Legal Writing for Legal Reading!

Cert. Denied In Challenge To Alabama Prisoner Grooming Restrictions

This is from religionclause.blogspot.com which you can find here:

“The U.S. Supreme Court yesterday denied review in Knight v. Thompson, (Docket No. 15-999, cert. denied 5/2/2016). (Order List.) In the case, the U.S. 11th Circuit Court of Appeals upheld the Alabama prison system’s grooming requirement that prohibited Native American inmates from wearing long hair, even for religious reasons. (See prior posting.) AP reports on the denial of certiorari.”

You can learn more about this issue here.


Yessource: Live in Pensacola, 4/9/91

Here are my latest uploads to YesSource, my Yes rarities youtube page (about which you can read here).  This post is another addition to my series of Yes music posts and a collection of all my Yes-related posts is here.  Yes, of course, is a, if not the, premier progressive rock band, and I am an enormous fan of it.

You can see all of my Yessource uploads here.

My latest YesSource uploads can be found here:

Yessource: The Dialogue Sessions

Here are my latest uploads to YesSource, my Yes rarities youtube page (about which you can read here).  This post is another addition to my series of Yes music posts and a collection of all my Yes-related posts is here.  Yes, of course, is a, if not the, premier progressive rock band, and I am an enormous fan of it.

You can see all of my Yessource uploads here.

My latest YesSource uploads can be found here:

Alleged Trauma

Every now and again I come across a fantastic article the warrants posting here; I recently came across one in Splice Today by my old philosophy professor Dr. Crispin Sartwell from back in my Penn State days which, I thought, was pretty insightful. Be edified.


The government isn’t required to intervene in your relationship with your mom.

It seems that his lawyers’ arguments will not, as you might expect, turn on Phillips’s right to practice his religion, or right not to be forced to violate his religion, but on his right to free expression. The man is a serious baker: his operation is the “Masterpiece Cakeshop,” and he considers cakes his art. The argument, according to The New York Times, is likely to turn on whether, in the practice his art, he can be forced to express a message he repudiates.

But whatever the defense strategy, I take it as a general principle that there should be very broad protections for conscientious objection on religious or moral grounds. I think, for example, that pacifists shouldn’t be forced to drop Agent Orange on peasant villages. I think doctors whose religion or moral beliefs prohibit abortion should under no circumstances be forced to perform one. I don’t think you should be forced, say, to Tweet views you disagree with. I don’t think you should be forced to vote for a particular candidate. These last two strike me as obvious. The principle is the same.

Ask yourself this question: In human history, which has created worse problems, refusal of the demands of the state, or capitulation to it in the face of one’s own moral or religious misgivings? The latter has been the cause of death of hundreds of millions of people. The former hasn’t. You may have to overcome your little scruples in order to shoot people in an unjust war or participate in genocide. Avoiding such insane moral disasters requires a principle respecting the individual conscience, specifically on matters that most people or the government regard as obvious and settled.

Gay marriage isn’t genocide, and I don’t have any moral misgivings about it. But I think it brutalizes someone to force them to violate their own conscience; it’s a form of assault, a moral assault, an assault on the mind and on the spirit. At a minimum, I think you’d need to show that disastrous social effects would result from permitting people not to participate in order to justify something like that.

This sort of case is sometimes compared to Jim Crow segregation, and it’s against the law to refuse to serve someone in your private business on the grounds of race. And there is no denying that, as with race, there has been systematic and terrible discrimination against gay people, some of it enshrined into law, as in the Defense of Marriage Act.

However, the situations are also extremely different. Jim Crow segregation limited the actions of African-Americans, hedged them about with restrictions, made simple needs difficult or impossible to fill, expressed a society-wide devaluation and degradation of black people. Mullins and Craig are just not in that situation at all. All they have to do is go to another bakery. Almost every other baker in Colorado would bake them a wedding cake. And of course, racial segregation was itself legally enforced, though individual business owners also did object to ending it at their own lunch counters. There are no remaining legal restrictions on gay marriage.

What if Phillips was claiming that he objected to making cakes for black people on religious grounds? Well, interesting problem, but no one I know of is currently making claims like that. It’s not an actual issue. If it were, we’d have to judge it in the context of how serious and widescale the limitations on people’s actual lives actually were. You’d have to identify a state interest in ameliorating systemic discrimination. I don’t believe that this case raises those issues in the same way.

Mullins admitted the triviality of the practical problem to the Times: “Of course we could get a cake somewhere else,” he said, and I assume that they did. “This was about us being turned away from and denied service at a business because of who we are and who we love.” Really, what the couple say is driving them is the alleged trauma, carried out in front of the mother of one of the grooms. Phillips recalls telling them, “I’ll make you birthday cakes, shower cakes, cookies, brownies. I just can’t make a cake for a same-sex wedding.” Mullins described the experience: “We were mortified and just felt degraded, and it was all the worse to have Charlie’s mom sitting there with us. You don’t want your mom to see something like that happen to you.”

This gives one baker way too much emotional power over the lives of his almost-customers. I believe my response in their situation would’ve been to roll my eyes, think that Phillips was a wrong-headed religious fanatic, and buy my cake somewhere else. Surely Craig and Mullins are aware that such prejudices or religious objections exist. In this case, it presented them with a very slight inconvenience and something that could be interpreted as an insult. Insult Phillips back, or tell him that Jesus is love or whatever, and stomp out, okay?

And the government isn’t required to intervene in your relationship with your mom.

I am, in other words, unimpressed by their alleged trauma, and think that, in the whole ordeal, Phillips has had worse practical consequences. Meanwhile, the Times reporter found Phillips in his shop, decorating a cake with the likeness of Martin Luther King (which admittedly is intended to be devoured). He says he’ll happily serve gay people, just not for a wedding, which he considers a religious ceremony that, when performed between two men, is incompatible with his own belief.

Let’s say the Supreme Court rules in Phillips’ favor. Would you seriously expect gay people to have a problem getting wedding cakes or hiring a deejay? It’s not an actual problem. But creating cakes through state-mandated forced labor really would be.

Originally published on September 18, 2017 in Splice Today and can be found here.


A Collection of Contract and Debt Collection Writings by James W. Cushing, Esquire

Over the course of my career, I have written extensively on a wide variety of contract law issues and debt collection legal principles.  These writings have been published in The Legal IntelligencerUpon Further Review, and The Pennsylvania Family Lawyer as well as posted onto my blog.  I have collected these articles and blog posts and have listed them below.  Thanks for reading!

My Articles:


When Are Prison Chaplains “State Actors”?

This is from religionclause.blogspot.com which you can find here:

In an opinion recommending dismissal of an inmate’s First Amendment and RLUIPA claims, a California federal magistrate judge held that some decisions by prison staff chaplains do not amount to “state action” for constitutional purposes.  In Wolcott v. Board of Rabbis of Northern and Southern California, 2016 U.S. Dist. LEXIS 57528 (ED CA, April 29, 2016), plaintiff sued the former and current Jewish chaplains at the California Substance Abuse Treatment Facility because he was not allowed to convert to Judaism.  The refusal to allow his conversion stemmed from policies of the Southern California Board of Rabbis and the California Commission of Jewish Chaplains — to whom the various Department of Corrections Jewish Chaplains report– that disallow conversion by inmates serving life sentences. The court concluded that the chaplains were not state actors, finding that neither the “public function” nor the “joint action” doctrines applied here. The opinion reads in part:

Whether an inmate is a follower of a particular religion is an ecclesiastical answer to a religious doctrine, not an administrative determination; whereas a decision whether an inmate should be put on an internal prison list as following a particular religion is an administrative determination…, and Plaintiff does not allege that he is not on the list identifying him as Jewish for purposes within the facility, nor do his allegation imply this….

The only religious activities that Plaintiff alleges have been infringed on are that he was not allowed to attend [clergy visits from] the Aleph Institute … [or] purchase religious packages [from] the Aleph Institute that regarded him as a non-Jew…. Plaintiff was prohibited from engaging in religious activities in these instances by the Aleph Institute — which is an outside, religious organization that has not been, and cannot be, pursued in this action.

You can learn more about this issue here.

Joe Arcieri Songs: Siddhartha

Joe Arcieri is a friend of mine who I worked with for many years during my ten years working for Acme Markets.  Joe, when not stocking milk or saving lives as a nurse, is an excellent guitar player.  I have had the privilege, from time to time, of (badly) plunking my bass guitar with Joe as he melts a face or two with a great solo.

As great musicians do, Joe has written some of his own songs and keeps a soundcloud site to post them.  When I have opportunity, I will post his music here as well.

Here is his composition called “Siddhartha” which you can find here.

Here are the links to the previously posted songs by Joe:

Sorry, scientists. Religion is here to stay.

Every now and again I come across a fantastic article the warrants posting here; I recently came across one in The Week which, I thought, was pretty insightful. Be edified.


In 1966, just over 50 years ago, the distinguished Canadian-born anthropologist Anthony Wallace confidently predicted the global demise of religion at the hands of an advancing science: “Belief in supernatural powers is doomed to die out, all over the world, as a result of the increasing adequacy and diffusion of scientific knowledge.” Wallace’s vision was not exceptional. On the contrary, the modern social sciences, which took shape in 19th-century western Europe, took their own recent historical experience of secularization as a universal model. An assumption lay at the core of the social sciences, either presuming or sometimes predicting that all cultures would eventually converge on something roughly approximating secular, Western, liberal democracy. Then something closer to the opposite happened.

Not only has secularism failed to continue its steady global march but countries as varied as Iran, India, Israel, Algeria, and Turkey have either had their secular governments replaced by religious ones, or have seen the rise of influential religious nationalist movements. Secularization, as predicted by the social sciences, has failed.

To be sure, this failure is not unqualified. Many Western countries continue to witness decline in religious belief and practice. The most recent census data released in Australia, for example, shows that 30 percent of the population identify as having “no religion,” and that this percentage is increasing. International surveys confirm comparatively low levels of religious commitment in western Europe and Australasia. Even the United States, a long-time source of embarrassment for the secularization thesis, has seen a rise in unbelief. The percentage of atheists in the U.S. now sits at an all-time high (if “high” is the right word) of around 3 percent. Yet, for all that, globally, the total number of people who consider themselves to be religious remains high, and demographic trends suggest that the overall pattern for the immediate future will be one of religious growth. But this isn’t the only failure of the secularization thesis.

Scientists, intellectuals, and social scientists expected that the spread of modern science would drive secularization — that science would be a secularising force. But that simply hasn’t been the case. If we look at those societies where religion remains vibrant, their key common features are less to do with science, and more to do with feelings of existential security and protection from some of the basic uncertainties of life in the form of public goods. A social safety net might be correlated with scientific advances but only loosely, and again the case of the U.S. is instructive. The U.S. is arguably the most scientifically and technologically advanced society in the world, and yet at the same time the most religious of Western societies. As the British sociologist David Martin concluded in The Future of Christianity (2011): “There is no consistent relation between the degree of scientific advance and a reduced profile of religious influence, belief, and practice.”

The story of science and secularization becomes even more intriguing when we consider those societies that have witnessed significant reactions against secularist agendas. India’s first prime minister, Jawaharlal Nehru, championed secular and scientific ideals, and enlisted scientific education in the project of modernization. Nehru was confident that Hindu visions of a Vedic past and Muslim dreams of an Islamic theocracy would both succumb to the inexorable historical march of secularization. “There is only one-way traffic in Time,” he declared. But as the subsequent rise of Hindu and Islamic fundamentalism adequately attests, Nehru was wrong. Moreover, the association of science with a secularising agenda has backfired, with science becoming a collateral casualty of resistance to secularism.

Turkey provides an even more revealing case. Like most pioneering nationalists, Mustafa Kemal Atatürk, the founder of the Turkish republic, was a committed secularist. Atatürk believed that science was destined to displace religion. In order to make sure that Turkey was on the right side of history, he gave science, in particular evolutionary biology, a central place in the state education system of the fledgling Turkish republic. As a result, evolution came to be associated with Atatürk’s entire political programme, including secularism. Islamist parties in Turkey, seeking to counter the secularist ideals of the nation’s founders, have also attacked the teaching of evolution. For them, evolution is associated with secular materialism. This sentiment culminated in the decision this June to remove the teaching of evolution from the high-school classroom. Again, science has become a victim of guilt by association.

The U.S. represents a different cultural context, where it might seem that the key issue is a conflict between literal readings of Genesis and key features of evolutionary history. But in fact, much of the creationist discourse centres on moral values. In the U.S. case too, we see anti-evolutionism motivated at least in part by the assumption that evolutionary theory is a stalking horse for secular materialism and its attendant moral commitments. As in India and Turkey, secularism is actually hurting science.

In brief, global secularization is not inevitable and, when it does happen, it is not caused by science. Further, when the attempt is made to use science to advance secularism, the results can damage science. The thesis that “science causes secularization” simply fails the empirical test, and enlisting science as an instrument of secularization turns out to be poor strategy. The science and secularism pairing is so awkward that it raises the question: Why did anyone think otherwise?

Historically, two related sources advanced the idea that science would displace religion. First, 19th-century progressivist conceptions of history, particularly associated with the French philosopher Auguste Comte, held to a theory of history in which societies pass through three stages — religious, metaphysical, and scientific (or “positive”). Comte coined the term “sociology” and he wanted to diminish the social influence of religion and replace it with a new science of society. Comte’s influence extended to the “young Turks” and Atatürk.

The 19th century also witnessed the inception of the “conflict model” of science and religion. This was the view that history can be understood in terms of a “conflict between two epochs in the evolution of human thought — the theological and the scientific.” This description comes from Andrew Dickson White’s influential A History of the Warfare of Science with Theology in Christendom (1896), the title of which nicely encapsulates its author’s general theory. White’s work, as well as John William Draper’s earlier History of the Conflict Between Religion and Science (1874), firmly established the conflict thesis as the default way of thinking about the historical relations between science and religion. Both works were translated into multiple languages. Draper’s History went through more than 50 printings in the U.S. alone, was translated into 20 languages and, notably, became a bestseller in the late Ottoman empire, where it informed Atatürk’s understanding that progress meant science superseding religion.

The conflict model of science and religion offered a mistaken view of the past and, when combined with expectations of secularization, led to a flawed vision of the future. Secularization theory failed at both description and prediction. The real question is why we continue to encounter proponents of science-religion conflict. Many are prominent scientists. It would be superfluous to rehearse Richard Dawkins’ musings on this topic, but he is by no means a solitary voice. Stephen Hawking thinks that “science will win because it works”; Sam Harris has declared that “science must destroy religion”; Stephen Weinberg thinks that science has weakened religious certitude; Colin Blakemore predicts that science will eventually make religion unnecessary. Historical evidence simply does not support such contentions. Indeed, it suggests that they are misguided.

So why do they persist? The answers are political. Leaving aside any lingering fondness for quaint 19th-century understandings of history, we must look to the fear of Islamic fundamentalism, exasperation with creationism, an aversion to alliances between the religious Right and climate change denial, and worries about the erosion of scientific authority. While we might be sympathetic to these concerns, there is no disguising the fact that they arise out of an unhelpful intrusion of normative commitments into the discussion. Wishful thinking — hoping that science will vanquish religion — is no substitute for a sober assessment of present realities. Continuing with this advocacy is likely to have an effect opposite to that intended.

Religion is not going away any time soon, and science will not destroy it. If anything, it is science that is subject to increasing threats to its authority and social legitimacy. Given this, science needs all the friends it can get. Its advocates would be well advised to stop fabricating an enemy out of religion, or insisting that the only path to a secure future lies in a marriage of science and secularism.

By Peter Harrison and published in The Week on September 12, 2017 and can be found here.


A Collection of Landlord/Tenant Law Writings by James W. Cushing, Esquire

Over the course of my career, I have written extensively on a wide variety of landlord/tenant law issues and legal principles.  These writings have been published in The Legal IntelligencerUpon Further Review, and The Pennsylvania Family Lawyer as well as posted onto my blog.  I have collected these articles and blog posts and have listed them below.  Thanks for reading!

My Articles:


Christian Retreat Center Not Subject To Hotel Room Tax

This is from religionclause.blogspot.com which you can find here:

“In Susquehanna County Commissioners v. Montrose Bible Conference, (PA Commonwlth. Ct., April 21, 2016), a 3-judge appellate court panel upheld a lower court’s ruling that a retreat center operated by a Christian religious organization is not subject to the county’s hotel room rental tax.  While most of the decision focused on a procedural issue, in a footnote the court set out the substantive conclusion:

Even if the County had preserved its issue in a post-trial motion, the trial court properly concluded that MBC is not subject to the hotel tax because the County failed to establish that MBC is a “hotel.”… [S]ection 3 of the Ordinance defines a “hotel” as a structure that holds itself out “as being available to provide overnight lodging . . . for consideration to persons seeking temporary accommodations.” Here, MBC holds itself out as a religious facility and does not provide lodging to persons merely seeking overnight accommodations.

PennRecord reports on the decision.”

You can learn more about this issue here.

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