Wednesday, Dec. 6, 2017

Part I

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Will Justice Anthony Kennedy in 2018 agree with Justice Anthony Kennedy in 2015?

We knew that yesterday’s oral arguments before the Supreme Court in the big case on religious liberty were likely to be interesting, and it turned out that was certainly the case. The case is formally known as Masterpiece Cakeshop v. Colorado Civil Rights Commission. The oral arguments yesterday took up 90 minutes of the court’s time; that’s 30 minutes more than the customary 60 minutes assigned to oral arguments in similar cases. That length in time tells us something of the increased interest in this case, and, perhaps, it also tells us something of the seriousness with which the court is taking it. But as Robert Barnes and Ann E. Marimow of the Washington Post summarize yesterday,

“The Supreme Court seemed closely divided … over whether the First Amendment protects a Colorado baker from creating a wedding cake for a same-sex couple, with Justice Anthony M. Kennedy likely to cast the deciding vote.”

What’s most interesting in that lead sentence is the fact that the reporters got so quickly to Justice Anthony Kennedy, expected to be, as he so often has been, the crucial swing vote in what is likely to be a five-four decision from the nation’s highest court, a decision one way or the other with religious liberty very much at stake.

Similarly Adam Liptak, reporter for the New York Times, got to the very same observation. In his words,

“Justice Anthony M. Kennedy, who almost certainly holds the crucial vote in the case of a Colorado baker who refused to make a wedding cake for a gay couple, sent sharply contradictory messages when it was argued Tuesday at the Supreme Court.”

Now almost all of the national media got pretty quickly to observing Anthony Kennedy’s specific pattern of questioning. In the beginning of that pattern he appeared to ask a question that would undermine the claims that were made by the baker, but very quickly the scene shifted to where Justice Kennedy seemed to be asking questions that implied that the Colorado Civil Rights Commission had acted unjustly against the Christian baker, perhaps demonstrating a personal or religious bias. Liptak also observed that the oral argument, lasting that full 90 minutes, appeared to divide the justices along what he described as the usual lines. Now this is a part of the problem, with the politicization of the US Supreme Court, the problem comes down to this: It used to be the case throughout most of American history that justices were not primarily identified by the president who appointed them to the court, but rather by their own individual judicial philosophy. All that began to change when the High Court took on a more politicized nature, particularly during the years of the administration of President Franklin Delano Roosevelt. Since then increasingly, almost decade by decade, the court has become more politicized to the extent that it is natural to speak of those justices appointed by Democratic presidents as opposed, usually if not almost all the time, to justices who have been appointed by Republican presidents. That was almost certainly not what the founders and the framers intended in terms of our constitutional order, nonetheless, given the politicization of the court, that’s where we are, and that’s why Anthony Kennedy, we remind ourselves, nominated to the court by a Republican president, is now the crucial swing vote.

Kennedy has made his reputation over the last several decades on the court as a defender, indeed some of us would argue, an inventor of gay rights from the U.S. Constitution. But we also have to wonder if something else was perhaps in the back of Justice Kennedy’s mind even as he participated in the oral arguments and anticipates his role in the eventual decision. Back in 2013 when the High Court struck down the Defense of Marriage Act once again Justice Kennedy was the deciding vote; he wrote the majority opinion. In response to Kennedy’s majority opinion then Supreme Court Justice Antonin Scalia retorted that the logic of Justice Kennedy’s decision in the Windsor Case would lead to the legalization of same-sex marriage, which Justice Kennedy had basically argued would not be the case. Just two years later, it was indeed the case. Justice Scalia had turned out to be prophetic; Justice Kennedy was not only again the swing vote, once again he wrote the majority opinion. But perhaps yesterday during the oral arguments Justice Kennedy had to be at least partly aware of what he himself had written in that decision in 2015 legalizing same-sex marriage. In his majority opinion in the Obergefell decision Justice Kennedy had written, and I quote,

“Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment,”

wrote Justice Kennedy,

“ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.”

By the time this decision is handed down sometime in 2018, we will find out if Justice Kennedy agrees with himself in 2015.

Part II

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What Facebook targeting children age 13 and under means for kids and their parents

Next, we turn to an announcement made this week by Facebook as the New York Times announces in its headline,

“Text and Chat (if It’s O.K. With Mom and Dad).”

The reporters Mike Isaac and Natasha Singer tell us that,

“Few big technology companies have dared to create online products for boys and girls ages 13 and under. But on Monday, Facebook introduced an app, called Messenger Kids, that is targeted at that age group and asks parents to give their approval so children can message, add filters and doodle on photos they send to one another. It is a bet,”

says the Times,

“that the app can introduce a new generation of users to the Silicon Valley giant’s ever-expanding social media universe.”

Why would Facebook be alone in this? The answer to that is federal legislation, Coppa as it’s known, the formal name is the Children’s Online Privacy Protection Act, it requires all services that are aimed at children to

“obtain verifiable parental consent before collecting, using or disclosing personal information from a child under 13 — [that information would include],”

says the Times,

“photos, videos, voice recordings, location, contact information and names.”

So given that legislation, almost all of the digital giants had stayed away from offering this kind of product in the form of an app to children ages 13 and under, but Facebook has made this announcement. The reason for it is that we now know that Facebook has been losing business, you might describe it in terms of market share, amongst young adults and teenagers. There is no future for Facebook in terms of expansion in the United States if it cannot get younger children on its platform and accustomed to using its platform. In this sense, this new program known as Messenger Kids might well serve as something of an entrance into the world of Facebook. There are protections here for children, we are assured, including the fact that parents must sign up for the account, parents have constant ability to review the account, children have no ability to eliminate or erase anything that has been texted one way or the other, and parents must approve a friend request and the acknowledgment of a friendship in order to establish the ability for children to communicate with one another. That might sound like giving parents a great deal of control, but the thing parents have to keep in mind is that what this company is after are the eyeballs of their children, and that’s of course digital speak for getting the attention of children, and that’s not a benign intention. On the one hand you have the fact that Facebook is a company and much of its revenue comes from advertising that is directed at the users of these platforms; furthermore, parents will have to understand that even as they have some very legitimate control in this process, Facebook is still going to be collecting data from and about their children. And further beyond that, we just have to keep in mind that the bigger question is the one that is not even addressed in this article, or in most of the media coverage of this announcement, and that is the question as to whether or not we want our children these ages to be so digitally connected with anyone under any circumstance. David Marcus, identified as vice president of messaging services at Facebook, said,

“Right now for kids, the time they spend on devices is very passive It’s not really a device that helps you connect with others close to them.”

Well, at this point we can simply say that we would hope that all persons regardless of age, but particularly children 13 and under, would find their primary way of relating by looking someone in the face and talking to them. The Times seems to understand some of the moral issues at stake here, the report tells us, and I quote,

“Some children’s and privacy groups commended Facebook for saying that Messenger Kids would give parents control over children’s messaging and not show ads to children. But they also described Messenger Kids as a marketing effort to increase consumer loyalty.”

Such a statement was made by Jeffrey Chester, the executive director of the Center for Digital Democracy, he said,

“This is an attempt to create a feature that will help Facebook win over young people and keep their parents tied to the site.”

One of the most bizarre statements in the article came from Marcus, again a vice president for messaging services at Facebook. He said,

“We can’t let the current state of things prevent us from doing our jobs, which is to solve real problems in people’s lives.”

Now reading that line, I had to go back and make sure I had read it correctly. Here you have a major executive with Facebook saying that the mission and responsibility of his company is to help people solve real problems in their lives. Just to stake the matter as cleanly and as clearly as possible, I don’t think that’s Facebook’s role, nor do I believe Facebook is competent to carry out that responsibility.

One final observation about this story, it appeared on the front page of Tuesday’s edition of the New York Times. Headline, once again was,

“Text and Chat (if It’s O.K. With Mom and Dad).”

The opening line to the article is this,

“Few big technology companies have dared to create online products for boys and girls ages 13 and under.”

What’s the observation? Well look at those odd words in the headline: mom and dad. Then look at those odd words in the first sentence: boys and girls. I thought we were way past being able to use that kind of language, but now the New York Times has used it right on the front page, maybe we should say accidentally, a little bit back to the future.

Part III

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A morality tale for our times as Russia is banned from the 2018 Winter Olympics

Next, we turn to a huge story involving the upcoming winter Olympics. Again the New York Times reported, and I quote,

“Russia’s Olympic team has been barred from the 2018 Winter Games in Pyeongchang, South Korea. The country’s government officials are forbidden to attend, its flag will not be displayed at the opening ceremony and its anthem will not sound.”

Now that sounds like a big story, this really is a big story. This is the first time in the history of the Olympics that a country has been barred in this way so comprehensively from a set of the games, and in the context of what amounts to a criminal investigation in which the country, in terms of its highest government officials, has been found guilty of intentionally defrauding the international Olympic Committee, specifically its anti-doping rules, and doing so comprehensively on a scale never before imagined or proved. As Rebecca Ruiz and Tariq Panja report,

“Any athletes from Russia who receive special dispensation to compete will do so as individuals wearing a neutral uniform, and the official record books will forever show that Russia won zero medals.”

They go on to say,

“That was the punishment issued Tuesday to the proud sports juggernaut that has long used the Olympics as a show of global force but was exposed for systematic doping in previously unfathomable ways. The International Olympic Committee, after completing its own prolonged investigations that reiterated what had been known for more than a year, handed Russia penalties for doping so severe they were without precedent in Olympics history.”

Let’s remind ourselves what was going on here. We now know that Russian Olympic authorities with government support were involved in a widespread effort to defraud the anti-doping efforts and to involve their own athletes in a massive campaign of doping. We now know, for example, that through a hole in the wall Russian government officials helped to smuggle over 100 different urine samples in order to confound the anti-doping system. Christopher Clarey writing the on Olympics column for the New York Times tells us that Russia

“is now in a class apart with the former East Germany in terms of scope and government meddling; in terms of audacity, too, with its switching of samples through a hole in the laboratory wall at the last Winter Olympics in Sochi in 2014.”

But at this point we also have to remind ourselves about the history of the Winter Olympic Games; they’re not as old as the modern Olympiad, they go only back to 1924 in an effort to try to bring international recognition and limelight to many of the winter sports that have been previously neglected by the Olympics. The original five Olympic events in the Winter Olympics of 1924 involve the Bobsleigh, curling, Nordic skiing, skating, and also ski jumping. Other events have been added to the Winter Olympics, and beginning in 1994 the winter and summer Olympics have alternated every two years. The last winter games were held, as we just mentioned, in 2014 in Sochi in Russia, where Russia was not only the host country, but the lead criminal operator when it came to avoiding anti-doping efforts. But we also must remember that yesterday when the International Olympic Committee made this announcement about the fate of Russia, it had to know that it was also bringing about a massive further injury to an already weakened set of winter games.

The winter games have been losing popularity and interest over the last several years, the number of nations participating in the winter games is a mere fraction of those participating in the summer games. These particular games to be held next year, indeed coming up just in February in South Korea, have been particularly difficult and that difficulty has escalated tremendously in terms of the tensions with a now nuclear-armed North Korea. Thus, putting this in the larger moral context, this is a punishment not only of Russia, but of all the other nations as well because of the devaluation of attention and a status that will now be assigned to the 2018 games without one of the major national participants, Russia. That means that every single medal won will be won over against the fact that Russia was not allowed to participate in the 2018 winter games. You put all this together and it just underlines how sin works its way out in so many different dimensions, and how the sin of one gets also assigned to harm to others, and as you’re looking at Russia, it’s just one nation, but now the sanctions against Russia will harm every nation that will be involved in the 2018 winter games; furthermore, this is a tremendous moral injury to the Olympic movement itself.

Olympic authorities have taken much less significant actions against other countries; if we go back to the Cold War, as was already referenced, if you’re looking at a nation like East Germany, you are looking at another nation that built an athletic reputation while involved in a massive criminal conspiracy to hide the fact that they were using all kinds of mechanisms of doping, now the evidence of that, by the way, is not only in terms of legal documentation but the physical damage done to East German athletes over so many years. But the Olympic officials took the action this time because in the final analysis they had no choice. They were facing a very difficult decision. If they failed to take this ultimate action against Russia, they would forever morally invalidate any judgment they would make in the future against any athlete or any nation. On the other hand if they did take the action against Russia, and we now know they did, they would bring further harm to their own movement. That’s the way sin works and that’s why Christians armed with the biblical worldview are able to understand what perplexes so many others. But here we have full evidence of the effect of sin playing out on the ultimate Olympic stage, or, in one sense, not playing out on the Olympic stage. Either way, let’s just face the fact that we are looking at a series of international events that were demonstrated to show humanity at its best that, for reasons Christians will understand, sometimes actually show humanity at its worst.