Of Ontological Fire-breaks and Pragmatic Utilitarians

unbillable hours has an link to Harriet McBryde Johnson's account of her interactions with Peter Singer. Singer is the Princeton Philosopher whose utilitarianism has led him to argue that human children are no more significant in a moral sense than grown animals and that parents should have a legal to infanticide with respect to disabled children.

Johnson, on the other hand, is afflicted with a condition that has left her wheelchair bound, able to eat only pureed food, and unable to move herself when her body's center of gravity shifts. Notwithstanding all that - a phrase that Johnson would condemn as sheerest bigotry - Johnson is a practicing attorney and offended by the idea that her life has not been worth living and should have been terminated when she was an infant.

Not surprisingly, I am on Johnson's side in her argument with Singer. Nonetheless, I was amazed at the theoretical weakness of her position. It was almost as if she was trying to outflank Singer with utilitarian arguments, while basing her case on two specific rhetorical fallacies - the ad hominem attack and special pleading.

The ad hominem aspect of Johnson's thinking seemed almost to create a fugue state in her. The syllogism of Johnson's argument appears to be something like: (a) only a monster would argue in favor of killing children like Johnson, (b) Singer makes such an argument, (c) Singer is a monster, (d) arguments by moral monsters are per se immoral and wrong. The problem is that Singer isn't a monster; he's a philosopher. Consequently, Johnson has to struggle in her dealings with a person who is in fact quite humane. For example, Johnson stresses over minutia like being polite to Singer, shaking his hand, allowing him to assist her when she needs assistance. That sets up this passage:

It is generally assumed that I handled the substantive discussion well, but people worry that my civility may have given Singer a new kind of legitimacy. I hear from Laura, a beloved movement sister. She is appalled that I let Singer provide even minor physical assistance at the dinner. ''Where was your assistant?'' she wants to know. How could I put myself in a relationship with Singer that made him appear so human, even kind?

I struggle to explain. I didn't feel disempowered; quite the contrary, it seemed a good thing to make him do some useful work. And then, the hard part: I've come to believe that Singer actually is human, even kind in his way. There ensues a discussion of good and evil and personal assistance and power and philosophy and tactics for which I'm profoundly grateful.

Is this really what concerns people in a "movement?" Being polite to the "enemy?" I would bet that this kind of thinking explains much of what one sees in "movement" rhetoric. The "movement" really believes that their opponents are less than human and deserving of no respect on any level because of their views. Amazing, I have never seen a better instance of "objectifying the other."

Obviously, Singer is a nice man. Why wouldn't he be. It's not his manners that are the problem; it's his philosophy. The argument is philosophical, and unless you can effectively model Mother Teresa, you had better not stake your victory on the idea that everyone will agree that your enemy is a monster.

The other prong of Johnson's argument is simply "special pleading." She offers herself as exhibit one in her case. She explains that she felt life was worth living, that she preferrs existence to non-existence, that she resents being told that she was a burden or that her family would have been better off if she had been neatly disposed of when she was one month old.

But, really, so what? Obviously, she would feel that way. But is her special perspective compelling for others? How can she say that her "utility" - her enjoyment - is really positive? What is she comparing it to? What about the negative utility that she brought to others? How about the person who was deprived of a seat in law school who might have gone on to provide greater social utility as a divorce attorney than someone who squandered her education by becoming a "disability advocate?"

One can certainly learn a lot from a clearly courageous woman like Johnson who has overcome a lot. Johnson's experience says a lot about the power of the human spirit and the meaning of life, but oddly Johnson doesn't seem to say it. Her big contribution to to the debate is the idea that society oppresses the disabled, and that that wrongness of oppression vindicates her position. Thus, when dealing with the issue of allowing the disabled to choose the option of suicide, Johnson concludes:

I side with Gill. What worries me most about the proposals for legalized assisted suicide is their veneer of beneficence -- the medical determination that, for a given individual, suicide is reasonable or right. It is not about autonomy but about nondisabled people telling us what's good for us.

In the discussion that follows, I argue that choice is illusory in a context of pervasive inequality. Choices are structured by oppression. We shouldn't offer assistance with suicide until we all have the assistance we need to get out of bed in the morning and live a good life. Common causes of suicidality -- dependence, institutional confinement, being a burden -- are entirely curable.

Later, when a philosophy professor points out that her arguments are tactical and asks her what she would say "if we assume that such conditions do not exist?" Her response was a non-comprehending "why would we want to do that?" Johnson then feels "as if she is losing caste." What she never gets is that the problem is that others in society, the majority let's say, might assume at any time that the existential structures of oppression don't exist, and if that's the case what's her fall back argument for why suicide is wrong? What if society decides that oppression exists, but that's ok? Why, incidentally, is suicide wrong if it results from oppression? Because then suicide isn't a free choice? Ah, so it's choice that determines if something is good or not. Then, we'll set up structures and programs to ensure freedom of choice. Does suicide then become acceptable. I don't know about you, but if I were a disability advocate, I would want a stronger ontological fire-break against pragmatic utilitarians.

Singer is an atheist utilitarian. So, apparently, is Johnson, and she is offended by Singer's argument that opposition to his views are "religious."

Singer seems curious to learn how someone who is as good an atheist as he is could disagree with his entirely reasonable views. At the same time, I am trying to plumb his theories. What has him so convinced it would be best to allow parents to kill babies with severe disabilities, and not other kinds of babies, if no infant is a ''person'' with a right to life? I learn it is partly that both biological and adoptive parents prefer healthy babies. But I have trouble with basing life-and-death decisions on market considerations when the market is structured by prejudice. I offer a hypothetical comparison: ''What about mixed-race babies, especially when the combination is entirely nonwhite, who I believe are just about as unadoptable as babies with disabilities?'' Wouldn't a law allowing the killing of these undervalued babies validate race prejudice? Singer agrees there is a problem. ''It would be horrible,'' he says, ''to see mixed-race babies being killed because they can't be adopted, whereas white ones could be.'' What's the difference? Preferences based on race are unreasonable. Preferences based on ability are not. Why? To Singer, it's pretty simple: disability makes a person ''worse off.''

Are we ''worse off''? I don't think so. Not in any meaningful sense. There are too many variables. For those of us with congenital conditions, disability shapes all we are. Those disabled later in life adapt. We take constraints that no one would choose and build rich and satisfying lives within them. We enjoy pleasures other people enjoy, and pleasures peculiarly our own. We have something the world needs.

Except that her dislike of the market notwithstanding, who says the disabled have something the "world needs." The market? Utilitarian philosophers? Popular vote?

What is the value of a human being? Why are the disabled entitled to life? To read Johnson's narrative it appears that she and Singer agree on the answer - the value of a human life is in the quality of life. She and Singer simply disagree about whether the disabled have a quality of life that makes their lives worth living. Well, if that's the issue, lets get someone to decide. Appoint a special commission, or take a vote, or have a big debate between Singer and Johnson, and let's decide.

Unless, of course, you believe that mere humans don't get to make that decision about other humans or that human lives have a unique value because they are human lives.

I think Johnson's problem is identified by Alasdair MacIntyre in After Virtue. McIntyre's notion is that without a consistent tradition in which to analyze moral question, debates over moral questions are nothing more than incoherent, ad hoc rationalizations. Johnson's arguments seem to bear out this insight. Because she is a utilitarian, when she is confronted with a real utilitarian, she has nothing to argue except over who is a nicer pperson.

OK, justification fans, Bill Cork has some interesting comments and links on the Lutheran-Catholic Joint Declaration on Justification.

My first reaction when I read the Joint Declaration was to think of the best newspaper non-headline of all time: "Archduke Ferdinand found alive in Paraguay; World War I fought by mistake." By analogy, the Joint Declaration headline would have read: "RC Church agrees that Justification is by Faith; Thirty Years War fought by mistake."

Actually, though, on parsing the dense theological language, it appeared either that (a) there really was not an agreement or (b) the Lutherans were moving Catholic-wards on major issues. Reading some of the links in this post, it appears that some Lutherans felt the same way.

Well, a good settlement is one where no one is happy.

Worth Reading

James Lileks deconstructs the former French Minister for Latin American Affair's American bashing piece in the New York Times.

St. Patrick's Day must be coming

This is off the Harry Turtledove e-mail list:

Saddam Hussein was sitting in his office wondering whom to invade next
when his telephone rang.

"Hello, Mr. Hussein!", a heavily accented voice said. "This is Paddy down at the Harp Pub in County Sligo, Ireland. I am ringing to inform you that we are officially declaring war on you!"

"Well, Paddy," Saddam replied, "this is indeed important news! How big is your army?"

"Right now," said Paddy, after a moment's calculation, "there is myself, my cousin Sean, my next door neighbor Seamus, and the entire dart team from the pub. That makes eight!"

Saddam paused. "I must tell you, Paddy, that I have one million men in my army waiting to move on my command."

"Begorra!", said Paddy. "I'll have to ring you back!" Sure enough, the next day, Paddy called again. "Mr. Hussein, the war is still on! We have managed to acquire some infantry equipment!"

"And what equipment would that be, Paddy?" Saddam asked.

"Well, we have two combines, a bulldozer, and Murphy's farm tractor."

Saddam sighed. "I must tell you, Paddy, that I have 16,000 tanks and 14,000 armored personnel carriers. Also, I've increased my army to 1-1/2 million since we last spoke."

"Saints preserve us!" said Paddy. "I'll have to get back to you."

Once again, Paddy rang again the next day. "Mr. Hussein, the war is still on! We have managed to get ourselves airborne! We've modified Harrigan's ultra-light with a couple of shotguns in the cockpit, and four boys from the Shamrock Pub have joined us as well!"

Saddam was silent for a minute and then cleared his throat. "I must tell you, Paddy, that I have 10,000 bombers and 20,000 fighter planes. My military complex is surrounded by laser-guided, surface-to-air missile
sites. And since we last spoke, I've increased my army to TWO MILLION!"

"Jesus, Mary and Joseph!", said Paddy, "I'll have to ring you back."

Sure enough, Paddy called again the next day. "Top o' the mornin', Mr. Hussein! I am sorry to tell you that we have had to call off the war."

"I'm sorry to hear that," said Saddam. "Why the sudden change of heart?"

"Well," said Paddy, "we've all had a long chat over a few pints, and decided there's no way we can feed two million prisoners."

It doesn't seem to have very much to do with Harry Turtledove.

Movie News

As a member of the Redheaded Irish-Catholic Bar Association (not as exclusive as you might think - there is another member here in Fresno), I, of course, had to go see Daredevil yesterday. I was fully prepared to hate it, if only because of the presence of Ben Affleck. Actually, I liked it. I think it was better than Spiderman. The Daredevil character comes out as truly conflicted about his violent approach to "justice." I think this movie hits that note better than Batman did. I was hopelessly confused about why DD's "radar-sense" is better than vision, particularly when loud noises throw it a-kilter. As for his "secret identity," was there anyone at the end of the movie who was not in on the "secret?" On the other hand, I have been reading Daredevil since lawschool so I probably had a better grip on the storyline than most viewers, and DD's secret identity is pretty well-known, even to Wilson Fisk aka Kingpin (who did not kill Mathew Murdock's father, incidentally.)

It's a good time-wasting popcorn movie (if you like that kind of thing.)

In addition: Hooray for Captain Spaulding will someday review Daredevil, at least once he gets over his snit of not being picked for the Foggy Nelson role.

Here is a Robert Fisk column that decries the gauchistas prioritization of forming ever more intricate networks among themselves, as opposed to reaching out to the average person, who is apparently too mired in ignorance to comprehend anything beyond beer commercials and stock car racing. Kudos to Fisk for noticing the sterile quality of the Leftist anti-war project. Of course, his comments about rednecks is not very helpful.

By the way, notice the informed and altruistic quality of the Second Camera Man's geo-political commentary. His reason for supporting war is to protect Israel. It is not to get more oil or because of an atavistic fear of the "other." [The "other" might be Israelis, if I understand critical theory at all.] Apart from the earthy quality of his discourse, which I won't reproduce here, he sounds like an informed and public spirited man.

Of course, he has probably been fired from the tolerant and open-minded public television station where he was working.

Constitutional Nuances in the Scandal: The Wall of Separation Runs Both Ways


Robert Musil has an interesting post that suggests the latent constitutional issues in lawsuits involving the Catholic abuse scandal.

Apparently, the Boston Diocese attempted to use the First Amendment as a shield against claims that the Diocese was liable - vicariously or directly - for its supervision of abusive priests. According to Musil:

Superior Court Judge Constance M. Sweeney ruled that the lawsuits should proceed toward trial because the cases will not delve into religious principles, such as church doctrine, but the handling of allegedly abusive priests by their superiors. To accept the church's argument, Sweeney wrote, would be akin to granting the church blanket immunity from civil lawsuits. ''If the court were to recognize the defendants' sweeping church autonomy doctrine ... the result would be that church representatives could exercise all the rights and privileges the secular law affords yet not be burdened by any of the essential civil laws that protect the safety of all members of society, particularly children,'' she wrote.

Musil points out that Judge Sweeney believed that a civil court may impose a "reasonable care" standard on a church hierarchy in the same way that the state may impose a "reasonable care "standard directors fo a corporation. Musil disagrees:

By way of background, the issue here is not whether an individual member of the clergy can be held liable for his or her own acts. The question is whether or when the clergy's religious organization - in this case, the Archdiocese - can be held liable. Judge Sweeney has held that the organization can be held liable if it was merely negligent in supervising offending clergy. This case involves no claim that clergy members have any religious right to abuse their charges, so recent Supreme Court decisions upholding generally applicable laws not aimed at religion which have the effect of restricting religious practices (such as legal prohibitions on drugs used in religious services) are not applicable.

Musil disagrees with the attempt to treat Churches like commercial corporations:

The church is not a corporation. A church is not created by the state and need not take the form of a corporation, a limited liability company, a partnership, nor any other government-recognized entity - and the state is not entitled to impose what it believes to be good policies of corporate governance on a church. In particular, the First Amendment leaves the state very limited power to hold a religious group liable for failure to exercise any particular degree of control or supervision - and a "reasonable care" standard surely goes far beyond that state power.

As Musil notes, the Western history has often revolved around the allocation of jurisdiction between Church and State. In fact this tension led to the uniquely Western view of law and freedom. What is interesting is that Musil’s concerns are those which were outlined in the recent case of Richelle v. Roman Catholic Archbishop of San Francisco (filed 2/14/03) which came down on February 14, 2003.

Richelle involved a surprisingly frequent fact pattern whereby a Cleric engaged in sexual relationships with one of his flock whom he is providing counseling, usually marital counseling. Although this case involved a Catholic priest (commence smirking and knowing nods) these cases probably are more common outside of the Catholic tradition. Penner had one of these cases in the DP&B megafirm involving a Protestant - a Baptist, I believe - until quite recently (cease smirking.) Apparently sin transcends faith.

In any event, Father Felix Namocatcat took up with one of his parishioners, who, according to her complaint, was uniquely susceptible to his seduction because of her piety. Although Father Felix claimed that he had never engaged in such behavior and intended to retire from the priesthood to be with Plaintiff, he had a reputation for seduction which was allegedly known to the Diocese. The relationship ended poorly, and Plaintiff sued Father Felix and the Diocese for breach of fiduciary duty and negligence.

The Richelle case began with a discussion of Father Felix’s duties to Plaintiff. It began by noting that California has an “anti-heart balm” statute which eliminates the tort of illegal seduction. Because of this, the Court embarked on a discussion to determine whether Father Felix had any legal duty not to seduce his parishioners. The putative legal duty, it felt, might arise from either a “fiduciary” relationship or a “special” or “confidential” relationship. [Note to practitioners, this case may have one of the best discussions of fiduciary duties extant.] The court concluded that there was no “special relationship” in light of the because Father Felix was not licensed to provide counseling services and California does not recognize a cause of action for “clerical malpractice.” The California case - Nally v. Grace Community Church - which holds that there is no tort of clerical malpractice is widely followed because:

reflects widespread judicial acceptance of the Nally view that an action for clergy malpractice cannot be reconciled with the First Amendment because a standard of care and its breach could not be established without judicial determinations as to the training, skill, and standards applicable to members of the clergy in a wide array of religions holding different beliefs and practices. Even if a reasonable standard could be devised, which is questionable, it could not be uniformly applied without restricting the free exercise rights of religious organizations which could not comply without compromising the doctrines of their faith. The application of such a standard would also result in the establishment of judicially acceptable religions, because it would inevitably differentiate ecclesiastical counseling practices that are judicially acceptable from those that are not.

The fiduciary allegation presented more difficulty for the Court. The Court noted that (a) courts are split on whether a cause of action for breach of fiduciary duty may be stated against a cleric, (b) tort causes of action are permissible when they are based on “neutral principles” that do not involve religious doctrine and (c) no religion is seriously going to argue that seduction is part of a religious practice (thereby allowing the conclusion that liability for the tort will not overly burden religious practices.) Nonetheless, in the Richelle case, the Plaintiff was not claiming that her vulnerability arose from counseling or some other relationship apart from her piety. That, the Court felt, crossed the First Amendment line - “Appellant’s claim that the depth of her religious faith rendered her vulnerable to Reverend Namocatcat could not be adjudicated without reference to the nature of her religious beliefs and the doctrines of her church.” Distinguishing a prior decision, the Court wrote:

Unlike the plaintiff in Langford, whose vulnerability arose not simply from her religious devotion, but also from a grave physical ailment, appellant’s claim of vulnerability rests solely on her “deeply religious” disposition. Thus the crucial questions whether appellant was vulnerable to Reverend Namocatcat and unable to protect herself effectively would focus sharply on the nature and depth of her religious faith, and its basis, if any, in Roman Catholic doctrine. These are, of course, profoundly religious questions, as to which the courts may not constitutionally inquire.

Voila, the First Amendment was a complete bar to Plaintiff’s action.

The Diocese was given a pass in the case because of the absence of a cognizable theory against Father Felix. The Court noted that there was no attempt to state a claim for “vicarious liability” against the Diocese inasmuch as “seduction” was presumably outside of a Catholic priest’s job description.

The point of cases like Richelle is that religious organizations are not per se immune from liability. The violation of neutral laws will result in liability if the decision can be reached without any consideration of the victim or offender or denomination’s religious feelings or beliefs. On the other hand, the Constitution, and history, requires that Courts act with sensitivity in this area.

Finally, I find Musil’s suggestion that Jones v. Wolf and its progeny may be read as precluding collection efforts to be interesting. That is not my intuition, frankly, but the idea of a State-appointed bankruptcy trustee making decisions about which relics to sell and for how much does cause my constitutional knee to jerk.

There are clearly more constitutional conundrums in the offing.

Law Stuff

The California Supreme Court has come down with a decision in Colmenares v. Braemar Country Club and has held that the California legislature never intended that California law on disability discimination would be as severe and restrictive as the federal Americans with Disability Act. ["ADA."] The conclusion of the Colmenares decision is:

We hold that in 1997, when Colmenares’s cause of action for wrongful termination arose, a plaintiff seeking to establish physical disability under the FEHA had to show: (1) a physiological disease or condition affecting a body system; and (2) the disease or condition limited (as opposed to substantially limited, as required under federal law) the plaintiff’s ability to participate in major life activities.

Which is what I have been saying for years. Notwithstanding all that, this is nice to know now after numerous Superior Court judges erroneously dismissed a number of my disability cases. Well, I get to claim an ex post facto moral victory, which is really the best kind of victory and is some consolation after I laid out the costs in those cases.

Background: California law on disability discrimination is found in the Fair Employment and Housing Act ["FEHA"]. Corresponding federal law is found in the ADA. The definition of "disability" under the ADA expressly requires a determination that the claimant is "substantially limited" in performing a "major life activity." By statute, the FEHA requires only a "limitation" in a "major life activity. [Note: that's what the statutes say.] Because California judges use the ADA to construe the FEHA, and because they are generally conservative, those judges would import the more restrictive ADA definition into FEHA cases.

This subtle difference has a dramatic effect. Under the "substantial limitation" standard, a plaintiff has to be truly and recognizably disabled - virtually to the point that the plaintiff couldn't perform the essential duties of the job even with a reasonable accommodation (more tems of art) in order to qualify as "disabled." Consequently, we would have people who had been terminated because they were insulin dependent diabetics, who did not qualify for protection because they had their diabetes under control. This Catch-22 approach is federal law.

In 2001, the California legislature enacted the Prudence Kay Poppink Act, which stated the Legislature's intent that "limited" meant "limited" and not "substantially limited." The Court in Colmenares had refused to recognize the effect of Poppink Act because of its view that the Act was "new law" and could not be applied retroactively. The Plaintiff in Colmenares had been terminated in 1997.

The California Supreme Court took up the issue, and has now explained that the words "limited" meant "limited" and not "substantially limted."

For the lay person, this episode should be interesting as a view of the indeterminacy of statutory construcion. There is a myth that law has a precision. But laws, and contracts, are built on words, and how someone reads words is often based upon a host of considerations which are never really explicated. After all, "words are not crystals with fixed, invariant meanings; words are the living skin of thought."

I am hearing some rumors that the Modesto police have recovered Lacy Peterson's body. I think I have a second-hand corroboration from inside a media source, but nothing has shown up on the news sites so far. The rumors are saying that the body was located either under the house or near the husband's work site. Peterson's boat may have transported the body away from the home. This is speculation based on piecing together various threads of information from different sources close to the Peterson family. It may all be wrong, too.

Update: Rats. It was only a rumor. Well, whatever, watch for the boat.

Bill Cork has a post on a scandal at the Air Force Academy. The lede reports that female Cadets were rebuked for reporting rapes, which conjures images of sexist, chauvinistic military officials ignoring their legal duties.

But, later, as Cork points out, the rest of the story comes out. Per Cork:

But we read further (always read to the end of the article, because contrary to what journalists tell you, they do not always put the most important information up front!), and we see that one attack happened "after a night of drinking and strip poker"--in which the female cadet was a willing participant. And she complains that the commandant raised the question of her conduct as being a contributing factor. He said there was no jusitifcation for the attack, but "when you put yourself in situations with increased risk, you have to take increased precautions to mitigate those risks."

Which sounds like very good advice for young officers of either sex. Also, it sounds like excellent advice for young daughters.

Constitutional Confusion

Sacramento Bee columnist Marjie Lundstrom has a column in the February 6, 2003 issue of the Daily Journal, which is a "dead tree" legal rag, entitled Abortion foes cross line with attacks on elected officials. [For your reading pleasure, I located the on-line Sac Bee citation.] It's another opinion piece which effectively shows that J-School is not in the business of teaching either Constitutional Law history or critical thinking.

Let's concede for the sake of argument that Lundstrom may have a right to be concerned about the intrusion of religious denominations into sectarian politics and that she has the right to prefer abortion-rights as the ultimate or penultimate value in her scheme of ordered liberties. Nonetheless, her analysis displays the same kind of confused thinking about church-state relations that informed Judge Edwards constitutional misstep.
For example, Lundstrom writes:

The group is admittedly energized by the actions of Sacramento Bishop William K. Weigand, who said Mass last week and called on Gov. Davis to renounce his support of abortion rights -or quit receiving Holy Communion.

And so California is poised to be the next exhibit in the corrosive world of abortion politics, where one side is already eating away at the separation of church and state.

Never mind the "Deadly Dozen" business. Politicians can expect that stuff from both sides of the spectrum.

But explain, please, how Bishop Weigand -- for all his religious and moral authority -- has any business singling out an elected politician from the flock and publicly insisting he change his views? If this isn't an intrusion of church into state matters, then why isn't Weigand crawling inside the heads of all his parishioners and issuing a similar, pre-Communion challenge?

Last I looked, California voters chose a Democrat to run this state, not the Vatican.

To date, abortion is legal. The U.S. Supreme Court has agreed. And the governor of California is upholding the law.

Once again, the world-view hinted at in that passage is breath-taking.

First, the "separation of church and state" was intended to protect private associations from state action, not the other way around. There have been numerous occasions when churches have meddled in political affairs. The Methodists split over the issue of slavery. The Berrigans were involved in anti-Vietnam protests. Local church groups oppose gambling. Those activities are legitimate and constitutional because people are entitled to organize themselves in private associations. Admittedly, the fact that something is legal does not make it prudent. There has been a long tradition in American Catholicism - largely as a result of nativism and bigotry - that the Church stays out of politics. I think that is a good policy. Nonetheless, there is a distinction in the Catholic tradition between political activity by the laity and by political leaders. If Lundstrom had been interested, information on this distinction would have been readily accesible to her with a little internet research.

There is a serious point here, though, about the free exercise of religion. The true threat to religious freedom does not come from Bishop Weigand's insistence that Governor Davis recognize that his scandalous [in the religious sense] conduct has effects on his membership in the Church. Weigand does not possess temporal coercive authority.

The real threat at the present time is from the left which has been imposing litmus tests on members of certain religious faiths. Thus, one cannot be a fundamentalist and a member of a local civil rights commission. Can a devout Catholic become a federal judge? Wouldn't Democrat legislators find such religious belief a disability for judicial service? Wouldn't they insist on extracting from a judicial candidate a promise that would be contrary to the candidate's religious faith? Would anyone care? Would Lundstrom write an op-ed about religious freedom? The answers are probably obvious.

Second, private associations have a right to determine their membership. Admittedly, the rules aren't as loose for business associations and other public accommodations. Nonetheless, it is part of our liberty that religious groups get to determine the religious tests for membership. Bishop Weigand has absolute discretion to decide who gets communion in his diocese. That discretion is explicit in constitutional jurisprudence. The day he loses that discretion is the day that religious liberty ends. [Incidentally, he also has the right to say just about anything he wants. Typically, journalists would refer to opinion columns like that penned by Lundstrom as a "call for censorship," which, of course, it isn't because it doesn't involve state action. That fact notwithstanding, they would still talk pretentiously about "censorship."]

Third, look at the phrase "Last I looked, California voters chose a Democrat to run this state, not the Vatican." Last I looked, that kind of statement was a mainstay of Nativist bigots who feared that electing a Catholic president would mean turning the country over to the Pope. It took a long time to recognize the latent bigotry of that view.

Just a thought, wouldn't it be nice if people who get paid for their opinions actually took the time to learn something about (a) constitutional law, (b) history, or (c) the religious traditions of the group they are criticising before they spout off. It might make for more interesting reading and might help to advance public discussion. It might also make the writer look more informed and intelligent.

Again, just a thought.

The Real Peace Movement

The Jewish World Review relays the request of the Council of Torah Sages to make a February 20 a day of prayer:

Whatever your plans may be for the afternoon of Thursday, February 20, please set aside some time to help protect the civilized world and the Jewish people.

Alterman: Putzy is as putzy does.

Eric Alterman has a book in the market which argues for the non-existence of liberal bias in the media. Although the argument about liberal bias tends to turn into point-counterpoint examples based upon specific instances of bias, I think the existence of mainstream liberal bias can be demonstrated empirically by the explosive growth of conservative talk radio in the 1980's. As indicate two posts down, economic theory would argue that such growth is persuasive evidence of an unmet demand for conservative perspective in media. [Likewise, the fact that the blog phenomena is largely conservative is further evidence that liberals get fed elsewhere, and that elsewhere simply has to be the mainstream media.]

Alterman's thesis may be arguable, but some of his recent performances seemed pretty childish. Last week NRO provided a forum for a debate on Alterman's theory. I initially read the debate with some interest. If Alterman has an argument, I would like to hear it.

The "debate," however, rapidly proved disappointing with Alterman appearing to play the role of smirking court jester in order to run up his book sales. David Frum's synopsis accurately summarizes the "debate:"

I am sure I am not the only reader who thought that Brent Bozell wiped the floor with Eric Alterman in last week’s three-round NRO debate over media bias. In fact, Alterman’s argument was so amazingly feeble that it leads one to question why he bothered with it at all. To sum up the six posts:

1) Alterman praises his own book and then quotes a couple of conservatives denying that they think liberal media bias is real or important.

2) Bozell points out that there is abundant empirical evidence of bias and presents a couple of damning examples.

3) Alterman praises himself some more and then accuses Bozell of prejudice against homosexuals.

4) Bozell presents more empirical evidence of media bias.

5) Alterman at last offers one solitary concrete argument for his contention that conservatives exercise immense media power: In October 2001, ABC News President David Westin told a Columbia Journalism School class that he had “no opinion” whether the Pentagon was a legitimate target for attack by America’s enemies. Many people objected to this remark, and Westin apologized. Alterman says he found this "capitulation" "dispiriting."

6) Bozell refrained from scoring the obvious debater’s point here: “Do you, Eric Alterman, truly mean to concede that it is ‘conservative’ to be anti-terrorist and ‘liberal’ to be agnostic about terrorism? Maybe you and Anne Coulter have more in common than you think.” Instead, Bozell calmly concluded that he had offered evidence to prove his point and Alterman had offered none. Game, set, and match to Bozell - and a pretty convincing demonstration to those of us who have not yet read Alterman’s book that we need not bother.

It turns out that my feeling that Alterman was treating NRO, NRO's readers and Bozell with sneering contempt was justified. In his column which takes a Salon columnist, Jack Shafer, to task, Alterman writes:

I suppose I’m just asking for more trouble here, but Slate press critic Jack Shafer gives no evidence of having done so. Here, he attacks my work on the basis of just 1,500 words I used to make fun of Brent Bozell in National Review Online — ignoring the more than 158,000 words in the rest of the book where these things are discussed with a bit more nuance and detail.

That is an amazing statement. I have debated. I have tried cases to judges and juries. I have never set out to make fun of an adversary. The idea is always to address issues, not demean the adversary. You can't elevate yourself by tearing the other person down. The fact that Alterman believes that a legitimate object of debate is to "make fun" of someone says something about the way that he was mentored in his craft.

I take it that the invitation extended to him by NRO was not a gag. I take it that if Alterman had said anything interesting in his 1,500, he might have notched up a few sales. Instead he chose to tweak noses and act like an immature seventh grader. He didn't demean Bozell; he demeaned himself. Moreover, the unwillingness to come to grips with his adversary - to "clash" in debate parlance - is strongly indicative that he was afraid that he would lose if he had treated the proceedings as a serious affair. In short, Alterman comes off from this exchange as craven.

The OmbudsGod, who is no slouch at history, sets the record straight on the French debt to America, and vice versa.

The Market Place of Ideas does not respect counterfeits and knock-offs

Here is a
New York Times article on "Liberal Radio Is Planned by Rich Group of Democrats." Hannity & Colmes had Gloria Allred on arguing that a Liberal Radio Network is necessary because of the refusal by someone to allow Liberal Talk Shows an even break. The counterpoint that the Liberals have a radio network, NPR, and its publicly funded was ignored but its a pretty reasonable point.

Nobel Prize Winner George Stigler once argued that since media reflects popular demand, if the media was liberal, then that showed the overwhelming demand for liberal programming. As a libertarian, I couldn't argue with the free-market reasoning underlying this proposition, although it suggested a much more liberal culture than I thought existed. When Rush Limbaugh and others took off it showed that there was a pent up demand for conservative media which was not being supplied.

The suggestion here is that NPR will defeat any attempt to create a liberal talk show option. If I want to hear about "Haitian Aids Activists teach Mozart to Inner City Students" I - and everyone else - can turn on NPR. If I want to get my fix on ideological stories showing that we live in a racist society, such as occurred last week with an incredibly lengthy story that was on earlier this week about a minor, unimportant racist psuedo-religion which I had to turn off because I didn't want to expose my children to racist language, I can always dial in NPR. This means that the problem is not as indicated in this paragraph from the story:

The failure of Mr. Hightower's show supported the notion of many in radio that liberal hosts do not have what it takes to become successful and entertaining hosts: the fire-and-brimstone manner and a ready-made audience alienated by the mainstream news media it perceives to be full of liberal bias.

The problem is not that Hightower was competing with Limbaugh; the problem was that he was competing with NPR, and KVPR, and ABC, and the Today Show, and the New York Times, and so on.

More Anti-War Pro-Dictatorship Protest News
I am obviously off the Spartacist League listserv. I had no idea that the local protest was part of a world-wide hive-like display by the "progressives." Jeane D'arc at the gauchista-blog Body and Soul found the whole thing existentially exhilerating and life-affirming:

If you want something to feel good about this morning, run your cursor over the front pages around the world, and check out these numbers:

500,000 - New York, United States
100,000 - Seattle, United States
30,000 - Los Angeles, United States
3,000 - Chicago, United States.

Based on D'arc's site, it appears that Fresno's 1,500 protesters were three times those that showed up in Prague. Which shows you what 50 years of actual experience with "liberals in a hurry" can do.

You have to wonder what the heck there is for a gauchista to feel good about. Bad spelling? A chance to display signs that have the same currency as the playing of the Horst Wessel song? Sententious moral posturing? Not protesting the maintenance of Sadam in power for the last 12 years while he perfected WMD on human experimental subjects? Check out Right-Thinking from the Left Coast for photos from the San Francisco Anti-War Pro-Dictatorship Protest. The intrepid Anna has photos from the Washington DC protest.

It looks like Fresno had more participants at the Eco-Terrorism Summit.

Update: D'arc is in for a let-down. Protest organizers invariably and dramatically overestimate their turn-out. A good rule of thumb seems to be to divide the official number by ten.

Local News

Its been a goofy week in California's version of Western Oklahoma.

Local Politics

In Louisiana, it is said, the only way that the party's selection can lose an election is to be caught in bed with a dead girl or a live boy.[fn.1] In Fresno, apparently two prostitution solicitations arrests will get the same result. Molly has largely staked out the Samuelian story[fn.2] - which involves the Fresno assemblyman who was recently arrested for loitering with intent for a second time. The first time was prior to the 2002 election. [Disclaimer: I voted for the other guy because I am tired of young punk legislative aids without an ounce of experience in the marketplace making decisions about what I should pay in taxes.]

Anyhow last week, various Republican leaders called for Samuelian's resignation. At that point I suspected that the truth might be that in the small circle of those who really count, Samuelian might not be well-loved among his peers. Here's the Fresno Bee article proving that insight.

It also proves Bradley's Second Rule of Engagement: "You can be vicious, or you can be stupid, but you can't be both at the same time."

Local Pro-Sadam Politics

Fresno also hosted its largest Anti-War Pro-Dictatorship demonstration since the Viet Nam War. The Bee article says that 1500 people urged the maintenance of Sadam's brutal dictatorship in Iraq. The article actually says a lot about my thesis that an anti-American tradition has become institutionalized in a discrete portion of the population. The people who showed up are not new converts to "peace in our time." They are the invariable opponents of American action in support of American interests. [ well, at least if such actions occur during Republican administrations; these people were noticeably silent during the various displays of martial vigor in which Clinton would periodically engage when impeachment was in the wind.]

When I say the "same people," I mean the same people. If you read the article you will see that Vincent Lavery is identified as a spokesman. [You may remember Lavery for his organization that brought Catholic and Protestant children to America to promote understanding, or from the movie about the organization; I remember him as a High School substitute teacher.] For as long as I can remember, Lavery has routinely been the sacrificial lamb for the far left in various runs for public office. I also have a vague recollection of reading a letter to the editor in which Lavery was laudatory of Castro's regime in Cuba for all the usual reasons.

Local Pro-Terror Politics

Fresno State hosted a conference which advocated terror as a legitimate means of political action. According to the Bee:

Fresno State's Thursday night session on revolutionary environmentalism featured speakers' calls for radical, direct action, including setting free captive animals and burning down corporate headquarters.

Speakers advocated violence. Again, according to the Bee:

Speaker Craig Rosebaugh, former spokesman for Earth Liberation Front, linked abuse and killing of animals to the deaths of 500,000 Iraqi children, which he attributed to American sanctions, since the Persian Gulf War. What connects the killing of animals and the deaths of children, he said, is the need for compassion.

When he freed caged animals, Rosebaugh said, "I walked in the footsteps of Gandhi."

Rosebaugh said the Earth Liberation Front's members will stop breaking laws, "but only if they achieve their goals." He commended $45 million in damage caused by ELF actions against "corporations that don't care."

Campus police and California Highway Patrol officers stood guard outside as speakers won applause from the audience.

Ok, First Amendment fans, what is the difference between this speech and the Nurmberg anti-abortion site? [See this post for a discussion of Planned Parenthood v. ACLA.] You get a failing grade if your answer is in any way based on the relative merits of the speaker's position or on the content of the speech.

As I predicted in an earlier post, the agricultural sector was not amused by Fresno State's involvement in this circus. The Bee relates comments from local ranchers, including John Harris, whose Harris Ranches is a client, expressing disgust with the proceedings and the refusal of the "conference" to allow agricultural intersts to have any role in the proceedings. According to the Bee:

Wood cited the agricultural and business communities' longtime support for Fresno State, and said, "Many supporters are reconsidering."

"This sore will take a long time to heal," Harris said

Good, I hope the Bulldog Boosters start paying attention to what they are funding.

Finally, as I was driving to court on Friday I heard part of a show on our local talk radio station, KMJ, where the host was playing excerpts from a speech where one of the organizers of the Fresno State conference was describing the correct way to make a "molotov cocktail" out of a plastic jug. I heard it. That's what he was saying. He also said that it was useful. Of course, he caveated the remark with the usual statement to the effect that he wasn't really making any suggestion that anyone really use this information.

Again, I ask, what is the difference between the Nuremberg site and this conference?

footnotes

1. That's actually a line of dialogue from The Badge, which I saw last night. The issue in the Badge focused on the possibility that the Governor had done both at the same time. I agree with the the review I have linked to, the movie was predictable but entertaining. On a four point scale, I'd give it 2 1/2.

2. She is also becoming a magnet for that segment of the blog population with an interest in (a) inflatable dolls (if you know what I mean) and (b) naked college coed symphony orchestras. I suspect that her site is going to go into the "odd and disturbing google hits" hall of fame.

ibidem has an article about the Pope's meeting with Tarik Aziz. The article points out that Aziz is a Chaldean Christian, which clears up some confusion I was experiencing in telling Penner a story about an old friend of mine.

I have a friend from high school and college named Armen George. Armen is part Iraqi Christian and part Armenian. His father was dispatched by the Iraqi government in the late 50s to the University of California Davis to learn agriculture, where, in 1959, Armen was born, and thus became an American citizens by that accident of natal geography. Shortly thereafter, the family returned to Iraq. The story I heard back in high school was that on his return, Mr. George got sideways with a student leader, who shopped him to the secret police on some trumped up charge. Mr. George was tossed in prison where he remained until Mrs. George went to the American Embassy demanding that they secure the release of the parent of an American citizen, the infant Armen. Mr. George was released and family left Iraq to migrage to Venezuala - which is why Armen speaks English, Armenian, Arabic and Spanish - and ultimately to the Queen of the Valley - Fresno, California.

At the time of the 1991 Gulf War, Armen confirmed the part about the incarceration being engineered by a rival student leader, although he said the embassy was not involved in the release. Frankly, I like the first version of the story.

When I was relaying this story to Penner yesterday, I was a little confused because I couldn't figure out a Christian had gotten sideways with a person who I thought was a Moslem. It didn't seem like they would have moved in the same circles.

According to the Ibidem article, the person who had my friend's father incarcerated - the leader of the rival student faction - Tariq Asiz - is an Iraqi Christian, which causes the story I heard back in the 1970's to make more sense.

Six Degrees of Separation: From you to me to Armen to his father to Tariq Aziz to Saddam Hussein in six moves.

I am parking this article - Buddhist Retreat - Why I gave up on finding my religion. By John Horgan - for future reference. The observations about Budhism's core principle including the idea that there is no "self" is interesing in light of the contrary position taken by philosopher John Searles and Pope John Paul II.

James Lileks has another persuasive article on the prospect of Gulf War II. I liked this examination of logic of the "containment agument:"

But the Containment argument - hey, if he does nuke us, we can nuke him back - isn’t MAD, it’s just crazy. It presumes we could step back, pause, sift through the intel, then kill a few million people to make a point.

We’d never do it. We’d hold televised benefits for Baltimore. We’d all remember the victims of 5/23. We’d buy the DVD compilations of news footage, archive the papers that landed on our stoops the day after. We’d find life returning to normal, eventually - but we’d never feel at ease again. The worst thing ever had happened, and to our surprise the world hadn’t ended. But the world had changed. Our better nature had prevailed - and we were certain to suffer again because of it, right up until the day we lashed out and became everything we never wanted to be.

The good news: that’s not going to happen.

The bad news: we’re going to war, to make sure it doesn’t.

Lincoln's Birthday

Lane Core reminds us that today is Lincoln's actual birthday with some Lincoln correspondence concerning prayer. I haven't reflected on this particular correspondence, and I think that Lincoln's writings deserve careful reflection. In this age of hostility to public expressions of religion consider Lincoln's reply:

Your people — the Friends — have had, and are having, a very great trial. On principle, and faith, opposed to both war and oppression, they can only practically oppose oppression by war. In this hard dilemma, some have chosen one horn and some the other. For those appealing to me on conscientious grounds, I have done, and shall do, the best I could and can, in my own conscience, under my oath to the law. That you believe this I doubt not; and believing it, I shall still receive, for our country and myself, your earnest prayers to our Father in Heaven.

What a fortunate country we are to have had a leader like Lincoln at that time. In the midst of a "great Civil War," Lincoln could still empathize with the dilemma that anti-slavery pacifists had to reconcile. In a different context, Rod Dreher writing about Ted Turner quotes the Jewish philosopher Philo of Alexandria's aphorism: "Be kind, for everyone you meet is fighting a great battle." Lincoln had that kind of ethos.

I had a great parenting moment yesterday. The middle daughter - The Widget - told me that the teacher had told her Kindergarden teacher had told the class about Lincoln that day. She heard about how Lincoln had had to learn by candlelight and was self-educated and was a lawyer. After learning about Lincoln, the Widget told me that she had raised her hands so that she could tell the teacher that her daddy was a lawyer too.

Kind of reminds me about why I went to law school.

Urban Legend Update

I got into a discussion with a long-time lefty friend. After she posited the position that Bush had inherited a strong economy from Clinton, and I had laughed that I was watching 20% of my retirement evaporate prior to the summer of 2000, I remarked that if anyone had a right to resent Clinton it was poor old Al Gore. If I had been Al Gore, I think I would blame Clinton for (a) Lewinski, (b) not being able to hold the economy together for six more months, and (c) Elian Gonzales. My point was that Clinton's mishandling of Elian guaranteed that an additional 500 conservative Cuban-American voters would turn up at the polls than would otherwise have been the case. She then floored me by parrying with the claim that African-Americans were intimidated at the Florida polls, which I thought had been thoroughly discredited.

Apparently, the legend lives.

For the record, here is the report of the DOJ Investigations into Florida which, once again, discredits this urban legend.

Here is BET.com's article which has this excerpt:

According to reports, the department acknowledged possible voting irregularities in three Florida counties, but said that the problems that did exist could not have affected the outcome of the election.
"Let me be clear, the Civil Rights Division's investigations identified only a limited number of Floridians who were unable to vote, a number that does not reasonably cast any doubt on President Bush's several hundred vote margin of victory in Florida," Assistant Attorney General Ralph F. Boyd Jr. wrote in a letter to Congress.
The department plans to file lawsuits against three Florida counties: Osceola, Orange and Miami-Dade, saying that even though polling problems were unintentional, they may have deprived some voters of their rights.
The lawsuits will allege that the counties failed to provide bilingual assistance at the polls and that some voters may have had language problems. In one county, two Haitian voters were denied language assistance, Boyd said.

Here is the CNN report on the DOJ findings. And here is a John Leo column to the effect that the claims of "disenfranchisement" boil down to statistical inferences, which is a far cry from "intimidation."

I need to find a Washington Post or New York Times corroboration to really clinch this argument. Your assistance is kindly appreciated.

Patrick Ruffini is pitching a season of the West Wing that I would actually watch.

Brothers Judd Blog provides a fascinating link to the Students Movement Coordination Committe for Democracy in Iran declaration. It seems like an influential population in Iran wants to re-orient to the West after 24 years of theocracy.

Fresno State used to host a substantial number of Iranian students. While most of those students have gone home, they know what the West was like, and, as odd as it sounds, their stories about Fresno probably now sound like a fantasy story from an improbable "golden age."

Long live the Democratic Revolution.

I don't know who Robert J. Ambrogi is, but his list of blawgs and the accompanying descriptions is pretty interesting. I get described as posting "all from a Catholic and conservative point of view." I'd say that is probably true, but I am a plaintiff's attorney in employment cases. I would think that falls outside the conservative job description. Anyhow it's all about product placement and market identification. I picked up a few hits from Ambrogi, so someone must have thought that the Catholic and conservative perspective would pay dividends.

For we have no rest until we find rest in thee

I like this article about Gerard Depardieu finding faith by reflecting on St. Augustine's Confessions Check out this passage:

Gerard Depardieu, the French film star whose private life is almost as dramatic as his films, chose the country's most magnificent theatrical setting for what may be the most important performance of his life.

On Sunday afternoon, he stood before the congregation at Notre Dame Cathedral in Paris to confess how the 'sublime' writings of St Augustine have shown him the road to his personal salvation.

The 54-year-old actor - whose name translates as 'from God' - then read from Augustine's Confessions, a multi-volume work which he describes as "resembling the poetry of a man who cannot understand what he is going through".

Depardieu gets St. Augustine. The Confessions are thoroughly modern. Augustine's journey though the heresies and beliefs of his time until he finally found his destination in orthodoxy resemble nothing so much as the road so many moderns have traveled through the 1960s and 1970s. Augustine's reflection on his journey resulted in great human literature from a great saint. If you have never read The Confessions, and have any interest in the human experience, I recommend that you immediately put the Confessions on your reading list. Read it as a story about a man and you will find great existential truths - a father's base humor at his son's emerging sexuality, a friends inconsolable grief for the loss of friend, a mother's love for her son - the only thing I have never understood is why a childish prank is tantamount to an unforgivable sin.

The Law Knows No Heresy - the Legal Ramifications of Picking Sides in a Religious Controversy

As an attorney who has tried a case involving the issues of church government, religious doctrine, and the First Amendment doctrine, I was frankly astounded when I read this Washington Post article on the D.C. judge who refused to sentence homosexual activists for trespass. [I had intended to discuss this issue previously, but the Columbia tragedy intervened.] My astonishment has substantially less to do with my religion, than it has to do with my legal experience.

The Facts

To recap, according to the Washington Post three Catholic gay activists were convicted of unlawful entry by a "sympathetic judge," Judge Mildred M. Edwards, who told them that she would do something she had not done in 15 years - she would dispense with sentencing. Judge Edwards is reported as telling the convicted trespassers:

"Tremendous violence was done to you . . . when the Body of Christ was denied to you," Edwards said, referring to the contention of the three that refusal of Holy Communion had prompted their actions. "As a member of your church, I ask you to forgive the church."

The background to the conviction appears to have been that at a Mass held during the annual Conference of Catholic Bishops, the three protestors were misidentified as members of a "Rainbow Sash" movement, which had announced that its members would receive communion as a "protest." A priest decided that individuals should not receive the sacrament as a protest and had determined that members of "Rainbow Sash" would be excluded from Communion. The three protestors were in fact not "Rainbow Sash" members; they were part of the "gay activist group, Soulforce" who, according to the prosecutor, had traveled to the Bishop's conference to demand an explanation for why the had been refused Communion the day before.

Although the Soulforce activists claimed that they merely sought to "find healing among the people" who caused them to suffer, it is reasonable to conclude from their behavior that they were knowingly engaging in street theater in order to protest Church policy concerning homosexuality. According to the Washington Post:

The prosecutors said the reason for the activists' refusal to leave was irrelevant; they broke the law when, after repeated requests by police and hotel officials to move, they remained in the lobby of a private building, hands outstretched, waiting for someone to give them Communion.

The judge agreed, saying they were in a private area, had no right to be there and were given sufficient warning to leave.

Nonetheless, the judge opined that her Church was wrong and that the protestors should "go in peace," which is, of course, the parting benediction that a priest offers to his congregants in a religious ceremony.

Perspectives

Andrew Sullivan’s position is unclear. Although he seems to recognize the right of the Church to establish its own doctrine's, he doesn't seem to find Judge Edward's comments to troubling. He observes:

What the judge said merely amounted to bearing witness to what many perceive to be injustice. You may disagree and support the exclusion of openly gay Catholics from the sacraments, but it's an over-reach to describe this conscientious objection as a form of bigotry

Sullivan's comments were written in response to Rod Dreher's charges that Judge Edward's comments were examples of bigotry.

Sed Contra, in an intelligent post, made the theologically important point that the "Rainbow Sash" folks were not disbarred from communion because of their political goal, but because of their state of grace relative to the Sacrament. He concluded his post with this thought:

Finally, as to the judge herself. It's a free country with an independent judiciary. She is free to say what she wants from the bench, no matter how misguided it may be. But I am also not sure I would have imposed any sentence either. After all, its not like they desecrated the Eucharist as folks did a while back at St. Patrick's in New York or, more recently, had sex there during Mass.

My objection is to the easy way in which Judge Edward's sentencing pronouncement has been treated as a matter of "free speech." My point in this post is to explain that the prosecutors were right - the protesters' motivation was not relevant to the sentencing decision. Further, as I will explain, under established principles of constitutional jurisprudence, Judge Edwards was "not free" to say what she wanted from the bench insofar as she involved herself in matters of religious doctrine.

A quick outline of the interraction between the First Amendment and Religious Polity

My involvement in this area has involved controversies over the ownership and control of religious property. These issues can arise when a local church breaks away from the denomination. If the church is a congregational church, such as the Baptists, ownership issues are fairly straightforward; the local church keeps the property. If the Church is hierarchical, as with the Catholic church, local secession is unthinkable.

The problem arises with the churches that are neither fish nor fowl. The Methodists and Presbyterians, for example, have elements of a both congregational and a hierarchical polity. [In addition, the Methodist church tries to deny its jural existence in the Book of Discipline.] These churches typically attempt to assert control over the local church's real property through trust provisions in their organizational documents of the denomination, the real property deeds or the local church's corporate documents.

For a long period of time, constitutional law recognized an “implied trust” theory. In Watson v. Jones (1872) 80 U.S. 679, the court held that when a religious congregation or ecclesiastical body holding church property is a subordinate body of an organization in which there are superior ecclesiastical tribunals possessing general and ultimate power of control over church matters, the decisions of such tribunals control church property disputes to the exclusion of the civil courts. The hierarchical theory asserts that when a subordinate congregation of a hierarchical church secedes from the church, it had no right to retain church property held in its own name. The implied trust theory was repudiated in Presbyterian Church v. Hull Church (1969) 393 U.S. 440, where the court there ruled that under the First Amendment a civil court is not allowed to adjudicate church property disputes by interpreting religious doctrine and practice and then relying on its own interpretation of doctrine to allocate control over church property. The opinion did not attempt to prescribe specific alternative methods a court must use to resolve church property disputes, but it noted that "neutral principles of law, developed for use in all property disputes, ... can be applied without 'establishing' churches to which property is awarded." The Hull Court developed the neutral principles rule so as to disallow the “departure from doctrine” rule which had previously obtained. Prior to the Hull decision, while courts would imply a trust in hierarchical churches, they would also vitiate the trust where the denomination had “departed from doctrine.” [This rule seems to comport with reasonable expectations; church members who made their donations to the church expected their churches to remain true to doctrine.]

Here is a passage from Hull, quoting the Jones decision, which is pertinent and quotable:

In this country the full and free right to entertain any religious belief, to practice any religious principle, and to teach any religious doctrine which does not violate the laws of morality and property, and which does not infringe personal rights, is conceded to all. The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect. . . . All who unite themselves to such a body [the general church] do so with an implied consent to [its] government, and are bound to submit to it. But it would be a vain consent and would lead to the total subversion of such religious bodies, if any one aggrieved by one of their decisions could appeal to the secular courts and have them [sic] reversed. It is of the essence of these religious unions, and of their right to establish tribunals for the decision of questions arising among themselves, that those decisions should be binding in all cases of ecclesiastical cognizance, subject only to such appeals as the organism itself provides for."

Under the First Amendment, courts simply cannot be in the business of determining if a given doctrine - denying protesting homosexuals communion, for example - is heresy.

There is one area, though, where the rule of deference is automatic and absolute - schisms. If a hierarchy or denomination decides that a subordinate component of the church is in schism, the question is settled, which can have dramatic consequences on polity and property issues.

Personal experience

I was involved in a trial last year over a local Methodist church’s withdrawal from the Methodist denomination. The reason for the departure was that along with using church money for practices that the local church found obnoxious - e.g., handing out contraceptives to their children on church retreats - the local Bishop refused to answer direct questions about whether, inter alia, he believed in the Resurrection of Christ. The local church’s refusal to accept a pastoral change triggered a dispute over the property that the local church membership had painstakingly purchased over the years and which they have dedicated to performing good works in a needy area of Fresno.

We absolutely could not get into evidence any issue pertaining to the Methodist denominations putative departure from doctrine. Any reference to such issues brought the Court proceedings to an abrupt halt. A short-hand developed to refer to this subject as the “dispute.” As far as a reviewing court will be concerned, the cause of the dispute could arisen from anything ranging from inconsequential personality disputes to the hierarchy's involvement in simony or pederast orgies. Where issues of church governance are concerned, the law just doesn't care. [Don't be tempted to overstate this point for rhetorical advantage. Church leaders can be held criminally and civilly liable for their intentional or negligent malfeasance, but where church governance per se is concerned - determining who is a member, determining what doctrines are taught, determining who gets what sacrament - the law is constitutionally blind.]

Analysis

If you have followed the discussion through the applicable case law, it should be fairly obvious how Judge Edward’s comments are constitutionally offensive. First, by expressing an apology for the Church, she did recognize heresy. Through her “witness” - which was not her personal opinion - she announced that the State found the Catholic hierarchy’s position to be wrong - she apologized to the protesters for their treatment on behalf of the body of Christ. In short, she determined that certain actions were not Christian. This definition of "heresy" would have been recognized by St. Augustine in his dealings with the Donatists.

Second, Judge Edwards' announcement violated clear law. Like it or not, the First Amendment recognizes the prerogative of the denomination to determine who are the schismatics or heretics. No one is required to be Catholic, but if you want to be Catholic, you voluntarily agree to let them make such decisions. That incidentally is not Catholic dogma; it is a statement of law.

A final serious concern is that the defense of Judge Edward’s legal decision speaks volumes about the dangers of the absence of a coherent political theory. The term "civil rights" is now commonly viewed as meaning only those privileges that an individual has against the state. [See this post.] Warren court triumphalism has largely accentuated this view of "civil rights." Thus, civil rights are conventionally understood to include personal rights such as the right to an attorney, the right against arbitrary arrest, the right to due process of law before the deprivation of life, liberty or property or freedom of speech.

Civil rights, however, include something more than a zone of personal autonomy against the state. Implicit within Anglo-American jurisprudence was the idea that the government has an affirmative obligation to protect its citizenry's life, property and liberty. See, for example, Locke's Second Treatise on Government which posited the philosophical idea of the “social contract” under which the state provides protective services to its citizens in return for those citizen's surrender their primeval right of self defense. Likewise, Robert Nozick's Anarchy, State and Utopia developed Locke's social contract concept into a defense of limited government - the minimalist state. Perhaps the same zeitgeist that led to the academic view that Nozick's ideas were philosophically repugnant, also caused an amnesia as to the substantial philosophical tradition that a person’s civil rights included the protection of his life, liberty and property.

The protection of life, liberty and property is a civil right. It is in fact the first civil right. Jews in Nazi Germany and residents of New York City during the 1970s could certainly attest to the idea that without personal security other rights are meaningless.

Announcing to the world that Catholic sacraments are fair game for protest, which is what Judge Edwards did, has the effect of letting the world know that it is open season for such conduct in the District of Columbia.

This is truly serious stuff.

Feedback

unbillable hours reports in from New Jersey with the temperate observation that while Judge Edward's sentencing decision may be supportable, her sentencing pronouncement seems troubling. I agree. I think a judicial officer has to have some discretion with respect to sentencing, and if the trespass was de minimis, then a "no-sentence" sentence might have been proper. Nonetheless, her gratuitous sentencing pronouncement shows that Judge Edwards doesn't understand her constitutional obligations. The proper remedy is probably a review of her fitness by a judicial review commission. [We here in the Valley have had our experience with judicial eccentrics. Tulare County Judge Howard Broadman never got out of hot water for his "creative sentencing" of a mother of four to implantation of Norplant as a condition of parole. Although he had decent local support, he was under review until he finally took early retirement.]

The OmbudsGod picked up on the question of "who determines dogma?" Which, if you think about, is more core to the First Amendment than whether a creche is allowed to be placed in a public square.

The Blog from the Core asks the question of what the reaction of the ACLU would have been if a non-Christian religion had been involved. Interesting implications flow from such a thought experiment. Assume that a Moslem judge had publicly announced that he would not sentence Sunni protestors who had trespassed during a Shiite ceremony because the Shiites were wrong in their religious beliefs. This would be such a clear violation of the First Amendment that the Judge would be censured before the sun set. I can't see the difference between this hypothetical and Judge Edwards conduct.

Patty at Pdawwg notes that the Church-State issue is more than a parochial concern to Catholics, which seems exactly right if the hypothetical example outlined above has any traction.

Finally, you people over at www.neopoeia.com need to tell me what the heck you're talking about. I know I have been getting hits from you, but I can't link through to your site because of some restrictive registration requirement.

This Washington Post article reports on the skepticism that even the Plaintiffs' bar has over the lawsuits against McDonalds.

The skepticism is justified. Assuming that fast food restaurants are accurately reporting the contents and nutritional value of their products and are otherwise maintaining reasonable food safety precautions - which seems like a reasonable assumption - finding a theory against fast food producers seems problematic at best. Hamburgers, unlike other certain other products such as guns or cigarettes or even automobiles, are not inherently dangerous. The distinction between the concept that certain products are inherently dangerous, and therefore proof of negligence is not required, whle others are not has been missing from popular discussions of this subject. But, apparently, the distinction is alive and well within the legal system.

Too Funny

I know that Penner will get a kick out of this Curmudgeonly & Skeptical post.

Proving a Negative

I was out delivering kidlets this morning, so I caught only snippets of Powell's address on the radio. What I did hear proved the insight of Donchin v. Guerrero 34 Cal.App.4th 1832, 1839-1840, 41 Cal.Rptr.2d 192,197 (Cal.App. 2 Dist.,1995), which observes that you may conclude a positive fact from your disbelief of the other party's denial of that fact. As I noticed, the pro-Saddam position appears to be that the burden of proving Saddam has WMDs is on Bush. Bush's point is that (a) Saddam is denying the possesion of WMDs and (b) Saddam is liar and from this we can conclude (c) Saddam has WMDs. Again, I doubt that there really is any logical support for this insight, but it works like Occam's Razor, i.e., it actually works.

Powell showed this morning that the law of "False Exculpatory Denials" has a basis in the real world. Powell showed the intercepts discussing hiding the "modified vehicle," the intercepts instructing subordinates not to mention chemical weapons, the massive removal of soil around chemical facilities, the photos showing Iraq's development of long range weapons systems, its development of chemical weapons and use on condemned prisoners, the failure to explain what has happened to biological agents, the purchase of objects that can be used to develop nuclear weapons. Some might demur that this doesn't "prove" that Saddam has WMDs. Nonsense. One can prove a case through circumstantial evidence, and one can prove an affirmative fact by showing that the denial of that fact is not credible and that there is circumstantial evidence proving the affirmative fact. Powell has proven his case to all but the prejudiced.

I also heard the statement of the Spanish Ambassador, who spoke logically about the facts outlined by Powell. The Ambassador's point was that the only reasonable conclusion from the evidence was that Saddam has been violating the cease fire by maintaining and developing WMDs. The next question is what should we do, and unless the UN wants to got the way of the League of Nations, there really is one sad answer. [I have not been able to get access to Ibidem for a couple of days, but I would be interested in the "on the ground" Spanish attitude.]

It looks like Slate concurs.

Bill Cork offers selected excerpts of Powell's address.

Mark Byron has links to Powell's address and his usually sagacious observation that the address will solidify support in the Senate and bring the French on board. As to which sagacious observation, my Canadian partner made a rude suggestion about the desirability of French involvement.

The OmbudsGod links to a Tim Blair post deconstructing Australian nude anti-war activism. It's really funny, as only a logical analysis of the loony left can be. Here's a taste:

Grace believes many women feel as she does - desperate, helpless, and afraid to speak up because "they're not able to back it up with political analysis".

So they take off their clothes instead? What is this, some kind of elaborate blonde joke?

She says she's never done anything like this before, and the momentum her email has generated "thrills me but scares me as well". She's nervous about stripping off, as are most women who've agreed to come, and she asked me not to reveal the location of the protest for fear of unwanted onlookers.

It's a private protest. The most effective kind.

I'm not sure that Molly, the original "smart blond," would endorse that "hairistic" comment, but read the article for an objective look at the self-indulgent zaniness.

Iraq War Debate and a lesson in Civics

Kevin Holtsberry looks at the Iraq War debate. It's a pretty thoughtful discussion inasmuch as I don't think Kevin starts from an a priori premise. There's one observation I like in particular:

We have never satisfactorily resolved the Gulf War. Saddam refuse to live up to the agreements he signed off on in order to save his hide. Allowing him the wiggle room to escape rewards his non-cooperation and will encourage others to do so.

That is very true. The fact is that the world is better off with a succesful America. Democracy - generally thought of as a generally good thing - expands when America wins wars - witness post World War II and post-1989. On the other hand, the opposite is also true; dictatorships are encouraged by a weak America - think of the Carter years.

This observation is not a case for engaging in rampant imperial overstretch. On the other hand, ignoring Saddam means fostering an world environment more conducive to tyranny, not the least cause of which may be the end of United Nations' credibility.

As for me, I made a stab at talking to my nine year old about the Iraq war. She raised the subject by telling me that she had told some fellow classmates that they didn't know that Saddam was a bad man and that he was probably just like them. Now, I understand that the State of California gets my kids for six hours a day and wants to inculcate a mushy moral relativism in its charges, but my mission is to raise someone who thinks in something more than the watercolors of secular liberalism. I told her that Saddam is a bad man. I told her that there was once a man named Hitler who did very bad things when he had power, and had killed, among others, six million Jewish children, men and women, and that while he was evil, there are other equally evil people. I told her that Saddam would do the same things to the Jews in Israel if he ever got the chance, and that America wouldn't ever let that happen again. I also told her that the three important things she had to remember about herself was that she was herself, a Catholic, and an American.

Take that, California educational establishment.

It must go on.

Ut Unum Sint links to the statement of the families of the Columbia astronauts who confess their belief that space exploration must continue.

Return to SOP

I am happy to report that after hearing our first two witnesses, the defendants realized that discretion was the better part of valour. After laughing at our case for the last three years, and offering no more than $5,000 in settlement before trial, the defendants decided to part with $140,000 in order to make the case go away. I will be returning to my regular schedule tomorrow, after I take the Widget, the Wadget and Boff to Kindergarten, Day Care and 4th Grade, respectively.

Cool Archeology

Hell in a Handbasket posts on a discovery of a Bronze Age site from listening to bar talk. Check out the first site HIAH mentions. You get nekked pictures and links to developments in linguistic. Cool. Porn and linguistics. Just what I've been looking for my entire life.

Hall of Fame Sentencing

The Corner on National Review Online provides a link to the complete sentencing pronouncement in the Richard Reid case. Forget that vermin,but read the judge's comments. There is nothing in his lecture that is new or original; it's nothing that a hundred thousand Americans wouldn't say in the same circumstances. And for that reason, it's a powerful statement of American democracy. Here's a taste:

See that flag, Mr. Reid? That's the flag of the United States of America. That flag will fly there long after this is all forgotten. That flag still stands for freedom. You know it always will. Custody, Mr. Officer. Stand him down

Amen. My old man gave the most productive years of his life for that flag, which is why I operated an appliance repair business to pay my way through college. I part company with the First Amendment absolutists in part on protecting that flag. So long as it flies, even the fascists can be assured of the due process of law that they would deny others.

Canada Conta Mundum

My Canadian partner was disturbed to hear the report that a CBC commentator ascribed the Columbia disaster to American "arrogance." I told him that my feeling was that outside of the media and the intellegentsia, I believed that most Canadians were solidly pro-American. He disagreed, noting petty anti-Americanism practiced in his hometown back in the 70's. I have to defer to him, but Robert J. Sawyer's version of the event is hopefully suggestive that Canadian anti-Americanism is not widespread.

American Anti-Americanism

Check out Pdawwg's post linking to a leftist site which gives vent to the insta-theory that the Columbia disaster was engineered by the Bush administration, of whom< it appears, there is nothing that can go unsuspected or unvoiced.

Consolations


A lot of people are taking comfort from poetry and religious imagery. Claude Muncie, who is not a Bush supporter, finds the President's words that the astronauts "did not return safely to Earth, yet we can pray that all are safely home..." to be poignant.

William Sulik posts the entire passage:

In the words of the prophet Isaiah, "Lift your eyes and look to the heavens. Who created all these? He who brings out the starry hosts one by one and calls them each by name. Because of his great power and mighty strength, not one of them is missing."

Jay Manifold posts the entirety of Psalm 107 in memory of STS 107.

Polymath Orrin Judd posts a number of poems and passages, including Reagan's Speech on the Challenger Disaster and High Flight among other entries.

Victor Davis Hansen made an interesting observation at his Fig Garden Bookstore lecture a few days after 9/11/01 about the importance of literature. Hansen, who is a Classics professor, has been fighting a losing rear-guard action on behalf of Classics against the proliferation of Women's Studies, Chicano Studies and other special interest group programs that are sucking the atmosphere out of academia. His point was that Classics inculcate a knowledge of the skills of rhetoric and the substantive knowledge of human precedent which a modern leader can fashion into a meaningful message, whether to motivate warriors to fight or to console a grieving country. Without such knowledge, these important and legitimate functions of public rhetoric - often viewed as a dirty word and a dishonorable practice - won't get off the ground.

These passages show the importance of a common high culture. For that matter, the Green Hills of Earth is affecting to the extent that one shares the culture of Science Fiction and remembers the story of Rhysling, the "Blind Singer of the Spaceways," whose songs appear throughout Heinlein's Future History corpus. In Green Hills of Earth, Rhysling, who is a kind of interplanetary bum, puts the "Green Hills of Earth" into a final form while standing a last duty at a broken reactor. Themes of duty and rational sacrifice on behalf of others are quite common in Heinlein stories, which is not surprising in light of his background as an Annapolis graduate.

Sharing a common culture is important. Occasionally, we need to fight as a people and grieve as a people. Biblical references are one part of that culture. Hanson is right that we need rhetoric. The low culture of Hollywood and Television, Survivor and Married with Children, will never furnish the material for rhetoric. We would be poorer if Bush were prevented by a dogmatic First Amendment fundamentalism or a poverty of literary knowledge from fashioning Isaiah as was done yesterday.

Anthem

The Angry Clam has posted Robert Heinlein's "The Green Hills of Earth." I don't think the AC or RAH would mind my copying it to this site because long before Challenger and Columbia, Heinlein really did foresee the sacrifices that would be incurred in the conquest of space. Again, thanks to the Angry Clam here is the blind Rheisling's Terran anthem:

THE GREEN HILLS OF EARTH

Let the sweet fresh breezes heal me
As they rove around the girth
Of our lovely mother planet
Of the cool, green hills of Earth.

We rot in the moulds of Venus,
We retch at her tainted breath.
Foul are her flooded jungles,
Crawling with unclean death.

[ --- the harsh bright soil of Luna ---
--- Saturn's rainbow rings ---
--- the frozen night of Titan --- ]

We've tried each spinning space mote
And reckoned its true worth:
Take us back again to the homes of men
On the cool, green hills of Earth.

The arching sky is calling
Spacemen back to their trade.
ALL HANDS! STAND BY! FREE FALLING!
And the lights below us fade.

Out ride the sons of Terra,
Far drives the thundering jet,
Up leaps a race of Earthmen,
Out, far, and onward yet ---

We pray for one last landing
On the globe that gave us birth;
Let us rest our eyes on the friendly skies
And the cool, green hills of Earth.

- Robert A. Heinlein

Let's not quit - We are a Spacefaring Nation

I woke up this morning to the tragic news that it has happened again. The Columbia space shuttle seems to have fallen apart while descending to the Earth. Instapundit has full coverage. I am sure that I will be checking in on A Voyage to Arcturus and Rand Simberg - who are both space buffs - throughout the weekend for better analysis than you can get on the tube. I recommend that you do likewise.

I don't remember the Kennedy assassination since I was only four at the time. For me, the big "where were you when" moment was the Challenger disaster. I remember that I had been practicing law for about three years. I was in Madera Superior Court getting a receiver appointed under a Deed of Trust. I went into the Clerk's office to file the order and I was told by a clerk that the space shuttle had "blown up." I told her that that was ridiculous - shuttles just didn't "blow up." When I got back to the office, the entire firm was in the break room watching the TV showing - like today and 9/11 - loop after loop of the Challenger blowing up.

My earliest school memories are of having a TV brought into the class to watch the Gemini program launches and splash downs. It all seemed so bureaucratic, so common and conventional. It wasn't until I was at a law school Moot Court tournament which let me visit the Smithsonian and saw the Mercury capsule that I realized how brave those astronauts were. It was slightly larger than a couple of garbage cans welded together. And it was placed upon a column of explosives. I have never since discounted the courage of those astronauts - of all astronauts - after my visit to the Aerospace Museum.

The official position of NASA during the Mercury-Gemini -Apollo programs was something like Manifest Destiny. Nothing was going to go wrong. Challenger was like a kick in the gut because of that attitude.

The trial that I am in is on the Seventh Floor of the Fresno County Courthouse. Old Fresno Bee front pages are framed throughout the floor. Many of the newspaper headlines are memorable, some are obscure. For example, I hadn't known about the assassination attempt on Roosevelt in 1933, which missed Roosevelt and hit Mayor Cermak. The Fresno Bee headline for a historic day in September of 1939 shows us that even then dictators were able to use the free press for their benefit as the Bee reported on Polish forces attacking and shelling German towns.

There was also the headline announcing the 1967 NASA training disaster which killed three astronauts. I remember thinking when I saw it on Thursday that all in all NASA had a good record for safety. The front page showing the Challenger disaster is on the wall opposite the elevators. It was seventeen years ago this month, but it still feels like yesterday.

This hurts, again. But the lesson is not to give up. NASA still has a good safety record. We need space. It is our manifest destiny. We are not going to improve the welfare of mankind by sitting on this planet because we are frightened of risk.

If you agree with me, let yourself be heard. I fear that the space program is losing support among the young. Several years ago I sat on a panel which was part of the UCLA scholarship program. We saw the best and the brightest of Fresno County. Kids with resumes as long as your arm and 4.3 GPAs. The program consisted of asking "big think" (to plagiarize my Con Law Professor, Prof. Karst) questions. My question was "if you had to cut 3% from the budget would you cut from Medical Research, Space Exploration or Social Services, and why?" In my day, space would not have been touched.

Every one of those bright kids cut the space budget and favored increasing the budget for medical research. In their world, we would have a healthy, well fed population without any dreams.

We need to grieve. We need to pray for the souls of our poor astronauts and to support their families. President Bush - unfortunate man - will once again speak to the nation. But when the grieving end, we need a national re-commitment to NASA. Build new shuttles. Build them better. Build more of them. We need the permanent space station and the manned mision to Mars.

Ad Astra.