Wednesday, February 26, 2020

Part I

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Ground Zero for Religious Liberty in the Coming Years: Supreme Court Decides to Hear Important Religious Liberty Case from Philadelphia

The inevitable collision between the LGBTQ revolution and religious liberty has been apparent ever since that movement, that moral revolution, began to gain momentum and velocity. With such hallmark milestones as the legalization of same-sex marriage in 2015, that collision became evermore apparent. The classic moment in understanding how that collision would come actually came earlier, just months before the Obergefell decision of 2015 when a justice of the United States Supreme Court, Samuel Alito, asked the then-solicitor general of the United States Supreme Court—the solicitor general representing the Obama administration arguing for same-sex marriage. The solicitor general was Donald Verrilli. Justice Alito asked him point-blank if Christian institutions, particularly religious schools such as Christian colleges and universities, would face the threat of a denial of tax-exempt status and other social and political issues if indeed they continued to discriminate, that would be the word that lawyers would use, on the basis of gender and sex and sexual behavior in issues of admissions and hiring and housing.

The solicitor general of the United States responded to Justice Alito with some of the most chilling words ever spoken in the august chambers of the United States Supreme Court. When Justice Alito asked if this would be an issue, the solicitor general simply at point-blank said, “It will be an issue.” Of course it will be an issue and something like a Sword of Damocles has been hanging over any institution that, on the basis of Christian conviction, would stand against the moral revolution.

But there are some very interesting developments just over the course of the last several days, most importantly on Monday, and once again the arena was the Supreme Court of the United States. The issue that arose Monday was the announcement coming from the Supreme Court that it would take a case. Now that’s a huge issue. Before we turn to the case itself, let’s just remind ourselves that the Supreme Court of the United States, often rightly referred to as the highest court in the land, is by nature a court of appeals, the highest court of appeals. The Supreme Court decides which cases it is going to hear.

Basically there are two kinds of cases more likely to be heard by the Supreme Court. Those cases have to do with a division that might occur in the lower courts at the federal level. The Supreme Court has to step in and define the issue. Secondly, the Supreme Court is more likely to take cases that have great precedential value. That is to say, they don’t take a case which would require the justices to rule over and over again on the same question or the same issues. They tend to take cases that will establish a new precedent. That’s the influence and the power of the U.S. Supreme Court.

When a sufficient number of justices in conference decide that the court will hear a case, the court issues what is known as a writ, a writ that says it’s going to take the case. It announces so publicly. And on Monday the Supreme Court of the United States announced that it will take a case having to do with whether or not a Catholic adoption and foster care agency in Philadelphia can continue in that work even though the Catholic authorities will not sign a statement guaranteeing that they will not discriminate on the basis of sexuality or marital status.

As David G. Savage reports for the Los Angeles Times, “The Supreme Court said Monday it would decide another clash between religion and LGBTQ rights, this time involving Philadelphia’s termination of a contract with Catholic social services over the groups or refusal to place foster children with same-sex couples.” As the story continues, “The court agreed to hear an appeal arguing that excluding the Catholic agency from the city’s program violated the First Amendment and its protection for the free exercise of religion.”

There’s a lot for us to consider here, but just remember, when the state of Massachusetts became the very first state to legalize same-sex marriage, one of the most immediate effects is that the state’s largest and most venerable adoption and foster care agency was put out of business. Once again, it was Catholic charities there in Massachusetts. The Catholic Church and its authorities would not agree not to discriminate—again, that’s the language you have to watch out for—on the basis of Catholic conviction. But at least to the credit there of the Catholic authorities, they did not intend to run Catholic charities in a way that violated Catholic doctrine and the Roman Catholic Church’s definition of marriage.

Because of that, because they would not treat same-sex couples as potential adopters or foster care parents, instead limiting those adoption and foster care services to married couples as a man and a woman, because of that, the state of Massachusetts basically put Catholic charities there in Massachusetts out of business. The city of Philadelphia tried to do the very same thing just more recently. As Adam Liptak pointed out, Philadelphia as a city government acted after a 2018 article in the Philadelphia Inquirer described the fact that Catholic Charities, the foster and adoption agency there in Philadelphia, with which the city and its agencies have been working for decades, the Philadelphia Inquirer article accused the agency of discriminating on the basis of LGBTQ identity, relationships and behavior. The City of Philadelphia then stopped all placements with the agency known there as Catholic Social Services, and then the Catholic Social Services began to appeal the decision in court.

Notice what happened. They went to the court. They lost. They went to a federal court of appeals. They lost. But now they’re going to the Supreme Court of the United States, and just about every major media observer of the announcement that came from the court on Monday assumes something that we should also take with great interest. The Supreme Court, or at least the requisite number of justices on the Court, did not need to take this case if they were satisfied with the federal district court and the appeals court level. That gives us some encouragement. The fact that the Supreme Court has decided to hear this case indicates that Catholic charities there in Philadelphia will have a chance to argue on the basis of religious liberty that the city of Philadelphia has acted unconstitutionally.

But consider what that would mean. That would mean, and this is very important, that the Commonwealth of Massachusetts had acted unconstitutionally over a decade ago. What has happened? Well, at least a part of what has happened is that it has become far more clear to just about all authorities that that collision between the LGBTQ revolution and the reality of religious liberty, it’s coming with a tremendous cost to the society. And now we can document this cost. We’re talking about children who will not be served by one of the biggest, and, by almost any evaluation, most effective adoption and foster care agencies there in Philadelphia.

And we’re also seeing something else, and that is the fact that there has been a change at the U.S. Supreme Court and that change has come with two dimensions that will turn out to be extremely important as we look to the Supreme Court in years ahead. The first thing is simply different people. We’re looking at the fact that there have been recent appointments to the Court, most importantly the appointments made by President Trump of Neil Gorsuch and, of course, Brett Kavanaugh. Both of them come to the Court having already been largely vetted on issues such as this issue coming now before the Court. The second thing is that some of the longer-serving justices on the Court, generally rightly identified as amongst the conservative justices on the Court, have looked at some of these issues quite differently in recent years than they had in the past.

That’s going to come up again on the second big issue we’ll discuss on The Briefing today, but at this point it is important to recognize that the Supreme Court is not a legal computer. It is nine human beings who serve as justices of the Court and it’s a human equation. They are, of course, making judgments on the basis of the U.S. Constitution, or at least they are supposed to be making such decisions on the basis of the Constitution. And of course we’ve been seeing that in recent decades there’ve been two rival ways of looking at the Constitution.

The more liberal or progressivist way is to look to the Constitution as what some have called a “living constitution,” which is to say that judges and justices are free to interpret the Constitution, not just on the basis of its words and sentences and syntax, but rather on what they believe to be the contemporary needs of the nation. That explains why there have been so many justices on the Supreme Court who have found or discovered, and that means invented, rights that aren’t enumerated at all in the U.S. Constitution.

The more conservative approach to the Constitution, which is known as strict constructionism or originalism or textualism, it is based on the fact that the Constitution is made up of words, that the authority in the Constitution is the expression of those words and sentences and that the rightful interpretation of the Constitution is bound by the text of the Constitution. Now we see how all of that plays into the huge decision that the Supreme Court will have to make, that comes down to the practicality of whether a Catholic charity serving children in need of adoption and foster care in Philadelphia can continue to be Catholic.

And let’s just note something else. In the Constitution of the United States, in the very first amendment, there is an enumerated right of religious liberty. There is no sexual liberty to be found anywhere in the U.S. Constitution. That’s among those invented rights going back to decisions by the Supreme Court in the 1960s and beyond.

So what we’re looking at here is a head-on collision between the City of Philadelphia and Catholic charities there. We’re also looking at a head-on collision between two rival approaches to the U.S. Constitution. We’re also looking at two very different sides of a social equation, with those contending for religious liberty on one side and those contending for the LGBTQ revolution on the other.

But I mentioned that there has been a change even amongst the conservatives on the U.S. Supreme Court, and this takes us back to a very interesting development. Back in the year 1990, the Supreme Court of the United States handed down a lamentable decision known as the Smith Decision, and the majority opinion in that case was written by the leading and most influential conservative on the Supreme Court, the late Justice Antonin Scalia. I say lamentable because it was a very bad decision. It set an extremely bad precedent. And what is interesting now is that many of the jurists that Antonin Scalia produced, intellectually speaking, and that would include Justices Kavanaugh and Gorsuch, they are now in a position to want to revisit that case, or at least that precedent, and to make very clear that a law such as the one cited by Philadelphia does not trump the religious liberty of American citizens.

And let’s be clear, Evangelical Christians have as much at stake in this issue as do Catholic charities and other organizations of a religious convictional nature there in Philadelphia and, of course, all over the nation, because this case in Philadelphia now becomes ground zero for the future of religious liberty in a very real sense everywhere throughout the United States of America.

It’s also a reminder that sometimes a very strange case can lead to a major Supreme Court decision, and some of those decisions can be rather costly. In the case of the Smith Decision of 1990, the issue is whether or not prisoners held by a state could have the right to smoke peyote in what they declared to be religious ceremonies. And the Supreme Court in that majority opinion authored by Justice Scalia said no, that the ban on the smoking of peyote was a generally applicable law for which religious liberty did not offer an exemption. But what we can see now is that Justice Scalia’s decision had unintended effects that went far beyond smoking peyote. He had no idea that what was coming down the road was the LGBTQ revolution that would ride on the back of claims about peyote smoking in order to further a far more comprehensive moral revolution.

Part II

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The Rapid Change of the 9th Circuit Court of Appeals: Elections Have Consequences, Especially for the Federal Courts

But I mentioned that there has been a change even amongst the conservatives on the U.S. Supreme Court, and this takes us back to a very interesting development. Back in the year 1990, the Supreme Court of the United States handed down a lamentable decision known as the Smith Decision, and the majority opinion in that case was written by the leading and most influential conservative on the Supreme Court, the late Justice Antonin Scalia. I say lamentable because it was a very bad decision. It set an extremely bad precedent. And what is interesting now is that many of the jurists that Antonin Scalia produced, intellectually speaking, and that would include Justices Kavanaugh and Gorsuch, they are now in a position to want to revisit that case, or at least that precedent, and to make very clear that a law such as the one cited by Philadelphia does not trump the religious liberty of American citizens.

And let’s be clear, Evangelical Christians have as much at stake in this issue as do Catholic charities and other organizations of a religious convictional nature there in Philadelphia and, of course, all over the nation, because this case in Philadelphia now becomes ground zero for the future of religious liberty in a very real sense everywhere throughout the United States of America.

It’s also a reminder that sometimes a very strange case can lead to a major Supreme Court decision, and some of those decisions can be rather costly. In the case of the Smith Decision of 1990, the issue is whether or not prisoners held by a state could have the right to smoke peyote in what they declared to be religious ceremonies. And the Supreme Court in that majority opinion authored by Justice Scalia said no, that the ban on the smoking of peyote was a generally applicable law for which religious liberty did not offer an exemption. But what we can see now is that Justice Scalia’s decision had unintended effects that went far beyond smoking peyote. He had no idea that what was coming down the road was the LGBTQ revolution that would ride on the back of claims about peyote smoking in order to further a far more comprehensive moral revolution.

Part III

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Why Hasn’t a Single Democratic Candidate Released a List of Names for Supreme Court Consideration? Elections Are Always a Collision of Worldviews

But next, we reported on The Briefing just a few weeks ago that the Trump Administration had handed down a new policy through the Department of Health and Human Services in which the Trump Administration said that HHS funds would not go to any organization that performed abortion or referred individuals to abortion services. Now, of course, the abortion movement responded with tremendous outcry and yet the Trump Administration proceeded with the policy, which is now in place, but of course there were some, including the Attorneys General of some states, who appealed, suing the administration in federal court.

Just a few days ago, I arrived in California to face the headline in the Los Angeles Times, “California Answers Trump Abortion Threat.” The article is by Noam N. Levey. The subhead: “Officials tell White House that the state will continue to require health plans to cover the procedure.” As the Times reported, “The State of California told the Trump Administration Friday that it would continue to require health plans in the state to cover abortion services and accused the administration of illegally threatening to withhold federal aid to California to try to force a change.” Attorney General Xavier Becerra said, “California will take no corrective action.” Corrective action is a term that was used by the Trump Administration’s new policy and the order to a state like California. California says, “No.”

No surprise there. California state government is almost entirely in the hands, not only of Democrats, but in those who could fairly be described as the left-wing of the Democratic party. Just looking at political change in California, consider the fact that the current governor of the state, Gavin Newsom, replaced a former four-term governor of the state, Jerry Brown, who began his career on the left-wing of the Democratic party and ended up far from the leftward wing of his own party by the time he left office. Not so with Gavin Newsom, not so with the current attorney general in California.

The announcement that greeted me when I landed just days ago in California is that the state was going to press against the Trump Administration and was going to take this as far as it could in the federal courts. Now let’s just think about something for a moment. In California, it has been a reflex on the part of people such as the current attorney general or the governor of the state to go to the federal courts for relief. When you had a Conservative or Republican administration, they might offer any kind of policy that, say, would protect unborn human life. A state like California has gone immediately to the federal courts where they have received, over and over again, liberal judgements coming from progressive judges who have met their expectations.

That was Friday, but then on Monday, just three days later, the Federal Appeals Court, that is the U.S. Ninth Circuit Court of Appeals, by a seven-four vote upheld the Trump Administration policy and turned down the appeal from the California state government. That is just huge news. It is massive news. It’s also unexpected news. Anyone who has followed American legal and political constitutional history for the last several decades would not expect this kind of decision from the Ninth U.S. Circuit Court of Appeals. What exactly has happened? Over the course of the last several decades, the Ninth Circuit has been the notoriously liberal circuit court of appeals, but now you have a seven-four decision upholding the Trump Administration policy over against the appeal from the state of California. How did that happen?

Well, in order to explain that, you have to look to another bit of news. This was reported in the Los Angeles Times on February the 23rd. That is just last Sunday. The front-page article in the LA Times: “Rapid changes strain the Ninth Circuit.” The subhead: “Trump’s 10 picks have begun to shift court’s longtime liberal bent and stirred criticism from veteran judges.” Now just notice, we’re talking about the course of just a few days. On Friday, the state of California says that it will defy the Trump Administration and go to the Ninth U.S. Circuit Court of Appeals. On Sunday, the Los Angeles Times runs a front-page article about a conservative change on the Ninth Circuit because President Trump has appointed now 10 judges on that crucial appellate court. Then on Monday, just the very next day, by a seven-four decision, the Ninth Circuit upholds the Trump Administration policy.

Let’s just remind ourselves of what we’re talking about. The logic of the administration’s policy comes down to this: the monies that are coerced and confiscated from American taxpayers should not be used in any way, directly or indirectly, to pay for or to facilitate the murder of the unborn. That is absolutely crucial. It is the same logic of the Hyde Amendment, but a footnote there: every major Democratic presidential candidate has pledged, in the course of the primary campaign, to seek to eliminate the Hyde Amendment. The same logic is what has driven the Trump Administration to this position, and now it has been upheld by this seven-four decision at the Ninth Circuit. This isn’t just big. This is potentially historic. The article in yesterday’s edition of the LA Times stated this: “Monday’s ruling was a sign of just how much the Ninth Circuit has changed since President Trump replaced 10 judges, more than one third of the active jurists. Randomly-drawn panels that decide challenges to Trump policies are now much more likely to have Republican majorities.”

Judge Sandra S. Ikuta, by the way, who wrote the decision for the majority, said, “The Supreme Court has long recognized that abortion need not be treated the same as other medical procedures.” That is to say, it’s not just a medical procedure, it is a morally significant act in which the federal government has the right to choose sides, including speaking up for the unborn. And by the way, that particular judge had been appointed to the Ninth Circuit by president George W. Bush.

So this is good news, and it’s very big news because the Ninth Circuit has an outsize influence on other federal courts, and thus this decision is likely to be influential as well. But it also underlines a very important issue. And that is the fact, and we say this over and over again, elections have consequences. And one of the things that Americans have to keep in mind is that one of the chief consequences of a national election is the composition of the federal courts. And this has to do with two crucial variables, most importantly, who is elected president of the United States, because the president has the sole power of nomination to the federal courts. But the president cannot unilaterally put anyone on the federal courts, including the Supreme Court and the various circuit courts of appeal. Rather, this requires the confirmation of the Senate and thus the election of U.S. Senators, which decides which party has a majority in that chamber and the election of a president, they both have just about everything to do together with the composition of the federal courts, and American voters are going to keep that very much in mind with the 2020 presidential election before us.

By the way, a very interesting issue. When President Trump ran for president in 2016, he ran offering a list of candidates for the federal courts and most importantly for the Supreme Court. That had never been done by a major candidate before. What’s interesting right now is not so much that President Trump did it, but that not one of the Democrats has done the same. Doesn’t that raise an interesting question? Why would it have been advantageous for President Trump, running in the Republican primaries in 2016, to offer this list as an assurance of the kind of justices and judges he would appoint, when evidently not one of the major Democratic candidates, or for that matter, not even the minor Democratic candidates, have seen it as advantageous to do the same?

What’s the difference? Well, at least a part of explaining that difference is offered by John O. McGinnis writing in the Law & Liberty blog in an article that was picked up by the Wall Street Journal. In describing Democrats in the court, McGinnis observes the fact that amongst Republicans, there is a very coherent and largely common understanding of the kind of justices that Republicans want to see placed on the Supreme Court, but the Democratic party is a constellation of so many different groups that just about any list any Democratic candidate might offer will be picked apart by other Democratic candidates. When President Trump issued his list in 2016, it was the kind of list that no Republican competitor to President Trump dare criticize, but on the Democratic side, given the composition of the Democratic party, it’s very different.

But there’s a deeper issue here that Christians should think about. For Christians, the crucial issue is God’s Word written, the Holy Bible. How do we interpret the Bible? And here’s where Christian conservatives understand that believing in the nature and authority of the Bible as the inerrant, verbally-inspired Word of God means that there is one proper interpretation of the text, rightly understood, and that we are constrained by the words, by the syntax, by the grammar and by the original intention of the author, keeping in mind that for Christians, the ultimate author of Scripture is none other than the Holy Spirit.

But the issue for Christians and the parallel for us to understand is this: If you are looking at a more liberal interpretation of Scripture, then you could come up with any number of interpretations and every group could have its preferred interpretation of Scripture. If you’re unbound by the words and the sentences and the grammar and the syntax, if you are unbound by the intention of the text and the author of the text, then you can go just about anywhere.

Now, fast forward to this situation, when we’re looking at the fact that not one Democratic presidential contender has released such a list of potential judicial appointments. Why? It is because the Democratic party does not have a unified understanding of how the Constitution is to be interpreted. They do share a basically progressive or liberal interpretation, but one of the hallmarks of that particular method is that it is outcome-based. It doesn’t start with, “What does the text say?” It starts with, “What do we want to accomplish politically?” And it’s got too many different groups who want to accomplish different things.

As McGinnis writes in his essay, “Democrats would have difficulty articulating the common characteristic that the candidates on their list would share. Republicans have no such problem. The jurists are all broadly originalists.” That is, amongst Republicans, their expectation is, “They want to give the constitution and statutes the meaning that they were understood publicly to have at the time of their enactment.” As McGinnis notes, what seems to hold potential Democratic nominees together is that they would wish to accomplish the goals of the Democratic party, but different groups in the Democratic party have different and competing interests. And if a Democratic candidate came out with a list, every one of those interest groups would be looking to see just how many of their names are on the list or not.

But Republicans and Democrats are in fundamental agreement on one important issue, and that is that the future of the Court really matters. And all the issues we discussed today just serve to underline that reality. And Democrats and Republicans understand something else, and that is that elections have consequences. But what Christians uniquely understand is that elections are never merely political. They are clashes of ideas and ideologies. More importantly than anything else, they are clashes of opposing worldviews.

We’ll be watching all of this as it develops and at this pace it’s going to develop almost every week, if not every day.