Sunday, December 6, 2015

Nothing new under the Sun

"We are not well served when, in response to a terrorist attack, we descend into fear and panic. We don’t make good decisions if it’s based on hysteria or an exaggeration of risks." President Barack Obama

"This is a moment where it is better to be safe than to be sorry, so we think the prudent, the responsible thing is to take a pause in this particular aspect of this refugee program in order to verify that terrorists are not looking to infiltrate the refugee program" Representative Paul Ryan

March 21,1942

The President sat restlessly on his couch in the White House.

The three months after Pearl Harbor had been an endless stream of bad news for Franklin Delano Roosevelt. The list of Japanese advances to date were not short:

Wake Island 
Dutch East Indies
Hong Kong
and on

The Japanese had even threatened the West Coast of the United States-or at least, Americans there felt threatened. With over a hundred thousand Japanese-Americans living in that area of the country, the population was greatly concerned and the President had tried to quench these fears by signing an executive order (#9066).

This order, back on February 19th, had mandated their detention.  However, there was not enough movement so legislation was deemed necessary to enable federal courts to enforce the provisions of Executive Order #9066. 

It was that legislation that concerned the President this cold March morning. The bill had been hastily approved by both the House and Senate and sat before him for his signature. Senator Robert Taft had asked to meet with him before he signed. The Senator from Ohio was a powerful Republican opponent and did not approve of the bill so Roosevelt invited him in to discuss it.

As Senator Taft entered the Oval Office he was immediately taken aback. There in the corner was  none other than the Secretary of the Navy, Frank Knox. Perhaps no other person was a greater proponent of the bill.

“Well, Mr. President. It appears you want a little more than a quiet discussion this morning.” said Senator Taft as he stopped in mid-stride.

“Come now, Robert. I am sure we can discuss this important issue calmly.”

“I am not sure I can Mr. President. You are in the process of forcibly removing hundreds of thousands of law abiding people, tens of thousands of whom are citizens. All because of empty threats and mindless panic. Further---“

Secretary Knox had risen from his seat ostensibly to shake Taft’s hand but with furrowed brow he interrupted

“Empty? Mindless? Have you forgotton December 7th so quickly? No, not the attack in the Harbor, Mr. Taft, the attack by the so called ‘Japanese-Americans’ on the island of Niihau. There were three of these citizens of yours who assisted that downed Zero pilot with a change in their allegiance so quick as to shame Benedict Arnold. This alone is proof that no one can trust any Japanese - even if an American citizen - not to go over to Japan if it is expedient.”

The President’s arms were raised—

“Gentlemen, gentlemen, please calm yourselves down and take a seat. I must decide whether or not to make a law today and I need opinions given that are well-reasoned and not over heated.”

With eyes still glaring in anger, the men slowly sat down.

“Good. Now, Mr. Knox, I would like you to speak first and explain to me why I should sign this bill—slowly Frank.”

Calming himself, Secretary Knox began, "Sir, as you know, I visited the Hawaiian Islands shortly after that terrible attack and personally investigated the incident I mentioned a moment ago. It is very difficult to ascertain the extent of disloyalty, but some is clearly present. In fact, in the report created by Mr. Munson after his extensive investigation of the sympathies and loyalties of Japanese Americans living in California and the West Coast of the United States, he noted the following:

"There are still Japanese in the United States who will tie dynamite around their waist and make a human bomb out of themselves…There will undoubtedly be some sabotage financed by Japan and executed largely by imported agents... In each Naval District there are about 250 to 300 suspects under surveillance."

Also, as you know Mr. President, our navel fleet was decimated at Pearl Harbor and we are thus temporarily weak. While the Japanese should not be able to mount a sustained invasion, they have shown themselves more than capable of striking a severe blow. We will win this war, sir, but we must not allow the enemy any foothold - even any semblance of a foothold. I therefore respectfully ask you to do your utmost as Commander-in-Chief  and sign this bill into law.”

“Thank you for your thoughts, Frank. Now, Robert, why are these good reasons incorrect?”

“Mr. President, I want to say I do appreciate you giving me the opportunity to speak to you today. I feel very strongly about this issue."

"I believe the Japanese-Americans living in our country pose no threat and are actually a source of strength. They love this country and many are willing to die for it. Secretary Knox quoted a bit from the Munson Report but you read the report sir. Let me remind you of a passage he omitted:

"There are still Japanese in the United States who will tie dynamite around their waist and make a human bomb out of themselves. We grant this, but today they are few."

Mr. Hoover and the Federal Bureau of Investigation are well aware of these few and track them as Mr. Taft himself mentioned. To incarcerate what will be well over 100,000 people due to a suspicious few individuals is beyond excessive. There will probably be at least half who will be citizens. That represents about 50,000 to 75,000 American citizens who will be denied their due process rights Mr. President. As a result, they will lose their jobs, businesses, and perhaps most of all their dignity. The Supreme Court may very well overturn this law as well since it is clearly unconstitutional.”

President Roosevelt had tried to listen without interruption but could contain the view he favored no longer.

“They might overturn, but I think not.” he said. “the justices are Americans too and recognize the necessities of war, Robert."

Undaunted, Senator Taft shot back, “Must we surrender our freedoms in order to maintain them?”

“War is a terrible, terrible thing. You know your history Mr. Taft. During that great conflict between the states, my predecessor Lincoln issued numerous executive orders and military regulations without even the initial sanction of Congress.

He declared martial law far from combat zones, seized property, suppressed newspapers, and suspended habeas corpus all because of one thing - he was determined to preserve our country. Presidents must make difficult decisions in grave moments.”

Leaning against the table before the President he took one last shot.

“We cannot succumb to irrational fear, sir. We cannot violate our Constitution simply because some citizens have the face of the enemy. This law would be a genuine travesty and future generations will rise and condemn our actions this day.”

Arching his back and leaning forward the President continued,“You mention fear, Mr. Taft. I seem to recall saying something or another about that in my first inaugural address. We have nothing to fear except fear itself I believe it was. 

If there is one thing I know it is that fear, whether rational or not, paralyzes.  Our country is currently swept with this emotion and no place more so than the beautiful cities on our West Coast. Do you not think the Japanese know this truth?”

Leaning forward with his cheeks beginning to glow red he continued, “Why, a mere five minutes after I began my speech two weeks back, a Japanese submarine rose from the depths and proceeded to fire upon our land sir! Not an island far into the Pacific ocean, but American soil! 

The following two days the fair city of Los Angeles was in a virtual panic over a fictitious second attack! You heard of the newspaper reports."

Slumping back down into his seat, the Senator weakly mumbled,

“There was virtually no damage, Mr. President. It was a timid effort with nothing accomplished.”

“Nothing, you say? That was not an effort at diminishing our military capability but an effort at diminishing our morale and a good one at that. The people cannot fight, Senator, they cannot win if filled with fear. We must give them reason to hope and will do so boldly with a surprise attack of our own within a few short weeks time. In the mean time, we must also remove all causes of anxiety and this includes the fear of attack at home."

The President stared down at the bill before him.

“May future generations forgive me and this country for the loss it will create, but I must do all in my power to ensure victory.”

“I must sign this bill, Robert."

President Roosevelt leaned forward and signed Public Law 503.

Subsequently, approximately 115,000 Japanese-Americans would be interned.

The Supreme Court would uphold the constitutionality of Executive Order #9066 in Korematsu v United States.

The Japanese would surrender to the United States.

President Ronald Reagan would sign into law the Civil Liberties Act, which apologized for the internment on behalf of the U.S. government and authorized a payment of $20,000 to each individual camp survivor. 

"Well of course Korematsu was wrong... but you are kidding yourself if you think the same thing will not happen again... That's what was going on — the panic about the war and the invasion of the Pacific.” Justice Antonin Scalia

Inter arma enim silent leges-"In times of war, the law falls silent." Cicero

"What has been is what will be, and what has been done is what will be done, and there is nothing new under the sun. Is there a thing of which is is said, 'See, this is new'? It has been already in the ages before us." Ecclesiastes 1:9-10


Saturday, October 17, 2015

The Man in the Middle

Rising early on this cold, bitter morning, I realized I was late. Though I wanted to and tried, I just could not get going. I had stayed up late vigorously studying the old Calvinist/Arminian debate and was attending a seminar today at a local hotel. I was really hopeful the renowned speaker could help shed some light on this subject.

As I walked into the hotel, I quickly noticed the crowd of people in front of a breakfast table, wonderfully set up with its array of juices and muffins. I walked over. Sure enough, this was the seminar room.

"It's heresy, Chris. I don't know how anyone can't see how destructive that philosophy is."

I didn't need to know which side he was on-it applied to both. I was at the right place.

As I sipped my cranberry juice, I noticed a painfully skinny young waiter nervously scurrying about the table. Moving a bit too fast, he bumped the table and off tumbled the glass of orange juice a person had just poured.

Horrified, he quickly set about cleaning. I could not help but kneel down and help him clean.

"I am going to get fired," he said, distraught. "I am worthless and don't belong anywhere. My dad was right."

"No, no. I saw how meticulously you had everything prepared," I said gently. "Nobody is worthless."

He smiled weakly and then the doors opened. "You need to go in," he said.

I entered the room. The speaker had a good reputation, and I was looking forward to his presentation. He spent the first couple hours going over the rudimentary aspects of each position and then rose and asked the audience to divide. "Calvinists to one side," he said, " and Arminians to the other."

In my studies, Arminianism had always felt like the correct perspective, but Calvinism was so logical and tight. It just seemed to fit together so well. Realizing I was the last person to move, I reluctantly recognized that I needed to make a decision. I walked to the Calvinist side.

Smiling, the Calvinists greeted me warmly. "I saw you hesitating there," one said.

"Yes," I said, "Tough for me but I decided on Calvinism."

"Well," he said, "maybe that was not the best choice of words. You know, you really did not make a decision."

"Well, I did," I said. "I had to."

"It was just an illusion," he said.

"Illusion? Surely that cannot be."

"I really doubt you are Calvinist. It is probably best for you to walk over to the Arminian side." Rejected, I slowly made my way over to the other side of the room.

"Great!" one said. "I am happy you chose Arminianism! A little indecision I saw there, but you made the right choice!"

"I actually did not choose Arminianism. I had no choice really."

"Wait, now. You always have a choice. God ensures it."

"But I didn't, you see --"

"No. You don't see. I really think you don't belong on the Arminian side."

Befuddled and feeling out of place, I took a few steps over to the middle. Standing alone there, I knew I just did not belong anywhere.

Quietly, I exited the back door.

I saw the skinny waiter with his coat on and trudging slowly out into the bitter cold. I quickly caught up with him.

"Done so soon?" he said. "I thought that seminar went all morning."

"Ah... I don't think that was the right seminar for me." I smiled softly at him. "You know, I could really use a cup of coffee. Missed my usual cup in the rush this morning. Would you like to join me?"

"You know, I think I would. All that preparation this morning, but nothing for myself."

Chatting amiably, we strolled away.


Monday, August 24, 2015

Road trip to Yoderville

Travelling across the sea swells of southeastern Ohio we arrived at our beautiful bed and breakfast. Only not quite so. Faux actually. This was the first time I stayed a night somewhere and from the start to the finish NEVER laid eyes on any employee whatsoever. There was no one at the desk so we called the number listed. We were given a code to our room. When we checked out we simply left. I assume the code was subsequently changed.

We discovered quickly that arriving in Amish country on a Sunday afternoon was a bad move. I am sure that even Chuck Norris could not get a decent meal anywhere within miles. This was Sunday and the place was as quiet as a Chick-Fil-A kitchen on the first day of the week. We ended up going to a Wal-Mart and purchasing some wonderfully fresh food. We noticed a sizable stall on the adjoining property. Empty Amish buggy spots. Apparently even they like Sam Walton--not on Sundays though.

Monday morning we began driving. Our heinies could have become numb from the driving but fortunately there are many places to exit and shop. We noticed that apparently everyone here has the same name.

Sheesh; and they say West Virginians are inbred. Well, we soon found another name. 


Easy to find actually. We just had to follow the road map left by previous buggy horses.


Those are not oil stains, friends. The Amish apparently have no issue with sunglasses (saw one with what could have been a nice pair of Oakley's) but they do horse bun bags. Not sure if these were coming or going from Heini's but I suspect likely leaving Heini's. Makes sense to me. 

Our time there was actually quite nice. These people truly make great cheese. You can sample an assortment and they will even cut it right there. In hindsight, that might not have been a good idea.Would have been nice to have a swallow of water from time to time and maybe even some floss. Would have completed the picture.

Alas, our time in Yoderville was all too short. As they say in their Pennsylvania Dutch,

Hallicher schmierkase !

Saturday, August 8, 2015

Mr. Smith

Becoming one of the greatest science fiction thrillers of all time, The Matrix exploded on the screen in 1999 and brought to wide knowledge the dystopian world where reality was not quite what it appeared to be. The antagonist in the film was called Mr. Smith.
 Agent Smith to be exact.

No matter where you turned in that world, Mr. Smith could be lurking. A police officer?
 Say hello to Mr. Smith.

 Helicopter pilot?

In a dark alley?

There was no escaping him and he could not be defeated. The protagonist was told early in the film:

“A little piece of advice…you see an agent (Smith) you do what we do- Run!” 

This reminded me of another Smith.  A Smith just as devastating in its world as the famous agent. I am talking about the free exercise of religion and a largely forgotten Supreme Court case called Employment Division v Smith.  This was a case way back in 1990 in which some people demanded the right to smoke dope.
 What? How so?

They demanded the freedom to do so under the free exercise of religion. You see they were Native Americans and held that peyote was a part of their faith but the Supreme Court was having none of it and refused but in reaching this decision they abandoned a key protection for religious freedom.

Previously, they had acknowledged that this First Amendment freedom deserved heightened protection (like the rest of the Bill of Rights). The Government could not violate it unless it could show it had a “compelling reason that was narrowly tailored” or in other words they had better have a darn good reason for violating this essential right and had better do it in the least restrictive way possible.

In reaching this decision, they said that a law that was generally applicable to the population (like drug laws) did not have to meet this exacting standard.

Agent Smith was born.

Since then, if someone claimed a violation of their Constitutional right to the free exercise of religion they would have to face Agent Smith and their chances of success were about as likely as the average rebel in The Matrix.
What about cases like Burwell v Hobby Lobby, you might ask?  The government tried to mandate that they had to pay for abortifacients but Hobby Lobby claimed a violation of their religious freedom and won. 
Hobby Lobby did not argue a “free exercise” case however. They knew they could not defeat Smith. No, they argued based on a violation of a law Congress had passed. The Religious Freedom Restoration Act (RFRA).
This is what lawyers have had to resort to in order to gain success when religious freedom is violated. Because they cannot defeat “Agent Smith” they have been forced to try arguing based on other things. They have tried the freedom of speech but have failed as it really does not apply.
Lawyers, though, have had success arguing based on a law passed by the people’s representatives either in Congress or State Houses. The federal RFRA, state RFRAs, employment laws, the 1964 Civil Rights Act etc.
If religious freedom is still maintained, then what is the problem?
The problem is that religious freedom is now only maintained if a majority of people choose to allow it.
If a majority chooses not to, then they will sooner or later direct their representatives to remove protection.
When the Bill of Rights was added to the Constitution, it was to protect minorities from abuse by majorities. It represented basic fundamental rights that all people should have whether they were in the majority or not. With the Supreme Court effectively removing religious freedom from this protection, by placing the indefatigable Agent Smith before it, believers are placed at the mercy of the general population.
How would believers gain security in their lives if a majority of the American population were to turn against them?

They can't.

In The Matrix, the only way Agent Smith could be defeated was by someone referred to as “The One”. Someone who was prophesied, someone who would die but be miraculously raised to life, someone who was beyond the Matrix. someone new- as it says in the Greek, Neos.


Sound familiar?

Unless a majority of Americans choose to support religious freedom, unless Jesus the Christ is revived in the American heart, then Mr. Smith and his hordes will never be defeated.

As Morpheus explained in the Matrix:

"At first, all they wanted was to be treated as equals, entitled to the same human inalienable rights. Whatever they were given, it was not enough...all they needed to control...was something to occupy our mind."

Until American hearts and minds are released, there will be no sure footing for religious adherents.

Come quickly, long ago prophesied one. America needs You.

Tuesday, July 14, 2015

Of Fists and Flags

Recently I spent an evening with what was almost entirely a large group of black Christians as they honored Jesus Christ utilizing a variety of art forms--vocalists, dance, musicians, expressive speeches all carefully crafted to bring Christians together in worship. I was there to support my daughter, who was performing with a group of teenage dancers--all white. No matter. We were Christians!

 "There is neither Jew nor Greek, there is neither slave nor free, there is no male and female, for you are all one in Christ Jesus."

As the evening drew to its finale, the organizers brought together all the performers on stage. As the performers assembled, the scene unexpectedly shifted to a political one. Not knowing what was to transpire, the performers had been told to "follow the lead of the organizers at the front" and they dutifully did so. They were marched back and forth across the stage as the screen in back displayed various scenes. There were images of blacks with hands raised saying "hands up, don't shoot" mixed with an image of Martin Luther King Jr. melded together with Barack Obama walking together, hand in hand, down the National Mall.

My surprise began to turn to outright anger as this display ended with all the performers stopping and raising their clenched fists forward. This symbolic act was one I instantly recognized as hearkening back to this:

This was the old Black Panther Party--a group known for advocating militant action in pursuit of its political goals.

How could this be?!  The sight of these teenage white girls with fists raised in solidarity with violent black protest was outrageous.

As the program ended and hugs and congratulations were extended all around, I grew more reflective. I knew the young, black Christian girl who had organized the event. Her heart was filled with love for Christ and her mixing of King (non-violent protester) with the Black Panthers (violent protesters) told me she did not understand the symbolic nature of that raised fist. In discussions afterwards, I realized many others did not understand the fist as well. That symbol was for me completely offensive but to others it meant something different.

This got me to thinking about another symbol that is currently wreaking havoc across America:

For me, this symbol represents self determination, a long ago fight by people I identified with, whose attempt to become a nation failed. The sight of that flag for me brings thoughts of valor on the battlefield, honor, self-sacrifice.

I have no doubt what that symbol would represent to that group of black Christians and it is completely different than mine.

It would likely conjure up images of blacks dangling from trees on ropes, being water hosed, or the KKK.

Symbols are powerful things and their meanings are different to different people and can change over time. We live in this world and must pay attention to it, but as I age, more and more what is seen in this world fades and what is unseen grows brighter as spoken in the old hymn:

Turn your eyes upon Jesus,
Look full in His wonderful face,
And the things of earth will grow strangely dim,
  In the light of His glory and grace.

Blacks need to replace the clenched fist with an upraised open hand.

Whites need to replace earthly flags with heavenly ones.

If we as Christians are to fulfill the prayer of Jesus:

"I do not ask for these only, but also for those who will believe in me through their word, that they may all be one, just as you, Father, are in me, and I in you, that they also may be in us, so that the world may believe that you have sent me. "

then we must not let our eyes rest too closely on things of this earth, but instead:

"Let us also lay aside every weight, and sin which clings so closely, and let us run with endurance the race that is set before us,  looking to Jesus, the founder and perfecter of our faith."

#confederateflag #blackpanthers

Saturday, July 4, 2015

Golden Triangle of Freedom

" of the free and home of the brave..."
How many times have you heard those words sung as you rise from your seat with heart stirring?

The great thinker Augustine argued that the best way to define a people is by their "loved thing held in common," or what it is they altogether love supremely. Is there any word that would define the common American love better than freedom? When this erupted on the international scene 239 years ago --

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

the world changed and Americans' passion for freedom has never really vanished. Sadly, as any formerly star struck lover can tell you, time has a way of unraveling the most intense of emotions. How can our love affair with freedom continue? What must be done to sustain our love affair indefinitely?

The modern day Alexis de Tocqueville, Os Guinness, has considered this question deeply and suggested for this American passion to endure, three things are required. A three pointed triangle, if you will, in which all three support one another in a never ending enduring state.

Here are the components of this non-ending triangle:
  1. Freedom requires virtue
  2. Virtue requires faith
  3. Faith requires freedom
and so on infinitely.

The first of these seems self evident and difficult to deny. Virtue, that old word which means high moral excellence, is truly indispensable. Who watching in recent years the wild rioting in the streets have not despaired over the ruinous effect of low morals?

It inevitably follows that, in order to avoid chaos, laws must be passed and enforced to counter bad behavior. Freedom, then, is diminished. As Benjamin Franklin said so long ago:

"No longer virtuous, no longer free; is a maxim as true to a private person as a commonwealth."

As virtue decreases, laws increase, and freedom declines.

The second point of the triangle, that virtue requires faith of some kind, was something quite clear to the Founders of America. Listen to these words from George Washington in his Farewell address in 1796:

"Let it simply be asked: Where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths which are the instruments of investigation in courts of justice? 

And let us with caution indulge the supposition that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle."

If there is only a view of life as dust to dust, and you are presented with an opportunity to commit a crime in which you believe you can get away with (thus avoiding any lost respect or pain from punishment), then, truly, why not? Conscience? No worries. That is simply the product of social and cultural conditioning, moderns tell us.

In contrast, religion provides an eternal view in which our actions in this life have repercussions in the next.

As faith decreases, virtue decreases, laws increase, and freedom declines.

The last point of the triangle, faith requires freedom, was also readily apparent to the Founders. They were coming out of centuries of bloodshed, the many Wars of Religion and the painfully slow realization that faith needed to be free. As James Madison stated in his monumental work, "Memorial and Remonstrance":

"We hold it for a fundamental and undeniable truth that religion or the duty which we owe to our Creator and the manner of discharging it, can be directed only by reason and conviction, not by force or violence."

State mandated religion would only stifle faith, not encourage it. This realization they enshrined in the first clause of the First Amendment:

"Congress shall make no law respecting the establishment of religion..."

They also understood that for faith to flourish, it must not be restricted in its exercise. We have witnessed in the past century the debilitating effect severe restrictions on the exercise of religion had in the Soviet Union and the eastern bloc. East Germany to this day is still significantly more atheist than West Germany. Faith struggles to flourish in a society that does not grant it the freedom to actively work in the public square.

"...or prohibiting the free exercise thereof..."

As freedom decreases, faith decreases, virtue decreases, laws increase, and freedom declines.

As I wait to witness the annual fireworks display this July 4,  I am feeling like a popular blogger who said recently:

"These patriotic holidays are becoming more reflective than they are celebratory. I feel like a divorcee on his wedding anniversary. I’m thinking about what once was, rather than rejoicing over what currently is."

I believe that faith and virtue are declining in America and thus, slowly, is freedom. 

“From whence shall we expect the approach of danger? Shall some trans-Atlantic military giant step the earth and crush us at a blow? Never. All the armies of Europe and Asia...could not by force take a drink from the Ohio River or make a track on the Blue Ridge in the trial of a thousand years. No, if destruction be our lot we must ourselves be its author and finisher.

As a nation of free men we will live forever or die by suicide.”-Lincoln

Sunday, June 14, 2015

Brewing Storm

Peering through a window, I watch as the trees begin to bend and the leaves start to fall. As I step outside to take a look, I'm immediately greeted by wind and the realization that nature is stirring.

Retreating inside, I sit and continue to read the oral arguments in the case Obergefell v Hodges.

This is the gay marriage case currently before the Supreme Court. When argued back on April 28th, Justice Scalia inquired of the attorney asking the Court to mandate gay marriage:

"Is it conceivable that a minister who is
 authorized by the State to conduct marriage can decline
 to marry two men if indeed this Court holds that they
have a constitutional right to marry?"
This query roused the liberal members of the Court who quickly denied such a thing and attempted to douse this line of questions concluding with Justice Breyer saying,

"It's called Congress shall make no law respecting the freedom of religion..."

I suspect a wry smile may have been present on his face. He supports religious freedom, as long as it is within the four walls of the church that is--outside... not so much. He was, after all, one of the justices who voted in Christian Legal Society v Martinez (2010) to stop a college Christian society from amazingly trying to exclude those who did not hold Christian beliefs.  This resulted in Justice Alito saying,

 "I can only hope that this decision will turn out to be an aberration." 

Unfortunately, I don't think so.

As is often the case at oral argument, questions asked are designed to lead the conversation a particular direction and maybe, just maybe, gain an undesired admission.

A few moments later, Chief Justice Roberts pulled the conversation back:

"Counsel, I'd like to follow up in a line of questioning that Justice Scalia started. We have a concession from your friend that clergy will not be required to perform same ­sex marriage, but there are going to be harder questions. Would a religious school that has married housing be required to afford such housing to same ­sex couples?"

When pressed further by Justice Alito, after stammering around a bit in a vain attempt to avoid the question, the attorney finally made the undesired admission:

" it's certainly going to be an issue. I... ­­ I don't deny that.  I don't deny that, Justice Alito.  It is... ­­ it is going to be an issue."

The irreverent question asked by Scalia had produced its desired result.

Outside my window, I see the trees bend just a little further.

A storm is brewing.

Saturday, May 16, 2015

Just the Rain

Flowing, flowing

across my lips

endlessly streaming

Just the rain

Rise up, rise up

the path is before you

the affliction is behind

Just the rain

Walk on, walk on

the salt is deceiving

the pain is deluding

Just the rain

Sunday, April 5, 2015

The Open Box: Bush v Gore Revisited

"The most perverse misuse of the Equal Protection Clause I've seen in my 40 years of law."

Alan Dershowitz, Harvard Law Professor on the Bush v Gore decision

In the crashing aftermath of the landmark Bush v Gore decision in 2000, a case in which the Court effectively picked the President by a 5-4 margin, entirely along partisan lines, many were enraged. How could the five justices completely ignore their openly avowed conservative principles and, in bold, hypocritical fashion, render a decision based simply on power?

How could this be?

Many of us are familiar with the old metaphor of "Pandora's Box". Based on Greek mythology, it was a story of a woman named Pandora who possessed a box that contained all the evils of the world. Unable to restrain herself, she cracked open the forbidden box. Suddenly, out flew these demons, and try as she may, they could not be put back in the box.

                                                    Today the phrase "to open Pandora's box" means to perform an action that may seem small or innocent, but that turns out to have severely detrimental and far-reaching consequences.

You see, what happened in Bush v Gore cannot be explained unless you go back in time, back to the days when well meaning justices, thinking of equity in their day, quietly lifted the lid to the forbidden box.

In the Bush v Gore decision, interestingly the Court only relied on four prior decisions. (One other was mentioned in a perfunctory manner). These decisions were:

Gray v Sanders (1963)
Reynolds v Sims (1964)
Harper v Virginia Bd. of Elections (1966)
Moore v Ogilvie (1969)

All of these decisions were during the era of Chief Justice Earl Warren, a man determined to make things right--even if that meant departing from the Constitution. Justice indeed was achieved but did the end justify the means?

Each of these cases were voting rights cases in which people were unjustly denied proper voting rights. From giving unequal voting power to rural counties, to improper apportionment, to an inability to register, to finally an improper formula for electors. In each case, Warren's Court was clearly achieving justice by invalidating those state laws. All based on the famous dictum stated in the first case, "One Person-One Vote", a concept that has since become ingrained in the conscience of American society.There was only one problem:

Voting rights had been left to the states.

A dissenting justice, Frankfurter, quoted Representative Bingham, the author of the 14th Amendment (while going through the entire history of the voting rights):

"To be sure we all agree, and the great body of the people of this country agree, and the committee thus far in reporting measures of reconstruction agree, that the exercise of the elective franchise, though it be one of the privileges of a citizen of the Republic, is exclusively under the control of the States."

The Warren court had run roughshod over the rights of states and left behind the Constitution. What did the means matter? Did not the end result of justice for the voter justify it?

In a somber warning, Justice Harlan said this in dissent in Reynolds v Sims:

"What is done today deepens my conviction that judicial entry into this realm is profoundly ill-advised and constitutionally impermissible. As I have said before, I believe that the vitality of our political system, on which in the last analysis all else depends, is weakened by reliance on the judiciary for political reform."

Let's return now to 2000. Though accused of departing from their conservative principles, there is one legal principle held by all justices of every judicial stripe.

A legal principle by which judges are obliged to respect the precedent established by prior decisions. If Courts flip flopped back and forth from session to session society would have no firm footing upon which to live lives. Courts will reluctantly depart from this principle only rarely. Conservative jurist Scalia has said he will follow precedent, even if unconstitutional, if it involves a new legal principle that has been "generally accepted by society". (p 412 Reading Law)

Who would deny that "one person one vote" has been generally accepted?

The "Pandoras" on the Court in 2000 desperately tried to put the ghosts back in the "state" box. Witness their vain attempts:

"When questions arise about the meaning of state laws, including election laws, it is our settled practice to accept the opinions of the highest courts of the States as providing the final answers."-Stevens

"The extraordinary setting of this case has obscured the ordinary principle that dictates its proper resolution: Federal courts defer to a state high court's interpretations of the State's own law. This principle reflects the core of federalism, on which all agree. "The Framers split the atom of sovereignty. It was the genius of their idea that our citizens would have two political capacities, one state and one federal, each protected from incursion by the other." Ginsburg


 They were about 40 years too late.
The demons could not be returned to the box.

"Many liberals were brought up to believe that whatever happened to the other branches of government, the Supreme Court belonged to 'us'. It was 'ours'. Bush v Gore demonstrated the harm in empowering the courts to become actively involved in solving the nations's political problems--a harm liberals ignored as long as the solutions were ones they favored."

Dershowitz-Supreme Injustice (p 196)


Thursday, February 26, 2015

Broken Together

What do you think about when you look at me?

I know we are not the fairy tale you dreamed we would be
You wore the veil, you walked the aisle, you took my hand

  We dove into a mystery

How I wish we could go back to simpler times
Before all our scars and all our secrets were in the light
Now on this hallowed ground, we've drawn the battle lines

Can we make it through the night ?

It's going to take much more than promises this time
Only God can change our minds

Maybe you and I were never meant to be complete
Could we just be broken together?

If you can just bring your shattered dreams and I'll bring mine

Could healing still be spoken and save us?

The only way we'll last forever is broken together

How it must have been so lonely by my side
We were building kingdoms and chasing dreams and left love behind
I'm praying God will help our broken hearts align
I won't give up the fight

Please--Let's be broken together

Casting Crowns