Wednesday, December 2, 2020

Part I

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Last Week’s Supreme Court Ruling Was a Cultural Flashpoint, But the Responses to the Ruling May Tell Us Even More about Our Cultural Moment

Every once in a while, something happens in the culture that becomes something of a flashpoint. There’s a bright light all of a sudden that is shined upon an issue, and what is revealed turns out to be really, really important. Well, the ruling that was handed down last Wednesday by the Supreme Court of the United States, defending religious liberty has turned out to be one of those flashpoints. So it just turned out that once the light has shined on this issue in a really bright way, it has revealed some really, really important issues, some big challenges to religious liberty, but what we’re going to take apart today in what I hope will be a very profitable and interesting analysis is what the response to that Supreme Court ruling really tells us.

For example, I think the most interesting response to the ruling on Wednesday came in a jointly written opinion piece that was published in USA Today. The headline is, “Religion Wins at the Supreme Court,” but the subhead is “Public health loses and privacy’s at risk.” Now that’s one of those give-with-the-one hand-take-away-with-the-other-hand headlines, what we’re being told with this one-two punch is that even though religious liberty one, it’s a net moral and cultural loss for the nation because what lost is public health and privacy.

So all of a sudden, we understand, there’s a lot going on here. We take a closer look. The authors are Laurence H. Tribe and Michael C. Dorf. Laurence Tribe is no stranger at all to anyone who has been interested in constitutional issues for the last generation. He is now professor emeritus at the Harvard Law School. At a certain point, say about 20 years ago or so, he was almost assuredly a Supreme Court nominee by a Democratic president, but he was considered then on the Democratic left, not so much now because the party has moved past him.

But the other problem is that by the time a Democrat have the opportunity to name a justice to the Supreme Court, Laurence Tribe was too old in the sense that every president these days wants to appoint a justice who can sit on the court for a long time. But Laurence Tribe has well-defined the constitutional left in many arguments for the better part of the generation. The other author is Michael C. Dorf, who is a professor at Cornell University. But here’s the point that they want to make they zero in on the rulings text as was evidenced in the concurring opinion by Justice Neil Gorsuch. What they accused Justice Gorsuch of doing is of basically slighting, if not reversing, a previous precedent that had been undertaken by the court in a ruling that was handed down in a case in 1905 known as Jacobson versus Massachusetts that had to do with smallpox vaccinations back in the beginning of the 20th century.

But the point that is made in this jointly written opinion piece is that the argument that was put forward by Justice Gorsuch is going to put a great many liberal gangs at risk. And what it comes down to in this case is whether or not religious liberty is just one right among other rights, or whether religious liberty and the other liberties that are explicitly guaranteed in the constitution stand over against what we would well describe as more newly invented artificial rights.

Now this comes right down to the crux of the argument. After all, you have the fact that you are looking at what these two authors call a chilling reading of what Justice Gorsuch wrote, but then comes this paragraph, “These phrases, substantive due process, bodily integrity and penumbras,” that has to do with the very language that they now say is being threatened, “they’re legal dog whistles,” said these two authors, “each is associated with Supreme Court precedents recognizing a right to privacy that encompasses contraception, abortion, child-rearing, sexual partners control over intimate, private information and determination of how one faces death. Religion, Gorsuch,” they write, “clearly implied as a genuine constitutional enshrined in the text, whereas these other rights are just made up and not entitled to similar respect.”

Now, all I can say to that is that I hope that is exactly what Justice Gorsuch meant. That’s exactly what I was describing and making a contrast between religious liberty, freedom of assembly, freedom of the press, the other enumerated rights in the text of the constitution, they are there, you can read them, they’re in the English language, they are printed right there in the text, and these newly declared artificial rights that aren’t enumerated, that is to say they are not explicitly in the constitution’s text at all, read the constitution, read it over and over again, find a reference to abortion. You know already, it’s not there. Same-sex marriage, not there. You could go down a long list of issues that aren’t there. And what you have here is the fact that, well, you don’t have to make this up. These two authors conclude their article by saying that if Justice Gorsuch’s opinion and his logic prevail on the court, we are headed right into The Handmaid’s Tale.

This is exactly the texts that they used. The authors write, “After introducing his foreign policy team last week, president elected Joe Biden proclaimed that America is back. In important respects,” they write, “that will be true come January 20. But at the Supreme Court, America,” they write, “is increasingly unrecognizable, a court that affords no protection to unenumerated rights to bodily integrity and privacy while simultaneously eroding the separation of church and state would look less like our familiar institution and more like the highest judicial authority of a place like Gilead, the theocratic and misogynist country in Margaret Atwood’s dystopian, The Handmaid’s Tale.” Well, we better move out of the country fast while there’s time.

But as you look at this article, it’s clear they mean what they say. And if you’ve been following someone like Laurence Tribe, these are the arguments he’s been making for a long time. But notice the argument he’s actually making. He’s saying here that if you’re going to have to look at rights, and a court’s going to have to adjudicate different claims of rights, then the rights that aren’t even in the constitution that had been declared by the court should be understood as being at least equal to the rights that are enumerated in the constitution. But as we shall see in the course of our consideration today, it is never equal. What we have seen in recent decades and especially right now is the fact that the newly invented rights, whether it’s abortion or the entire array under LGBTQ, they’re pressing out religious liberty, and religious liberty actually is in the text of the constitution.

So what we have here are two different ideas of dystopia, that is the opposite of utopia. Utopia is a perfect society, dystopia is a perfectly awful society. On the left, they see the situation prior to Roe v. Wade as be dystopia, that they are warning America is now about to reenter. Now, pro-life Americans hope that indeed, Roe v. Wade will be reversed and that the sanctity of human life will be affirmed. But you’ll notice here, whether you’re on the right or the left, whether you’re operating from a Christian worldview or you’re operating from a secular worldview, you have your own idea of dystopia, the question is which one do we really fear? And when it comes to the left, what they fear is that the defensive religious liberty that we’ve seen from the Supreme Court in recent years and as recently as last Wednesday, that, that’s a sign of the future, and they see that future as scary indeed.

Why? Well, it’s because they understand that the great obstacle to their own revolution and morality in society they’re pushing, the one greatest obstacle is communities of believing people. And by this, I mean theistically believing, that is religiously observant. And that means, of course, as you’re looking at the United States, the vast majority will be Christians of one identity or another. You will also have observant Jews, especially Orthodox Judaism, you will have Muslims and others who simply cannot go along with the moral revolution, that can’t go along with the demands of the LGBTQ revolutionaries. And the obstacle right now to them accomplishing just about everything they want, or at least the obstacle they see come January the 20th, is the Supreme Court of the United States.

Now another time, we’re going to come back to this issue of enumerated and unenumerated rights, but right now, we’re just looking at the lefts’ fear of the Supreme Court as the remaining obstacle, because the Supreme Court is recognizing religious liberty, and that means the rights of religious people. And I’m using the word religious here the way the court would, religious people, people who are acting on the basis of religious conviction. Now notice something else, this is a footnote in today’s conversation, but notice that just about every observant group that stands against the revolution understands the authority of a written text. You’re looking at a scriptural conviction here, but you’ll notice something else, that scriptural tradition means you look at the text as the text. And of course, believing Christians look to the Bible as the inerrant infallible word of God, verbally inspired. And thus, we also look at the U.S. constitution, not as verbally inspired, but actually as a text to be read as a text. Words matter, sentences matter, punctuation, for that matter, matters.

Part II

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Why Does the Left Have Less Affection for Religious Liberty Now Than in the Past? The New and Greater Affection of the Left for the “Rights” of the Moral Revolution

But I’m going to leave Professors Tribe and Dorf to argue amongst themselves for a few moments, I’m going to go to another article. This one appeared in yesterday’s edition of The New York Times by Bret Stephens, columnist for the newspaper. The headline of this article, “Thank You, Justice Gorsuch.” So it’s actually arguing the opposite of what had been set forth by Professors Tribe and Dorf. He makes a very interesting statement. Actually, he says, “Liberals will someday celebrate last week’s ruling for religious liberty.” The point that Bret Stephens is making is, look, liberals are annoyed by and outraged by Wednesday’s ruling, but actually, they should celebrate it, and one day, they will.

And the conclusion of Bret Stephens’s article makes clear his argument, “There is a perennial danger that rights denied or a bridge during one emergency for one class of people will ultimately be denied during another emergency for another class. The reverse is also true. The victory for conservatives and last week’s ruling will be a victory for liberals somewhere down the road. The precedent set by the ruling and the power of Justice Gorsuch’s concurrence will make the victory sweeter.” Now what’s he talking about there? Well, it’s a very real danger, and it hasn’t been articulated sufficiently in the midst of the COVID-19 pandemic. What am I talking about? I’m talking about the fact that government seizes upon opportunities, even legitimate opportunities for action, and once it extends itself into action, it almost never contracts from where it has extended itself.

Now I want to quote a democratic political strategist here who, until recently, was actually the mayor of Chicago, Rahm Emanuel, he had been a very senior officer in the administration of Barack Obama, and it was he who offered the motto as the Obama administration came into office. The motto was this, “Never let a good crisis go to waste.” Never let a good crisis go to waste. It’s sometimes been summarized, never waste a crisis. What did he mean? He meant that the recession into which the Obama administration came to office was a crisis for restructuring much of the government and society. Don’t waste a crisis, he was arguing, don’t let a good crisis go to waste. Use the opportunity of the crisis to gain other political ends, to expand the government, which was very much an agenda of the Obama administration, to put the government in where it’s never gone before, knowing that after the crisis, it will not leave.

And that’s one of the big dangers in the COVID-19 pandemic, and that danger intensifies as we go into the new year with the new administration, an administration that may well try to follow this very motto, don’t let a good crisis go to waste. Extend government, knowing that it will never contract. And that means also, extend government at the expense of certain liberties, especially religious liberty, knowing that the government’s actions in the course of the pandemic will be very difficult to reverse.

Now, that 5-4 majority on the Supreme Court made that point. That’s what we need to see. In the ruling that came down on Wednesday, Justice Gorsuch said explicitly, “The bill of rights is not suspended in the midst of a pandemic.” The Bill of Rights is still in effect, and he says that even when temporary government action is necessary, it must be temporary. And to summarize the point made by the justices in the majority on Wednesday, this has gone on too long and government is overreaching. It is reaching too far. The interesting point being made by Bret Stephens here is that even though the liberals are decrying the ruling that came down Wednesday, they should see it as to their advantage because it preserves liberty, which, after all, is what the liberals say is their animating purpose. But let’s call them on it.

And that returns us to an article that I mentioned on Monday’s edition of The Briefing. I said, we’d be back to it. And now is the right time. Kevin Baine, a first amendment attorney, had written that article in The Washington Post with the headline, asking the question, “Is Religious Freedom a Liberal or Conservative Value?” Baine wrote in his article, “To be sure, the justices who favored the injunction are generally seen as conservatives and those who opposed it are generally thought of as liberals. But what does it mean to be a liberal or a conservative when it comes to enforcing the first amendment’s guarantee of religious freedom? Don’t liberals generally have a more expansive view of the rights enshrined in the Bill of Rights? And aren’t conservatives more likely to defer to the decisions of elected officials that might be seen as curtailing those rights? That,” he argues, “was how liberals and conservatives lined up on issues of religious freedom in the last century.”

So the point that’s being made by Kevin Baine is basically that liberals should see religious freedom as their cause as well. But the fact is that, increasingly, they don’t, and they say that they don’t right out loud. That’s exactly what was behind the argument made by Laurence Tribe and Michael Dorf. But what we’re looking at here is a very interesting question. The question is why would it be that so many on the left, so many liberals in the United States, now do not see religious liberty as an authentic right, or they do not see it as a right that should be honored among others? They see it as something that may have to be forfeited or compromised. The photographer may be coerced to take photographs of a same-sex wedding. The pharmacist may be coerced to participate in euthanasia or in abortion or in contraception of some form that might cause an abortion. You have this coercion, the religious liberty is going to have to take a back seat, and that raises a host of issues.

By the way, another issue that was in that article by Laurence Tribe and Michael Dorf, and I don’t want to let that go without noting, in the list of things they mentioned as being threatened by religious liberty, they mentioned not only contraception, abortion and sexual partners, that’s all a part of the sexual revolution, they also say the determination of “how one faces death”. That’s euthanasia. So notice, it’s not just the sexual revolution, it’s the entire moral revolution.

But you put these articles together, you look at the arguments together and this flashpoint of the ruling that was handed down on Wednesday, and that raises a very interesting question. If indeed you had liberals in the United States who had traditionally affirmed and defended religious liberty, but not so much now, the question is why not so much now? Now the short answer is the LGBTQ revolution, the entire revolution with personal autonomy, contraception, yes, abortion, yes, sexual partners, as the way the professors put it, but also euthanasia, you can see the entire constellation of issues, but there’s something else. The liberals used to be very concerned about state imposition of power. But you’ll notice, now that they’re trying to drive a revolution in the culture, they want the state to coerce. They’re going to be very disappointed if the state doesn’t coerce.

Part III

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Why the Horror from the Left Over Last Week’s Supreme Court Ruling? A Clear Signal That the Supreme Court Is Not Going to Hand Over Religious Liberty Easily

But there’s another very interesting issue here, and Christians have a particular investment in thinking about this. Now, as you’re thinking about the fact that liberals used to defend religious liberty, but not so much now, the question is if they don’t support religious liberty, what are the so-called liberties or rights that they espouse now? Here’s the point. Christians understand that human beings do not go to the lesser from the greater, they always go from what they perceive to be the lesser to the greater. Christians understand that human beings never intentionally go for the thing they consider lesser when they can choose the greater. They choose the greater rather than the lesser. That’s just the way it works.

As a matter of fact, this is a picture of the Christian life. It is perhaps best been described by the theologian Augustine, the greatest theologian of the early church. And he described Christianity, the power of the gospel, as the attraction of a greater affection for a lesser. What did he mean by that? Well, in our fallen state, who do we love? Ourselves. How do we come to love God? It is because by the miracle of the gospel, we are drawn to a greater affection, an affection for Christ. An affection for Christ begins to drive out affections for other things. We have all kinds of affections. Affections for this pleasure, affections for another thing, for consumer goods, for certain habits. You go down the list.

Jonathan Edwards, the most influential and important theologian in American history, made many of the same points in his great work on the religious affections. We are not those who choose a less exciting thing rather than the more exciting thing, we choose the more exciting thing. The question is what is the more exciting thing, and is it genuinely the better thing? Christianity, the power of the gospel, comes down to understanding that there is no greater affection than what should be the creature’s affection for the creator. There is no greater affection than should be the Christians’ affection for Christ. And that greater affection drives out the lesser affections. How is it that the new creature in Christ no longer loves the things that we used to love? It is not because we just turn it on and off like a switch, it is because a greater love has taken possession of us, a greater affection has drawn us. The greater affection pushes out the lesser affection.

Why am I talking about this? Because that’s the way it works in other dimensions of life as well. The left in the United States has not decided, we don’t care about religious liberty, it’s just that they care about religious liberty less than they used to. And that shows up right in these articles. It’s implicit in the entire flashpoint that we’re experiencing right now. Now why were the left in the United States have less affection for religious liberty than they had in the past? It’s because they have a greater affection for something else. What would that greater affection be? We will be to that entire set of newly invented rights.

And I’m going to go to the accusation made by those law professors who made the argument that the Supreme Court last Wednesday indicated that it had a greater commitment to religious liberty than to the newly invented rights of the sexual revolution. And notice, that’s exactly what the Supreme Court said. In other words, I think they’re exactly right. That’s exactly what happened. Well, that then raises the question, why are you not celebrating that? And it is because the left in the United States has a new ardent affection for an entire new set of what they call rights, rights that aren’t in the text of the constitution. You’ll not find them there. You’ll never find them there. But rights that are right at the center of the left in the United States, and increasingly, the dominant culture.

These are the rights that are celebrated on the Hallmark channel, they are the rights that are absolutely trumpeted by the cultural left in the United States. These are the rights that students on our college campuses are told that are superior rights to rights like religious liberty, or for that matter, just watch what’s going on in campuses, freedom of speech. But the left is now willing, or for that matter, determined to sacrifice those old enumerated right there in the text, constitutional rights, like religious liberty, freedom of assembly, freedom of speech, because they now worship at the altar of greater rights. And by the way, they’re the rights that aren’t in the constitution but had been declared by courts in their service to the moral revolutionaries.

But as we come to a conclusion today, there’s something else we need to know. We need to ask the question, why the horror? Why this injunction that was handed down on Wednesday, this ruling, why is it such a flashpoint now? And it comes down to this. It’s a very clear signal that the Supreme Court is not going to just willingly go along with the moral revolution, the revolution that is now transforming our society from the very top to the very bottom, every dimension of our society being transformed. The Supreme Court has not reversed that revolution, but it has at least put itself in the way of that revolution. And to its credit, it has at least said, and it said so boldly on Wednesday of last week, religious liberty is right there in the constitution, the free exercise of religion, it’s there in the text. Deal with it.

And yet, just one more thing, I went back to that article by the two professors, Professors Tribe and Dorf, because they snuck in euthanasia or assisted suicide in that list of the unenumerated rights they say are threatened by the enumerated right of religious liberty, but notice something, there is as yet no decision by the Supreme Court on euthanasia or physician assisted suicide, anything like Roe v. Wade. There is no such decision. But if Laurence Tribe were on the court, well, it’d be likely there would have been such a decision. Maybe that’s the great frustration. But it’s also a signal of where this revolution is headed. It’s headed right to the grave, no pun intended. It’s right there in this text, right there in the words, and that’s where we understand as we began, so we end. Words are important. Read them.