Culture Friday: Justice Anthony Kennedy retires

MARY REICHARD, HOST: It’s Friday the 29th of June, 2018.

Glad to have you along for today’s edition of The World and Everything in It. Good morning, I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher.

It’s Culture Friday and time now to welcome John Stonestreet, president of the Colson Center for Christian Worldview.

Good morning, John.

JOHN STONESTREET, GUEST: Good morning, Nick.

Quite a week, isn’t it?

SCHUMER: This is the most important Supreme Court vacancy for this country in at least a generation.

MCCONNELL: The Senate stands ready to fulfill its constitutional role, by offering advice and consent on President Trump’s nominee to fill this vacancy. … We will vote to confirm Justice Kennedy’s successor this fall.

EICHER: The first voice was that of the Democratic leader of the U.S. Senate, Chuck Schumer of New York. The one that followed was the majority leader, Senator Mitch McConnell, the Republican from Kentucky.

John, let’s stipulate that the Supreme Court occupies too great a place in our cultural life.

But I don’t think Senator Schumer was wrong. Justice Anthony Kennedy’s coming retirement in July probably is the most important in a generation. And that’s because of the cultural importance, not merely the legal significance.

STONESTREET: Yeah, I mean, I think we say the most important in a generation every time a nomination is up for grabs. But this one, I think, is actually true. I think this is as big as it gets.

The New York Times, the Daily podcast, I think led with a pretty accurate headline, the swing vote retires. And that’s really why this is so critical. President Reagan nominated Kennedy as what he called a true conservative. But what’s become obvious is that Justice Kennedy hasn’t been on every issue. I mean, certainly when it comes to fiscal conservative and politically conservative things often.

But he’s not a social conservative on issues of marriage and on life. He’s given us some strange language, some strange legal precedent. The famous ability to find our own meaning of our existence and I think Justice Roberts after the Obergefell decision said it really well. He said if you — about Justice Kennedy’s decision — he said if you’re for same-sex marriage then you’re going to celebrate today. But don’t celebrate the Constitution because this decision had nothing to do with the Constitution. And that’s the sort of thing that I think Kennedy’s legacy will be.

And that’s what makes this decision so critical. A lot of people are talking about life, there’s no question that with the cultural momentum on life that the hysterics that we’re seeing at a place like Slate and Vox and other places about the end of Roe v. Wade may actually come to fruition. I’m seeing pro-lifers certainly excited and celebrate. Certainly if we can get someone who has the clarity on the right to life that Gorsuch has, that would be great.

I think also part of this story that may be even bigger is religious liberty. I mean, we know we’re at one of the most critical junctures in our history in the collision of sexual freedom and religious liberty. And the Masterpiece Cakeshop 7-2 decision, remember, was not dealing in wrestling through any sort of kind of legitimate understanding of religious freedom or freedom of expression or conscience rights. It was basically that the Civil Rights Commission didn’t give Jack a fair shake because they were really, really mean. And, you know what, they were mean and the fact that he won instead of lost was still a big deal as we talked about a few weeks ago.

But that still leaves unsolved what’s going to happen if, for example, Washington State reexamines Barronelle Stutzman’s case and says, “Oh, there’s no hate here. We’re going to send it right back up the channel.” I mean, what’s going to happen when the next case comes up, whether it’s the Sweet Cakes by Melissa case or something else. We will have another case soon that wrestles through how people can take their deeply held beliefs about sex and marriage into the public square and what’s going to happen then? And Kennedy was unreliable on that. There’s no question. So, this could be a real move in the right direction on that as well.

Justice Kennedy’s retirement news may have swamped any discussion of a critical 5-to-4 decision of the court this week: namely, the one that will effectively invalidate a California law targeting pro-life pregnancy care centers.

John, I’m a little surprised this one was as close as it was. That’s certainly one of the reasons the composition of the Supreme Court was such a big deal. But talk about the cultural import of the pregnancy-care-center controversy.

STONESTREET: Well, it’s culturally important, again, because if this one didn’t go the right way, what on earth? I mean, this wasn’t even close. I tweeted out immediately, like, it’s a great win but 5-4? I mean, this shouldn’t have been close. This should have been a 7-2 and in the oral arguments it actually looked like a 7-2 down the line.

I mean, you had Sotomayor smacking down the state of California in oral arguments but then, you know, kind of turning around and finding a strange rationalization for why a government entity could force a private organization to be its mouthpiece and advertising agent specifically on the topic for which they exist. It was just bizarre. It was a bizarre case but it ended up coming out the right way.

And it is significant because one of the big questions when it comes to the freedom of speech in terms of our religious freedoms is not just the freedom to say what we deeply believe but, increasingly, it’s whether we’re going to before ced to say something we don’t believe. So, this effectively settles that for pregnancy care centers. They no longer have to promote abortion services. Which, the fact that that even was an issue just tells you a lot about kind of how differently we see these things between the left and the right in America today.

John Stonestreet is president of the Colson Center for Christian Worldview. It’s Culture Friday, John, thanks so much, and we’ll talk again soon.

STONESTREET: Thanks, Nick.

(AP Photo/Manuel Balce Ceneta, File) In this March 23, 2015, file photo, Supreme Court Associate Justice Anthony Kennedy testifies before a House Committee on Appropriations Subcommittee on Financial Services hearing on Capitol Hill in Washington. 

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