when it comes to official state travel. Carroll concludes, “As California falls further and further left, only more states will be added. Eventually, Californians may only be able to visit themselves.”

Thanks for listening to The Briefing.

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I’ll meet you again tomorrow for The Briefing.

The Briefing

Wednesday, March 30, 2022

It’s Wednesday, March 30, 2022.

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

R. Albert Mohler, Jr.

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