Wednesday, June 17, 2020

Part I

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Further Questions about Religious Liberty Brought Forward After Monday’s Supreme Court Ruling

One more day after Monday’s decision handed down by the Supreme Court of the United States effectively declaring that the Civil Rights Act of 1964 should be read as extending nondiscrimination protections to LGBTQ Americans, the decision looks even worse. The 6-3 decision handed down by the court on Monday with a majority opinion written by Justice Neil Gorsuch, effectively argues that even though the word “sex” back in 1964 could not possibly have included LGBTQ identity behaviors or relationships or anything related thereby, nonetheless Gorsuch in his opinion for the court said that the law does mean that now even though it did not mean that then.

Now, of course there are so many ironies, indeed tragedies in this story. We are talking about the fact that two supposedly conservative justices signed onto this decision, including Chief Justice, John G. Roberts Jr., and Neil Gorsuch. Gorsuch, of course, President Trump’s first appointment to the court and to fulfill the seat that had been vacated by the death of the late Justice Antonin Scalia. I offered a full analysis and critique of the decision on yesterday’s edition of The Briefing but even since then, it has become clear that other issues are implicated and cannot be avoided.

One of the most important of these is what we discussed on Tuesday as the now inevitable collision between this decision and religious liberty. Justice Samuel Alito in his dissent against the majority opinion in which he was joined by Justice Clarence Thomas, began by saying that what the court did on Monday was not to fulfill its proper constitutional responsibility but rather to legislate. And as we look at the situation now on Wednesday, that reality, that indictment becomes ever more clear. Just consider as evidence the response to the decision on the part of the mainstream media.

For example, the front page of the print edition of the New York Times’ headline news story, “Landmark Decision Protects LGBT Workers.” In an article of analysis offered by Adam Nagourney and Jeremy W. Peters, the reporters tell us this, “In many ways the decision is the strongest evidence yet of how fundamentally, rapidly, and to some degree unpredictably American views about gay and transgender people have changed across the ideological spectrum in less than 20 years.”

Well, that’s an interesting statement, but what should concern us is the fact that it is not the business of the American people to look to the Supreme Court in order to ask what public opinion is. And it isn’t the business of the Supreme Court of the United States to rule in any sense on its reading of public opinion. The reading of the decision by the liberal culture and the advocates of an activist court, that actually provides all the evidence we need to understand that the court acted precisely against its mandate and constitutional responsibility. Again, explaining the decision, The New York Times first explanation is, public opinion.

We have pollsters and survey takers for public opinion. The Supreme Court of the United States is not supposed to be driven by public onion. We know that being human beings the court is always going to be tempted and that means the justices are always going to be tempted by the horizon of public opinion. But if they fulfill their constitutional responsibility they are supposed to try to check into that, not lean into that. One of the other things we need to recognize is that every one of these justices in one way or the other is looking at a verdict of history to be written in the future. That’s an issue of concern. They’re not only looking at the public opinion pages, they’re looking at the history not yet to be written hoping that they will be written about well.

On this same issue, Adam Liptak, a veteran observer of the court in another front-page article in the print edition of the Times wrote, “The Supreme court is generally not very far out of step with popular opinion and large majorities of Americans oppose employment discrimination based on sexual orientation and substantial ones oppose it when based on gender identity.” Again, in this front-page article you have Adam Liptak explaining the court’s decision by saying, “You’ve got to look at public opinion because the court was obviously looking at public opinion.”

But as we think about the challenges that after this decision religious institutions, organizations, churches, and others are going to face, consider the press coverage on this issue as well. It’s incredibly revealing. Liptak cited the dissent written by Justice Alito, and he went on to say that the issue of how religious employers would or would not be bound by this decision would have to be adjudicated in the future. That point was also made by Justice Gorsuch in his majority opinion. He stated in his opinion as we cited yesterday on The Briefing that the opinion had to down on Monday, the decision did not answer all the question’s related issues such as single-sex bathrooms and locker rooms or single-sex sports such as men and women’s sports. It did not address directly the issue of religious liberty. Justice Gorsuch indicated his concern for the preservation of religious liberty but at the same time, any fair and honest person looking at this decision knows that the flood gates have now been opened and religious organizations, churches, and institutions are going to be on the defensive.

When Justice Gorsuch wrote in the opinion, “We do not purport to address bathrooms, locker rooms, or anything else of the kind. Whether other policies and practices might or might not qualify as unlawful discrimination, or find justifications under other provisions of Title VII are questions for future cases not these.”

Now, the very fact that he said that indicates that he felt that he needed to say that but the point is, every one of those questions is now, as of the court’s decision on Monday, put into an entirely different context. We should be reminded of the ominous word spoken by the then Solicitor General of the United States, Donald Verrilli, representing the Obama administration during the oral arguments for the Supreme court case that eventually legalized same-sex marriage.

When addressed by questions from the chief justice and from Justice Alito as to whether or not a Christian college, for example, would be required if it had married housing to allow same-sex couples to have access to the housing, the solicitor general representing the administration said, “It will be an issue.” Just remember those words, it will be an issue. In effect, Justice Gorsuch in a very different way signaled the very same reality. But now this extends to transgender issues and to a wide range of employment questions. Further evidence of the fact that religious liberty is very much on the line and that a collision is inevitable was found in the coverage of the decision from National Public Radio on Tuesday morning.

In its coverage of the issue one of the cases that was brought forward was a woman who had taught at a Catholic university in a ministry position related to music and was then fired because of issues of sexual orientation and a same-sex marriage. The clear implication, indeed, the fact that the case was brought up was that this decision now creates an entire new rationale for such a person to bring a case against a religious institution. And there are other signals that are not subtle in the least.

For one thing, the opinion section of the New York Times ran a full editorial. That means with the entire editorial weight of the New York Times and its board with the headline, “Gay Rights Are Civil Rights.” The editorial board celebrated the decision on Monday—no surprise there—but then the editors wrote, “The opinion also hints at a potentially serious obstacle on the horizon. Claims by employers that being prohibited from discriminating against gay and transgender workers violates their religious convictions. Such claims that the editors are likely to find a sympathetic ear among the Supreme Court’s conservative majority, which has repeatedly voted to protect if not promote religion and religious objectors.”

But in the next sentence it says this, “For now however, Monday’s decision is a victory to savor, the next step in a line of gay rights decisions stretching back nearly a quarter century, and until now written solely by Justice Anthony Kennedy.” Well, the successor to Justice Anthony Kennedy in this sense is Justice Neil Gorsuch. But here’s the big point. You have the editorial board of the New York Times celebrating this decision, but saying, “Now wait, just a minute. There is a big problem coming and that big problem is that people are going to make claims that their religious convictions actually mean that they can hire teachers for their schools in line with those convictions, that they can hire worship leaders and musicians for their ministries consistent with those convictions. That they can admit students and hire faculty in a way that is consistent with those convictions.” And it’s clear the editorial board of the New York Times sees that and that means sees us as an obstacle. An obstacle by the way by definition is a negative reality standing in the way of something. That something they believe we are standing in the way of this progress, and of course, the remedy for an obstacle is to remove it.

Columnist Michelle Goldberg also in an opinion piece published yesterday celebrated the decision, but then warned against the reality of future rear guard actions. The very next words warned of a rear guard action tied to religious liberty.

In the aftermath of the decision it was also very interesting to hear some constitutional authorities point to a quandary, and that is this, if legislators can frame a law and it can be passed by Congress and signed into law by a president of the United States, say in 1964, and their legislative responsibility is to make that law evident in words that have clear meaning. After all as Justice Gorsuch himself pointed out in a speech in 2016, meaning that would be well understood by any reasonable person. If legislators can frame a law in 1964 and then find out about a half century later that the Supreme Court can make those words mean something that the legislators didn’t mean, and the Supreme court can admit that the legislature didn’t have any such meaning in mind whatsoever, then legislators can have no confidence that their laws will mean in the future anything like what they mean when they are adopted. That’s an insult to democracy, that’s an insult to our constitutional order.

Part II

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The Great Evasion: Look Who’s Relieved about the Bostock v. Clayton County Decision

But before leaving this story for today there is another aspect of this that I want to talk about and we’ll be coming back to this in a bigger picture in days ahead. Rebecca Rainey wrote an article for Politico, with the headline, “GOP,” that means Republican Party, “Backs Gorsuch’s LGBTQ Decision After Conservative Blowback.” It’s an interesting headline, the article is even more interesting. What it tells us is that especially in the United States Senate—the article really is focused on Republicans in the United States Senate—there was enormous political relief at the decision that was handed down on Monday.

What does that mean? Well, just consider a comment made by the longest serving Republican in the Senate, Senator Chuck Grassley of Iowa, who speaking of the decision said, “It’s the law of the land, and it probably makes uniform what a lot of states have already done and probably negates Congress’s necessity for acting.” Now, Senator Grassley’s been in Senate for a very, very long time. He knows how the Senate works, he knows how politics works, he evidently knows how the Supreme Court of the United States works as well. He was also chairing the judiciary committee during the time that Neil Gorsuch came before the Senate for his confirmation hearings. He has a lot at stake in this personally.

But the biggest issue in what he said is the fact that he let the cat out of the bag so to speak. He went on to say in his comment that the decision, “Probably negates Congress’s necessity for acting.” Once again, as I said on Tuesday, this is one of the major problems with this decision. It is a part of the larger pattern of the legislature, the Congress, indeed, I’ll say the Senate in this case, abdicating its own legislative and constitutional responsibility. And instead, the issue is going to the courts and especially to the Supreme Court, where the Supreme Court fulfills a legislative function it is not assigned in order to give political cover to the legislators who are too cowardly to act.

The Congress of the United States is given the responsibility to frame legislation and ever since 1964 when Congress passed the Civil Rights Act, then signed into law by President Lyndon Johnson, every single year, every single Congress since then has had the opportunity to include LGBT identity issues within the legislation if that is what Congress intended to do or to put it another way, if Congress found sufficient political support to do so, but it hasn’t.

And in the same way as Roe V. Wade in 1973 legalized abortion by act the Supreme Court because Congress did not act, and just as on same-sex marriage it was handed down by the fiat of a court when Congress did not act. The same thing happened on Monday and guess who’s relieved? Congress. Guess who might be most relieved of all? Republicans in the United States Senate. Their margin for leadership in the Senate is very, very narrow and this is a controversial issue, and Senator Grassley was basically saying what no doubt the others in the chamber were thinking, “We’re never going to have to put our names on this on a vote. The Supreme Court just rescued us from ever having to make a legislative decision. Oh wait, just a minute. We were elected as legislators but nevermind, we’ll let the Supreme Court of the United States do our job for us and then we will express to the public, relief once that is done.”

But of course, remember the point of this article in its headline is the fact that so many leaders in the Republican Party are effectively glad that this is now past us, that this decision has been made and that they did not have to make it. Republican Senator John Thune of South Dakota, the Senate Majority Whip said, “It demonstrated Gorsuch’s independence.” He went on to say, “The country has obviously changed a lot on that issue and I assume that he looked at the facts and the law and that’s the conclusion he came to. And that’s what when we nominated him and confirmed him we wanted him to do.” Again, big relief.

What you have to keep in mind is that on so many of these big issues, the senators and others in Congress are relieved they never had to put their name one way or another on the divisive issue. Whether it was the legalization of abortion in 1973 by the court or the legalization of same-sex marriage by the Supreme Court in 1915, or the extension of the Civil Rights Act of 1964. As in Monday, it was a close escape for Congress and in particular in this case for the United States Senate.

There were at least some senators who were willing to call this what it is. Senator Josh Hawley, Republican of Missouri said, “The court is legislating what they think is good policy and that to me though, that’s really not their role. I mean, I don’t particularly care about their views on policy.” That’s a very interesting statement. The Senator says he really doesn’t care what the justices of the Supreme Court believe about issue A or B or C. What their positions are on any number of issues, that’s not why they are put on the court. They’re not put on the court because of their views on issue X or Y, they’re put on the court in order rightly to interpret the Constitution of the United States and the statutes and laws of this nation.

Part III

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What’s Going on in Seattle’s ‘Autonomous Zone’? Why Declaring Autonomy and Actualizing It Are Two Very Different Things

But next, we turn to a very different issue. There is so much going on in the cities of America and right now often on the streets of America. And one of the most interesting arenas for our worldview consideration, it’s what’s going on right now in certain streets in a certain area of the city of Seattle. Seattle is of course the biggest city in the state of Washington. And Washington, Oregon and California on the West Coast represent some of the most secular and politically-liberal, morally-liberal regions of the United States. Now, in all three of those states the closer you get to the coast as elsewhere, the more liberal the territory becomes. The area to the East and all three of those states is considerably more conservative than the areas to the West.

Seattle of course is one of the most liberal cities in the United States, and right now it is ground zero for a very interesting revolution in the making. The revolution has gone so far as to declare a certain portion of the city of Seattle no longer part of the United States of America, an autonomous zone according to the demonstrators, the protestors, the activists who have gained control of the territory and persuaded police to abandon their entire precinct station and leave the area. The area is now known as CHAZ. That is shorthand for Capitol Hill Autonomous Zone, autonomous in this case meaning autonomous from the police, from the city government in Seattle, from the surrounding county, from the State of Washington and from the United States of America.

Signs put up by the protesters include one warning that when you enter the area you are leaving the United States of America. Another declaring, “This space is now property of the Seattle people.” At the end of last week the situation was summarized by a Times piece authored by Mike Baker in which we were told, “But facing a growing backlash over its dispersal tactics in the aftermath of George Floyd’s death in Minneapolis, the Seattle Police Department offered a concession. Officers would abandon their building, board up the windows, and let the protestors have free rein outside.” Yes, you’re actually reading about this in America.

The next paragraph, “In a neighborhood that is the heart of the city’s art and culture threatened these days as rising tech wealth brings in gentrification, protestors seized the moment. They reversed the barricades to shield deliberated streets and laid claim to several city blocks now known as the Capitol Hill Autonomous Zone.”

The Wall Street Journal ran an opinion piece about the situation with the headline, “Officials Skedaddle in Seattle.” The editorial board of the Wall Street Journal ran a full statement with the headline, “The Seattle Secessionists.” The editors wrote, “The founding of any new nation is worthy of note and so it is with the Capitol Hill Autonomous Zone. Several blocks of Seattle that have been seized by protestors occupy Wall Street-types and assorted opportunists. Now,” says the editors, “it’s up to the citizens of the CHAZ adapting federalists to number one, to decide the important question whether anarchies of men are capable or not of establishing good government.”

Once again, we ought to look closely at the ironies. So many on the political left in the United States are adamantly against guns, against gun ownership, private gun ownership, not to mention open carry laws. But right now in the autonomous zone it is activists of the left who have persuaded the police to leave and instead, there are people walking around the area obviously brandishing weapons and ammunition.

On the other side of the sign that says, “You’re now leaving the USA,” remember that is in Seattle, which is still very much a part of the United States of America, the locals have established what they call the “no Cop co-op” that distributes snacks.

Now, these local-based anarchists—and remember that in the biblical worldview anarchy is the worst possible situation, much like the Taliban had to set up their own government after toppling the government in Afghanistan—the leaders of CHAZ have had to set up their own government. And as the Wall Street Journal points out, it appears that they’re now going to have to start charging taxes, in this case, charging businesses for doing business within their autonomous zone. It turns out that you may topple a government, but then you have to be one.

Tongue-in-cheek the editors of the Journal wrote, “By Thursday,” that would be of last week, “the CHAZ had established that universal symbol of statehood, a website.” It explains itself as, “An emerging community based on mutual aid. Yet,” the Journal says, “one with an ugly history. ‘Although we have liberated free Capitol Hill in the name of the people of Seattle, we must not forget that we stand on land already once stolen from the Duwamish people.’” Speaking of native Americans.

But after stating that particular issue, which evidently comes with moral force, the organizers of the CHAZ don’t seem to understand what moral force it’s supposed to have because after all, they declared themselves to be in charge of the autonomous area, not the people whose wrongs they there cite. As the major media have reported, the interesting thing here is that the Seattle authority seemed to be playing along with this autonomous zone as if to wink and say, “You call yourselves autonomous. We’ll treat you as sort of autonomous for now but no one knows where this is going.”

Well, actually that was even said by the fire chief in Seattle, who said, “I have no idea where we’re headed. We’ve been working step-by-step on how to build a relationship, build trust in small things so we can figure this out together.” Well, we actually do know where this is going, ask any of the utopian communities that have sprouted up throughout American history. Ask so many of the protesters from the 1960s and other similar kinds of historic developments. Ask them what happened to their autonomous project. It has disappeared, every single one of them.

It reminds me of the impulse that comes to every adolescent to declare himself or herself autonomous from parents, until they need a place to sleep, they need clothes, they’re hungry, they need food. It turns out that declaring one’s autonomy isn’t the same as actualizing it. Perhaps unsurprisingly it turns out that there are some authorities who are worried about such things as COVID-19 and what appears to be a building sanitation problem within the autonomous area.

President Trump this week said that if the authorities there in Washington state and Seattle don’t take action to shut this down, he will. But Mr. President, that probably will not be necessary. Anarchist experiments basically by definition fall apart, their energy dissipates. Eventually even anarchist groups have to have leaders and then they don’t like the leaders that they have. It is a very sad thing to consider the fact that a police force in a major American city basically just abandoned its post. That should be a big issue to Americans. No doubt there are moral issues here that need to be debated and considered, but they’re not likely to be debated and considered in a healthy way in the course of this experiment in declaring an autonomous region that is no longer part of the United States of America.

And if there are as likely legal actions after this, here’s something else you can count on. Those who are right now in the autonomous area, supposedly no longer a part of the United States, will be declaring their constitutional rights as American citizens if they have to go to court. But it might also turn out the human nature works in another more natural way. And that is that if the experiment falls apart for a different reason, just like the adolescent impulse to declare autonomy, or even to declare the teenager’s bedroom, no longer a part of the United States or of the family home. It may turn out that the deciding issue here is not so much an armed intervention, but a breakdown in sanitation.