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Archive for the tag “constitution”

Liberalism and Islam

This is from edwardfeser.blogspot.com which you can find here.  This blog is written by Edward Feser who is a Christian philosopher who I have been recently introduced to who I think provides effective clear, sobering, and direct responses to the advance of secular culture.

Here is a portion of recent piece of his which I thought was rather edifying:

Note: What follows is pretty long, especially if you think of it as a blog post.  So think of it instead as an article.  The topic does not, in any event, lend itself to brevity.  Nor do I think it ideal to break up the flow of the argument by dividing the piece into multiple posts.  So here it is in one lump.  It is something of a companion piece to my recent post about whether Christians and Muslims worship the same God.  Critics of that post will, I think, better understand it in light of this one.

 

In an article in The New Criterion over a decade ago, the late political scientist Kenneth Minogue noted a developing tendency in contemporary progressivism toward “Christophobia,” a movement beyond mere disbelief in Christian doctrine toward outright hostility.  The years since have hardly made Minogue’s observation less timely.  The New Atheism, the first stirrings of which Minogue cited in the article, came to full prominence (and acquired the “New Atheism” label) later in the decade in which he wrote.  The Obama administration’s attempt to impose its contraception mandate on Catholic institutions evinces a disdain for rights of conscience that would have horrified earlier generations of liberals.  Opponents of “same-sex marriage” have in recent years found themselves subject to loss of employment, cyber-mobbing, and even death threats — all in the name of progressivism.  If contempt for Christian moral teaching still hides behind a mask of liberal neutrality, Hillary Clinton let that mask slip further still when she recently insisted that “deep-seated cultural codes, religious beliefs and structural biases have to be changed” in order to accommodate easy access to abortion.  Not all liberals approve of these developments, of course.  But demographic trends indicate that a Christophobic brand of progressivism may have little difficulty finding new recruits.
Now, how do contemporary liberals view Islam?  How would one expect them to, given their principles, and given the principles and practice of Islam?  Consider that, like Christianity, Islamic moral teaching unequivocally condemns homosexual behavior, extramarital sex, and the sexual revolution in general.  Feminism has, to put it mildly, had little effect on Islam, which is traditionally highly patriarchal.  In Islam, men can have multiple wives, but wives cannot have multiple husbands.  Men can marry non-Muslim women, but women cannot marry non-Muslim men.  The authority of husbands over wives goes far beyond anything feminists objected to in 1950s America.  Rules governing divorce, custody of children, inheritance, and legal testimony all strongly favor men.  In many modern Muslim countries, the implementation of this patriarchal system takes forms which modern Western women would find unimaginably repressive.  Women are expected to cover their bodies in public to a greater or lesser extent, the burqa being the most extreme case.  In Saudi Arabia, women are forbidden to drive, to go out in public without a chaperone, or to interact with men to whom they are not related.  In some Muslim countries, husbands have a right to discipline their wives with beatings.  In some, female genital mutilation is widely practiced.  “Honor killings” of women thought to have brought shame upon their families often occur not only in Muslim countries, but in Western countries with large Muslim populations.  Of course, not all Muslims approve of all of this.  Nor or is it by any means the whole story about women in Islamic society, and Muslims emphasize the way Islam improved the situation of women compared to pre-Islamic Arabia.   The point, though, is that it is far from being a marginal part of the story. ”

You can read the rest here.

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The Absolute Truth About Relativism

This is from edwardfeser.blogspot.com which you can find here.  This blog is written by Edward Feser who is a Christian philosopher who I have been recently introduced to who I think provides effective clear, sobering, and direct responses to the advance of secular culture.

Here is a portion of recent piece of his which I thought was rather edifying:

“I don’t write very often about relativism.  Part of the reason is that few if any of the critics I find myself engaging with — for example, fellow analytic philosophers of a secular or progressive bent, or scientifically inclined atheists — take relativism any more seriously than I do.  It just doesn’t come up.  Part of the reason is that many other people have more or less already said what needs to be said about the subject.  It’s been done to death.
It is also possible to overstate the prevalence of relativism outside the ranks of natural scientists, analytic philosophers, theists, and other self-consciously non-relativist thinkers.

As Michael Lynch notes in his book True to Life: Why Truth Matters, remarks that can superficially seem to be expressions of relativism might, on more careful consideration, turn out to have a different significance.  For example, when, during a conversation on some controversial subject, someone says something like “Well, it’s a matter of opinion” or “Who’s to say?”, this may not be intended to imply that there is no objective fact of the matter about which view is correct.  The person may instead have simply decided that the discussion has reached an uncomfortable impasse and would like to change the subject.

On the other hand, many people seem not to understand the difference between the claim that there is no agreement about such-and-such and the claim that there is no objective truth of the matter about such-and-such.  Hence even many people who are primarily concerned to assert the first proposition rather than the second may nevertheless affirm the second one too if pressed.  And in that case they are at least implicitly relativists.  Thus, while Lynch is right that there are probably fewer self-conscious relativists than meets the eye, that is not necessarily because the people in question are all self-consciously non-relativist.  Many people just have confused or inchoate ideas about these things.”

You can read the rest here.

Sole Legal Custody Means Solo Decision-Making

In the matter of M.P. v. M.P., 54 A.3d 950 the Superior Court of Pennsylvania clarified the extent of authority of a parent who enjoys sole legal custody s/he has over a child.

In M.P., the mother of the child at issue in the case is from Ecuador.  Most of mother’s family, including her own parents, still reside in Ecuador.  Mother was granted primary custody of the child in July 2009 and Father was awarded supervised visits for two hours per week.  Despite receiving such minimal custody, Father did not take advantage of it to spend time with his child.  In or about November 2011, after a hearing, Mother was awarded sole legal custody of the child.  Mother filed a petition to permit her to take the child to Ecuador for three weeks, a trip which Father opposed.  The lower court entered an order prohibiting Mother from taking the trip to Ecuador which led to Mother filing an appeal to Superior Court and it is the Superior Court’s decision that is the focus of this article.

Mother wanted to take the child to Ecuador as it is her own ancestral home and most of her family lives there.  It was not feasible for Mother’s family to come to the United States as there was testimony that Mother’s parents would have difficulty in securing visas to come to the United States and Mother’s mother has health issues which makes flying difficult for her.

Father opposed Mother’s proposed trip to Ecuador as he views Ecuador as a third-world nation filled with potentially dangerous diseases and crime.  He also had concerns about the compatibility of the child’s health insurance coverage with Ecuadorian hospitals and the difficulty retrieving the child if something unfortunate happened to the Mother.

The lower court, by its own volition, investigated international law and the terms of the Hague Convention regarding international custody arrangements and had concerns regarding Father’s options to retrieve the child if Mother failed to return her to the United States.

When reviewing this matter, the Superior Court reversed the lower court’s decision and permitted Mother to go to Ecuador with the child for her proposed three week trip.

The Superior Court first looked at what it means for a parent to have sole legal custody.  Legal custody is the right and ability to make major decisions for the child.  Sole legal custody is the granting of one parent exclusive and final right to make major decisions; indeed, specifically exclusive from the other parent.  The Superior Court ruled that the lower court, by allowing Father to block Mother’s trip to Ecuador, enabled him to undermine Mother’s sole legal custody, and, essentially, render it meaningless.  As a result, the Superior Court ruled that if a party has sole legal custody, the other parent cannot move to prevent it from being exercised but for a formal petition to modify the custodial arrangement.

In terms of the lower court’s reliance upon international treaties and the Hague Convention, it is notable that Father did not raise them at the hearing but the lower court took judicial notice of them.  Regardless, the Superior Court noted that it is not unusual for a court to take judicial notice of such things, so the lower court’s reliance upon them was not objectionable, at least in principle.  Instead, the Superior Court took issue with the fact that the lower court relied on that information after the hearing had concluded and without notice to the parties.  The Superior Court ruled that a party has the right to be heard as to the propriety of a court taking judicial notice of an issue, especially one as critical as international law.

Based on the above, the Superior Court reversed the lower court’s decision, ruling that sole legal custody cannot be undermined or otherwise disturbed without an order altering the custodial arrangement and a court taking judicial notice of an issue must indicate doing so on the record and allow the parties involved to address it.

Originally published in The Legal Intelligencer on March 16, 2015 and can be found here and reprinted in Volume 37, Issue No. 3, September 2015 edition of the “Pennsylvania Family Lawyer” (see here).

Marriage Inflation

This is from edwardfeser.blogspot.com which you can find here.  This blog is written by Edward Feser who is a Christian philosopher who I have been recently introduced to who I think provides effective clear, sobering, and direct responses to the advance of secular culture.

Here is a portion of recent piece of his which I thought was rather edifying:

Lake Wobegon, where all the women are strong, all the men are good looking, and all the children are above average.

Garrison Keillor, A Prairie Home Companion

If you printed a lot of extra money and passed it around so as to make everyone wealthier, the end result would merely be dramatically to decrease the buying power of money.  If you make it easier for college students to get an “A” grade in their courses, the end result will be that “A” grades will come to be regarded as a much less reliable indicator of a student’s true merit.  If you give prizes to everyone who participates in a competition, winning a prize will cease to be a big deal.  In general, where X is perceived to have greater value than Y and you try to raise the value of Y by assimilating it to X, the actual result will instead be simply to lower the value of X to that of Y.

You will also merely relocate rather than eliminate the inequality you were trying to get rid of.  If money loses its value, then people will trade in something else — precious metals, durable goods, or whatever — and a different sort of economic inequality will arise.  If grades can no longer tell you which students are most likely to do well as employees or in graduate school, you’ll find some other way of determining this — writing samples, interviews, letters of recommendation, or whatever — and the hierarchy of student achievement will reassert itself.  If getting a prize ceases to impress, then athletes and others engaged in competitive enterprises will simply find some other way to stand out from the pack.

Egalitarian schemes, in short, often have great inflationary effect but little actual egalitarian effect.  They can amount to mere exercises in mutual make-believe.  You can pretend all you want that all the children in Lake Wobegon are above average.  People who wish it were true may even go along with the pretense.  But of course, it isn’t true, and deep down everybody knows it isn’t true.  Hence even many who do pretend to believe it will act otherwise.  There will be a lot of pious chatter about how special all the children are, but no one will take the chatter very seriously and everyone will in practice treat the children differently according to their actual, differing abilities.”

You can read the rest here.

 

 

Pa. Justices Clarify Evidentiary Standard for Child Abuse Registry

The Pennsylvania Supreme Court weighed in on the burden of proof required to place someone onto the statewide ChildLine Registry (“Registry”) in the matter of G.V. v. Department of Public Welfare, et al., 91 A.3d 667 (2014).

In September 2009 the Lancaster County Children and Youth Services (“CYS”) received a referral alleging that Plaintiff sexually abused his sixteen (16) year old niece, of who he had custody. After an investigation, CYS filed an “indicated” report against Plaintiff upon finding substantial evidence that Plaintiff had abused his niece.

Upon the finding that Plaintiff abused his niece, he was listed on the statewide Registry pursuant to 23 Pa.C.S.A. § 6301-6386. Subsequently, Plaintiff sought the expungement of his name from the Registry through DPW. DPW denied his request to expunge his name from the Registry and he appealed to an administrative law judge (“ALJ”). After a hearing before the ALJ at which several witnesses testified against Plaintiff, the ALJ concluded that the “indicated” report was supported by substantial evidence and, therefore, denied Plaintiff’s appeal. Ultimately Plaintiff appealed to the Pennsylvania Commonwealth Court which vacated the ALJ’s decision on the basis of using an improper evidentiary standard, and remanded the matter back to the ALJ.

The Commonwealth Court agreed that there was substantial evidence but further noted that there was no statutory direction as to what standard of proof is required to be placed onto the Registry and ultimately ruled that clear and convincing evidence is required to be placed onto the Registry. The Commonwealth Court’s decision was appealed to the Pennsylvania Supreme Court and it is that appeal which is the subject of the case described herein.

The Supreme Court noted that an indicated report is warranted if there is substantial evidence, which is defined as “evidence that outweighs inconsistent evidence and which a reasonable person would accept as adequate to support a conclusion.” This is in contrast to the clear and convincing standard urged to be applied by the Commonwealth Court and the Plaintiff, which is defined as “evidence that is so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.” Customarily, the clear and convincing standard is applied when a person’s “individual interests at stake in a state proceeding are both particularly important and more substantial than mere money” and especially when there is a potential for “significant deprivation of liberty or stigma.”

After an indicated report, and a placement of a person onto the Registry, that person must report his placement onto the Registry whenever he accepts some sort of position (whether through employment or volunteer work and the like) where he would have contact with children. In its review of the applicable case law the Supreme Court established that the substantial evidence standard is what has been historically used in cases such as the instant case despite an absence of a statutory directive to use that standard.

In its review of the Commonwealth Court’s decision, the Supreme Court acknowledged that the Commonwealth Court did not err in determining that the preservation of one’s reputation is protected under Pennsylvania’s Constitution. Nevertheless, it ruled that it did err by overestimating the significance of the Registry as something covered by the above-mentioned reputation protections as to warrant the application of the clear and convincing standard instead of the substantial evidence standard.

The Supreme Court pointed out that only a limited number of people in a limited number of circumstances could access the names on the Registry. Consequently, the Supreme Court suggested that the Commonwealth Court overstated both the potential and probability for disclosure of the information on the Registry as well as overstated the potential risk of the deprivation of a fundamental interest of someone on the Registry. As a result, the stigma that the clear and convincing standard is supposed to address is simply not present. In addition to the above, the Supreme Court found that the Commonwealth Court did not take appropriate consideration of the fact that the government has a legitimate interest in ensuring the safety of children.

Ultimately, in sum, the Supreme Court ruled that even though being placed on the Registry is significant, there is no legal justification to apply the clear and convincing evidence standard as opposed to the substantial evidence standard when deciding whether to place someone on it.

Originally published in The Legal Intelligencer on January 20, 2015 and can be viewed here.

Aristotle watches Blade Runner

This is from edwardfeser.blogspot.com which you can find here.  This blog is written by Edward Feser who is a Christian philosopher who I have been recently introduced to who I think provides effective clear, sobering, and direct responses to the advance of secular culture.

Here is a portion of recent piece of his which I thought was rather edifying:

“You can never watch Blade Runner too many times, and I’m due for another viewing.  In D. E. Wittkower’s anthology Philip K. Dick and Philosophy, there’s an article by Ross Barham which makes some remarks about the movie’s famous “replicants” and their relationship to human beings which are interesting though, in my view, mistaken.  Barham considers how we might understand the two kinds of creature in light of Aristotle’s four causes, and suggests that this is easier to do with replicants than with human beings.  This is, I think, the reverse of the truth.  But Barham’s reasons are not hard to understand given modern assumptions (which Aristotle would reject) about nature in general and human nature in particular.

Barham suggests that, where replicants are concerned, a four-cause analysis would look something like this: their efficient cause is the Tyrell Corporation and its engineers; their material cause is to be found in the biological and mechanical constituents out of which they are constructed; their formal cause is the human-like pattern on which the Tyrell Corporation designed them; and their final cause is to function as human-like slave laborers.”

You can read the rest here.

U.S. Justices Allow Public Prayer at Town Board Meetings

 

The issue of public prayer was once again before the United States Supreme Court in the recent case of Town of Greece, New York v. Galloway, et al., 134 S.Ct. 1811 (2014). After an extensive analysis of the facts at issue, as well as American historical practice, the Court, through a majority opinion drafted by Justice Kennedy, ruled in favor of the town of Greece.

 

Galloway dealt with the local Town Board meetings of the small town of Greece, New York. The meetings took place on a monthly basis and were the forum for local municipal legislation and municipal decisions, such as whether to grant or deny zoning variances, as well as the opportunity for local citizens to express their concerns to the Board. Since 1999 the Board meetings have begun with an invocative prayer said by a local clergyman (sometimes called a chaplain) who faced the gathered citizens (as opposed to the Board) and more often than not invited those collected at the meeting to join him in his supplication to the Almighty.

 

The Plaintiffs in Galloway took issue not with the fact that the Board meetings begin with a prayer but the fact that the prayers are overwhelming offered by Christian clergy with a Christian theme and Christian references. Plaintiffs merely wanted the prayers offered to be more inclusive and only refer to a generic god. Plaintiffs brought suit against the town of Greece claiming that the aforesaid prayers, due to their frequent emphasis on Christianity, violated the First Amendment to the United States Constitution’s prohibition against an established religion.

 

Justice Kennedy wrote the majority opinion, ruling in favor of the town of Greece, and finding that the prayers described above did not violate the Constitution’s Establishment Clause; Justices Alito and Thomas wrote concurring opinions and Justices Breyer and Kagan wrote dissenting opinions.

 

In making his ruling, Justice Kennedy took note of a few facts to flesh out those described above. He noted the fact that none of the clergy selected were paid. Further, they were selected through the effort of the Board’s administrative staff contacting the local houses of worship as listed in the local Chamber of Commerce directory. There was no policy in Greece, official or unofficial, to only select Christian clergy. Greece never denied a non-Christian, if requested, to have an opportunity to offer the prayer before the Board meeting. Indeed, Greece never made any suggestions, stipulations, or requirements for the content of the prayers. Greece, when made aware of concerns, such as those made by Plaintiffs about the Christian bent of the clergy and prayers, made a conscious effort to seek out non-Christian people to offer the legislative prayers. Namely, Jewish, Baha’i, and even Wiccan prayers were subsequently offered by people who subscribe to those respective religions. Notably, Justice Kennedy did not believe that the prayer at issue was for the purpose of proselytizing or advancing one religion or disparaging others. Finally, Justice Kennedy noted that Greece was overwhelmingly Christian (over 90%) and virtually all of its houses of worship are also Christian; consequently, when seeking out clergy to pray, the Board administrative staff, without intent to discriminate, merely sought them from the houses of worship located in Greece as listed in the directory provided by the Chamber of Commerce. As it turns out, the synagogues, for example, which could have provided rabbis to offer (likely Jewish-oriented) legislative prayers to the Board are located just outside the boarders of Greece in neighboring Rochester and, therefore, not in the directory provided by the Chamber of Commerce.

 

Justice Kennedy’s ruling relied very heavily upon an analysis of American historical tradition. It is Justice Kennedy’s view that prayers before a legislative body’s session (and he viewed the town of Greece’s Board to be a legislative body) serve, in part, the purpose of helping those present to be put into a solemn and deliberative frame of mind and lend gravity to the proceedings; significantly, the prayers did not take place while any legislation took place. He also engaged in an extensive description of American history. He noted that Congress has had legislative prayers since the dawn of the founding of the United States and, further, practically every state in the union has legislative prayer as well, most since their founding. Such symbolic expressions, such as legislative prayers, to Kennedy, serve as a tolerable acknowledgment of widely held beliefs. Indeed, Kennedy stated that the near universal practice, since the founding of the nation, of legislative prayer, all of which has survived constitutional analysis, logically implies that there is nothing in this practice which threatens the Establishment Clause of the U.S. Constitution. Additionally, when reviewing American history and practice, he found nothing to support the notion that, if permitted, legislative prayer had to somehow be non-sectarian or ecumenical. Indeed, in Kennedy’s view, government censoring and/or editing of the prayers would violate the Constitution as it involves unlawful government analysis of religion and its teachings/doctrines. Contrariwise, Justice Kennedy found the opposite, namely that the prayers, which have been offered since the country’s founding, often do have a sectarian bent or focus (by coincidence, typically Christian) and none of these have been found to run afoul of the Establishment Clause. Instead, Kennedy asserted, once prayer is invited into a legislative session, the government must permit the person delivering the prayer to pray as his conscience dictates. The long tradition of legislative prayer in this country assumes that those listening are firm in their own beliefs and tolerant of ceremonial prayer, even if delivered by someone of a different faith.

 

Justice Kennedy, even if there may have been a prayer at a Greece town Board that was objectionable, did not see any sort of pattern of behavior which would suggest a successful constitutional challenge. In Kennedy’s view, the fact that Greece happens to be overwhelming Christian, which necessarily influences who its Board selects as its chaplain to deliver its prayers, is not relevant, while the fact that Greece has a policy of non-discrimination is directly relevant. Kennedy did not believe Greece has any obligation to seek out chaplains outside of Greece or specifically non-Christian chaplains to deliver the prayers at its Board meetings. Kennedy did not believe that anyone present would feel unconstitutionally coerced into unwilling participating in a religion not of the listener’s choice; indeed Kennedy pointed out that the members of the public where never directed, obliged, and/or coerced to participate. Instead, Kennedy ruled that it is presumed that a reasonable observer would be familiar with the tradition of legislative prayer and its purpose in that context (described above). Regardless, Justice Kennedy asserted that taking offense does not equate to being coerced; in his view a brief acknowledgment of religion for a ceremonial purpose, even if sectarian, is consistent with the Establishment Clause.

 

Concurring and dissenting opinions were also entered by Justice Kennedy’s colleagues and they are described briefly below. Justice Thomas entered a concurrence which emphasized his position that the long-standing doctrine of constitutional incorporation through the 14th Amendment to the Constitution does not apply to the Establishment Clause. Notably the citations in his concurrence were largely to his own previous opinions. Justice Thomas argues that as the Establishment clause directly references Congress it, by its own terms and, therefore, by definition, cannot be applied to the states as it applies only to Congress, which would leave states open to establishing local state religions. Justice Alito wrote separately only to point out that the dissent merely wishes the prayer to be generic and nonsectarian, not ban the practice of the prayer altogether. In Justice Alito’s, view then, the dissent’s issue is prayer topic not the prayer itself and he did not find any support in American jurisprudence for the suggestion that legislative prayer must be nonsectarian. Further, in light of the fact that Greece had no animus toward religious minorities, did not intentionally discriminate, and tried to achieve some diversity, Justice Alito believed the other matter with which the dissent took issue could simply be summed up as a criticism of Greece’s poor chaplain selection process, which, in Justice Alito’s view, could easily be remedied and did not rise to a constitutional violation.

 

Justices Breyer and Kagan submitted dissenting opinions. Justice Breyer took note that Greece, when selecting chaplains, knew that it would be unlikely that a non-Christian would be chosen from among the clergy in the town, did not inform anyone in the town that they would accept chaplain volunteers, and did not instruct the chaplains not to proselytize or disparage the faith of another; in other words, Christianity was, if not de jure, was de facto established by the legislative prayers at issue herein. He felt the actions of Greece to become more diverse (e.g.: seeking out chaplains of other faiths) were too little to late, especially as they were only taken due to complaints and the subsequent litigation which led to his opinion.

 

Justice Kagan’s dissent takes the reader through a series of hypothetical situations in which she asks the reader to place himself into them as an imaginary participant. Justice Kagan’s dissent echoed that of Justice Breyer in most respects. Ultimately, for Justice Kagan, she believed the consistent, for many years and month upon month, of a nearly unbroken string of Christian prayers at the Board meetings amounted to endorsement of Christianity by the Board. Especially, like Justice Breyer, she believed the efforts taken by the Board to diversify were rather weak. Justice Kagan, too, like the majority, cites to American tradition and finds various references from the Founders to desiring a religiously inclusive nation which, she believed, did not find its fulfillment in Greece. Relatedly, Justice Kagan distinguishes the long tradition of Congressional prayer from the prayer in Greece as the prayer offered before Congress is made only to its members, and Congress does not receive direct participation from the public, all of which is the exact opposite to Greece’s Board where prayer for the proceedings is offered to the public while the public directly participates at the Board meetings. Further, she focused heavily on the potential thoughts and feelings of a hypothetical participant at the Board meetings. Justice Kagan felt that a chaplain, facing the people (not the Board), at a Board meeting where the public is invited to speak to the Board, placed a scrupulous non-Christian in the unenviable position of forcing him to choose between participating in a prayer that offends his conscience or making himself known – and separate from the rest of his town – by refusing to participate in the prayer. She wondered what the potential effect his public refusal to participate in the prayer could be on what he sought from the Board. For Justice Kagan, a member of the public ought not have to worry about whether his participation in a prayer could (or would) effect the success or failure of his goals at the Board meetings. She believed such a choice to be unconstitutional as it created a de facto religious standard for a Board meeting and coerced those in attendance to, more or less, participate in religion (or publicly separate oneself from it).

 

Although sharply divided by a 5 to 4 vote in its decision, all 9 justice appear to agree that legislative prayer, which is religious but generally non-sectarian (especially if it only involves the legislature as opposed to the general public present) meets Constitutional scrutiny. At present, the mind of the Court is that legislative prayer, even if largely sectarian, is compliant with Constitutional standards as long as it does not proselytize or disparage other religions and the legislative body (or government) engaged in the prayer is non-discriminatory in its selection of prayers and chaplains.

Originally published on June 24, 2014 in The Legal Intelligencer and can be seen here.

Priest Finds No Redemption in Phila. Court of Common Pleas

Church and state have always had a give-and-take relationship and that relationship was put to the test again in the April 15, 2014 Opinion issued by Judge Lisa M. Rau in the recent case, Warnick v. All Saints Episcopal Church, et al., Court of Common Pleas, Philadelphia County, Case No.: 111201539, 714 EDA 2014.

In Warnick, the Plaintiff, the Reverend Jeremy M. Warnick (“Fr. Warnick”), an Episcopal priest, brought suit against Defendants (collectively “Defendants”) comprising of his former parish, All Saints Episcopal Church, Rhawnhurst (“Parish”), the Right Reverend Charles E. Bennison (bishop of the Episcopal Diocese of Pennsylvania) (“Bishop”), and three parishioners of All Saints Episcopal Church for claims more or less sounding in defamation and contract. The Defendants filed a motion for summary judgment which was granted by the Court and appealed by Fr. Warnick.

It is undisputed by Fr. Warnick that he, as an Episcopal priest, is required, in his role as priest, to comply with the standards and discipline of the Episcopal Church and that his ecclesiastical authority while serving in the Diocese of Pennsylvania was the Bishop. Fr. Warnick also acknowledged that the Bishop has authority to grant or revoke a priest’s license to engage in official ministerial functions in his diocese and must approve any contract for the employment of any priest by any parish within his diocese.

During Fr. Warnick’s tenure as parish priest of All Saint’s Church, disputes arose between him and members of the Parish. The aforesaid disputes centered on the following: (1) Fr. Warnick’s changes to the worship service; (2) Fr. Warnick’s decisions on how to use the Parish’s endowment fund; (3) Fr. Warnick’s accessibility to his flock; (4) Fr. Warnick’s Facebook post regarding a “sexual position quiz”; and, perhaps most controversial of all, (5) Fr. Warnick allegedly living with a paramour in the rectory while already married to another woman (Fr. Warnick did eventually marry his paramour after he divorced his wife, but did so in a Methodist Church instead of an Episcopal Church as he did not comply with Episcopal canons on remarriage after divorce). The Parish and Fr. Warnick were not able to resolve the above-described disputes. Eventually, the Vestry (the controlling board of laypeople at the Parish) voted to retain a priest only part-time instead of the full time Fr. Warnick. Fr. Warnick admitted that posting the material described above on Facebook and living with a woman to whom he was not married could be considered conduct unbecoming a member of the clergy but he asserted that only an ecclesiastical court could make such a determination.

Ultimately, the dispute between the Parish and Fr. Warnick reached the point where the Parish sought the intervention of the Bishop who revoked Fr. Warnick’s license to function as priest in the Diocese of Pennsylvania. According to Episcopal Church’s canons (internal church law), Fr. Warnick’s being canonically a resident in the Diocese of Arizona, limited the ability of the Bishop to investigate the substance of the disputes, so revoking Fr. Warnick’s license was the Bishop’s only practical choice to resolve the dispute.

In order to announce his decision, the Bishop issued a letter to the Parish indicating that he revoked Fr. Warnick’s license and that accusations were made which could amount to conduct unbecoming of the clergy, but as he could not verify their truth or falsity, the extent of his authority was to simply revoke Fr. Warnick’s license. An email was sent by one parishioner to another noting that some people were dissatisfied with Fr. Warnick and repeating the allegation that he lived with a paramour, but qualified it by saying “I am not saying it is true or not true.” Despite being terminated from his employment with the Parish, the Parish compensated Fr. Warnick for his entire employment contract.  Fr. Warnick filed a canonical complaint against the Bishop within the ecclesiastical courts but was unsuccessful, which led to his initiating the civil action discussed herein.

The Court’s analysis of this matter began with the First Amendment of the United States Constitution’s provision proscribing government interference with religion. Citing the long history of First Amendment jurisprudence, the Court unequivocally acknowledged that a religious body has virtually absolute control over who can function as its ministers and by what standards they are to be measured and employed. The Court recognized that the law and the courts must defer to a religion’s decision to employ or not employ a minister and that such a decision is the exclusive province of a religion, otherwise the First Amendment right to the free exercise of religion is irreparably compromised as choosing its ministers is one of the most fundamental actions a religion can take in furtherance of its worship, practice, teaching, and administration. Therefore, the Court ruled that Fr. Warnick’s contract claims, which attempt to have the Court analyze the Parish and/or the Bishop’s decision to terminate Fr. Warnick’s employment, must be dismissed as this would require the Court to impermissibly delve into a religion’s employment practices. Similarly, the Court also dismissed Fr. Warnick’s defamation claims as they, too, require the Court to impermissibly entangle itself in religious issues through attempting to interpret church canons in order to determine whether the statements were defamatory. Such an analysis is beyond the scope of the Court’s authority under the First Amendment’s guarantee of religious freedom from government intrusion.

Although Fr. Warnick’s claims fail under the First Amendment of the United States Constitution, the Court made it clear that his claims would have also failed regardless of the First Amendment. The Court did not believe the statements made were defamatory. First, the statements were true as they merely identified the existence of a dispute on certain issues but did not comment on the truth or falsity of those issues. Regardless, Fr. Warnick admits to the Facebook post and residing in the same house with a woman who was not his wife. Indeed, Fr. Warnick himself participated in the letter issued by the Bishop referred to above by helping to distribute it to the congregation of the Parish. As far as the contract claims are concerned, the Court also ruled that the church had no obligation to renew Fr. Warnick’s employment contract upon its conclusion. Although the Bishop revoked Fr. Warnick’s license to minister, he was still compensated for the entire length of his contract and permitted to live in the rectory for an additional six (6) months thereafter. Therefore, even if his employment contract was breached, he suffered no damages. Further, Fr. Warnick alleged that the Bishop interfered with his employment contract with the Parish, however the Court rejected this argument, noting that Fr. Warnick acknowledged that the Bishop must approve any contract for the employment of any priest by any parish within his diocese. Therefore, the Bishop cannot interfere with a contract in which he is involved. Finally, Fr. Warnick’s claims that the Defendants engaged in civil conspiracy were dismissed as none of the other claims he made against them survived the summary judgment process.

When it comes to a religion’s hiring or firing clergy and/or ministers, personnel of a religion have virtually sole and exclusive control. Otherwise, the government, through the Court, would have impermissible entanglement with religion which is barred by the First Amendment of United States Constitution. Fr. Warnick’s claims were ultimately unsuccessful as he asked the Court to involve itself in a church’s decision to terminate a clergyman which would unlawfully compromise the church’s right to choose its ministers and, consequently, practice its religion as it wishes.

Originally published in The Legal Intelligencer on May 29, 2014 and can be found here.

 

Marriage and The Matrix

This is from edwardfeser.blogspot.com which you can find here.  This blog is written by Edward Feser who is a Christian philosopher who I have been recently introduced to who I think provides effective clear, sobering, and direct responses to the advance of secular culture.  Usually when I reblog someone else’s post I only provide a teaser quote here and a link to the full blog post.  This piece is so good I have decided to post the entire thing here (as well as the link of course); it really demonstrates in stark relief just how baseless the arguments are in favor of same sex marriage.  I really cannot say anything that could do the piece justice so I will stop trying.  Here is the blog post in full (and you can find the original post here):

“Suppose a bizarre skeptic seriously proposed — not as a joke, not as dorm room bull session fodder, but seriously — that you, he, and everyone else were part of a computer-generated virtual reality like the one featured in the science-fiction movie The Matrix.  Suppose he easily shot down the arguments you initially thought sufficient to refute him.  He might point out, for instance, that your appeals to what we know from common sense and science have no force, since they are (he insists) just part of the Matrix-generated illusion.  Suppose many of your friends were so impressed by this skeptic’s ability to defend his strange views — and so unimpressed by your increasingly flustered responses — that they came around to his side.  Suppose they got annoyed with you for not doing the same, and started to question your rationality and even your decency.  Your adherence to commonsense realism in the face of the skeptic’s arguments is, they say, just irrational prejudice.
No doubt you would think the world had gone mad, and you’d be right.  But you would still find it difficult to come up with arguments that would convince the skeptic and his followers.  The reason is not that their arguments are rationally and evidentially superior to yours, but on the contrary because they are so subversive of all rationality and evidence — indeed, far more subversive than the skeptic and his followers themselves realize — that you’d have trouble getting your bearings, and getting the skeptics to see that they had lost theirs.  If the skeptic were correct, not even his own arguments would be any good — their apparent soundness could be just another illusion generated by the Matrix, making the whole position self-undermining.  Nor could he justifiably complain about your refusing to agree with him, nor take any delight in your friends’ agreement, since for all he knew both you and they might be Matrix-generated fictions anyway.
So, the skeptic’s position is ultimately incoherent.  But rhetorically he has an advantage.  With every move you try to make, he can simply refuse to concede the assumptions you need in order to make it, leaving you constantly scrambling to find new footing.  He will in the process be undermining his own position too, because his skepticism is so radical it takes down everything, including what he needs in order to make his position intelligible.  But it will be harder to see this at first, because he is playing offense and you are playing defense.  It falsely seems that you are the one making all the controversial assumptions whereas he is assuming nothing.  Hence, while your position is in fact rationally superior, it is the skeptic’s position that will, perversely, appear to be rationally superior.  People bizarrely give him the benefit of the doubt and put the burden of proof on you.

 

This, I submit, is the situation defenders of traditional sexual morality are in vis-à-vis the proponents of “same-sex marriage.”  The liberal position is a kind of radical skepticism, a calling into question of something that has always been part of common sense, viz. that marriage is inherently heterosexual.  Like belief in the reality of the external world — or in the reality of the past, or the reality of other minds, or the reality of change, or any other part of common sense that philosophical skeptics have challenged — what makes the claim in question hard to justify is not that it is unreasonable, but, on the contrary, that it has always been regarded as a paradigm of reasonableness.  Belief in the external world (or the past, or other minds, or change, etc.) has always been regarded as partially constitutive of rationality.  Hence, when some philosophical skeptic challenges it precisely in the name of rationality, the average person doesn’t know what to make of the challenge.  Disoriented, he responds with arguments that seem superficial, question-begging, dogmatic, or otherwise unimpressive.  Similarly, heterosexuality has always been regarded as constitutive of marriage.  Hence, when someone proposes that there can be such a thing as same-sex marriage, the average person is, in this case too, disoriented, and responds with arguments that appear similarly unimpressive.

 

Like the skeptic about the external world (or the past, or other minds, or change, etc.) the “same-sex marriage” advocate typically says things he has no right to say consistent with his skeptical arguments.  For example, if “same-sex marriage” is possible, why not incestuous marriage, or group marriage, or marriage to an animal, or marriage to a robot, or marriage to oneself?  A more radical application of the “same-sex marriage” advocate’s key moves can always be deployed by a yet more radical skeptic in order to defend these proposals.  Yet “same-sex marriage” advocates typically deny that they favor such proposals.  If appeal to the natural ends or proper functions of our faculties has no moral significance, then why should anyone care about whether anyone’s arguments — including arguments either for or against “same-sex marriage” — are any good?  The “same-sex marriage” advocate can hardly respond “But finding and endorsing sound arguments is what reason is for!”, since he claims that what our natural faculties and organs are naturally for is irrelevant to how we might legitimately choose to use them.  Indeed, he typically denies that our faculties and organs, or anything else for that matter, are really for anything.  Teleology, he claims, is an illusion.  But then it is an illusion that reason itself is really for anything, including arriving at truth.  In which case the “same-sex marriage” advocate has no business criticizing others for giving “bigoted” or otherwise bad arguments.  (Why shouldn’t someone give bigoted arguments if reason does not have truth as its natural end?  What if someone is just born with an orientation toward giving bigoted arguments?)  If the “same-sex marriage” advocate appeals to current Western majority opinion vis-à-vis homosexuality as a ground for his condemnation of what he labels “bigotry,” then where does he get off criticizing past Western majority opinion vis-à-vis homosexuality, or current non-Western moral opinion vis-à-vis homosexuality?   Etc. etc.

 

So, the “same-sex marriage” advocate’s position is ultimately incoherent.  Pushed through consistently, it takes down everything, including itself.  But rhetorically it has the same advantages as Matrix-style skepticism.  The “same-sex marriage” advocate is playing offense, and only calling things into doubt — albeit selectively and inconsistently — rather than putting forward any explicit positive position of his own, so that it falsely seems that it is only his opponent who is making controversial assumptions.

 

Now, no one thinks the average person’s inability to give an impressive response to skepticism about the external world (or about the reality of the past, or other minds, etc.) makes it irrational for him to reject such skepticism.  And as it happens, even most highly educated people have difficulty adequately responding to external world skepticism.  If you ask the average natural scientist, or indeed even the average philosophy professor, to explain to you how to refute Cartesian skepticism, you’re not likely to get an answer that a clever philosopher couldn’t poke many holes in.  You almost have to be a philosopher who specializes in the analysis of radical philosophical skepticism really to get at the heart of what is wrong with it.  The reason is that such skepticism goes so deep in its challenge to our everyday understanding of notions like rationality, perception, reality, etc. that only someone who has thought long and carefully about those very notions is going to be able to understand and respond to the challenge.  The irony is that it turns out, then, that very few people can give a solid, rigorous philosophical defense of what everyone really knows to be true.  But it hardly follows that the commonsense belief in the external world can be rationally held only by those few people.

 

The same thing is true of the average person’s inability to give an impressive response to the “same-sex marriage” advocate’s challenge.  It is completely unsurprising that this should be the case, just as it is unsurprising that the average person lacks a powerful response to the Matrix-style skeptic.  In fact, as with commonsense realism about the external world, so too with traditional sexual morality, in the nature of the case relatively few people — basically, traditional natural law theorists — are going to be able to set out the complete philosophical defense of what the average person has, traditionally, believed.  But it doesn’t follow that the average person can’t be rational in affirming traditional sexual morality.  (For an exposition and defense of the traditional natural law approach, see “In Defense of the Perverted Faculty Argument,” in Neo-Scholastic Essays.)

 

Indeed, the parallel with the Matrix scenario is even closer than what I’ve said so far suggests, for the implications of “same-sex marriage” are very radically skeptical.  The reason is this: We cannot make sense of the world’s being intelligible at all, or of the human intellect’s ability to understand it, unless we affirm a classical essentialist and teleological metaphysics.  But applying that metaphysics to the study of human nature entails a classical natural law understanding of ethics.  And that understanding of ethics in turn yields, among other things, a traditional account of sexual morality that rules out “same-sex marriage” in principle.  Hence, to defend “same-sex marriage” you have to reject natural law, which in turn requires rejecting a classical essentialist and teleological metaphysics, which in turn undermines the possibility of making intelligible either the world or the mind’s ability to understand it.  (Needles to say, these are large claims, but I’ve defended them all at length in various places.  For interested readers, the best place to start is, again, with the Neo-Scholastic Essays article.)

 

Obviously, though, the radically skeptical implications are less direct in the case of “same-sex marriage” than they are in the Matrix scenario, which is why most people don’t see them.  And there is another difference.  There are lots of people who believe in “same-sex marriage,” but very few people who seriously entertain the Matrix hypothesis.  But imagine there was some kind of intense sensory pleasure associated with pretending that you were in the Matrix.  Suppose also that some people just had, for whatever reason — environmental influences, heredity, or whatever — a deep-seated tendency to take pleasure in the idea that they were living in a Matrix-style reality.  Then, I submit, lots of people would insist that we take the Matrix scenario seriously and some would even accuse those who scornfully rejected the idea of being insensitive bigots.  (Compare the points made in a recent post in which I discussed the special kind of irrationality people are prone to where sex is concerned, due to the intense pleasure associated with it.)

 

So, let’s add to my original scenario this further supposition — that you are not only surrounded by people who take the Matrix theory seriously and scornfully dismiss your arguments against it, but some of them have a deep-seated tendency to take intense sensory pleasure in the idea that they live in the Matrix.  That, I submit, is the situation defenders of traditional sexual morality are in vis-à-vis the proponents of “same-sex marriage.”   Needless to say, it’s a pretty bad situation to be in.

 

But it’s actually worse even than that.  For suppose our imagined Matrix skeptic and his followers succeeded in intimidating a number of corporations into endorsing and funding their campaign to get the Matrix theory widely accepted, to propagandize for it in movies and television shows, etc.  Suppose mobs of Matrix theorists occasionally threatened to boycott or even burn down bakeries, restaurants, etc. which refused to cater the meetings of Matrix theorists.  Suppose they stopped even listening to the defenders of commonsense realism, but just shouted “Bigot!  Bigot!  Bigot!” in response to any expression of disagreement.  Suppose the Supreme Court of the United States declared that agreement with the Matrix theory is required by the Constitution, and opined that adherence to commonsense realism stems from an irrational animus against Matrix theorists.

 

In fact, the current position of opponents of “same-sex marriage” is worse even than that.  Consider once again your situation as you try to reason with Matrix theorists and rebut their increasingly aggressive attempts to impose their doctrine via economic and political force.  Suppose that as you look around, you notice that some of your allies are starting to slink away from the field of battle.  One of them says: “Well, you know, we have sometimes been very insulting to believers in the Matrix theory.  Who can blame them for being angry at us?  Maybe we should focus more on correcting our own attitudes and less on changing their minds.”  Another suggests: “Maybe we’ve been talking too much about this debate between the Matrix theory and commonsense realism.  We sound like we’re obsessed with it.  Maybe we should talk about something else instead, like poverty or the environment.”  A third opines: “We can natter on about philosophy all we want, but the bottom line is that scripture says that the world outside our minds is real.  The trouble is that we’ve gotten away from the Bible.  Maybe we should withdraw into our own faith communities and just try to live our biblically-based belief in external reality the best we can.”

 

Needless to say, all of this is bound only to make things worse.  The Matrix theory advocate will smell blood, regarding these flaccid avowals as tacit admissions that commonsense realism about the external world really has no rational basis but is simply a historically contingent prejudice grounded in religious dogma.  And in your battle with the Matrix theorists you’ll have discovered, as many “same-sex marriage” opponents have, that iron law of politics: that when you try to fight the Evil Party you soon find that most of your allies are card-carrying members of the Stupid Party.

 

So, things look pretty bad.  But like the defender of our commonsense belief in the external world, the opponent of “same-sex marriage” has at least one reliable ally on his side: reality.  And reality absolutely always wins out in the end.  It always wins at least partially even in the short run — no one ever is or could be a consistent skeptic — and wins completely in the long run.  The trouble is just that the enemies of reality, though doomed, can do a hell of lot of damage in the meantime.”

Red Light Camera Dust Up in Des Moines

It’s been a few months since I have written about red light cameras, but a new issue has arisen in the great state of Iowa that is worth noting here in this blog.  As my readers know, I have been writing about red light cameras for some time now and vocally opposing them.  I have written articles on the subject (see here and here) and blogged on it (here and here and here and here and here and here and here and here and here) many times.

According to a recent article in the Chicago Tribute, two women in Des Moines, Iowa are attempting to initiate a class action law suit against the City of Des Moines for its use of red light cameras.  Their claims appear to be constitutional as they claim that the cameras inhibit their freedom of travel and cannot be shown to have any positive impact on road safety.  The suit seeks to have the red light camera program shut down and the fines assessed due to the cameras refunded.

Notably, the Iowa Department of Transportation has recommended that ten of Iowa’s thirty-four red light cameras ought to be shut down as they have not had any impact on road safety.  Probably not coincidentally, the plaintiffs in the above-mentioned law suit received tickets on one of the ten to be shut down.

I will be following this case and I will post any updates to this blog.

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