Though undeniably entertaining, the GOP Presidential Race has been consumed by dubious, polarizing rhetoric; the kind of rhetoric intended to capture the masses’ attention and manipulate information, all in a thirty-second sound-bite.
I listened with perplexity to Rick Santorum, Michelle Bauchman, and others zealously call for a ‘return to the Constitution and our Founding Fathers’. I listened to the impetuous accusations against President Obama, irrevocably branding him and his policies as ‘socialist’. Iowan caucus-goers stood mesmerized by trigger-words like liberty, class warfare, and wealth distribution; words and ideas loosely thrown-around and largely designed to incite fear. Sadly enough, this is American Politics, on both sides of the political spectrum.
Reaganite conservatives profess to champion limited government, reducing the deficit, and individual liberty, yet they insist on the government meddling in divisive private social issues and throwing millions of dollars to Israel or war crusades in foreign lands. 85 percent of all government spending comes from national defense, medicare/medicaid, and social security. If conservatives sincerely sought to reduce the deficit, they would begin to cut national defense spending instead of inconsequential social programs.
Conversely, liberals advance a platform in which government interference is discouraged in private matters, and celebrated in economic-related issues. For a liberal, a woman has a right to choose but not a right to refuse to pay for government-sponsored health-care.
Conservatives and liberals alike willingly turn their heads blindly to the inconsistencies embedded in their ideologies. It is time for Americans to take political arguments at face-value. For starters, we do not know what the Founding Fathers thought. The Federalist Papers serve as evidence of the ongoing disagreement on the role of government. Obama’s ideas are not socialist. Socialism is Marx and Engel. Conservatives and particularly tea-partiers, you do not support limited government to its fullest extent. You see the role of government as protecting its constituents and oftentimes (as history will show) playing the role of ‘world police’. Moreover, government is the vehicle through which you legislate morality. Liberals, you do not embrace ‘big’ government. In fact, you reject government’s involvement in foreign affairs. You also reject government’s involvement in issues like gay marriage or abortion. According to you, government ought to interfere if and only if it gives the stamp of approval to your political agenda.
Wednesday, January 4, 2012
Friday, December 9, 2011
Character Over Policy
Voter attitudes and patterns in the upcoming 2012 GOP primaries will reveal a lot about the Republican Party and Conservative Movement. The majority of political pundits, politicians, journalists, and the like support Mitt Romney as the only rational choice and plausible candidate who stands a chance against Obama in the general election. With Cain’s inevitable exit, Gingrich’s excessive political and personal baggage, Perry’s incompetency, Bauchman and Paul’s extremism, and Huntsman and Santorum’s consistent unpopularity, Romney is the man for the job. Curiously enough, recent polls suggest that Romney continues to lack steam as he trails Gingrich. If Romney is the only rational candidate, why then is Gingrich passing him by? Several polls indicate that a high percentage of Republican voters refuse to vote for a ‘mormon’, even if the ‘mormon’ will restore conservative values and policy to the executive office. The question arises: Is a significant percentage of the Republican Party a bigot?
I will not support a party that openly and outwardly demonstrates bigotry; whether on race, religion, gender, or sexuality. Surely Mitt’s religion, like any religion, to some degree shapes the way in which he sees and understands the world. For Hitchens and others to investigate and even scrutinize the faith is an essential contribution to the political dialogue (insofar as it remains honest and rigorous). But to simply discount a candidate based solely on religion only makes transparent one’s intolerance and intellectual laziness. Those who wish to exercise bigotry mistakenly assume religion (Mormonism) will sharply define Romney’s policy. With what evidence is this absurd assumption made?
The GOP primaries will say a lot about the character of the Republican Party. Though I disagree with President Obama in many respects, I value character over policy. If the Republicans allow the Evangelical Right to hijack this election in the name of bigotry, ‘call me crazy’ but my vote will go towards President Obama in the name of character.
I will not support a party that openly and outwardly demonstrates bigotry; whether on race, religion, gender, or sexuality. Surely Mitt’s religion, like any religion, to some degree shapes the way in which he sees and understands the world. For Hitchens and others to investigate and even scrutinize the faith is an essential contribution to the political dialogue (insofar as it remains honest and rigorous). But to simply discount a candidate based solely on religion only makes transparent one’s intolerance and intellectual laziness. Those who wish to exercise bigotry mistakenly assume religion (Mormonism) will sharply define Romney’s policy. With what evidence is this absurd assumption made?
The GOP primaries will say a lot about the character of the Republican Party. Though I disagree with President Obama in many respects, I value character over policy. If the Republicans allow the Evangelical Right to hijack this election in the name of bigotry, ‘call me crazy’ but my vote will go towards President Obama in the name of character.
Sunday, October 9, 2011
The 'Ministerial' Exception
Last week the Supreme Court heard the argument in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, in which the Court considered the scope of the 'ministerial' exception. The Ministerial Exception attempts to establish a wall of separation between church and state. The free-exercise and establishment clauses of the First Amendment ostensibly protect churches from government encroachment in church doctrine and order. The question laid before the Court is: how far does the ministerial exception extend? Oyez provides a brief summary of the facts of the case.
In the 1990 Supreme Court case, Employment Division v. Smith, the Court ruled that the state could deny unemployment benefits to a person fired for violating a state prohibition on the use of peyote, even if the use of peyote was a religious ritual. In Smith, Justice Scalia wrote, "all generally, neutrally applicable laws" must be followed-even if they further relatively unimportant government purposes, and even if they suppress an individual's religion entirely. In Hosanna-Tabor, Justice Sonia Sotomayor quickly expressed that what bothers her is the possibility of the ministerial exception being used to deny court scrutiny of “a teacher who reports sexual abuse to the government and is fired because of that reporting.” She adds, grimly, “We know from the news recently that there was a church whose religious beliefs centered around sexually exploiting women and, I believe, children.” Chief Justice Roberts inquired the meaning and definition of a minister. He added, "what about churches who believe all members of their congregation are ministers?" The EEOC argues and the 6th circuit court of appeals affirmed, that the defendant served a more secular than 'ministerial' role at the school. But what about the Pope? The Pope acts as both a secular/political leader as well as a religious leader. Is the Pope a minister? Where ought the Court draw a line without infringing on religious liberty yet protecting and upholding other civil rights?
Certainly religion cannot escape the rule of law or receive exemption from the violation of basic civil rights. But nor should the government force the Archbishop of the Catholic Church to hire female priests. Justice Elena Kagan noted, "In order to make an argument of the ministerial exception," Kagan said, "you in some sense have to say that institutional autonomy is different from individual conscience; that we have said in Smith that state interests can trump individual conscience. And you want us to say that they can't trump institutional autonomy. So why is that?"
Your thoughts? My opinion is soon to come....
In the 1990 Supreme Court case, Employment Division v. Smith, the Court ruled that the state could deny unemployment benefits to a person fired for violating a state prohibition on the use of peyote, even if the use of peyote was a religious ritual. In Smith, Justice Scalia wrote, "all generally, neutrally applicable laws" must be followed-even if they further relatively unimportant government purposes, and even if they suppress an individual's religion entirely. In Hosanna-Tabor, Justice Sonia Sotomayor quickly expressed that what bothers her is the possibility of the ministerial exception being used to deny court scrutiny of “a teacher who reports sexual abuse to the government and is fired because of that reporting.” She adds, grimly, “We know from the news recently that there was a church whose religious beliefs centered around sexually exploiting women and, I believe, children.” Chief Justice Roberts inquired the meaning and definition of a minister. He added, "what about churches who believe all members of their congregation are ministers?" The EEOC argues and the 6th circuit court of appeals affirmed, that the defendant served a more secular than 'ministerial' role at the school. But what about the Pope? The Pope acts as both a secular/political leader as well as a religious leader. Is the Pope a minister? Where ought the Court draw a line without infringing on religious liberty yet protecting and upholding other civil rights?
Certainly religion cannot escape the rule of law or receive exemption from the violation of basic civil rights. But nor should the government force the Archbishop of the Catholic Church to hire female priests. Justice Elena Kagan noted, "In order to make an argument of the ministerial exception," Kagan said, "you in some sense have to say that institutional autonomy is different from individual conscience; that we have said in Smith that state interests can trump individual conscience. And you want us to say that they can't trump institutional autonomy. So why is that?"
Your thoughts? My opinion is soon to come....
Saturday, May 21, 2011
Compromise
The topic of this post is a reaction to the polarisation of American politics. President Obama's Middle East speech this past week was somehow taken to be an attack against the Jewish community; a deliberate attempt to redefine and weaken America's relationship with Israel. I did not see as such. Hours after the speech was delivered, bloggers, journalists, and editorials both commended and criticised the President as if his speech coincided with or departed from a deeply-rooted ideology. This is the problem with editorial/opinion pages; they are merely opinions.
Alarmed by the unduly amount of controversy sparked by a 55 minute youtube clip, I sat at my desk and listened. Obama, quite tactfully and accurately, pinpoints the underlying problems standing in the way between the Western and Arab worlds; stereotypical misunderstandings. Towards the end his remarks, the President called for a return to the 1967 Israel-Palestine borders. In other words, Obama pleaded with both sides to reach a compromise through land swaps. Throughout the speech Obama praises Israel, assuring America's continual support for and protection of a Jewish state. The only way forward is compromise. That is the end of violence.
I get it- people are committed to certain political ideals. What I believe America has lost is a commitment to the highest political ideal, the essence of politics; compromise. Sure- freedom of religion, freedom of speech, the right to vote, and a host of other political rights and obligations are certainly essential in any society. But lest we forget, the very source of a right, obligation or a society, is a body (polis) of individuals who agree to form an association, out of which the forums of deliberation lead to some form of compromise. While Tea-partiers have every right to cling to their 'No Tax' platform and while Left-wing nuts have every right to protest Military funerals, any advancement towards peace and reconciliation (the goods of society) requires compromise. A lack thereof has caused myself to become disenchanted with, and faithless in what I believe to be a beautiful thing- politics.
Alarmed by the unduly amount of controversy sparked by a 55 minute youtube clip, I sat at my desk and listened. Obama, quite tactfully and accurately, pinpoints the underlying problems standing in the way between the Western and Arab worlds; stereotypical misunderstandings. Towards the end his remarks, the President called for a return to the 1967 Israel-Palestine borders. In other words, Obama pleaded with both sides to reach a compromise through land swaps. Throughout the speech Obama praises Israel, assuring America's continual support for and protection of a Jewish state. The only way forward is compromise. That is the end of violence.
I get it- people are committed to certain political ideals. What I believe America has lost is a commitment to the highest political ideal, the essence of politics; compromise. Sure- freedom of religion, freedom of speech, the right to vote, and a host of other political rights and obligations are certainly essential in any society. But lest we forget, the very source of a right, obligation or a society, is a body (polis) of individuals who agree to form an association, out of which the forums of deliberation lead to some form of compromise. While Tea-partiers have every right to cling to their 'No Tax' platform and while Left-wing nuts have every right to protest Military funerals, any advancement towards peace and reconciliation (the goods of society) requires compromise. A lack thereof has caused myself to become disenchanted with, and faithless in what I believe to be a beautiful thing- politics.
Tuesday, April 12, 2011
The Irony
Most notably, there are two concerns with religious intervention in the political or policy-making process. First, religious intervention and more specifically Christianity, establish God or the Bible as a legitimate authority. For example, torture is immoral because God says so in the Bible. Such argumentation presupposes that one or society ought to do whatever God or the Bible says. Second, religious intervention creates a problem of civility, or incivility. Religious arguments fail to resonate with a large portion of society whose members do not share the same religious belief cited to support the given argument. If a view supported only by religious belief prevails, it would not be because the argument has convinced everyone else (including non-believers), but because of religious dominance.
Some claim that a sense of implicit theocracy is embedded into religious argument. Before I begin to consider this notion of implicit theocracy, I shall consider two types of authority. First, theoretical authority: Paul Krugman is a renown economist. Owing to his educational background, experience, and academic work, Krugman’s ideas on economics are considered to be authoritative, particularly in comparison to one who studies law or medicine. Next to theoretical authority is practical authority. An example of practical authority is a police officer, a judge, or a legislator. In other words, one who exercises power and judgment over another. The concern with implicit theocracy in religious intervention is a concern about religion acting as a practical authority; that is, church leaders ruling society. If abortion is illegal because the Pope has denounced it, this is an act of practical authority. An authoritative figure, and in this case religious authoritative figure, legalizes or illegalizes an action solely on the premise that he or she says so. Most religions, however, make arguments such as: abortion is wrong or immoral, not because the Pope said so. Just as Paul Krugman is considered to be a theoretical authority on the financial crisis, there is certainly the possibility of there being an expert (not a ruler) on ethics or deep values. It would be dishonest and frankly silly to assert that any authority on ethics acts as a ruler which imposes values rather than acting as an intellectual guide to help one reach one’s own conclusions. In short, what is the difference between Paul Krugman as an expert and an expert in religion or ethics? Absolutely nothing.
Some accuse religious intervention and argumentation of assuming an implicit authority in biblical reference. Biblical reference, however, is nothing more than theoretical claim, similar to references to Krugman’s published works. Very rarely do Christians draw from the Bible to support policy arguments. Where in the Bible does it speak specifically to abortion or torture? Instead, religious arguments apply the principles or premises found in the Bible to a policy.
A policy debate on secular grounds respects and allows for mutual intelligibility; that is, everyone has the capacity (namely rationality) to understand the presented argument(s). Consider the following statement: “torture of God’s children is immoral. We ought to treat all as Jesus would.” Why would one make such a claim in a policy debate? There are multiple explanations. First, to persuade others to join a particular religion. Second, to persuade others of the seriousness of the issue of torture. Third, to explain why he or she believes this statement to be true. Fourth, to rally his or her own religious community. Fifth, to awaken his or her own community to the issue of (as in the given example) torture. If there may be multiple explanations behind this religious argument, one may ask; is engagement of non-believers and Christians necessarily a dialogue of death? Let us now consider two philosophical misconceptions as it relates to mutual intelligibility and the question posed above. The first misconception is: mutual understanding is an all or nothing business. A non-believer both completely understands and identifies with a religious argument or not. The second misconception is: communication is only possible between persons who share a common framework of concepts.
Is speaking on religious grounds to non-believers impossible and therefore uncivil? Just because only a few people are willing to step outside their familiar mind-set and seriously consider the ‘religious’ or ‘spiritual’ does not mean the thoughtful demand for understanding religious argument is uncivil. We cannot engage with every issue or everyone. Time does not permit. But just because one decides not to engage with religious argument and instead chooses to engage with Krugman or any other theoretical authority does not mean that the religious argument advanced is uncivil.
John Rawls spoke of a two-way translation. It is OK to speak in Old Testament rhetoric provided that in due course you translate meaning to non-believers or outsiders. If a religious argument uses a parable, according to Rawls, the individual advancing the argument must translate it into the language of socio-economic rights. In considering Rawls’ position, the question arises; should the burden of translation be placed on the speaker or ought it to be a cooperative task? I argue that it ought to be a cooperative task. It is not appropriate and is uncivil for seculars to strain not to understand. If seculars turn the ‘deaf ear’ to religious argument, they can hardly complain about the incivility of the speaker.
Some claim that a sense of implicit theocracy is embedded into religious argument. Before I begin to consider this notion of implicit theocracy, I shall consider two types of authority. First, theoretical authority: Paul Krugman is a renown economist. Owing to his educational background, experience, and academic work, Krugman’s ideas on economics are considered to be authoritative, particularly in comparison to one who studies law or medicine. Next to theoretical authority is practical authority. An example of practical authority is a police officer, a judge, or a legislator. In other words, one who exercises power and judgment over another. The concern with implicit theocracy in religious intervention is a concern about religion acting as a practical authority; that is, church leaders ruling society. If abortion is illegal because the Pope has denounced it, this is an act of practical authority. An authoritative figure, and in this case religious authoritative figure, legalizes or illegalizes an action solely on the premise that he or she says so. Most religions, however, make arguments such as: abortion is wrong or immoral, not because the Pope said so. Just as Paul Krugman is considered to be a theoretical authority on the financial crisis, there is certainly the possibility of there being an expert (not a ruler) on ethics or deep values. It would be dishonest and frankly silly to assert that any authority on ethics acts as a ruler which imposes values rather than acting as an intellectual guide to help one reach one’s own conclusions. In short, what is the difference between Paul Krugman as an expert and an expert in religion or ethics? Absolutely nothing.
Some accuse religious intervention and argumentation of assuming an implicit authority in biblical reference. Biblical reference, however, is nothing more than theoretical claim, similar to references to Krugman’s published works. Very rarely do Christians draw from the Bible to support policy arguments. Where in the Bible does it speak specifically to abortion or torture? Instead, religious arguments apply the principles or premises found in the Bible to a policy.
A policy debate on secular grounds respects and allows for mutual intelligibility; that is, everyone has the capacity (namely rationality) to understand the presented argument(s). Consider the following statement: “torture of God’s children is immoral. We ought to treat all as Jesus would.” Why would one make such a claim in a policy debate? There are multiple explanations. First, to persuade others to join a particular religion. Second, to persuade others of the seriousness of the issue of torture. Third, to explain why he or she believes this statement to be true. Fourth, to rally his or her own religious community. Fifth, to awaken his or her own community to the issue of (as in the given example) torture. If there may be multiple explanations behind this religious argument, one may ask; is engagement of non-believers and Christians necessarily a dialogue of death? Let us now consider two philosophical misconceptions as it relates to mutual intelligibility and the question posed above. The first misconception is: mutual understanding is an all or nothing business. A non-believer both completely understands and identifies with a religious argument or not. The second misconception is: communication is only possible between persons who share a common framework of concepts.
Is speaking on religious grounds to non-believers impossible and therefore uncivil? Just because only a few people are willing to step outside their familiar mind-set and seriously consider the ‘religious’ or ‘spiritual’ does not mean the thoughtful demand for understanding religious argument is uncivil. We cannot engage with every issue or everyone. Time does not permit. But just because one decides not to engage with religious argument and instead chooses to engage with Krugman or any other theoretical authority does not mean that the religious argument advanced is uncivil.
John Rawls spoke of a two-way translation. It is OK to speak in Old Testament rhetoric provided that in due course you translate meaning to non-believers or outsiders. If a religious argument uses a parable, according to Rawls, the individual advancing the argument must translate it into the language of socio-economic rights. In considering Rawls’ position, the question arises; should the burden of translation be placed on the speaker or ought it to be a cooperative task? I argue that it ought to be a cooperative task. It is not appropriate and is uncivil for seculars to strain not to understand. If seculars turn the ‘deaf ear’ to religious argument, they can hardly complain about the incivility of the speaker.
Friday, February 25, 2011
What Do We Mean By the Revolution?
Former U.S. President, John Adams, defined 'revolution' in the following way: "What do We Mean by the Revolution? The War? That was no part of the revolution. It was only an Effect and Consequence of it. The Revolution was in the Minds of the People, and this was effected from 1760-1775, in the course of fifteen Years, before a drop of blood was shed at Lexington."
Friday, January 21, 2011
Pragmatism
I recently finished 'Reading Obama'; an intellectual biography by James Kloppenberg of Harvard. Kloppenberg traces the political thought of Barack Obama to its origin(s). From Indonesia and Occidental to Harvard Law School, the author scruntinizes every word delivered in a speech, the articles written by Obama's professors, and the required texts during his university formatitve years. In undertaking this tidious task, a particular political philosophy emerges; that is, pragmatism.
Pragmatism is a philosophy concerned with progress. Progress is to be achieved through community involvement, careful deliberation, and a mindset open to change and adaptation. Pragmatism is closely related to historicism; the idea that culture and values continually change and adapt to a given period of time. Pragmatism invites a trial-by-error method; constant correction only to improve or progress as a society.
For a Christian, pragmatism may appear problematic. That is, how is one to reconcile pragmatism with a type of absolutism or universalism advanced in Christian theology. I shall attempt to demonstrate how pragmatism and religious absolultism can coexist. First, pragmatism as described and adopted by Obama merely pertains to politics. I can believe God's love to be an unconditional, absolute truth, while at the same time subscribe to a pragmatist approach with public policy. Second, the doctrine that God is 'the same yesterday, today, and forever' is oftentimes misinterpreted. Christians contend the principles remains the same. This is true. Yet, church policy or structure is subject to change. In no way is a change in church policy akin to a change in principle. The Christian faith also believes in revelation. The very meaning of revelation suggests change or adaptation. A church's position on abortion, marriage, or any other policy matter is not necessarily absolute. Third, in some instances religious and political spheres collide. It becomes convenient for Christians to cling to what they know to be absolute truths, and seek to inculcate such truths or values into society. Insofar as these values are introduced and implemented democratically, there is no objection. Still, it is imperative for Christians to consider the doctrine of personal agency; that is, for individuals to freely choose the good and the bad.
The degree to which a society ought to allow opposition or immorality is difficult to locate. While a society takes an interest in preserving a moral ecology, where is the balance between advancing a moral agenda and allowing individuals to choose an immoral lifestyle? Is there a moral right to do wrong?
Pragmatism is a philosophy concerned with progress. Progress is to be achieved through community involvement, careful deliberation, and a mindset open to change and adaptation. Pragmatism is closely related to historicism; the idea that culture and values continually change and adapt to a given period of time. Pragmatism invites a trial-by-error method; constant correction only to improve or progress as a society.
For a Christian, pragmatism may appear problematic. That is, how is one to reconcile pragmatism with a type of absolutism or universalism advanced in Christian theology. I shall attempt to demonstrate how pragmatism and religious absolultism can coexist. First, pragmatism as described and adopted by Obama merely pertains to politics. I can believe God's love to be an unconditional, absolute truth, while at the same time subscribe to a pragmatist approach with public policy. Second, the doctrine that God is 'the same yesterday, today, and forever' is oftentimes misinterpreted. Christians contend the principles remains the same. This is true. Yet, church policy or structure is subject to change. In no way is a change in church policy akin to a change in principle. The Christian faith also believes in revelation. The very meaning of revelation suggests change or adaptation. A church's position on abortion, marriage, or any other policy matter is not necessarily absolute. Third, in some instances religious and political spheres collide. It becomes convenient for Christians to cling to what they know to be absolute truths, and seek to inculcate such truths or values into society. Insofar as these values are introduced and implemented democratically, there is no objection. Still, it is imperative for Christians to consider the doctrine of personal agency; that is, for individuals to freely choose the good and the bad.
The degree to which a society ought to allow opposition or immorality is difficult to locate. While a society takes an interest in preserving a moral ecology, where is the balance between advancing a moral agenda and allowing individuals to choose an immoral lifestyle? Is there a moral right to do wrong?
Friday, October 29, 2010
Law and Morality
At least in some instances, law undoubtedly has moral aims. Murder, rape, and incest are but a few cases in which laws act to protect and preserve a moral ecology. Oftentimes, however, law is constricted to its own sphere and construed to be entirely separate from the notion of morality. In setting out or explaining legal norms, officials cannot but use the language of obligations, rights, permissions, powers, liabilities and so on. What officials thereby claim is that law imposes obligations, creates rights, grants permissions, confers powers, and gives rise to liabilities. One might think that the claim here need not be a moral claim. In fact, officials are claiming legal obligations, legal rights, legal permissions, and legal powers. But that cannot be all that their claim for law amounts to. A legal obligation, right, or permission is but only an obligation, right, or permission that exists according to law. Furthermore, an obligation, right, or permission that exists according to law is none other than an obligation or right or permission, the existence of which law claims. So claiming the existence of a legal obligation is simply claiming the existence of what law claims to be an obligation. Therefore, legal obligations are claimed to be something. A ‘moral’ is the name given to the kind of obligation that legal obligations are claimed by law to be. Legal obligations are claimed to be obligations that are not merely claimed, and hence that are not merely legal. They are claimed to have a standing beyond law. As demonstrated, morality clearly forms part of law.
Law can form part of morality. For instance, in terms of morality, I have a reason not to crash my car into yours. That is, I have a moral reason to drive my car on the same side of the road as your drive yours on. Morality is indifferent as to whether I choose to drive my car on the left or right side of the road. Rather, morality is concerned with both by car and your car driving on the same side of the road, thus avoiding a potentially dangerous collision. On the contrary, the law enforces whether we drive on the left or right hand side. Insofar as we both are willing to obey the law and therefore drive on the same side of the road, the law’s intervention and authority provides a suitable way by which the moral principle is attained.
Conversely, morality can form part of law. Indeterminacies of language and intention on the part of law-makers bring morality to bear on their legal deliberations. Judges, the legal officials most publicly afflicted by such indeterminacies, usually rely upon existing legal norms as far as possible. After which, the judge usually combines existing legal norms with other premises, including moral premises not hitherto recognized by law, to reach new legal conclusions. Once the judge uses a moral norm in her legal reasoning, the moral norm applied becomes legally justifiable.
Law can form part of morality. For instance, in terms of morality, I have a reason not to crash my car into yours. That is, I have a moral reason to drive my car on the same side of the road as your drive yours on. Morality is indifferent as to whether I choose to drive my car on the left or right side of the road. Rather, morality is concerned with both by car and your car driving on the same side of the road, thus avoiding a potentially dangerous collision. On the contrary, the law enforces whether we drive on the left or right hand side. Insofar as we both are willing to obey the law and therefore drive on the same side of the road, the law’s intervention and authority provides a suitable way by which the moral principle is attained.
Conversely, morality can form part of law. Indeterminacies of language and intention on the part of law-makers bring morality to bear on their legal deliberations. Judges, the legal officials most publicly afflicted by such indeterminacies, usually rely upon existing legal norms as far as possible. After which, the judge usually combines existing legal norms with other premises, including moral premises not hitherto recognized by law, to reach new legal conclusions. Once the judge uses a moral norm in her legal reasoning, the moral norm applied becomes legally justifiable.
Monday, August 30, 2010
Judge Walker: A Social Scientist
Judge Vaughn Walker, in deciding that California’s Proposition 8 outlawing homosexual marriage was unconstitutional, managed to: 1) override a majority vote; and 2) assume privilege and expertise to make sweeping conclusions over highly-divisive issues even social scientists cannot agree upon. I wish to concentrate on the role the Courts in a democratic society.
Judge Walker’s opinion is filled with dubious social science ‘facts’ he presupposes to be widely-accepted. Walker claims that evidence shows beyond any doubt that parents’ genders are irrelevant to children’s developmental outcomes. Most legal experts predict the marriage issue will eventually reach the Supreme Court. If the Court decides to take the case, they would repeat the error in Roe v. Wade: namely, trying to remove a morally charged policy issue from the forums of democratic deliberation and resolve it according to the justices’ personal lights. Even many supporters of abortion now consider Roe a mistake. Short of any basis in the text or original understanding of the Constitution, Roe has become a symbol of the judicial usurpation vested in the people and their representatives. By short-circuiting the democratic process, Roe inflamed the culture war that has divided our nation and polarized our politics. Remember: judges should impartially interpret the law, not partially legislate it.
Judge Walker’s opinion is filled with dubious social science ‘facts’ he presupposes to be widely-accepted. Walker claims that evidence shows beyond any doubt that parents’ genders are irrelevant to children’s developmental outcomes. Most legal experts predict the marriage issue will eventually reach the Supreme Court. If the Court decides to take the case, they would repeat the error in Roe v. Wade: namely, trying to remove a morally charged policy issue from the forums of democratic deliberation and resolve it according to the justices’ personal lights. Even many supporters of abortion now consider Roe a mistake. Short of any basis in the text or original understanding of the Constitution, Roe has become a symbol of the judicial usurpation vested in the people and their representatives. By short-circuiting the democratic process, Roe inflamed the culture war that has divided our nation and polarized our politics. Remember: judges should impartially interpret the law, not partially legislate it.
Tuesday, August 17, 2010
Discrimination Against Convicted Felons?
UPDATE: The past two weeks, I have been closely following the Prop 8 SSM legal process. I am working to finish an analysis of this issue.
In the month of July, I posted several pieces on race-politics, specifically affirmative action. Having finished "Audacity of Hope" by President Barack Obama, I noted that although Obama did not expressly condemn affirmative action, he did consign it to a category of exhausted programs that "dissect[s] Americans into 'us' and 'them' and that "can't serve as the basis for the kinds of sustained, broad-based political coalitions needed to transform America." As president, Obama has repeatedly eschewed race-targeting (with respect most notably to employment policy) in favor of "universal" reforms that allegedly lift all boats.
Consider this: The federal Equal Employment Opportunity Commission (EEOC) is warning employers that it is illegal to use a prospective employee's past conviction records, even for serious felonies, as an "absolute measure" as to whether they should be hired because this "could limit the employment opportunities of some protected groups."
This is, the EEOC says, because blacks and Hispanics are over-represented among felons.
But blacks and hispanics also have an unfortunate higher high school and college dropout rates than whites and Asians -- surely this could be determined to be a disparate impact. Employing EEOC's "line of logic", will employers be permitted to consider an applicant's educational background and training in the hiring process? Title IV of the Civil Rights Act of 1964 prohibits discrimination based on age, race, or gender. It does not, however, prohibit discrimination against character.
In 47 of the 50 states, state law holds employers accountable for the irresponsible and/or threatening behavior of an employee if the employer could reasonably anticipate such behavior. With the EEOC's new guideline, employers will be forced to hire an ex-convict, and also be liable for a convict's potential threatening behavior. This is absurd.
While I am in favor of giving people "second chances", I strictly oppose overreaching federal regulations that force businesses to disregard 'character' when determining which prospective employee to hire. When a day care center is forced to hire a man or woman formerly incarcerated for child abuse, we shall see who still disagrees with me.
In the month of July, I posted several pieces on race-politics, specifically affirmative action. Having finished "Audacity of Hope" by President Barack Obama, I noted that although Obama did not expressly condemn affirmative action, he did consign it to a category of exhausted programs that "dissect[s] Americans into 'us' and 'them' and that "can't serve as the basis for the kinds of sustained, broad-based political coalitions needed to transform America." As president, Obama has repeatedly eschewed race-targeting (with respect most notably to employment policy) in favor of "universal" reforms that allegedly lift all boats.
Consider this: The federal Equal Employment Opportunity Commission (EEOC) is warning employers that it is illegal to use a prospective employee's past conviction records, even for serious felonies, as an "absolute measure" as to whether they should be hired because this "could limit the employment opportunities of some protected groups."
This is, the EEOC says, because blacks and Hispanics are over-represented among felons.
But blacks and hispanics also have an unfortunate higher high school and college dropout rates than whites and Asians -- surely this could be determined to be a disparate impact. Employing EEOC's "line of logic", will employers be permitted to consider an applicant's educational background and training in the hiring process? Title IV of the Civil Rights Act of 1964 prohibits discrimination based on age, race, or gender. It does not, however, prohibit discrimination against character.
In 47 of the 50 states, state law holds employers accountable for the irresponsible and/or threatening behavior of an employee if the employer could reasonably anticipate such behavior. With the EEOC's new guideline, employers will be forced to hire an ex-convict, and also be liable for a convict's potential threatening behavior. This is absurd.
While I am in favor of giving people "second chances", I strictly oppose overreaching federal regulations that force businesses to disregard 'character' when determining which prospective employee to hire. When a day care center is forced to hire a man or woman formerly incarcerated for child abuse, we shall see who still disagrees with me.
Monday, August 2, 2010
Understanding Preemption
Understanding the Doctrine of Preemption:
Under the Supremacy Clause of the U.S. Constitution, all federal law, including treaties, shall be the “supreme law of the land” and as such, supersede any state or local state in conflict with federal law. For example, the federal government may require that all U.S. citizens pay a federal tax. If the state of Washington mandated that its citizens do not pay the federal tax, the state of Washington’s law would be in violation of the Supremacy Clause. The federal tax law pre-empts Washington state’s tax law.
As the argument stands, some claim that Arizona’s new immigration law violates the Supremacy Clause or doctrine of preemption. State laws are pre-empted by federal law in two circumstances: 1) when there is a conflict with federal law or 2) when Congress has so thoroughly regulated a field that there is no room for even congruent state laws.
An example of (1): Los Angeles and San Francisco have become “sanctuary cities”. In both cities, the state of California has made it illegal for the police to contact ICE (a federal agency) to report illegal aliens. Hence, for illegal immigrants, they become a “sanctuary”. Because ICE is the mechanism by which federal immigration is enforced, the state of California’s law prohibiting its police force to contact ICE, is in violation of the Supremacy Clause.
An example of (2): If indeed, Arizona’s law agrees with federal law, Congress may have engaged in “field pre-emption” by occupying the entire field of immigration, thus prohibiting even harmonious state laws. Field pre-emption may arise, for example, in the case of federal health and safety laws, so that manufacturers of cars, medical devices, and drugs are not forced to comply with the laws of 50 different states to sell their products nationally. According to the Supreme Court’s most recent pre-emption ruling, Arizona’s law is not pre-empted because Congress did not expressly prohibit state regulation of illegal aliens.
De Canas v. Bica (1976), the Court held 8-0 that a California law prohibiting employers from hiring illegal immigrants was not pre-empted by federal law. Justice William Brennan concluded that “the federal government’s supremacy over immigration is strictly limited to: (1) a determination of who should or should not be admitted into the country and (2) the conditions under which a legal entrant may remain.” In short, there is no “field pre-emption” of state laws dealing with aliens, nor is there an explicit statement from Congress pre-empting state regulation of aliens.
Because the Arizona law precisely coincides with federal immigration law, and because the Court has ruled “field pre-emption” does not apply to immigration, the Arizona law is therefore constitutional. The Arizona law would be unconstitutional if and only if it is a violation of federal law to enforce or uphold federal immigration law.
Under the Supremacy Clause of the U.S. Constitution, all federal law, including treaties, shall be the “supreme law of the land” and as such, supersede any state or local state in conflict with federal law. For example, the federal government may require that all U.S. citizens pay a federal tax. If the state of Washington mandated that its citizens do not pay the federal tax, the state of Washington’s law would be in violation of the Supremacy Clause. The federal tax law pre-empts Washington state’s tax law.
As the argument stands, some claim that Arizona’s new immigration law violates the Supremacy Clause or doctrine of preemption. State laws are pre-empted by federal law in two circumstances: 1) when there is a conflict with federal law or 2) when Congress has so thoroughly regulated a field that there is no room for even congruent state laws.
An example of (1): Los Angeles and San Francisco have become “sanctuary cities”. In both cities, the state of California has made it illegal for the police to contact ICE (a federal agency) to report illegal aliens. Hence, for illegal immigrants, they become a “sanctuary”. Because ICE is the mechanism by which federal immigration is enforced, the state of California’s law prohibiting its police force to contact ICE, is in violation of the Supremacy Clause.
An example of (2): If indeed, Arizona’s law agrees with federal law, Congress may have engaged in “field pre-emption” by occupying the entire field of immigration, thus prohibiting even harmonious state laws. Field pre-emption may arise, for example, in the case of federal health and safety laws, so that manufacturers of cars, medical devices, and drugs are not forced to comply with the laws of 50 different states to sell their products nationally. According to the Supreme Court’s most recent pre-emption ruling, Arizona’s law is not pre-empted because Congress did not expressly prohibit state regulation of illegal aliens.
De Canas v. Bica (1976), the Court held 8-0 that a California law prohibiting employers from hiring illegal immigrants was not pre-empted by federal law. Justice William Brennan concluded that “the federal government’s supremacy over immigration is strictly limited to: (1) a determination of who should or should not be admitted into the country and (2) the conditions under which a legal entrant may remain.” In short, there is no “field pre-emption” of state laws dealing with aliens, nor is there an explicit statement from Congress pre-empting state regulation of aliens.
Because the Arizona law precisely coincides with federal immigration law, and because the Court has ruled “field pre-emption” does not apply to immigration, the Arizona law is therefore constitutional. The Arizona law would be unconstitutional if and only if it is a violation of federal law to enforce or uphold federal immigration law.
Friday, July 30, 2010
Free Speech and the 'Digital' Age
The 4th Circuit Court ruled that the posting of social security numbers (of government officials/constituents) on private websites is protected under the First Amendment, free speech. The case is best summarized in a recent Washington Post article:
http://www.washingtonpost.com/wp-dyn/content/article/2010/07/28/AR2010072805887.html
http://www.washingtonpost.com/wp-dyn/content/article/2010/07/28/AR2010072805887.html
Monday, July 26, 2010
When Religion and Law Collide
Consider the the facts of a recent, controversial case:
The record reflects that plaintiff, S.D., and defendant, M.J.R., are citizens of Morocco and adherents to the Muslim faith. They were wed in Morocco in an arranged marriage on July 31, 2008, when plaintiff was seventeen years old. The parties did not know each other prior to the marriage. On August 29, 2008, they came to New Jersey as the result of defendant’s employment in this country as an accountant....
[Long discussion of the wife’s allegations of abuse, which included several instances of nonconsensual sex as well as other abuse, omitted for space reasons. –EV]
Upon their return to the apartment, defendant forced plaintiff to have sex with him while she cried. Plaintiff testified that defendant always told her
this is according to our religion. You are my wife, I c[an] do anything to you. The woman, she should submit and do anything I ask her to do.
After having sex, defendant took plaintiff to a travel agency to buy a ticket for her return to Morocco. However the ticket was not purchased, and the couple returned to the apartment. Once there, defendant threatened divorce, but nonetheless again engaged in nonconsensual sex while plaintiff cried. Later that day, defendant and his mother took plaintiff to the home of the Imam and, in the presence of the Imam, his wife, and defendant’s mother, defendant verbally divorced plaintiff....
The judge found from his review of the evidence that plaintiff had proven by a preponderance of the evidence that defendant had engaged in harassment, pursuant to N.J.S.A. 2C:33-4b and c, and assault. He found that plaintiff had not proven criminal restraint, sexual assault or criminal sexual contact. In finding assault to have occurred, the judge credited, as essentially uncontradicted, plaintiff’s testimony regarding the events of November 1, 16 and 22, 2008. The judge based his findings of harassment on plaintiff’s “clear proof” of the nonconsensual sex occurring during the three days in November and on the events of the night of January 15 to 16. He did not credit plaintiff’s testimony of sexual assaults thereafter, since there was no corroboration in plaintiff’s complaints to the police. [Footnote: In response to an objection by plaintiff’s counsel, the judge later recognized that the police report upon which he relied in finding no corroboration for plaintiff’s claims had not been admitted in evidence because of its hearsay nature. However, he declined to modify his ruling.]
While recognizing that defendant had engaged in sexual relations with plaintiff against her expressed wishes in November 2008 and on the night of January 15 to 16, 2009, the judge did not find sexual assault or criminal sexual conduct to have been proven. He stated:
This court does not feel that, under the circumstances, that this defendant had a criminal desire to or intent to sexually assault or to sexually contact the plaintiff when he did. The court believes that he was operating under his belief that it is, as the husband, his desire to have sex when and whether he wanted to, was something that was consistent with his practices and it was something that was not prohibited.
After acknowledging that this was a case in which religious custom clashed with the law, and that under the law, plaintiff had a right to refuse defendant’s advances, the judge found that defendant did not act with a criminal intent when he repeatedly insisted upon intercourse, despite plaintiff’s contrary wishes.
Having found acts of domestic violence consisting of assault and harassment to have occurred, the judge turned to the issue of whether a final restraining order should be entered. He found such an order unnecessary, vacated the temporary restraints previously entered in the matter and dismissed plaintiff’s domestic violence action....
The appellate court reversed, writing (among other things):
Defendant’s conduct in engaging in nonconsensual sexual intercourse was unquestionably knowing, regardless of his view that his religion permitted him to act as he did.
As the judge recognized, the case thus presents a conflict between the criminal law and religious precepts. In resolving this conflict, the judge determined to except defendant from the operation of the State’s statutes as the result of his religious beliefs. In doing so, the judge was mistaken.
The appellate court remanded for entry of a restraining order. Note that the woman was pregnant with the couple’s child at the time of the initial hearing, so that despite the divorce it seemed likely that the man and the woman would remain in contact; this is legally relevant because restraining orders are designed to prevent future harm, not to punish for past misbehavior. The opinion is quite detailed both in its summary of the factual allegations and as to the legal analysis; those who are especially interested in the case may want to read it closely.
To any sensible person, what the defendant did to the plaintiff is fundamentally wrong and immoral. Still, the Court is only to adjudicate the law, not morality. So what does the law say? The U.S. Constitution ostensibly protects religious practices from government interference. If indeed, the defendant was acting within the bounds of the Muslim faith, would not any legal action taken against him be an infringement of the Constitution? Historically, the U.S. Supreme Court ruled that the use of 'peyote', a drug commonly used by Native Americans for religious ceremonial purposes, is illegal by U.S. law. At what point does the U.S. law supercede a religious practice? Polygamy for the LDS Church is yet another example.
The record reflects that plaintiff, S.D., and defendant, M.J.R., are citizens of Morocco and adherents to the Muslim faith. They were wed in Morocco in an arranged marriage on July 31, 2008, when plaintiff was seventeen years old. The parties did not know each other prior to the marriage. On August 29, 2008, they came to New Jersey as the result of defendant’s employment in this country as an accountant....
[Long discussion of the wife’s allegations of abuse, which included several instances of nonconsensual sex as well as other abuse, omitted for space reasons. –EV]
Upon their return to the apartment, defendant forced plaintiff to have sex with him while she cried. Plaintiff testified that defendant always told her
this is according to our religion. You are my wife, I c[an] do anything to you. The woman, she should submit and do anything I ask her to do.
After having sex, defendant took plaintiff to a travel agency to buy a ticket for her return to Morocco. However the ticket was not purchased, and the couple returned to the apartment. Once there, defendant threatened divorce, but nonetheless again engaged in nonconsensual sex while plaintiff cried. Later that day, defendant and his mother took plaintiff to the home of the Imam and, in the presence of the Imam, his wife, and defendant’s mother, defendant verbally divorced plaintiff....
The judge found from his review of the evidence that plaintiff had proven by a preponderance of the evidence that defendant had engaged in harassment, pursuant to N.J.S.A. 2C:33-4b and c, and assault. He found that plaintiff had not proven criminal restraint, sexual assault or criminal sexual contact. In finding assault to have occurred, the judge credited, as essentially uncontradicted, plaintiff’s testimony regarding the events of November 1, 16 and 22, 2008. The judge based his findings of harassment on plaintiff’s “clear proof” of the nonconsensual sex occurring during the three days in November and on the events of the night of January 15 to 16. He did not credit plaintiff’s testimony of sexual assaults thereafter, since there was no corroboration in plaintiff’s complaints to the police. [Footnote: In response to an objection by plaintiff’s counsel, the judge later recognized that the police report upon which he relied in finding no corroboration for plaintiff’s claims had not been admitted in evidence because of its hearsay nature. However, he declined to modify his ruling.]
While recognizing that defendant had engaged in sexual relations with plaintiff against her expressed wishes in November 2008 and on the night of January 15 to 16, 2009, the judge did not find sexual assault or criminal sexual conduct to have been proven. He stated:
This court does not feel that, under the circumstances, that this defendant had a criminal desire to or intent to sexually assault or to sexually contact the plaintiff when he did. The court believes that he was operating under his belief that it is, as the husband, his desire to have sex when and whether he wanted to, was something that was consistent with his practices and it was something that was not prohibited.
After acknowledging that this was a case in which religious custom clashed with the law, and that under the law, plaintiff had a right to refuse defendant’s advances, the judge found that defendant did not act with a criminal intent when he repeatedly insisted upon intercourse, despite plaintiff’s contrary wishes.
Having found acts of domestic violence consisting of assault and harassment to have occurred, the judge turned to the issue of whether a final restraining order should be entered. He found such an order unnecessary, vacated the temporary restraints previously entered in the matter and dismissed plaintiff’s domestic violence action....
The appellate court reversed, writing (among other things):
Defendant’s conduct in engaging in nonconsensual sexual intercourse was unquestionably knowing, regardless of his view that his religion permitted him to act as he did.
As the judge recognized, the case thus presents a conflict between the criminal law and religious precepts. In resolving this conflict, the judge determined to except defendant from the operation of the State’s statutes as the result of his religious beliefs. In doing so, the judge was mistaken.
The appellate court remanded for entry of a restraining order. Note that the woman was pregnant with the couple’s child at the time of the initial hearing, so that despite the divorce it seemed likely that the man and the woman would remain in contact; this is legally relevant because restraining orders are designed to prevent future harm, not to punish for past misbehavior. The opinion is quite detailed both in its summary of the factual allegations and as to the legal analysis; those who are especially interested in the case may want to read it closely.
To any sensible person, what the defendant did to the plaintiff is fundamentally wrong and immoral. Still, the Court is only to adjudicate the law, not morality. So what does the law say? The U.S. Constitution ostensibly protects religious practices from government interference. If indeed, the defendant was acting within the bounds of the Muslim faith, would not any legal action taken against him be an infringement of the Constitution? Historically, the U.S. Supreme Court ruled that the use of 'peyote', a drug commonly used by Native Americans for religious ceremonial purposes, is illegal by U.S. law. At what point does the U.S. law supercede a religious practice? Polygamy for the LDS Church is yet another example.
The Myth of White Privilege: A Lesson on History
Democratic U.S. Senator, James Webb, makes a compelling case for the end to affirmative action programs- read his Op-Ed in the Wall Street Journal:
Among others, Senator Webb's focus-points are:
1. Historically speaking, it is impossible to group all whites living in the U.S. into one large group. The journey for the white-American is so diverse that one strains to find logic in lumping them all together for the purpose of public policy.
2. Less than 5 percent of whites in the South owned slaves. Curiously enough, the South consisted of a three-tiered society; the white elites, the white peasants, and the African slaves. Comparatively, southern white peasants were disadvantaged to a large degree. Ought they not be recipients of some form of reparation?
Among others, Senator Webb's focus-points are:
1. Historically speaking, it is impossible to group all whites living in the U.S. into one large group. The journey for the white-American is so diverse that one strains to find logic in lumping them all together for the purpose of public policy.
2. Less than 5 percent of whites in the South owned slaves. Curiously enough, the South consisted of a three-tiered society; the white elites, the white peasants, and the African slaves. Comparatively, southern white peasants were disadvantaged to a large degree. Ought they not be recipients of some form of reparation?
Thursday, July 22, 2010
Rape By Fraud?
The Guardian (UK) reports:
A Palestinian man has been convicted of rape after having consensual sex with a woman who had believed him to be a fellow Jew.
Sabbar Kashur, 30, was sentenced to 18 months in prison on Monday after the court ruled that he was guilty of rape by deception. According to the complaint filed by the woman with the Jerusalem district court, the two met in downtown Jerusalem in September 2008 where Kashur, an Arab from East Jerusalem, introduced himself as a Jewish bachelor seeking a serious relationship. The two then had consensual sex in a nearby building before Kashur left....
Handing down the verdict, Tzvi Segal, one of three judges on the case, acknowledged that sex had been consensual but said that although not “a classical rape by force,” the woman would not have consented if she had not believed Kashur was Jewish.
The sex therefore was obtained under false pretences, the judges said. “If she hadn’t thought the accused was a Jewish bachelor interested in a serious romantic relationship, she would not have cooperated,” they added....
Segal said: “The court is obliged to protect the public interest from sophisticated, smooth-tongued criminals who can deceive innocent victims at an unbearable price — the sanctity of their bodies and souls. When the very basis of trust between human beings drops, especially when the matters at hand are so intimate, sensitive and fateful, the court is required to stand firmly at the side of the victims — actual and potential — to protect their wellbeing. Otherwise, they will be used, manipulated and misled, while paying only a tolerable and symbolic price.”
Such “fraud in the inducement” would not suffice for a rape conviction under the law of most American states, though it’s an interesting question why it’s a crime to get money by fraud but not to get sex by fraud. There are good answers to that question, I think, but they’re not so obviously right as to keep the question from being interesting.
Cheating on One's Lover = Future Felony in Massachusetts?
That's what would happen under a proposed statute that's being promoted by Massachusetts state representative Peter Koutoujian, and is being supported by District Attorneys Joseph D. Early Jr. and Gerard Leone.
I suspect that this isn't the goal of the drafters, but that's what the language would call for, when (as I'm pretty sure happens quite often) the cheater has sex afterwards with the regular lover without disclosing the cheating. Here's what the proposed law says:
Whoever has sexual intercourse or unnatural sexual intercourse with a person having obtained that person's consent by the use of fraud, concealment or artifice, and who thereby intentionally deceived such person so that a reasonable person would not have consented but for the deception, shall be punished by imprisonment in the state prison for life or any term of years. As used in this statute, 'fraud' or 'artifice' shall not be construed to mean a promise of future consideration.
The law was apparently proposed in response to some recent fraudulent-sex incidents, one in which a man had sex with his brother's near-sleeping girlfriend pretending to be his brother, and one in which a medical technician conducted an unnecessary pelvic exam (with his fingers, I think) after having pretended to the woman that it was necessary and that he was trained and licensed to perform such exams. But it goes much further than that: Any time someone has consensual sex (1) having gotten the consent through (a) lying or (b) concealment, and (2) a jury (or perhaps a judge) concludes that "a reasonable person would not have consented but for the deception," that's a felony, labeled as a form of rape. Promises ("I'll marry you") are excluded, but other statements — or silences — are not.
So let's see how it plays out in the cheating situation. Alan and Beth are lovers. Beth has sex with Carl. She doesn't tell Alan (or, if Alan confronts her about his suspicions, denies it — that doesn't matter for purposes of the law), but then has sex with Alan again. That, under the law, is rape, so long as the jury or judge concludes that a reasonable person wouldn't have consented to have sex again with his lover had he known that she had cheated on him. Naturally, the same would apply with married couples, but this isn't even just a revival of criminal punishment for adultery — there's no requirement of marriage. (Note of course this would apply regardless of the sex, or sexual orientation, of the partners.)
The same could of course arise in lots of other contexts. A woman conceals from a prospective lover the fact that she'd been a prostitute, or even had had a lot of sexual partners. When they have sex, under the proposed law the man will have been raped as a result — depending, of course, on whether the jury or judge decides that a reasonable person would care about a lover's past prostitution, or even a lover's past promiscuity. (Let's assume that she doesn't have any sexually transmitted disease; there are some narrow laws that mandate revealing STD's to prospective lovers, but those are indeed limited to revealing STD's and preventing the spread of disease. They certainly don't cover all things that a reasonable lover might consider in deciding whether to have sex.)
Likewise if a man (or a woman) gets sex by falsely saying "I love you" (as opposed to "I will always love you" or "I will marry you," which is excluded), again if a jury finds that a reasonable person would have considered this. Same if someone gets sex by lying about his or her wealth or his or her age.
And of course all this would require the case-by-case, jury-by-jury development of the Law of Reasonable Sexual Criteria, as Massachusetts courts have to decide whether a reasonable person would treat a sexual partner's poverty, age, promiscuity, infidelity, and other attributes as sexual deal-killers. (Would it matter, by the way, how appealing the other person otherwise is? Would the jury have to decide whether the "victim" would have had sex with the "rapist" in any event, because the victim was so infatuated, or because the rapist was so hot? "True, Angelina Jolie didn't tell the victim that she was still in a sexual relationship with Billy Bob Thornton, but a reasonable man would have had sex with Angelina Jolie no matter what he knew about her"?)
Just awful. I do think some kinds of sexual frauds could properly be criminalized, for instance if the defendant impersonated some other specific person whom the victim knew, or if the defendant lied about having a serious sexually transmitted disease (or even concealed such a disease), or if the defendant lied about whether certain sexual contact was necessary for medical purposes. But these would be narrow and precisely drafted laws, which would cover a small range of clearly highly reprehensible and unusual conduct, and would not cover behavior that is either proper protection of privacy (e.g., not revealing one's sexual history) or that is an extremely common human failing (e.g., cheating).
Ought there be a law against sex fraud? If so, what are the legal criterions?
A Palestinian man has been convicted of rape after having consensual sex with a woman who had believed him to be a fellow Jew.
Sabbar Kashur, 30, was sentenced to 18 months in prison on Monday after the court ruled that he was guilty of rape by deception. According to the complaint filed by the woman with the Jerusalem district court, the two met in downtown Jerusalem in September 2008 where Kashur, an Arab from East Jerusalem, introduced himself as a Jewish bachelor seeking a serious relationship. The two then had consensual sex in a nearby building before Kashur left....
Handing down the verdict, Tzvi Segal, one of three judges on the case, acknowledged that sex had been consensual but said that although not “a classical rape by force,” the woman would not have consented if she had not believed Kashur was Jewish.
The sex therefore was obtained under false pretences, the judges said. “If she hadn’t thought the accused was a Jewish bachelor interested in a serious romantic relationship, she would not have cooperated,” they added....
Segal said: “The court is obliged to protect the public interest from sophisticated, smooth-tongued criminals who can deceive innocent victims at an unbearable price — the sanctity of their bodies and souls. When the very basis of trust between human beings drops, especially when the matters at hand are so intimate, sensitive and fateful, the court is required to stand firmly at the side of the victims — actual and potential — to protect their wellbeing. Otherwise, they will be used, manipulated and misled, while paying only a tolerable and symbolic price.”
Such “fraud in the inducement” would not suffice for a rape conviction under the law of most American states, though it’s an interesting question why it’s a crime to get money by fraud but not to get sex by fraud. There are good answers to that question, I think, but they’re not so obviously right as to keep the question from being interesting.
Cheating on One's Lover = Future Felony in Massachusetts?
That's what would happen under a proposed statute that's being promoted by Massachusetts state representative Peter Koutoujian, and is being supported by District Attorneys Joseph D. Early Jr. and Gerard Leone.
I suspect that this isn't the goal of the drafters, but that's what the language would call for, when (as I'm pretty sure happens quite often) the cheater has sex afterwards with the regular lover without disclosing the cheating. Here's what the proposed law says:
Whoever has sexual intercourse or unnatural sexual intercourse with a person having obtained that person's consent by the use of fraud, concealment or artifice, and who thereby intentionally deceived such person so that a reasonable person would not have consented but for the deception, shall be punished by imprisonment in the state prison for life or any term of years. As used in this statute, 'fraud' or 'artifice' shall not be construed to mean a promise of future consideration.
The law was apparently proposed in response to some recent fraudulent-sex incidents, one in which a man had sex with his brother's near-sleeping girlfriend pretending to be his brother, and one in which a medical technician conducted an unnecessary pelvic exam (with his fingers, I think) after having pretended to the woman that it was necessary and that he was trained and licensed to perform such exams. But it goes much further than that: Any time someone has consensual sex (1) having gotten the consent through (a) lying or (b) concealment, and (2) a jury (or perhaps a judge) concludes that "a reasonable person would not have consented but for the deception," that's a felony, labeled as a form of rape. Promises ("I'll marry you") are excluded, but other statements — or silences — are not.
So let's see how it plays out in the cheating situation. Alan and Beth are lovers. Beth has sex with Carl. She doesn't tell Alan (or, if Alan confronts her about his suspicions, denies it — that doesn't matter for purposes of the law), but then has sex with Alan again. That, under the law, is rape, so long as the jury or judge concludes that a reasonable person wouldn't have consented to have sex again with his lover had he known that she had cheated on him. Naturally, the same would apply with married couples, but this isn't even just a revival of criminal punishment for adultery — there's no requirement of marriage. (Note of course this would apply regardless of the sex, or sexual orientation, of the partners.)
The same could of course arise in lots of other contexts. A woman conceals from a prospective lover the fact that she'd been a prostitute, or even had had a lot of sexual partners. When they have sex, under the proposed law the man will have been raped as a result — depending, of course, on whether the jury or judge decides that a reasonable person would care about a lover's past prostitution, or even a lover's past promiscuity. (Let's assume that she doesn't have any sexually transmitted disease; there are some narrow laws that mandate revealing STD's to prospective lovers, but those are indeed limited to revealing STD's and preventing the spread of disease. They certainly don't cover all things that a reasonable lover might consider in deciding whether to have sex.)
Likewise if a man (or a woman) gets sex by falsely saying "I love you" (as opposed to "I will always love you" or "I will marry you," which is excluded), again if a jury finds that a reasonable person would have considered this. Same if someone gets sex by lying about his or her wealth or his or her age.
And of course all this would require the case-by-case, jury-by-jury development of the Law of Reasonable Sexual Criteria, as Massachusetts courts have to decide whether a reasonable person would treat a sexual partner's poverty, age, promiscuity, infidelity, and other attributes as sexual deal-killers. (Would it matter, by the way, how appealing the other person otherwise is? Would the jury have to decide whether the "victim" would have had sex with the "rapist" in any event, because the victim was so infatuated, or because the rapist was so hot? "True, Angelina Jolie didn't tell the victim that she was still in a sexual relationship with Billy Bob Thornton, but a reasonable man would have had sex with Angelina Jolie no matter what he knew about her"?)
Just awful. I do think some kinds of sexual frauds could properly be criminalized, for instance if the defendant impersonated some other specific person whom the victim knew, or if the defendant lied about having a serious sexually transmitted disease (or even concealed such a disease), or if the defendant lied about whether certain sexual contact was necessary for medical purposes. But these would be narrow and precisely drafted laws, which would cover a small range of clearly highly reprehensible and unusual conduct, and would not cover behavior that is either proper protection of privacy (e.g., not revealing one's sexual history) or that is an extremely common human failing (e.g., cheating).
Ought there be a law against sex fraud? If so, what are the legal criterions?
Tuesday, July 20, 2010
Poor Whites Need Not Apply
When college admission officers celebrate campus diversity, you know they are talking first and foremost about race. More specifically, they are talking about blacks. A diverse college campus is understood to consist of 5-7 percent blacks (half the proportion of blacks in the general population). Any academic institution with lower figures is considered racist, mediocre, or politically incorrect, regardless of how demographically diverse its student body might be in other ways. The 5-7 percent black quota need not be American. In fact, an estimated 40-50 percent of those categorized as black are Afro-Caribbean or African immigrants.
Secondary to blacks in the quest for diversity are Hispanics. Along with blacks, Hispanics are classified as “underrepresented minorities”. Although Hispanics roughly make up the same percentage as blacks in the general population, meeting the black diversity goal is a much higher priority than the Hispanic one.
On the contrary, Asians receive no boost in admissions. In fact, college admission officers set an admission standard far higher than what is required for blacks and Hispanics. If all minority races do not equate to diversity on an equal level, two questions must be answered. First, what is diversity? If race is diversity, then one must ask; why does the treatment of one minority race differ from another when attempting to achieve “racial” diversity?
The debate over affirmative action policies began with the landmark Supreme Court Bakke case. While the Court rejected racial preferential policies (such as quotas), the Court deemed permissible a type of affirmative action policy, insomuch as such policies were backed by “a university’s legitimate concern for the educational benefits of a demographically diverse student body.” In short, competitive universities only needed to cloak their racial preferential policies’ true meaning and purpose behind misleading or dishonest rhetoric of “diversity”. Harvard Law Professor, Alan Dershowitz, accurately explains the situation: “The raison d’etre for race-specific affirmative action programs has simply never been diversity for the sake of education. The checkered history of ‘diversity’ demonstrates that it was designed largely as a cover to achieve other legally, morally, and politically controversial goals. In recent years, it has been invoked—especially in the professional schools—as a clever post facto justification for increasing the number of minority group students in the student body.”
Most elite universities seem to have little interest in diversifying their student bodies with born-again Christians, students from rural or small-town areas, people who have served in the military, farmers, Mormons, Jehovah Witnesses, working class “white ethnics”, social and political conservatives, or married students. Any rationally person will conclude that persons in the various categories listed above carry with them unique life-experiences and therefore will contribute to a diverse intellectual atmosphere. Students in these categories, however, are very rare at America’s elite universities.
The data of a study conducted by two Princeton scholars was gathered from eight highly competitive public and private universities. Data was collected on over 245,000 applicants from three separate application years, and over 9,000 enrolled students filled out extensive questionnaires. The results of the study are alarming. To have the same chances of gaining admission as a black student with an SAT score of 1100, an Hispanic student otherwise equally matched in background characteristics would have to have a 1230, a white student a 1410, and an Asian student a 1550. The study also carefully considered the question of “class-based preferences” (financial disparity). The study indicated a general disregard for improving the admission chances of poor and otherwise disadvantaged whites.
Distressing as many might consider this to be—since the same institutions that give no special consideration to poor white applicants boast about their commitment to “diversity” and give enormous admissions breaks to blacks, even to those from relatively affluent homes—the survey found the actual situation to be much more troubling. The lower-class whites proved to be all-around losers. When equally matched for background factors (including SAT scores and high school GPAs), the better-off whites were more than three times as likely to be accepted as the poorest whites. Having money in the familiy greatly improved a white applicant’s admissions chances, lack of money greatly reduced it. The opposite class trend was seen among non-whites, where the poorer the applicant the greater the probability of acceptance when all other factors are taken into account. Class-based affirmative action does exist within the three non-white ethno-racial groupings, but among the whites the groups advanced are those with money.
When lower-class whites are matched with lower-class blacks and other non-whites the degree of the non-white advantage becomes astronomical: lower-class Asian applicants are seven times as likely to be accepted to the competitive private institutions as similarly qualified whites, lower-class Hispanic applicants eight times as likely, and lower-class blacks ten times as likely.
Now, the question becomes: Why are poor whites not admitted? Simply put, colleges and universities are reluctant to admit students who cannot afford their high tuitions. And since they have a limited amount of money to give out for scholarship aid, they reserve this money to lure those who can be counted in their enrollment statistics as diversity-enhancing “racial minorities” (except Asians).
Still, why cannot well-qualified lower-class whites at least be offered admission without financial aid? The ugly truth is that most colleges, especially the most competitive ones, are fiercely concerned with their ratings by rating organizations like U.S. News and World Report. And an important part of those ratings consist of a numerical acceptance rate (the ratio of applicants received and those accepted) and a yield score (the ratio of those accepted to those who enroll). The lower the acceptance rate and the higher the yield score the more favorably colleges are looked upon. In extending admissions to well-qualified but financially strapped whites who are unlikely to enroll, a college would be driving both its acceptance rate and its yield score in the wrong direction. Lesson learned: colleges would do well to come clean with their act and admit the truth: “Poor Whites Need Not Apply!”.
Moreover, the study also proves ideological bias in the admission process. Every college admission officer would tell you that extracurricular activities improve an application. This is only true, however, if you are NOT a member of the Future Farmers of America, the ROTC, or any Christian organization. Excelling in these activities is associated with 60 to 65 percent lower odds of admission.
Military veterans and aspiring military officers, like poor whites and future American farmers, are clearly not what most competitive colleges have in mind when they speak of the need for “diversity”. This being the unfortunate case, elite colleges should get out of the diversity business altogether and focus on enrolling students who are the most academically talented and the most eager to learn. Let the diversity chips fall where they may and focus on recruiting the most intelligent, most creative, and most energetic of the rising generation of young people. In my naïve way this is what I always thought elite universities were supposed to be about.
I do not suggest an end to all affirmative action policies. I believe all invested in this debate see an overarching need to support educational opportunities for those from unfortunate circumstances. Nonetheless, I do propose that all affirmative action policies ought to be based on need, rather than skin color. It is true that minorities are economically disadvantaged. With a system based on "need", minorities (Asians included) will continue to be the recipients of affirmative action's choicest blessings. At the same time, lower-class whites will be afforded similar opportunities. Lets put an end to racial discrimination on all forefronts.
Secondary to blacks in the quest for diversity are Hispanics. Along with blacks, Hispanics are classified as “underrepresented minorities”. Although Hispanics roughly make up the same percentage as blacks in the general population, meeting the black diversity goal is a much higher priority than the Hispanic one.
On the contrary, Asians receive no boost in admissions. In fact, college admission officers set an admission standard far higher than what is required for blacks and Hispanics. If all minority races do not equate to diversity on an equal level, two questions must be answered. First, what is diversity? If race is diversity, then one must ask; why does the treatment of one minority race differ from another when attempting to achieve “racial” diversity?
The debate over affirmative action policies began with the landmark Supreme Court Bakke case. While the Court rejected racial preferential policies (such as quotas), the Court deemed permissible a type of affirmative action policy, insomuch as such policies were backed by “a university’s legitimate concern for the educational benefits of a demographically diverse student body.” In short, competitive universities only needed to cloak their racial preferential policies’ true meaning and purpose behind misleading or dishonest rhetoric of “diversity”. Harvard Law Professor, Alan Dershowitz, accurately explains the situation: “The raison d’etre for race-specific affirmative action programs has simply never been diversity for the sake of education. The checkered history of ‘diversity’ demonstrates that it was designed largely as a cover to achieve other legally, morally, and politically controversial goals. In recent years, it has been invoked—especially in the professional schools—as a clever post facto justification for increasing the number of minority group students in the student body.”
Most elite universities seem to have little interest in diversifying their student bodies with born-again Christians, students from rural or small-town areas, people who have served in the military, farmers, Mormons, Jehovah Witnesses, working class “white ethnics”, social and political conservatives, or married students. Any rationally person will conclude that persons in the various categories listed above carry with them unique life-experiences and therefore will contribute to a diverse intellectual atmosphere. Students in these categories, however, are very rare at America’s elite universities.
The data of a study conducted by two Princeton scholars was gathered from eight highly competitive public and private universities. Data was collected on over 245,000 applicants from three separate application years, and over 9,000 enrolled students filled out extensive questionnaires. The results of the study are alarming. To have the same chances of gaining admission as a black student with an SAT score of 1100, an Hispanic student otherwise equally matched in background characteristics would have to have a 1230, a white student a 1410, and an Asian student a 1550. The study also carefully considered the question of “class-based preferences” (financial disparity). The study indicated a general disregard for improving the admission chances of poor and otherwise disadvantaged whites.
Distressing as many might consider this to be—since the same institutions that give no special consideration to poor white applicants boast about their commitment to “diversity” and give enormous admissions breaks to blacks, even to those from relatively affluent homes—the survey found the actual situation to be much more troubling. The lower-class whites proved to be all-around losers. When equally matched for background factors (including SAT scores and high school GPAs), the better-off whites were more than three times as likely to be accepted as the poorest whites. Having money in the familiy greatly improved a white applicant’s admissions chances, lack of money greatly reduced it. The opposite class trend was seen among non-whites, where the poorer the applicant the greater the probability of acceptance when all other factors are taken into account. Class-based affirmative action does exist within the three non-white ethno-racial groupings, but among the whites the groups advanced are those with money.
When lower-class whites are matched with lower-class blacks and other non-whites the degree of the non-white advantage becomes astronomical: lower-class Asian applicants are seven times as likely to be accepted to the competitive private institutions as similarly qualified whites, lower-class Hispanic applicants eight times as likely, and lower-class blacks ten times as likely.
Now, the question becomes: Why are poor whites not admitted? Simply put, colleges and universities are reluctant to admit students who cannot afford their high tuitions. And since they have a limited amount of money to give out for scholarship aid, they reserve this money to lure those who can be counted in their enrollment statistics as diversity-enhancing “racial minorities” (except Asians).
Still, why cannot well-qualified lower-class whites at least be offered admission without financial aid? The ugly truth is that most colleges, especially the most competitive ones, are fiercely concerned with their ratings by rating organizations like U.S. News and World Report. And an important part of those ratings consist of a numerical acceptance rate (the ratio of applicants received and those accepted) and a yield score (the ratio of those accepted to those who enroll). The lower the acceptance rate and the higher the yield score the more favorably colleges are looked upon. In extending admissions to well-qualified but financially strapped whites who are unlikely to enroll, a college would be driving both its acceptance rate and its yield score in the wrong direction. Lesson learned: colleges would do well to come clean with their act and admit the truth: “Poor Whites Need Not Apply!”.
Moreover, the study also proves ideological bias in the admission process. Every college admission officer would tell you that extracurricular activities improve an application. This is only true, however, if you are NOT a member of the Future Farmers of America, the ROTC, or any Christian organization. Excelling in these activities is associated with 60 to 65 percent lower odds of admission.
Military veterans and aspiring military officers, like poor whites and future American farmers, are clearly not what most competitive colleges have in mind when they speak of the need for “diversity”. This being the unfortunate case, elite colleges should get out of the diversity business altogether and focus on enrolling students who are the most academically talented and the most eager to learn. Let the diversity chips fall where they may and focus on recruiting the most intelligent, most creative, and most energetic of the rising generation of young people. In my naïve way this is what I always thought elite universities were supposed to be about.
I do not suggest an end to all affirmative action policies. I believe all invested in this debate see an overarching need to support educational opportunities for those from unfortunate circumstances. Nonetheless, I do propose that all affirmative action policies ought to be based on need, rather than skin color. It is true that minorities are economically disadvantaged. With a system based on "need", minorities (Asians included) will continue to be the recipients of affirmative action's choicest blessings. At the same time, lower-class whites will be afforded similar opportunities. Lets put an end to racial discrimination on all forefronts.
Supreme Court Throws Christian Students to the Lions
While the media focused a good deal of attention on Elena Kagan’s vapid and hollow charade confirmation hearing, the nine current Supreme Court Justices finished another term. The Court’s decision in McDonald v. Chicago was a victory for all those who can read the Second Amendment, however, its decision in Christian Legal Society v. Martinez struck a major blow to First Amendment advocates everywhere.
A small group of Hastings College of Law students sought to register a Hastings chapter of CLS, a national organization of Christian lawyers and law students. All CLS members must sign a Statement of Faith affirming belief in fundamental Christian doctrines. Under a CLS resolution, unrepentant participation in or advocacy of a sexually immoral lifestyle is inconsistent with an affirmation of the Statement of Faith, and consequently may be regarded by CLS as disqualifying such an individual from CLS membership. Hastings’ refused to give CLS student group official recognition, claiming CLS violated a non-discrimination policy.
The issue before the Court, according to the Hastings’s CLS group was,
“[w]hether the Constitution permits a public university law school to exclude a religious student organization from a forum for speech solely because the group requires its officers and voting members to share its core religious commitments.”
Hastings’ administrators saw a chance to boot the Christians from their ranks and they took it.
In a 5 to 4 decision, the Supreme Court’s liberal bloc – with Justice Anthony Kennedy providing the swing vote – cast Christian students to the lion’s den.
The Court ruled that Hastings College of Law (part of the University of California system) did not violate the Christian Legal Society’s (CLS) First Amendment rights when it refused the student group official recognition.
The events that gave rise to this litigation began in 2004, when a small group of Hastings students sought to register a Hastings chapter of CLS, a national organization of Christian lawyers and law students. All CLS members must sign a Statement of Faith affirming belief in fundamental Christian doctrines. In early 2004, the national organization adopted a resolution stating that “[i]n view of the clear dictates of Scripture, unrepentant participation in or advocacy of a sexually immoral lifestyle is inconsistent with an affirmation of the Statement of Faith, and consequently may be regarded by CLS as disqualifying such an individual from CLS membership.” According to the resolution, a “sexually immoral lifestyle” specifically includes engaging in acts of sexual conduct outside of a traditional, man-woman marriage. It was shortly after the resolution was passed that the Hastings chapter of CLS applied for student-group recognition.
Progressive school administrators saw a chance to boot the Christians from their ranks, they took it. As a pretext to discriminate against Christians, Hastings changed its non-discrimination policy three separate times to deny CLS’s recognition. In fact, the record before the Court was so replete with evidence that the law school administrators specifically targeted the CLS group, Justice Alito even remarked, “[i]f the record here is not sufficient to permit a finding of pretext, then the law of pretext is dead.”
It is the very same mentality, one of systematically removing any obstacle to the implementation of a progressive social agenda on America’s campuses, that led Elena Kagan and other law school deans to restrict military recruiters on campus and this subsequent banishment of Christian student groups.
The Hasting CLS students used the protections of the U.S. Constitution to sue the school claiming their freedoms of religion and expressive association had been violated. The case fell upon the deaf ears of the notoriously progressive Ninth Circuit, which sided with the school in a two-sentence opinion.
The Christian students appealed, and the Supreme Court granted certiorari December 7, 2009.
According to the majority, the Constitution forbids a right to association; that is, a right for Christians to associate with other Christians.
Justice Ruth-Bader Ginsburg, writing for the majority, expressed concern for modern political correctness over the freedoms of religion and expressive association.
In his dissent, Justice Alito took a rather harsh tone with majority opinion. He wrote,
“[t]he proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.” Today’s decision rests on a very different principle: no freedom for expression that offends prevailing standards of political correctness in our country’s institutions of higher learning.” (Internal citations omitted).
How dare the Christian Legal Society seek to be comprised of Christians!
In ruling against the CLS students, the Court not only turned the Constitution on its head, the Court also went, in-part, against its own precedent. In Boy Scouts of America v. Dale, 530 U.S. 640 (2000), the Court found that “[t]he forced inclusion of an unwanted person in a group infringes the group’s freedom of expressive association.”
Justice Ginsburg’s opinion opened a Pandora’s box for every opposing campus group to drown out groups they find distasteful. Justice Alito explained that the decision provides “a handy weapon for suppressing the free speech of unpopular groups.”
Take for example a campus where Republicans largely out number Democrats. There is nothing to stop the Republicans from taking over the campus Democrats and silencing liberal voices.
The possibilities are endless.
The decision forces campus groups to admit members who are openly hostile to a group’s position. Imagine an atheist group taking over a Christian group, a Muslim group taking over a Jewish group, the cat club taking overt the dog club. Justice Ginsberg dismissed this slippery slope argument as “more hypothetical than real.”
In the past few years, some Muslim groups have sought to silence Jewish voices in American schools. Just recently the University of California-Irvine recommended the suspension of a Muslim student group for disrupting an Israeli ambassadors speech.
Law schools should be a forum for healthy, open, and honest debate. The forum becomes muddled when administrators, liberal or conservative, attempt to limit freedom of speech.
A small group of Hastings College of Law students sought to register a Hastings chapter of CLS, a national organization of Christian lawyers and law students. All CLS members must sign a Statement of Faith affirming belief in fundamental Christian doctrines. Under a CLS resolution, unrepentant participation in or advocacy of a sexually immoral lifestyle is inconsistent with an affirmation of the Statement of Faith, and consequently may be regarded by CLS as disqualifying such an individual from CLS membership. Hastings’ refused to give CLS student group official recognition, claiming CLS violated a non-discrimination policy.
The issue before the Court, according to the Hastings’s CLS group was,
“[w]hether the Constitution permits a public university law school to exclude a religious student organization from a forum for speech solely because the group requires its officers and voting members to share its core religious commitments.”
Hastings’ administrators saw a chance to boot the Christians from their ranks and they took it.
In a 5 to 4 decision, the Supreme Court’s liberal bloc – with Justice Anthony Kennedy providing the swing vote – cast Christian students to the lion’s den.
The Court ruled that Hastings College of Law (part of the University of California system) did not violate the Christian Legal Society’s (CLS) First Amendment rights when it refused the student group official recognition.
The events that gave rise to this litigation began in 2004, when a small group of Hastings students sought to register a Hastings chapter of CLS, a national organization of Christian lawyers and law students. All CLS members must sign a Statement of Faith affirming belief in fundamental Christian doctrines. In early 2004, the national organization adopted a resolution stating that “[i]n view of the clear dictates of Scripture, unrepentant participation in or advocacy of a sexually immoral lifestyle is inconsistent with an affirmation of the Statement of Faith, and consequently may be regarded by CLS as disqualifying such an individual from CLS membership.” According to the resolution, a “sexually immoral lifestyle” specifically includes engaging in acts of sexual conduct outside of a traditional, man-woman marriage. It was shortly after the resolution was passed that the Hastings chapter of CLS applied for student-group recognition.
Progressive school administrators saw a chance to boot the Christians from their ranks, they took it. As a pretext to discriminate against Christians, Hastings changed its non-discrimination policy three separate times to deny CLS’s recognition. In fact, the record before the Court was so replete with evidence that the law school administrators specifically targeted the CLS group, Justice Alito even remarked, “[i]f the record here is not sufficient to permit a finding of pretext, then the law of pretext is dead.”
It is the very same mentality, one of systematically removing any obstacle to the implementation of a progressive social agenda on America’s campuses, that led Elena Kagan and other law school deans to restrict military recruiters on campus and this subsequent banishment of Christian student groups.
The Hasting CLS students used the protections of the U.S. Constitution to sue the school claiming their freedoms of religion and expressive association had been violated. The case fell upon the deaf ears of the notoriously progressive Ninth Circuit, which sided with the school in a two-sentence opinion.
The Christian students appealed, and the Supreme Court granted certiorari December 7, 2009.
According to the majority, the Constitution forbids a right to association; that is, a right for Christians to associate with other Christians.
Justice Ruth-Bader Ginsburg, writing for the majority, expressed concern for modern political correctness over the freedoms of religion and expressive association.
In his dissent, Justice Alito took a rather harsh tone with majority opinion. He wrote,
“[t]he proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.” Today’s decision rests on a very different principle: no freedom for expression that offends prevailing standards of political correctness in our country’s institutions of higher learning.” (Internal citations omitted).
How dare the Christian Legal Society seek to be comprised of Christians!
In ruling against the CLS students, the Court not only turned the Constitution on its head, the Court also went, in-part, against its own precedent. In Boy Scouts of America v. Dale, 530 U.S. 640 (2000), the Court found that “[t]he forced inclusion of an unwanted person in a group infringes the group’s freedom of expressive association.”
Justice Ginsburg’s opinion opened a Pandora’s box for every opposing campus group to drown out groups they find distasteful. Justice Alito explained that the decision provides “a handy weapon for suppressing the free speech of unpopular groups.”
Take for example a campus where Republicans largely out number Democrats. There is nothing to stop the Republicans from taking over the campus Democrats and silencing liberal voices.
The possibilities are endless.
The decision forces campus groups to admit members who are openly hostile to a group’s position. Imagine an atheist group taking over a Christian group, a Muslim group taking over a Jewish group, the cat club taking overt the dog club. Justice Ginsberg dismissed this slippery slope argument as “more hypothetical than real.”
In the past few years, some Muslim groups have sought to silence Jewish voices in American schools. Just recently the University of California-Irvine recommended the suspension of a Muslim student group for disrupting an Israeli ambassadors speech.
Law schools should be a forum for healthy, open, and honest debate. The forum becomes muddled when administrators, liberal or conservative, attempt to limit freedom of speech.
Friday, February 6, 2009
The Sanctity of Life
Although national attention has recently been directed towards defining marriage, the legalization of abortion continues to politically-stimulate the masses. Divisive in its’ nature, abortion becomes a pressing societal concern as it violently attacks perhaps the most vulnerable popultion; the fetus. The validity of the arguments both for and against abortion rest on one underlying question: are the unborn in fact “persons worthy of rights”? If pro-life advocates can sufficiently prove that unborn humans are “persons worthy of rights” than the mother’s “right to choose” would arguably be trumped by the fetus’s right to life. Nearly all methods of ethical reasoning would find in favor of the pro-life argument IF it can be shown that the unborn are “persons worthy of rights”. If pro-choice advocates can sufficiently prove that the unborn are not “persons worthy of rights” than there is no way to justify forcing pregnancy on unwilling women. Immediately upon conception the zygote becomes a complete being. In the contrast, a sperm relies on an egg, and an egg a sperm. Furthermore, owing to the completeness of the zygote, it becomes recognized as a self-directing being in that the zygote begins to pursue its’ own survival and protects itself as it travels through the women’s body. In the case of brain death, a human is considered dead not because we no longer consider them as a living person, but rather because of the irreversible loss of autonomy and the unitary pursuit of survival. Having proven the zygote as life, it ceases to be categorized as “potential life” but “life with potential”. Now recognized as a person, the fetus is granted specific rights. Several advocates for a woman’s choice identify the fetus as life, yet deny the fetus rights equal to the mother. The primary defect in this argument is that it would attempt to bestow rights at varying degrees dependent upon accidental traits, traits that one may or may not acquire throughout his or her life such as consciousness, independence, or intelligence. When we begin to bestow rights based on accidental traits, it begs questions which force arbitrary questions. For example, at which level of intelligence do we cease to acknowledge basic rights? Would a partial mentally disabled individual qualify for basic human rights? The only rational approach to bestowing basic human rights is one based on the “type” of organism rather than the “level”; granting the zygote the same rights all humans are granted, fundamentally the right to life. Whether abortion should or should not be illegalized must be left for the people to decide. Unfortunately, much of public policy addressing abortion stems from the Supreme Court’s landmark case Roe v. Wade. With the passing of Proposition 8 in the state of California regarding marriage, the court evidently did not align itself with public opinion. It was not until democracy overruled the court’s ruling, maintaining the traditional definition of marriage. Similarly, a democratic process must be applied.
Tuesday, November 25, 2008
A Thankful Heart
Some of the most upsetting days of the semester stem from goodbyes to the missionaries I teach. Naturally, I grow to sincerely love each district, each missionary, as they pass through the MTC. As tradition, on the last day before their departure, we organize a testimony meeting. Perhaps this event becomes the most spiritual and most fulfilling. The spiritual development of these 19 year old boys is indescribable. While listening to their testimonies, I noticed an evolving trend. Each elder expressed his gratitude for three specific things: 1) The power of prayer 2) the Savior's Atonement 3) the opportunity to serve a mission. I could not help but think of the impact a mission has on a young man or woman. More specifically, I was reminded of "a thankful heart."
I hope this Holiday season we take in account three of the English language's most meaningful yet neglected words: Thank you, and Remember. Looking back on history, as America divided on the moral issue of slavery, President Abraham Lincoln reminded citizens of the eternal principle of gratitude and of its unifying, peace-binding power:
" We have been the recipients of the choices bounties of Heaven. We have been preserved, these many years, in peace and prosperity. We have grown in numbers, wealth, and power as no other nation has ever grown; but we have forgotten God.
We have forgotten the gracious land which preserved us in peace, and multiplied and enriched and strengthened us; and we have vainly imagined in the deceitfulness of our hearts, that all these blessings were produced by some superior wisdom and virtue of our own. Intoxicated with unbroken success, we have become too self-sufficient to feel the necessity of redeeming and preserving grace, too proud to pray to the God who made us:
It behooves us then, to humble ourselves before the offended Power, to confess our national sins, and to pray for clemency and forgiveness.
All this being done in sincerity and truth, let us then rest humbly in the hope authorized by the divine teachings, that the united cry of the nation will be heard on high, and answered with blessings no less than the pardon of our national sins, and the restoration of our now divided and suffering country to its former happy condition of unity and peace."
Abraham Lincoln
Gratitude and humility are interchangeable. As our country currently encounters division, strife, pride, and impatience, I hope we "remember" to say "thank you" not only to family and friends, but more importantly, to our Creator.
Monday, November 17, 2008
Jefferson and the Enlightenment
Influenced by Enlightenment philosophers such as Locke and Addison, Thomas Jefferson attributed much of his political ideology to these great thinkers. Truth, according to Jefferson could only be discovered by means of nature or reason. The following quotation given by Jefferson in a letter to his nephew:
"Shake off all the fears & servile prejudices, under which weak minds are servilely crouched. Fix reason firmly in her seat, and call to her tribunal every fact, every opinion. Question with boldness even the existence of a God; because, if there be one, he must more approve of the homage of reason, than that of blindfolded fear."
"Shake off all the fears & servile prejudices, under which weak minds are servilely crouched. Fix reason firmly in her seat, and call to her tribunal every fact, every opinion. Question with boldness even the existence of a God; because, if there be one, he must more approve of the homage of reason, than that of blindfolded fear."
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