R. Albert Mohler Jr.'s Blog, page 315

Transcript: The Briefing 04-30-15

The Briefing

 

April 30, 2015

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

 

It’s Thursday, April 30, 2015.  I’m Albert Mohler and this is The Briefing, a daily analysis of news and events from a Christian worldview.

1) Tragedy of Baltimore points to breakdown of trust and family in society

President Obama pointed to the streets of Baltimore declaring that the nation now faces what he called a ‘slow rolling crisis.’ The streets of Baltimore, Maryland are a bit calmer and quieter than they were earlier this week. Violence erupted on the street, including serious injuries to several Baltimore police officers, and as late as yesterday evening firefighters in the city were saying that they were reluctant to answer fire calls because of the threat of violence against themselves on the central core streets of Baltimore.

One of the things that looms in the background of this is yet another unexplained arrest and a death after that arrest. In this case the 25-year-old young man who was arrested, an African-American young man, was Freddy Gray and somewhere after his arrest he suffered an injury to his spinal column that led to his death. That led to controversy, immediate protests, and even violence on the streets of Baltimore – a violent pattern that is highly revealing of where we now stand as a nation.

There were riveting scenes that came from the streets of Baltimore earlier this week. One of those scenes was a burning of a CVS drugstore after it had been looted by protesters on the street, it was then set fire. And as the Wall Street Journal reported,

“Hundreds of people gathered at a West Baltimore corner Tuesday where a CVS pharmacy stood empty and charred from Monday’s riots. In a building next door, a dozen senior citizens watched the news and wondered where they would now buy their groceries and prescriptions.”

One of the aspects that is most depressing about this is that the people who were doing the protesting and the looting, in this case also the arson, were basically doing damage to their own community. They were burning down a CVS store that was a vital asset in their own community. That leads to some of the most revealing insights that come out of the situation there in Baltimore.

President Obama in his statements directed towards the situation in Baltimore said what you would expect a President of the United States to say: he condemned the protesting in the streets and especially the violence and the looting. But he also referred to again what he called the nation’s slow rolling crisis, going all the way back to the incident in Ferguson, Missouri in 2014. Now, the President said, the nation is going to have to confront the serious issues that underlie the violence in the streets of Baltimore. But the most immediate concern is ending the violence that is taking place in that Maryland city.

The President said that his thoughts were with the police officers who had been injured in the violence on Monday night. He also pointed to what he called,

“…too many instances of what appears to be police officers interacting with individuals, primarily African-American, often poor, in ways that raise troubling questions.”

That’s when the president said,

“…this has been a slow-rolling crisis.  This has been going on for a long time.  This is not new, and we shouldn’t pretend that it’s new.”

I have defended President Obama’s responses in so many of these very tragic incidents because he is speaking as virtually any President of the United States would be required to speak. But even as the President has said these words and even as he said the nation needs to address these issues, not even the President has offered a plan for how exactly these issues are to be addressed. And that points to one of the most basic insights the Christian worldview should bring to the situation.

We’ve often discussed the fact that politics and economics require a certain level of trust, society itself – civilization – is an achievement and it requires a certain level of trust. What you see, in terms of the pathologies that are being played out before the nation’s eyes in Baltimore, is a breakdown of that basic structure and order that depends on trust. And the trust is broken down not only in the streets of Baltimore, but elsewhere.

But the New York Times yesterday ran a very instructive graphic showing pattern of economic poverty and of shortened life expectancy block by block and neighborhood by neighborhood in Baltimore. And one of the things the New York Times shows is that there is a very clear concentration of those two pathologies – of low life expectancy and of increased unemployment and poverty – in the very areas where the violence has been breaking out in that city, and the very neighborhood were Freddy Gray was arrested.

The violence has come with a very high toll. Just in terms of the report that came in yesterday’s Wall Street Journal, city officials said that fires had consumed 19 buildings and 144 vehicles while at least 20 police officers had been injured and 235 people had been arrested. As the Wall Street Journal said on Tuesday,

“…shop owners covered storefronts with plywood, and many residents swept debris from streets. The acrid smell of charred vehicles and buildings hung in the air.”

That’s the kind of picture that we would hope would never characterize any city or any neighborhood in America, but it has and it has repeatedly so in recent months.

The editorial board of the New York Times on Wednesday suggested that the problem was at least twofold. They also went to President Obama’s comments. The editors wrote,

“President Obama has condemned as inexcusable the looting and arson that spread across the face of the city after of Mr. Gray’s funeral. But he also implied that the Baltimore Police Department had ‘to do some soul-searching.’ Indeed it does: A well-documented history of extreme brutality and misconduct set the stage for just this kind of unrest.”

The editors also pointed to the President when they said, that the response would,

“…require not only new police tactics but new policies aimed at helping communities where jobs have disappeared, improving education and helping ex-offenders find jobs”

That was the editorial board of the New York Times. The editors of that paper have been pressing an urban agenda identified with the term progressivism for the better part of the last half-century. And the editors now say that in response, the same kind of combination of government action and of reforms of the law will need to take place. As if in response, the editorial board of the Wall Street Journal pointed to the violence on the streets of Baltimore and called it a severe indictment on that very progressivist vision of America’s urban cities.

The editors of the Journal pointed to the progressivists and said,

“This model, with its reliance on government and public unions, has dominated urban America as once-vibrant cities such as Baltimore became shells of their former selves. In 1960 Baltimore was America’s sixth largest city with 940,000 people. It has since shed nearly a third of its population and today isn’t in the top 25.”

The editors go on to describe the dysfunctions of the ‘blue-city model’ as they call it,

“The dysfunctions of the blue-city model are many, but the main failures are three: high crime, low economic growth and failing public schools that serve primarily as jobs programs for teachers and administrators rather than places of learning.”

The same charts that the New York Times showed when it comes to low life expectancy and high poverty it can be correlated also with something else that is very important from the Christian worldview and that is the breakdown of the family.

Now this leads to another very interesting exchange when it comes to the question of the relationship between the absence of fathers and the violence that took place on the streets of Baltimore. Philip Bump writing for the Washington Post pointed to comments that had been made by Sen. Rand Paul, a declared candidate for the Republican presidential nomination, when he pointed to what he called,

“The breakdown of family structure, the lack of fathers, the lack of sort of a moral code in our society.”

Paul went on to say,

“This isn’t just a racial thing; it goes across racial boundaries.”

That is profoundly true. This isn’t just a racial thing. Even as the high rate of babies born out of wedlock and fatherlessness began, especially in terms of pathologies, in the African-American family in the 1960s, the reality is that the skyrocketing rates of babies born out of wedlock and children being raised without fathers is no longer a racial issue. It has spread across all ethnic and racial groups in America.

Sen. Paul’s reference to a lack of fathers was criticized by many on the left while others pointed to the fact that another major American politician in response to the same kind of urban unrest in the aftermath of Ferguson, Missouri had made a similar statement. That American politician said,

“In communities where there are no fathers who can provide guidance to young men; communities where there’s no investment, and manufacturing has been stripped away; and drugs have flooded the community, and the drug industry ends up being the primary employer for a whole lot of folks — in those environments, if we think that we’re just going to send the police to do the dirty work of containing the problems that arise there without as a nation and as a society saying what can we do to change those communities, to help lift up those communities and give those kids opportunity, then we’re not going to solve this problem.”

Again, that American politician pointed in the first place to the communities in which there are no fathers, especially who can provide guidance to young men. That politician was the President of the United States.

Christians looking at this situation and praying for peace, not only on the streets of Baltimore but elsewhere as well, must pray for the restoration of social trust and they must pray for the restoration of a moral order. That is a basic requirement of civilization. And we’re watching the breakdown of trust and the picture of the CVS burning was just one of those pictures. Perhaps one of the most significant parables in picture before us was the fact that the Baltimore Orioles and the Chicago White Sox played to what had never happened before, an empty baseball stadium, simply out of fear of the fact that the violence would spread to the baseball game as well.

Christians operating out of a biblical worldview have to be very, very careful lest we just give superficial answers to what are very deep problems. But the fact is that Christians alone, operating out of a biblical worldview, understand just how deep, how intractable, those problems really are, and how impossible it is – even following the logic of the President of the United States – to rebuild a society, to rebuild a moral order on the streets of the city like Baltimore without rebuilding the community itself. And what central to the biblical worldview is the understanding that it is impossible to rebuild the community without rebuilding the family.

The President of the United States made reference to that but Christians have to do more than make reference to that fact. We have to point to the reality that the recovery of the family is prior and primary to the recovery of community at any other level and the breakdown of the family will inevitably lead to the breakdown of the civilization.

Finally, in the aftermath of the national controversy over Ferguson, Missouri one of the things that was pointed out is the difficulty of rebuilding that trust when you have elected officials who are overwhelmingly white and a community that is increasingly African-American. We can certainly understand the fact that the logic of democracy is weakened when the government doesn’t look like the people the government is called upon to serve. But one of the things to note in Baltimore is that fixing that picture doesn’t necessarily fix the larger problem because in Baltimore the city has an African-American mayor and an African-American police Commissioner and neither one is the first African-American in that position. The legitimacy of democracy does require that an elected leadership look like the community that it represents, but it also points to the fact that even that’s not enough; without trust, without the family, without rebuilding society, without – as the President said – rebuilding the community and the family has to come first, there will be no long-term recovery, no long-term answers, to what happened in Baltimore.

2) Abercrombie brand ultimately damaged by highly sexualized advertising strategy

The Supreme Court’s oral arguments in a same-sex marriage case tended to crowd out other worthy headline, one of them occurred over the weekend. It came in the business pages of the Wall Street Journal, Saturday Sunday edition of the weekend. The headline was this: Abercrombie is Dialing Back the Sex. It’s a really interesting article. The company known as Abercrombie and Fitch, the revival of a rather legacy American brand in a highly sexualized form in the 1990s and beyond, well this article says that Abercrombie – due to its own need to survive as a Corporation – is dialing back the overt sexuality.

But as you might expect, there’s a lot more to this story than the headline might even imply. This is a story that is laden with worldview importance even as it was buried within the business pages of America’s most influential business newspaper. The article is by reporter Suzanne Kapner and Joann S. Lublin. As they report,

“Teen retailer Abercrombie & Fitch Co. is putting an end to the beefcake. The question is: what’s next?

“In a set of personnel policies announced Friday, the company said it would stop hiring sales staff on ‘body type or physical attractiveness’ and will relax its infamous ‘look policy’ so that employees can dress in a more individualistic way. Brand Representative will replace Model as the title for sales staff.”

They go on to report,

“Store openings and events will no longer be decorated with shirtless models, and the company’s sex-tinged marketing is being dialed back as well.”

Abercrombie said in a news release,

“By the end of July, there will no longer be sexualized marketing used in marketing materials, including in-store photos, gift cards and shopping bags,”

Oh, and there is one exception the company allows, it says, for this cease-fire it declares in terms of sexuality. It says that its fragrances will continue to advertise in a very sexualized way because they say the fragrance industry itself is so highly sexualized – write that down as a note. The print edition of the Wall Street Journal over the weekend has a paragraph that reads like this,

“The changes—many of which were championed by the new heads of the Abercrombie and Hollister brands—amount to a broad repudiation of the highly sexual tone set by former Chief Executive Mike Jeffries. He created a cult following with teens, who clamored for Abercrombie’s logo-emblazoned T-shirts and sweatshirts, and willingly paid full price for tattered jeans.”

But they say,

“…that formula started to falter in recent years as teen shoppers gravitated to cheaper fast-fashion competitors.”

What’s interesting is to compare the print edition of this article with the online edition that preceded it in terms of the Wall Street Journal’s website. That online edition had included a statement about former chief executive Mike Jeffries that read like this:

“He also courted controversy. Comments in a 2006 interview with online publication Salon in which he said the company’s target market was ‘quote good-looking people’ sparked a backlash and fueled animosity among many teens. The approach turned into a liability then worsening pressure on the company’s sales coming out of the recession.”

It should be very interesting that paragraph that appeared Friday on the online edition disappeared Saturday and Sunday in the print edition.

The Abercrombie story comes as parable to those who operate out of a biblical worldview. One of the realities we come to see here is that the highly sexualized marketing approach undertaken by Abercrombie simply can’t fulfill on its promises. You can adopt a highly sexualized approach like this but eventually it’s, almost like the case with pornography, very revealing in terms of the pattern of sin. There’s no way to keep dialing up the sexuality and remain in a mall, and at some point even the teenagers and the young adults to whom Abercrombie had been marketing these highly sexualized images, at some point they are no longer interested in seeing the same old thing even from Abercrombie.

But in that online edition of the Wall Street Journal, going back to the former CEO, there is more here than may meet the eye. There is actually more here than meets the eye in the print edition of the same newspaper. That’s where the former CEO had acknowledged in 2006 that not only was the company hiring on the basis of what they describe as physical attractiveness and sexuality, they were also selling to a marketing group that they describe as “good looking people.”

This gets back to the Christian worldview affirmation that truth and goodness and beauty are always united. The Christian worldview tells us that we can never separate those things without creating a sinful fissure that will eventually crack apart. And the crackup has now reached Abercrombie and Fitch. Choosing this highly sexualized marketing technique, putting out what amounted to soft core pornography in advertising for many years, trying to entice teenagers and young adults to come into its doors with a highly sexualized aesthetic, all this began to break apart when it became immediately clear that putting on Abercrombie’s clothes did not make one physically attractive. And it became an absolutely repulsive marketing technique when the CEO of the company admitted that they were actually trying to sell to good-looking people by the definition of this company and they were trying to use good-looking people in terms of physical and sexual attractiveness in terms of their advertising. It should tell us a great deal that for Abercrombie and Fitch that eventually became a losing strategy. But you can read that right out of the book of Genesis.

Those who live by a code of physical attractiveness will die by a code of physical attractiveness, those who try to build a marketing empire and a public relations momentum when it comes to highly sexualized images will eventually die by those highly sexualized images; trying to separate the good the beautiful and the true as pornography always does, including marketing that amounts to soft core pornography eventually, it is a project that falls apart on its face.

Oh, and by the way having taken an approach that eventually failed observers of Abercrombie and Fitch have grave doubts the company can recover. It’s because losing that story doesn’t mean they gain any other story and having built an empire on this highly sexualized idea of personal attractiveness, having been repudiated by teenagers and young adults who decided to take their business elsewhere, there’s no good reason for anyone to come back. And that’s why even in the view of the Wall Street Journal, not looking at this from a moral angle but merely from a financial angle, this new approach by Abercrombie and Fitch is by no means destined to succeed.

3) In midst media reportage of Baltimore, remember those serving and loving their community

Finally, a lesson to learn by looking at the media telling the story. Trillia Newbell of the Ethics and Religious Liberty Commission of the Southern Baptist Convention ran an article yesterday in the Washington Post pointing out that even in Baltimore, maybe we should say especially in Baltimore, there is good news to be seen and she called for the media to give attention to that good news. What’s the good news? Well the cameras are looking at the burning buildings – they are drawn to that kind of image – they are drawn to the burning cars and the protesters on the street, we can understand why, but the cameras are largely absent showing the people from the same neighborhoods who go out to sweep the glass up and try to rebuild the community.

The cameras are rarely there when you see a parent parenting, doing what it takes to keep a child off the streets. The cameras are rarely there when you see a pastor and when you see others in the community ministering together to show what it means to call people to righteousness even as they call a community to justice. It is very important to those of us who are outside a city like Baltimore to understand that what we are seeing in terms of the media are the images the media finds interesting. It’s actually even more profound than that, what we’re watching are the images that the national media believe we will find interesting.

That tells us a great deal not only about the media but about ourselves. And Trillia Newbell is exactly right, the cameras simply aren’t they are far too often to tell the story of the people who are healing their communities rather than destroying them: the people who are standing in the breach rather than destroying the bridges, the people who are building and sustaining their families even under very difficult circumstances. We need to make very certain that as we pray for the people of Baltimore we pray not only for the end of violence, we pray not only for righteousness and justice to prevail, we pray for the sustenance of that community and for the encouragement of everything good that can and is taking place there.

One woman from that neighborhood, a mom, became an instant national celebrity when she was seen physically pulling her 16-year-old boy off the streets – pulling her son out of danger – and chastising him for every having been involved in what was taking place on the streets. That mother explained what she was doing even as she became something of an instant national heroine when she said that she didn’t want her 16-year-old son to become another Freddie Gray. We certainly understand her concern; we understand the urgency behind her intervention.

But what we also need to remember is that there are thousands of similar mothers and there are many, many fathers who are doing the very same thing in their own way – not caught by camera – simply doing what mothers and fathers do, keeping their children off the streets; doing what churches do, offering hope in the gospel, doing what Christians do, seeking to be salt and light. Most of that is far off camera.

 

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 tomorrow for The Briefing.

 

The Briefing 04-30-15

Podcast Transcript

1) Tragedy of Baltimore points to breakdown of trust and family in society

Baltimore Residents At a Loss After Riots Close Some CVS Stores, Wall Street Journal (Josh Mitchell and Gary Fields)

Baltimore Enlists National Guard and a Curfew to Fight Riots and Looting, New York Times (Sheryl Gay Stolberg)

As Baltimore Residents Clean Up, National Guard Steps In, Wall Street Journal (Scott Calvert)

Mapping the Clashes Between Baltimore Police and Protesters, New York Times

What Came Before Baltimore’s Riots, New York Times (Editorial Board)

The Blue-City Model, Wall Street Journal (Editorial Board)

Rand Paul cites a ‘lack of fathers’ in Baltimore. Here’s what the data actually show., The Washington Post, (Philip Bump)

2) Abercrombie brand ultimately damaged by highly sexualized advertising strategy

Abercrombie & Fitch Dials Back The Sex, Wall Street Journal (Suzanne Kapner and Joann S. Lublin)

3) In midst media reportage of Baltimore, remember those serving and loving their community

Can we please start sharing the good news of Baltimore?, Washington Post (Trillia Newbell)

Transcript: The Briefing 04-29-15

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 Wednesday, April 29, 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

Yesterday was exactly what we thought it would be; a major day of constitutional drama before the United States Supreme Court with the issue of marriage at the center. But as we shall see, marriage never stands in this context as a single isolated issue. It was front and center.

Yesterday in the case technically known as Obergefell v. Hodges both sides made their case before the nine jurists of the United States Supreme Court. The nine justices were able to ask questions and in the repartee in the question and answer between the justices and the council for the two sides, there was an amazingly revealing series of moments. And as we look at the major media following the oral argument the assessment is no one knows exactly how the court will rule – don’t over read that.

When we look at the oral arguments before the Supreme Court one big question is always this: do they really matter? That’s a question that is naturally asked – whatever the issue and whatever the case – before the Supreme Court. The real legal action in terms of the reasoning of the Supreme Court comes before and after the oral arguments. In the first phase, after the court has granted what is known as a writ of certiorari, agreeing to take the case, then council for both sides in the case are invited to submit briefs, legal opinions with long legal arguments in order to make their case. Those briefs are read and digested, if not by the Justices, then by their highly trained law clerks before the oral arguments. It is on the basis of those written briefs and their analysis of those briefs that the Justices come into the session of oral arguments generally ready to ask the questions already on their mind.

But there is more to it than that because as the justices in the context of the oral arguments session hear other justice’s questions, hear the arguments made by council, and hear responses to other justice’s questions, it is clear the new questions do emerge. There are questions that were not premeditated that do come out in the process of the oral arguments. The other thing to keep in mind is that the oral arguments are just that – they are arguments. This is where the council for both sides have the opportunity to make their best case.

As I said, in terms of the big legal work the first part comes before the oral arguments the second comes after. What comes next is that the justices will digest these arguments and they will then enter into a conference. No one but the nine justices of the United States Supreme Court are in that conference. And during that conference it will become clear how the justices intend to decide the case; what the division will be among the justice.

If the Chief Justice of the United States is in the majority, he assigns who will write the opinion. If the Chief Justice is not in the majority, then the senior justice in the majority assigns who will write the opinion. The deciding opinion of the majority of the court is what is released along with any descending opinions, and thus we have – in terms of the written record – all of the briefs that are submitted prior to the oral arguments, we have the record of what takes place in the oral arguments, and then we also finally have the opinions handed down in terms of the court’s decision both in the majority opinion, any concurring opinions of the majority, and any dissenting opinions.

That’s a rather complicated process but that’s how the United States Supreme Court works and that points to the drama that took place yesterday. We should not assume that there were any minds changed in the process of the oral arguments yesterday. But that does not make it a meaningless process, and that’s because the justices get to ask the questions that in the main indicate what they see more often than not as the weaknesses in the legal arguments being presented to them. That’s one of the reasons why we should not over read the process of the oral arguments in terms of trying to infer how the court may eventually rule, because as was the case yesterday with Justice Anthony Kennedy – widely assumed to be the crucial fifth vote on either side of this argument, the so-called swing vote – it was clear that in his questions he appeared to be coming from two contradictory directions.

At one point, challenging even the authority of the court to redefine marriage and at the other point pointing to what he identified as the injustice of not allowing same-sex couples to wed. Those questions, if understood separately would seem to indicate at one moment that justice Kennedy is leaning towards saying that same-sex marriage is not a right, and then at another point it might appear that his question would certainly imply the opposite.

In the oral arguments yesterday the main attorney for the plaintiffs, that is for the pro-same-sex marriage side, Mary L. Bonauto, she called marriage,

“foundation of family life in our society”

She then suggested, very openly, that barring same-sex couples from the institution of marriage was a form of discrimination that, in her words, conferred a “stain of unworthiness” on those who are in same-sex relationships. One of the issues that was iterated and reiterated before the court was the fact that marriage throughout thousands of years has exclusively been the relationship between a man and a woman. Regardless of the form that marriage has taken in terms of its contractual structure, it has been the union of a man and a woman; it has been a universally heterosexual institution. That was reflected even in comments made by Justice Kennedy who said,

“The word that keeps coming back to me is ‘millennia,’ ”

Justice Kennedy himself pointed out that same-sex marriage has been legal in the United States for only about a decade. Justice Kennedy said,

“I don’t even know how to count the decimals,”

He went on to say,

“This definition has been with us for millennia.”

So, at the very least Justice Kennedy, assumed to be the swing vote in this decision, registered the fact in an open session of the Supreme Court that he understands what the court would be doing if it allows or requires the redefinition of marriage. But on the other hand Justice Kennedy also spoke quite openly of the fact that he believed, or at least his question implied, that barring same-sex couples from the institution of marriage was fundamentally unjust.

Justice Samuel Alito echoed the fact that marriage has always been a heterosexual institution as he said,

“until the end of the 20th century, there never was a nation or a culture that recognized marriage between two members of the same sex.”

It was Justice Alito who two years ago pointed out that same-sex marriage is more recent than the smart phone. Justice Scalia asked Bonauto if she knew of any country that had legalized same-sex marriage prior to the Netherlands in 2001. She said no.

As is often the case, mixed in with very heavy legal arguments were some moments of unexpected and unpremeditated levity. One of those came when Justice Alito suggested that there had been cultures that were more open-minded towards homosexuality, such as ancient Greece, that did not nonetheless move to legalize same-sex marriage. Asked respond to that Bonauto simply said,

“I can’t speak to what was happening with ancient philosophers.”

At another point in the argument Justice Kennedy suggested that perhaps not enough time had passed for the nation to come to a conclusive decision when it came to whether or not same-sex marriage was a legal obligation or for that matter something that was sociologically positive. In response to that Bonauto said and I quote,

“Waiting is not neutral,”

But in what I believe was the most important portion of the oral argument, the issue wasn’t just marriage but religious liberty. And in two very revealing exchanges the threat to religious liberty was made abundantly clear.

The first question and answer came between Justice Scalia and Bonauto. Scalia pointed out that same-sex marriage would, in his words, be unpalatable to many, many people of faith. He then asked Bonauto whether making same-sex marriage a constitutional right would force ministers, in his words clergy, to perform same-sex weddings. Bonauto replied with the answer, no. She said it would not, pointing out that no one currently requires ministers to perform any wedding ceremony.

That was around one, round two is far more important. In the second round Chief Justice of the United States John G Roberts Jr. address questions directly to another of the attorneys making the case for same-sex marriage. In this case, none other than the solicitor Gen. of the United States, Donald Verrilli speaking on behalf of the Obama administration. The Chief Justice speaking to Verrilli said,

“Counsel, I’d like to follow up in a line of questioning that Justice Scalia started. He said we have a concession from your friend [that would be been Bonauto] that clergy will not be required to perform same-sex marriage but there are going to be harder questions.”

The Chief Justice then asked,

“Would a religious school that has married housing be required to afford such housing to same-sex couples?”

That is exactly the kind of question we have pointed out is coming to every religious institution that understands marriage to be the union of a man and a woman and exclusively so. This is one of those religious liberty issues that simply cannot be avoided. The solicitor general responded to the Chief Justice saying,

“I guess what I’d… I’d like to make three points about that if I could.”

General Verrilli then said,

“…and I will, I’ll go right to the question you asked. The first one is of course this court’s ruling addresses what the states must do under the 14th amendment. And the second point is that when you get to a question like the one your honor asked, that is going to depend on how the states work out the balance between their civil rights laws, whether they decide that is going to be civil rights enforcement of discrimination based on sexual orientation or not, and how they decide what kinds of accommodations they are going to allow under state law. And they could well… you know…. different states could strike different balances.”

I read the entire response of the solicitor general from the transcript so that you would hear every single word. The most important thing to note is that the solicitor Gen. of the United States, when asked directly if a religious institution that is opposed to same-sex marriage but nonetheless offers marital housing, if that institution will be required to extend that to same-sex couples, the solicitor general said that kind of question is going to be decided by the states based upon what kind of nondiscrimination law that they pass and what kind of accommodations are included in that law.

Now understand the threat that is then announced before the Supreme Court of United States to all religious institutions that will oppose this moral revolution. Notice is served by the solicitor Gen. of the United States in making argument that he hopes will win the day before the Supreme Court, that religious institutions are put on notice that our fundamental rights in terms of religious liberty, operating on the basis of our own convictions, is now in the hands – by his argument – of the states and whatever accommodations they may choose to put in the law in terms of accommodating our religious convictions.

The Chief Justice did not relent. He then asked the solicitor general,

“What about federal? It’s a federal question if we make it a matter of constitutional law.”

The Solicitor General responded,

“But the question of what, how the states use their enforcement power is up to the states.”

The Chief Justice and responded,

“Well you have enforcement power too”

The Solicitor General said,

“Right,”

Remember he is speaking on behalf of the Obama Administration and by reference to the Department of Justice on behalf of the United States government. He said,

“Right and, and well that’s certainly true but there’s no federal law now generally banning discrimination based on sexual orientation and that’s where those issues are going to have to be worked out.”

That is the solicitor general but remember it is his administration – that is the administration of President Obama – that is pressing for exactly the kind of legislation that he now argues doesn’t yet exist. You can almost count on the fact that in relatively short order it will exist in one form or another. And the Pres. has made his own decision by Executive Order to extend this kind of nondiscrimination policy as far as he possibly can.

The Solicitor General then went on to say,

“And I guess the third point I would make your honor is that these issues are going to arise no matter which way you decide this case because these questions of accommodation are going to arise in situations in states where there is no same-sex marriage, where there are, and in fact they have arisen many times, there are these commitment ceremonies.”

So what the Solicitor General of the United States said, and he said so repeatedly in terms of his response to the Chief Justice, is that regardless of how the court rules on this specific case, the threat to religious liberty is very real. As he said these cases are going to arise and as we know the questions are already coming and the threat is already apparent. But the solicitor general was not correct in saying that the case will be the same regardless of how the court rules. If the court rules that all states are obligated to legalize same-sex marriage that will create a different legal environment than if the question is left to the states.

But Christian should be particularly interested in a third round that appeared after the Chief Justice had concluded his questioning of the solicitor general on this matter. This came when Justice Samuel Alito pointed to a previous decision by the Supreme Court having to do with the case of Bob Jones University. He said,

“Well in the Bob Jones case the court held that a college was not entitled to tax exempt status if it opposed interracial marriage or interracial dating,”

So Alito asked,

“Would the same apply to a university or college if it opposed same-sex marriage?”

Now before we get to the solicitor general’s response we need to insert here that when it comes to the case of Bob Jones University we’re looking at a very lamentable chapter in American religious history. We’re looking at a college that claim the right to discriminate in the way would not allow for interracial marriage or interracial dating – something that is not addressed in Scripture. The other thing we need to point out is that so far as I’m aware, Bob Jones University was the only institution of its kind with this kind of policy – that’s why it became the issue, that’s why it’s name is in that very regrettable Supreme Court decision.

But in the Bob Jones case the Supreme Court did rule that Bob Jones could lose its tax-exempt status, which it did, because of its policy. A policy what we should point out that the University has since abandoned, but nonetheless the precedent is there. But also what happened in terms of the oral arguments yesterday, the warning is there because when Justice Alito asked the solicitor Gen. of the United States if the Bob Jones case would create a precedent for an institution that opposed same-sex marriage, his response was, and again I quote in full,

“You know I, I don’t think I can answer that question without knowing more specifics. But it’s certainly going to be an issue. I, I don’t deny that. I don’t deny that Justice Alito. It is, it is going to be an issue.”

As is always the case in a transcript of a genuine conversation there are fits and starts and restarts to an argument, but the bottom line is the point that the solicitor general made; the point that he conceded in response to questions from the Chief Justice of the United States and from Justice Alito. He conceded that these are real questions, he did not stay in any way anything that would support the religious liberty of an institution that would limit marital housing to those the institution understand on the basis of Scripture to be legally and rightly married. It also is the case that the solicitor general, pointing to the issue of the tax exempt status of Christian and other religious institutions, said and here again I quote,

“it is, it is going to be an issue”

As we’ve often pointed out those who have been arguing for the legalization of same-sex marriage said, look nothing fundamental is going to change. Yesterday before the United States Supreme Court the solicitor Gen. of the United States admitted a lot is going to change – including not only the definition of marriage but our understanding of religious liberty. We would not normally on The Briefing give so much attention to the oral arguments session before the United States Supreme Court, but in this case that attention is more than warranted. It is demanded because what happened yesterday actually went beyond what many of us had expected in terms of where the oral arguments would ago and what the questions from the justices might address.

I appreciate the fact the Justices Scalia and Alito and Chief Justice Roberts addressed the question of religious liberty directly, I also appreciate in terms of candor, the fact that the solicitor Gen. of the United States did not dissemble and said openly this is going to be an issue. We knew it was the case, now it is in the transcript of the oral arguments of the United States Supreme Court. As I said in my opening comments about this issue, we should not draw a direct line from our hearing of the oral arguments or our reading of the transcript, to how we believe the justices will vote. But on this question we also need to understand that it is well assumed that there are four votes on both sides of this issue already because this doesn’t emerge from a vacuum.

We’ve had the same justices deciding basically the same kind of questions, especially going back two years to the Windsor decision. The swing vote then was Anthony Kennedy, it is expected that the same thing will be true now. But the issues are now more stark than they were even in the year 2013 in the Windsor decision. The oral arguments yesterday before the United States Supreme Court make that abundantly clear and it is clear, as we have said all along, that marriage is not a separable issue because it’s at the center of our civilization and at the center of every society when marriage is redefined, everything is redefined.

And on that point the Chief Justice deserves credit for another very insightful statement. As the oral arguments began yesterday the Chief Justice addressed attorney Bonauto arguing for the same-sex marriage side and said that as he had consulted the history of marriage, he had discovered that marriage had always been a heterosexual institution – a relationship between a man and a woman. He went on to say to Bonauto,

“If you succeed [meaning in her argument] that definition will not be operable”

The Chief Justice then said,

“You are not seeking to join the institution, you are seeking to change the institution.”

Regardless of how the court will rule in this case and regardless of the actual legal path the justices get to, in terms of making their decision, the reality is the Chief Justice of the United States has articulated exactly what is at stake as he said, and said rightly, those who are pressing for the legalization of same-sex marriage are not seeking to join the institution of marriage, they are seeking as he said to change it.

One final note as we look back to yesterday, a day that will long be remembered in legal and in moral history, we look back to an article that appeared a few weeks ago in the New York Times. I was saving it until now, a front-page article with the headline: The Case Against Gay Marriage: Top Law Firms Won’t Touch It. Adam Liptak, veteran observer of the Supreme Court looking forward then to the oral arguments, said one thing should be noted: there was no major American law firm that signed on to the argument against same-sex marriage. That is a radical departure even from two years ago in the Windsor decision when one the most prominent attorneys in the United States, Paul Clement himself a former solicitor general of the United States under George W. Bush, was the one who made the argument for the defense of marriage as the union of a man and a woman and the federal government’s right to define it so.

Just in terms of measuring the moral revolution that were now experiencing, just consider that front-page article that preceded the oral arguments. When you look at the oral arguments themselves not one major American law firm, fearing no doubt the loss of clients and social status on the other side of this moral revolution, would sign on to the argument in defense of marriage. You might say what a difference two years makes, but as the Chief Justice would point out, what a difference several millennia will make.

There are other issues in which we will turn in coming days but for this day there is no set of issues more important than these.

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 tomorrow for The Briefing.

 

The Briefing 04-29-15

Podcast Transcript

1) Supreme Court oral arguments on gay marriage reveals more than marriage at stake

Gay Marriage Arguments Divide Supreme Court Justices, New York Times (Adam Liptak)

Supreme Court hears arguments in same-sex marriage case: Highlights from oral arguments, Washington Post (Fred Barbash, Mark Berman, and Sandhya Somashekhar)

Supreme Court Transcript, New York Times (Supreme Court)

The Case Against Gay Marriage: Top Law Firms Won’t Touch It, New York Times (Adam Liptak)

“It is Going to Be an Issue” — Supreme Court Argument on Same-Sex Marriage Puts Religious Liberty in the Crosshairs

“It is … it is going to be an issue.” With those words, spoken yesterday before the Supreme Court of the United States, the Solicitor General of the United States announced that religious liberty is directly threatened by the legalization of same-sex marriage. Donald Verrili, representing the Obama Administration as the nation’s highest court considered again the issue of same-sex marriage, was responding to a question from Justice Samuel Alito. His answer confirms with candor the threat we have long seen coming.

Back in 2005, long before the movement to legalize same-sex marriage had gained cultural momentum, the Becket Fund for Religious Liberty held a forum on the question of gay marriage and religious freedom. The forum included major legal theorists on both sides of the marriage issue. What united most of the legal experts was the consensus that same-sex marriage would present a clear and present danger to the rights of those who would oppose gay marriage on religious grounds.

Marc D. Stern, then representing the American Jewish Congress, put the matter directly:

“The legalization of same-sex marriage would represent the triumph of an egalitarian-based ethic over a faith-based one, and not just legally. The remaining question is whether champions of tolerance are prepared to tolerate proponents of a different ethical vision. I think the answer will be no.”

That was a prophetic statement, as we can now see. Stern continued:

“Within certain defined areas, opponents of gay rights will be unaffected by an embrace of same-sex marriage. But in others, the impact will be substantial. I am not optimistic that, under current law, much can be done to ameliorate the impact on religious dissenters.”

Keep that in mind as you consider the oral arguments in Obergefell v. Hodges, the same-sex marriage case that sets the stage for the legalization of same-sex marriage in all fifty states — and sets the stage for what may well be, in the United States, the greatest threat to religious liberty of our lifetime.

The first exchange on religious liberty came as Justice Antonin Scalia asked Mary L. Bonauto, lead counsel arguing for same-sex marriage, if clergy would be required to perform same-sex ceremonies. Bonauto insisted that declaring a constitutional right for gay marriage would not require clergy of any faith to perform same-sex ceremonies.

The second exchange was between Chief Justice John G. Roberts Jr. and Solicitor General Verrilli, also arguing for same-sex marriage. The Chief Justice asked: “Would a religious school that has married housing be required to afford such housing to same-sex couples?”

The Solicitor General did not say no. Instead, he said that the federal government, at present, does not have a law banning discrimination in such matters on the basis of sexual orientation and gender identity. As for the states, “that is going to depend on how the States work out the balance between their civil rights laws, whether they decide there’s going to be civil rights enforcement of discrimination based on sexual orientation or not, and how they decide what kinds of accommodations they are going to allow under State law.” He went on to say that “different states could strike different balances.”

Make no mistake. The Solicitor General of the United States just announced that the rights of a religious school to operate on the basis of its own religious faith will survive only as an “accommodation” on a state by state basis, and only until the federal government passes its own legislation, with whatever “accommodation” might be included in that law. Note also that the President he represented in court has called for the very legislation Verrilli said does not exist … for now.

Verrilli’s answer puts the nation’s religious institutions, including Christian colleges, schools, and seminaries, on notice. The Chief Justice asked the unavoidable question when he asked specifically about campus housing. If a school cannot define its housing policies on the basis of its religious beliefs, then it is denied the ability to operate on the basis of those beliefs. The “big three” issues for religious schools are the freedoms to maintain admission, hiring, and student services on the basis of religious conviction. By asking about student housing, the Chief Justice asked one of the most practical questions involved in student services. The same principles would apply to the admission of students and the hiring of faculty. All three are now directly threatened. The Solicitor General admitted that these liberties will be “accommodated” or not depending on how states define their laws. And the laws of the states would lose relevance the moment the federal government adopts its own law.

The third exchange on religious liberty came as Justice Samuel Alito asked Verrilli about the right of religious institutions to maintain tax-exempt status, citing the Supreme Court’s decision to allow the Internal Revenue Service to strip Bob Jones University because of that school’s policy against interracial dating and interracial marriage. That policy of Bob Jones University remains a moral blight to this day, even though the university has since rescinded the policy. Bob Jones University stood virtually alone in this unconscionable policy, but the Court’s decision in that lamentable case also set the stage for Justice Alito’s question — “would the same apply to a university or a college if it opposed same-sex marriage?”

Pay close attention to Solicitor General Verrilli’s response:

“You know, I — I don’t think I can answer that question without knowing more specifics, but it’s certainly going to be an issue. I — I don’t deny that. I don’t deny that, Justice Alito. It is — it is going to be an issue.”

Verrilli’s pauses no doubt indicate that he understood the importance of what he was saying — “It’s going to be an issue.”

It will indeed be an issue, and now we have been told so by none other than the Solicitor General of the United States. The loss of tax-exempt status would put countless churches and religious institutions out of business, simply because the burden of property taxes and loss of charitable support would cripple their ability to sustain their mission.

The crippling effects of a loss of tax-exempt status was acknowledged at the Becket Fund event by Jonathan Turley of the George Washington University Law School. “The debate over same-sex marriage,” he explained, “has become for the twenty-first century what the abortion debate was for the twentieth century: a single, defining issue that divides the country in a zero-sum political battle.”

Consider his words:

“Many organizations attract members with their commitment to certain fundamental matters of faith or morals, including a rejection of same-sex marriage or homosexuality. It is rather artificial to tell such groups that they can condemn homosexuality as long as they are willing to hire homosexuals as a part of that mission. It is equally disingenuous to suggest that denial of such things as tax exemption does not constitute a content-based punishment for religious views.”

Those words were spoken back in 2005. The words of Solicitor General Verrilli were spoken yesterday before the Supreme Court of the United States. You can draw a direct line across those years from Professor Turley’s acknowledgment and Mr. Verrilli’s confirmation of the threat — “It’s going to be an issue.”

As the Supreme Court considers the issue of same-sex marriage, and with cultural momentum building for same-sex marriage at warp speed, Marc Stern’s comments also demand our attention. He is undoubtedly right that the victory of same-sex marriage means the victory of an “egalitarian-based ethic over a faith-based one.”

The remaining question, he said then, “whether champions of tolerance are prepared to tolerate proponents of a different ethical vision.” Even then, he warned: “I think the answer will be no.”

We will soon find out just how tolerant those who preached tolerance for same-sex marriage will turn out to be, now that they are ascendant in the culture. Meanwhile, even as we were repeatedly told that warnings about threats to religious liberty were overblown, the truth came out before the Supreme Court yesterday. Take the Solicitor General at his word. “It’s going to be an issue.”

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/albertmohler.

Essays by Marc Stern and Jonathan Turley are found in Same-Sex Marriage and Religious Liberty: Emerging Conflicts, edited by Douglas Laycock, Anthony Picarello, Jr., and Robin Fretwell Wilson (New York: Rowman and Littlefield, 2008).

A official transcript of oral arguments in Obergefell v. Hodges, argued before the Supreme Court of the United States on Tuesday, April 28, 2015, can be found here. http://www.supremecourt.gov/oral_argu...

 

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.

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.

 

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... 

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.

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...

Quotation 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...

 

The Briefing 04-27-15

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

Fear of aftershocks has Nepal on edge, Washington Post (Rama Lakshmi and Annie Gowen)

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

Flights canceled as ash cloud pours from Chile volcano, Reuters (Rosalbo O’Brien and Anthony Esposito)

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

Long courtship leads to high court’s altar for gay marriage, USA Today (Richard Wolf)

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

Gay Marriage Case Caps Cincinnati’s Shift From Conservative Past, New York Times (Sheryl Gay Stolberg)