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Archive for the tag “constitution”

A Collection of Traffic Law Writings by James W. Cushing

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


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A Collection of Law and Religion Writings by James W. Cushing

Over the course of my career, I have written extensively on how law and religion intersect.  These writings have been published in The Legal IntelligencerUpon Further Review, and The Pennsylvania Family Lawyer as well as posted onto my blog.  I have collected these articles and blog posts and have listed them below.  Thanks for reading!




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.

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.


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