Tuesday, June 28, 2022

Part I

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A Win for Coach Kennedy, and for Religious Liberty: The Supreme Court Again Defends Free Exercise of Religion and Free Speech

The Supreme Court handed down yet another very important decision on Monday, this one on religious liberty. Let’s just remind ourselves the Supreme Court term every year comes to a conclusion at the beginning of the summer, that means at the end of June. And so every June, as the month comes to an end, we have something like an avalanche of important decisions handed down by the nation’s highest court. But in my experience, there has been no June like June of 2022. Most importantly, we had the Dobbs decision reversing Roe v. Wade that was handed down just last Friday. Now we’re looking at another case. In this case, the official designation of the case is Kennedy versus Bremerton School District. As I said, this is a big win for religious liberty. The second big win for religious liberty before the nation’s highest court in just a matter of the last several days, as the cases have been announced as decided.

In this case, we’re looking at a high school football coach serving on a coaching staff in one of the public high schools in the Bremerton School District in the state of Washington. And the state of Washington, let’s just remind ourselves, part of the Pacific Northwest, is at least a part of the most secular area in the United States, or at least one that competes with the American Northeast in terms of secularization, low religious identification, and participation. The difference by the way between the American Northeast and the American Northwest is that the American Northeast, heavily influenced by religious colonists, was at one point extremely high in terms of religious identity and activity. The Pacific Northwest, basically never so. Certainly there were evangelical movements and other strong theological movements there in the Northwest, but it never reflected the same kind of cultural impact as you saw in the American Northeast.

This takes us to the west coast. We’re looking at the Bremerton School District in Washington. And we’re looking at that big win I described from the Supreme Court yesterday because in another 6-3 decision, the majority of the Supreme Court ruled that the school district had violated the constitutional rights of religious liberty in terms of free exercise and also free speech in telling this high school football coach that he could not pray in public.

Now, the background on this is a very interesting historical narrative. We have a public high school football coach on the coaching team in this big public high school system. And he had decided that he would pray at the conclusion of each game. At the conclusion of the game, he began to pray in a place where he could be seen, and others asked if they could join him. Some of those asking, some of those joining included some of the boys from the team. And so you had high school football students as well as others from the school, and that could include everything from parents to passers by who joined in the prayer after the game.

Somehow, and you can imagine this, complaints went to the school board that this was wrongful activity on the part of this Christian football coach. You had the school district respond eventually by telling the coach that he had to make a choice between continuing as a coach or praying in public. The school district actually went so far as to suggest that as something of a settlement or a compromise, as an alternative the coach could pray in what amounted to an empty room in an empty school when no one knew he was praying, as if praying by the way is a shameful activity. Just consider the other things the public schools are platforming.

Nonetheless, this eventually led to a federal court challenge. And it went all the way to the Supreme Court. The Supreme Court by a 6-3 majority upheld the right of this coach to pray in terms of his own private individual activity. The Court made very clear that the school district had violated the free exercise of religion and the free speech rights of this coach.

Now, what was not involved in this case? Well, what wasn’t involved in this case is a decision about how Christians should pray. Now, by the way, one of the first things Christians understand is that there must be no embarrassment in prayer. There are those who immediately responded to the decision by citing the words of Jesus about praying in private. But even as Jesus warned his disciples that we should primarily pray in private, and unlike the Pharisees, we should not pray to be seen praying, in this context, there was absolutely nothing wrong with a coach simply deciding to pray and others joining with him. Most importantly, there was no violation of the Constitution.

Now, in the case from Maine, we discussed just a matter of days ago in which the court said that the one thing Maine couldn’t do was offer financial support to parents of high school students to send them to private schools except to Christian schools saying that any other accredited school would basically be acceptable. The only prohibition would be to a religious school. The Supreme Court said that was a violation of the U.S. Constitution’s Free Exercise Clause. You have a very similar pattern here. In this case, the justice writing for the majority was Justice Neil Gorsuch, and in his majority opinion, he made very clear that the school district’s only real argument, and by the way the school district actually fired the coach, was that if the coach went on praying like this, it would violate the establishment clause of the U.S. Constitution.

In other words, their argument is this. This is a man who’s on a coaching staff. He is an employee, indeed a staff member, even a coach, coaches have all kinds of influence especially on the young people they coach, and thus acting as an agent of the school. If under any circumstance related to a team activity, this coach should pray and even if there was no compulsion whatsoever, or even an active invitation for others to pray with him, students would feel under compulsion. They would be confused and think that this was an official government endorsed prayer and they might feel or make the inference that if they were not involved, they might fall out of favor with the coach. Although there was no evidence ever presented that that had anything to do with the situation.

Part II

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‘The Constitution Neither Mandates Nor Tolerates That Kind of Discrimination’: The "Lemon Test" is Gone, and That’s a Good Thing

Now there’s a story behind that. And that story takes us to two big things that will be good for us to think about on The Briefing today. Number one, I talked about the secularization of the Pacific Northwest, and for that matter, the American Northeast now vying with one another for the lowest religious identification and say church attendance. But the larger picture here is the secularization of the entire culture. And as a part of that secularization, prayer, especially public prayer, has become more awkward.

Now, one of the things we need to note is that most of the arguments against public prayer made on constitutional grounds, I’m not discussing theological grounds, but made on constitutional grounds, they are largely refuted by the actual practice either of those who framed the constitution or of those who led the nation thereafter. Just look at the statements made by presidents of the United States. And we’re talking not just about say those in the 18th century, not just the founding fathers in the early 19th century. We’re talking about at least the 20th century, considering the kind of word spoken by presidents like Franklin Delano Roosevelt or Dwight David Eisenhower. But then you could fast forward and talk about George W. Bush after the 9/11 attacks.

So basically, we understand that the constitutional argument has to be something that was invented in a more secular age to try to force the society into a more secular position. And thus you go back to the year 1971, the bigger issue I said is the secularization of the culture. That was an historical process, still going on. The second historical event was a 1971 decision by the Supreme Court known as the Lemon case. In that case, the court handed down two principles, two principles that said must pertain, if the court were to allow certain religious activities done in public to be considered constitutional. Those two requirements were that the law must have a secular purpose. The law or the restriction has to have a secular purpose. And furthermore, the law would have to have a secular effect. Well, you look at that and you recognize that itself becomes an engine for secularization because it gets most situations both coming and going. You’ve got to somehow prove that you’re secular in your intention. How exactly would you prove that?

Then you also have to prove that you are secular in the effect of the action. The Lemon test by the way was applied over and over again by the court in looking at cases or frankly in deciding whether it would take or not take cases under its consideration in the general realm of religious liberty. But even as Justice Gorsuch noted and as others noted very candidly in the oral arguments for this very case, the high court actually abandoned the Lemon test a long time ago. And that’s a good thing by the way. Christian should recognize that as a very good thing. For one thing, if you put that test together, secular intent and secular effect, that would cut out a great deal of the history of the United States of America. It would make virtually impossible just to give an illustration. Most will just say this, presidents of the United States asking Americans to pray even as the nation would face parallel.

Now that’s not an exact parallel, but that’s pretty much what’s been going on. And secularists are basically showing their allergy. There’s no other word for it. An absolutely allergic reaction to anyone who appears in the slightest sense religious in any context that might have anything to do with the government. Now remember, the First amendment to the US constitution has two different clauses. The Establishment Clause saying that the government may not establish religion and the Free Exercise Clause saying that citizens have a right to the free exercise of religion. Now, clearly the framers did not think they were contradictory, but the point is, that in a more secular age on the court, back in the 1950s, ’60s and ’70s, even into the ’80s, the court leaned into anti-establishment principles so much so that it basically went back to president Thomas Jefferson, who by the way, didn’t put this into the constitution. It’s not in the constitution. But in a letter, he spoke of a wall of separation between church and state. And the high court sought not only to define and defend that wall, but to build it higher.

But the constitution doesn’t recognize, much less demand any wall of separation between church and state, because after all, even the government is made up of human beings. And those human beings are also, at least many of them, if not most of them, religious in some sense. It was an artificial designation that has caused much damage and much havoc throughout American history because there have been those who have simply said as a matter of some kind of reflex, “Oh, the government can’t allow that because that would mean a government establishment of religion.” But understand how ludicrous that has become, saying that a high school football coach can’t pray where he might be visibly seen after a game because someone might actually think that that means a government-imposed religious activity or government-defined or created religious speech. It was nonsense. Yet it was the nonsense that rained before the Supreme Court for far too long, which is why we should recognize that at least a central part of the importance of yesterday’s decision is that Coach Kennedy was not only vindicated, but the Lemon test was effectively gutted. Finally.

Going back to the Lemon test, the test of a practice is whether it had a secular intention. In other words, it did not have the intention to advance or inhibit religion, and then a secular effect. There was no excessive entanglement with religion on the part of the government. Well, we should be very glad that test is gone, because number one, it is just not in keeping with the spirit of the actual constitution. But secondly, it is so subjective, it perpetually put the courts in the position of trying to decide in individual cases, is this excessive or not? Is this an entanglement that’s allowable or not? Too little? Too much?Just right? Was there a secular intention? How exactly would you know that? How exactly do you know behind every practice or every law what exactly was the intention? Whether or not there is some kind of intention to advance or inhibit religion, well, you can see why this was inherently subjective. And it was also often contradictory.

On one particular day in two different cases, both having to do with monuments upon which had been inscribed the 10 Commandments, Justice Stephen Breyer writing for the majority back then found one monument constitutional and the other not. Now, he tried to explain why, but the bottom line is evidently you needed Justice Breyer on constant 24 hour phone access to find out if your proposed monument would be constitutional or not. That was ludicrous.

In the majority opinion by the way, Justice Gorsuch noted that the school district allowed school personnel, including coaches, to be involved in all kinds of private conversation or all kinds of talk after a football game. But the one thing Coach Kennedy was told he couldn’t do was pray. And clearly singling out prayer just like Maine was singling out religious schools, that is just not constitutional.

Another aspect of this particular decision in the larger conversation about it that I appreciate is that once again the conservative justices said what was the actual practice of governments at the time of the states or the national government going back to the founding era, because one principle that ought to be applied is that something should not be declared by a modern court unconstitutional if those who actually framed the constitution didn’t see it then as unconstitutional. Perhaps another glaring example of this, it goes back to Stephen Breyer again. Justice Breyer now retiring this term, he has said that he believes that capital punishment, the death penalty in the United States should be seen as unconstitutional. However, it clearly, clearly was not seen as unconstitutional when the constitutional was written, debated, ratified, and went into effect in the 1780s.

In the majority opinion handed down by Justice Gorsuch, we read this, “Respect for religious expressions is indispensable to life in a free and diverse republic whether those expressions take place in a sanctuary or on a field and whether they manifest through the spoken word or a bound head. Here,” wrote Justice Gorsuch, “for the majority, a government entity sought to punish an individual for engaging in a brief, quiet, personal religious observance doubly protected by the Free Exercise and Free Speech clauses of the First Amendment. And,” said Justice Gorsuch, “and thus the court, the only meaningful justification the government offered for its reprisal rested on a mistaken view that it had a duty to ferret out and suppress religious observances even as it allows comparable secular speech.” Concluding with a statement that needs to be trumpeted loudly, the Court ruled, “The Constitution neither mandates nor tolerates that kind of discrimination.”

Coach Kennedy was represented for the past six years by the First Liberty Institute. And Jeremy Dys of that Institute made very clear in an article published yesterday that this is another big win for religious liberty, but it is also an example for believing Christians to observe as one man refused merely to take no for an answer. And in this case, Coach Kennedy got a no from the school system, but he got a very big reputation of that no from the Supreme Court of the United States yesterday.

Kelly Shackelford, the president and CEO of First Liberty Institute, summarized the situation, the victory this way. “After seven long years, Coach Kennedy can finally return to the place he belongs, coaching football and quietly praying by himself after the game.”

Part III

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Habeas Corpus and ‘Happy the Elephant’: Why Happy Did Not Get Her Day in Court — And What Was at Stake

Now I told you in advance that this particular time of the year has a great deal to do with the Supreme Court, but now I’m going to shift gears entirely. We’ll come back to Supreme Court issues in coming days, but right now I want to shift to the Bronx Zoo and to an elephant, and to an elephant that goes by the very happy name of Happy. The big question that has confronted some thinkers concerning Happy is whether Happy really is happy.

There were those, identified as animal rights activists, who went to court to try to argue that Happy should have standing before the court in order to claim that the Bronx Zoo was oppressing the elephant by the circumstances of the elephant’s confinement. Now here’s what’s most important. It is to recognize that the highest court in New York state did, in recent days, rule that regardless of whether or not Happy is happy. And regardless of the moral importance of that question, the fact is that Happy is an elephant, and an elephant is not a human being and thus Happy had no standing as a human being before that court and had no right of what is known in the Latin, and you know this term, as habeas corpus. No right to demand a day in court as if Happy were a human person.

Now the big worldview issue behind this is that we often talk about the Christian worldview resting on certain necessary distinctions. The first necessary distinction is found in the very first words of scripture. It is the distinction between the creator and the creation. Mess that up and you’re carving up a statue, you’re naming it as an idol and you’re worshiping it. And of course you don’t just have to have an idol. There are those who worship mother earth or anything like that. The important thing to recognize is that the biblical distinction from the beginning, literally, in the beginning God created the heavens and the earth, is the distinction between the creator and the creation.

There is a second crucial distinction that appears as early as Genesis 1. And that is the distinction between human beings and the rest of creation. And that includes all other creatures. Yes, human beings are creatures, but not just creatures. Human beings are the only creature made in God’s image. That sets human beings apart. To human beings, in Genesis 1, is given the responsibility of dominion, stewardship, responsibility over the rest of creation. Elephants are not designated by the creator to be responsible for human beings. Human beings are responsible in so far as we have the power of exercising stewardship and dominion over the elephants just to take one example. That’s the reason why we own dogs, dogs don’t own us. Dogs seem to know that. When it comes to cats, I’m not sure cats have that principle very clearly in mind.

The principle of habeas corpus says that human beings, before courts, that recognize that principle are to be seen as having a liberty right to be free of unlawful confinement. That’s a very important statement. The court made that formally. That is to say a government can’t throw you in prison without due cause, due process without an official arrest indictment being found guilty, in most cases, by a jury, of your peers, sentenced by a lawful court. The government can’t simply take you off the street and confine you. And that is one of the principles, one of the rights that is encapsulated under the principle of habeas corpus.

But when it comes to this principle, the highest court in New York, the New York Court of Appeals ruled that habeas corpus “is intended to protect the liberty right of human beings to be free of unlawful confinement.” And it went on to say that, “Happy, though a very important and glorious creature and Happy’s own right is not a human being.” And thus cannot be presented in court as a human being claiming a right that is given to human beings alone in the U.S. Constitution.

Now another big worldview issue behind this is understanding that the confusion over these issues is not accidental. It is deliberate. In a more secular age, those distinctions break down in an aging which it’s frankly embarrassing for the cultural elites to acknowledge they believe in any creator or whatsoever. The distinction between the creator and the creature just disappears in a Darwinist age.

But the distinction between the human creature and other creatures, it also gets really fuzzy without a biblical worldview. It gets fuzzy on both ends and at every point in between. At the beginning of life, at the end of life. Whether or not we’re talking about animate or inanimate objects, there are people who are suggesting that say a mountain range or an amoeba ought to have the right to show up as a person in court and present some case or claim about rights. This court in New York, a rather secular and very liberal state, saw that as a bridge too far. It simply could not take up the cause of Happy the elephant as if Happy were a human being who can appear in court. Not being a human being, no right of habeas corpus, no right to bring this cause, or for others to bring this cause on Happy’s effect.

The second thing we need to understand is that as important as that distinction is, as vital and essential, it’s also important for us to recognize that Christians do have a concern for the cause of creatures, including very importantly, creatures with the sophistication, the intelligence, and the social life that we now know to belong to elephants.

Writing for the Washington Post, Vicki Constantine Croke reminds us of this just with these words about elephants, “They use tools. They love. They grieve. They display a sense of humor, compassion, and courage, and they will cooperate even working together to lift a sick or injured loved one. They communicate over long distances with infrasonic calls we can’t hear.” Well, there’s more to this story. The important thing to recognize is that we are, as Christians, against the abuse or misuse of any of God’s creatures made for his glory. We have a responsibility, yes, to use creatures for the end for which they were created, but never to abuse them. Never to treat them as mere material, objects, because after all they are creatures God made for his glory and yes, for our good, for our use, for our pleasure, but also for our stewardship.

There are huge issues when it comes to confining animals, taking care of animals, the human stewardship and dominion when it comes to animals, but I think it’s fair to say that Christians understand it’s not irrelevant for Christians to be concerned if Happy the elephant is happy, well cared for and all the rest. There’s no accusation that the Bronx Zoo has abused this animal. There is the accusation that being in a solitary situation, it is just extremely harmful for a social animal. And yes, I think any fair minded person recognizes that elephants are indeed social animals.

I don’t know exactly what’s right when it comes to Happy the elephant or the Bronx Zoo. I know it’s right that new York’s highest court found very clear that as glorious, as wonderful as Happy is, happy is not a human being. That’s a distinction we’re going to have to fight for increasingly, if not constantly, in days, months, and years ahead. It’s a very important distinction about which Christians have to be very, very clear. But it’s also important that Christians speak up for the creation that God has made in the proper way, not in the secular way of the materialist worldview, but yes, in a way that respects God has made these creatures for his glory, and in some sense, we do share a society with them. That’s the reason why your dog is waiting for you to get home and why you pet his head as soon as you walk in the door. If you confuse that dog for a human being, well, shame on you. But if you misuse that dog, we’ll shame on you too.

The situation of Happy the elephant reminds us that there are some hard situations Christians and others are going to have to think through with goodwill, but also by constantly keeping in mind the distinction between human beings and other creatures. If we lose that distinction, we don’t raise other creatures to the human level. We lower humans to the animal level. I’ll let that be the final word.