Monday, September 19, 2022

Part I

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A University Acts to Defend its Convictions; Yeshiva University Shuts Down All Student Groups After SCOTUS Sends Case Back to Lower Courts in NYC

Today, of course, millions upon millions of people around the world will be watching the state funeral of Queen Elizabeth II of the United Kingdom. We’re going to be talking tomorrow about that funeral, about the state service and about the meaning of the rituals that human beings assigned to death. And in particular, what it means that there was a state funeral, and we’re going to look at the developments in the funeral itself.

There’ll be more for us to think about and talk about as we meet for The Briefing, tomorrow morning. But right now I want to turn to breaking headlines in the United States on the religious liberty front. The most important of these has to do with a Jewish university in the area of New York City. It is the venerable Yeshiva University. I talked about it twice last week because the headlines are coming just that fast.

As we went into the weekend, the big headline was a disappointment for Yeshiva University. By a 5-4 vote the Supreme Court in a rather emergency action, lifted a stay from just one justice. That was Justice Sotomayor that had given the university relief from a New York state court, which had violated the religious liberty and the Jewish convictions of Yeshiva University, by ordering that the university must officially recognize an LGBTQ student organization.

Now, one of the most frightening dimensions of this story is the fact that the state court judge there in New York, ruled that Yeshiva University, which is clearly a religious university. And I gave details last week about how unquestionable that fact is, since its original charter was as an educational institution, rather than as a religious institution. Let’s just say that’s a false dichotomy because of course, religious schools are both.

But the state court judge nonetheless rule that Yeshiva University is not a religious institution and thus religious liberty is not at stake. And thus it’s just like any other university, particularly any other private university, and it is put in the position now of being forced by a New York state judge to recognize an LGBTQ student group.

Now, before we go further here, let me just remind you what that recognition means. It means that the university would have to recognize this student group just like any other group of students on the historically Jewish campus. And just remind yourselves of the Jewish traditional, Old Testament, Torah teaching concerning human sexuality, gender, and homosexuality in particular.

To require Yeshiva University to formally recognize an LGBTQ student group as a student group, means that the university is funding it, recognizing it, and thus offering legitimacy to every single lifestyle that might come under the umbrella of that organization. We’re looking at a direct collision with the biblical law.

We’re looking at a direct collision with Jewish identity, historic Jewish conviction, and of course we’re looking at something that isn’t merely of interest to the religious liberties of the Jewish people, but to every single Christian as well, because if this can happen to Yeshiva University, it can happen to your Christian college or university. Or for that matter some other educational institution that some judge in your state, decides will nonetheless be stripped of religious liberty protections.

But we need to go back last week to that 5-4 decision because as we pointed out, there are two ways to look at that decision. And there were two conservatives or at least two justices appointed by Republican presidents who were in the five of the 5-4 decision.

Now, I lament the decision but nonetheless, the two justices that will be the Chief Justice John G. Roberts Jr. and Justice Brett Kavanaugh. They seemed to be saying that the issue was procedural, that Yeshiva University and its attorneys had gone to the Supreme Court before exhausting their opportunities for legal relief at the state level.

Now we’d have to concede there’s something to that. But on the other hand, releasing the stay, lifting the stay means that the justices or at least five of them were quite willing to have the religious liberties and religious convictions of a Jewish institution compromised at least for some time. That’s unconscionable, it’s unacceptable. And Justice Samuel Alito and his colleagues pointed that out very graphically. But nonetheless, that’s where the issue stood going into the weekend.

Yeshiva University was told, “Go back and make your appeals at the state court level there in New York and see what happens. If you failed to get relief there, then come back to us.” But Yeshiva University over the weekend made a rather astounding announcement. It did so on Sunday.

Yesterday, the university announced that it is simply for the present, ceasing to recognize any student group. Now, that’s a rather radical and to some degree, a rather clever response. The university saying, “Okay, if you are stating that we must recognize an LGBTQ student group, then we’re just not going to recognize any student groups.” And just consider what that means on a major university campus. No official student groups recognized. None.

In an email sent by administrators to the undergraduate students on the Yeshiva University campus. The university said that it will, “Hold off on all undergraduate club activities while it immediately takes steps to follow the roadmap provided by the US Supreme Court to protect YU’s,” that’s Yeshiva University’s, “religious freedom.”

So the administration basically told students, “The situation now is that we’re recognizing no student groups. There shall be meetings of no student clubs.” And this will be in effect until such time as the university gains the relief it needs from the violation of its religious freedom.

Now remember, go back to the 5-4 ruling by the Supreme Court. The Supreme Court seemed to indicate that its objection here was procedural, that the university had failed to exhaust all its potential remedies or appeals there in New York. And the university announced yesterday that it has applied for an expedited appeals process whereby the university, at least hopes to gain relief and thus a victory for religious freedom from a New York appellate court, or if that fails to go immediately back to the Supreme Court.

I think there’s good reason. I have to hope there is good reason for the university to believe that if the university does exhaust its options for appeal in New York, it will be successfully heard by the Supreme Court. But again, the ominous development here is that the Supreme Court, at least a majority of the court seemed to say, that they were okay with the religious liberty of Yeshiva University being violated if temporarily on procedural grounds. I think that’s a rather dangerous precedent to be set.

Nonetheless, we simply have to hope that Yeshiva University will gain this relief. And the principle in the defense of religious liberty will be clearly established. Frankly, at this point, this atrocious ruling by the state court judge there in New York needs to be decisively refuted by one superior court or another. And if it isn’t going to happen in New York and in one sense, many lawyers think that’s unlikely, that it needs to go back to the Supreme Court almost immediately, and the Supreme Court, we have to hope and pray, will make the defense of religious liberty in this case, emphatically clear.

But there is one final observation about this case, at least for now, who knows what headlines may come tomorrow or in subsequent days. The Supreme Court majority seemed to think that it was acceptable or at least tolerable that Yeshiva University’s religious liberty and its moral convictions might be compromised if only on a temporary basis.

But just think about that. This is not like a trespassing issue. This is not like a boundary dispute on real estate. This is a matter of moral conviction on one of the most basic moral issues faced by humanity through millennia. I think it’s a very ominous sign, that procedure in this case seemed to so dominate, that the Supreme Court’s willing for Yeshiva University to suffer an injury to its religious convictions, if only temporary in order to make a point.

Part II

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‘Extreme Religious Liberty’: Note the Language — Religious Liberty Is About to Be Sacrificed on the Altar of Personal Autonomy

But while we are on the issue of religious liberty, we have to face the fact that significant challenges are coming to us fast and furiously. Just a few days ago, I discussed the argument made in the Washington Post by the deputy legal director of the American Civil Liberties Union. That’s Louise Melling.

The headline in that piece was this, “When Did Religious Belief Become an Excuse to Discriminate?” And again, you see here the implication is clearly that when an anti-discrimination laws passed, religious institutions had just better get in line, so much for religious liberty.

But just over the weekend in Sunday’s edition of the New York Times, how’s this for a headline, “How Extreme Religious Liberty Undermines Public Health?” In this case, the author is Lindsay F. Wiley, director of the Health Law and Policy Program at the UCLA School of Law. We’ve seen some pretty atrocious arguments come from that center already.

But in this case, the headline on the opinion piece that ran in the review section of the New York Times yesterday, well, it’s a frankly ominous development just in terms of the pattern of words. “How Extreme Religious Liberty Undermines Public Health?” Now, let’s work backwards for a moment.

Remember that the category of public health is an ideologically loaded category. And let’s just remember the fact that public health is not the same thing as the study of medicine. Public health is informed by sociology. It is informed by in most cases, a very progressivist indeed in some cases, Neo-Marxist ideology. And it is based upon the idea that public health is a public good and is to be distributed in public terms.

Now, there’s more to it but during the COVID context, we certainly learned that public health might be a threat to both health and to the public. I’m not saying they don’t do any good. I am saying, it is ideologically laden and you see the ideology so clearly in this piece.

For one thing, look at the front part of this headline, “How Extreme Religious Liberty Undermines Public Health?” What exactly is extreme religious liberty? Is it extreme religious? Is it extreme liberty? You put it all together, extreme religious liberty? Well, I’m just going to offer a suggestion.

When you see a phrase like extreme religious liberty, it actually probably means good old religious liberty. What you’re looking at here is the fact that so many people on the left, so many progressives simply think that religious liberty is nice, insofar as you’re able to give some kind of tip of the hat or lip service to it. But if it gets in the way of their progressivist agenda, then religious liberty simply going to have to go.

If you insist that religious liberty is primary, then what you’re holding to is, now just wait for it, extreme religious liberty. This is like saying, “Do you believe in truth?” “No.” If you insist on the objective reality of truth, then you believe in extreme truth. In this case, public health does loom large in the background to the article and the collision between the goals of the public health movement, but this also includes abortion. Don’t make any mistake by missing that. This includes abortion and other contraceptive reproductive services.

The implication is, that religious liberty is getting in the way of the inevitable progressive advance on these issues. Now, in particular, Lindsay F. Wiley complains about recent court decisions and other political developments, in which the rights of say medical professionals, including pharmacists and medical doctors and other medical associated persons, they are nonetheless being recognized as having a religious liberty interest, which means that they are not then compelled to be involved in A, B, C, D, E, F, you name it.

When it comes to this agenda the point being made by this article is that if religious liberty interferes in this public health circle, then it’s extreme religious liberty and thus it’s dangerous. The key portion of this argument comes just a few paragraphs into the article when Wiley writes, “New checks on regulation by the judicial branch are threatening this delicate balance. As the legal historian, Kate Redburn has argued the libertarian wing of the conservative movement by limiting government power has ensured that private-public partnerships are the only viable path to secure essential goods and services.”

Now, I’ll stop there for a moment. This has to do with Obamacare, the Affordable Care Act and all the rest. And the fact that many in the United States and here, this is supposedly just the libertarian influenced right. But actually many Americans were against a government takeover or a socialization of the entire medical system or the healthcare system.

But nonetheless, she continues making her argument, “Now the religious wing of the movement is using those partnerships to prioritize the moral judgments of a small but powerful minority of Americans over the secular values endorsed by the majority.”

Wow. Now, in this case, this writer thinks she has just made a devastating case for her cause. But notice that what she has done is basically, inadvertently to underline why religious liberty is so important in the first place. And it really doesn’t matter in this sense, if it’s a majority or a minority whose religious convictions are at stake.

But in effect, indeed virtually explicitly, this writer is basically arguing. Look, conservative Christians are getting in the way of progressive moral advance. This is what’s happening. It’s conservative Christians, it’s other conservative religious people. It is a conservative religious minority that is influencing these public private partnerships and is now gaining advocacy and some relief in courts to such a degree that this religious liberty thing is getting in the way of our liberal progressive thing. And thus religious liberty is going to have to go.

Now, you’ll notice here that some arguments come down the pike like this. Look, we haven’t heard these kinds of religious liberty arguments before. It used to be that religious liberty was about other issues. And thus, if you’re hearing this applied to say, a pharmacist working in a pharmacy or a doctor or a nurse in a medical situation, or any number of other medical professionals in their context, then this is new and thus it’s extreme.

But we simply have to point out, that this is the conservative predicament. It’s always the conservative paradox. You can’t oppose something that doesn’t exist yet, which is to say, if you look through American history, you do not have medical doctors and other medical professionals arguing for their religious liberty, not to do what their imagination didn’t even allow them to imagine. But now we’re looking at very real threats.

The reason that conservatives and in this case, conservative Christians in particular, are making arguments against certain immoral acts. And for that matter immoral technologies, is because they now exist. You simply by logic, can’t expect that the arguments against them will be made before they exist.

Later in the article, the writer offers this, “The opt outs some judges believe are constitutionally required for anyone who asserts a religious reason for not abiding by a generally applicable rule or contributing to collective financing mechanisms are ever expanding.” The writer continues, “They’re also increasingly rooted in animus toward people who exercise their autonomy in ways the right deems immoral which,” she goes on to say, “one judge is ruling underscored.”

But think about that for just a moment. Just think about that. So now we are told that it is extreme religious liberty, if your exercise of your own religious liberty gets in the way of society’s acceptance, normalization and promotion of what some people declare to be the exercise of their personal autonomy.

And I bring this up because that brings us right back to the campus of Yeshiva University. I just want you to notice it’s the same argument in parallel form. In one case, the context is medical professionals and medical associations. In the other context, it’s an institution of higher education, but as we know, a religious institution of higher education.

This author ends the argument with this, “But even if Americans develop a better system,” I think that means healthcare system in this case, “the court rulings holding sway in the meantime will forever alter countless lives by privileging the moral judgments of the few over the essential needs of the many.”

Now, just watch that language because it’s language that fits the ideology of the public health movement. Basically what we define as public health, or a priority of public health, means that your religious liberty concerns are just going to have to take a backseat or maybe you’ll see even further back. And that becomes very clear when at one point toward the conclusion of this article, guess what comes up? Yeah, you guessed it. COVID-19.

Here’s the statement, “During the COVID-19 pandemic, the Supreme Court invalidated restrictions that failed to treat religious gatherings with special solicitude, adopting a far more expansive interpretation of what religious freedom requires than held sway in previous decades.” That’s not abundantly clear by the way, there wasn’t a precedent for what happened in COVID-19, but you’ll notice the author’s clear implication.

Look, why would a religious institution be treated differently than anybody else? Well, the first amendment to the United States constitution actually makes that point emphatically clear, but the author continues, “Some lower court judges have recently applied the same reasoning to vaccination requirements, ruling that if medical exemptions are allowed, then religious exemptions are constitutionally required.” The last sentence in this paragraph, “The Supreme Court, so far declined to intervene in those disputes, but opponents of routine school vaccination requirements are thrilled by where things seem to be headed.”

Now, all that is simply to say, look at the fact that COVID-19 is what’s cited here. And the sheer disappointment is expressed that you had courts that actually said that religious liberty in some cases is a higher concern and priority than what some persons would advance as the ideology and the expectations of what’s defined as public health.

Now, we would have to say is, Christians seeking to address this honestly, and fairly, there can be some complicated issues here. But this writer’s not really talking about, acknowledging that there are complicated issues here. It’s just a flat statement, that if religious liberty gets in the way of public health, then it’s extreme religious liberty. And about this kind of argument, well, I just want to alert you listeners. You need to be extremely concerned.

Part III

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Democrats in the Senate Announce Vote to Codify Same-Sex Marriage Likely to be Deferred Until After Midterm Elections — But Why? What is the Strategy Here?

But finally, for today’s edition of The Briefing, I want us to recognize that word came from the United States Senate, from the democratic leadership in the Senate, that it is likely that a vote on the codification of the Obergefell decision legalizing same-sex marriage would likely be deferred until after the November election.

Now, you’ll recall that this particular legislation is intended to offer a federal assurance of federal recognition and authorization for same-sex marriage. The trigger issue is that, what’s defined as a legal marriage in any of the 50 states has to be recognized by the federal government and by the 49 other states. That’s the legal logic here. But as I have said, this amounts to overturning millennia of human wisdom and rejecting creation order in recognizing a same-sex union as marriage, which Christians understand, it is not and can never be.

But the big political context here in the worldview collision was made very evident when the House of Representatives passed the same legislation in a different form, but the same point. And unexpectedly 47 Republicans voted for the Democratic legislation, codifying same-sex marriage.

That was a shock to everybody. It was a shock to conservatives in the United States, for sure. It was also a shock to the Democratic majority in the House and to the Democratic leadership in the Senate. So all of a sudden it appeared to some, in the Senate that they might actually get this legislation through.

Now, remember, that’ll take 60 votes to bring the issue to the floor. So since there are at this point 50 Democratic senators, that means that at least 10 Republicans would have to vote to into filibuster and then you’d just need a bare majority, which it also requires some Republicans in order to pass the legislation.

Tammy Baldwin, an openly gay senator from Wisconsin joined with Susan Collins, a Republican in order to sponsor the legislation and Senator Schumer, the Democratic majority leader who controls the agenda. The Senate announced that it would soon, perhaps as early as this week come up for a vote. But now the word comes that the vote will come after the November midterm elections.

Now, the big question is why are the Democrats in particular, the Democratic leadership, are they playing offense or defense on this? Well, in some sense, they probably think that both are winning plays for them. They think they’re going to get this legislation through. And they would like to have as many Republican votes as possible. And this must signal that at this point, they don’t have the 10.

They don’t have 10 on the line, or it’s almost a sure thing that they would move ahead because they would want to crow about passing this legislation to their electoral base, going into the midterm elections. So this probably tells us that at this point, they don’t have 10 votes.

Well, why would they think they might have 10 votes after the election, if not before? Well, the new Senate won’t be seated, even if they gain more Republican votes. But what might happen is that on the other side of the election, you would have Republicans who would know they’re not going to face voters for at least another two years if ever, and so they would simply vote in defiance of the party’s conservative base and legalize same-sex marriage along with the Democrats.

Either way, Christians need to understand this is a disaster when it comes to our civilizational responsibility to preserve and to respect marriage, which is after all a pre-political institution. It was created by God. It was not created by the United States Congress. It was not created by any human government. And we believe that no human government has the right or the power to redefine marriage as the central institution of human society and civilization.

Now, again, we understand the partisan issue here. There are a lot of Republicans who don’t want to continue bearing heat over this issue. They want to just move on. And there are a large number of American citizens, including some who probably routinely vote Republican, who just want this issue to go away. Stop talking about it.

But here’s where Christians have to understand. This is something we just can’t stop talking about. It’s something we just can’t get over. If we really believe that this is pre-political, that it’s a creation order institution. If we really believe that marriage is and can only be the union of a man and a woman. If we truly believe that marriage is the centerpiece of human civilization by God’s plan and that human flourishing and human goods can come only by obeying and submitting to that institution and divine command rather than defying it, then we have no option, but to stand firm and make very clear that our votes are prioritized for those who recognize this conviction.

It will be extremely disappointing, not absolutely shocking, but it will be particularly disappointing, if indeed we see a number of Republicans, who assured Republican voters, that they understood what marriage is, all of a sudden making very clear that they must never have believed this all along.

Because if they reverse themselves on this kind of vote and having assured voters, if they understand what marriage is, if they then turn around and defy those promises and defy those public assurances, then frankly we’re going to know exactly who they are and what they are about. And we need to recognize that the act of moral rebellion is bad enough, but an act of moral hypocrisy in this case just makes the matter even worse.

And beyond that, when you look at this moral challenge, it’s yet something else, it’s also moral cowardice. Simply lacking the courage to look at a culture and say, “Yeah, I really do know what marriage is and I cannot vote to undermine what I know to be right.” We are about to find out what an awful lot of our elected officials actually believe about these issues. We know what they’ve been saying to us. We’re about to find out what they really believe.