The court evangelicals get another chance to execute their political playbook

For many American evangelicals, Christian witness in the political sphere comes down to overturning Roe v. Wade. This is why the court evangelicals are so gleeful about Trump getting another Supreme Court nomination. This is also why they say virtually nothing about the president’s mishandling of COVID-19 (nearly 200,000 dead), his separation of families at the Mexican border, his environmental policies that will one day make the planet incapable of sustaining life, and his racism. Look for yourself. The silence is deafening. Start your research with these names:

Franklin Graham, James Robison, James Dobson, Jenetzen Franklin, Jack Graham, Paula White, Greg Laurie, John Hagee, Tony Perkins, Gary Bauer, Johnnie Moore, Ralph Reed, Robert Jeffress, Eric Metaxas, Jim Garlow, Jack Hibbs, Harry Jackson Jr., Luke Barnett, Richard Land, Jim Bakker, David Barton, Steve Strang, Samuel Rodriguez, Charlie Kirk, Lance Wallnau, and Jenna Ellis.

I imagine (again, I only imagine) that some of these people were on a conference call the moment Ruth Bader Ginsburg died. They no doubt started the session with prayer for the Ginsburg’s family and perhaps even threw-out a prayer or two for those suffering through COVID-19. And then, when the pleasantries were done, they got down to strategizing about how to best support the president’s forthcoming Supreme Court nomination and the most effective ways of spinning their 2016 claims that President Obama’s Supreme Court nominee–Merrick Garland–did not deserve a hearing in the Senate because it was an election year.

As I wrote yesterday, Robert Jeffress said that COVID-19 is mere “background noise” now that Ruth Bader Ginsburg is dead and Trump can appoint another conservative justice. Background noise? Tell that to the families who lost lives from COVID. What kind of world do we live in where a Christian pastor can say that the loss of 200,000 lives is unimportant and get virtually no push-back from his followers, all men and women who name the name of Jesus Christ?

Here is what the court evangelicals have been saying about the Supreme Court story:

Let’s start with Franklin Graham. Let’s remember that Barack Obama nominated Merrick Garland about eight months before the 2016 election:

And now Graham says the country is at a “boiling point” and needs prayer. He has no clue that he is partly responsible for the divisions in the nation and the church.

Southern Baptist seminary president Al Mohler tries to defend Mitch McConnell’s decision to reject Merrick Garland’s nomination in 2016. There is no reference to the Constitution or its interpretation. Mohler’s argument is weak, especially coming from a self-professed Constitutional originalist. I would like to see him defend this argument through a close reading of the Constitution as opposed to the weak reference to 1880 that he offers here. Mohler, who prides himself as an intellectual driven by logic, begins with the assumption that we need another conservative justice and then searches for an argument–any argument–to justify his political desires.

There is no doubt that President Trump will make a nomination to fill the vacancy, and there is now no doubt, thanks to a statement released by Senate Majority Leader Mitch McConnell, that the Senate will move forward on a confirmation process once the nomination is announced. Indeed, Senator McConnell stated, “In the last midterm election, before Justice Scalia’s death in 2016, Americans elected a Republican Senate majority because we pledged to check and balance the last days of a lame duck president’s second term. We kept our promise. Since the 1880s, no Senate has confirmed an opposite party president’s Supreme Court nominee in a presidential election year. By contrast, Americans reelected our majority in 2016 and expanded it in 2018, because we pledged to work with President Trump and support his agenda, particularly his outstanding appointments to the federal judiciary. Once again, we will keep our promise. President Trump’s nominee will receive a vote on the floor of the United States Senate.”

Ecclesiastes 10:1. Interesting choice of verse by Tony Perkins:

Here is Gary Bauer. It’s all about the Christian Right playbook. He actually believes that overturning Roe v. Wade will end abortion in the United States. As long as he keeps sticking to this playbook, the lives of unborn babies will remain a political football.

Hey Ralph Reed, why weren’t you making this argument in 2016?

Charlie Kirk of the Falkirk Center at Liberty University does not even want hearings for Trump’s new justice:

Kirk criticizes Ilhan Omar for being a “starter of fires” fueled by religion and skin color. Hmm…

For many evangelicals the 2020 election represents a simple choice: Trump will defend the pro-life movement, Joe Biden is pro-choice; Trump promises to appoint Supreme Court justices who will challenge–perhaps even overturn —Roe v. Wade, and Joe Biden will not. When it comes to dealing with the problem of abortion, the court evangelicals have been reading from the same political playbook for more than four decades. It teaches them that the best way to bring an end to abortion in America is to elect the right president, who, in turn, will support the right justices. Thus far, things seem to be going well: not only has Trump appointed pro-life justices Neil Gorsuch and Brett Kavanuagh, but he has appointed dozens of conservative judges to federal district courts across the country. Now, he will most likely get to appoint another conservative justice.

Still, it is not exactly clear how this strategy will bring an end to abortion in America. Chief Justice John Roberts, himself a devout Catholic, has called Roe v. Wade “settled as the law of the land.” Amy Coney Barrett, who appears to be Trump’s top pick to replace Ruth Bader Ginsburg, has said publicly that it is likely Roe v. Wade will not be overturned.

And even if Roe v. Wade is overturned by the Supreme Court, the issue will be sent back to the states. Abortion is very likely to remain legal in the so-called blue states, including California and New York, and illegal in many of the so-called red states, especially in the deep South.

State legislatures will need to decide how they will handle the abortion issue in the remaining states, but a significant number of them will probably allow abortion in some form. To put it simply, overturning Roe v. Wade will not end abortion in America. It may curtail the number of abortions, but it will bring our culture no closer to welcoming the children who are born and supporting their mothers.

The taking of a human life in the womb via the practice of abortion is a horrific practice. Modern technology shows us that a baby in the womb, especially in the last trimester, is alive. Christians should be working hard to reduce the number of abortions that take place in the United States–even working to eliminate the practice entirely.

But we have been under Roe v. Wade for long enough that several generations of Americans now believe that they have a right to an abortion. Such a belief is not going to change anytime soon. Conservative evangelicals and other pro-life advocates spend billions of dollars to get the right candidates elected because they believe that the Supreme Court is the only way to solve the problem of abortion in our society. Yet, most of these conservatives oppose “big government” and want to address social concerns through churches and other institutions of civil society. Imagine if all the money spent to support pro-life candidates was poured into these institutions.

How did we get to this place. Learn more here:

Trump launched his 2020 campaign tonight. Not much has changed since 2016.

Trump Tulsa

Earlier this evening, Donald Trump started his campaign with a rally in Tulsa, Oklahoma.

The number of coronavirus cases in Oklahoma is rising. Most of those who did attend the rally were not wearing masks. With the exception of U.S. Senator James Lankford, none of the politicians Trump asked to stand and be recognized–Senators James Inhofe and Tom Cotton, Representatives Jim Jordan, Debbie Lesko, and Elise Stefanik, and Governor Kevin Stitt–were wearing masks. Six of Trump’s rally staff tested positive for coronavirus this week.

The millions of attendees that Trump promised this week did not show up. It looked like he had a decent crowd in Tulsa’s Bank of Oklahoma Center (BOK), but it was much, much smaller than what the Trump team estimated. As I watched on television (C-SPAN), I saw a lot of empty seats. Trump and Mike Pence had to cancel an outdoor speaking event today because no one came.

Trump chose to say nothing about the country’s race problems. He did not bring-up George Floyd, Juneteenth, the country”s racial unrest, or the 1921 Tulsa Massacre. His silence spoke volumes.

I live-tweeted and retweeted the rally

This is what we mean by Christian nationalism. Pence uses this verse all the time and applies it to the United States. I wrote about the way the Christian Right uses 2 Chronicles 7:14 here and here. Russell Moore has a nice piece on this here.

Much of the material in the link above comes from my discussion of “law and order” and Nixon in Believe Me: The Evangelical Road to Donald Trump.

For those who can’t access the link in the above tweet, you can find it here. During the speech, Trump continued to extol his two Supreme Court justices, although he did not mention either of them by name. Readers will recall that we also looked at the Bostock case this week from the perspective of religious liberty and historical thinking.

I would love to know what was going through the mind of James Lankford during this rally. He does not seem like the kind of guy who likes these kinds of events. As we noted earlier this week, Lankford was behind Trump’s decision to move the Tulsa rally from June 19, 2020 (Juneteenth) to June 20, 2020.

Here is what Americans think about how Trump handled, and is handling, the coronavirus. His lies, mistruths, and partially true statements (at least before April 9, 2020) about the pandemic have been compiled here. The Associated Press reported that Trump “wasted” months before preparing the country for the virus. One could make a good case that Trump’s “America First” policy was to blame.

It is hard to pick the most disgusting thing Trump said tonight, but the above statement would be near the top. It reveals the inner-workings of Trump’s mind. Only a narcissist, who interprets everything through the lens of how it benefits his ambitions, would say publicly that there is a political downside to coronavirus testing.

The last five tweets cover the darkest moments of Trump’s speech

As noted above, Trump said nothing about race in America or Tulsa. Yet he spent a considerable portion of the speech talking about this:

John Gehring nails it. Court evangelicals, cover your ears:

Great observation from Kedron Bardwell:

Let’s remember that in 2016, Trump announced a list of  Heritage Foundation and Federalist Society judges. Neil Gorsuch and Brett Kavanaugh were on that list. Trump’s promise of a new list, of course, is a direct appeal to the white evangelical base. Trump knows that evangelicals vote for a president based predominantly on his or her promises of conservative Supreme Court appointments. Gorsuch’s majority opinion in the Bostock case will not change anything here. Trump is hoping this strategy will pay off again in November.

Matt Lewis may be correct, but I am pretty sure Trump will give it his best shot.

If you can’t read the link in the above tweet click here.

Here Trump seems to be making a statement about the self-interested nature of humanity and his constituency’s inability to rise above such selfishness. He is essentially saying something like: “I dare you to place your morality and what is right over a strong economy.  You don’t have the guts.” It all reminds me of his “I can stand in the middle of 5th Avenue and shoot somebody and I wouldn’t lose voters” line.

For more on John Hope Franklin Reconciliation Park, click here.

And the campaign has begun!

Will this week’s Supreme Court decision weaken Trump’s evangelical base in November?”

donald-trump-and-pastor-paula-white

Trump and Paula White

Here is a question I got asked a lot this week: “Do you think the recent Supreme Court decision will hurt Trump’s support among his white evangelical base?”

My answer: “I don’t think so, but…”

Let me explain.

Many white evangelicals are disappointed with Neil Gorsuch for his majority opinion in the recent LGBTQ Civil Rights case. If they are disappointed with Trump for appointing Gorusch, they are not saying anything.

But very few evangelicals have abandoned the Christian Right political playbook. This playbook teaches white evangelicals that electing  a president who will stack the federal courts with conservative justices is the best way to reclaim “Christian America.” Trump has executed this playbook well and most white evangelicals are willing to give him another “mulligan” on Gorsuch.

Moreover, most white evangelicals still believe Gorsuch will deliver for them if he gets a chance to rule on an abortion case. So what happened in the Supreme Court on Monday will not move the needle a great deal in November.

I prefer to see the recent SCOTUS case on LGBTQ rights in the larger context of 2020. Some evangelicals (but not many) thought Trump was guilty and should have been removed from office during the impeachment trial. Some evangelicals (but not many) thought Trump mishandled the pandemic. Some evangelicals (but not many) believe Trump is failing to adequately address racism in the wake of the killing of George Floyd. Some evangelicals (but not many) thought the Bible photo-op was wrong.

All of these things, when taken together, just might peel enough votes from Trump to give Biden the victory. Trump needs another 81% in 2020 and I don’t think he will get it. Perhaps he will get 70%, but that won’t be enough in such a tight race. If a small percentage of white evangelicals change their votes in Michigan, Wisconsin, Pennsylvania, Florida, Arizona, and North Carolina, Joe Biden will the 46th president.

Friday night court evangelical roundup

Trump Beleive me

What have Trump’s evangelicals been saying since yesterday’s update?

They are not technically “court” evangelicals, but they are definitely Trump evangelicals. The Harris family is back and they are now a Trump worship band:

Some of you may remember them from 2012:

The Harris’s are an evangelical homeschool family from Tulsa.

Alveda King, the niece of Martin Luther King Jr., seems to like the Harris family. She retweeted this today:

Glad to see Jentezen Franklin acknowledging Juneteenth:

Franklin Graham too:

Tony Perkins is beating the “law and order” drum:

He is also retweeting Secretary of State Mike Pompeo:

Al Mohler has not abandoned the Christian Right playbook in the wake of Gorsuch’s opinion in the recent LCBTQ Civil Rights decision:

Jim Garlow is writing about “biblical principles of economics.” I assume he means the part of the Bible written by Adam Smith:

Charlie Kirk forgot to mention the coronavirus mask designed by his friend and partner, Jerry Falwell Jr., president of Liberty University. But I guess that’s not technically blackface:

Kirk know something about the past, but his historical thinking skills need a lot of work:

Here we go again:

Thomas Kidd, Mark David Hall, Brooke Allen, and Steve Green will participate in a Falkirk Center forum. At least David Barton is not involved.

Robert Jeffress is back on Fox Business. Channel. Apparently Chick-fil-A is taking some heat.

Jeffress thinks that racism will “evaporate overnight” if people just turned to God. Again, he fails to see that the sin of racism is structural–it is deeply embedded in our all of our institutions.  I recall the argument of  James Davison’s Hunter‘s book To Change the World”: The Irony, Tragedy, & Possibility of Christianity in the Late Modern World. In that book, Hunter argues that individual transformation is not the best way to change the world. True change does not happen through some kind of Protestant populism, but rather by the “work of elites: gatekeepers who provide creative direction and management within spheres of social life.” Such change takes generations and it can only “be described in retrospect.” Individual spiritual transformation can bring about good ends, but it does not change the “moral fabric” or “DNA of a civilization.” I think Hunter’s words are an important reminder that the eradication of systemic racism is going to take a long time and a lot of work.

Jeffress also defends the phrase “all lives matter.”

Until next time.

Thursday night court evangelical roundup

Trump Court Evangelicals 2

What have Trump’s evangelicals been saying since yesterday’s update?

Trump wonder-boy Charlie Kirk, a political pundit and co-founder of the Liberty University Falkirk Center, is upset with the Supreme Court after it ruled Trump could not end the DACA program:

Jenetzen Franklin’s new bookAcres of Diamonds: Discovering God’s Best Right Where You Are, shares a title with Russell Conwell‘s famous prosperity gospel lecture. Here is a quote from Conwell’s sermon: “I say that you ought to get rich, and it is your duty to get rich.”

Jack Graham wants his followers to stay away from current events so they can clear their minds and “focus our thoughts on God’s Word and doing His will.” He implies that focusing one’s life on God’s word and “doing his will” is something different than bringing Christian truth to bear on current events. I am not sure this is the time for Christians to retreat to the prayer closet.

Tony Perkins is retweeting a clip from a speech by Missouri Senator Josh Hawley. His comment on the speech is a convoluted mash-up of God and politics that fuses American values with Kingdom values all in service of making America Christian “again.”

If you read through Perkins’s twitter feed you will find him quoting a lot of scripture. But all the verses he cites are meant to be read through the lens of his Christian nationalist political agenda.

Perkins said we should support Trump because he will deliver on conservative Supreme Court justices. His article today at Family Research Council reveals the sense of betrayal he feels after Neil Gorsuch’s opinion in the recent LGBTQ civil rights decision. He blasts the court for being too political. Interesting. For many court evangelicals, the Supreme Court is only “too political” when it makes decisions that the Christian Right does not like.

Eric Metaxas had Pat Boone on his radio show and tried to get Boone to say that he is not in the Rock n’ Roll Hall of Fame because he is an outspoken Christian. Boone thinks he belongs in the Hall of Fame because of his music, but he won’t bite on Metaxas’s suggestion that he faces discrimination because of his faith.

The Eric Metaxas Show is Trumpism disguised as Christian radio.

Until next time.

Wednesday Night Court Evangelical Roundup

Court Evangelicals at Table

Since my last update, a few things have changed in court evangelical land. Neil Gorsuch, one of two Donald Trump Supreme Court nominees, has defended LGBTQ rights and has proven he may not be the best court evangelical ally when it comes to questions of religious liberty. I imagine some evangelicals who are looking for a reason to reject Trump at the ballot box in November may have just found one.

Police reform and debates over systemic racism continue to dominate the headlines. On the COVID-19 front, more and more churches are opening this weekend and Donald Trump is preparing for a rally in Tulsa, Oklahoma.

What do the court evangelicals have to say?

In an interview with Charisma magazine, James Dobson writes:

In an outrageous ruling that should shake America’s collective conscience to its core, the U.S. Supreme Court has redefined the meaning of “sex” under Title VII of the Civil Rights Act to include “gender identity” and “sexual orientation.” Not only was this decision an affront against God, but it was also a historical attack against the founding framework that governs our nation.

Dobson says nothing about Trump or how Gorsuch burned white evangelicals on this decision.

I don’t know if Louie Giglio supports Trump, but he is now apologizing for his use of the phrase “White Blessing”:

The apology seems honest and sincere.

Jenetzen Franklin praises Trump as a great listener and defender of law and order.  But Trump’s police reform speech failed to address the systemic problem of racism in America. It attacked Obama and Biden and it defended Confederate monuments. Is this big action?

Johnnie Moore, the guy who describes himself as a “modern day Dietrich Bonhoeffer,” is doing the same thing as Jenetzen:

Greg Laurie interviewed South Carolina Senator Tim Scott on police reform. Scott talks about the “character” of police officers and shows a solid understanding of the Bible, but the issues of racism in America go much deeper than this. I encourage you to listen to Gettysburg College professor’s Scott Hancock upcoming interview at The Way of Improvement Leads Home Podcast.

The Laurie-Scott conversation is a step in the right direction, but it focuses on striking a balance between law and order (Scott quotes Romans 13) and individual acts of racism.  The real conversation should be over to have an ordered society and address systemic racism. Today, for example, Scott said that the United States is not a racist country.

Robert Jeffress is “thrilled” to have Mike Pence speak at his church for “Freedom Sunday.” Expect fireworks. Literal fireworks! Once again, it will be God and country on display.

Here is another view of Pence.

Last Sunday, Jeffress addressed the Floyd murder and its aftermath with his congregation at First Baptist-Dallas. He summarized his response to our current moment in three statements:

1. God hates racism. Jeffress FINALLY admits that First Baptist Church was on “the wrong side of history” on matters relating to race. This is a huge step! It would have been nice to have this history included in the church’s 150th anniversary celebration, but I don’t think I have ever heard Jeffress say this publicly.  Let’s see where this goes. First Baptist-Dallas has some reckoning with the past to do.

2. God hates lawlessness. Jeffress says that there is “nothing wrong” with peaceful protests, but he condemns the looting and riots. He does not say anything about the root cause of the riots. One more question: Does God hate Christians who disobey unjust laws? I think Martin Luther King Jr. had something to say about that. So did most of the patriotic pastors during the Revolution. You know, the guys who created America as a “Christian nation.”

3. Racism and lawlessness is not the problem, the problem is sin. Agreed. The sin of racism pervades every institution in America. In order to address the problem of racism we need to go beyond mere calls for personal salvation. American history teaches us that some of the great evangelical revivals led to abolitionism and other forms of social justice. At the same time, some of the great evangelical revivals led to a deeper entrenchment of racism in society. Jeffress’s church, which celebrates its history of soul-winning, is one example. Also, let’s remember that when Frederick Douglass’s master got saved during an evangelical revival, he became more, not less, ruthless in his treatment of his slaves. We will see what happens this time around, but individual spiritual regeneration does not always solve the deeply embedded problems of race in America.

Now I want to hear how this generally good, but also insufficient, message applies to Jeffress’s support of Donald Trump.

James Robison is right. But so is Jurgen Moltmann when he said that Christians must “awaken the dead and piece together what has been broken“:

Tony Perkins is talking with David Brat, the dean of the Liberty University School of Business, about law and order and the breakdown of K-12 and higher education. Perkins thinks the real problem in America is a “lack of courage.” I did a post about courage a few weeks ago.

Brat wants Christians to be “prophets, priests, and kings.” Yes. Here is something I wrote last month about such royal language:

What does it mean, as Scot McKnightN.T. Wright, and Matthew Bates, among others, have argued, that Jesus is King? What role do Christians play as a royal priesthood, proclaiming the truth of God to the darkness and, as Wright puts it, “reflecting God’s wisdom and justice into the world.”And there’s the rub. Reed’s Kingdom of God, and the Kingdom of God as understood by many conservative evangelicals, looks the other way when a ruler from another kingdom (so to speak) practices immorality. They do not seem to take their citizenship in this Kingdom as seriously as they take their American citizenship or, at the very least, they seem unwilling to say more about the tensions between the two. (There is, of course, a deep history behind the conflation of these two kingdoms).

Gary Bauer just retweeted this:

Perhaps he should have made a caveat for Christians in prayer. But let’s face it, the court evangelicals don’t do nuance very well.

Ralph Reed is fully aware of the fact that Gorsuch and Roberts have betrayed him and his followers. Yet don’t expect him to throw out the Christian Right playbook anytime soon. Ruth Bader Ginsburg is ready to retire and Reed will no doubt try to make the 2020 election about the Supreme Court:

Rob McCoy, the pastor of Calvary Chapel of Thousands Oaks in Newbury Park, California, invited Charlie Kirk, the Trump wonderboy, to preach at his church last Sunday. McCoy introduced him by quoting Philippians 4:8: “Finally, brothers and sisters, whatever is noble, whatever is right, whatever is pure, whatever is lovely, whatever it admirable–if anything is excellent or praiseworthy–think about such things.” Kirk then got up and gave a fear-mongering political speech that ripped evangelical pastors who have participated in anti-racist protests. At one point, Kirk told the Christians gathered on this Sunday morning that if the Left “takes him down” he “will be on his feet” not “on his knees.” This was an applause line. If you want to see hate preached from an evangelical pulpit, watch this:

And let’s not forget Charles Marsh’s twitter thread exposing Eric Metaxas’s use of Dietrich Bonhoeffer to attack Black Lives Matter.

Until next time.

When it comes to Supreme Court decisions, context matters. But whose context?

Context

Earlier today, I published two posts on yesterday’s Supreme Court decision on LGBTQ rights. The first post addressed the politics of the decision and what it means for white evangelical support for Donald Trump. The second post dealt with the religious liberty issues at stake. I encourage you to look at them to get up to speed. Here and here.

In this third post, I want to think historically about both the majority and dissenting opinions.

Over at Think, Jessica Levinson, a law professor at Loyola Law School in Los Angeles, explains the conservative judicial philosophy Justice Neil Gorsuch employed in coming to his decision in Bostock v. Clayton County, Georgia and the other consolidated cases. Title VII of the Act forbids “discrimination because of race, color, religion, sex , or national origin.” The debate, of course, is over the meaning of the word “sex.” Gorsuch interpreted “sex” to cover LGBTQ rights.

In another piece, Levinson describes Gorsuch’s textualism. She writes,

Typically, conservative judges and lawyers adhere to the idea that in determining the meaning of words in a law, you look only at those words. You do not look at the context in which the law was passed, or congressional intent. This is called textualism.

No historian would treat a text this way. Frankly, I am not entirely convinced that Levinson offers an accurate description of how most textualists interpret a text. As we will see below, it is certainly not how Justice Samuel Alito or Justice Brett Kavanaugh understand textualism.

But historical context can also be a tricky thing. Gorsuch appears to have ignored it. He writes in his majority opinion:

Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids

Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination of the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statue give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.

A couple of quick observations about these two paragraphs:

  1. Does the meaning of a word really exist outside of its historical context? Are we to assume that all words have universal meanings across time? A historian would answer both questions with an emphatic “no.” Historians do not subscribe to the kind of textualism that Gorsuch describes here.
  2. Is Gorsuch correct when he says that the “those who adopted the Civil Rights Act” could never have imagined it being applied to the gay community? This is an honest question. I am assuming Gorsuch is correct, but I am not up to speed on the scholarship here.

In their dissenting opinions, Samuel Alito and Brett Kavanaugh also appealed to the text of the Civil Rights Act of 1964, but they interpreted the meaning of the word “sex” in historical context.

Here is Alito:

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on any of the five specified grounds: “race, color, religion, sex [and] national origin. Neither “sexual orientation” nor “gender identity” appears on that list.

Alito argues that unless the document specifically says “sexual orientation” or “gender identity,” the Civil Rights Act could not have encompassed these things. He suggests that “sexual orientation” and “gender identity” do not fall under the category of “sex.”

Alito challenges Gorsuch’s textualism with the ideas of the late Antonin Scalia:

The Court attempts to pass off its decision as the inevitable product of the textualist school of statutory interpretation championed by our late colleague Justice Scalia, but no one should be fooled. The Court’s opinion  is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated–the theory that courts should “update” old statues so that they better refelct the current values of society.”

Alito argues that we need to understand the meaning of the word “sex” in the context of the 1960s. He writes:

Determined searching has not found a single dictionary from that time that defined “sex” to mean sexual orientation, gender identity, or “transgender” status. In all those dictionaries, the primary definition of “sex” was essentially the same as that in the then-most recent edition of Webster’s New International Dictionary (2d ed. 1953): “[o]ne of the two divisions of organisms formed on the distinction of male and female.”

Alito continues:

Thus when textualism is properly understood, it calls for an examination of the social context in which a statue was enacted because this may have an important bearing on what its words were understood to mean at the time of enactment. Textualists do not read statues as if they were messages picked up by a powerful radio telescope from a distant and utterly unknown civilization. Statutes consist of communications between members of a particular linguistic community, one that existed in a particular place and at a particular time, and these communications must therefore be interpreted as they were understood by that community at that time.

For this reason, it is imperative to consider how Americans in 1964 would have understood Title VII’s prohibition of discrimination because of sex. To get a picture of this, we may imagine this scene. Suppose that, while Title VII was under consideration in Congress, a group of average Americans decided to read the text of the bill with aim of writing or calling their representatives in Congress and conveying their approval or disapproval. What would these ordinary citizens have taken “discrimination because of sex” to mean? Would they have thought that this language prohibited discrimination because of sexual orientation or gender identity?

The answer could not be clearer. In 1964, ordinary Americans reading the text of Title VII would not have dreamed that discrimination because of sex meant discrimination between sexual orientation, much less gender identity. The ordinary meaning of discrimination because of “sex” was discrimination because of a person’s biological sex, not sexual orientation or gender identity. 

Alito is writing like a historian here. He wants to understand the 1964 Civil Rights Act in context. This is historical thinking 101. But while judges use historical thinking skills, they are not historians. They are tasked with applying the past to the present.

Brett Kavanaugh’s dissent is shorter, but it also draws on historical context. Here is a taste:

As to common parlance, few in 1964 (or today) would describe a firing because of sexual orientation as a firing because of sex. As commonly understood, sexual orientation discrimination is distinct from , and not a form of, sex discrimination.

He adds:

[The majority opinion rewrites history. Seneca Falls was not Stonewall. The women’s rights movement was not (and is not) the gay rights movement, although many people obviously support or participate in both. So to think that sexual orientation discrimination is just a form of sex discrimination is…a mistake of history and sociology.

Again, any historian would have to agree, to some extent, with Kavanaugh’s logic. We try to get our students to see that Seneca Falls and Stonewall were indeed different movements in the same way that the American Revolution, the French Revolution, and the Russian Revolution were fundamentally different “revolutions.” We resist the social scientist’s tendency to clump all “revolutions” or “reform movements” together. Each movement took place in a particular time and place amid a different set of circumstances.

At the same time, we also treat Seneca and Stonewall as part of a larger story of American reform. It is appropriate, at times, to talk about common themes–such as the appeal to the ideas of the Declaration of Independence–that drive this larger and broader story.

But, again, historians are not justices. We are not primarily in the business of telling people what to do with the information we provide and the skills we teach. Kavanaugh was a history major at Yale. During his years studying history, he no doubt learned about Seneca Falls and Stonewall. He also learned to think critically,  make an argument, understand historical context, and reflect on the many ways the past relates to the present. He is now using those skills, guided by a particular judiciary philosophy, to make Supreme Court decisions. His professors at Yale taught him these skills, but they could not tell him how to use them in service to the law. (Although I am imagining that some of them tried).

What strikes me about yesterday’s Supreme Court decision is the fact that it played out, at least in the opinions, as a debate over how to interpret Antonin Scalia’s judicial philosophy . This happened because Chief Justice John Roberts assigned the majority opinion to Gorsuch rather than to one of the Court’s liberal justices.

If Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, or Elena Kagan wrote the majority opinion, I imagine it might have also appealed to historical context, but in a much broader way.  Levinson suggests what such an interpretation of the Civil Rights Act of 1964 might look like in this case if one of the liberal justices had weighed-in:

Liberal judges and lawyers, however, generally believe that it is appropriate to look beyond the words of the law and at the history and context around the law. But there was no such thing as sexual orientation protections in the 1960s, when the Civil Rights Act was passed, so “sex” in the history and context of the law was not meant to apply to LGBT Americans.

As a matter of policy, LGBT rights should be situated clearly within the larger struggle for civil rights, and discrimination on the basis of gender identity or sexual orientation  should be outlawed in every workplace in the nation.

Again, context is tricky and this case shows that much of the law rests on how much weight a given justice gives to this important “C” of historical thinking.

When evangelicals put their faith and trust in presidents and Supreme Court justices

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Yesterday the Supreme Court of the United States, in a 6-3 decision, held that an employer who fires an individual merely for being gay or transgender violates Title VII of the Civil Rights Act of 1964. Trump-appointed justice Neil Gorsuch wrote the majority opinion. Justice Samuel Alito wrote a dissenting opinion. So did Trump-appointed justice Brett Kavanaugh.

Politically, the story centers on Gorsuch. Let’s remember that many white evangelicals voted for Donald Trump in 2016 because they believed he would appoint conservative Supreme Court justice who would overturn Roe v. Wade and protect their religious liberties. When white evangelicals talk about religious liberties, the right to uphold views of traditional marriage and sexuality at their institutions, and still maintain their tax-exempt status and have access to federal funding programs, are at or near the top of the list.

For example, in Believe Me: The Evangelical Road to Donald Trump, I wrote:

Court evangelicals, for example, believe that a Trump administration will protect Christian colleges and universities from losing their religious exemptions, exemptions that allow them to receive federal money despite their religious opposition to the practice of homosexuality and gay marriage. One school that would have a lot to lose if these exemptions were to disappear is Liberty University. Jerry Falwell’s school does not allow faculty members who are gay, and it has taken strong stances against gay marriage and other related matters of sexual ethics. In 2015, Jerry Falwell Jr. no doubt has his eye on the controversy surrounding a bill in the California legislature that would remove Title IX religious exemptions for private liberal arts colleges that are opposed to gay marraige or refuse to hire gay faculty. The sponsors of the bill believed that such rules represented a form of discrimination against LGBTQ students attending those schools. Biola University, a liberal arts college in Los Angeles, along with several other California Christian colleges and universities, argued that the bill, if passed, would not only violate their religious liberties but would prevent low-income students in need of financial aid from attending their institutions.

The California bill had no bearing on federal funding or institutions outside California, but it still raised much fear among Christian colleges throughout the country. Liberty University students received $445 million in federal student loans, the highest today of any four-year university in Virginia and the eighth-highest in the nation. (The high ranking in both categories is due, in part, to the sheer size of the Liberty student body.) 

Many white evangelicals hoped that Trump would end these problems by appointing Supreme Court justices who would make sure that schools like Liberty, Biola, and dozens more Christian colleges, including my own institution, Messiah College, would get religious exemptions.

Again, here is Believe Me:

When conservative Supreme Court justice Antonin Scalia died suddenly on a quail hunting trip in Texas, and it became clear  that the Republican-controlled Senate would not provide a hearing for Merrick Garland, Barack Obama’s appointee to replace Scalia, the presidential election of 2016 became a referendum on the future of the high court. Scalia was a champion of the social values that conservative evangelicals hold dear, and it was now clear that the newly elected president of the United States would appoint his successor.

[Texas Senator Ted] Cruz seized the day. Two days after Scalia died and five days before the 2016 South Carolina primary, Cruz released a political ad in the hopes of capitalizing on evangelical fears about the justice’s replacement. With a picture of the Supreme Court building as a backdrop, the narrator said, “Life, marriage, religious liberty, the Second Amendment. We’re just one Supreme Court justice away from losing them all.” In an interview with NBC’s Meet the Press, Cruz said that a vote for Hillary Clinton, Bernie Sanders or Donald Trump could lead American citizens to lose some of their rights. “We are one justice away from the Second Amendment being written out of the constitution altogether,” he said, “and if you vote for Donald Trump in this next election, you are voting for undermining our Second Amendment right to keep and bear arms.” Cruz pushed this appeal to evangelical fear even harder at a Republican Women’s Club meeting in Greenville, South Carolina. He told these Republicans voters that the United States was “one justice away” from “the Supreme Court mandating unlimited abortion on demand,” and for good measure he added that it was only a matter of time before the federal government started using chisels to “remove the crosses and the Stars of David from the tombstones of our fallen soldiers.”

“One justice away.” That  one justice was Neil Gorsuch.

Cruz, of course, did not get the nomination. But as a I argued in Believe Me, Trump watched him (along with Marco Rubio, Ben Carson, and other Christian Right favorites) carefully in order to learn how to tap the white evangelical vote. Here is more from the book:

…Trump pulled out his most important move to win over conservative evangelicals who were still skeptical about his candidacy on May 18[,2020]. On that day, the soon-to-be-GOP nominee released the names of eleven judges whom he said he would consider nominating to the Supreme Court. It was a move straight out of the playbook. The list was put together with input from the Heritage Foundation, a conservative think thank known for defending traditional marriage, opposing abortion, and fighting for the right of religious institutions to avoid government interference. On July 13, 2016, the Pew Research Center released a study showing that evangelicals were rallying to Trump, and it predicted that 78 percent of white evangelical voters would support him in November.

Neil Gorsuch was on that list.

Many court evangelicals are not happy with Gorsuch’s majority opinion:

Franklin Graham has responded here.

We will see how this all plays out politically, but there are still some serious religious liberty questions that need to be addressed in the wake of this Supreme Court decision. Stay tuned. In my next post on this subject, I will address the way other evangelicals and faith-based institutions are responding to this decision, particularly as it relates to religious liberty.

Understanding the Supreme Court Decision on Trump’s Travel Ban

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Some nice context here from CNN writer Chris Cilizza.  Here are his “5 takeaways“:

 

  1. “Elections matter. A lot.”
  2. “This is as much Mitch McConnell’s victory as it is Donald Trump’s”
  3. “The President has loads of power”
  4. “The court didn’t take Trump literally”
  5. “The court wanted to make clear it wasn’t endorsing past Trump statements on Muslims.”

See how Cilizza develops these points here.

Not Everyone Who Studies the Past is a Historian

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A couple of weeks ago Stanford history professor Jonathan Gienapp published a critique of the so-called “originalist” approach to the interpretation of the U.S. Constitution.  Gienapp showed the difference between the ways historians think about the Constitution and the ways judges and lawyers think about it.

Georgetown law professor Randy Barrett responded to Gienapp’s piece here.

And now Gienapp has responded to Barrett with another lengthy post that is, once again, worth reading for it’s articulation of how historians approach the past, particularly the founding era. It is a great reminder that not everyone who studies the past is a historian and it returns to the old debate between the past as “usable” and the past as a “foreign country.”

Here is just a small taste of his piece at Process blog: “Knowing How Vs. Knowing That: Navigating the Past.”

…in discussing the art of thinking historically, I talked in my initial essay about how historians take up residence with the natives of the past, how they immerse themselves in their subjects’ logics and assumptions in order to think as they once did. The reason why is something of an article of faith in the profession: that the past is a foreign country. As Rhys Isaac once persuasively put it, “Whether one moves away from oneself in cultural space or in historical time, one does not go far before one is in a world where the taken-for-granted must cease to be so. Translation then becomes necessary. Ways must be found of attaining an understanding of the meanings that the inhabitants of other worlds have given to their own everyday customs.”[6] The past, in others words, comes to us encoded in a foreign language. If we wish to understand the original meaning of historical texts, we have to translate them. This is what historians mean when they say that understanding historical texts in their original forms requires restoring them to their original historical context.

Here is where things often seem to get stuck, though—because originalists, Professor Barnett included, seem to agree with these claims. They recognize that meaning needs to be contextualized and that the past is different than the present. Originalism would not make much sense unless followers assumed that the Constitution means something different now than at the time of its inception. So we need to be especially clear on how historical practice and Originalism 2.0 actually diverge. The key is not that meaning needs to be put in context (everybody thinks that), it is, instead, figuring out which context and why.

Those questions can only be answered by first determining just how different the past really was from the present. Historians believe that the past is far more foreign than champions of Originalism 2.0 do. Because they believe the past is so foreign, historians insist upon a much wider and more far-reaching brand of translation than originalists think is necessary. And because they demand this kind of translation, historians call for a much deeper form of contextualization than originalists do.

Everything then begins with the foreignness of the past. To understand the past we must, as the historian Robert Darnton once articulated it, “put back together symbolic worlds that collapsed centuries ago.”[7] Where this seems to become a problem for originalist-historian debates is not in discussing the “past” in broad terms, but the past period that is most immediately relevant to originalist inquiry—the American Founding. The unwitting assumption upon which most originalist writings are based is that the era of the American Founding is rather easily accessible, that it is not that different from the conceptual world in which we currently reside. After all, not only did Founding-era Americans speak English and seem to draw upon many of the same concepts that still animate us today—such as “liberty,” “rights,” “happiness,” or “the state”—they also inaugurated many of the political and constitutional traditions in which we still find ourselves. Professor Barnett betrays this assumption clearly when discussing lawyers’ expertise in reading legal texts: why, he asks, would historians be better equipped to read a law enacted in the eighteenth century when they are unable to read one enacted in the twenty-first? Is Professor Barnett saying, generally, that as a lawyer he is always better equipped than other scholars to read legal texts—that he is better armed to decipher Qing dynasty legal texts than Chinese historians; or local civil suits in colonial West Africa than African historians and anthropologists; or the Justinianic Code than Byzantine historians? I assume not. So most legal texts produced in other times and places are actually not subject to the legal expertise of American lawyers. His point must simply be that those produced at the time of the American Founding are. The only justification for this distinction could be that those late eighteenth-century American texts are written in a conceptual vocabulary that is readily accessible to an American lawyer in a way that Qing dynasty legal texts or colonial West African civil suits or the Justinianic Code are not. That is the argument Professor Barnett, and most other originalists who have weighed in on this debate, are really making.

Here is the critical divergence, because historians of the Founding era (like historians generally) adamantly reject this claim. The most important scholarship on Revolutionary America has pierced the veneer of familiarity that unites the present and this historical period and shown that the Revolutionaries’ guiding assumptions were strikingly different than our own. As Gordon Wood so revealingly put it to begin his immensely influential, The Creation of the American Republic, “As I explored [the revolutionaries’]pattern of beliefs, it became evident that” the prevailing interpretive approach to the American Founding had “been deeply ahistorical, there had been too little sense of the irretrievability and differentness of the eighteenth-century world.”[8] Even though the Revolutionaries used words and ideas that bore a superficial resemblance to our own, beneath this seeming familiarity lay a largely alien conceptual world that, Wood showed, had to be reconstructed in its totality from within.

Read the entire piece here.

Mary Sarah Bilder on “Originalism”

6c546-madisonSome of you may recall our Author’s Corner interview with Mary Sarah Bilder on her book Madison’s Hand” Revising the Constitutional Convention.

Yesterday Bilder turned to the pages of the Boston Globe to challenge the “originalist” interpretation of the United States Constitution.

Here is a taste:

The tradition of American constitutionalism, practiced by judges of all political persuasions over two centuries, has always held out an important place for history in the interpretation of the Constitution. But originalism is not constitutionalism. When the word “originalism” began appearing in legal periodicals in the 1980s, a number of influential scholars and judges, primarily on the right, quickly came to treat it as the sole legitimate method to decide constitutional cases. Originalists initially thought that the judge should interpret the text of the Constitution according only to the intent of the men who drafted and ratified it. Today, most originalists contend that a judge should abide by the text’s “original public meaning” — a term of art that originalist scholars have written thousands of pages trying to explain.

Originalism reads our Constitution as if it were a modern technical contract written by experienced lawyers or a contemporary statute written by a team of legislators and staffers, parsing and perfecting every word as they wrote it.

Yet this vision of the Constitution is far different from what we see when we read the historical sources of that moment. In 1787, the framers were struggling to save the United States from division, potential invasion, and collapse. No one had the luxury of even imagining that each and every word possessed an invariable, sacred meaning.

Read the entire piece here.

What Would the Founding Fathers Think About Originalism?

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Andrew Shankman, author of Original Intents: Hamilton, Jefferson, Madison, and the American Founding and the author of my favorite review of one of my books, says “not much.”

Here is a taste of his piece at History News Network:

President Trump’s nomination of Neil Gorsuch to the Supreme Court likely ensures the continued significance of originalism for constitutional interpretation. Originalism is a complex legal theory. But boiling it down, it means that judges and lawmakers are bound by the meaning the words in the Constitution had when it was ratified. The original public meaning of those words cannot change. Pressing contemporary issues and compassionate wishful thinking cannot allow the words of the Constitution to justify actions that were not intended when the Constitution became the nation’s fundamental law.

Is the claim for an original intent historically defensible? Exploring the constitutional thought and actions of Alexander Hamilton, Thomas Jefferson, and James Madison shows that it is impossible to ascribe a single original intent to even so small a group of critically important founders. Instead, we find multiple original intents and competing meanings. With Hamilton and Madison, two of the most vocal members of the Constitutional Convention, we find, though in very different ways, endorsement of a living, expansive, and flexible Constitution, one that changes with the times and over time.

Testing originalism by investigating the first great constitutional conflict after ratification undermines the claim that the Constitution had one single and stable public meaning for the founding generation. In December 1790 Hamilton, the Secretary of the Treasury, issued a report calling for the national government to grant a corporate charter for a national bank. The bank would manage the large public debt and safely house federal tax revenue. Madison, a national congressman, and Jefferson, the Secretary of State, were appalled and insisted that the bank was unconstitutional because the Constitution did not grant the national government the authority to charter corporations.

Read the rest here.

I also recommend Jonathan Gienapp’s piece at Process, “Constitutional Originalism and History.”

Pepperdine Law Prof: Gorsuch Will Be Another Anthony Kennedy

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This is a very  interesting interview with Pepperdine University Law School professor and Barack Obama supporter Douglas Kmiec.  He tells National Public Radio  today that he thinks Trump’s Supreme Court nominee Neil Gorsuch is ideologically closer to Anthony Kennedy than he is to Clarence Thomas, Samuel Alito, or John Roberts.  Kmiec also believes that Gorsuch would probably have supported the majority in Obergfell v. Hodges. (He admits that many conservatives will not like this).

Listen here.

When “Principled Constitutionalists” Put Politics Over the Constitution

Watch the first five minutes of this CNN interview with Texas Senator Ted Cruz:

Cruz is rejoicing today that Trump nominated a “principled Constitutionalist” to the Supreme Court.  He is not alone.  Conservatives all over the country are singing the praises of Neil Gorsuch.  As I argued last night, it seems Gorsuch is more than qualified to serve on the bench.  But what disgusts me is the hypocrisy of it all.  “Principled Constitutionalists” like Cruz DID NOT FOLLOW THE CONSTITUTION with the Merrick Garland pick.  In this interview Cruz said that he and his fellow GOP Senators thought it was best to keep open the seat vacated by the death of Antonin Scalia because it was an election year and “the people” should be able to decide who the next Supreme Court justice should be through their choice for POTUS.  That may sound like a reasonable request, but it has no Constitutional support.  The Constitution requires the POTUS to nominate a justice and the Senate to advise and consent.  In this case, the Senate did not fulfill its duty.  It did not follow the Constitution.  So please spare me the “principled Constitutionalist” language.

Ted Cruz is a product of the Christian Right’s rise in the 1980s.  He has no political career without the culture wars.  He touts his credentials as a strict constitutionalist but he is really just another politician who will depart from his constitutional principles at the drop of a hat if he can gain political points.

I would love to hear what Gorsuch thinks about the Senate’s failure to give Garland a hearing?  Heck, I wish I could hear what Scalia would have thought about it.

Trump Delivered for Evangelicals

gorsuchHere is what I wrote in a Religion News Service piece back in August:

(RNS) The most important day of Donald Trump’s campaign for the presidency was May 18, 2016.

On that day, the soon-to-be GOP nominee released the names of 11 judges he would consider nominating to the Supreme Court. The list was put together with input from the Heritage Foundation, a conservative think tank known for defending traditional marriage, opposing abortion and fighting for the right of religious institutions to follow their conscience on these matters (and others) without government interference.

By suggesting that he would appoint conservative justices, and actually naming their names, Trump made huge inroads among evangelical voters. This is because many of Trump’s evangelical supporters are still using the 40-year-old political playbook written by Jerry Falwell, Pat Robertson and other founders of the so-called Christian right.

Trump’s promise to promote a conservative justice probably won him the presidency.  And now he is keeping his promise to the 81% of evangelical voters who pulled the level for him last November.

I don’t know much about Neil Gorsuch, but he looks like a solid pick.  Liberals are not going to like him, but let’s face it–they lost the election.   Gorsuch is the kind of choice that any conservative POTUS would have chosen.

Right now the liberal press is making it sound like Gorsuch is some kind of extreme conservative pick unlike anything they have ever seen before.  Not true.  Gorsuch is really no different than Clarence Thomas, Sam Alito, Antonin Scalia, and John Roberts.  It is telling that Trump picked someone who respects the institution of the Supreme Court and did not go with a more extreme pro-life crusader like William Pryor Jr.

It will be interesting to see how the Democrats respond, especially since Mitch McConnell’s decision to block Merrick Garland is still fresh in their minds.  I lost nearly all respect for McConnell and the GOP when they threw the Constitution out the window and refused to give Garland a hearing.  I wrote about it last March in a piece at Fox News. Frankly, McConnell turns my stomach every time I see him on television.  I never want to hear him and his GOP cronies talk again about their reverence for the Constitution.  In fact, as I type this I am watching conservative commentary Sean Hannity on Fox News.  He keeps praising Gorsuch as a “constitutionalist” and talking about his own love of the Constitution.  I assume that a “constitutionalist” follows the Constitution.  Hannity and his friends in the Senate did not do this with the Garland nomination.

So what will the Senate Democrats do with Gorsuch?  Will they play the “eye for an eye” card.  Probably.

Will they practice what Reinhold Niebuhr called the “spiritual resistance against resentment?”  I doubt it.   This is about revenge.  The political sphere is a dark, hateful, and angry place.

The Democrats will try to block the nomination of Neil Gorsuch.  It will be a long shot, but they will try.  It is going to be very ugly.  If they do manage to succeed, Donald Trump will simply appoint another nominee that they will not like and the circus will begin again.

When will it end?  When will our national open wound start to heal?  Not anytime soon.