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Alleged Trauma

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

My Articles:

Musings:

Sorry, scientists. Religion is here to stay.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Death, Divorce and the Division of Property and Estates

When a party dies during the pendency of a divorce matter, a question immediately arises: will the matter be resolved pursuant to the Divorce Code (i.e.: 23 Pa.C.S.A. Section 3323(d.1)) or the Probate Code (i.e.: 20 Pa.C.S.A. Section 6111.2)? While the statutes are fairly clear, there are times where a circumstance still needs to be sorted out by the court. Such a case arose in the Superior Court of Pennsylvania matter of In re Estate of Michael J. Easterday, Deceased, 171 A.3d 911 (2017).

In the Easterday matter, the decedent, Michael Easterday, passed from this life on Sept. 21, 2014, and was survived by his two sons, a daughter and his second wife. About a year before Easterday’s death (Aug. 13, 2013), the wife filed for divorce against Easterday. In or about December 2013, Easterday and the wife entered into a postnuptial agreement in which the parties agreed to waive any and all rights to the pension and retirement plan of the other, including any and all rights possibly available as a surviving spouse or beneficiary. The agreement also specifically states that it would remain in full force and effect without regard to future reconciliation, change in marital status, and entry of divorce decree absent a future written agreement.

 In November 2013, the wife furnished Easterday with an affidavit of consent to divorce pursuant to 23 Pa.C.S.A. Section 3301(c). Not long after, Easterday executed the aforesaid affidavit and returned it to the wife. The wife, for an unknown reason, retained the aforesaid affidavit for approximately six weeks (until mid-January 2014) before providing it to her attorney for filing. Pursuant to Pennsylvania law, an affidavit of consent must be filed within 30 days of its execution (i.e., approximately December 2013). Later in January 2014 the wife proceeded with the divorce and filed for a final decree, but Easterday died before a decree was entered. A decree in divorce was ultimately never entered as Easterday’s affidavit of consent was stale.

Critically, at the time of Easterday’s passing, the wife remained the beneficiary of his pension and life insurance policy. Upon Easterday’s death, the wife immediately withdrew the divorce matter and collected on Easterday’s pension and life insurance policy.

In response to the wife’s petition with the court seeking to compel the wife to preserve and return the pension and insurance money she received. The estate contended that the postnuptial controlled the distribution of the aforesaid funds (specifically that the wife was not entitled to receive them) and Easterday’s designation of the wife as beneficiary of his insurance policy became ineffective pursuant to 20 Pa.C.S.A. Section 6111.2. In response, the wife argued that the postnuptial did not apply as the beneficiary designations were never changed, that 20 Pa.C.S.A. Section 6111.2 did not apply as the affidavit of consent was “stale,” that the parties were reconciling at the time of his death, and because of those reasons, Easterday intended that the wife remain his beneficiary.

After a hearing, the trial court ruled that the estate was entitled to Easterday’s pension, as it was addressed in the postnuptial, while the wife could retain the life insurance proceeds as they were not addressed in the postnuptial. Both parties filed exceptions, which were unsuccessful, leading to appeals by both parties to Superior Court which issued the decision described herein.

23 Pa.C.S.A. Section 3323(g), which is part of the Divorce Code, states: “(g) Grounds established . . . (2)  In the case of an action for divorce under section 3301(c), both parties have filed affidavits of consent or, if the presumption in section 3301(c)(2) is established, one party has filed an affidavit of consent … (3)  In the case of an action for divorce under section 3301(d), an affidavit has been filed and no counter-affidavit has been filed or, if a counter-affidavit has been filed denying the affidavit’s averments, the court determines that the marriage is irretrievably broken and the parties have lived separate and apart for at least one year at the time of the filing of the affidavit.” In the Probate Code, 20 Pa.C.S.A. Section 6111.2(a)(3)(ii) states “this section is applicable if an individual … dies during the course of divorce proceedings, no decree of divorce has been entered pursuant to 23 Pa.C.S. Section 3323 (relating to decree of court) and grounds have been established as provided in 23 Pa.C.S. Section 3323(g).” When evaluating the applicable law mentioned above, the court raised Pa.R.C.P. 1920.17 as also applicable herein. Rule 1920.17 prohibits the withdrawal of a divorce (and its economic claims) if divorce grounds have been established and the Estate does not the consent. While the aforesaid Rule directly applies to 23 Pa.C.S. Section 3323, the court opined that the Rule should also apply to 20 Pa.C.S.A. Section 6111.2(a)(3)(ii) as it would be inappropriate to allow a surviving spouse the power to negate 20 Pa.C.S.A. Section 6111.2(a)(3)(ii) by simply discontinuing the divorce action unilaterally.

In reviewing the underlying facts of this matter, the court took note of the fact that the affidavit of consent was not filed within thirty days of its execution. As a result, the lower court determined that divorce grounds were never established. Although the Estate argued that the lateness of the affidavit does not negate what it argued was an intent to consent to the divorce, the court, relying on public policy considerations, ruled that a strict compliance with the Divorce Code is required. In the court’s view, the integrity of the family is to be protected and the seriousness of the dissolution of marriage warrants strict compliance with the deadlines and requirements laid out in the statute. Indeed, the court pointed out, the establishment of divorce grounds takes on an added significance when, not only is the dissolution of a marriage at issue, but, in this case, it would also determine whether the Divorce Code or the Probate Code applies. Furthermore, the court observed that Easterday had an extended opportunity of several months to rectify the “stale” affidavit before his passing, but chose not to do so. Based on the above, the court ruled that a “stale” affidavit of consent is insufficient to establish divorce grounds, especially in a matter where it is, in its estimation, far from clear that the decedent possessed an intent to divorce at the time of his death.  As a result, the Probate Code controls this case.

Ultimately, the court, applying 20 Pa.C.S.A. Section 6111.2, ruled that Easterday’s beneficiary designation on his life insurance is, therefore, valid, and the wife may retain the proceeds from the same.

In opposition to the estate’s arguments, the wife asserted that Easterday made a deliberate and conscious choice to give his pension to her through an irrevocable election that she be his beneficiary. Of course, the above is in direct conflict with the postnuptial, which, by its terms described above, definitively prohibits the wife from being such a beneficiary. The estate pointed out that the postnuptial was executed after the beneficiary election was made.

In reviewing the above, the court first noted that spouses may waive their right to the pension of the other if the waiver is specific. In its estimation, the postnuptial in the instant matter was clear and unambiguous, therefore its terms, namely that the wife waived her right to Easterday’s pension without regard to reconciliation, which could only be changed by a subsequent signed agreement, applies hereto.

Perhaps the most significant legal challenge to the postnuptial was the requirements of the Employment Retirement Income Security Act (ERISA). Pursuant to ERISA, a pension must be administered, and the proceeds therefrom distributed, according to the terms of the plan documents, and not alternative agreements, such as a postnuptial agreement. While acknowledging the applicability of ERISA to the pension in this matter, the court also indicated that, although ERISA may require the pension to be distributed to wife, the terms of the postnuptial can also apply by requiring Wife to turn over to the estate any and all sums she receives as a pension beneficiary.

In the end, the court entered a Solomonic decision to cut the pension “baby” in half: the wife can keep the life insurance policy proceeds while the estate is to receive from the wife the pension proceeds she received.

Originally published on December 26, 2017 in The Legal Intelligencer and can be found here.

Does the Immaterial Exist?

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

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One of the most common arguments from atheists is that matter is all that there is, and that the immaterial (God, angels, the human soul, etc.) simply doesn’t exist. This position is generally called “philosophical materialism,” although that term encompasses a number of distinct positions. In any case, here’s one of the clearest presentations of this argument:

When we speak of immaterial things, we are speaking of something that has no physical substance. Now, if you think about this, everything we know to exist has physical properties. Your arm, leg, mind, blood, teeth, tongue, and everything else are physical. They are in the form of your physical body. Your brain can’t work without physical/material processes of chemistry and electricity. Electricity can’t work without the physical electrons. A windmill can’t work without the physical air that passes across its blades. Everything we know to exist is physical.[….]

So, if God is not material, what is God? If there is no answer for what God is, all we can say is God doesn’t exist, or he exists nowhere and is comprised of nothing, which I don’t see how that isn’t the same exact thing. It is rather interesting how the theist description of what there God is actually puts their God out of existence.

Or, a shorter version of essentially the same argument:

If we are talking about immaterial existence, then there is nothing to differentiate an entity or “thing” which exists from one which does not exist.

Often (including in the second link provided), these discussions descend into debates over speculative science: whether or not dark energy or photons have mass, etc. But I think that this materialist argument can be answered easily, using agreed-upon evidence. In other words, the fact that the universe is made up of something other than matter is self-evident, and should be admitted by anyone, upon close reflection. In addition to matter, we also see immaterial forms that can dictate the nature and behavior of the matter itself.

We can observe forms in nature, and cannot account for them in purely material ways. This is true even of forms that cannot exist apart from matter.  Consider the following examples, from most to least technical:

  1. Isomers: This is my favorite example. When two or more (different) compounds share the same molecular formula, you have isomers. For example, there are three different compounds with the molecular formula C3H8O: methoxyethane (a colorless gas that is extremely flammable and reactive); propanol (a liquid solvent used in the pharmaceutical industry); and isopropyl alcohol (rubbing alcohol).These are different substances, with different chemical properties. Yet these differences are not material. They’re formal. That is, each of the three substances is made up of the identical atoms: 3 carbon, 8 hydrogen, and one oxygen. It is the arrangement of those molecules that determines whether the substance will be methoxyethanepropanol, or rubbing alcohol. The same matter, in different forms, produces different substances.
  2. Phase Changes: A more obvious example of this would be the phase changes of water. Depending on its form (solid, liquid, or gaseous), it exhibits different properties, and is structured differently. Yet it maintains the same molecular and structural formula.
  3. Surfaces: The surface of a table is not the table itself. Surfaces are immaterial, and have no mass, and occupy no three-dimensional space. If you doubt this, try to imagine a surface that is 3 feet deep. Whatever you are visualizing is not a surface, but a substance with surfaces of its own. But we can still observe that surfaces exist.
  4. Shapes: Envision two different objects of equal mass, made of identical materials. The first is a wooden cube, and the second is a wooden sphere. The difference between the two objects wouldn’t be material, but formal.

In each of these cases, the form itself is immaterial. To test this, take your wooden objects, and remove the matter that they have in common (the wood). Likewise, take your isomers, and remove the matter that they have in common (the carbon, hydrogen, and oxygen). The result will be the same: you will be left with nothing. But does that mean that the different objects were, in fact, the same? Of course not. It means only that, in each of these cases, differences exist between the substances, but these differences cannot be isolated by removing the material common to each. That’s because these differences are immaterial, rather than material.

Those cases are obvious enough. A less obvious, but dramatically more important, example of a perceivable form is life itself. Consider what philosopher Peter Kreeft fittingly named the “Dead Cow Argument”: you come across two cows — one that is alive, and one that has just died. What is the difference between these two cows? Craig Payne, quoting Kreeft, explains:

There appears to be no material difference (e.g., in size or weight or color) between the two cows. Yet something is clearly missing. What is it?” The obvious answer is that the cow is “clearly missing” its life – its “soul” or anima, in other words, its animating principle or form, that which causes the cow to live and develop as a cow.

So the living and the dead cow, at this point, are still materially identical. Nevertheless, we can immediately observe that an immaterial difference exists, and a radically important one. As Kreeft notes, both cows have air in their lungs, but only one can breathe. This distinction is, as noted above, the “animating” principle of the matter: the form enabling a particular material substance to live. It is from this that we have the simplest understanding of what a soul is: the animating principle of a body.

Certainly, this is only the beginning of a discussion on the soul, not the end. We’re still left to determine what sort of a thing the immaterial soul is, whether a human soul is like a cow soul, and so on.  But this line of reasoning does dispel the absurd notion that the material is all that there is.

By Joe Heschmeyer and originally published on September 6, 2017 in Word on Fire and can be found here.

The Fruits Of Same-Sex Marriage

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

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Australia is about to have a plebiscite over whether or not to have same-sex marriage. Writing in the Spectator‘s Australian edition, David Sergeant asks readers to consider what has happened in Britain since same-sex marriage became the law of the land. If it had been only marriage law that changed, it might have been tolerable. But of course there has been much more — as we’ve seen in the US, though not (yet) to the extent Britain has. Among the results:

Much was made in the UK, about supposed exemptions, designed to ensure that believers would always be allowed to stay true to their convictions.

Four years later, the very same people who made ‘heartfelt promises’, now work tirelessly to undermine them.

Equalities minister Justine Greening, has insisted that churches must be made to: ‘Keep up with modern attitudes. Likewise, the Speaker of the House of Commons, a position supposedly defined by its political neutrality, had this to say: I feel we’ll only have proper equal marriage when you can bloody well get married in a church if you want to do so, without having to fight the church for the equality that should be your right’.

It became clear, during this year’s general election, just how militant the LGBT lobby have become, following marriage redefinition.

I’ll say. You’ve got to read this. And, Sergeant says the gay marriage movement, and its second-generation SOGI (Sexual Orientation and Gender Identity) offshoots, have moved into education too:

Across the UK, ‘sex education’ has been transformed and disfigured. TV programmes, aimed at children as young as three, promote ‘gender fluidity’, as an enabler of thoughtfulness and individuality.

At the same time, Ministers have denied worried parents the right to withdraw their children from primary school classes. Meanwhile, ‘outside educators’ teach children about sex positions, ‘satisfying’ pornography consumption and how to masturbate. Concerns regarding STI’s and Promiscuity, are derided as ‘old-fashioned’.

Independent religious schools are under intense scrutiny. Dame Louise Casey, a senior government advisor, recently insisted that it is now: ‘Not Ok for Catholic schools to be homophobic and anti-gay marriage’.

Ofsted, the body responsible for school-assessment, has been wildly politicised. In 2013, Prior to the redefinition of marriage, Ofsted visited Vishnitz Jewish Girls School. They passed the school with flying colours. In fact, they went out of their way to highlight the committed and attentive approach to student welfare and development. Four years later, Ofsted returned. This time, they failed the school on one issue alone. While again, noting that students were ‘confident in thinking for themselves‘, their report, pointed to the inadequate promotion of homosexuality and gender reassignment. As such, it was failing to ensure: ‘a full understanding of fundamental British values’. It is one of an initial seven faith schools that face closure.

But those men and women who ought to have spoken out against this madness, and who ought to be speaking out now, to save what’s left, lack all conviction. Sergeant:

I mentioned that I was writing this article to a good friend in the Conservative Party, back at home. He expressed his genuine concern. Had I not considered the consequences? Did I not realise that what I said in Australia could be found when I returned to the UK? ‘LGBT progress is an unstoppable tide’. He assured me, that it was ok for me to ‘privately’ believe that marriage was between one man and one woman. He even privately agreed, that the stuff being taught in primary schools was too much.

But to say it out loud? To actually have it in print? It would blight my career and my personal relationships.

Good God. How much more important the institution of marriage and freedom of thought, religion and speech. How much more important the future of our children, than any naïve career ambitions I might harbour.

I urge every Aussie to examine the evidence, analysis the results and be clear about what you’re voting for. If it was solely marriage, it would worth preserving.

It’s infinitely more.

Read the whole thing. This is a clear manifestation of the Law of Merited Impossibility (“It will never happen, and when it does, you bigots will deserve it.”) It is now perfectly clear that those American activists and allies who said that changing marriage law would not be a big deal, and would only mean allowing same-sex couples to marry, were lying — either by intention, or by naively assuming that the juggernaut would stop right there and go no further. A friend of mine told me a couple of weeks ago that two second graders in his kid’s school are “transitioning,” and that his high school daughter came home from school to inform her parents that believing in “the gender binary” is tantamount to racial hatred.

As the SOGI phenomenon achieves cultural hegemony, orthodox Christians are going to be marginalized and scapegoated more and more. If you are a pastor or some kind of church leader, and you aren’t mobilizing your congregation to understand the times and get active to resist this, what is wrong with you? If you are a social or religious conservative who thinks somehow that this is going to pass you by, and leave your kids and your church and your kids’ school alone, so you don’t have to worry about it, well, what is wrong with you?

We have to fight in politics, we have to fight in the courts, but none of those battles will be worth winning if we haven’t fought in schools, churches, families, and elsewhere in the culture to defend our convictions. And note well, it cannot simply be a matter of saying what we are against; it must also, and even more strongly, be a matter of saying what we are for — and then doing what we must to live those things out, as well as to build the institutions, networks, and cells within which to build resistance.

Everybody else, say hello to Lactatia, the eight-year-old drag queen, in this clip from Elle magazine. That’s what Weimar America’s betters think of as a child hero and role model. The Soviets had Pavlik Morozov, the child hero who denounced his father to Stalin’s agents. We’ve got Lactatia.

By Rod Dreher and published in The American Conservative on September 8, 2017 and can be found here.

A Collection of Unemployment Compensation Law Writings by James W. Cushing, Esquire

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

Articles:

Blog Posts:

Democrats and ‘Dogma’: Are you now or have you ever been an ‘orthodox Catholic’?

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

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‘Why is it that so many of us on this side have this very uncomfortable feeling that—you know, dogma and law are two different things. And I think whatever a religion is, it has its own dogma. The law is totally different. And I think in your case, professor, when you read your speeches, the conclusion one draws is that the dogma lives loudly within you, and that’s of concern when you come to big issues that large numbers of people have fought for years in this country.”

Thus did California Sen. Dianne Feinstein pronounce on Wednesday that, by virtue of being a faithful Catholic, Amy Barrett, a respected law professor at Notre Dame, may have excluded herself from a federal judgeship. President Trump has nominated Ms. Barrett for the Seventh Circuit Court of Appeals. But the Democratic obsession with Ms. Barrett’s religion transformed what should have been a routine Senate confirmation hearing into a tour of the mind of the modern secular left.

The ugly implication of Mrs. Feinstein’s words is underscored by the context. She deployed them to suggest Ms. Barrett’s faith would lead her to substitute her personal beliefs for the law, basing the accusation primarily on a law review article Ms. Barrett wrote in 1998 as a law clerk.

Ms. Barrett and her co-author explicitly reached the opposite conclusion: “Judges cannot—nor should they try to—align our legal system with the Church’s moral teaching whenever the two diverge.”

The question addressed by the law review article was what Catholic judges ought to do when they conclude they cannot in good conscience apply the law as written because it clashes with their own moral views. If she was rattled by the question, Sen. Feinstein ought to have been reassured by the answer Ms. Barrett gave: They should recuse themselves.

David Rivkin, a constitutional litigator, says “the tenor of questions by Democrat Senators seemed designed more to challenge the ideas of Catholic orthodoxy—a subject more fitting for a theological debate than a Senate hearing.”

Proving Mr. Rivkin’s point. Sen. Dick Durbin jumped in to demand of Ms. Barrett: “Do you consider yourself an orthodox Catholic?” Does Mr. Durbin understand that he sounds like the Southern Baptist ministers in 1960 who thought Jack Kennedy shouldn’t be President because he’d take orders from the pope?

This questioning is part of a broader effort on the left to disqualify people with strong religious views from the public square. Ms. Feinstein’s smear about Ms. Barrett’s “dogma” dovetails with the left-wing Southern Poverty Law Center’s effort to label any outfit that doesn’t go along with its agenda a “hate group.”

Sen. Al Franken, the great legal philosopher, wrapped it all up nicely by accusing Ms. Barrett of having appeared before a “hate” group. He was referring to the Alliance Defending Freedom, a religious liberty outfit that the Southern Poverty Law Center designated a hate group because it adheres to traditional views about human sexuality and marriage.

As for judges imposing dogma over the law, it’s worth noting that not all dogmas are religious. Democratic interest groups are explicit in demanding that Democratic judicial nominees be committed to overturning Citizens United’s defense of free speech while brooking no modification in Roe v. Wade.

Let’s hope the Senate rejects the bigotry that marred Wednesday’s hearing and approves the eminently qualified Ms. Barrett for the Seventh Circuit. The federal bench could use more judges who understand their civic duty as well as Ms. Barrett does.

By “The Editorial Board” and originally published in The Wall Street Journal on September 7, 2017 and can be found here.

 

A Lesson Learned From Taylor Swift On the Meaning of Damages

Check out Faye Cohen’s post to her blog Toughlawyerlady!

ToughLawyerLady

The composer and singer, Taylor Swift, recently won a sexual assault lawsuit against a former radio host. He initially sued her stating that she had caused his dismissal. She countersued because she wanted the trial to serve as an “example to other women.” Swift only sought a single dollar in damages, which the jury awarded her.

Yes, Even $1.00 Award Has Implications       

The dollar awarded to Swift brings up some interesting points about how damages are calculated under the law. There are two parts to every case:

  • The first part is liability, meaning that one has to first prove their case before they are entitled to damages. Many people spend most of their energy on the facts of their case, as they are so personally involved in it.
  • Yet, once they are able to prove their case, the next step, and often the most important step, is for them to…

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What’s changed in Britain since same-sex marriage?

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

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Four years ago, amid much uncertainty, 400 British members of parliament voted to redefine marriage in the United Kingdom.

Then prime minister David Cameron announced that, despite having made no mention of the issue in his party’s pre-election manifesto, it would be MP’s who decided the fate of marriage.

Now, it’s Australia’s turn to choose. There’s one key difference. Unlike in Britain, it will be the people who decide.

Everyone agrees, whether they admit it or not. This is a decision of enormous significance.

Therefore, it seems sensible to analyse the consequences of the potential change, within nations in which redefinition has previously been carried out.

In the United Kingdom, it has become abundantly clear that redefinition has affected many people, across many spheres. At first glance, these spheres appeared distinct from marriage redefinition. However, subsequent changes, have proved that they are entirely intertwined.

Gender: Current Conservative Prime Minister, Theresa May, has revealed proposals to abolish the need for any medical consultation before gender reassignment. Simply filling out an official form will be sufficient. A ‘Ministry of Equalities’ press release, explicitly announced, that the proposals were designed to: ‘build on the progress’ of same-sex marriage. Guardian journalist Roz Kaveney boasted that changing your gender is now: Almost as simple as changing your name by statutory declaration’.

Manifestations of the ‘British gender revolution’ are not difficult to find. Transport for London, have prohibited the use of the ‘heteronormative’ words, such as ladies and gentlemen. Meanwhile, universities across the nation are threatening to ‘mark down’ students, who continue to use the words ‘he’ and ‘she’. Instead, ‘gender neutral pronouns’ such as ‘ze’, must be uniformly applied.

Such gender-theory radicalism has delighted Stonewall, the UK’s largest LGBT lobby. Their Orwellian tagline: Acceptance without exception’, can be seen plastered on posters and adverts. Politicians, attempt to ‘out-radical’ one another, in the race to be an original champion, in the next emancipatory front of ‘Trans-rights’.

Freedom of religion: Much was made in the UK, about supposed exemptions, designed to ensure that believers would always be allowed to stay true to their convictions.

Four years later, the very same people who made ‘heartfelt promises’, now work tirelessly to undermine them.

Equalities minister Justine Greening, has insisted that churches must be made to: ‘Keep up with modern attitudes. Likewise, the Speaker of the House of Commons, a position supposedly defined by its political neutrality, had this to say: I feel we’ll only have proper equal marriage when you can bloody well get married in a church if you want to do so, without having to fight the church for the equality that should be your right’.

It became clear, during this year’s general election, just how militant the LGBT lobby have become, following marriage redefinition. The primary target was Tim Farron, leader of England’s third largest political party, the Liberal Democrats. High-profile journalists had heard that Farron was a practising Christian. In every single interview thereafter, they demanded to know. Did he personally believe homosexual sex to be a sin? He practically begged the commentariat, to allow him to keep his personal faith and legislative convictions separate. For decades, he pointed out, he had out vocally and legislatively supported the LGBT Lobby. Likewise, he had long backed same-sex marriage, voting for it enthusiastically. This simply was no longer enough.

Shortly after the election campaign, Farron resigned. He stated that it was now impossible, for a believing Christian to hold a prominent position in British politics.

In a heartbreaking development and in spite of Britain’s ‘foster crisis’, aspiring foster parents who identify as religious, face interrogation. Those who are deemed unlikely to ‘celebrate’ homosexuality, have had their dreams of parenthood scuppered. This month, Britain’s High Court, ruled that a Pentecostal couple were ineligible parents. While the court recognised their successful and loving record of adoption, they decreed that above all else: ‘The equality provisions concerning sexual orientation should take precedence. How has Great Britain become so twisted? Practicing Jews, Muslims, Christians and Sikhs, who want to stay true to their religious teachings, can no longer adopt children.

Freedom of speech: In the lead-up to the Parliamentary vote, we witnessed almost incomprehensible bullying. David Burrows MP, a mild-mannered supporter of the ‘Coalition for Marriage’, had excrement thrown at his house. His children received death threats and their school address was published online. Similarly, ‘Conservative’ broadcaster Iain Dale promised to, ‘publicly out’ gay MP’s, who did not vote for redefinition.

Many hardworking Brits have lost their jobs. Consider Adrian Smith, sacked by a Manchester Housing Trust, for suggesting that the state: shouldn’t impose its rules on places of faith and conscience’. Or Richard Page, fired for gross misconduct after articulating, that children might enjoy better outcomes, were they to be adopted by heterosexual couples.

Simultaneously, contrary to ‘steadfast’ government assurances, small businesses have been consistently targeted. Courts in Northern Ireland ruled that the Asher’s Family bakery had acted unlawfully. What crime committed by this tiny business? Politely declining to decorate a cake with a political message in support of same-sex marriage. The courts maintained that business owners must be compelled to promote the LGBT cause, irrespective of personal convictions.

Even the National Trust, a British institution with over 4.2 million members, has decided to join the bullying LGBT crusade. A message went out. Each of the Trust’s 62,000 volunteers, would be required to wear a compulsory same-sex rainbow badge. Those who said they’d rather not were told they would be ‘moved out of sightuntil they were prepared to publicly demonstrate inclusive tolerance.

In retrospect, the silent majority in Britain remained silent for too long. Reflecting on redefinition, Ben Harris-Quinney, Chairman of the Bow Group think tank pondered that:‘Same-sex marriage was promoted in the UK, as an issue of supposed tolerance and equality. What we have seen, is the most unequal and intolerant outcomes of any political issue in recent history’.

Children: Across the UK, ‘sex education’ has been transformed and disfigured. TV programmes, aimed at children as young as three, promote ‘gender fluidity’, as an enabler of thoughtfulness and individuality.

At the same time, Ministers have denied worried parents the right to withdraw their children from primary school classes. Meanwhile, ‘outside educators’ teach children about sex positions, ‘satisfying’ pornography consumption and how to masturbate. Concerns regarding STI’s and Promiscuity, are derided as ‘old-fashioned’.

Independent religious schools are under intense scrutiny. Dame Louise Casey, a senior government advisor, recently insisted that it is now: Not Ok for Catholic schools to be homophobic and anti-gay marriage’.
Ofsted, the body responsible for school-assessment, has been wildly politicised. In 2013, Prior to the redefinition of marriage, Ofsted visited Vishnitz Jewish Girls School. They passed the school with flying colours. In fact, they went out of their way to highlight the committed and attentive approach to student welfare and development. Four years later, Ofsted returned. This time, they failed the school on one issue alone. While again, noting that students were ‘confident in thinking for themselves‘, their report, pointed to the inadequate promotion of homosexuality and gender reassignment. As such, it was failing to ensure: a full understanding of fundamental British values’. It is one of an initial seven faith schools that face closure.

I mentioned that I was writing this article to a good friend in the Conservative Party, back at home. He expressed his genuine concern. Had I not considered the consequences? Did I not realise that what I said in Australia could be found when I returned to the UK? ‘LGBT progress is an unstoppable tide’. He assured me, that it was ok for me to ‘privately’ believe that marriage was between one man and one woman. He even privately agreed, that the stuff being taught in primary schools was too much.

But to say it out loud? To actually have it in print? It would blight my career and my personal relationships.

Good God. How much more important the institution of marriage and freedom of thought, religion and speech. How much more important the future of our children, than any naïve career ambitions I might harbour.

I urge every Aussie to examine the evidence, analysis the results and be clear about what you’re voting for. If it was solely marriage, it would worth preserving.

It’s infinitely more.

By David Sergeant and originally published in The Spectator on September 7, 2017 and can be found here.

 

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