The Briefing 10-09-17

Part I

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A clash of orthodoxies: Trump administration's reversal of contraception mandate sets off firestorm

Big developments over the weekend on two of the most crucial and long-standing fronts at the intersection of religious liberty and public policy. In the most important of these developments the Trump Administration announced that it was reversing what has been known as the contraception mandate. That is the most controversial legacy of the Affordable Care Act otherwise known as ObamaCare. In that legislation adopted without a single Republican vote in either the House or the Senate provision was made for the mandatory inclusion of contraception and birth-control in the employer plans that were qualified under the law, which not only meant that there was to be no restriction on these contraceptives as they were termed, but there was to be no required co-pay on the part of female employees.

Now there were immediate religious liberty concerns, understandably so. We’re looking at inevitable collision between religious conviction and this public policy. And furthermore, the policy as it was announced by the then Secretary of Health and Human Services, Kathleen Sebelius, seemed almost calculated to offend religious sensibilities and convictions. There was a clear necessity for an exemption for those employers who did have deep religious and moral convictions. And there was a challenge to the law, a challenge that was successful when it came to limited family owned and family led businesses, the lead plaintiff in that case was a Hobby Lobby Corporation. That case was decided in favor of Hobby Lobby and in defense of religious liberty by the United States Supreme Court, but that’s still left the nonprofit sector extremely vulnerable. And this meant that you had Christian ministries, organizations, colleges and universities who were not granted an adequate exemption.

And this led to another famous Supreme Court case. This one had been named for the Catholic religious order known as the Little Sisters of the Poor. But when that case was heard before the Supreme Court, there was one seat absent that was before Justice Neil Gorsuch had taken his place on the court. And at that time, the court did not render a decision, but instead sent the case back instructing the Obama Administration to come up with some way to grant an exemption that would be genuine and would not require the direct violation of religious liberty. That did not happen before Pres. Obama’s term ended, and thus the question is what the Trump Administration would do with the policy. And President Trump when he was running for office had given indications that he would reverse that policy and instead in a very clear way respect religious liberty. And there were suggestions coming in recent weeks that the administration was poised to announce just such a policy. I have seldom seen the mainstream media so intentionally miss a story. In headline by headline, lead by lead, story by story, it was presented as if the Trump Administration had reversed the contraception mandate in and of itself. That is profoundly not the case. That was never the case. That was never the question.

The Trump Administration has left in place what Congress authorized, and that is the fact that the ObamaCare legislation for the vast majority of employers includes as it did in the past that contraception mandate. But the administration granted through its authorization, through the Department of Health and Human Services and the Justice Department a clear allowance and exemption for employers who are operating out of long-standing theological, religious or moral concerns. The editorial board of the New York Times, and granted this is an editorial, stated,

“Under the guise of protecting religious freedom and moral sensibilities, the Trump administration is making it harder for women to get access to birth control.”

Well if you look at that opening sentence you would think that this covers all women, or many women or most women in the United States who are employees of companies who are operating with these qualified plans. Actually nothing even close is the case. The editors went on to say,

“Under new rules, the Departments of Health and Human Services, Treasury and Labor will make it easier for employers to deny contraception coverage if they have a ‘religious or moral objection’ to doing so. Further,” said the editorial board, “the departments have made it harder for women who are denied birth control coverage to get no-cost contraception directly from insurance companies, under a process established by the previous administration.”

Well not stated in this is the fact that most women are going to be affected by this policy at all, and when it comes to the policy that was stated here cited to the Obama Administration, that was a policy that effectively requires employers who had religious objections to fund the contraception anyway just through the qualified insurance plan. The editors also wrote,

“The new Trump rules go much further than the Hobby Lobby ruling by effectively allowing any business, university or other organization to opt out, without having to notify the government that it is doing so.”

Well that sounds ridiculous until you understand that the notification that had been required by the Obama Administration was actually a way of triggering the alternative coverage. Meaning that the Christian organization would still bears moral responsibility for the contraception coverage. It was basically what you might call a bait and switch game and was recognized as such. And that’s what led to the successful court challenge by Hobby Lobby, and that is what has led to the reversal of the policy for nonprofits when it comes to the Trump Administration.

The editors of the Boston Globe issued a similar alarm and lament after the announcement in recent days, and the editors went on to say this underlines why the states and particularly here very liberal states should in their view enact the same coverage in terms of the state Medicaid provision. In a news article published also in the New York Times, this time by reporter Robert Pear, the final paragraph reads,

“The new exemptions will be available to colleges and universities that provide health insurance to students as well as employees. A number of religiously affiliated schools have filed lawsuits challenging the mandate.”

Well let’s disect that for just a moment. Is that beginning sentence in that final paragraph true or false? Well on its face, it’s not true. The statement was that the new exemptions will be available to colleges and universities that provide health care insurance to students as well as employees. Is that true or false? Well it’s false in this sense – it is only an exemption that is available for colleges and universities that are clearly committed to and driven by specific religious and theological moral concerns that are problematic when it comes to the mandate for contraception, including especially abortifacients, those contraceptives that may cause an early term abortions. So when you look at that you recognize that it is meant to scare the reader into believing that this is some kind of blanket exemption that is now available to all colleges and universities. The final sentence simply says,

“A number of religiously affiliated schools have filed lawsuits challenging the mandate.”

Indeed, that’s the point. But reverse and understand what the situation was before this announcement just days ago. The situation was this, Christian colleges and universities that have believed it to be immoral to be involved in abortifacients in any form were told that they must do so under the mandate and law enforcement of federal government, even if that required the violation of their own biblical convictions. Furthermore, the very awkward situation, the untenable situation after the Hobby Lobby decision, is that it left privately held corporations as protected in this exemption, but left completely vulnerable Christian institutions, including the lead plaintiff on the nonprofit side, the Little Sisters of the Poor. One of the things we see so evident in this controversy is the fact that birth control, birth control without restriction, birth-control whatever its form, birth control without any cost is a virtually religious issue, a central doctrine of the modern secular elite. So this is not really the case of Christian orthodoxy on one side and some kind of secular neutrality on the other side. It’s the Orthodox Christian tradition that has been based in Scripture and thousands of years of Christian argument over against a new secular orthodoxy, a very aggressive orthodoxy that holds birth control as one of its central and nonnegotiable doctrines.

One of the interesting questions in the aftermath of the Trump Administration’s announcement on this policy is what will happen to the Supreme Court case that had been named for the Little Sisters of the Poor that challenge on behalf of religious nonprofits? The answer to that question is that the case is now not likely to proceed. But that does not mean that the issue is not going to arrive at the Supreme Court. Within hours, indeed virtually within minutes of the administration’s announcement, at least two different Attorneys General, had announced from the state level that they were going to be filing charges, and yes you got it, federal lawsuits against the Trump Administration. So one way or another, this issue will arrive at the U.S. Supreme Court. You can virtually count on that.

Part II

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Two different conceptions of how to read a law on display in AG Session’s Title VII guidance

Next the other development at this intersection of religious liberty and public policy was the announcement also made at the end of last week. As Charlie Savage reported for the New York Times,

“Attorney General Jeff Sessions on Thursday ordered the Justice Department to take the position in court cases that transgender people are not protected by a civil rights law that bans workplace discrimination based on sex. The move was the Trump administration’s latest contraction of the Obama-era approach to civil rights enforcement.”

Here’s what’s really interesting. Look at the very next paragraph,

“The dispute centers on how to interpret employment protections based on ‘sex’,” the word sex is put in quotation marks, “in Title VII of the Civil Rights Act of 1964. In December 2014,” we are told, “the attorney general at the time, Eric H. Holder Jr., ordered the Justice Department to view ‘sex,’” again in quotation marks, “as encompassing gender identity, extending protections to transgender people.”

Now when that announcement was made I pointed out as did many others that whatever the merits of the policy announced by the Obama Administration it couldn’t possibly have had anything to do with the intentions of the United States Congress in 1964. And furthermore, even the Obama Administration, even those who were pressing for the inclusion of transgender and other gender issues in terms of the Civil Rights Act of 1964, they basically admitted that it was not tenable to argue that Congress had any such inclusion in mind or for that matter even would’ve understood the word transgender in 1964. A spokesman for the current Attorney General Jeff Sessions in this case Devin O’Malley said on Thursday,

“The Department of Justice cannot expand the law beyond what Congress has provided.”

He went on to say,

“Unfortunately, the last administration abandoned that fundamental principle, which necessitated today’s action.”

Back in 2014, the then Attorney General Eric Holder had stated that the,

“‘most straightforward reading” of the civil rights law also guards transgender workers from discrimination.”

At first glance what we have here are two rival administrations representing two different worldviews in two different political parties arguing over just a matter of public policy. But it’s much larger than that, it’s the question of how one interprets the law and how an Administration any administration is bound or not bound by clear congressional intent. And in this case you had the spokesperson for the current Attorney General Jeff Sessions, the spokesman’s Devin O’Malley, who said on Thursday,

“The Department of Justice cannot expand the law beyond what Congress has provided,”

He went on to say that that’s exactly what the previous administration had done making necessary the Trump Administration’s reversal of the policy. But the back in 2014, then Attorney General Eric Holder had actually claimed that including transgender persons is the,

“most straightforward reading” of the 1964 law.

Back at that time I pointed out that such a claim had not only no plausibility, but it was lacking in intellectual honesty because even Attorney General Hholder made no claim that the 1964 act as envisioned by Congress had anything to do with the question of transgender issues and transgender persons and transgender rights whatsoever. As I pointed out earlier the word wasn’t even known at the time. It was simply not amongst the considerations of Congress in adopting the law. And here’s where we have to understand that if our federal government is not bound by the law and by what any honest person would accept was the consideration of Congress at the time then we have a government that is out of control. It is simply a government by administrative action. That’s a very dangerous government.

The crucial issue for us to understand now is this: if Congress does want to include transgendered persons and transgender rights within the Civil Rights Act of 1964, it can do so by amending that legislation or adopting new legislation. That would at least have the virtue of legislative integrity. That would at least mean that the United States Congress is acting and not just some administration taking an act of Congress from over a generation ago and trying to conform it to its own ideological and worldview agenda. The fact is that there is very little likelihood the United States Congress will take this issue up. It’s amongst the many issues of controversy in our society that have basically been dodged by Congress for again well over a generation.

But that leaves us in the very unhealthy situation of such issues being addressed either by the federal bureaucracy or by the federal courts, neither of which in our constitutional system are primarily invested with such authority. These two issues taken together represent two of the most controversial fronts in terms of our current moral and political landscape, but they’re also very predictable now. If you follow these issues closely you could almost predict the exact language to be used by one side and the other in response to any kind of announcement like this from any administration. That’s a revelation that even as far as the sexual revolution has progressed and even as successful as the moral revolutionaries have been there is still a reticence on the part of the United States Congress to pass those revolutionary tenets into law to transform them into legislation. That requires yet another step, and it’s very interesting to see that at least at this point that is a step not yet taken.

Part III

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Why rival charges of hypocrisy are sometimes both right

Finally, anyone picking up yesterday’s print edition of the New York Times would’ve been treated to a very rare event. In one of the inside opinion pages the central op-ed page, there are two articles with screaming headlines charging hypocrisy, one from the left one from the right, each accusing the other side of hypocrisy when it comes to sexual morality. On the left side, Jennifer Weiner, she’s identified as the author most recently of her memoir “Hungry Heart”. She’s a contributing opinion writer to the New York Times. And on the conservative side, Ross Douthat, one of the best-known commentary writers for the newspaper. The headline on Jennifer Weiner’s piece,

“The Right’s Two-Faced Politicians.”

The headline on the Douthat piece,

“The Pigs of Liberalism.”

What’s going on here? Well Jennifer Weiner is talking about a story we discussed thoroughly last week on The Briefing. That was the humiliating resignation of Pennsylvania Congressman Tim Murphy who was well known in Congress as a staunch defender of the unborn until as it turned out evidence in court indicated that he had texted the woman with whom he was having an affair suggesting that if she were pregnant she should herself have an abortion. In the turmoil and humiliation that followed that revelation of hypocrisy, the Congressman was forced not only to say that he would not run for reelection in 2018, but that he would now before the end of the month retire from Congress.

On the other side, Ross Douthat that is talking about Harvey Weinstein of Miramax, and in a major development just as we went into the weekend, Weinstein one of the most famous men and most powerful figures in Hollywood had to take a leave of absence and then yesterday was announced had been fired from his company for what is now revealed to have been decades of the abuse of women sexually. Harvey Weinstein is clearly a man of the left, a major funder of Democratic candidate and liberal causes. Ross Douthat entitled his piece “The Pigs of Liberalism” because he says liberals in this case talk a very good game when it comes to feminism, but they take money from people they knew and had known for decades were involved in this kind of behavior.

To its credit, the New York Times lead an investigation into Harvey Weinstein that led to these revelations. Douthat wrote,

“Weinstein’s response to this paper’s impressive investigatory work was to issue a statement promising to spend even more lavishly on liberal causes.”

So when caught in this situation, another glaring situation of hypocrisy, Harvey Weinstein said he would make atonement. How? By apologizing to women? By changing his behavior? No, by giving even more money to liberal causes as if that should cause liberals to say well then never mind on all the sexual misbehavior. In terms of the Christian worldview what’s most important to understand here is the fact that in a fallen in a sinful world there is no shortage of hypocrisy. Both of these articles make very good points, and both of them reveal genuine hypocrisy. One of the insights you gain from reading these two articles together, however, is that you understand why those who operate from a consistently biblical understanding will affirm that morality isn’t just something that’s relative but actually objective. When it comes to those who hold to a moral relativism, hypocrisy is actually more a form of embarrassment. For those who hold to a more revealed morality from Scripture, it’s absolutely humiliating.