The Briefing

Documentation and Additional Reading

Part

The Supreme Court of the United States

303 Creative LLC v. Aubrey Elenis

Part

The Briefing

Tuesday, December 6, 2022

Tags: Audio

Transcript

It's Tuesday, December 6th, 2022.

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

Part

Can Government Compel Speech? Is Same-Sex Opposition to Be Equated to Racism?: SCOTUS Hears Oral Arguments for Major Religious Freedom Case

The case is known formally as 303 Creative versus Aubrey Elenis. It has to do with the intersection, indeed the collision between religious liberty and the LGBTQ revolutionaries and that case arrived yesterday at the Supreme Court of the United States in oral arguments.

Just about everyone recognizes this is going to be the big religious liberty case for this term of the Supreme Court and both sides are paying very keen attention to what went on in the oral arguments. Let me just remind you what the oral arguments are. The way the Supreme Court of the United States works is that the first question is whether the court will decide to take a case.

Now, there are some cases that basically in constitutional terms, almost immediately go to the Supreme Court. There are certain cases only the Supreme Court can settle. But in the main, the Supreme Court is an appeals court. It is the ultimate court of appeal and so very few cases start out at the Supreme Court. Instead they end up there.

But even as some are almost automatic in terms of reaching the Supreme Court, major doctrines, cases, and others involving the other two branches of government when it comes to many of the more complicated legal and cultural questions, the court has to decide at least four justices have to decide to take the case. So the first thing we need to recognize is that the fact that the court has taken a case tells us something. It tells us that a sufficient number of justices believe that this is likely to be a case of importance to the entire nation and a case that at least potentially may establish or for that matter reverse an established precedent.

So that's why the Supreme Court's decision to take a case to offer what is known as a grant of certiorari, that is the first step. But then come the long months in which parties to the case and also those who want to join in by making an argument can submit to the Supreme Court written briefs. That is the written form of an argument. But the Supreme Court's greatest drama, at least as seen by the public, comes when the court in session seated in public hears what are known as oral arguments.

Those oral arguments are when the justices hear Supreme Court qualified lawyers representing both sides in a case make the case. And what makes it particularly dramatic is that every single justice of the Supreme Court gets to ask whatever questions of whichever lawyer they choose to ask. It is high drama. It is often extremely revealing. And if you have not listened to one of these oral argument sessions, you should. Just go to the Supreme Court of the United States website and look up oral arguments. And when you do so, you will find the audio for yesterday's oral arguments in this case there for all to hear.

Now, if you do listen to that rather long audio of the oral arguments yesterday, you're going to see the unfolding of arguments and you're going to see real intellectual conflict and combat. That's what makes the Supreme Court such an arena of drama. In one sense, the drama of a constitutional system of government.

The key issue in this case is whether or not a Christian website designer in Colorado can be compelled or coerced by law to express what violates her deepest religious Christian convictions. And that would mean her conviction that marriage can mean and can only mean the union of a man and a woman. It can never mean anything else. And she argues that she should not be compelled by the State of Colorado through its anti-discrimination legislation regulations as well, she argues that she should not be compelled to make speech that the State of Colorado insists she must make when that speech violates her Christian beliefs.

Kristen Waggoner, who's both president and chief counsel of Alliance Defending Freedom was making the primary case for the website designer before the Supreme Court and she made very clear that the key issue here is what is known as the compelled speech doctrine. Now, what is that? It is the constitutional doctrine that says that the state, the government cannot compel speech against conviction.

Now, there's a very long constitutional and judicial history to this. It comes down to the fact that the First Amendment to the United States Constitution in its assurance of a constitutional right of free speech, it goes both ways. Not only may the state not prevent you as an American citizen from exercising the freedom of speech, it also means that the state cannot compel you to make speech, to make a statement, to affirm something that violates your own conscience and your own convictions. The state cannot prevent you from speaking and it cannot compel you to speak in a way that the state might wish to authorize rightful speech.

Justice Robert Jackson of the Supreme Court in a famous 1943 decision, put it this way, "If there is any fixed star in our constitutional constellation, it is that no official high or petty can prescribe what shall be Orthodox in politics, nationalism, religion or other matters of opinion or forced citizens to confess by word or act their faith therein." That is often considered the classical statement of the compelled speech doctrine. And thus we had attorney Kristen Waggoner beginning her defense of her case by saying Lorie Smith, that is the principle behind 303 Creative, "Lorie Smith blends art with technology to create custom messages using words and graphics. She serves all people deciding what to create based on the message, not who requests it."

But Colorado said the attorney declares her speech a public accommodation and insists that she create and speak messages that violate her conscience. She went on to say, "This court rejects such government compelled speech." So there you had attorney Kristen Waggoner explicitly articulating the compelled speech doctrine and saying that is the issue here.

She continued by saying, "If the government may not force motorists to display a motto, school children to say a pledge or parades to include banners," by the way, all those established Supreme Court precedents "Colorado may not force Ms. Smith to create and speak messages on pain of investigation, fine and reeducation."

So at that point the oral arguments were off to the races. The attorney for 303 Creative defending religious liberty actually began by making the case of the compelled speech doctrine and making very clear this is a free speech issue. The government of the State of Colorado is ordering Lorie Smith and 303 Creative to express certain convictions about marriage. That would mean putting together a website to celebrate a same-sex marriage. And that is something that Lorie Smith cannot do and remain consistent with her own Christian principles. It requires her to make an expression to offer speech that is not hers but is rather the speech of the government of the State of Colorado.

But everyone understands that religious liberties in the foreground of this issue because the issue here at stake has to do with whether or not Lorie Smith can be coerced, compelled to make statements that violate her Christian conscience. And just understand this, if Lorie Smith and Colorado can be compelled to do this, you can be compelled to do this. Your college student on the campus can be compelled to do this. You can be compelled to do this in the marketplace. You can be compelled to do this in public.

Later attorneys for the State of Colorado had the opportunity to make their case. They're defending their law therein the state of Colorado. Eric Olson, who is solicitor general, that means the attorney who represents the state in court. The same thing is true for the Solicitor General of the United States. Eric Olson was addressed with a question, no surprise here by Justice Samuel Alito. Justice Alito said this, "In light of what Justice Kennedy wrote in Obergefell about honorable people who object to same-sex marriage, do you think it's fair to equate opposition to same-sex marriage with opposition to interracial marriage?"

The solicitor general, the State of Colorado rather amazingly spoke with candor. He said to Justice Alito, "Yes, because in how the law applies, not in the discussion with folks because of a course, honorable people have different views on this issue. But I think when you look at what Justice Kennedy said there, the way to honor that requirement is as this court is set forth in Fulton, in masterpiece of having a rigorous interrogation to make sure that there are neutral and generally applicable laws applied in fact that way that don't single out religion."

So here you have the solicitor general of the State of Colorado making two amazing and quite distressing statements. First of all, he is asked by Justice Alito, "Do you equate on behalf of the State of Colorado, do you equate moral opposition to same-sex marriage, to opposition to interracial marriage? In other words, is opposition to the LGBTQ revolution the same as racism based upon skin color?" The solicitor general answered, "Yes." The first statement was when he said yes. The second statement of concern is where he ended his first response to Justice Alito by saying that the key issue is whether or not religion has been singled out as a category of concern.

By the way, the constitution of the United States of America singles out religious conviction as a matter of concern, but nonetheless, in the context of Eric Olson's response to Justice Alito, he meant, "No, we can trample upon religious conscience so long as we're not merely targeting religious conscience.

Now, the reality is that the argument made by Eric Olson is not likely to be received by a majority of the Supreme Court received well. It is unlikely that the state of Colorado is going to prevail in this case, but that is only because we have six conservative justices on the Supreme Court. Does this mean it will be a six-three decision? No, you can't count on that because the six are not identical.

In this view, the most conservative justices on the court are Justices Clarence Thomas and Samuel Alito and you might add to that now, we also think Justice Amy Coney Barrett, but as you look at the other three, they sometimes swing on some of these issues. But still Justice Brett Kavanaugh tends to vote with those other three in this kind of case, and especially given the implications of this text, there is good reason to believe that Justice Neil Gorsuch will vote with them as well.

As for the Chief Justice John G. Roberts, Jr? Well, we will see. But there has to be at least five who will hold together as conservative justices understanding that what is at stake here is nothing less than religious liberty and the compelled speech doctrine. If we do not have five justices who hold together on this, then we are in very big trouble. And that just reminds us that we are in a situation in which given the composition of the United States government, given the Democratic control over the White House, and at least as we speak right now, both houses of Congress, at least through this laying duck session, you understand that the Supreme Court is the only firewall.

And remember when you look at that six three came in just the last Republican administration by the nomination of President Donald Trump. So this is a very close thing. It might not look so if you listen to the oral arguments because there are six rather conservative justices sitting on the Supreme Court, but understand the implications and also understand the point made by the state of Colorado here.

And it's likely that the state of Colorado's argument is going to be affirmed by the three Democratically appointed justices. No great surprise there. But here's where we need to understand that there's even more at stake here because this isn't just about Colorado, it's about the entire United States of America. And after all we're talking about the Supreme Court of the United States, but it's also an indicator of the way the culture is going. I don't think there is any informed Christian citizen who actually believes the culture is going our way on these issues.

That makes the law so very important and it makes the Constitution so very important. We need to understand that there are two issues that come very much to mind here. And the first is the fact that in our constitutional system, the Supreme Court does have this responsibility and that Supreme Court is defined constitutionally by justices who must uphold the Constitution.

The arguments made before the court where constitutional arguments. Conservatives must understand that the Constitution is not where meaning begins and ends, but it is in the United States where litigation and political discourse begin. We'll have to watch where they end.

Part

Moral Libertarianism Goes West? Colorado’s Moral Landscape and the 303 Creative Case at the Supreme Court

One more thought about this, we are talking about the State of Colorado. Now as you're looking at red-blue America, for a long time Colorado was something like a blue state that it was maybe a little bit more like a red state. In other words, it was a purple state. It could swing both ways. In recent years, the State of Colorado, certainly in statewide elections has been more blue than red. But that leads to another understanding here, because Colorado isn't just like New York. It's not just like California. No two states are just like each other. But the fact is those two coastal states, so say New York and California, they're extremely socially liberal in many issues, but they also are fiscally liberal, rather traditionally liberal, big government liberal.

Colorado is at least a bit of a different story. Colorado is not a big government state. Colorado is in the west and the western United States, the land of cowboys, and mountains, and open planes, and open space. It is decidedly more libertarian than much of the United States. It is not a state that favors an overly aggressive and expansive government.

That might be true for liberal enclaves such as Boulder, the home of the University of Colorado and increasingly Denver. But the fact is Colorado is still a western state, but here's where Christians need to understand something else. There is another worldview pattern in play here and that is moral libertarianism. As you move into some regions of this country. And you could look at states like Arizona, Nevada, and also Colorado just as examples, sometimes New Mexico. You are looking at states in the west, big space, little government at least in theory, but far less interest in the state in defining moral issues closely.

So as you look at the United States, there are some people, there are some communities and there are some states that are more libertarian than others. As we would say, they are raising up the issue of personal autonomy over against any form of moral regulation, and they are doing so in a way that defines a certain libertarian instinct.

The State of Colorado is one of those states, and that means that it's an anomaly when compared to a state like New York, New Jersey, or for that matter, Illinois or California. It is morally liberal increasingly so, but more fiscally conservative. And that is something that also marks its current elected leadership. And you have an openly gay man who is married to another man, Jared Polis as the governor of Colorado.

But as you think about the moral revolution that is reshaped to the United States, just consider this, a matter of a generation ago, it would have been inconceivable that you would have an openly LGBTQ individual as a governor of a state, even like Colorado, and it would've been even more inconceivable that that man could have been declared to have been married to another man. But that's where we are. As in any other major issue of constitutional importance, it is likely that the decision on this case will come down announced at the end of the Supreme Court's term next June.

Part

If You Want to Understand an Individual, Look at His Theology: Reverend Raphael Warnock and the Senate Run-Off in Georgia Today

But next, today is election day in the State of Georgia, a runoff election for a very important seat in the United States Senate. Let me just remind you that former football star, Herschel Walker, the Republican nominee is up against the incumbent Democratic senator and that will be Rafael Warnock, the Reverend Doctor Rafael Warnock. And in the election that took place last month, neither candidate got 50% of the vote given the runoff requirement in the State of Georgia. That election is to be held today.

The polling indicates that Rafael Warnock might be ahead in this race, but the importance of the race comes down to this. Just in terms of how the United States Senate works. Right now, there are 50 Democratic senators, or at least 50 senators who will caucus as Democrats in the United States Senate. Thus, the Democrats with the Vice President of the United States, the Democratic Vice President Kamala Harris is the 51st vote, they have a majority.

But if they have an absolute majority in the Senate without the need for counting the Vice President of the United States, if they have 51 seats rather than 50, that changes the committee structure in the Senate in a way that will be very injurious to the Republican minority. Thus, even as many people think this is not a major election because after all, the Democrats have technically a majority in the Senate, I want to assure you this is a very important election and that will be particularly urgent.

When we come down to issues of great concern to Christians and especially to Christian conservatives. Issues like the sanctity of human life, issues like the very kind of legislation we discussed in our first segment today. All of this will be at stake. And what takes place in those Senate committees is extremely important. There's been an incredible amount of media attention directed at Herschel Walker, the Republican nominee.

I want to direct a bit of attention and in particular theological attention to the Reverend Dr. Raphael Warnock. He is not only a United States Senator and that of course in the special election for his seat that took place in 2020. Just two years later, he's back needing to be elected to a regular full term of six years in the United States Senate. But who are we talking about here? The Reverend Dr. Raphael Warnock is pastor of the Ebenezer Baptist Church in Atlanta. That's the historic church in Atlanta. So associated with the Civil Rights Movement and the pastorates of two generations of the King family, most famously Martin Luther King, Jr.

And even as Rafael Warnock has tried to present himself as a moderate on many issues in the midst of this runoff election and the entirety of the Senate campaign this year, the reality is he's anything but a moderate, especially when it comes to issues that are driven by theological concerns and hear a bit of biography might be helpful.

After graduating from Morehouse College, Rafael Warnock went for his theological education to Union Theological Seminary in the city of New York. Union Theological Seminary is the castle. It is the bastion of theological liberalism in the United States. The choice of going to Union Theological Seminary was a very revealing choice. He was associating with that school and seeking to learn from its teachers. He also was involved in ministry there, most importantly at Abyssinian Baptist Church, another very famous church that one in New York City that was associated with the Civil rights movement.

And there with the long pastorate of Adam Clayton Powell, a pastor who by the way was also elected to the United States Congress. Predictably Union Theological Seminary has been on the left on just about every major issue of moral controversy in the United States in recent years. And it has been, of course, an institution allied with the LGBTQ revolution and also very, very much identified with the political left.

But theologically, and this is what's most important, even as in the beginning of the 20th century, Union Theological Seminary was associated with German higher biblical criticism and theological liberalism. By the end of the 20th century, it was primarily associated with social activism and liberation theology, primarily driven by its then most famous professor, James Cone. When he was at Union Theological Seminary, Rafael Warnock came under the influence of James Cone and in his messages preached at Ebenezer Baptist Church, and in his political speeches, you can hear the refrains of a liberation theology behind what he says.

Now, we as Christians understand that everything rightly understood comes back to theology, our worldview, because we are made in the image of God and God made the entire cosmos, our worldview is going to have to deal with ultimate and theological issues. Understanding an individual's basic theological perspective, well that's fundamental to understanding who they are and where they are likely to end up on any given issue.

Christians learning to think theologically, learn to draw a line from this theological system or perspective to this understanding of how the human being is to be defined, how marriage is to be understood, how morality is to be worked out. All of this is based upon theological presuppositions. So if you want to understand an individual like Rafael Warnock understand what is the theology driving him? Liberation theology, again, professor James Cone, Union Theological Seminary, one of the most famous American liberation theologians, replaces the traditional understanding of atonement from sin as sinners are in need of salvation individually from their sin and accomplished forest through the atonement of the Lord Jesus Christ.

Liberation theologians shifted the context of the entire biblical narrative to a dynamic between oppression and liberation, and argued that salvation, the entire kingdom of God, the entire purpose of God in the world is translated into social justice and into social action. Politics is just one very necessary, very liberal dimension of that social action.

Now, there's a lot at stake thus and that special runoff election in Georgia today, but you just have to wonder with some kind of amazement, how many voters in the State of Georgia actually understand the theology is at stake and liberation theology is very much a part of this equation.

Nevertheless, it is.

Part

How to Spot a Dictator: They Never Laugh at Themselves — The Winnie the Pooh Ban in China Is Yet Another Example of That Reality

I'm going to end on something very, very different and this has to do with repression in China, but it also has to do with Winnie the Pooh, so hang with me a moment. Winnie the Pooh is basically unwelcome in China, and that is because the current leader of China, President Xi Jinping has been protested against and depicted as Winnie the Pooh. Why? Because in profile and in the way he walks, at least some people think he looks like Winnie the Pooh.

Now, in the United States, I don't think there is a single elected official who would complain about being compared to Winnie the Pooh. Number one because, well, it just wouldn't work politically. Americans understand that if you are intending to be a leader, you had better be able to laugh at yourself. And yet that's exactly what is revealed here in terms of autocracy and dictatorship.

Dictators cannot laugh about themselves. They stay in office by terror and intimidation, not by a winsome relationship with citizens. So ever since Winnie the Pooh became basically forbidden in China, nonetheless, predictably, Winnie the Pooh has shown up again and again precisely because if you tell someone not to do something, well, a certain rebellious streak means somebody is going to try to do it. And on the internet, someone will actually get it done.

But The Guardian says this has become something of an international issue. Justin McCurry reporting for The Guardian tells us, "Years after he became character non-grata in China, Winnie the Pooh is exacting quiet revenge against the country's government in the form of Disney souvenirs. In what appears to be a case of incidental resistance, Disney stores in Japan are selling a line of merchandise featuring a frowning, Winnie the Pooh looking at a blank sheet of white paper, a symbol of ongoing protests in China against censorship and COVID-19 restrictions.

In the age of computer animation and the use of these kinds of images, well, editorial statements are made. Shinzo Abe, the former Japanese prime minister was featured standing with Xi Jinping. Xi Jinping is Winnie the Pooh and Shinzo Abe as Eeyore, the rather gloomy donkey. An American president was depicted with Xi in similar terms. Xi Jinping, again, Winnie the Pooh, Barack Obama, Tigger.

Now, the difference here is that Barack Obama wouldn't dare protest being compared to Tigger. But in China, well, Winnie the Pooh has been canceled. Now, I'm not about to offer political advice to the Chinese communist regime, but I'll offer political advice to you.

Don't cancel Winnie the Pooh because in the end, Winnie the Pooh is going to win. Oh, bother.

Thanks for listening to The Briefing.

For more information, go to my website at albertmohler.com. You can follow me on Twitter by going to twitter.com/albertmohler. For information on The Southern Baptist Theological Seminary, go to sbts.edu. For information on Boyce College, just go to boycecollege.com.

I'll meet you again tomorrow for The Briefing.

R. Albert Mohler, Jr.

R. Albert Mohler, Jr.

I am always glad to hear from readers. Write me using the contact form. Follow regular updates on Twitter at @albertmohler.

Subscribe via email for daily Briefings and more (unsubscribe at any time).

Topics

Abortion Adultery Anglicanism Animals Art & Culture Ask Anything Atheism Bible Birth Control Books Childhood Church & Ministry Church History College & University Coronavirus Court Decisions Death Divorce Economy & Work Education Embryos & Stem Cells Environment Ethics Euthanasia Evangelicalism Evolutionism Family Film Gambling Heaven and Hell History Homosexuality Islam Jesus & the Gospel Law & Justice Leadership Manhood Marriage Mormonism Obituaries Parental Rights Pluralism Politics Population Control Pornography Preaching Publishing Race Religious Freedom Roman Catholicism SBC Science Secularism Sex Education Sexual Revolution Singleness Social Media & Internet Spirituality Sports Technology The Apostles' Creed The Gathering Storm The Mailbox The Prayer That Turns the World Upside Down Theology Tragedy Trends United States Womanhood