There’s an old saying: Laws are like sausages. Better not to see them made. But that’s not the case when we see where the sausage is now being made.
On June 15, the US Supreme Court ruled on Bostock v. Clayton County. Writing for the majority, Justice Neil Gorsuch claims that sexual orientation and “identity” are included in the definition of “sex” under Title VII of the Civil Rights Act of 1964. He says this is a narrow ruling about sex discrimination in employment, leaving concerns like religious liberty for future litigation.
Maybe – but look where the sausage is now being made. The Supreme Court. That’s not promising for America’s experiment in self-government. The experiment asks can a free people rightly order their lives together? Legitimate government is government by the consent of the governed. It’s an experiment, and it is in the nature of experiments that they can fail.
The consent of the governed is achieved through debate, elections, and representative political institutions. Congress is the legislative branch, making laws, or sausage. The executive branch carries out laws. The judicial branch interprets laws according to the Constitution.
These three institutions operate inside a system of limited government, with checks and balances. But they’re all under what Tocqueville called “the first political institution.” Religion. Through religion Americans are schooled in morality, the rule of law, and the habits of public duty. It’s why George Washington said religion is indispensable to political prosperity.
OK, Mike, nice civics review. So what? We just celebrated America’s independence. How’s the experiment going? Today’s executive branch has no governing philosophy. It’s dysfunctional. So is Congress. It plays the blame game, barely passes budgets, and doles out money like it grows on trees (e.g. Senator Martha McSally’s proposal for a $4,000 vacation tax credit).
That leaves the Supreme Court. It’s now the legislative branch. In 1965, the Court “discovered” in the Constitution a “right to privacy” (Griswold v. Connecticut). This narrow ruling was extended in Roe v. Wade. Privacy included the right to an abortion. But neither decision was made by the consent of the governed through elected officials. They were the consent of nine unelected officials. Judges.
In 1992, Roe v. Wade was challenged (Planned Parenthood vs. Casey). The Court extended the right to privacy to include “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life right to define one’s existence.”
Most religions take exception to this. This ruling pits the rule of law against the first political institution. What happens when law is divorced from, indeed pitted against, religion? Justice Samuel Alito put this question to President Barack Obama’s solicitor general Donald Verrilli, Jr.
Alito asked whether constitutional recognition for same-sex marriage would lead to stripping federal tax exemptions from religious colleges that oppose gay marriage – just as federal law strips tax exemptions from colleges that oppose interracial marriage or interracial dating. Rather than immediately answering “no,” Mr. Verrilli said, “It’s certainly going to be an issue.”
This indicates religious liberty is likely going to be an issue in the future. We don’t know how or when, but given where the sausage is now being made, it’s probably coming.
As you note, Mike, the sausage begins being made somewhere – but before it’s encased in congress, it’s ground in groups. (Just maintaining alliteration.) “Small groups” empower and confirm reasonable thinking (and where jesters play their part) in individuals whom in turn assert confirm reasonable thinking before larger groups like congregations and classes. (Congress has its committees.) Jean Bethke Elshtain used to write about the power of “societies” in American culture – do you know the words I’m looking for here? Those smaller communities where we know one another are what lubricate the nameless faceless machine of our greater communities. Therefore, if our religious small groups stop functioning, the larger groups like congregations and classes go starving and stale – and the nameless faceless machine is now subject to word games – empty sausage casing. If there is a bright side, the Supreme Court left the unanswered questions alone for us to answer – will our small groups answer with reasonable thinking that spreads to larger groups? Or will we play word games?
Dave, I doubt whether this is a structural problem: small (“little platoons”) vs. large. Rather as Mike suggests, its culture vs. politics. America has a significant cultural problem. The problems of governance, which are real are always downstream from culture and are simply a symptom of this deeper crisis. We have a culture functioning on the basis of Nietzschean will-to-power that broaches no compromise. This is just as true inside the church as without. We are living in the world predicted by Nietzsche’s “madman prophetic”warning. I imagine that things will get worse before there is any improvement.
The link in the email didn’t work. (I had to go to the main page, then blogs, to get here.
One could make a strong case that a lot of the sausage is increasingly being made the by the executive branch (president) in the form of “executive orders.” And, as we’ve seen recently, the executive branch is less and less interested in any type of oversight.