Ted Cruz – America's JV Team Captain

Against the backdrop of the United States government’s preparations to use military force against the “Islamic State” (ISIS), a diverse group of Christian leaders from around the world gathered in Washington last week. Patriarchs of many Christian communions in the Middle East met with religious leaders and policymakers united in their concern about the rising tide of persecution and violence against some of the world’s most ancient Christian communities.

The sponsoring organization, In Defense of Christians, planned the event months ago. As this awful summer brought images and stories of ISIS’s atrocities to Americans’ screens, our collective conscience seems to be awakening. Even Pope Francis underscored that it is licit to stop unjust aggressors. Coincidentally, this week’s summit took place as President Barack Obama and Members of Congress consider a counterterrorism strategy against ISIS.

For two full days, the In Defense of Christians summit was accomplishing its stated goals. Leaders prayed, strategized, raised awareness, and advocated for religious freedom. There were some disagreements, of course. Not all want to use military action to stop ISIS. But the summit was, by all accounts, going very well.

Then, Wednesday night, just an hour before President Obama’s speech to the nation, Sen. Ted Cruz addressed the summit. Billed as the keynote speaker, Cruz spoke extemporaneously for a few wandering moments. He listed organizations as disparate as Al Qaeda, Hezbollah, Hamas, and ISIS, and seemed proud to not understand the differences between them.

Cruz then told his audience, which included a number of Arab Christians, “Christians have no greater ally than Israel.” When some in the room booed, Cruz told the senior clerics that they hated America and that they hated Jews. Sen. Cruz said that if these holy men think differently on Israel, they are “consumed with hate” and “do not reflect the teachings of Christ.” Before leaving the stage, Cruz gave his parting blow: “If you do not stand with Israel and with the Jews, then I do not stand with you.”

U.S. Senator Ted Cruz

U.S. Senator Ted Cruz

In Defense of Christians issued a press release chiding “politically motivated opportunists” for disrupting the gala dinner.

But the culprit here is Ted Cruz. He is the politically motivated opportunist, and this breach of Washington decorum and its aftermath is revealing. The very worst things about our politics, our religion, and our media enabled Ted Cruz’s rise and sustain his ability to grandstand and imperil not only the functioning of our government, but apparently also sensitive foreign policy matters and fragile ecumenical Christian commitments.

Not content in his role as Tea Party champion and, at key moments, de facto Speaker of the House, Sen. Cruz seems hell-bent on making sure his rigid ideology trumps the dogged, determined work of countless other public officials who are trying to compromise and govern in a difficult political climate.

The Israeli-Palestinian conflict figures prominently in our foreign policy and our domestic politics. We have compelling strategic and moral reasons to support Israel in its struggle for peace and security. That support is unwavering.

It is good to support our allies. But politically, the Israel lobby has created a situation in which American politics becomes a contest over which pro-Israel politicians are the most pro-Israel. Politicians flock to the America Israel Public Affairs Committee’s (AIPAC) annual policy conference to swear their fealty to Israel. Many U.S. politicians’ Israel commitments have grown from merely unwavering to uncritical and even unconditional.

One could be forgiven for thinking Cruz mistakenly thought he was addressing AIPAC Wednesday night. But his invocation of Israel was probably deliberate. Disregarding Middle Eastern Christians’ concerns was a small price for Cruz to pay to score a few more points with a foreign country that has, in fact, at times made life difficult for Palestinian Christians. Surely the first-term senator from Texas knows better than senior prelates from the region.

Cruz’s office later said that he was not warned against dragging Israel politics into the event and that if he had been, he simply would not have graced the event with his presence.

In addition to insulting Christian leaders gathered to deal with serious issues of persecution and violence, Cruz reinforced an absurd dichotomy that supposes anyone who does not unconditionally support Israel hates America, Israel, and Jews.

There is a strand in American evangelicalism that celebrates black-and-white distinctions and nurtures “us-versus-them” thinking. But Cruz’s comments also speak to broader issues in American Christianity that make global engagement difficult. In bringing his AIPAC speech to the Christian event, Cruz simply replaced the stock “America has no greater ally than Israel” with “Christians have no greater ally than Israel.”

Using “Christian” and “America” interchangeably is a profound political and theological error with far-reaching consequences. American Catholics and Orthodox tend to understand their place in a universal church in ways American Protestants often do not. Liberal U.S. Protestants stand quite apart from most of the world’s Christians on abortion and homosexuality, for instance. But American evangelicals should be aware of how their hyper-individual, free-market faith is a significant departure from ecumenical consensus on many issues not related to human sexuality.

As many are learning, Christians around the world are much less reflexively and uncritically pro-Israel than their American brethren. Israel has benefitted from U.S. evangelicals’ largely unrequited love of Jews, a bizarre fetishization that assumes Israel has a geopolitical role to play in an eschatological drama culminating in Jesus appearing in the sky on a white horse. This is why conservative Christian support for Israel is so high.

Cruz may believe all this. He certainly would not be alone. But to denounce the spiritual leaders of ISIS’s Christian victims as unchristian Jew-haters is beyond the pale.

President Obama underestimated ISIS, comparing non-state agitators in the Middle East to a JV team. Perhaps here at home, we should think of freshman Senators as JV team instead of a short hop to the presidency. The Democratic Party passed over more qualified candidates in 2008, and, inexplicably, many Republicans seem eager to send one of several ambitious Senate freshmen to the White House in 2016. Ted Cruz has shown himself to be a capable politician. But after his most recent stunt, it is obvious that Cruz’s aptitude as a statesman is perilously low.

In Memoriam: Prof. Kristen Stauffer Todd

This week I was very sorry to hear that one of my college professors died. Kristen K. Stauffer Todd was Professor of Music History at Oklahoma Baptist University. Dr. Todd had been battling cancer but died September 1 of a heart attack. She was 48. She is survived by her husband, Phil, and their two daughters.

As I have mourned her untimely death, I have reflected on Dr. Todd specifically. I have also been thinking about what she and professors liker her mean to OBU and to small liberal arts colleges generally. I trust these remembrances and reflections will honor the memory of a lovely person who had an outsized impact on my life.

OBU has a small but excellent music department. I did not relate to Dr. Todd as OBU music majors did. Fifteen years worth of fine arts students are mourning the loss of someone they knew very well. I did not know her very well. If OBU students outside the music department knew Dr. Todd at all – and many did – it was because she frequently taught a humanities course that fulfilled a core curriculum requirement. This is how I knew Dr. Todd (then Dr. Stauffer).

I did not grow up in a musical or artistic family. I showed interest in music, however, and was fortunate to have people nurture and refine my nascent appreciation for great music and great art. I have written previously ("My Ecumenical Life") about how much I value having been exposed to music from a variety of Christian traditions. By the time I arrived at OBU, however, it was not clear to me that I should invest any intellectual or emotional energy (or time) in developing a lifelong appreciation for music and art.

After one class with Prof. Kristen Stauffer, there was no doubt.

Photo credit: Oklahoma Baptist University

Photo credit: Oklahoma Baptist University

In many ways, I am sure Dr. Todd's humanities class was like many others -- a healthy dose of music and art with some architecture thrown in. But this experience was so much more. Dr. Todd was a masterful teacher. Significantly, she was approachable and down-to-earth in a course in which a snobbish professor would have been especially off-putting. She made me see the greatness and beauty that she saw. She taught me to see it with my own eyes and hear it with my own ears.

Though I was not an accomplished musician, I grew in my love of music -- especially sacred music -- during my time at OBU. Dr. Todd often gave brief talks before campus concerts to enhance audiences' appreciation for the work about to be performed. I specifically recall Puccini's Messa di Gloria and Bernstein's Chinchester Psalms, but there were many others over the years. Dr. Todd was with me when I heard those concerts.

But she stayed with me long after I graduated in 2002. She was with me the very next year in Boston's Symphony Hall as I listened to Brahms's German Requiem. She was with me in Amsterdam's Rijksmuseum in 2005, helping me see color and darkness, social class and national history in the Rembrandts and Vermeers. She was with me in the Washington National Cathedral in 2009 as I read through the program notes to Handel's Messiah. She was with me at the Kennedy Center in 2011 when, during a performance of Mozart's Great Mass in C minor, I placed my hand on my wife's pregnant belly and felt my unborn child kick for the first time.

Few people know that before I moved to Washington in 2009 to begin a Ph.D. program in political science, I taught English in the public school system. At night and in the summer, I taught Humanities at the local community college, where I felt Dr. Todd's influence most vividly. (I even showed Sister Wendy videos.)

A professor from whom I took only one class launched me on a lifelong journey to honor and delight in the greatest things the Western humanistic tradition has produced. I never have and never will be an expert about such things. But I am proud to have an informed lay appreciation for the humanities and I am determined to transmit that tradition to my students and to my own children.

Of course, there is nothing unique about having fond memories of college professors. Many people had a special professor for whom they would weep upon learning that they died as I have wept over Dr. Todd's death. What is different about OBU professors is that I feel such strong affection for all of them. The faculty at my college is unique because professors are chosen not for their devotion to research, the prestige of their academic pedigree, or (I hope) their adherence to creedal statements. They are selected for their commitment to excellence in teaching and learning. Some of them were prodigious researchers. Some had attended great universities. But all of them desired first and foremost to model and transmit fides quaerens intellectum. This was Dr. Todd's noble vocation.

Well done, thou good and faithful servant…
…Enter thou into the joy of thy Lord.
— Matthew 25:21

As many of you know, I have an unusual relationship with my alma mater. I was never an evangelical, but I accepted that OBU effectively and faithfully exemplified evangelical higher education. Years later, when the goalposts began shifting and institutional norms were disregarded, I led a public protest. I did so in honor of professors like Dr. Todd. I am eternally grateful that OBU remained a hospitable (or at least acceptable) environment for her. But make no mistake: If Dr. Todd -- a first-rate Christian scholar who taught children's Sunday school at First Baptist Church -- would not be hired at OBU today, that would be a shame. If that were the case, it would reflect badly on OBU, not on Dr. Todd.

I stopped "saving" OBU when I thought my efforts were no longer helpful. Happily, I began to see anew all the great things about my alma mater. OBU's wonderful and unique character has been on vivid display this week as a community grieves the loss of one of its most beloved members. My heart breaks for Dr. Todd's students and colleagues, and especially for her dear husband and children.

Kristen Stauffer Todd was an absolute treasure, and I shall never forget her.

Should Anti-SSM Views Disqualify Judicial Nominees?

In my previous post, I told the stories of President Richard Nixon's two failed Supreme Court nominees. Most Gen Xers and Millennials who know Robert Bork and Harriet Miers have never heard of Clement Haynsworth or Harrold Carswell. In 1969 and 1970, these Nixon nominees were rejected in part due to their past support for segregation. Carswell had expressed white supremacist views, while Haynsworth was merely ambivalent (to put it charitably) on civil rights at a crucial time.

A majority of Americans now supports same sex marriage. That majority will grow in the years to come as SSM becomes a legal and political reality in every state. The question is how the majority will regard the minority that continues to believe that marriage is exclusively and by nature between a man and a woman. Ascendant gay rights advocates, bullied and belittled for so long, are now largely of the view that opposition to the movement is not merely a matter of disagreement, but a bigoted moral failing unbecoming of modern men and women.

What will this mean for traditionalists who want to serve in positions of public trust and responsibility?

Is Opposition to Same Sex Marriage Equivalent to Support for Racial Segregation?

Hon. Michael Boggs (Photo credit:  Atlanta Journal-Constitution )

Hon. Michael Boggs (Photo credit: Atlanta Journal-Constitution)

Even now, one of President Obama's judicial nominees faces defeat as Democratic senators and interest groups pledge to reject him. Obama nominated Georgia state court judge Michael Boggs to a lifetime post as federal judge. In a Judiciary Committee hearing, Boggs recanted his past support for a law favored by abortion rights opponents. With respect to same sex marriage, Boggs said, "My position may or may not have changed on that over the last decade." Democratic Sens. Richard Blumenthal, Al Franken, and others have said they will oppose Boggs if he comes up for a vote. Senate Democratic leaders are all opposed, meaning Washington is basically waiting for Boggs to withdraw. Evidently, he is rather tenacious. Note that Boggs is a Democrat nominated by a Democratic president and faces votes on a committee and in a chamber that Democrats control.

Just as pro-choice groups have made it virtually impossible for pro-life Democrats to be nominated for judgeships, it seems we have reached the point where support for same sex marriage is so unanimous among Democratic Party leaders and interest groups that Senate Democrats are unlikely to ever again confirm a Democratic judicial nominee who opposes SSM (or offers anything less than enthusiastic support).

What will happen when a Republican president makes judicial nominations? The answer will depend on what party controls the Senate and whether the GOP retakes the White House in 2017 or 2021. By that time, there will be no Senate Democrats who oppose SSM and a growing number of Republican senators who support it.

If even one or two Judiciary Committee Republicans side with the Democrats in rejecting anti-SSM nominees, then the question is essentially moot: We will never again have judges confirmed to the federal bench who do not endorse SSM. To avoid the impasse, a Republican president will simply choose from the fast-growing field of Republican judges who support same sex marriage. Though it will enrage the religious right, it may be be better and safer politics, even for Republican presidents, to avoid nominating anti-SSM judges. Traditionalist nominees can insist in their confirmation hearings that they will uphold the law, but will this be enough?

Should Anti-SSM Views Disqualify People from Public Life?

The parallel to Nixon's failed SCOTUS nominations is clear but imperfect. The operative question is this: Is opposition to same sex marriage now (or soon) as blatantly wrong and politically toxic as support for racial segregation had become by the 1970s?

Though I usually find myself on the liberal side of culture war issues (read: sex issues), I do not insist that everyone who disagrees with me should be shunned and shamed out of public life. Lately I have though deeply about Damon Linker's columns at The Week on the Hobby Lobby decisionliberalism's intolerance, and related subjects. The essence of his argument is that liberals should endorse a robust civic pluralism that makes room for conservatives who hold traditional positions on sexuality issues. I agree. I do not think that people who believe marriage is by its nature between a man and a woman – a group that includes many friends, most of the people who nurtured in in my formative years, and my own self for more than half of my lifetime – are moral monsters who must be silenced and relegated to the margins of society.

How Can SSM Opponents Survive in Public Life?

If people who oppose same sex marriage want to have even a fighting chance of being a respected minority rather than a rightly despised one, I suggest they carefully examine the rest of their positions on an array of issues. If you oppose SSM and you oppose all or most other civil rights protections for people who are gay, your enmity is well deserved. If you oppose civil rights for people who are gay and for other minority groups, maybe you are just a bigot after all.

The best hope for people who oppose SSM is to be robust supporters of civil rights in every arena. That way, they can credibly claim their minority view is legitimately based on their understanding of the nature of marriage and is not just one among many retrograde or pro-privilege views. (This is why I have argued that Southern Baptists and other white evangelicals should vigorously oppose voter suppression laws.) Conservative Protestants note (often with dismay) that the Catholic Church has more social credibility in spite of its traditional views on sex. Maybe this has something to do with the breadth of the Catholic commitment to justice, compassion, and dignity. The religious right must do more than point to the Tea Party agenda and proclaim, "Thus saith the Lord."

By the 1970s, acquiescence to segregation became a political liability in most areas. A few white politicians with checkered histories on race survived, but overt racism was no longer a viable position. We seem to be headed in the same direction with respect to acceptance of homosexuality. Still, progressives should think twice about the limits of their tolerance. And traditionalists should look beyond their defense of marriage and examine the totality of their public witness.

Nixon, Race, and SCOTUS Nominations

Reminisces about President Richard Nixon's resignation forty years ago have prompted me to think about an aspect of the Nixon presidency that may have parallels to a present and future impasse in our politics.

The names Clement Haynsworth and G. Harrold Carswell are largely unknown to Gen Xers and Millennials and are mostly forgotten by our elders who lived through the Nixon years. But these federal appellate judges' stories may shed light on how this and future administrations handle judicial nominations in light of the most contentious social issue of our day.

Nixon's Failed Supreme Court Nominations

When Earl Warren retired in 1969, Nixon nominated Warren Burger to be Chief Justice of the United States. As a strict constructionist and a resolute critic of the liberal Warren Court, Burger aptly fit the bill for Nixon's first Supreme Court nomination. He was confirmed that summer, 74-3. Subsequently, Nixon made three additional nominations to the Supreme Court. Students of history will recall that Nixon replaced outgoing Justices Abe Fortas, Hugo Black, and John Harlan with Justices Harry Blackmun, Lewis Powell, and William Rehnquist. But the series of events in 1969 and 1970 leading to the Blackmun nomination are instructive for our present situation.

 When Justice Abe Fortas resigned, Nixon wanted to fill his second vacancy with a Southerner. While five Deep South states (Arkansas, Louisiana, Mississippi, Alabama, and Georgia) went for segregationist third-party candidate George Wallace in 1968, Nixon carried Florida, South Carolina, Tennessee, North Carolina, and Virginia. For the moment, I do not want to get into the "Southern Strategy" of GOP candidates appealing to racism against African-Americans. It is shameful, but its is somewhat beside the point here. Suffice it to say that Nixon owed something to the South.

To replace Justice Fortas, Nixon wanted to nominate Lewis Powell, an attorney and former local official in Virginia. Powell was arguably unqualified and, in any event, was reluctant to leave his lucrative law practice in Richmond. (Powell would eventually accept Nixon's nomination for another SCOTUS vacancy in 1971.) Nixon nominated Judge Clement Haynsworth of the Fourth Circuit Court of Appeals. Haynsworth's home state of South Carolina went for Nixon in the 1968 election. Like many white judges in the South at that time, Haynsworth faced charges of having issued decisions that favored segregation. His nomination was defeated 55-45, with 19 Democrats and 26 Republicans voting to confirm him and 38 Democrats and 17 Republicans voting to reject him. It was the first time the Senate failed to confirm a president's SCOTUS nominee since 1930.

Judge Clement Haynsworth (left) and Judge G. Harrold Carswell (right). Photo credit: AP

Judge Clement Haynsworth (left) and Judge G. Harrold Carswell (right). Photo credit: AP

Nixon then nominated Judge Harrold Carswell, whom he had elevated to the Fifth District Court of Appeals eight months earlier. Previously, President Dwight Eisenhower had appointed Carswell to serve as U.S. Attorney and then as a federal judge, both in the Northern District of Florida. Like Clement Haynsworth, Carswell faced criticism over his civil rights record. He received 45 votes in the Senate (17 Democrats and 28 Republicans). Fifty-one senators (38 Democrats and 13 Republicans) voted to reject the nomination. Nixon blasted the Senate's "anti-Southern bias," and ultimately filled the vacancy with Harry Blackmun, whom the Senate confirmed 94-0. In 1973, Blackmun wrote the 7-2 majority opinion in Roe v. Wade.

It is not really fair to lump Carswell and Haynsworth together, though people often do. Carswell had been a staunch segregationist while Haynsworth had merely been ambivalent. Likewise, Carswell's tenure as a federal judge was widely considered undistinguished. In contrast, Haynsworth had a reputation as a prudent and scholarly jurist, thought his reflexive anti-labor views and an alleged conflict of interest became issues while the Senate considered his nomination. Justice Lewis Powell himself, who was Nixon's first choice ahead of Haynsworth and Carswell but declined the 1969 nomination only to accept another one in 1971, later expressed regret over Haynsworth not being confirmed.

By 1970, retrograde views on race disqualified a person from service on the nation's highest court. Even people who had abandoned their previous support for segregation still faced difficulty. In the years that followed, no current and very few former segregationists became federal judges.

My next post extends this little history lesson about Clement Haynsworth and Harrold Carswell to the current debate about whether opposition (or even past opposition) to same sex marriage should disqualify people from positions of public trust and responsibility.

 

Hobby Lobby and Judicial Decision Making

In just a few hours, we will know the Supreme Court's decision in the Hobby Lobby case. Given the lawsuit's culture war intrigue, its challenge to the Affordable Care Act, and its religious freedom implications, the case has generated and sustained widespread interest and controversy.

Advocates on both sides are, presumably, prepared to accept the finality of the justices' decision. Yet I sense that few people have thought deeply about how judicial decisions are made. The most commonly held view is that justices consider the legal merits of the case at hand and make objective, dispassionate rulings. Scholars who study these questions have found overwhelming evidence, however, that judges do not (cannot?) separate their own opinions and values from their rulings. This is no knock against judges. It is just an acknowledgement that no one can be completely objective. The prerogative to use your power to ensure your preferred outcomes is practically irresistible, even for Supreme Court justices (see: Bush v. Gore).

Models of Judicial Decision Making

This diagram by University of Georgia political scientist Jamie Monogan succinctly describes three frameworks for judicial decision making:

Source: Prof. Jamie Monogan's  lecture slides  (clicking link will download a *.ppt file)

Source: Prof. Jamie Monogan's lecture slides (clicking link will download a *.ppt file)

The legal model is the quaint view that most people hold. Do not confuse it with the principle of strict constructionism, whose adherents are just as prone to insert personal opinions into their judgments.

The attitudinal model holds that Supreme Court justices are unelected, unaccountable, life-tenured personal policy preference maximizers. In this framework, justices manufacture rulings that codify their preferred policy outcomes. Significantly, this model recognizes the importance of ideology as a foundational social and political identity. Ideological thinking is particularly pronounced among educated politically-interested partisans – including, of course, Supreme Court justices.

As is often the case, the truth lies somewhere in the middle. Thus the strategic model depicted above begins with ideological preferences, but also recognizes judges' need to rule using the language and methods of legal analysis.

As with any group of people (survey respondents, Members of Congress, etc.), we can measure and estimate Supreme Court justices' ideological preferences along a left-right continuum, as several prominent scholars have done at voteview.com:

Predicting the 2012 Obamacare Ruling

In a 2011 article in which they correctly predicted that the Supreme Court would uphold the Affordable Care Act in 2012, Professors Michael Bailey and Forrest Maltzman explain that ideology alone is not always sufficient to predict justices' votes. If ideology was all that mattered, the individual mandate would have been struck down, 5-4.

From Michael Bailey and Forrest Maltzman, " Will the Supreme Court Overturn Obamacare? "  The American Prospect , November 21, 2011.

From Michael Bailey and Forrest Maltzman, "Will the Supreme Court Overturn Obamacare?" The American Prospect, November 21, 2011.

But there is more to the story. According to Bailey and Maltzman, not only must we estimate justices' preferences along an ideology dimension, we must also account for another dimension. They call this "precedent." Apart from ideology, justices vary in their deference to established law and precedent. In Bailey and Maltzman's example (the 2012 ruling upholding the ACA), estimating the justices' preferences along two dimensions helped explain why a decision to uphold the mandate was likelier than a purely ideological vote to strike it down.

From Michael Bailey and Forrest Maltzman, " Will the Supreme Court Overturn Obamacare? "  The American Prospect , November 21, 2011.

From Michael Bailey and Forrest Maltzman, "Will the Supreme Court Overturn Obamacare?The American Prospect, November 21, 2011.

Though their model had 4 votes to overturn as the highest predicted probability, Bailey and Maltzman forecast that only 2 or 3 justices would vote to overturn the ACA. They thought Justice Kennedy's deference to precedent would lead him to side with Justices Ginsburg, Breyer, Sotomayor, and Kagan. In this case, Chief Justice Roberts would join the winning side so that he could write the opinion himself. They also suggested that Justice Alito may even join the majority.

As it turned out, the vote was 5-4 to uphold, with Chief Justice John Roberts siding with the court's four liberals but crafting an opinion that narrowly affirmed the individual mandate without dramatically reshaping Commerce Clause jurisprudence.

Predicting the Hobby Lobby v. Sebelius Decision

All of these factors shed light on the justices' dynamics in Sebelius v. Hobby Lobby. The recent string of unanimous decisions is an aberration. Even the narrowest conceivable ruling would, in this case, produce conflict among the justices. The four liberals are likely sympathetic to the idea that you cannot impose the costs of your religious practice onto others (in this case, female Hobby Lobby employees). The conservative majority (Justices Scalia, Kennedy, Thomas, Alito, and Chief Justice Roberts) is clearly sympathetic to Hobby Lobby's claims. These five (Catholic, male)  justices will find a way to create a religious exemption to the contraception mandate, even if it means issuing a narrow ruling that applies only to, say, privately held corporations like Hobby Lobby.

Some (if not all) of the conservative justices would prefer to use the case as an opportunity to codify generous religious exemptions from many kinds of laws. With Justice Kennedy on board, the Court could accomplish this. Kennedy did, after all, vote with the court's three most conservative members to strike down Obamacare. But, as Bailey and Moltzman noted, Kennedy's adherence to precedent moves him from his ideological preference to a much greater degree than the other conservative justices. With no strong precedent for considering corporations, especially publicly held ones, "persons" under the 1993 Religious Freedom Restoration Act, it seems unlikely to me that Justice Kennedy would go along with his colleagues' desire to issue a landmark decision giving all employers wide latitude to opt out of whatever laws they feel violate their religious beliefs.

It also seems unlikely that Justice Kennedy would join the court's four liberal justices in upholding the government's position. I'm not even sure all four of the liberals will find that the government has a compelling interest in forcing private employers to violate their religious beliefs and, even if it does, that the HHS Mandate is the least restrictive means of doing so.

In a case like this, the breadth or narrowness of the decision will be as consequential as which party wins or loses.

A broad decision for Hobby Lobby would be 5-4, with the four liberals dissenting. The same majority that decided in Citizens United v. FEC that corporations can exercise free speech rights granted to individuals in the Constitution could conceivably extend that logic to the realm of religious freedom.

One or two liberals may join the majority in a narrow decision for Hobby Lobby. If the scope in this ruling is limited, the Court's liberals will have future opportunities to rule against transferring the protections that the RFRA intended for individuals to public corporations, boards, and shareholders. This outcome seems likeliest to me.

A ruling for the government would almost certainly be 5-4, but this is unlikely given the current makeup of the Court. Such a decision might bring Justice Kennedy along, though we would more likely see Chief Justice Roberts join the majority and keep the opinion out of the liberals' hands. This is exactly what happened in the 2012 Obamacare decision.

Is the PCUSA *that* Liberal? Yes.

This week, the Presbyterian Church (U.S.A.) became the second-largest American denomination to affirm same-sex marriage. After narrowly losing votes at successive biennial General Assemblies, the vote on Thursday was not even close.

Religion News Service:

By a 76-24 percent vote, the General Assembly of the 1.8 million-member PCUSA voted to allow pastors to perform gay marriages in states where they are legal. Delegates, meeting in Detroit this week, also approved new language about marriage in the church’s Book of Order, or constitution, altering references to “a man and woman” to “two persons.”

This change will not become church law until a majority of the 172 regional presbyteries vote to ratify the new language. But given the lopsided 3-1 ratio of the vote, approval is expected.

Actually, the change in the denomination's language on marriage passed 429-175, a margin of 71%-29%. It's not quite the 3-to-1 margin being repeated in endless opinion columns and blogs, but it's still a commanding majority in a denomination that had been evenly split on the issue for several years.

The new policy, which permits (but does not require) PCUSA churches and clergy to celebrate same sex marriages in jurisdictions where they are legal, will take effect when a majority of the denominations 172 presbyteries ratify it over the next year.

Why the sudden change?

Even considering how quickly U.S. public opinion on homosexuality has changed over the past decade, pro-SSM PCUSA commissioners went from a minority (48%) to a significant majority (71%) in only two years.

I have no inside knowledge about the selection process of commissioners or the effectiveness of pro- and anti- lobby groups' strategies. In church politics, well-organized and savvy caucus groups can have a large impact. But, as with secular politics, there is always a muddled middle with less intense and less reflexively polarized opinions than the activist and elite classes.

pcusgay.jpeg

Two trends made the PCUSA shift so quickly.

First, as the AP reports, the PCUSA has lost thousands of members and hundreds of churches in recent years. Some of this decline is purely demographic. Presbyterians, like most Mainline Protestants, are aging (dying) and have low rates of fertility, intramarriage, and adult retention. But a significant number of churches have left the denomination over its liberal stances. Some are large, like the Reverend Dr. John Ortberg's Menlo Park Presbyterian Church. Many others are small.

As traditionalists leave the PCUSA for more conservative denominations like the Presbyterian Church in America (PCA) and A Covenant Order of Evangelical Presbyterians (ECO), the theology and politics of those who remain in the PCUSA will move to the left. Think about how the realignment of Dixiecrat politicians and other conservative Democrats to the Republican Party moved the Democrats' median ideology to the left. It's the same principle at work.

I also want to offer an additional explanation that no one else is talking about, one that helps explain why the Mainline churches are liberal and becoming more so as they decline. Clergy are significantly more polarized than laypeople. (This 2008 survey of Mainline Protestant clergy is worth studying.) We now know that a bare majority of Americans supports same sex marriage (53%). Surveys indicate that 62% of Mainline Protestants approve of same sex marriage. Mainliners, who comprise only 14% of the population, are more liberal than Americans as a whole on this issue. National surveys typically do not provide reliable data to make precise estimates of SSM support among specific denominations. Based on demographic characteristics that predict social issue attitudes, it is reasonable to assume that Presbyterians are a bit more pro-SSM than Mainline Protestants as a group – a group that includes a large proportion of United Methodists, who are, on average, less liberal than Mainliners as a whole.

Voting privileges in most Mainline denominations' legislative bodies are shared equally between lay delegates and clergy. At the PCUSA General Assembly, 50% of commissioners are ruling elders (laity) and 50% are teaching elders (clergy). If lay commissioners are representative of all lay Presbyterians (who we believe are a shade more liberal than Mainliners as a whole), then we might reasonably conclude that something like 64-68%  of lay votes went to support same sex marriage in the church.

But the vote was 71%–29%.

That means that PCUSA clergy commissioners voted for the change in even greater numbers. Probably 3-out-of-4 and perhaps as many as 80% of PCUSA clergy at the General Assembly affirm SSM.

Naturally, pro-LGBT Presbyterian caucus groups were overjoyed this week. Anti-gay groups expressed disappointment. Yet this pastoral letter from the Fellowship of Presbyterians, which believes marriage is the union of a man and a woman, struck a surprisingly gracious tone:

We grieve these actions by the General Assembly. We believe we will look back on this day and see the error of these decisions. But an Assembly of our denomination has spoken, and now we must move ahead without compromising compassion or conviction.

Maybe traditional and conservative Presbyterians who have stuck with the denomination this long will prefer to remain in the PCUSA. Undoubtedly, however, another wave of churches will disaffiliate, further accelerating the PCUSA's membership decline.

Narrow passage of a controversial Israel-divestment measure further confirms progressives' increasingly unrestrained ability to advance left-leaning politics within the PCUSA.

If hundreds more conservative churches leave, the PCUSA will become even more liberal than it already is.