May 9, 2016
This is a rush transcript. This copy may not be in its final form and may be updated.
It’s Monday, May 9, 2016. I’m Albert Mohler and this is The Briefing, a daily analysis of news and events from a Christian worldview.
Obama Administration demands unconditional surrender from NC on transgender bathroom law
On the cultural front, the big news in recent days is a growing storm between the Obama Administration and several states. At the center of the target right now is the State of North Carolina. As Eric Lichtblau and Richard Fausset reports for the New York Times,
“The Justice Department warned the State of North Carolina on Wednesday that its new law limiting bathroom access violated the civil rights of transgender people.”Show Full Transcript
As the Times said,
“[This was] a finding that could mean millions of dollars in lost federal funds.”
This story has several very interesting twists and turns, but the bottom line is that the Obama Administration is threatening to use the financial leverage of the federal budget in order to force states like North Carolina to join the moral revolution. The details of the letter from the Justice Department are really interesting. As the Times reports, the letter was sent by Vanita Gupta, who is the top civil rights lawyer for the Justice Department, and the letter demanded that the Governor of North Carolina and the University of North Carolina respond by Monday, that is today, in terms of,
“…whether you will remedy these violations.”
But the bigger and most interesting aspect of this is not the political dynamic, but the legal and moral dynamic that is at stake here. First, let’s look at the legislative background. The Obama Administration is claiming that the State of North Carolina, and by extension the University of North Carolina in following the law adopted by the North Carolina legislature, is now in violation of the 1964 Civil Rights Act. Let’s be abundantly clear about the fact that in 1964, the transgender revolution wasn’t even on the horizon. It simply wasn’t a part of the legislative intent, nor the legislative background. No one who has any intellectual credibility can claim that the 1964 Act was intended to have anything to do with the entire array of LGBT issues. But the Obama Administration is extending the 1964 Civil Rights Act in terms of issues under its executive control to include that entire array of issues, the LGBT issues, and it is doing so with a vengeance. The letter, as I said, demands an answer today from the Governor of North Carolina and from the President of the University of North Carolina, and what the Obama Administration is demanding is basically an unconditional surrender. It’s not likely to happen.
Now there’s something else very interesting here, and it’s the language of the letter that was sent by the Justice Department to the State of North Carolina and to the University. In the letter, the Obama Administration states that it is “facially discriminatory against transgender employees”—that is, the North Carolina law on the basis of sex; listen to these words now—“because it treats transgender employees whose gender identity does not match their biological sex, as defined by HB2, differently from similarly situated non-transgender employees.”
Now wait just a minute. What in the world is that about? It is about the fact that the Obama Administration is simply now claiming to use the category of sex now to cover the transgender identity issue, and it is claiming that the State of North Carolina and the University of North Carolina are now discriminating against transgender people, according to a law that had nothing to do with transgender people back in 1964. The law as it stands still has nothing to do directly with transgender people and never references them. And this is going to set up what the New York Times, the Wall Street Journal, and just about everyone else recognizes is going to be a very long battle, not only in terms of the political battle between the Obama Administration and the state of North Carolina, but a battle that will eventually, of course, end up in the courts. In terms of specific claims, the Obama Administration is claiming that the State of North Carolina is violating the Civil Rights Act of 1964 in what is known as Title VII. As we have already stated, there is no reference in that legislation to anything related to the LGBT agenda.
Furthermore, we’re looking at the fact that the Administration is claiming that the State of North Carolina is also allegedly violating the Violence Against Women Reauthorization Act of 2013. Once again, that Act states nothing about gender identity in terms of the transgender issue, nothing at all. All this may come as something of a surprise to many Americans who assume that legislation is supposed to mean exactly what the words meant, exactly what the framers of the legislation intended for the words to mean and nothing more or, for that matter, nothing less. But this points to the fact that in a bureaucratic state under a strong executive—and that now represents where we are headed and where we are certainly now present in the Obama Administration—we clearly have an indication of the power of the President or, at least in this case, the attempted power of the President and his Administration to go far beyond the actual wording and the original intent of legislation.
On the one hand, these signals were sent some time ago. As the New York Times remembers, it was in December 2014 that the Attorney General at the time, Eric Holder, directed the Justice Department to begin including gender identity, including transgender status, as a basis for discrimination claims under federal civil rights law. Now again, that was simply an Attorney General of the United States. This was not Congress. And the Attorney General was acting under the direction of the President of the United States. But once again, the President is not Congress, and he has no unilateral authority to rewrite legislation. He is granted, however, the authority to implement legislation, and this shows how recent presidents have gone beyond the legislation itself in order to try to force their own agenda. But no president heretofore has gone to anything like the lengths of President Barack Obama.
And President Obama, we need to note, secondly, is pushing a position that he himself not only did not hold, but that he himself obviously did not run on when he ran for president in 2008. When President Obama ran for president originally in 2008, he ran as a defender of traditional marriage and was opposed even to the legalization of same-sex marriage. It was not until the president was running for reelection in 2012 that he came out as an active proponent of same-sex marriage, explaining that his position had evolved. Later, David Axelrod, a senior advisor to the President, wrote that the President had all along favored the legalization of same-sex marriage but felt in 2008 that he had to oppose it in order to be elected.
What’s very important for us to recognize is that the President didn’t support the very activist understanding of the Civil Rights Act of 1964 that he is now proposing through his own administration. He didn’t use this kind of language in the year 2008 when running for president. Furthermore, he didn’t even use this kind of language or argument when he was running for reelection in 2012. That tells us, on the one hand, something about the pace of the moral revolution that is taking place around us. It tells us, on the other hand, how politicians, once they begin to evolve, tend to continue that evolution. President Obama in this case is exhibit A.
So now let’s ask another question. If the Obama Administration is successful in pressuring the State of North Carolina by means of financial leverage, just how much money are we talking about? Well, we’re clearly talking about hundreds of millions of dollars. As Bradford Richardson reports for the Washington Times over the weekend, in terms of just the University of North Carolina, we’re talking about over $100 million of annual tax money coming from the federal government to the University. Broadening that to the entire public education system in North Carolina, the Washington Times reports that the State of North Carolina received approximately $1.4 billion in federal education funding in just the last school year. The federal government recognizes that this could be a make-or-break issue for the State of North Carolina, thus the significant financial leverage.
But we also need to pause and reflect upon what the taxation and spending cycle really represents here. Citizens in North Carolina pay their federal taxes and the federal taxes are then recycled through federal legislation and spending authority back to the several states. But when they come back to the states, in this case $1.4 billion in education funding to North Carolina just in the last year, the federal government, having obtained much of that tax income from the citizens of North Carolina, then sends the money back in terms of federal allocations and programs—but with federal strings attached. This is the cycle of taxation and spending which puts a massive government into place and then allows that government extraordinary intrusion not only into the states, but into the lives of so many Americans and fundamental institution such as, in this case, the University of North Carolina. And it hasn’t gone without notice that this is extending a battle between the states and the federal government that goes back for decades.
Christians looking at this story need to recognize that there is a great deal at stake in terms of the Christian worldview. First, we have the transgender issue and the whole question of biological difference and gender as a part of the goodness of God’s creation—confusion over gender to be an indication of the Fall and, furthermore, in terms of the current moral revolution, a very serious issue on which Christians must be abundantly clear. Gender is a part of the goodness of God’s creation, and our biological sex at birth is a part of God’s gift to us as individuals, a revelation of God’s will for us. While we must respond with extraordinary pastoral sensitivity to someone who faces confusion over so basic an identity question, Christians cannot enter into the confusion, much less add to it. As now the federal government is ordering that all American citizens should. The State of North Carolina, we need to note, is simply standing in here for anyone who would stand in the way of the moral revolution and the moral revolutionaries. And what we see is that the federal government is now declaring that a law written in 1964 that clearly had nothing to do with the issue whatsoever is now such that the State of North Carolina is declared as being in violation of the law, something that was inconceivable in 1964, and something that not even the Obama Administration would’ve dared claim just a matter of a few years ago.
This shows us just how hostile our own federal government is now growing towards anyone or any institution or any state that will stand in the way of the moral revolutionaries. But it also shows us something else. This situation reminds us that when we elect anyone, especially someone in an office like the President of the United States, we’re electing not just an individual, we are electing a worldview. And one way or another, over time that worldview will be translated into policy. No one who has known President Barack Obama politically over time can really be surprised by the recent announcement coming from his Justice Department. But even if we cannot now be surprised, we must be very, very concerned.
Brave new world: Scientists double life expectancy of embryos outside the womb, blurring ethical lines
Next, an article on the frontlines of medical research and the fight for human dignity, Rachel Feltman, reporting for the Washington Post, writes,
“When scientists grow human embryos for lab research, they end their experiments at the 14-day mark. Until now, these internationally accepted guidelines (and the laws formed around them) have been largely self-regulating: The record for in-vitro gestation was just nine days, and most labs struggled to keep embryos alive longer then a week.”
The background of this has to do with the fact that in recent years, scientists have begun experimenting with human embryos—that is, with human beings at the earliest stage of development. And these embryos have been created or have been obtained and then used entirely for medical research and, because of biomedical concerns about human dignity, these gestational embryos have not been allowed to develop beyond 14 days.
As Feldman writes, the previous record for trying to keep an embryo alive in a laboratory had just been about nine days and most labs had, in her words, “struggled to keep embryos alive longer than a week.”
She then writes,
“But now a pair of research teams from the Rockefeller University and the University of Cambridge have both kept embryos alive nearly twice as long. And since they had to terminate their experiments preemptively to avoid going past the 14-day line, there’s no telling how long they could have watched the development of their cultured human embryos. The resulting studies — which have sweeping ethical implications — were published Wednesday in the journals Nature and Nature Cell Biology.”
So, just to remind ourselves of the facts here, international researchers dealing with human embryos have agreed, at least to this point, not to allow one of these embryos to develop beyond 14 days. That had been a largely hypothetical issue, since the researchers had not been able to come anywhere close to 14 days until now. But according to this report, the two teams of researchers in this case—one from Rockefeller University in the United States, the other from the University of Cambridge in the United Kingdom—had to terminate their experiments at 14 days because of the law. So you won’t be surprised about the article, or about the two editorials that appeared in these scientific journals. They are pushing for an extension of the limit beyond 14 days and, at this point, as the Washington Post indicates, that puts them into a very hot controversy in terms of biomedical ethics. Why? Well, as Feldman writes,
“The 14-day embryo rule isn’t totally arbitrary: It’s based on the day-15 emergence of something called the “primitive streak,” around which the symmetry of the human body begins to take shape.”
As she explains,
“Before this point, an embryo can split into identical multiples — so the streak’s appearance is considered a rough approximation for an embryo’s identity as an individual, at least within the lab [would emerge].”
Here’s where there’s no surprise to learn that the researchers are now calling for the 14 day rule to be reconsidered. One researcher said, and I quote,
“The 14-day rule was never intended to be a bright line denoting the onset of moral status in human embryos,” they wrote. “Rather, it is a public-policy tool designed to carve out a space for scientific inquiry and simultaneously show respect for the diverse views on human-embryo research.”
This is an absolutely stunning development, and that language should be morally shocking. Here you have researchers saying that at day 15 a human embryo begins to show the signs of being a definable individual, “at least in terms of laboratory research.”
What they mean by that is this: If they possibly extend that argument to its logical conclusion, then abortion itself would be understood to be a form of murder. And this is where this biomedical research issue becomes inextricably tied to the larger question of human dignity, the sanctity of human life, and the question of abortion. As we have seen, those who are pressing for abortion rights and defend abortion claim that the inhabitant of the womb is not morally significant, right up to the point of birth. Well, if that is true, then why would it be unethical to experiment upon a human embryo or a human baby at any stage of development until birth?
What this last paragraph I read indicates is that these researchers are straightforwardly saying that’s basically a political question. In other words, if you deny the human dignity that begins at conception and that sanctity of human life is attached to the very fact of becoming a human embryo, then at that stage, you simply have nowhere to draw the line except in an arbitrary manner. And you’ll notice that even as these researchers had been held to this day 15 development, they are now claiming that that was not meant to be a bright line after all. There’s no reason that can’t be reconsidered. But at this point, we simply have to ask, if we are capable and competent to define human dignity in terms of a calendar, then why would 15 days be all that important? Why not 15 weeks? But that points to the fact that if we are negotiating human dignity, there is absolutely no dignity that will remain.
I was honestly shocked, indeed almost stunned, when I read the acknowledgment in terms of this article in Nature that that 14 day rule was described straightforwardly “as a public policy tool designed to carve out a space for scientific inquiry and,”—here are the key words—“simultaneously show respect for the diverse views on human embryo research.”
In other words, it was just a political line; it wasn’t at any point truly a scientific line. All this is basically conceded in the Washington Post story when the reporter says that that 14 day embryo rule wasn’t “totally arbitrary.”
That is another way of saying it was largely arbitrary, simply an invention for the sake of political cover. In a similar article covering the controversy, this time in the Wall Street Journal, reporter Ron Winslow reported last Thursday, quoting one of the scientists involved in the research—this is professor of mammalian development and stem cell biology at the University of Cambridge, Professor Magdalena Zernicka-Goetz. She said, speaking of the 14 day period and immediately thereafter,
“This is the period of our lives that some of the most important [biological] decisions are made.”
She went on to say,
“It was entirely [that is this period] a black box of development that we were not able to access until now.”
Well just consider this in terms of the dignity and sanctity of human life. Here you have a researcher not pointing to the third trimester of human pregnancy, but rather to the first days—we’re talking about the first 15 days and the immediate days thereafter. And here you have one of the professors involved in the research and pushing for an extension of the time limit, who points to this period and says,
“This is the period of our lives that some of the most important biological decisions are made.”
Our lives? This points to the fact that is often obscured, and that is that every single living human being was once an embryo, once an embryo at one day of development, 2, 3, 4, yes 15 and beyond, and here you have an acknowledgment that this is an individual. She says some of “our lives”, after all, and if an individual, then by moral extension clearly a person as well.
But there you have the problem. Pro-abortionists and so many medical researchers want to argue that the inhabitant of the womb isn’t a person until that person is born. But of course this is where the Christian worldview goes back to the beginning and makes clear that when God says “Let there be life” and the moment of conception starts, it is arbitrary—there’s the very word used in that Washington Post article—it is arbitrary to try to draw a line of human personhood at any point beyond the embryo’s conception and the birth of a human being. And that’s why if you’re pushing this logic, the logic of the pro-abortion movement to its logical conclusion, birth itself becomes something of an arbitrary marker, at least in terms of human personhood and human rights.
To state the matter very straightforwardly, if it is only after a baby is born that human rights are recognized and personhood is affirmed, then what about that baby just moments or seconds before the baby is born? What about that baby just moments or seconds, or days or weeks, or weeks or months, before that baby is born? How can someone draw any kind of line and say, “Here is where human dignity begins and not before.” And what we’re noticing is that once you try to draw that line, even when you claim there is some kind of scientific basis behind it, you very quickly have the development that now lands these researchers in controversy, claiming that the line was arbitrary and that it can be moved because, as they said, it wasn’t intended to be a bright line at any point anyway.
That raises an issue fundamental to the Christian worldview. Where do we ground human dignity and the sanctity of human life? If we ground it in anything other than the gift of a sovereign Creator, then it becomes endlessly negotiable and always arbitrary. And who are we going to trust with that decision? Some people in our modern society want to trust a priesthood of scientists to make these decisions. And yet, as these articles make very, very clear, scientists are not only unsure about when they would declare that human personhood would begin or human life is to be realized, but the imperative they’re always pushing of research means that they are unwilling to draw any lines that they will even stand behind over time. The very researchers who came up with the 15 day rule are basically the same researchers coming back now and saying that wasn’t intended to be a bright line; there is no reason that it can’t be renegotiated; and if renegotiated beyond 15 days, then why not 30 or 40 or 60, or why not, as we’ve seen, at any point in terms of the gestational development of human beings? But wait just a minute. That is exactly the argument made by pro-abortionists. That at no point, at no point at all prior to birth, is that inhabitant of the womb actually a human person who possesses rights simply by virtue of being created a human being.
Here’s the truly sad but very revealing fact. If we will not ground human dignity in the fact that we are the creatures of a holy God, then we will not be able to ground human dignity at all. We will not be able to ground human dignity, because anything other than the argument that we are human beings made by the Creator for his glory and created in his own image, any argument short of that becomes nothing more than shifting sand. In this case, the shifting sand comes down to a matter of days, in terms of the policy on human embryonic stem cell research. And the obvious question comes down to this: If the human embryo is not a human being at one point, does that embryo become a human being? The fact that scientists can’t answer that question tells us a very great deal. The fact that the society around us seems unwilling to answer that question, that’s a far larger issue and of even greater concern.