R. Albert Mohler Jr.'s Blog, page 312

Transcript: The Briefing 04-28-15

The Briefing

April 29, 2015

This is a rush transcript. This copy may not be in its final form and may be updated.

It’s Tuesday, April 28, 2015. I’m Albert Mohler, and this is the Briefing, a daily analysis of news and events, from a Christian worldview.

1) Today marks historic day in Constitutional history with definition of marriage at stake

Today we have arrived at one of those most strategic days in American constitutional history. This is also a day that will long be remembered in America’s moral history as well. That’s because the issue at stake is nothing less than marriage. Today, before the United States Supreme Court, the issue of marriage will be argued. This is the phase known as ‘oral arguments’ in a case that comes before the nine Justices of the U.S. Supreme Court. This is the most public phase of the court’s deliberation. Other than announcing the fact that the court will take a case, and eventually when the court announces its decision in a case, the only public eye into the process undertaken by the highest court in the land are the oral arguments that will be held today. The official name of the case is Obergefell vs. Hodges and it will go down in history as a case that will often be cited. And there’s no way around the reality that today is a momentous day in the nation’s history. And that’s because Christians understand, perhaps as others cannot and certainly do not, that marriage is at the very center at our understanding of civilization itself. And we understand that to tamper with marriage is to bring grave danger and damage into human society and civilization, of which marriage is the most central institution.

So what we’re looking at today is a sobering moment. There will be arguments made, one side and then the other, before the Supreme Court. The Justices will be allowed, each in his or her turn, to ask questions. They can interrupt the counsel even in the making of arguments.

A big and very telling development is that the case that will be before the Supreme Court today is going to be argued in terms of the side for the legalization of same-sex marriage in all 50 states, at least in part the argument will be made by the Solicitor General of the United States, and that’s a very telling development in itself. And that’s because the Solicitor General, that is Donald Verrilli, will be speaking on behalf of the administration, on behalf of President Obama. The decision for the Solicitor General to make the public argument is very significant, because the administration has the choice to decide whether or not it will place itself, in effect, before the court. When the Solicitor General of the United States speaks on behalf of the administration, he or she is putting the President of the United States on the line, on one side of an issue. And this is no small issue; the issue is marriage. One of the most interesting development is that if you go back just two years to 2013 and the Windsor decision before the court, that was the case whereby the court ruled in a 5-4 decision to strike down the Defense of Marriage act, it should be very telling that in 2013 the President of the United States, the President Barack Obama, did not send the Solicitor General into the courtroom. He withheld that authority.

Now you see the sweeping moral revolution that is reshaping America, seen in the fact that not only has President Obama, to use his own word, ‘evolved’ on the issue of same-sex marriage, tellingly, along with the larger issue of that evolution, when it comes to the moral judgment of the American people, he has now evolved to the point that, just in recent months he has stated not only that he is for same-sex marriage, but that he is for the court’s ruling that it is obligatory that all 50 states allow for same-sex marriage and honor the marriages conducted in other states. The most significant symbol of that is the fact that the President of the United States is sending in the Solicitor General of the United States to make that argument. One footnote in terms of the life and work of the United States Supreme Court, if the administration chooses to intervene in a case and to place itself on one side or the other, and the Solicitor General is then sent in to make that argument, the Solicitor General then takes precedence over all other legal counsel, and gets to speak for the case for as long as he or she may wish.

The first major decision by the Supreme Court in favor of gay rights came back in 2003, and in a split decision then, it was Justice Anthony Kennedy who wrote the majority opinion, in that case, striking down any law criminalizing homosexual acts or homosexual behavior. Justice Kennedy’s opinion then, back in 2003, set the stage for the striking down of the Defense of Marriage Act in 2013. Again, that case was a 5-4 case and Justice Kennedy was the critical swing vote, and in light of that, he got to write the opinion itself. Now, everyone’s eyes are not only on the nine members of the Supreme Court, but today, the eyes of every informed observer of the court will be once again on Anthony Kennedy. That’s because on this issue it’s almost certain that there are already four votes for the legalization of same-sex marriage in all 50 states, and four votes against requiring the states to legalize same-sex marriage.

So, in a nation of about 300 million people, there are nine Justices of the United States Supreme Court. And now there is one Justice who is certainly at the very center of the arguments that are going to be made today. Jess Bravin, writing for the Wall Street Journal, states the obvious yesterday when he writes

“if the Supreme Court holds that same-sex couples have a constitutional right to marry, odds are Justice Anthony Kennedy, a Ronald Reagan appointee, will cast the deciding vote. During the past 20 years, Ravin writes, “Justice Kennedy has written all three of the court’s major gay rights opinions, each one adopted with the help of liberal Justices, despite the dissent of fellow conservatives.”

Now, says Bravin,

“with marriage arguments set for today, 78-year-old Justice Kennedy is set to cement his place as a pivotal figure in the gay rights movement.”

John Ellwood, a litigator at Vincent and Elkins, that’s one of the most influential law firms in the country (he’s also an attorney who had clerked for Justice Kennedy), he said

“I wouldn’t be surprised at all if he would like to see this one cross the finish line.”

Now, how do we look at that statement? That’s a statement, made by someone who was once a clerk to Justice Kennedy, saying that the process that we’re really looking at here is taking the issue, to use his explicit language, ‘across the finish line.’ So what’s the finish line? The finish line in terms of the issue of marriage is a sweeping Supreme Court decision that would require all 50 states to make same-sex marriage legal. One of the things we need to note is that even as that is the presenting issue to the court, in terms of the constitution, either allowing or demanding that decision, one of the issues we have to face is that the questions involved go far beyond the issue of marriage and the legal reality that is now called ‘same-sex marriage.’

Given the historic nature of the day, and the focus on Justice Kennedy, it is worth noting, as the lead paragraph in the Wall Street Journal article I cited does note, that Justice Kennedy was appointed to the United States Supreme Court by none other than President Ronald Reagan. As the Wall Street Journal points out, this indicates just how difficult it is, often, to predict how a given nominee or Justice will eventually rule on any number of issues. Once someone is on the United States Supreme Court, in a lifetime appointment, it is rather surprising to many presidents, where those they nominate to the court eventually land on crucial issues and very important decisions.

As Jess Bravin wrote,

“few at the time of his 1987 nomination expected Justice Kennedy would come to define a new front in civil rights and some gay and women’s rights opposed his confirmation.”

A very interesting development; he now has become their favorite Justice because of the outsized influence he has on these issues as the swing vote.

It is very interesting that the Wall Street Journal notes an excerpt from a decision written in the 1980’s when Justice Kennedy was not a member of the United States Supreme Court but was instead then a member of the 9th U.S. Circuit Court of Appeals. In a decision handed down then, before he came to the Supreme Court, he wrote,

“there is substantial academic comment which argues that the choice to engage in homosexual action is a personal decision entitled, at least in some instances, to recognition as a fundamental right, and to full protection as an aspect to the individual’s right of privacy.”

Former Attorney General of the United States Edwin Meese, responding to a question from the Wall Street Journal, said that Kennedy had been thoroughly vetted by the Reagan Administration, but in all likelihood, they’d looked at a decision like that and didn’t have anything like what would be called same-sex marriage even on their imagination, or their horizon. They simply didn’t see something like this coming.

But Justice Kennedy’s line of legal reasoning comes back to decisions that he did write, especially in 2003 and in 2013, both on this issue on which he was the crucial fifth vote, but in a statement very revealing of the way he understands the responsibility of interpreting the constitution, Justice Kennedy said

“if the framers knew all the specifics of a just society, they would have written them down.”

He continued…

“but they had some very strong ideas and they used words that appeal over time to our sense of justice and our sense of freedom.”

That’s a very interesting legal argument. That means that Justice Kennedy sees his role as to decide cases not so much on the language of the constitution, but in his words, some very strong ideas that are included in the constitution that are to

“appeal over time to our sense of justice and our sense of freedom.”

A truly frightening thing. And this is the issue that many people will recognize as the look back today, is that those who are making these arguments before the court are really addressing one Justice, not even the nine in this sense, and to that one Justice, they really don’t have to argue from the text of the constitution, they’re arguing over ideas. They’re arguing over abstractions from the Constitution, that in the words of the Justice, “appeal over time to our sense of justice and our sense of freedom.” We’re soon to find out what Justice Kennedy considers to be his understanding of justice and his understanding of freedom. And evidently, as we now know, that may be the deciding factor. Not the words of the constitution, but Justice Kennedy’s understanding of what is right, and what is just.

And speaking once again of those oral arguments that will take place today before the Supreme Court, three points. Number one, late yesterday news media were reporting that there were already more people waiting in line outside the court to be able to fill the some 500 or so seats inside the court to observe the day in history. One of the things we now need to note is that most Americans will have no opportunity to see the arguments being made before the United States Supreme Court. Eventually, we will be able to hear them, because later today the Supreme Court is expected to release audio of the oral arguments, and eventually there will be a transcript as well, but at this point, most of us are shut out from watching what is taking place. You’ll note the interest, more people are now in line than can possibly be accommodated in the Supreme Court’s chambers early today.

So the first point is, again, you can see the interest in the case that’s very telling, more people yesterday were in line than today could possibly be sitting in the chambers of the United States Supreme Court.

The second thing to note is that there will be no cameras allowed in court. There are some courts in the United States that allow live cameras, in terms of something like a C-SPAN apparatus, for people to be able to look inside the oral arguments of the court and to see them happening as they happen. The United States Supreme Court has steadfastly rejected arguments for cameras in its own chambers. It does not allow for even still photography of the oral arguments in terms of the proceedings of the court.

Writing an op-ed piece just a few days ago in the New York Times, attorney Jonathan Sherman said

“now is the time for the Supreme Court to open up to the public, in terms of cameras in its courtroom.”

As he writes, on Tuesday morning, that would be this morning, the Supreme Court will hear oral arguments in Obergefell vs. Hodges, the same-sex marriage case, but the proceedings won’t be broadcast on radio or television or live-streamed on the internet.

Anyone trying to follow the Justice’s questions and the lawyer’s answers will have to wait for journalists in the courtroom to tweet or blog about them. The court’s sole concession to the intense public interest in the case will be to release an audio recording of the arguments later that day, instead of later in the week, which is the custom. Sherman argues that this is unjustified, that the American people have a right to watch the oral arguments as they are taking place and peer inside the contemporaneous deliberations of the court as represented by the questions asked by the nine Justices. As he also indicates, the Supreme Court has never given a firm answer as to why it does not allow cameras in the courtroom. Anthony Kennedy did say that he didn’t want to introduce what he called an insidious dynamic that might account to lawyers reducing their arguments to soundbites. Justice Clarence Thomas once said that video coverage, according to Sherman, would compromise his colleagues’ anonymity. Former Justice David Souter once said that “the day you see a camera come into our courtroom, it will roll over my dead body.” As Sherman notes, he’s since retired from the court. Sherman argues that the public has a right to see the oral arguments as they are made, and to observe the Justices at work.

There’s an argument to be made there, no doubt. But it’s very unlikely that the current court will ever be persuaded to allow cameras into the courtroom. And the reason for that is actually something that we ought to keep very much in mind. In our constitutional system, we actually do reduce the biggest cases of law to a process in which the stewardship of those cases is invested in nine individuals who are nominated by a President of the United States and confirmed by the United States Senate. And the arguments being made by attorneys today, or any day in which the court is holding oral arguments, are being addressed to those nine individuals. Every single one of them has been invested with constitutional responsibility, and every single one of them has long has long had the legal experience that has brought them to the court. That means that as the arguments are being made, they are not being reduced to soundbites. They are not being reduced to what someone, peering into the television screen or watching on the internet might hope or expect to be said. The most important point here is that the oral arguments being made by the attorneys aren’t in that very limited, very private context, aren’t being made in order to influence the court of public opinion.

At that point, and this is a very telling issue, only virtually at that point in America’s public life, are the arguments not to the court of public opinion, but rather to a sitting court of nine Supreme Court Justices. In one sense, the major reason that cameras are not in the courtroom as much as, quite frankly, I would want to see what is going on, is that our constitutional system requires that the arguments be made to those nine individuals on the Supreme Court, and the telling reality is this and we know it: if there were cameras in that courtroom, the lawyers would be tempted, and the temptation might well be overwhelming, to argue to the public, to the court of public opinion, rather than to the Justices in terms of issues of the law. We already have far too many Justices who are far too political in terms of their understanding of the law and their role as judges. The last thing we need to do, in terms of our constitutional system, is to take any act, no matter how much we may wish for oral arguments to be visible today in this case, that would endanger the court’s constitutional responsibility, and transfer the Justices from being judges invested with a legal authority to being actors on a stage who are courting public approval and public opinion. No matter where you stand on the case today to be argued before the court, or in any other case that has come or will come before the United States Supreme Court, there is a basic issue of the Court’s stewardship and responsibility that is at stake. I really do wish that we could all see those oral arguments today. If that were the simple question, I know exactly what side I would fall on. But in terms of undermining the court as a specific constitutional body invested with a very important legal stewardship, my guess is that the court takes that seriously, which is why the do not allow cameras in their courtroom.

2) Power of media for evil evident in fueling of violence during Baltimore protests

Finally, we come to troubling, very sad headlines that point to a very similar reality and that is the power of the media. Late yesterday, violence broke out once again on the streets of Baltimore, Maryland, as police and protestors found themselves in a rather violent confrontation. You’ll recall that this goes back to the fact that a man who had been taken into custody, a relatively young African-American man by the name of Freddie Gray, in the process of his arrest, evidently suffered an injury that cost him his life. This has led to a very intense controversy. In the case of Freddie Gray, there is video coverage of a great deal of his arrest, but there are gaps and huge questions as to what has taken place. And, as was the case in Ferguson, Missouri and elsewhere, we have to call for justice to follow its course for a full investigation to be made, and for justice and human dignity for all concerned, to be valued and honored in this deliberation. We also understand that that will take some time, that is not even the major point at stake in terms of our deliberation today. It is rather that USA Today and other major media were reporting yesterday that the violent confrontation that took place between police and protestors was fueled by gangs who were themselves fueled by social media.

In one sense, the rise of social media has offered all kinds of opportunities for human relatedness that did not extend before, or at least what we might call a ‘digital relatedness.’ The social media world has also become the leading edge of communication, not only between individuals but the communication in so many ways of major news stories as they break first on Twitter and on other social media platforms long before they can actually even arrive on most television screens, for the people who are still watching those. Social media has provided opportunities for human rescue, and for the elevation of many pressing human concerns to be brought before the public, virtually instantaneously. But the story from Baltimore reminds us that social media also allowed those who had a very deadly agenda, those whose agenda is nothing other than organized evil, to use it for their advantage as well. Racial turmoil is not new to the city of Baltimore, nor to the rest of the community, and especially to the United States. This issue has erupted all to commonly in American life, especially in recent years and months. But, the thing we need to note is that gangs are also not new to the city of Baltimore, a point that was made by the editorial board of Baltimore’s leading newspaper The Baltimore Sun, yesterday.

But the arrival of social media as a tool for gangs to use in terms of communicating their agenda and communicating with each other, well, that is new. Along with the reminder that every technology arrives with a two-edged sword of the opportunity to use that technology for good, or to use that technology for evil. In a world corrupted by human sin, the reality is every new technology is likely to be seized upon by those whose intention is to do evil with it. That tells us a great deal about the human species, it tells us a great deal about sin. It tells us once again about our need for the gospel.

When I was discussing the oral arguments before the Supreme Court today, I said there were three points for us to keep in mind. The third I have reserved until the end, and that is this: above all else, what Christians need to do today is to pray; to pray for our nation, to pray for the institution of marriage, and to pray for the preservation of marriage, because we know that it’s not only that which leads to God’s glory, but also to human flourishing. We also need to pray in a way that scripture commands that we pray, for those in authority. And today the most crucial arena for those prayers is the Supreme Court of the United States, and to the nine Justices there invested with so much authority. So, as we come to the conclusion of the briefing today, let us conclude with a call to prayer. A call to prayer for the United States Supreme Court, a call to prayer for our nation, a call to prayer for the institution of marriage, a call to prayer for those Justices to appreciate, and to respect, and to uphold, and not to damage, the institution of marriage as the union of a man and a woman.

Thanks for listening to the Briefing. For more information go to my website at albertmohler.com. You can follow me on Twitter by going to twitter.com/albertmohler. For information on the Southern Baptist Theological Seminary, go to sbts.edu. For information on Boyce College, go to boycecollege.com.

As often as possible, we provide and an Ask Anything weekend edition episode, we’re taking questions right now for upcoming editions. Call in your question in your voice to 877-505-2058. That’s 877-505-2058.

I’ll meet you again tomorrow for the Briefing.

View more on R. Albert Mohler Jr.'s website »

Like • 0 comments • flag

Published on April 28, 2015 10:23

Transcript: The Briefing 04-27-15

The Briefing

April 27, 2015

This is a rush transcript. This copy may not be in its final form and may be updated.

It’s Monday, April 27, 2015. I’m Albert Mohler and this is The Briefing, a daily analysis of news and events from a Christian worldview.

1) In aftermath of Nepal quake moral evil mixed with natural evil

Sometimes, as we are regularly reminded, nature turns deadly. That was the case over the weekend. The epicenter was the nation of Nepal and it was the epicenter of a very deadly earthquake. According to the Richter scale this earthquake measured about 7.8, placing it among the most powerful and devastating in recent world history and it’s not just the earthquake itself. That original killed at least 2,400 people and injured about 7,000 others. But that is not at all the end of the story.

Nepal and its capital, Kathmandu, have now been shaken by a series of aftershocks, some of which taken by themselves would amount to major earthquakes of devastating potential. But Kathmandu is bracing itself for aftershock after aftershock. And as the Washington Post reports,

“Nepal’s capital became a city of whispers and rumors on Sunday as residents hunkered down outdoors, in tents and cars, and its recurring aftershocks from Saturday’s earthquakes kept everyone on edge fearing another big quake.”

But one of the things we need to note here as we’re praying for the people of Nepal and hoping for the suffering and the casualties to be limited beyond what we know now, one of the things that so often appears is that moral evil gets mixed in with what we theologically define as natural evil. That’s found in the very second paragraph of the Washington Post‘s front page story. I’ll read this description,

“Food and water supplies ran low. Price gouging began. Electricity was intermittent. Rescuers battled to make it to residents of remote villages as well as climbers on Mt. Everest to save those still stranded more than 24 hours after the catastrophe. They continued culling victims out of the rubble sometimes with their bare hands.”

So you’ll note that the origin of this in terms of the immediate catastrophe was a natural disaster. It was an earthquake. No one planned it. No one even saw it coming. And that earthquake, a natural disaster, a form of what is called, natural evil, was followed by another form of evil, moral evil and that comes in that second paragraph with reports that price gouging has already begun and there are opportunists taking advantage even of their fellow victims of the earthquake.

What we look at here from a Christian perspective is the fact that Christianity alone, the biblical worldview alone, ties together what is called natural evil and moral evil. That’s because, according to the Bible, natural evil itself is the result of moral evil. Now here’s where we have to think very, very carefully and speak very, very cautiously. We are not saying that anyone’s sin in Nepal brought about this earthquake. We are saying that the sin of Adam and Eve, according to the Scripture, which was as Adam was our federal head, the sin for all of us, by all of us, that what happened in terms of God’s judgment upon that sin was judgment upon the cosmos and that has come with cosmic moral significance. It has brought about earthquakes and hurricanes. It has brought about tumors and all kinds of calamities and thus the Biblical worldview alone explains that seen in that light all evil, all things that come to us with evil consequence, have their ultimate origin in sin and in God’s judgment upon sin.

But we have to be very careful here. We’re not talking about a tsunami, an earthquake. We’re not talking about a volcanic eruption that is tied to some specific sin by some specific people living in a specific place that brought this kind of natural disaster upon themselves.

The Scripture itself warns us from making any kind of very easy superficial analysis of this kind of disaster. Rather we should understand that what we’re looking at here is a reminder of Genesis 3. What we’re looking at here is a reminder of Romans 8 where we are told that the entire creation is groaning, waiting for the appearance of the sons of God and where we look to the very end of the Bible, the very last book of the Bible for the vision of a new heaven and a new earth that is coming where we will not have to fear earthquake, where we will not have to fear tsunami, where we will not have to fear volcanic eruption. But in this world we do have to fear such things and in some parts of the world they have to fear them even more than in other parts, specifically there are some parts of the world that have to fear monsoon where others do not. There are some parts of the world that have to face the horror of recurrent drought while others do not. There are places that are more endangered by earthquake than others according to the great fault lines of the world.

And in Nepal, now you have ground zero for one of the most crucial human disasters of recent times. A massive earthquake, 7.8 on the Richter scale that, by the way, demonstrates the power of nature in a way that many people might not even have been able to calculate before. That’s because in one of the strangest and most deadly aspects of this story, at least 20 climbers who were climbing Mt. Everest have died because even this earthquake was able to shake what is often identified as the tallest mountain on planet Earth.

In one of the signs of the power of this earthquake the Washington Post reports that its effects were almost immediately felt as far away as New Delhi in India, indicating that on the surface of the earth there is a set of plates in which this kind of tremor can be felt from one end to the other. And that’s an affirmation of the fact that even though we often claim to be standing on solid ground, the earth beneath our feet is not nearly so solid as it looks. We’ll be praying for the people of Nepal even as we are hoping for an international aid effort that will be able to reach people in time.

2) Power of Chile volcano eruption reminder of power and wisdom of Creator

Meanwhile, while we’re speaking of nature in the Biblical worldview, one of the most powerful demonstrations of the power of nature came last week with the eruption of a major volcano in Chile. The volcano is known as Calbuco, and it erupted last week in a way that was totally unexpected after having been rather quiet for almost 40 years. It erupted with spectacular force about the middle of the week and by the end of the week video was getting out to almost all the ends of the earth that was demonstrating what many people had heard about in generations past but had never been able to see, even by means of video, and that was the eruptions of one of the most powerful volcanoes on earth.

We can be thankful that there has been no loss of life thus far from the eruption of Calubco largely because the area around it is so sparsely populated. But if you see that video you will see one of the things that simply baffles the human imagination. How can a mountain, a great mountain with snow on it’s top as Calbuco, erupt with such horrifying force, sending cubic miles of material by some accounts into the atmosphere with a column of smoke that went up about 11 miles disrupting international aviation and with an electronic valance that was so powerful that lighting erupted from within the smoke of the volcano, not because of a thunderstorm but because the volcano itself had created an electronic storm.

All this affirms to Christians that we are awaiting a new heaven and a new earth but it also affirms the power of the Creator and his wisdom and his character as reflected in the creation he has made. As we see in the book of Job 38, as the Lord himself spoke unto Job beginning in verse 22,

“Have you entered the treasury of snow or have you seen the treasury of hail which I have reserved for the time of trouble for the day of battle and war? By what way is light diffused or the east wind scattered over the earth?”

Those are the questions that God asked Job. Those are the questions the creator asked the creature. Where were we when these things happened? We did not yet exist but God did and he made all this to his glory and he is showing his character even in the events of what people around us call the natural world.

3) Oral arguments before Supreme Court great moral event of our age

Speaking of moral issues, tomorrow we now know will be one of the most important days in the constitutional history of the United States of America. It will be one of the most important days in the moral history of our nation as well. That’s because tomorrow before the United States Supreme Court oral arguments will be held on the issue of same sex marriage. The questions, and there are two questions presented to the court, have to do with whether or not the constitution guarantees a right of same sex people to get married in all 50 states.

The second question is whether or not the constitution requires same sex marriages declared to be legal in one state to be recognized in all other states. Tomorrow is going to be a day of history. It will not decide the issue. That’s because the high court is expected to rule on this issue by the last business day of June. The intervening weeks will afford the court the opportunity to consider the arguments made tomorrow and then frame the eventual decision and the opinions on one side and the other that are expected.

Richard Wolf, writing the cover story for USA Today over the weekend tells us that gay marriage is expected to face a court victory by the time the court rules late in June. But the headline of his article was this, Gay Marriage’s Long Road to Court. Wolf offers a very interesting report in which he goes back 45 years to what he calls a decision in the making. As he writes,

“When lawyers for the American Civil Liberties Union filed the first federal lawsuit in 1970, seeking same sex marriage rights they were almost laughed out of court.”

James Esseks, who directs the ACLU gay rights project, said,

“That did not work out well.”

When Evan Wolfson submitted his 140 page, 710 footnote, Harvard Law School thesis entitled, Same Sex Marriage and Morality, in 1983, according to Wolf,

“Evan Wolfson was a lonely voice. Unfortunately, the court and particularly the Supreme Court have often lagged far behind the changes of society.”

Now that raises a very interesting point. Where are those changes in society and is indeed the Court lagging behind? Now one of the things we should note right up front is that that isn’t even a constitutional question. The question of whether the Court is behind public opinion isn’t an issue of constitutional interpretation; that’s a matter of pragmatic judgment, that’s a matter of political judgment. But it should tell us just about everything that that’s the question that leads in the very early paragraphs of Richard Wolf’s article having to do with the oral arguments to be held tomorrow.

So Richard Wolf goes back 45 years to 1970. He then writes,

“…when a trial judge in Hawaii delivered the first court victory for same-sex marriage in 1996, lawmakers and voters banned the practice, leading the state Supreme Court to dismiss the case. Nearly 5,000 miles away, Congress and President Bill Clinton felt sufficiently threatened to enact the federal Defense of Marriage Act.”

But, he says now,

“As the Supreme Court prepares to hear oral arguments Tuesday in a case that appears likely to give gays and lesbians a constitutional right to marry, the pace of change may seem like a race to the altar. In truth, it’s been a very long courtship.”

Now we need to step back just a moment. He’s claiming that this is a very long process but even if you go back to 1970 or to 1972, he goes back to both of those years, even if he goes back 43 or 45 years, as has been often noted, in terms of the great moral landscape of world history you’re talking about something like the blink of an eye. It’s not very long at all.

When you measure the revolution over same sex relationships and same sex marriage over against similar moral revolutions – and quite honestly there aren’t that many of that scale in human experience – you’re looking at the fact that this one is operating at lightning speed. And Richard Wolf’s article basically makes that point even as he argues, rather perceptively in this dimension, that most Americans will believe that this is just all of a sudden erupted. He makes a point, it hasn’t. This has been an issue that has been in the formation and in the framing for some time now, in the public opinion and also in the courts.

When it comes to the revolution in the courts and in the larger culture, Richard Wolf writes,

“A patient legal strategy, a savvy public relations campaign, and superior financing and organization have propelled the gay marriage movement past an outgunned and underfunded opposition.”

Now one of the things to note just in terms of that sentence is the fact that so many people who are now behind the momentum for same sex marriage say that there was no organized agenda. They say there’s no such thing as a gay agenda. They say there is no such thing as some kind of political agenda to get same sex marriage legalized and homosexuality normalized.

But in this front page article in USA Today, Richard Wolf says, ‘Oh yes there was.’ And he credits it organizationally to several issues including, let’s go back, “To a patient legal strategy, a savvy public relations campaign, and superior financing, and organization.” He says those things, I repeat again, have propelled the gay marriage movement past a movement he describes as “Opposition that was outgunned and underfunded.” That he says the next words are very crucial,

“…and having the Constitution on its side, according to dozens of state and federal court judges who have struck down same-sex marriage bans over the past 16 months.”

Now no one is arguing with a straight face that same sex marriage is addressed in any direct way in the constitution. Instead, the argument made honestly is that we are now seeing judges interpret the constitution to imply and to include a right of same sex marriage that was never envisioned by the framers of the constitution nor even by the same court just a matter of less than a generation ago.

Wolf makes that very point whether he intends to or not when he cites the ruling that was handed down by Federal District Court Judge Robert Shelby in 2013. He was sitting in Utah when he wrote in his decision,

“It is not the constitution that has changed, but the knowledge of what it means to be gay or lesbian.”

That in itself is an extremely revealing statement. We’re really not talking about the interpretation of the constitution as a text. We’re talking about the interpretation of constitutional law as a servant to one moral agenda or another.

Richard Wolf also makes a similar point by going back to the year 1972 when, as he writes, judges faced a similar question. They dismissed a case brought by two gay men from Minnesota in one sentence,

“For want of a substantial federal question.”

In other words, using the very words of the Supreme Court itself back in 1972 a majority of the justices dismissed the very idea of same sex marriage saying that the federal government didn’t even have an interest in the issue. Now the judges on the United States Supreme Court are likely to say that the federal government not only has an interest but that the constitution now validates same sex marriage and may, according to expectation, require it in all 50 states.

Of course Wolf also goes back to the year 2013 and the Supreme Court’s ruling in the case known as Windsor in which it struck down by a narrow majority the federal government’s Defense of Marriage Act. Wolf credits that decision, just about two years ago, as beginning what he calls the second wave of this moral revolution, the wave that is leading to the oral arguments tomorrow and to the expected decision by June by the very same court.

What has happened in two years? Well, nothing that we weren’t warned would happen. As Wolf also goes to Justice Antonin Scalia, we’ve often quoted him on this, who said back in his dissent in 2013,

“No one should be fooled. It’s just a matter of listening and waiting for the other shoe.”

That other shoe, according to Scalia, is the legalization of same sex marriage. That’s what’s now looming before the Supreme Court tomorrow.

4) Cincinnati’s shift on gay marriage civic example of evaporation of moral traditionalism

And speaking of this moral revolution, you can count on the fact that our cultural conversation this week is going to be dominated by the question of same sex marriage and that’s because the signal event of the oral arguments before the United States Supreme Court, that event will signal to the entire culture that this is now the frontline issue and virtually everyone is going to be talking about it just because of the oral arguments. The way we talk about the issue may be significantly modified in terms of the contemporary challenge by what happens before the court tomorrow morning. Our very conversation about same sex marriage will be informed by what happens before 9 justices of the United States Supreme Court in a matter of less than 24 hours, by the time tomorrow gets underway.

But the moral revolution has its centers of tremendous influence and one of those turns out to be the city of Cincinnati. I went there just a matter of about two weeks ago to participate in a media event in a forum on the issue of marriage with same sex marriage very much at the forefront. The reason Cincinnati was so important is because the lead plaintiff in the case to be held before the Supreme Court tomorrow morning is from Cincinnati. One of the most important issues at stake in the decision has everything to do with the story that begins in Cincinnati.

When I was in Cincinnati I spent some time speaking to Sheryl Gay Stolberg of the New York Times and her front page article on the issue appeared dateline Cincinnati of the front page of yesterdays, that is Sunday’s edition of the New York Times and the article is really important because Cincinnati is really important. Behind Cincinnati is a big story and that story tells us a great deal about how this moral revolution has taken place because Cincinnati has been, even until very recent times, one of the most morally conservative major cities in the United States.

Cincinnati has a very long heritage of German Catholicism. It has a very long heritage of moral conservatism and Cincinnati in the 1990’s became one of the most significant centers of controversy over the gay rights movement precisely because it took a very conservative stance outlawing any special rights, as they were then defined, for those who are defined by sexual orientation.

Stolberg writes that Cincinnati’s role in this constitutional and moral drama by saying that Cincinnati has become an illustration of,

“…how far the gay rights movement has come in one of the most traditionally conservative corners of the Midwest.”

She goes on to write,

“As recently as 2004 — the same year Ohio adopted its same-sex marriage ban — Cincinnati was the only city in the nation whose charter expressly barred ordinances related to gay rights; critics called it ‘the most anti-gay city in America.’ Today Cincinnati has its first openly gay city councilman, and leaders market the city as friendly to lesbians, gays, bisexuals and transgender people.

“The city has a domestic partner registry and recently extended ‘transgender inclusive’ health benefits, including hormone therapy and sex reassignment surgery, if a doctor deems it medically necessary, to city employees.”

Cincinnati’s place in the culture war, she points out, dates at least to the 1960’s when it was a local obstetrician by the name of Dr. John C. Willke, that helped found the anti-abortion movement nationally. Cincinnati was also ground zero for limitations upon pornography, including the fact that Larry Flint, the publisher of Hustler Magazine, was convicted on obscenity charges in Cincinnati in the year 1977.

And as we so often have to remark, that was then, this is now. Now Cincinnati is on the forefront of the moral revolution largely driven by two factors that appear in this story. One of them is the influence of corporate American, in particular the consumer products giant, Proctor & Gamble, headquartered there in Cincinnati. Proctor & Gamble put huge pressure on the city to change its policies in a very gay friendly direction.

The other big change is demographic, as Stolberg tells us, the city itself has undergone significant demographic change. Conservatives, including moral conservatives have increasingly moved out of the city into the suburbs and the city itself, like so many other major metropolitan areas in the United States has trended increasingly libertarian and morally and politically liberal.

For that reason, if you’re looking at the great moral revolution, this great revolution in moral worldview that’s taking place around us, a revolution that began in worldview before it ever reached the crucial issues of morality including same sex relations and same sex marriage. If you’re looking for evidence of how that revolution took place it’s hard to come up with any better civic example than the city of Cincinnati because Stolberg is exactly right. Even as Cincinnati itself is now playing a leading role in this constitutional drama over same sex marriage the really interesting thing is that it began as such a morally conservative city even in the beginning of this revolution but it has been transformed.

As I said, I was asked by the reporter to address this issue when she was in Cincinnati to cover the marriage forum where I spoke and she cites me in this article in which I said, she cites me correctly,

“If this kind of moral change can happen in Cincinnati, it can happen anywhere.”

That’s the real lesson here. Or at least it’s one major lesson. If it can happen in Cincinnati, it can and will happen anywhere. We’re watching a city that had been known as a bastion of moral conservatism transform right before our eyes and what’s really interesting here is the world view point that it reveals because the moral conservatism of the city of Cincinnati had a very great deal to do with its theological and spiritual heritage. With the heritage of the Christian moral tradition is represented in that German tradition of Catholicism that had so dominated Cincinnati’s life for a very, very long time.

Perhaps that is the big lesson here. That kind of moral traditionalism isn’t going to survive without a robust Biblical and theological conviction and commitment behind it. If this can happen in Cincinnati, it can happen anywhere including in places that might pride themselves as being right in the center of the so-called Bible belt. If it’s merely cultural Christianity, if it’s merely moral traditionalism, it will crumble and it will fail. If it’s merely cultural Christianity, if it’s merely moral traditionalism then that will crumble and collapse right before our eyes. It may do so in a very big way tomorrow morning. Even as the date line on those stories will be Washington D.C. we know that Washington is not alone in terms of this revolution. When it reaches cities like Cincinnati it will reach virtually anywhere and everywhere.

Thanks for listening to The Briefing. For more information go to my website at AlbertMohler.com. You can follow me on Twitter by going to twitter.com/albertmohler. For more information on The Southern Baptist Theological Seminary go to sbts.edu. For information on Boyce College just go to boycecollege.com.

I’ll meet you again on Monday for The Briefing.

View more on R. Albert Mohler Jr.'s website »

Like • 0 comments • flag

Published on April 28, 2015 08:57

In Defense of Marriage, the Rule of Law, and Ordered Liberty

Today, the Supreme Court of the United States will hear oral arguments in the case known as Obergefell v. Hodges. The decision in this case will eventually determine the legal definition of marriage in the fifty states. Few issues loom so large over the nation’s future. Christians should pray for the nine justices of the Supreme Court today, aware of the magnitude of the issues before the Court. Love of neighbor also means that we pray that marriage be honored as the union of a man and a woman. Given the question before the Court, readers will find below an updated essay on the appellate court decision that set the stage for the main case to be heard today.

Some arguments just have to be made, and made well. In the case of the United States Court of Appeals for the Sixth Circuit, the moment for such an argument arrived late in 2014 when that court had to rule on appeals over the question of same-sex marriage coming from the four states in its federal jurisdiction, Michigan, Ohio, Kentucky, and Tennessee. In each case, Federal District Courts had struck down measures banning same-sex marriage. The question then loomed before the three judge panel of the Sixth Circuit. That court’s decision set the stage for the oral arguments that will take place at the Supreme Court of the United States today.

Until the Sixth Circuit’s decision, no federal appeals court had ruled against same-sex marriage in the aftermath of the U. S. Supreme Court’s 2013 Windsor decision striking down the federal government’s Defense of Marriage Act [DOMA]. That changed when the panel of the Sixth Circuit, in a 2-1 decision, affirmed the measure limiting marriage to one man and one woman in the four covered states. The decision sent shock waves throughout the nation.

The panel had indicated its impatience with arguments put forth by proponents of same-sex marriage when the case was heard months ago, but the decision came even after the Supreme Court on October 6 had refused to accept an appeal from states that had seen their defense of natural marriage go down to court challenges. The nation was watching for the decision from the Sixth Circuit, and when the decision came down at the end of last week, the ruling instantly became headline news.

But, important as the decision was in itself, the larger event was the opinion released for the majority by Judge Jeffrey S. Sutton. Judge Sutton is known for his eloquent prose and forceful argumentation. The opinion was a blockbuster in terms of forceful argument. Judge Sutton’s opinion is a triumph of constitutional argument and the defense of common sense. It is a masterpiece of logic and a compelling argument for the rule of law.

Even though Judge Sutton knew that the U S. Supreme Court appears to be determined to legalize same-sex marriage, his responsibility, with the other judges on the panel, was to decide the cases in light of the U S. Constitution and the rule of law. Once the decision was made, it was Judge Sutton’s responsibility to write the opinion, and he did.

He began by noting the speed of the moral revolution that has produced same-sex marriage in many U S. states, mostly by judicial action. “From the vantage point of 2014,” he wrote, “it would now seem, the question is not whether American law will allow gay couples to marry; it is when and how that will happen. That would not have seemed likely as recently as a dozen years ago.”

He continued: “For better, for worse, or for more of the same, marriage has long been a social institution defined by relationships between men and women. So long defined, the tradition is measured in millennia, not centuries or decades. So widely shared, the tradition until recently had been adopted by all governments and major religions of the world.”

The first major argument presented by Judge Sutton had to do with the fact that the issue is now being decided in the courts. He clearly rejected the idea that a handful of judges should “make such a vital policy call for the thirty-two million citizens” who reside within the Sixth Circuit. That is a rare and refreshing statement of judicial humility. Furthermore, Judge Sutton cited the decision of the Supreme Court in 1972 to refuse to take a case about same-sex marriage from Minnesota, stating that the issue did not raise “a substantial federal question.” The Supreme Court may revisit that judgment, Judge Sutton noted, but it has not. Until then, he advised, lower courts are to be confined by that decision.

Windsor, Judge Sutton argued, did not address that decision [Baker v. Nelson], and thus the judgment of the Court stands. As he noted, this has not prevented other federal courts from ignoring the precedent. Some of those other courts cited “doctrinal developments” in making their decisions to strike down state provisions limiting marriage to a man and a woman, but Judge Sutton advised that such a reading of “doctrinal developments” apart from a clear Supreme Court ruling would be “a groundbreaking development on its own.”

In making his second major point, Judge Sutton argued that the original intention of the framers of the Constitution’s language would support the claim that the states have the right to define marriage as the union of a man and a woman. “Nobody in this case,” he argued, “argues that the people who adopted the Fourteenth Amendment understood it to require the States to change the definition of marriage.”

Furthermore, he argued, the Supreme Court ruled just last year by making the same logical argument. In the case Town of Greece v Galloway, the Supreme Court held that Greece, New York was acting within constitutional bounds when it began its town council meetings with prayer. The Court ruled that the framers of the Constitution would not have understood themselves to violate the Constitution when they opened their own sessions with prayer, as both the House of Representatives and the Senate do even today. Similarly, Judge Sutton ruled that the framers of the Fourteenth Amendment clearly did not see that language as requiring states to legalize same-sex marriage.

Then came the third argument presented by Judge Sutton — and it is cased within one of the most important sentences written by any judge in recent times: “A dose of humility makes us hesitant to condemn as unconstitutionally irrational a view of marriage shared not long ago by every society in the world, shared by most, if not all, of our ancestors, and shared still today by a significant number of the States.”

That is a stunning sentence . . . stunning in the larger sense simply because it is so breathtakingly clear and honest.

In his fourth argument, Judge Sutton argued that the biological basis of natural marriage, based in the complementarian nature of the male-female union, is a natural and lawful concern of the state. The state is within its proper domain in defining and limiting marriage to the uniquely procreative union of a man and a woman. A society has the right, he stated, to establish ground rules for marriage “and most especially a need to create stable family units for the planned and unplanned creation of children.”

Then came this strategic paragraph:

“What we are left with is this: By creating a status (marriage) and by subsidizing it (e.g. with tax-filing privileges and deductions), the States created an incentive for two people who procreate together to stay together for purposes of rearing offspring. This does not convict the States of irrationality, only of awareness of the biological reality that couples of the same sex do not have children in the same way as couples of opposite sexes and that couples of the same sex do not run the risk of unintended offspring. This explanation, still relevant today, suffices to allow the States to retain authority over an issue they have regulated from the beginning.”

In his fifth argument, Judge Sutton asked why marriage is still to be defined in terms of monogamy. “If it is constitutionally irrational to stand by the man-woman definition of marriage, it must be constitutionally irrational to stand by the monogamous definition of marriage,” he stated. He also recorded that in the oral arguments the attorneys arguing for same-sex marriage had been unable to answer his question. They could not, he stated, because the only argument they could advance was moral tradition. They could not cite moral tradition as the authority for monogamy because they argued that moral tradition was not a rational basis for law when it came to limiting marriage to a man-woman union. Judge Sutton also noted that the Supreme Court has not defined any “fundamental right” for same-sex couples to marry.

Finally, Judge Sutton delivered a major blow for legal sanity when he directly addressed the argument that judges should interpret the Constitution as a “living” document, recognizing the evolution of moral judgment in the larger society. As Judge Sutton argued, and argued eloquently, if society is really evolving on this issue (as he conceded that it is), then the advocates of same-sex marriage should allow the democratic process to work. If morality is really evolving, then the matter will be settled democratically on the basis of the new morality. The only justification for going to the courts to deal with the issue is a lack of confidence that the society is actually evolving on the question. Furthermore, Judge Sutton argued, the “living constitution” arguments really rest on the evolving judgments of judges, not of the people. “The theory of the living constitution,” he asserted, “rests on the premise that every generation has the right to govern itself. If that premise prevents judges from insisting on principles that society has moved past, so too should it prevent judges from anticipating principles that society has yet to embrace.”

Once again, a refreshing statement of judicial candor and humble clarification.

Then, Judge Sutton offered an even more powerful assertion: “If, before a new consensus has emerged on a social issue, federal judges may decide when the time is ripe to recognize a new constitutional right, surely the people should receive some deference in deciding when the time is ripe to move from one picture of marriage to another.”

The ruling by the panel of the Sixth Circuit set the stage for the arrival of the issue once again at the United States Supreme Court As Judge Sutton indicated in the opening section to his opinion, he fully expected the Supreme Court to rule in favor of same-sex marriage. In his opinion, he made clear that this would be a mistake and a violation of the Court’s own logic. More importantly, Judge Sutton made clear that he believes that any straightforward reading of the Constitution in terms of its original meaning would allow the states to regulate marriage and to protect natural marriage as the central organizing principle of human society.

Judges who have ruled against state measures limiting marriage to a man and a woman have acted recklessly, as Judge Sutton’s powerful opinion demonstrates, imperiling both the rule of law and the institution of marriage.

These judges, Judge Sutton reveals, have substituted their own moral judgment for the rule of law. Some years ago, the late Supreme Court Justice Thurgood Marshall told a group of his clerks that this was precisely his legal philosophy. “You do what you think is right and let the law catch up,” Justice Marshall advised.

That is not a statement that honors the rule of law. It is a statement of judicial imposition. Judge Sutton’s opinion represents a very different philosophy of law, and one that will stand the test of time, even if it does not stand the test of appeal.

Sometimes the right argument just has to be made, even if it does not win at any given hour. The truth will stand the test of time, and Judge Sutton deserves our gratitude and respect for making an argument in defense of both marriage and the Constitution — and for making it so well.

I am always glad to hear from readers. Just write me at mail@albertmohler.com. You can follow me on Twitter at www.twitter.com/albertmohlerDecision and Opinion: The United States Court of Appeal for the Sixth Circuit, April DeBoer, et al v. Richard Snyder, et al. Originating Case No. : 2:12-cv-10285 Link: http://sblog.s3.amazonaws.com/wp-cont... from Justice Thurgood Marshall, see Deborah L. Rhode, “Letting the Law Catch Up,” Stanford Law Review, vol. 44, (Summer 1992), pp. 1259-1265. Link (restricted access): http://www.jstor.org/discover/10.2307...

View more on R. Albert Mohler Jr.'s website »

Like • 0 comments • flag

Published on April 28, 2015 02:00

In Defense of Marriage, the Rule of Law, and Ordered Liberty

Today, the Supreme Court of the United States will hear oral arguments in the case known as Obergefell v. Hodges. The decision in this case will eventually determine the legal definition of marriage in the fifty states. Few issues loom so large over the nation’s future. Christians should pray for the nine justices of the Supreme Court today, aware of the magnitude of the issues before the Court. Love of neighbor also means that we pray that marriage be honored as the union of a man and a woman. Given the question before the Court, readers will find below an updated essay on the appellate court decision that set the stage for the main case to be heard today.

Some arguments just have to be made, and made well. In the case of the United States Court of Appeals for the Sixth Circuit, the moment for such an argument arrived late in 2014 when that court had to rule on appeals over the question of same-sex marriage coming from the four states in its federal jurisdiction, Michigan, Ohio, Kentucky, and Tennessee. In each case, Federal District Courts had struck down measures banning same-sex marriage. The question then loomed before the three judge panel of the Sixth Circuit. That court’s decision set the stage for the oral arguments that will take place at the Supreme Court of the United States today.

Until the Sixth Circuit’s decision, no federal appeals court had ruled against same-sex marriage in the aftermath of the U. S. Supreme Court’s 2013 Windsordecision striking down the federal government’s Defense of Marriage Act [DOMA]. That changed when the panel of the Sixth Circuit, in a 2-1 decision, affirmed the measure limiting marriage to one man and one woman in the four covered states. The decision sent shock waves throughout the nation.