Tag: Supreme Court

A Judge and #MeToo

Credit: Wikipedia

Last week was a raucous one in politics.  Last Sunday, The Washington Post published a bombshell investigative report detailing allegations of sexual assault against President Trump’s nominee to the Supreme Court, Brett Kavanaugh.  Christine Blasey Ford, a professor of clinical psychology at Palo Alto University, claimed that Judge Kavanaugh, at a party in the early 1980s, when they were both in high school:

…pinned her to a bed on her back and groped her over her clothes, grinding his body against hers and clumsily attempting to pull off her one-piece bathing suit and the clothing she wore over it. When she tried to scream, she said, he put his hand over her mouth.

The details of this account, if true, are deeply distressing.  Yesterday, another accusation was leveled against the judge, this one concerning some sexually aggressive behavior in his college years during an alcohol-fueled party.  Hearings on the initial accusation are tentatively set to begin on Thursday.

While these stories continue to unfold, and facts, evidence, and debate continue to trickle – and, in some instances, flood – in, there are some important lessons for us to consider from what we already know.

We can learn something about honor.

Whether or not these accusations ultimately prove to be credible, this much is indisputably true:  we live in a culture that has lost its way sexually.  These allegations may turn out to be false.  But so many others have turned out to be, if the preponderance of evidence is to be believed, true.  Harvey Weinstein.  Les Moonves.  Charlie Rose.  Bill Cosby.  Al Franken.  Roy Moore.  Matt Lauer.  Kevin Spacey.  Steve Wynn.  And there are many more.

This must stop.  Sex is not a right, a rite of passage, or an unrestrainable drive.  Sex was created to be an expression of love and commitment, which sometimes results in the blessing of children, between a husband and a wife in marriage.  Committing to a woman publicly before God and a group of witnesses to be a faithful, gentle, and servant-hearted husband till death do you part is the most honorable thing a man can do for a woman before he lays a hand on her sexually.  Ripping sex out of this commitment and context provides a seedy breeding ground for sexual entitlement instead of gentle chivalry.

We can learn something about power.

Dr. Ford’s allegation against Judge Kavanaugh first came to light in the middle of a contentious and hyper-politically-charged Supreme Court confirmation hearing.  Sadly, partisans on both sides have proven to be more concerned about the political power in play than the moral rectitude at stake.  From a supporter of Judge Kavanaugh came an argument that it doesn’t really matter if the judge is guilty of sexual assault, because his good deeds clearly outweigh his bad deeds overall.  The judge should get a pass.  Conversely, a detractor of the judge who knew of these accusations as early as late July and decided to sit on them and not address them, now appears to be using them to maximize the political chaos surrounding Judge Kavanaugh’s nomination.

When partisans on either side engage in these kinds of arguments and actions, they insult justice.  The treat the terrible truths of two women’s claims or the shameful besmirching of a man’s character as less important than a political victory.  Human lives get trampled for the sake of maintaining and extending political power, which, by definition, sounds less like a democracy where human dignity is supreme, and more like a tyranny.

We can learn something about truthfulness.

There is really no way to assert that both Judge Kavanaugh and his accusers are being truthful.  Two women have made accusations.  Judge Kavanaugh has categorically denied them.  Contrary to some clumsy efforts to try to exonerate all parties, someone is almost certainly lying.  In a cultural consensus that seems all too content to bake deceit into some sort of pragmatic cake because “everybody lies,” and to downplay the need for the truth as secondary to other, supposedly larger, concerns, this case reminds us that the truth really does matter.  Lives, reputations, and, in this case, the public good are stake.  This is why, for the sake of justice, and for the sake of our country, I hope the truth comes out.

For now, we’ll have to wait and see.

Justice Anthony Kennedy Will Retire

Anthony Kennedy

In what was one of the biggest stories of this past week, after 30 years on the bench of the Supreme Court, Justice Anthony Kennedy announced his retirement last Wednesday, effective July 31.  Justice Kennedy’s tenure as a Supreme Court justice was fraught with anticipation and tension when various landmark cases were being decided, with many referring to Kennedy as the court’s “swing vote.”  He voted with the more conservative branch of the court on issues such as gun control and campaign financing while siding with the more progressive branch on issues like same-sex marriage, abortion, and the death penalty.

Not surprisingly, the announcement of Justice Kennedy’s retirement has set off a flurry of political activity, with conservatives delighted that President Trump appears poised to deliver another proponent of originalist jurisprudence to the nation’s highest court while those on the liberal flank of the political divide worry about what such a justice could mean not only for the current progressive agenda, but for some of the most consequential Supreme Court decisions of the past half-century.

The fiery debate that is unfolding is a timely reminder for Christians that good judgment really does matter.  Over the past few decades, it has become fashionable to decry nearly any sort of judgment as self-righteous judgmentalism, and to respond to those who call for keen legal, moral, ethical, or theological discernment with a cry for tolerance and relativism – living and letting others live.  This is why an artist like Chris Brown can sing a song like “Don’t Judge Me,” where he asks his girlfriend to forgive his indiscretions.  This is why Justice Kennedy himself could write, in a 1992 majority opinion on Planned Parenthood v. Casey in support of abortion:

At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.  Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

This is a judgment that refuses to make a judgment on something as basic and fundamental as what constitutes life.  In this way, it is relativistic in the extreme.  Of course, by not making a judgment on what constitutes life, Justice Kennedy makes a de facto judgment:  either there is no human life in the womb, or there is no human life in the womb worth protecting.  Either one is a judgment that carries with it massive life-and-death implications.

A moment like Justice Kennedy’s retirement reveals that an unmoored relativism and an absolutist tolerance ultimately cannot stand.  Society needs and wants good judgment.  After all, judgment, both legal and personal, decides how money is spent, how people are treated, what relationships are desirable and permissible, and, as Planned Parenthood v. Casey demonstrates, even which lives endure.  The Supreme Court is called upon to render judgments on disputed issues according to the U.S. Constitution.  As Christians, we are called, first and foremost, to judge our own lives according to the law of the Lord and then, second, to lovingly and compassionately call others to appreciate the beauty, the value, and the wisdom of this divine law.

Our society is in desperate need of good judgment.  Sadly, we live in a time rife with poor judgment where standards, especially in the realm of politics, shift for the sake of expediency and, as the fight over a new nominee for the Supreme Court will surely reveal, power.  But, as Jesus warns, “In the same way you judge others, you will be judged, and with the measure you use, it will be measured to you” (Matthew 7:2).  We will not be able to elide consistent standards of judgment forever in order to suit our own fleeting fancies.  Our standards and principles may slide and glide around today’s political ice rink, but God’s standards will outlast our shifts and will, ultimately, judge our shifts.  Perhaps we would do well to consider His standards when making our judgments.

Flowers, Same-Sex Marriage, and Responding with Grace

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Barronelle Stutzman enjoyed catching up with her friend, Rob Ingersoll.  He would stop by regularly to order custom bouquets from the mom-and-pop flower shop she operated, Arlene’s Flowers, and the two would talk about what was going on in their respective lives.  Everything was coming up, excuse the pun, roses, until one day when Rob stopped by Arlene’s Flowers to ask Barronelle to provide custom flower arrangements for his upcoming wedding to his partner, Curt.  According to a deposition by Ms. Stutzman, she responded by putting her hands on Mr. Ingersoll and saying, “Because of my relationship with Jesus Christ, I can’t do that.”  Understandably, he walked away feeling deeply hurt and rejected.  After that, it didn’t take long for a legal firestorm to explode.

The two men sued Arlene’s Flowers for $7.91, the price it cost to drive to another florist.  Then, on February 16, the Washington State Supreme Court ruled that Ms. Stutzman was in violation of state law, claiming that Ms. Stutzman’s actions constituted “socially harmful conduct” and that the “government views acts of discrimination,” which is how they regarded Ms. Stutzman’s refusal of service, “as independent social evils.”

In a situation like this, it can be difficult for a Christian to figure out how to respond.  Indeed, there has been a fair amount of debate among Christians over whether or not it is biblically-appropriate to provide certain services, as Barronelle Stutzman refused to do, for a same-sex wedding.

Regardless of what an individual Christian may or may not be willing to accommodate in a situation like this, Ms. Stutzman’s overall response to this controversy has been charitable and exemplary.  Shortly after the controversy erupted, she penned an opinion piece for The Seattle Times.  She opened:

Rob Ingersoll will always be my friend. Recent events have complicated – but not changed – that fact for me.

Ms. Stutzman began with a statement of love for Mr. Ingersoll.  Even if he sues her, she will not disown him.  She will always be a friend to him, even after she felt she had to have a conversation with him that was, in her words, “one of the hardest things I’ve ever done in my life.”

She continued by explaining her desire to balance her moral convictions with her Christian love:

I knew he was in a relationship with a man and he knew I was a Christian. But that never clouded the friendship for either of us or threatened our shared creativity – until he asked me to design something special to celebrate his upcoming wedding.

If all he’d asked for were prearranged flowers, I’d gladly have provided them. If the celebration were for his partner’s birthday, I’d have been delighted to pour my best into the challenge. But as a Christian, weddings have a particular significance…

I’ve never questioned Rob’s and Curt Freed’s right to live out their beliefs. And I wouldn’t have done anything to keep them from getting married, or even getting flowers. Even setting aside my warm feelings for them, I wouldn’t have deliberately taken actions that would mean the end of being able to do the work I love or risk my family’s home and savings.

I just couldn’t see a way clear in my heart to honor God with the talents He has given me by going against the word He has given us.

Whatever decision another Christian would have made if faced with a situation like this, it is difficult to disparage Ms. Stutzman’s desire to be both faithful to her moral convictions and loving toward her friend.

In the news, much has been made about what this story and the Washington Supreme Court’s ruling mean for religious freedom.  The questions this controversy raises about religious freedom are indeed monumental.  And the court’s ruling a couple of weeks ago is certainly open to vigorous questioning.  But in the midst of all the thorny Constitutional and legal quandaries, let’s not miss the simple story of a woman trying to live out her faith in Jesus in front of others and for the sake of others.  For this is how each of us are called to live – loving even those with whom we deeply disagree us and seeking to winsomely hold forth to the world the use of God’s gifts – like the gift of marriage – according to God’s intentions.

Whatever ultimately comes of this case, this call will not change.

Texas, Abortion, and the Terrible Triumph of the Human Will

Supreme Court Texas Abortion Case
Credit: Associated Press
A front page for the The New York Times caught my eye during a layover at the Phoenix airport last week.  Its headline read, “Justices Overturn Texas Abortion Limits.”  Last week, the Supreme Court ruled against a Texas law that required abortion clinics to have hospital admitting privileges in order to continue operating.  The Justices ruled that this and other standards in the law placed an “undue burden” on the ability to obtain an abortion.

Along with the headline, there was an infographic with this caption: “The Supreme Court Drifts to the Left.”  Sadly, this is the way the abortion debate is often now cast:  conservative versus liberal, right versus left.  But there is far more at stake in this case than just political or ideological points.  What is at stake in this case is human lives.

Yes, the lives of the babies lost to abortion are at stake.  But so are the lives of the women who suffer through the loss of a child to abortion.  Abortion can change profoundly the lives of the women who endure it – and not necessarily for the better.  Indeed, some studies have shown that women can suffer under a crushing weight of hidden hurt and regret after obtaining an abortion.

Yet, regardless of its mental, physical, emotional, and spiritual tolls, many in our society continue to fight for the widest possible access to abortion and, as the Supreme Court ruling symptomizes, raising any concerns about the way the abortion industry operates is regularly met with little more than scorn and skepticism.  The right to abortion, in this view, is sovereign.

The problem, however, with making the right to abortion sovereign is that it makes physical reality subservient to the human will.  The physical reality of life in utero becomes becomes dependent on a person’s choice.  To borrow a quip from 2004 presidential candidate Wesley Clark: it means that “life begins with the mother’s decision.”

Except that it doesn’t.  Life begins in spite of a person’s choice.  But life, tragically, can be ended by a person’s choice.  To try to make the physical reality of life subservient to the human will is to deny that physical reality really matters at all.  But the denial of physical reality in light of human decision seems to be en vogue – not only with babies in wombs, but with people in their lives.

Several weeks ago on this blog, I wrote about the connection between transgenderism and Platonism.  Just like Platonism sees that which is non-corporeal as more important and, in some sense, more real than the physical, transgenderism gives preference to a non-corporeal inner identification over a person’s physical biological sex.  Sherif Girgis made a similar observation about the relationship of the physical to the internal in an article for First Things:

The body doesn’t matter…Since I am not my body, I might have been born in the wrong one. Because the real me is internal, my sexual identity is just what I sense it to be. The same goes for other valuable aspects of my identity. My essence is what I say and feel that it is…

On the old view, you could know important things about me unmediated, by knowing something about my body or our shared nature. And our interdependence as persons was as inescapable as our physical incompleteness and need: as male and female, infants and infirm. But if the real me lies within, only I know what I am. You have to take my word for it; I can learn nothing about myself from our communion. And if I emerge only when autonomy does – if I come into the world already thinking and feeling and choosing – it’s easy to overlook our interdependence. I feel free to strike out on my own, and to satisfy my desires less encumbered by others’ needs.[1]

Girgis’ final line is key.  If we are fundamentally defined by our internal wills rather than by our physical bodies, our wills must be held as sovereign and defining.  Anything and anyone that would encroach on our wills – even a baby growing inside of us – must be put it in its place.

In this way, everything from same-sex marriage to transgenderism to abortion is of one piece.  It privileges the human will over everything else.  I can choose who I want to marry without any regard for a created complementarianism.  I can choose my gender quite apart from what are, in most cases, very clear biological markers.  And I can choose to keep a baby inside of me or to rid myself of it.

I understand and am sensitive to the fact that, in each of these cases, there are strong stirrings that can lead to difficult decisions.  The stirring of affection for someone of the same-sex can lead to a same-sex marriage.  The stirring toward the lifestyles of the opposite gender can lead a person to live as transgender.  And the stirring of fear over what it takes to raise a child can lead to an abortion.  But even when these stirrings are strong, I think it is worth it to at least ask the question of whether or not it is wise to make human stirrings so defining that they can eclipse and even try to deny actual physical states of being.

According to the Supreme Court, the stirring of a person’s choice in pregnancy is defining.  And if anything – even a raising of medical standards for abortion clinics in Texas – impedes that choice, choice must have its way.  So it will.  And with deadly results.

_________________________

[1] Sherif Girgis, “Obergefell and the New Gnosticism,” First Things (6.28.2016).

Justice Antonin Scalia: 1936-2016

Antonin ScaliaHe was a man who combined a first-class intellect with a caustic whit.  The world lost not only a legal titan, but a brilliant mind when Justice Antonin Scalia passed away.  Sadly, some cheered his death in a macabre display of twisted politically-driven hatred.  Others – even those who disagreed with him politically and legally – were far more charitable.

Justice Scalia was fiercely devoted to Constitutional originalism.  He defined his originalism this way:

The Constitution that I interpret and apply is not living but dead, or as I prefer to call it, enduring. It means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted.[1]

His originalism came out in many ways, especially in his dissents. His famous 2001 dissent in PGA Tour, Inc. v. Casey Martin, for instance, is the stuff of legend.  Mr. Martin was a golfer who wanted to participate in the PGA Tour, but could not because had a degenerative leg disorder that prevented him from walking any considerable distance.  PGA rules required golfers to walk all 18 holes.  He sued the PGA under The Americans with Disabilities Act.  The high court ruled in his favor, noting, contrary to the PGA’s assertion, that using a golf cart does not “fundamentally alter the nature of the competition,” but its majority opinion did not find favor with Justice Scalia who believed the Court should not get involved in defining what does and does not constitute actual golf.  In a sarcastic dissent, he wrote:

It has been rendered the solemn duty of the Supreme Court of the United States, laid upon it by Congress in pursuance of the Federal Government’s power “[t]o regulate Commerce with foreign Nations, and among the several States,” U. S. Const., Art. I, §8, cl. 3, to decide What Is Golf. I am sure that the Framers of the Constitution, aware of the 1457 edict of King James II of Scotland prohibiting golf because it interfered with the practice of archery, fully expected that sooner or later the paths of golf and government, the law and the links, would once again cross, and that the judges of this august Court would some day have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer? The answer, we learn, is yes. The Court ultimately concludes, and it will henceforth be the Law of the Land, that walking is not a “fundamental” aspect of golf.[2]

No other Justice could turn the legal into the comedic the way Justice Scalia did.

At the same time Justice Scalia was a legal scholar, he was also a devoted Catholic.  In a speech at a Living the Catholic Faith Conference, he rumbled:

God assumed from the beginning that the wise of the world would view Christians as fools…and he has not been disappointed.…If I have brought any message today, it is this: Have the courage to have your wisdom regarded as stupidity. Be fools for Christ. And have the courage to suffer the contempt of the sophisticated world.[3]

Justice Scalia’s call to endure scoffing from others for the sake of faith in and a witness to the gospel is quintessentially Christian.  It is also, I would add, experientially true.  After all, Justice Scalia himself had to endure countless questions – not all of which were inappropriate, but many of which were the product of a secular skepticism – about his faith and the ways in which he exercised it.

Of course, Justice Scalia did and does have his supporters – including some of those who most vehemently disagreed with him during his life.  In a remembrance penned by Ruth Bader Ginsburg, one of the Supreme Court’s most liberal justices, she wrote of Justice Scalia:

He was a jurist of captivating brilliance and wit, with a rare talent to make even the most sober judge laugh. The press referred to his “energetic fervor,” “astringent intellect,” “peppery prose,” “acumen,” and “affability,” all apt descriptions. He was eminently quotable, his pungent opinions so clearly stated that his words never slipped from the reader’s grasp … It was my great good fortune to have known him as working colleague and treasured friend.[4]

For all of their political and legal differences, these two justices were best friends.  And it is here that we find one of Justice Scalia’s most important legacies.  Justice Scalia was strongly opinionated.  He did not mince words concerning his legal or theological views.  There was no question as to where he stood.  But at the same time he was intellectually rigorous as a justice and theologically rigorous as a Catholic, he was also relationally generous.  He befriended and loved even some of those with whom he vehemently disagreed.

From prostitutes to adulterers to tax collectors to religious elites, there was once another man who behaved similarly.  He too could be known for His “peppery prose.”  “You snakes! You brood of vipers!” He once thundered, “How will you escape being condemned to hell” (Matthew 23:33)?  But the same people He thundered against in His words, He also died for on a cross.  He was most certainly intellectually and theologically rigorous.  Indeed, he was more:  He was intellectually and theologically perfect.  But He was – and is – also relationally generous.  And somehow, the two went and worked together for us and for our salvation.

Justice Scalia leaves behind an impressive professional legacy.  And he will continue to be criticized – sometimes thoughtfully and sometimes angrily – for many things.  But beyond his professional legacy is his personal example of how intellectual and theological rigor can go hand in hand with relational generosity.  They went hand in hand in him.  And in this, Justice Scalia reflected how they go hand in hand in Christ.

At Justice Scalia’s funeral this past Saturday, his son, the Reverend Paul Scalia, began his homily:

We are gathered here because of one man, a man known personally to many of us, known only by reputation to many more; a man loved by many, scorned by others; a man known for great controversy and for great compassion … That man, of course, is Jesus of Nazareth.[5]

In his son’s mind, Justice Scalia’s greatest legacy is found not in what his father accomplished, but in how his father reflected Christ – even if imperfectly.  This is why, for Reverend Scalia, Justice Scalia’s funeral was not about Justice Scalia.  It was about Jesus.

May we be about Jesus too.

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[1] NPR Staff, “Originalism: A Primer On Scalia’s Constitutional Philosophy,” npr.org (2.17.2016).

[2] PGA Tour, Inc. v. Casey Martin, 532 U.S. 661 (2001) (Scalia, J., dissenting)

[3] Ken McIntyre, “The Wit and Wisdom of Scalia: Nine Zingers,” Newsweek (2.14.2016).

[4] Marina Fang, “Ruth Bader Ginsburg Remembers Antonin Scalia, Her Dear Friend And Sparring Partner,” Huffington Post (2.14.2016).

[5] Julie Zauzmer, “A moving homily for Justice Scalia by his son, Rev. Paul Scalia,” The Washington Post (2.20.2016).