The Briefing 05-10-16

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Disappearance of civil discourse: GOP front-runner insults evangelical leader Russell Moore

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DOJ doubles down on coercion in countersuit against North Carolina over bathroom bill

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NYC Mayor calls for boycott of Chick-fil-A over owners' beliefs on biblical marriage

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Harvard Law professor openly advocates for liberal triumphalism through judicial activism

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Transcript

The Briefing

May 10, 2016

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

It’s Tuesday, May 10, 2016. I’m Albert Mohler and this is The Briefing, a daily analysis of news and events from a Christian worldview.

Disappearance of civil discourse: GOP front-runner insults evangelical leader Russell Moore

At this crucial point in the 2016 U.S. presidential race, it is clear that America’s political system has taken a turn for the worse. The latest evidence is the fact that civil discourse itself seems to be disappearing from the midst of American society even as this race that is so important for the American future shapes up around us. The latest evidence of this comes in a statement made by Republican presumptive nominee Donald Trump. It is clear that Donald Trump will have a great deal of difficulty winning the support of many American evangelicals, including prominent evangelical leaders. In Sunday’s edition of the New York Times, Russell Moore, President of the Ethics and Religious Liberty Commission of the Southern Baptist Convention, offered a rather stinging critique of the Trump candidacy, and he did so in an opinion piece that was brought to the attention of the nation, at least in part by none other than Donald Trump himself.

The morning after the opinion piece ran in the New York Times, Donald Trump ran to Twitter and issued a statement in which he said,

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“Russell Moore is a truly terrible representative of Evangelicals and all of the good they stand for. A nasty guy with no heart!”

The interesting thing about that is that Donald Trump once again has demonstrated that he does not run into civil discourse and argument, but rather he runs into insult, which seems to be an instinct and also into a denial of civil discourse. When he had the opportunity for a thoughtful response, Donald Trump dismissed the response instead, rejecting both the message and the messenger. What makes this really interesting is that in this 2016 race we now have the emergence of something that would have been inconceivable, not merely unexpected, in any recent American presidential cycle. Here we have the presumptive nominee of the Republican Party openly criticizing a major American evangelical leader.

Now when you look at recent American presidential elections, there has been a congruence between the worldview of American evangelicals on many issues, especially pressing social issues, and the Republican Party. But now, Donald Trump in essence is telling American evangelicals to get with the program, his program, or to meet his opposition or, in this case, his outright public dismissal. The interesting thing about this, of course, is that the question of evangelical voting in the 2016 election is an open question. What is clear is that we are entering entirely uncharted terrain for American politics and in particular for American evangelicals. As I have often said, and will have to say again, evangelicals are now facing a far more complex political equation than we have been accustomed to or trained to think about in any recent American presidential election. We’re going to have to think in very careful terms. We’re going to have to weigh issues that have not been required of us before, and we need to keep in mind that this is merely the 10th of May; there are months and months yet before us in the 2016 race, which means there are revelations undoubtedly still to be discovered and arguments still to be made—and insults still to be traded.

At this point it is fairly impossible to overestimate the complexity and the uncertainty of the 2016 race. If indeed the race comes down to the Democratic nominee being Hillary Clinton, the former Secretary of State, and Donald Trump, who is now the presumptive Republican nominee, we’re going to be finding ourselves in the midst of a political situation in the United States the likes of which has not been seen. And in this case when we say has not been seen, we’re not talking about in recent years, we’re not talking about even in the past several decades; we’re talking about the entire American experiment, and that’s saying a very great deal.

When you go back to the founding era, it is clear that politics, electoral politics, presidential elections, brought out both the best and the worst in the American people. We’re about to find out where 2016 is going to rank in terms of the history of American elections. But at this point recent developments make clear that what should be a huge and hugely important exchange of ideas, a contrast and conflict of proposals and policies and outlooks in terms of the world, may evolve into nothing more than name-calling, the exchange of insult, and a political morass of confusion that will not only weaken the United States, but could threaten the entire project of being a representative democracy. To put the point straightforwardly, it is difficult to imagine any recent American presidential candidate, certainly the standard-bearer of either of the two major parties in this country, going to Twitter or in any sense in public making statements such as which we’re now accustomed to hearing or to reading from Donald Trump. But the 2016 race is hardly over. For that matter this week is not even over.

DOJ doubles down on coercion in countersuit against North Carolina over bathroom bill

Next, shifting to North Carolina and to issues of national concern, yesterday on The Briefing we discussed the fact that the Obama Administration’s Justice Department had demanded that the State of North Carolina surrender in terms of the moral revolution and rescind the law recently adopted by the State known as House Bill 2. That stipulated that persons must use, in public facilities, the bathrooms that are designated for the sex in which they were born. Now you have the Justice Department tightening the argument, and we now know that yesterday the Governor of North Carolina announced that his state would file suit against the Obama Administration and against the Department of Justice in terms of the action threatened against the state. The suit filed by North Carolina claims that the Justice Department is misreading Title VII of the Civil Rights Act of 1964. The suit says that the federal government is now not only abusing its authority, but making up the law in terms of reading a piece of legislation written back in 1964 that clearly had nothing to do with the transgender issue in terms of ordering the State of North Carolina to amend its law having to do with bathrooms and gender assignment.

What we’re seeing here is a colossal battle of worldviews that is taking the shape of contrary and opposing lawsuits established both by the State of North Carolina and now by the Justice Department. On Monday, Attorney General Loretta Lynch indicated that in light of the Governor’s lawsuit—a lawsuit we should point out that is joined by other suits filed by North Carolina legislators—that in light of those suits the Justice Department would go ahead in terms of pressing its case against North Carolina. The Department had given the state until yesterday to make a decision about how the state would respond to the federal demand. As you would expect, there are some interesting twists to this tale.

The Attorney General, Loretta Lynch is herself a native of North Carolina and secondly, as might be expected, the Justice Department, the Obama Administration, they’re making the case that the situation here in North Carolina related to LGBT issues is exactly parallel to the civil rights issues of the 1960s and thus to the 1964 Civil Rights Act. As we said yesterday, this sets up an inevitable conflict not only between the federal government and the State of North Carolina, not only between the U.S. Justice Department and the University of North Carolina, but between two very opposed worldviews in terms of the United States, coming down to the question of bathrooms. This is where the moral revolutionaries run right up against a sense of public opposition to the inevitable consequences of what this revolution will bring, right down to who should use which bathroom.

One crucial point made by the Governor of North Carolina in filing this lawsuit is that Congress alone has the authority to amend or revise the Civil Rights Act of 1964. If the federal government were to do that and the legislation were to be enacted, the State of North Carolina concedes it would be in a very different situation. But the Governor of North Carolina is pressing an essential point here having to do not only with bathrooms, but to the separation of powers and to the boundaries of constitutional government. The State of North Carolina is making the very important point that the President of the United States, his Administration, and in particular the Justice Department, that they do not have the right to redefine the law without clear congressional approval or congressional intent. As is so often the case, the presenting issue, in this case a law concerning bathrooms, turns out to be embedded with a far larger issue, which is the interpretation of the U.S. Constitution and the limitations of the Executive branch and its authority, and whether or not we actually trust that Congress itself has the authority according to the Constitution to adopt such laws.

NYC Mayor calls for boycott of Chick-fil-A over owners' beliefs on biblical marriage

But next, shifting the scene to New York City, it is clear that the moral revolutionaries will not allow any opposition, even in terms of opinion or conviction, to the moral revolutionary tenets that they are pressing, especially when it comes to the LGBT issues central to this sexual and moral revolution. As the Wall Street Journal Editorial Board noted yesterday, one of the latest examples of this kind of moral coercion was brought by the Mayor of New York City, Bill de Blasio. As they wrote,

“Progressives want to politicize everything, even chicken sandwiches. Witness New York City Mayor Bill de Blasio’s campaign to get his fellow citizens to boycott the Chick-fil-A restaurants that are opening around the Big Apple.”

The background of this is actually several years old—a controversy that emerged having to do with Chick-fil-A when it was clear that moral revolutionaries across this nation, especially more liberal cities like Chicago and now New York City, have opposed the company simply because the founding family behind it holds to a traditional understanding of marriage. There is no accusation that Chick-fil-A has in any way discriminated against any customer in any sense. But last week, Mayor de Blasio said,

“Chick-fil-A is anti-LGBT. I’m certainly not going to patronize them and I wouldn’t urge any other New Yorker to patronize them. But they do have a legal right.”

As the Editors of the Journal say,

“Good to know he isn’t trying to ban the business, though [as they point out] give him time.”

A Chick-fil-A spokesperson responded by saying,

“The Chick-fil-A culture and service tradition in our restaurants is to treat every person with honor, dignity and respect—regardless of their beliefs, race, creed, sexual orientation or gender.”

But the Editors are absolutely right when they write this crucial paragraph, and I quote,

“Mr. de Blasio’s real objection is that the company’s owners won’t conform to his political views. The Supreme Court has said that same-sex marriage is a constitutional right, and transgender bathrooms are proliferating, but that isn’t enough for progressives. They also want to stigmatize and punish anyone who disagrees with them.”

That is the crucial argument the Editors make, and it is exceedingly important and timely. Because what we are now witnessing in terms of the change taking place around us in this society is that those who believe themselves to be on the winning side of this moral revolution want to silence those who disagree, not merely to win victories in the law and in the courts, but actually to silence any kind of opposition. And that includes, we should note, any opposition that is rooted in Christian conviction. You’ll note that the Mayor of New York City is not accusing Chick-fil-A of discrimination in any way, merely to the fact that the owners, the family behind the business, hold to a traditional, biblical understanding of marriage. And that in itself, according to the Mayor of New York City, is patently unacceptable.

We simply have to note there’s another very important irony here. The fact is that just about any observer will tell you that the Chick-fil-A location in Manhattan is so busy that the lines tend to wrap all the way around the block. So as it turns out, New Yorkers aren’t necessarily buying the argument. But what this tells us is that the Mayor of New York City clearly intends to place himself in terms of the historical record over against not only discrimination as he defines it, but even any kind of conviction that stands in the way of the moral revolution he intends to champion and, in terms of his own office, to lead.

Again, note very carefully what’s going on here. The Mayor of New York City did not accuse Chick-fil-A of acting in any discriminatory fashion. He made no complaint concerning its product or its services. His only complaint, the central complaint he took to the public last week, was that the owning family of Chick-fil-A holds to a biblical understanding of marriage. The Mayor of New York City has said that in itself is simply unacceptable.

Harvard Law professor openly advocates for liberal triumphalism through judicial activism

But all of this sets us up for a very important article written by a man identified as the William Nelson Cromwell Professor of Law at the Harvard Law School. Mark Tushnet teaches at what is certainly the most influential law school in the United States and, furthermore, in the world. In his essay entitled,

“Abandoning Defensive Crouch Liberal Constitutionalism”

—admittedly a mouthful, Professor Tushnet sends a very clear signal of where this moral revolution is headed and who is in the very gun sights of the revolutionaries. When he talks about abandoning what he calls “defensive crouch liberal constitutionalism,” he is calling for liberal constitutionalists to enter into the public fray with the renewed fervor and, for that matter, a determination not only to oppose conservative constitutional arguments, but to basically eliminate them. In the article he says that abandoning what he calls this “defensive crouch liberalism”—and by that he means that in his view liberals have been far too reluctant to make their case openly—he says that first this would mean what he calls,

“…a jurisprudence of ‘wrong the day it was decided.’”

Now those who follow constitutional law know exactly what he’s talking about. He is suggesting that with a new liberal majority on the United States Supreme Court, the Court should revisit many cases that have been settled years ago when, he would claim, the Court represented a more conservative majority. And in their argument, he is now openly asserting, that the justices should simply say, the liberal justices, he’s addressing himself too here, should simply say that the decision was wrong the day it was decided. Now what does that mean? What he means is that there is no need to argue that there has been some change in the situation, nor even to acknowledge that there has been some change in the way the United States Constitution is read. Rather he is arguing liberal constitutionalists, in this case liberal jurists, liberal justices on the U.S. Supreme Court, should simply move swiftly to reverse cases in which they were in the minority.

Interestingly and very informatively, one of the cases he cites as what the liberal justices should reverse is the Casey decision in which the majority opinion was written by Justice Anthony Kennedy. That was the case that disappointed so many pro-life activists because in that decision, the U.S. Supreme Court basically upheld Roe v. Wade. But in this case, the Court did say that states could move to legislatively restrict abortion, so long as those restrictions did not place what they called an “undue burden” upon women seeking an abortion. In this particular case, Professor Tushnet says, the Court should reverse itself, saying that it was wrong from the beginning, eliminating the need to prove any undue burden simply to make abortion even more accessible in America.

The second point made by Professor Tushnet is,

“The culture wars are over; they lost, we won.”

That is what makes this essay so very important. Here you have one of the most influential constitutional liberals in America arguing that what he defines here as the culture wars are over. And conservatives lost and liberals won. Here the law professor is calling upon liberals to take a far more aggressive position, and quite particularly aggressive towards whom he defines as the losers in the culture war. He writes this,

“For liberals, the question now is how to deal with the losers in the culture wars. That’s mostly a question of tactics.”

He then offers,

“My own judgment is that taking a hard line (“You lost, live with it”) is better than trying to accommodate the losers, who – remember – defended, and are defending, positions that liberals regard as having no normative pull at all.”

He then suggests,

“Trying to be nice to the losers didn’t work well after the Civil War, nor after Brown.”

Then as if those sentences aren’t stunning enough he writes,

“And taking a hard line seemed to work reasonably well in Germany and Japan after 1945.”

Now note the meaning of that sentence. Here you have a constitutional law professor teaching at Harvard Law School arguing that when it comes to the cultural conflict in America, the conflict between moral conservatives and moral liberals, the moral liberals won, the conservatives lost, and the liberals should simply now accommodate nothing in terms of the losing side. And what’s so incredible here is that when this law professor defines the losing side, his historical examples put in this sentence surrounded by parentheses in his essay—well, his examples are Germany and Japan. This is how the left increasingly sees moral conservatives in America, and this includes conservative Christians. We are a defeated foe, as defeated as was Germany and Japan, both of whom had to issue an ultimate unconditional surrender in order to end World War II.

Now you have a Professor at Harvard Law School saying that that is the position that moral conservatives in this country should be forced into—unconditional surrender, with the examples being the surrenders of Germany and Japan in 1945. The professor went on to write,

“I should note that LGBT activists in particular seem to have settled on the hard-line approach, while some liberal academics defend more accommodating approaches. When specific battles in the culture wars were being fought, it might have made sense to try to be accommodating after a local victory, because other related fights were going on, and a hard line might have stiffened the opposition in those fights.”

But then he concludes the paragraph with these words,

“But the war’s over, and we won.”

Before leaving Professor Tushnet’s article, it is important to note that he offered some other arguments as well. One of them he states in these words:

“Aggressively exploit the ambiguities and loopholes in unfavorable precedents [he means by that, court precedents] that aren’t worth overruling.”

And he gives some examples. His argument is very straightforward, if there is a decision handed down by a court, in particular the Supreme Court, that doesn’t play into the liberal agenda, liberals should find a way to “exploit ambiguities and loopholes.”

There are other arguments the professor makes and one of them includes an obscenity that of course I will not repeat. But the importance of this article, this essay published by a major constitutional theorist and a professor of law at Harvard Law School, the main importance is in demonstrating conclusively where this cultural revolution is now headed in terms of the turn that liberals now believe is their call, their call entirely. And you see the sense of moral triumph in terms of their argument. As this professor said in more than one way and in more than one place in this essay, when it comes to the liberals, they won and conservatives lost. His argument is quite clear: liberals should not seek even to accommodate to any extent conservative arguments or conservative convictions. When we consider the inevitable collisions between religious liberty and the moral revolution, we’ve now been served notice by at least one very influential law professor in the United States of what we are likely to face, not only in terms of argument, but also in terms of attitude.

Back when there was the effort to legalize same-sex marriage and when those cases were building and headed towards the inevitable Supreme Court decision that was handed down, you’ll recall that was the Obergefell decision legalizing same-sex marriage in 2015, on the way there, the proponents of same-sex marriage recognized that they would, if victorious, have to decide how they would deal with those who would oppose same-sex marriage. Back then when same-sex marriage was more of an idea than a reality, back then the proponents of same-sex marriage said that they would have to find a way to accommodate at least those who by religious conviction, in particular Christian conviction, could not affirm same-sex marriage. But you’ll note how this turn is now taken, a very concrete turn signaled by two very important moral authorities in this country—one of them, the Mayor of New York City, who takes a take-no-prisoners approach when it comes to the moral revolution, and he applies that to a chicken sandwich; next, you have a very influential constitutional law professor at the Harvard Law School who applies this in terms of the entire cultural agenda and simply says the time has come for liberals to cease even any attempt or pretense to accommodate those who will not affirm the moral revolution. In his words, those words that should now ring in our ears,

“We won, they lost.”

So it turns out that Christians, who are determined to live out the Christian worldview and to be faithful to all that Scripture teaches, are going to face some very new challenges in the 2016 presidential race. That’s how we began. But the larger picture is this: we’re going to face some very real challenges, some very new challenges in terms of life in America in the 21st century. That’s the bigger issue, and those issues as we now know will far outlast whatever happens in the 2016 presidential election. But on the other hand, this also points to why this election, like every presidential election, is so important. It too will send a signal. The difficulty is right now imagining what that signal might be.

Dr. Mohler recording The Briefing