September 9, 2016
This is a rush transcript. This copy may not be in its final form and may be updated.
It’s Friday, September 9, 2016. I’m Albert Mohler and this is The Briefing, a daily analysis of news and events from a Christian worldview.
"Even a church" — Massachusetts law can require a church to violate Scripture
The story we’re about to talk about didn’t make the headlines of any major American newspaper yesterday, nor today. But it’s the kind of story that should make headlines around the Christian world. It tells us a very great deal about where we stand in the shifting sands of our contemporary culture. The Daily Caller ran an article yesterday with the headline,
“Massachusetts Government Can Force Transgender Bathroom Policies On Churches, Guidance Says.”Show Full Transcript
The article is by Peter Hasson; the headline itself is insufficient to the story. The story is actually pointing to a reality that is far larger than what that headline might imply. Hasson writes,
“Under a Massachusetts civil rights agency’s interpretation of new anti-discrimination law, churches can be forced to let biological males who identify as transgender women use the women’s bathroom.”
“Recently passed legislation amending the state’s anti-discrimination law to include protections for ‘gender identity’ will take effect Oct. 1.
“The Massachusetts Commission Against Discrimination, which enforces the state’s anti-discrimination laws, recently published a ‘Gender identity guidance’ that lays out what will be legally required of employers and ‘agents of places of public accommodation.’”
Now, again, the headline is insufficient to the story. This isn’t just about bathrooms, and it’s not fundamentally just about the transgender issue. It is about the redefinition and indeed the denial of religious liberty in our time. The article points to a very real document that was published by a very real Massachusetts commission. A commission in this sense coming from the state of Massachusetts comes with the force of law and with legal and regulative authority. The document that is cited in this news article was indeed the document produced by the commission in the aftermath of the recent updating of the Massachusetts legislation that’s classified as antidiscrimination. And as I’m holding the document in my hand, under section D it identifies places of public accommodation. It states,
“[a place of] public accommodation [is defined as] any place, whether licensed or unlicensed, which is open to and accepts or solicits the patronage of the general public.”
Now looking at language like that, it might seem innocuous enough. We might say well, that doesn’t have anything to do with the church. But it’s not just a matter of speculation that we arrived at the headline yesterday. It’s a matter of the explicit text of this document. Just a matter of a few lines later than that definition, we read,
“Even a church could be seen as a place of public accommodation if it holds a secular event, such as a spaghetti supper, that is open to the general public.”
Now, perhaps you need to catch your breath after recognizing that this is an official document about official regulations set down by an official commission of the government of the state of Massachusetts, and it explicitly answers the question, could churches, will churches be included in the definition of a public accommodation and thus come under this law? The answer is yes. The document actually says “even a church.” Now the use of the word “even” in this regulatory document recognizes that the agency understands it is stating something that is likely to be new and shocking, and it should be both. It is new and it should be shocking. But then it goes on to state very unequivocally that a church could be seen as a place of public accommodation, “if it holds a secular event.” The example given is a spaghetti supper that will be open to the general public.
But here evangelical Christians have to step back and recognize that everything most evangelical churches would do, certainly in terms of a worship service or program, would be explicitly open to the public. There is no strict division, there can be no strict division in terms of our understanding of Christianity between church events that might be described as sacred and those that might be legally defined as secular. In the truest sense, no gospel church ever does anything that is properly merely secular.
The article in the Daily Caller states that a representative spokesman for the Massachusetts commission said that First Amendment and religious liberty issues have been taken into adequate consideration and cited a footnote, that is footnote 13, in the document. But listen to every single word of that footnote,
“All charges, including those involving religious institutions or religious exemptions, are reviewed on a case-by-case basis.”
You’ll note there is absolutely no protection either implied or actual in that footnote whatsoever. It simply states that cases are to be taken on a one-by-one basis. That’s not even news. It’s not even significant. I said that the headline in this story in the Daily Caller isn’t up to the story, and it’s not, because the definitions given in terms of the antidiscrimination law to which would be obligated all public accommodations includes not only who may use which bathroom, but also what kinds of pronouns might be used or, let’s put it this way, who might be accused of an action against a transgender person by refusing to use the pronoun that the transgender person might demand. And you can expand this, of course, to any number of other sexual orientations and gender identities.
The importance of the story is affirmed by the fact that one of the most influential law professors in America, Eugene Volokh of UCLA in Los Angeles, also ran a story yesterday in the Washington Post in which he offered his own analysis and concern about this Massachusetts regulations. The header in the Washington Post was this,
“Massachusetts: Churches may be covered by transgender discrimination bans, as to ‘secular events.’”
The “secular events” wording was put in quotation marks in order to indicate that that is exactly what is at stake, the determination, the arrogance of a state regulative agency that it can and will decide when a church event is secular and when it is sacred. Volokh seems to understand the issue pretty clearly when he writes,
“Now, churches hold events ‘open to the general public’ all the time — it’s often how they seek new converts. And even church ‘secular events,’” which the law professor said, “which I take it means events that don’t involve overt worship, are generally viewed by the church as part of its ministry, and certainly as a means of the church modeling what it believes to be religiously sound behavior.”
Now he might not understand the evangelistic impulse exactly as we would, but he does understand what is at stake in terms of a government agency determining that it can decide when an event is secular or sacred. And it’s not just events, it’s the totality of the church’s ministry.
Volokh then gets to the larger consequences of this development by writing,
“Under Massachusetts law, refusing to use a transgender person’s preferred pronoun would be punishable discrimination. (At least this is true of “he” or “she” — I saw nothing in the document about “ze” and other newly made-up pronouns.) The Massachusetts document I linked to makes that clear in the employment context, and it also makes clear that the antidiscrimination law rules apply to places of public accommodations (including churches, in “secular events” “open to the public”) just as much as to employment.”
That’s why this story is far larger than may first appear. Here you have a state agency using language that explicitly says even churches can be included under its authority when those churches are sponsoring and holding what it defines as a secular event. But it’s also clear that the effect of the law goes much further having not only to do with bathrooms, but even the fact that when a church is claimed to hold a secular event, the officials of the church would have to use the preferred pronoun of someone who is transgender or risk being charged with violating antidiscrimination law and all of its consequences.
But Eugene Volokh goes further, suggesting that it’s not just the leadership of the church that might be found to be criminally discriminatory, but also members of the church merely for articulating their own Christian conviction.
As evidence of the kind of Christian language he says could be ruled to be criminally discriminatory, he actually cites language from Boyce College and Southern Seminary faculty member, Professor Denny Burk. Professor Volokh understands that if these guidelines are to be taken at face value, and we have to take them at face value, they explicitly state that when a church is understood to be holding a secular event,
“Church leaders have to use the words that the law requires, even when they view them as false or even blasphemous, and have to suppress offensive speech by their congregants.”
This is simply astounding. We have a major law professor from a major law school in the United States writing for the Washington Post, making very clear that these guidelines recently handed down in Massachusetts could require Christian leaders and church members to utter what they believe to be blasphemous or be accused with violating—and that’s criminally violating—antidiscrimination laws. Professor Volokh concludes his Washington Post article by saying,
“It should be clear that this is where these rules are headed, at least in places like Massachusetts but likely elsewhere as well.”
Listeners to The Briefing have only to think back to 2nd of August, barely a little over a month ago, when a similar story actually emerged in the state of Iowa. There were similar guidelines handed down by an Iowa agency, this was the Iowa Civil Rights Commission which, like the commission in Massachusetts, comes with the force of law. The statement that was identified as “Sexual Orientation & Gender Identity: A Public Accommodations Provider’s Guide to Iowa Law,” went on to state,
“Sometimes Iowa law provides that these protections do not apply to religious institutions with respect to any religion-based qualifications when such qualifications are related to a bona fide religious purpose.”
Now notice that here the state is arrogating to itself the decision as to when and when not a churches activity and speech is a bona fide religious purpose. The statement went on to say,
“Where qualifications are not related to a bona fide religious purpose, churches are still subject to the laws provision.”
“For example, this is explicitly from the policy released. For example, a church childcare facility operated at a church or a church service open to the public.”
This is hauntingly similar language. We need to note that the state of Iowa rather quietly reissued the very same document, and when the document was reissued after the controversy the language had been changed. The ‘for example’ in particular had been changed to this:
“For example, the law may apply to an independent day care or polling place located on the premises of the place of worship.”
That was a significant and surreptitious correction, and it is one that was undertaken only after there was a wave of public controversy over the overreach of the Iowa Civil Rights Commission. But Iowa is one thing, Massachusetts is another. And this isn’t the first story we’ve even discussed on The Briefing about Massachusetts. As a matter of fact, looking back to April of this year, we discussed the fact that tax authorities in Massachusetts had decided in the case of a Catholic shrine to determine which parts of the property it would define as being bona fide religious in purpose and excluding other parts of the property from the tax exemption.
Now once again this points to the fact that for most Christian organizations and institutions, not to mention evangelical congregations, every single part of the property is committed to an explicitly gospel mission. But there’s a really ominous pattern here, and that pattern is state and local regulative agencies, and perhaps the federal government in turn as well, deciding that it can and will decide and may decide and should decide when a church is actually operating as a church and when a church is operating as a public accommodation. Once again, from an evangelical perspective, in a gospel-centered ministry there is nothing that isn’t saturated with the gospel purpose and essentially directed towards a gospel end.
It's not just Massachusetts: The larger pattern that threatens religious liberty
A similar story emerged earlier this year and also escaped a great deal of public attention, in this case it had to do with the National Labor Relations Board and a standard that was handed down earlier this year that significantly curtailed religious liberty in another way. Religious colleges have been given an exemption from the labor laws in order to state that their faculties may not organize in terms of labor unions. Now there’s a clear religious liberty issue that is involved here. This has been a long-standing issue of legal respect in the United States, and it has been affirmed in a series of very important court decisions, including one decision that went all the way to the U.S. Supreme Court when Warren Burger was the Chief Justice of that court. Now a generation later, the National Labor Relations Board, that’s a federal agency, has decided that it is going to remove, or at least no longer respect, that exemption to religious colleges and universities, but is rather going to restrict it to the members of the faculty who serve in explicitly religious purpose.
There again you see the same kind of logic at work, a government bureaucratic agency deciding that it can decide and will decide when a faculty member is religious or serving a religious purpose and when not. The Rev. Dennis H. Holtschneider, he is himself the president of the Catholic DePaul University in Chicago, he said, and I quote,
“Crucially, for any Catholic institution, there can be no sharp division of the educational process or that institution’s mission into mutually exclusive realms of religious and secular. The church’s teaching, developed most powerfully by St. Thomas Aquinas and carried to the present, has always emphasized the integration of faith and reason. For a Catholic institution, as for individual Catholics, elements such as science, mathematics, service, charity, history and faith form an integrated whole that infuses all aspects of university life.”
The president of DePaul University was particularly on the firing line at this time because he is also the past chair of the Association of Catholic Colleges and Universities, and it was a Catholic university, Loyola, that was at the center of this regulatory issue with the National Labor Relations Board. But evangelicals have to understand this isn’t a Catholic issue. Very quickly, evangelical institutions, colleges, and universities can find themselves in the very same situation as was threatened recently in the situation of California’s proposed Senate Bill 1146. Again, that law, which was significantly revised before it was sent on to the legislative process, there to define which members of the faculty were serving in explicitly religious purpose and those who were not. Again, the same kind of logic. We have federal agencies and state agencies and state governments themselves deciding that they will decide when and to what extent a religious purpose is being served and, furthermore, when an institution or even a congregation turns itself into a public accommodation.
The story from Massachusetts deserves this kind of attention because it is not notable for its singularity. It is notable for how it fits a larger pattern, and this is a pattern we’re going to have to watch very, very carefully and, furthermore, we’re going to have to understand that if the state of Massachusetts can turn an evangelical church in Massachusetts into a public accommodation, by the same legal logic, it could happen in your state and it could happen to your church.
Furthermore, we have to understand that Professor Eugene Volokh, who is writing from a larger secular analysis here, is absolutely right when he says that this law can require Christian leaders and church members to utter what they believe to be blasphemy, merely to avoid finding themselves in violation, criminal violation, of an antidiscrimination statute. When it comes to the ministry of a church or an authentically Christian institution, the biblical worldview denies our ability to make a clear distinction between the secular and the sacred. If we are driven by the gospel for a church or for a genuinely Christian school, there is no such separation. There can’t be.
To each "zirs" own? Vanderbilt's pronoun chart and the end of conversation
Next, a similar story takes us again to a major American university campus. It takes us back to Vanderbilt in Nashville, where just as the new academic term began in that southern institution, a series of posters appeared all over the campus, and the posters were primarily addressed from the faculty to their fellow faculty, but with the clear implication by the posting that they were to be understood and appreciated by the entire university community. The poster was entitled,
“What should I call you?”
“Faculty modeling Vanderbilt’s commitment to gender inclusivity and awareness brought to you,” according to the document, “by the faculty Senate gender inclusivity task force.”
Now in this case we’re not talking about a state regulative agency, we’re not talking about the federal government, we’re talking about an official body of the faculty senate of Vanderbilt University. And this document is simply not to be missed. It comes in the form primarily of a chart and the chart has on one side,
“When my pronouns are…”
and then on the other side,
“Use them in this way… She is an excellent student, I support her in the classroom by honoring her pronouns.”
Now you’ll also note that everything here has to be officially positive. This gets back to the trope about the millennial generation, but the big issue there is not really a revolution in pronouns, because we can recognize she, her, and hers. The next on the list, he, him and his. Again, we recognize these pronouns. The next statement is they, them, and their. Now we understand this too, at least historically in terms of correct usage in the English language, where the use of they or them or their has always heretofore required the plural, but no more. Instead, this is when they and them and their are demanded for use by an individual. The chart then says that these pronouns are to be used in this way,
“They are an active member of the Vanderbilt community.”
Now let’s just stop there for a minute. Here you have a statement being made by the faculty Senate that involves a usage of the English language that would’ve been ruled out of bounds and marked down at least even very recently by the English department at the very same university. The other uses are,
“The other lab members rely on their expertise. I support them in the classroom by honoring their pronouns.”
But the document doesn’t end there. How about these pronouns,
“Ze, Zir, Zirs”
Here’s the demanded usage,
“Ze is a real leader on campus. I have learned so much from zir. The last one, I support zir in the classroom by honoring zirs pronouns.”
The last line on the chart in this respect, ze, hir, and hirs,” (H-I-R-S and H-I-R).
The demanded usages,
“Ze is a big Commodores fan, hir room is decked out in black and gold. I love hir’s paper. I support here in the classroom by honoring hir’s pronouns.”
You detect the pattern here. But here’s the huge question, how in the world are these guidelines even taken at face value to be used? This is a document addressed to the faculty primarily from the Faculty Senate Gender Inclusivity Task Force. What are professors to do with this? How are they to deploy this demanded new usage? Well, as you might expect, the chart explains that as well. Proactive ways to affirm Vanderbilt’s commitment to gender inclusion, first, when introducing yourself, offer your name and pronouns even to familiar colleagues and students. Here’s the example,
“Offer your name and pronoun in faculty meetings, committees and other spaces where students may not be present.”
“I’m Steve and I use he, him, his pronouns. What should I call you? My pronouns are they, them, theirs, may I ask yours?”
Now let’s go no further and stop right here to point out that this is effectively the end of all sane human conversation. If you have to begin every conversation in this sense, even with familiar colleagues and students, by articulating in every conversation what your name is for today and what your preferred pronouns are for now, we can’t have any more conversations. The document goes on to suggest a class survey in which the professor asked every single student not only the preferred name, for now, but all the pronouns to be used in class and then after other material is offered in terms of how professors are to model respect in all interactions. If you make a mistake, the professors are told,
“Graciously accept correction, apologize and learn for the next time. Take initiative. Do not expect others to remind you of their name and pronouns.”
And then offer this confession,
“Thank you for reminding me. I apologize and will use the correct name and pronoun for you in the future.”
Now, Christians must understand that we are to extend respect to all, but there is no way that this kind of language can be used sanely in a society without a total breakdown of even the possibility of conversation. Finally, anyone familiar with the Stalinist show trials in the Soviet Union in 1940s and 50s can see the required format of the confession that was handed out to people when they entered the Soviet courtroom. That has to immediately come to mind when you read the mandated confession that’s already printed on the chart ready for Vanderbilt faculty to use when they transgress this new set of guidelines.
As we go into the weekend, perhaps we just need to ponder this is the brave new world we have been promised in which we now see taking shape right before our eyes. And also as we go into this weekend, we recognize that Sunday is September 11, 2016, the 15th anniversary of the terror attacks in New York City and in Washington, D.C. that forever changed the trajectory of American history. Thousands of our fellow Americans died on that day when war was declared on America, and we are still facing the very same danger that has even been transformed into more dangerous forms in our own time. The 15th anniversary of an event of that magnitude at least demands our thoughts and our reflection and our prayers for the nation.