judicialsupport

Legal Writing for Legal Reading!

Archive for the tag “assignment”

Title VII’s Religious Organization Exemption Protects Salvation Army

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

In Garcia v. Salvation Army(D AZ, Sept. 12, 2016), an Arizona federal district court dismissed a Title VII religious discrimination claim brought against the Salvation Army by a former social services coordinator for the organization.  Plaintiff claimed that she was subjected to discrimination, retaliation, and hostile
work environment after she stopped attending services at the Salvation Army’s Estrella Mountain Corps where she was employed.  The court held that Title VII’s religious organization exemption applies to plaintiff’s claim, and that the Salvation Army did not waive the defense by failing to assert it as an affirmative defense.

You can learn more about this issue here.

Advertisements

Company Settles With EEOC Over Firing of Seventh Day Adventist

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

The EEOC announced last week that North Carolina-based Greenville Ready Mixed Concrete, Inc., has agreed to a $42,500 settlement in the EEOC’s suit (see prior posting) against it for firing a Seventh Day Adventist employee who refused a Saturday work assignment. The company has also agreed to a 5-year consent decree requiring it to create an anti-discrimination policy, engage in employee training, post notice about the lawsuit and submit periodic reports to the EEOC.

You can learn more about this issue here.

 

Church’s RLUIPA Claim Dismissed, But Defamation Claim Moves Forward

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

In Riverside Church v. City of St. Michael, (D MN, Aug. 31, 2016), a Minnesota federal district court dismissed a church’s RLUIPA and free exercise claims, but allowed the church to proceed on its free speech and defamation claims. A Christian and Missionary Alliance congregation attempted to purchase a building formerly used as a movie theater but could not obtain city zoning approval.  Eventually the city amended its zoning ordinance to allow religious assemblies, among others, in the relevant zoning district.  The Church however sued over the past zoning denials, and over an allegedly false public statement the city made as to why the Church withdrew from negotiations with the city.  In dismissing the Church’s RLUIPA claim, the court concluded that neither the substantial burden nor equal terms provisions of the law were violated.  The court also pointed to a less-often used safe-harbor provision in RLUIPA that allows the city to “avoid the pre-emptive force” of the statute by taking action to eliminate the substantial burden imposed by a policy.  In allowing the Church’s free speech claim to proceed, the court concluded that questions remained as to whether the ban on religious assemblies in the relevant zoning district was narrowly enough tailored to the city’s traffic safety concerns.

You can learn more about this issue here.

What is the purpose of our economic activity?

This article is part of my posts on the economic system of distributism.  This is from practicaldistributism.blogspot.com which you can find here:

____________

Based on a talk given at
The American Chesterton Society Conference
5 August, 2016
When we look at the economic conduct of mankind and ask ourselves why the human race engages in such activities, I suppose that everyone would admit that we do so in order to produce goods and services for our use. So far, so good. But I submit there are two contrasting ways of looking at this activity and the products that result from it. This contrast can become clear if I juxtapose two quotations that exhibit two very different attitudes toward the economic activity of mankind. The first is from St. Thomas Aquinas, who wrote that “…the appetite of natural riches is not infinite, because according to a set measure they satisfy nature; but the appetite of artificial riches is infinite, because it serves inordinate concupiscence….” (1) St. Thomas was here contrasting real economic goods – “natural riches” – with “artificial riches” – money and other surrogates for real wealth. The former serve us, they “satisfy nature,” and we desire only enough of them as we can reasonably use, for there is only so much stuff which any person can actually use, and if we acquire more than that, we must resort to devices such as renting storage bins in order to keep our extra and unnecessary possessions, something which in St. Thomas’ time happily did not exist. But even in the thirteenth century it was easier to store up money than actual physical things, and today this is incomparably easier, since bank statements and stock certificates take up very little space. But these sorts of goods can serve “inordinate concupiscence,” for there is a constant temptation to acquire and retain more than we really need or that can possibly serve any genuine human need.

My second quote is from the late Paul Samuelson, winner of a Nobel prize in economics, who wrote

An objective observer would have to agree that, even after two centuries of rapid economic growth, production in the United States is simply not high enough to meet everyone’s desires. If you add up all the wants, you quickly find that there are simply not enough goods and services to satisfy even a small fraction of everyone’s consumption desires. Our national output would have to be many times larger before the average American could live at the level of the average doctor or big-league baseball player. (2)

Here we have two opposed conceptions of the purpose of economic activity, one which is focused primarily on what is natural to humanity, which fulfills human needs, and the second which deliberately abstains from any moral consideration of human desires. If someone wants something, that’s all that matters. The economy exists to satisfy any and all desires.

Now I should note that Aquinas is not asserting that it’s only our basic needs for food or shelter or clothing that are natural. The purposes for which we need material goods can be broadly divided into two parts: first, the absolutely necessary goods, sufficient food, water, shelter, to keep the human race alive. But if we stopped there we would be like ants or bees. They also engage in work to provide for themselves these necessities of life. Human beings, however, are rational animals, that is, our capacities surpass the merely material level, and hence for us a proper human life is not limited simply to survival. We need objects of beauty, music, books, even, in some measure, devices and inventions that make life easier or save time and effort. Without these a properly human life is impossible or difficult. But all the same, St. Thomas sets up human nature as the standard against which man’s economic activity must be measured, whereas Samuelson simply takes each and every demand for a good or service as a given.

I trust I don’t need to belabor which of these two attitudes toward economic activity and material things ought to characterize a Christian, whether Catholic, Protestant or Orthodox. Holy Scripture itself is quite clear on this point:

…if we have food and clothing, with these we shall be content. But those who desire to be rich fall into temptation, into a snare, into many senseless and hurtful desires that plunge men into ruin and destruction. For the love of money is the root of all evils; it is through this craving that some have wandered away from the faith and pierced their hearts with many pangs. (I Tim. 6:8-10)

In Centesimus Annus St. John Paul II speaks of “the right to possess the things necessary for one’s personal development and the development of one’s family” (no. 6). And in the same encyclical he writes in another passage (no. 36),

It is not wrong to want to live better; what is wrong is a style of life which is presumed to be better when it is directed toward “having” rather than “being,” which wants to have more, not in order to be more but in order to spend life in enjoyment as an end in itself.

Now I realize that it’s not always easy to say how much is “necessary for one’s personal development and the development of one’s family.” In fact, there is apt to be disagreement about what is a reasonable standard that satisfies nature. And to some extent such disagreement is to be expected, for it’s impossible to calculate such a standard with mathematical exactness. But the important thing, and certainly the first thing to do, is to recognize that mankind’s economic activity and the products that result therefrom do have a purpose, to “satisfy nature,” and not to satisfy simply any and every desire prompted by the wish “to spend life in enjoyment as an end in itself,” so that everyone can live in the manner of a major-league baseball player. At some point, any sensible person will have to admit that the needs of nature have been satisfied, and that anything beyond that is simply excess.

Now, If we accept what I have said so far, what logically follows? We can apply the teaching of St. Paul and St. Thomas and St. John Paul not only to individuals and families, but also to societies.  I am aware that many individuals and families do seek in some degree to acquire and use material goods according to these stipulations and warnings. In a society such as ours this is not easy to do, and, as I just said, it’s often very difficult to decide what is a reasonable standard of living that will satisfy nature, especially since American society can make it difficult to live a countercultural life. In this regard I will note only two things.

First, as Benedict XVI wrote in his encyclical Caritas in Veritate (no. 37), “every economic decision has a moral consequence.” Since the kinds of stores we patronize, the kinds of products we buy and use, have consequences that are both economic and environmental, therefore they have both moral and spiritual consequences for each of us. Someone who desires to “live at the level of the average doctor or big-league baseball player” is making decisions which not only have moral consequences but unavoidably shape that person’s soul according to a particular pattern. A lifetime of our economic decisions will determine whether we have shaped ourselves according to the image of Samuelson’s economic man or to the opposite pattern suggested by Holy Scripture and the writings of the saints.

Secondly, just as it’s very difficult for someone raised in a society saturated by pornography and sexual promiscuity to realize what a sane and healthy sexuality is, so it’s hard for us who were raised in a commercial society, a society which more or less makes riches and material goods an idol, to realize what a sane attitude toward work and material goods is. In both cases we have to strive, using all the means of grace available, to form sound judgments. But now I want to turn our attention to the question of society as a whole, that is, about how a society that seeks to orient its productive activity toward satisfying nature might conduct itself.

The following is a description, from Richard Tawney’s seminal book, Religion and the Rise of Capitalism, of the outlook of Medieval Europe toward work and material goods.

Material riches are necessary; they have a secondary importance, since without them men cannot support themselves and help one another; the wise ruler, as St. Thomas said, will consider in founding his State the natural resources of the country. But economic motives are suspect. Because they are powerful appetites, men fear them, but they are not mean enough to applaud them. Like other strong passions, what they need, it is thought, is not a clear field, but repression. There is no place in medieval theory for economic activity which is not related to a moral end, and to found a science of society upon the assumption that the appetite for economic gain is a constant and measurable force, to be accepted, like other natural forces, as an inevitable and self-evident datum would have appeared to the medieval thinker as hardly less irrational or less immoral than to make the premise of social philosophy the unrestrained operation of such necessary human attributes as pugnacity or the sexual instinct.

And he continues with his description of medieval economic ethics:

At every turn, therefore, there are limits, restrictions, warnings, against allowing economic interests to interfere with serious affairs. It is right for a man to seek such wealth as is necessary for a livelihood in his station. To seek more is not enterprise, but avarice, and avarice is a deadly sin. Trade is legitimate; the different resources of different countries show that it was intended by Providence. But it is a dangerous business. A man must be sure that he carries it on for the public benefit, and that the profits which he takes are no more than the wages of his labor. (3)

And another historian wrote along similar lines,

We can, therefore, lay down as the first principle of mediaeval economics that there was a limit to money-making imposed by the purpose for which the money was made. Each worker had to keep in front of himself the aim of his life and consider the acquiring of money as a means only to an end, which at one and the same time justified and limited him. When, therefore, sufficiency had been obtained there could be no reason for continuing further efforts at getting rich,…except in order to help others. (4)

The questions I’d like to consider now concern how a truly Christian society would implement these ideals. Many people, certainly most Americans, would think that adherence to such standards must be something purely voluntary. At most, the Church would seek to persuade people of its desirability via her preaching and catechesis. And certainly that is the first thing to be done, to create a social consciousness that the pursuit of riches beyond what one needs is both criminal and stupid. Criminal because it helps create a society that upholds false ideals and corrupts all of our souls, stupid because it detracts from what life in this world is about, and above all, because it makes more difficult our attainment of eternal life. I am not asserting that it is a sin simply to be rich, but I do assert that riches are almost always a near occasion of sin, and therefore we’d better be pretty sure we have a genuine justification for our riches. And especially do we need a very good justification for seeking more riches if we already have enough so that the demands of nature are satisfied.

But there is more. You’ll notice what Tawney said in the passage I just quoted, “At every turn, therefore, there are limits, restrictions, warnings, against allowing economic interests to interfere with serious affairs.” A Christian society will not be content to simply use moral persuasion in order to correctly orient out attitude toward work and material goods. If nothing else, such a society will make it rather hard for someone to get rich. It will certainly do nothing to facilitate such acquisition of riches, and it will try to structure its laws, tax code and general economic arrangements so that it is easy to earn enough to support one’s family, but hard to do more.

Many are familiar with the taxation scheme suggested by Hilaire Belloc in his 1936 book, The Restoration of Property, according to which any enterprise which exceeded a certain size would be taxed at such a high rate that no one would expand his business beyond a modest size. I know that many people have an instinctive violent reaction against such proposals, but those who do should ask themselves a couple questions. How is this an unjust restriction? How is anyone’s true good harmed by such laws? Until recently we as a society in the United States saw this clearly with regard to that other great human appetite, sexual satisfaction. Within the lifetime of many of us divorce was in most states difficult to obtain, pornography was strictly regulated or even prohibited, homosexual activity illegal. And laws on the books even forbade adultery, even if they were rarely enforced. Even today prostitution is illegal in nearly every state.  We justified these restrictions by saying that such activity was contrary to both the natural law and the revealed law of God, harmful to individuals and to the social order, and that therefore the free choices and desires of individuals could justly be limited in such matters.

If we are serious about conforming our lives to the norms of morality with regard to money and property, the same argument applies: “those who desire to be rich fall into temptation, into a snare, into many senseless and hurtful desires that plunge men into ruin and destruction.” The disordered striving after riches is as hurtful to the common good as is the disordered striving after sexual pleasure.  Both material wealth and sexual pleasure are true goods, but they are goods only in their rightful places. No one’s genuine freedom or legitimate rights are infringed upon if the pursuit of wealth is hindered and directed toward legitimate channels, even by use of state power, just as no one’s genuine freedom or legitimate rights are infringed upon by legal restrictions on disordered sexual behavior.

There is a wonderful quote from G. K. Chesterton in What’s Wrong With the World that juxtaposes so well these two areas of human behavior.

I am well aware that the word “property” has been defiled in our time by the corruption of the great capitalists. One would think, to hear people talk that the Rothchilds and the Rockefellers were on the side of property. But obviously they are the enemies of property; because they are enemies of their own limitations. They do not want their own land; but other people’s…. It is the negation of property that the Duke of Sutherland should have all the farms in one estate; just as it would be the negation of marriage if he had all our wives in one harem. (5)

If it is proper to prevent the Duke of Sutherland from obtaining all of our women as his wives, why is it not proper to prevent him from obtaining all the property as his own?

Let me go one step further, or one level deeper, in our exploration of this topic. Most people who would object to what I just said about the use of social or legal power to restrict our acquisitive appetites, would object, I think, because, usually unknowingly, they hold an idea about social or political authority which is grounded not in classical philosophy or Holy Scripture, but in the Enlightenment of the 18th century, most notably in the writings of John Locke. Government, according to this notion, is merely a necessary evil, necessary because of mankind’s tendencies toward anti-social conduct. “If men were angels,” wrote James Madison in Federalist no. 51, “no government would be necessary.” Implicit in such a notion is the idea that man’s natural state is a-social, and that every restriction we accept as part of living in society is a restriction on our natural freedom, justified usually by the benefits which sociey brings, but still, something essentially unnatural, something which inhibits our natural freedom. Most political discourse in the United States, of both liberals and conservatives, simply assumes such an understanding of freedom and society.

Here again, though, we find Thomas Aquinas teaching a different view. In the Summa Theologiae (I, q 96, art 4) he asks whether there would have been subordination of man to man in the state of innocence, i.e., without Adam’s fall into sin. And he answers his question clearly, saying Yes.  Although there would not have been the domination (dominium) characteristic of the slave (servus), who is “ordered to another,” there would still have been the kind of subjection proper to the free man, when someone directs him to his own good or to the common good. And the primary reason given by Aquinas for this is because man is “naturally a social animal” and “social life cannot exist unless someone presides who aims at the common good.” In other words, according to Aquinas, even if our first parents had never sinned and lost the state of original justice, we still would have required a sort of government, a government that would not have needed to punish anyone, but was still there to coordinate and direct our efforts toward the common good.

I submit that this difference between St. Thomas and Locke manifests the fundamental error of almost all political discourse in the Anglo-Saxon world, especially the United States. But Locke is simply wrong: man is by nature a political animal, our natural state is one of community, with all the necessary restrictions that such community requires and implies. This is not to justify tyranny or to deny that personal political freedom is a good, but it is to insist that such political freedom is far from the highest political virtue.  Justice is more important than freedom, and in fact, any understanding of freedom which regards it as primarily the right to do anything which one pleases, is a disordered understanding. Just as marriage vows do not limit our true sexual freedom, but actually allow for human sexuality to flourish in proper freedom, so society, including government, is not a restriction on man’s legitimate freedom, but the precondition for a true flourishing of such freedom. We do not trade a certain amount of freedom for a certain amount of security, as in the Lockean myth of the social contract, but we are placed by God and nature into society, without which freedom would be a meaningless exercise in randomness.

As a result, then, if a society attempts to channel its economic activity toward the common good, it in no way infringes on real economic freedom. Rather it provides the necessary means by which economic activity can attain its true end: not the goods and services that satisfy everyone’s consumption desires, but the appetite for natural riches which according to a set measure satisfy nature. This is true Christian wisdom, this is the teaching of the Church, the command of Holy Scripture, and the sure way toward our eternal salvation.

Notes:
(1) Summa Theologiae, I-II, q. 2, a. 1 ad 3.

(2) Microeconomics, 17th ed., 2001 p. 4.

(3) Richard H. Tawney, Religion and the Rise of Capitalism, New York, 1926, pp. 31-32.

(4) Bede Jarrett, Social Theories of the Middle Ages, pp. 157-158.

(5) Part I, chapter 6.

Moorish-American Religious Defense To False Identity Charge Fails

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

Thomas v. Commonwealth, (VA App., Aug. 16, 2016), involved an appeal by defendant of his conviction for providing a law enforcement officer a false identity with intent to deceive.  Defendant, who was driving with a suspended license, told police during a traffic stop that his name was “Barry Thomas-El.” Police were unable to locate information on anyone with that name from the Department of Motor Vehicles, and only later identified him as “Barry Nelson Thomas, Jr.”  At the trial court level, defendant attempted to raise a religious free exercise defense, arguing that use of the suffix “El” was an exercise of his religious beliefs as a Moorish-American national. The trial court excluded evidence relating to this defense.  The Virginia Court of Appeals affirmed, largely on procedural grounds, saying in part:

At the motion in limine hearing, appellant’s counsel argued that adding the suffix “El” to appellant’s name was an act of free exercise noting his “rebirth” within the Moorish American community…. However, appellant’s counsel failed to properly proffer what appellant’s testimony would have been at trial.

The court also upheld the trial court’s exclusion of several documents relating to defendant’s claim of Moorish-American citizenship, saying:

As the documents are political, rather than religious, in nature, they lack any tendency to make the existence of a religious imperative more or less probable. As such, they are irrelevant and thus not admissible.

You can learn more about this issue here.

EEOC Sues Over Firing of Muslim Employee

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

The EEOC announced this week that it has filed a Title VII religious discrimination lawsuit against KASCO, a St. Louis-based company that manufactures and sells butcher supplies and meat processing equipment. The press release explains:

According to EEOC’s lawsuit, Latifa Sidiqi had worked for KASCO since 2008, most recently as a buyer. After she began more seriously practicing her religion in 2012, a supervisor and others began making derogatory comments about her fasting during Ramadan, wearing a hijab, and her native country, Afghanistan. The agency charged that Sidiqi was fired during Ramadan 2013 because of her religion and national origin, and because she complained about her supervisor’s treatment.

You can learn more about this issue here.

No-Fault Divorce Does Not Violate Hindu Husband’s Free Exercise Rights

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

In Bhandaru v. Vukkum, (KY App., Aug. 19, 2016), a Kentucky appeals court rejected an argument that the state’s no-fault divorce law violates the free exercise rights of a Hindu husband.  The husband argued that his Hindu religion only permits divorce if some grounds for divorce are stated. The court concluded however that the divorce law is a law of general applicability and the state has a rational basis for it.  It thus survives a 1st Amendment challenge and the free exercise provisions of the Kentucky constitution offer no greater protection than those in the 1st Amendment.  The court also rejected the argument that under notions of comity it should have applied the Indian Hindu Marriage Act.

You can learn more about this issue here.

Reasoned Voting

This article is part of my posts on the economic system of distributism.  This is from practicaldistributism.blogspot.com which you can find here:

____________

Keeping in mind that this site does not engage in party politics, I still feel prompted to share something in the context of the up-coming election in the U.S. Although most of this will discuss the political climate in the U.S. I also send this out to any readers “across the pond” in the U.K. as they approach the very important vote on whether or not to remain in the E.U. Distributism is based on certain philosophical principles which originate in a scientific view of philosophy. It has become all too common in our political environments to use fear tactics to try and convince people to vote a certain way. These tactics can sound reasonable, but are truly an attempt to get you to abandon reason. Therefore, I want to present certain principles of reason as I think they apply to deciding how to vote.

The philosophical principles of reason which come down to us from the great minds of the past like Aristotle and Saint Thomas Aquinas are those precepts which we must follow when applying reason to anything. The failure to do so will ultimately lead us to accepting absurd things. They are employed by all of our natural sciences. They are employed by all of our ethical reasoning. They are crucial to fulfilling our capabilities as rational beings. Unfortunately, some people throw around some of these principles in an incorrect or incomplete manner. Because we no longer learn true philosophy (even philosophy students seem to spend more time learning about philosophers – both good and bad – than about the actual science of philosophy) many people are ill equipped to see that these are false applications.

“Choosing the lesser of two evils”

This is a frequent claim used as an election draws near. In the U.S. It has long been used by pundits for the Republican party and has recently been used more by those of the Democrat party. The failure to nominate a candidate their voting base can really support has forced them to use this claim. They essentially say, “we know you think our candidate is bad, but he’s not as bad as their candidate.” This call to choose the “lesser” of two evils is usually followed by the next claim.

“A vote for x is really a vote for y”

This is a double-attack on your reason. Not only is your decision not to vote for their candidate or policy wrong, but you will somehow be guilty for the fact that the other candidate or policy won. In essence, the claim is that by voting other than the way they want, you are actually choosing what (presumably) neither of you want. This is used by both of the major parties in the U.S. as an attack against anyone who considers a third party option. It is based on the premise that the candidate or policy you want has no chance of winning, which leads us to the next claim.

“Don’t let the best be the enemy of the good”

Politics is the art of compromise, so why don’t you just compromise and vote for us? Since your position or candidate has no chance of actually winning, you should back down a little and vote for us. By doing so, you’ll get at least some of what you want instead of “wasting your vote.”

All of these arguments sound reasonable, but are actually not so, and a serious look at the principles of reason will reveal why.

When people use variants of the “lesser of two evils” argument, keep in mind that this is only a partial statement of the actual principle of reason. The actual principle is, “If one cannot avoid doing one of two acts, from both of which will follow an evil effect, one is obligated to choose the lesser of the two evils.”  Note that the premise here, which is fundamental to the entire principle, is that you cannot avoid doing one of the two acts. For this to apply in the context of an election, you would have to be constrained to only choose one of two candidates and have no other option – you must vote and you must vote for one of the only two candidates presented to you. Is this the actual case in our elections? Do you really only have two choices? I am not speaking of the so-called “practical” choices, by which is meant those choices generally accepted as having a chance to win. If there is in fact another option, then you are not limited by the constraint of the principle, so it simply doesn’t apply. Actually, if one were to insist on applying it to the case of an election, a reasoned expansion of this principle would be that, in the case of more than two choices, you must choose the one from which will follow the least evil effect. Don’t forget that, when electing candidates in the U.S., there is usually a blank line where you can write in the name of a better choice than the ones being presented.

This leads us to the next claim. Is it true that choosing something other than the two “practical” choices is equivalent to choosing one of them? The answer is obviously no. They say that the only choices are A and B because C has no chance of winning. Therefore, if you vote for C, you are effectively giving the election to whichever option they don’t want from the choices of A and B. This is nonsense. They are trying to shift the blame to you for the fact that they didn’t present a candidate you would want to support. They are trying to blame you for all the others who also didn’t want to support their view. This seems to be a mangling of the principle which states, “Things that are identical with a third are identical with each other.”Your actual responsibility in an election is to vote for the candidate or position you think should win. What you vote for represents what you choose regardless of the outcome. You are not to blame for the votes of others.

This leaves us with the only argument that actually deserves any consideration. “Don’t let the best become the enemy of the good” is inherently incorrect, but it can actually be applied in a way that doesn’t compromise the principles of reason. However, this argument must be properly understood in the light of those principles to determine if it actually applies to the current choices.

First of all, using the terms employed, the “good” must always be directed toward the “best” or it fails to be good. (“Every agent acts for the sake of an end.”) Therefore, one can accept the merely “good” for now, but only on the condition that is a movement toward the “best.” If this is not the case, then you would be violating the principle which states, “It is never lawful to reject a greater good for a lesser one.” The lesser good can only be accepted as a means to achieving the greater good, and never as an end itself. This is the essence of political compromise. Realizing that achieving the “best” may not currently be politically possible, achieving the “good” at this time with the intention of continuing to work for the “best” may be prudent.

Another consideration for this argument must be kept in mind. At what point does continual compromise from the “best” end up being an acceptance of the merely “good?” If you keep voting for an inadequate candidate on the grounds that “we can’t let the other party win,” what incentive will your party ever have to stop presenting inadequate candidates? If you continue to agree to legislation that falls short of what you really want, what are your chances of ever getting the legislation you really want? The pundits accuse those who choose to make a stand with their vote of wasting it, but the purpose of voting is to try and get the change you want. What vote could be more wasted than when you vote for something you don’t want?

At what point do we wake up to the realization that the political machines of these parties are actively engaged in saying what their base wants to hear just to secure votes, but don’t actually mean those things? How many times to we have to see them fail to even try to accomplish what they tell us they will before we accept the fact that it really isn’t all the fault of the other party? Remember that this sort of compromise is only acceptable if it is both prudential and will actually help to move from the “good” to the “best.”

A final consideration on this kind of compromise is that we have to examine the risks of the other side of the compromise. It is not enough to look at what we’ve gained, we need to look at what we’ve potentially lost through the compromise.“It is never lawful to take a risk with the right of another.” “It is never lawful to do an evil act to accomplish a good end.” “A good intention does not justify the use of an evil means for the end in view.” If your side of the compromise would fall into any of these categories, then the compromise cannot be made. Remember that your vote represents you. Your beliefs and values. “All human acts must tend towards the good of man.”

I am also reminded of something posted by Ryan Grant. There is another claim that says that you have no right to complain if you don’t vote. Of course, this is also nonsense. The officials of government have a moral responsibility in the exercise of their office. This is true even if those officials are not democratically elected. Citizens always have the right to complain about injustices regardless of how those officials came to hold their offices. In some election campaigns, there were movements of people who wanted a ballot option for “none of the above” as a way of indicating their dissatisfaction with all of the candidates. However, if you believe that elections are useless, because of the corruption of the political parties, the media, the voting process, or the ballot counting process, then why should you bother to vote even to say “none of the above?” Justice in government is a human right, not one just for those who engage in the system of voting.

Finally, I would like to point out how ironic it is when I hear Republican pundits heap scorn on those who would even consider a third party candidate. They seem to forget that their party was once the upstart third party in a political climate dominated by two other parties. The “Grand Old Party” is significantly younger than its chief rival. Why is it that they don’t address the growing popularity of third party candidates among their voter base? The Republican party was propelled to electoral victory because the voting public got sick and tired of the fact that neither of the major parties of the time were putting forth candidates and positions that truly reflected their views. Well, the same thing is happening today in both of the major parties. It is common for pundits of both parties to lay the blame for an electoral loss on the votes “stolen” by a third party candidate. The truth is that these votes were not stolen because they didn’t “belong” to any candidate or party. They never “owned” our votes and they shouldn’t take them for granted. If they want our votes, then they should present candidates and positions we want to support. If they want to keep our votes, then those candidates better use their time in office actually trying to accomplish what they were elected to accomplish. In other words, voters need to remember that parties and individual candidates need to earn our votes, and need to keep doing so. If they fail to do this, then why shouldn’t we look elsewhere and be proud of doing so?

In their attempts to convince others to vote for a particular candidate, many people are using arguments that invoke the fundamental principles of reason from the philosophical sciences. Unfortunately, many of these invocations use these arguments in an improper way. I addressed some of the most common in a recent article titled Reasoned Voting. I recently came across another use of a principle of reason in support of voting for a particular candidate which, in the interest clear reasoning, I would like to address in this follow-up to that article. The principle is known as “Double-Effect.”

The main goal of these articles is not to convince or dissuade people about voting for a particular candidate or party. It is to foster a better understanding of the principles being invoked because an improper use of these principles can have bad results.

“A small error in principle can lead to a big error in conclusion.”

Doing something, even something good, for a bad reason is not something we should be willing to accept because that would be acting contrary to our nature as rational beings. Therefore, even if you continue to support a given candidate, it should not be because of a faulty application of the principles of reason.

Where the principle commonly called “the lesser of two evils” is used to decide between two choices, the principle of double-effect only applies to a single choice. It is the method used to determine if a particular choice can or cannot be made. Thus, we have seen questions like “can a Catholic vote for Trump/Hillary?” Some commentators have attempted to answer these types of questions pertaining to the upcoming election using the principle of double-effect, but I believe these attempts are a misapplication of the principle.

The principle of double-effect answers the question of whether or not a specific single act is permissible when it is known that the act will produce not only a good, but also a bad effect. In the context of the political election it is proposed that, because we know a candidate will do both good and bad things, double-effect applies to the question of whether or not we may vote for a specific candidate. However, I believe that this is a misunderstanding of the principle as it applies to the question at hand.

The principle of double-effect addresses the following question.

Given an act that that produces two effects, one good and one bad, can we do the act?

 

To determine whether or not a particular act is permissible, the principle of double-effect applies four conditions to the act and its effects to arrive at an answer. If all of the conditions are met, then the principle of double-effect applies and the act may be done. The conditions which must be met for double-effect to apply are these.

 

The act itself must be good, or at least indifferent.
Both effects must proceed immediately from the act.
Only the good effect may be intended.
There must be due proportion between the good and bad effects.

The first two conditions determine whether or not double-effect applies to a particular act. If not, the act must be examined in light of other principles of reason. The second two conditions answer the question of whether or not an act to which double-effect does apply may or may not be done.

A fairly common example of how the principle is legitimately applied is the question amputating a limb infected with gangrene. Amputating the infected limb will remove the threat to life, but it will also result in the loss of the limb. Can we amputate the limb?

First: The act is amputation of the limb. This act is indifferent because the goodness or badness of it depends on the end toward which it is directed.
Second: Both effects will proceed immediately from the act. The moment the act is performed, both the threat to life and the limb will be removed.
Third: We only desire the good effect. If we could remove the gangrene without doing harm, or with less harm, we would do so.
Fourth: The good of preserving life is greater than the evil of losing a limb.

From this we can see that the principle of double-effect applies to this case, and that the reasonable conclusion is that we may amputate the limb.

Those who attempt to apply this principle as an argument for casting your vote for candidate X seem to do so on the basis of campaign promises. Even though it is likely that X will do some things we consider bad, X has promised to do other things we believe are good. We believe there is due proportion between the good and the bad that X will likely do while in office. Therefore, they conclude, the principle of double-effect shows that we can vote for candidate X. I will explain two reasons why I believe double-effect just doesn’t apply to the question of your vote. Note that I am only addressing the question of whether or not double-effect applies to the question of your vote, there are certainly other factors that do.

Double-effect applies specifically to “an act that produces two effects, one good and one bad.” We are examining the effects of specific individual act, so the act in question must clearly be the cause of those effects. In the case of amputation, both effects are produced by the act of amputation – they are both unavoidable effects of the act and the act is clearly the cause of those effects. Can we say the same thing about your vote? Is your vote the cause of both the good and the bad that candidate X will do while in office? The answer is obviously no. You cast your vote based on various things like campaign promises and position statements, but your vote does not actually cause any of those things to actually occur. Whether candidate X keeps or breaks every campaign promise, whether X does exactly what you expect or the opposite of what you expect can not reasonably be attributed as an effect of your vote. It is an effect of the free will of the candidate while in office.

I know that some will argue that your vote is the cause of the candidate getting elected and therefore, by extension, it is the cause of what the candidate does in office. I maintain that double-effect still doesn’t apply even if we accept the argument. The principle of double-effect states that both effects must proceed immediatelyfrom the act. This is clear in the case of amputation. Both effects are immediate. They happen simultaneously and there is no delay between the act as the cause and its effects. In regard to your vote, none of the effects can be considered to proceed immediately from your vote. Even if we were to say that the effects in question will take place over a period of time, they don’t even start to happen when you cast your vote. The candidate won’t even get sworn in for two months after you cast your vote. X could refuse to be sworn in or die before doing so. Amputation guarantees that both the limb and the disease will be removed. Your vote does not even guarantee that candidate X will win the election. Clearly, double-effect does not apply to the question of your vote.

In the end, as stated in the previous article, you must exercise your prudential judgement. Faced with the fact that the candidate is not ideal, is it prudential to vote for X rather than one of the several other available candidates? Is it prudential to (once again) compromise on what you really want and vote for X as a step toward a greater good to be more fully achieved in the future? There are many factors to consider for this important decision. I hope that these articles will help clarify the good and bad points some are making on the subject. These decisions are unfortunately difficult and complex. The principles of reason exist to assist us in understanding the factors that go into making a good decision. It does not help if our thinking gets muddled by the improper application of these principles, even if those doing it have the best intentions.

Originally posted on June 16, 2016 (part one: see here) and August 18, 2016 (part two: see here).

Suit Challenges Latin Cross In County Seal and Flag

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

A suit was filed in federal district court this week seeking to enjoin Lehigh County, Pennsylvania from continuing to display the current county seal and county flag that includes a Latin cross (partly hidden by a depiction of the county courthouse) as a prominent part of the design.  The complaint (full text) in Freedom From Religion Foundation, Inc. v. County of Lehigh, (ED PA, filed 8/16/2016) contends that the cross amounts to an endorsement of Christianity, while the county Board of Commissioners says the cross was made part of the design to honor the original settlers of Lehigh County who were Christian. FFRF issued a press release announcing the filing of the lawsuit.

You can learn more about this issue here.

Superior Court Ruling Gives Hope to Custody-Seeking Grandparents

Pursuant to 23 Pa.C.S. Section 5324, grandparents and great-grandparents, if they meet the statutory criteria, may be awarded legal and physical custody of their grandchild(ren) (or great-grandchildren). Typically, grandparents assert their potential custodial rights in opposition to the rights of the parents of the children. In some situations, however, more than one set of grandparents may seek to exercise their custodial rights at the same time. How is that conflict resolved? The recent Pennsylvania Superior Court case of G.A.P. v. J.M.W. v. S.J. and R.J., 2018 Pa.Super. 229 sheds some light on how such a matter could be handled.

In G.A.P., the father of the child has a history of substance abuse and also a criminal history, and was alleged to have committed sexual abuse against the child. Similarly, the mother of the child also has a history of substance abuse. The child has lived, from time to time, with the maternal great-grandparents over the course of his entire life, and has lived continuously with them since 2015.

In the summer of 2016 the great-grandparents filed for custody of the child on the basis that he had been living with them continuously since October 2015 and asserted that he was unsafe when in the custody of the father. The trial court, on an emergency basis, awarded the great-grandparents sole physical custody of the child and suspended the father’s partial physical custody, and an agreement was reached with the mother awarding her supervised physical custody of the child. At the end of 2016 the trial court awarded the great-grandparents and the father shared legal custody, the great-grandparents primary physical custody, and the father supervised physical custody. The mother was not awarded anything as she failed to appear for the hearing.

In the spring of 2017 the great-grandparents filed a petition for special relief requesting the father be drug tested and have his custody modified to supervised visits only, on the basis that he allegedly had relapsed into drug use. As a result, the trial court suspended the father’s unsupervised partial physical custody and replaced it with supervised physical custody.

Not long after the father’s custody was reduced, the paternal grandparents filed a petition to Intervene and requested physical custody of the child. The grandparents asserted that their petition was filed pursuant to 23 Pa.C.S.A. Section 5324(3)(iii)(B) which permits grandparents to file for custody of their grandchildren if “the child is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or incapacity.”

In response, the great-grandparents filed preliminary objections against the grandparents’ petition to Intervene, asserting that the grandparents did not have standing as, allegedly, the child was not “currently” at substantial risk. The trial court agreed and dismissed the grandparents’ petition to Intervene for lack of standing, leading them to file an appeal to Pennsylvania Superior Court.

During the litigation of the petition to Intervene, the great-grandparents conceded that the grandparents had a relationship with the child that began with the consent of a parent, and were willing to assume parental responsibility over the child. In other words, the great-grandparents admitted that the grandparents essentially met the other requirements of Section 5324 except, in their view, the requirement that the child be currently substantially at risk.

The grandparents argued that the risk to the child, by the plain language of the statute cited above, is due to “parental abuse” specifically and, therefore, the claim that the great-grandparents are not a source of risk is irrelevant. Furthermore, the “grandparents also argued that the purpose of the statute is to grant grandparents standing in custody matters, not ‘to create a situation where grandparents are essentially in a race to file to receive standing’ because the grandparent who files first is the only one able to obtain standing in a custody matter.”

The Superior Court agreed that Section 5324 confers standing upon grandparents when the child is substantially at risk “due to parental abuse, neglect, drug or alcohol abuse or incapacity.” In its view, these words are clear and unambiguous and make no exception for a child’s potential custodial situation at a given time. In the court’s words “the plain language of the statute confers standing to grandparents when a child is substantially at risk due to ongoing parental behaviors.”

Upon review of the trial court record, Superior Court noted that the conditions required by Section 5325—including the risk factors—were present to grant the great-grandparents standing. Superior Court determined that there was nothing to suggest that the risk created by the parents had changed or somehow subsided. Significantly, the court observed, as the parental rights of father and mother have not been terminated or relinquished, either or both father and mother could seek (additional) custody of the child at any time. As a result, the ongoing risk from the parents is still ongoing.

Finally, it is in Superior Court’s opinion that the General Assembly did not intend, by its adoption of the specific language in the statute, to create a so-called race-to-the-courthouse standard by which the (great) grandparent who files first gets awarded custody at the expense of the others. Instead, the Superior Court reasoned, the court should have the opportunity to consider all possible or viable options in order to decide how to allot custodial rights according to the best interests of the child at issue. As a result, Superior Court reversed the trial court’s sustaining of the great-grandparents’ preliminary objections and remanded the case back to the trial court.

This case should provide practitioners the justification, and potential custodial grandparents hope, that they can pursue potential custodial rights over their grandchildren even if others who are in a similar state of life or situation (e.g., another set of grandparents) seemingly have done so already.

Originally published in The Legal Intelligencer on October 2, 2018 and can be found here.

Post Navigation