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The Homeless

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

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The issue of the homeless in society is starting to get more attention in the news in the United States. Unfortunately, I suspect that this is only because of the upcoming presidential election. It would be unfair to say that this issue gets no attention at other times, but it does seem to me that the level of attention has increased as a topic of interest for our federal elections. While any public attention to this issue is welcome – it is a real issue that needs to be addressed – it does seem that the form of attention and the ways of addressing it leave a lot to be desired. I think this is true from both a general perspective as well as a specifically distributist one.

Homelessness appears to be on the rise in the United States. While there always has been, and undoubtedly always will be (Mark 14:7) homeless among us, the number of people living on the streets does appear to have increased a great deal in recent years. It is possible that, with some cities declaring themselves to be “sanctuaries” for the homeless, some of them have managed to migrate to those urban centers. To the extent that this is true, it could be said that the number of homeless has not increased as much as the concentration in urban centers has. Why is this issue relevant to distributism? Because this social issue touches both on the economic and the political life of communities throughout the country and around the world.

From a distributist perspective, homelessness, like most things, should be handled on as local a basis as practically possible. Our current political and tax structure may limit this, but that can and should change. Religious and other private organizations should be the front line in providing hands-on assistance as much as possible. Locally run government assistance programs should be established for what these other organizations are not able to handle. From the distributist perspective, the fact that an issue is wide-spread does not mean that higher levels of government become the primary actors in addressing it. Therefore, distributism doesn’t prohibit higher levels of government from offering assistance to the local providers of helping those in need, but they must not be allowed to usurp the role of the local organizations and government in directly addressing the issue. Therefore, even though homelessness is an issue throughout our society, and addressing it may require assistance from state or federal government, this assistance does not include setting policy for, or direct management of, assistance to those in need when more local organizations can do this.

We cannot ignore the concerns of those in the community who are not homeless. Many of them would willingly help the homeless, but also need to have their own concerns related to this issue addressed. These people would have the most motivation to help the homeless for both altruistic and personal reasons. Altruistic because they can see those in need and want to assist them. Personal because they are being negatively impacted when the homeless block sidewalks and doorways, and defecate and urinate in public parks, on the sidewalks, and in the doorways. Customers are driven away, businesses suffer or close, which means that these people have less money available to help those in need. Eventually, they will move away, taking their businesses with them, which means that there are fewer people to support the programs to help the homeless.

Another aspect where our society seems to be failing to address the issue of homelessness is that those (in government) who have taken charge of addressing it don’t seem interested in identifying the various aspects to the problem. A “one size fits all” simple solution will not successfully address the issue because there are different reasons that people are homeless. You can’t simply say, “we’ll provide housing” to solve the problem if the problem goes beyond the simple availability of housing – and it does. While this is certainly a simplification, I believe we can identify at least four broad categories of homelessness which will clearly show that one solution will not be able to succeed in addressing the problem.

The first category, and maybe the largest, are those who are addicted to drugs. Some people will argue that these people are voluntarily homeless because they voluntarily started taking drugs, however we know that the drugs being used by the homeless alter mental processes and are so strongly addicting that they truly need outside assistance to break the drug use cycle. Therefore, I cannot agree that these people can truly be categorized as voluntarily homeless. Being under the influence of mind-altering drugs while out in public presents a public danger. Therefore the local government has an obligation to protect its society from those who fit in this category. There are programs out there which have been successful in assisting those in this situation to get off these drugs, and we should promote those programs implemented according to distributist principles as much as possible.

The second category are those who have some kind of mental illness or condition. Some might try to group these people with those addicted to drugs, but I disagree (although there may be some overlap of the two). Where those who are addicted to drugs are in their condition because they take drugs they should not, some of those who are mentally ill are homeless because they don’t take the drugs they should. Some don’t take the drugs they need because their addiction still controls them, and others because they could not afford to get the drugs they needed. Additionally, there are those with mental illnesses for which there is no effective treatment.

In both of the cases above, leaving these people out on the street without “harassing” them is not an act of compassion, and it certainly doesn’t help them or the community negatively impacted by them. If we are committed to helping them, we must provide and support the institutions and programs which takes them from the street and into programs to help them and keep them off the street. These people are not only in need, but are suffering in a way that goes beyond their ability to help themselves.

The third category of homeless are those who are “down on their luck.” They are the ones whose jobs have been eliminated or outsourced to other areas. They do not have the means to get the training they need to change careers or to move to where the jobs are. Programs to assist these people to get training, to live while they get it, to help them get jobs, and to get to where the jobs are, need to exist. I am including in this category those who desire to work to support themselves and their families.

I believe there is broad support for helping those who fall into these three categories, even if that support is for different reasons. These are people who are in true need of help. I believe both a personal and a social responsibility exists to help them (Matt 25:34-46), and by doing so to help the overall community.  This would serve the common good, that is the good of the individual and also the good of the community as a whole.

The fourth category of homeless, which I believe is a small minority of the homeless, are those who are truly voluntarily homeless. Those who have chosen this as their own way of life separate from the community, but also simultaneously within it. I do believe we need to remain open to a certain degree with these people and not disrupt them unnecessarily. However, if they are living within a community, and taking advantage of the public goods of the community without actually being a part of the community or contributing to it, they are effectively stealing resources from those in need and from the community they refuse to join. If they are capable of supporting themselves but choose not to, then the social obligation to them is less than it is to the other categories. They should still be treated with human decency, but that doesn’t mean we have to support them in their chosen life style or blithely accept them disrupting the community, especially when doing so would use resources intended to help those in real need. We must treat them with justice, but justice is equally owed to the society at large.

I have listed four broad categories, and I believe that each of them could be divided into sub-categories. It is an unfortunate reality of our time that neither of the major political parties, and the various economic philosophies, seem to be willing to truly address homelessness in the various ways it needs to be addressed. I believe that part of the reason for this is that they all approach it from either a highly centralized or extremely individualistic perspective. Both of these perspectives tend toward over-generalization in order to win the broadest level of support. The distributist movement looks at this situation from the local perspective. If the homeless in a particular community are those down on their luck, they can focus their efforts of assistance to address that problem. Another community where the majority of homeless are addicted to drugs can focus on that.

This is why distributists accept the idea of subsidiarity. The local community knows its problems better than more centralized and distant governments. They are in the best position to address the problems, even if they need assistance to accomplish what needs to be done.

References:

Seattle is Dying

 

What They All Get Wrong About Tariffs

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

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When President Trump chose to impose tariffs on China, there were various reactions. Some economic schools praised him because they believe tariffs will improve the American job market in those industries currently heavily outsourced to Chinese labor. Free market libertarians, typically representing the Austrian school of economics, berated him because they believe tariffs are terrible and hurt the American economy. However, Trump said he was doing this as an economic sanction because China was stealing US intellectual property.

Let’s start with where President Trump is wrong. He is using the tariff as a means of economic sanction – to punish another country. This is generally being characterized as a form of “trade war,” which is not an unreasonable conclusion. The reason he is wrong, however, is because we have been living under the doctrine of free trade long enough that China can economically hurt us just as much as we can economically hurt them. You can only impose a punishment from a position of power, and we don’t seem to have one. China is where our corporations produce our computers, cell phones, network infrastructure components, and many other things on which we have come to depend for our daily lives. It wasn’t that long ago that flooding in a region of China cause a world-wide shortage of computer disk drives. China can retaliate quickly and effectively against any form of economic sanction we may want to impose. A concrete example of this type of economic, and therefore political, dependence is the United Kingdom’s departure from the European Union. One of the issues they have to address is potential interruptions in their food distribution. The UK has the resources to provide this for itself, but they have spent decades allowing themselves to become dependent on foreign countries for basic necessities. This is now being used as an argument against becoming politically independent from the EU.

Those praising the tariffs as a means to improve American job opportunities are wrong because Trump’s stated reason for imposing the tariff is not to bolster American jobs or American industries. It was a punishment for stealing intellectual property from American companies. Our situation is very different than when our economic might was building during the industrial revolution. As a nation, we desired greater economic power, but we were already economically independent for the majority of our daily needs and wants. We used an aggressive tariff system to not only protect our fledgling industries, but to open foreign markets to our strong industries.

Others, including those who believe in the Austrian School of economics, criticized these tariffs on the grounds that tariffs are bad for economics. For example, political commentator Ben Shapiro has stated on numerous occasions that tariffs are bad for the economy. He describes them as a tax on everyone for the benefit of the few. Are tariffs ever allowed according to his view? According to Shapiro, they should only be used for national security reasons or “in the name of liberty.”

“As JFK put it, ‘We will bear any burden in the name of liberty,’ and, I’m sorry, but getting slightly more expensive goods from China in the name of liberty doesn’t seem like all that much of a burden to bear to help the people of Hong Kong, who are flying the American flag while they are protesting for their freedom.”

– Ben Shapiro, Practicality vs. Morality?

So, we can use tariffs as a tool for political change in a foreign power, but not to protect national industries and jobs. While other capitalists disagree with this view, the implications of this position are astounding when you consider that we are dealing with a socialist dictatorship.

Socialism is an Economic Good for Capitalists

This is a tacit admission that, except when national security concerns apply, or when we want to help influence some form of political change in the name of liberty, socialism is an economic good for capitalism. Is this a ridiculous assertion? Consider the following points.

  • The capitalist justification for free trade is that we can take advantage of lower labor and production costs in foreign countries. However, when you include socialist regimes in this, you are saying that a socialist workforce is more economically competitive than a capitalist one. Socialism is fine (for them), as long as it lowers ourcosts.
  • Labor costs are lower in other countries when they have a lower standard of living or worse working conditions and wages than we do. When you include socialist regimes, it means that we accept the fact that some Chinese workers are practically slave labor, and some factories that produce products for American companies have such bad conditions that they had to have anti-suicide campaigns and put up nets between the company barracks in which the workers live to catch those who try to jump to their deaths.
  • Capitalists proclaim with pride that we are a service and information provider for the world. This is the idea of “comparative advantage,” where different national economies will specialize in what they do best. Many denounce the idea that we should remain competitive in manufacturing, either traditional or new, or declare that we cannot do so. What about those workers in our own manufacturing industries? Well, they need to get themselves retrained to participate in those areas where we have a comparative advantage. In other words, the reason we outsource the production of our most advanced consumer computers and electronics is because a totalitarian socialist regime like China is simply better at it than our capitalist society – and that must be good for us because there is no need for us to improve in those areas.

These positions can only be explained by a view that considers the so-called global economy to be the primary and most important economy, followed by the national economy. Other capitalists may consider the national economy to be primary and the global economy secondary but, for those of the former view, socialism is treated as an economic good for capitalist markets.

In the end, President Trump backed down on the tariffs in hopes that it would keep our prices reduced through the Christmas shopping season. Does this not show that we have become economically dependent on foreign countries, including China?

What can Chinese President, Xi Jinping, say about this? If I were him, I would be using this as propaganda to the Chinese people, that it proves socialism is superior to capitalism, that capitalist production cannot compete with socialist production, and that people who live under capitalism are not able or willing to do the work necessary to produce what they want because they are too lazy and greedy, which is why they depend on socialist workers.

Socialism is not an Economic Good for Distributists!

While trade is generally good, distributism’s emphasis on supporting the local economy means that it should not be at the expense of economic independence. One of the foundational ideas behind distributism is that the more economically dependent you are, the more politically unfree you are. This applies to the national economy just as much as it does to the local economy. The views of capitalists seem to be divided between those who consider the global economy as primary and those who consider the national economy as primary. They don’t seem to give local economies much consideration. Distributists consider the local economy as primary. If the country is filled with a lot of strong and stable local economies, then the national economy will be strong and stable.

When considering trade policy, a nation should look to maintain a level which won’t cause too much economic turmoil for its people if trade gets interrupted. It should also not be the cause of the demise of your own producers. Some capitalists will declare that you are just forcing your own people to accept inferior products or to endure higher prices. They are ignoring the fact that many of their country’s top competitors in international markets initially grew under the protection of tariffs against foreign competition. Markets are different from country to country.

The labor market in the United States is different than the labor market in communist China. Why do any of our capitalists seem to insist that making these two labor markets compete against each other constitutes “free trade?” Are the wages comparable? Are the working conditions comparable? Are worker rights comparable? All of these can influence the cost of labor, and a tariff can be used to actually make them comparable.

Material costs and rents in the United States are different than those in communist China. Even when you factor in the competitive advantage given to many of our large corporations from government subsidies and preferential legislation, does it even come close to the level of government support of a socialist regime like China? No, the competitive advantage seem to be mainly against smaller competitors in our own country, which is why so many of our large corporations outsource production to China and other foreign countries. Tariffs can be used to protect our companies from this.

If a country is lacking development in a particular industry that impacts its economic independence, it cannot compete against those foreign companies that have already developed. A tariff on a particular industry will allow that industry to grow and develop within its own market.

Distributism would rather see as many people as possible engaged in productive work in small independent businesses supporting their local economy. We do not advocating leaving them at the mercy of corporate interests that drain local economies and leave people dependent on government assistance. We do not advocate corporate interests that consider it better to have workers in a socialist regime produce the products we need than our own people.

References:

Why Trump’s tariffs on China are a big deal; CNN Business
https://money.cnn.com/2018/03/21/news/economy/trump-trade-china-intellectual-property-301/index.html

Leaked Document Shows Potential Food & Fuel Shortage after No-Deal Brexit; Subverse News
https://www.youtube.com/watch?v=1MqO9wQjKno

Trump’s 45% tariff on Chinese goods is perfectly calculated; Los Angeles Times Op-Ed
https://www.latimes.com/opinion/op-ed/la-oe-navarro-trump-trade-china-tariffs-20160721-snap-story.html

Yes, Ben Shapiro is Still Wrong on Tariffs. Here’s Why; American Greatness
https://amgreatness.com/2018/03/19/yes-ben-shapiro-is-still-wrong-on-tariffs-heres-why/

The Second Cold War; Ben Shapiro, Ep. 833 (starting @ 40:00)
https://www.youtube.com/watch?v=pe_ySUG4Pco

Practicality vs. Moral Character?; Ben Shapiro, Ep. 839 (starting at 8:45)
https://www.youtube.com/watch?v=3NGdtBTnH0

Trade Trucers Push President Trump to Back Off on China Tariffs; Breitbarthttps://www.breitbart.com/economy/2018/11/29/morechinatrucetalk/

Custody of Nonbiological Children—Burden and Proof Issues

In the matter of R.L. v. M.A., Case No.: 2740 EDA 2018, the Pennsylvania Superior Court delved into the leading edge of family law when it ruled upon whether an individual in a same-sex relationship can be awarded custody of a child with whom she has no biological relationship.

In R.L., the appellant, M.A., entered into a romantic relationship with R.L. (appellee) in 2012. During the relationship, the parties decided to impregnate the appellant via artificial insemination using sperm from the appellee’s brother.

The couple proceeded to prepare for the birth of the child by setting up the baby’s room and purchasing typical baby supplies. R.L. was present for the baby’s birth, chose the baby’s first name, and gave the baby her own surname. Not long after the child was born, the couple broke up.

Instead of litigating, the parties entered into an informal agreement for the custody of the child. The child lived primarily with the appellant and spent every other weekend with the appellee. This arrangement lasted until 2014 when the parties informally elected to equally share custody of the child. This 50/50 arrangement lasted nearly four years until R.L. called the daycare center where the appellant worked and which the child attended. R.L. complained that the appellant was having too much contact with the child while in daycare and even inappropriately (in her opinion) removed the child from the daycare premises.

In response to the above-mentioned telephone call, the appellant unilaterally discontinued their customary 50/50 arrangement, which led to R.L. filing a complaint for custody of the child. R.L. was granted in loco parentis over the child fairly quickly, which conferred R.L. standing to have custody of the child. The matter went to trial and the trial court entered an order granting each party equal custody, alternating on a weekly basis; the appellant appealed this order to Superior Court.

On appeal, the appellant argued that the appellee did not meet the burden of clear and convincing evidence that a nonparent should have custody equal to a parent, and that the court erred in weighing the evidence presented.

In support of her argument that appellee did not meet her burden of proof, the appellant argued that 23 Pa.C.S. Section 5327 requires a trial court to apply a presumption in favor of parents over nonparents, and, as a “nonparent,” the appellant did not meet her burden to overcome the presumption in favor of the appellee. The appellant also argued that the trial court erred in considering the parties’ informal shared custody arrangement when rending its decision.

In making its ruling, the Superior Court acknowledged that “even before the proceedings start, the evidentiary scale is tipped, and tipped hard, to the biological parents’ side.” In saying that, the Superior Court also recognized that this principle does “not preclude an award of custody to the nonparent.”

Additionally, the court made it clear that the “best interests” standard is still the touchstone when entering a child custody order. Furthermore, once someone is granted in loco parentis, she need not demonstrate that the other party is unfit, but rather merely demonstrate that it is in the best interests of the child (as proven by clear and convincing evidence) to be with the nonparent party.

The Superior Court ruled that the appellant did meet her burden of clear and convincing evidence, specifically by demonstrating that the parties lived out an agreed shared custody arrangement for a number of years, indeed most of the child’s life, and only discontinued that arrangement due to the appellee being upset over the appellant’s telephone call to the daycare center, as opposed to anything directly related to custody.

The Superior Court also indicated that the appellant’s interpretation of the law is incorrect. Namely, while the scales do tip heavily toward a parent over a nonparent, there is a distinction as to whether that nonparent is seeking shared, as opposed to primary, custody. As she was only seeking shared custody, the appellant only had the burden of clear and convincing evidence to bring the scales even with the appellee. Only if the appellant were seeking primary custody would she have to tip the scales hard toward herself under the burden of clear and convincing evidence.

Ultimately, a nonparent seeking shared custody of a child has to have standing and demonstrate by clear and convincing evidence that such a custody arrangement is in the best interest of a child.

This article was originally published in The Legal Intelligencer on June 27, 2019 and can be found here.

What is the Global Economy?

Whenever the topic of the local economy is brought up, economic pundits quickly remind us that we live in a “global economy,” but what exactly does that mean? Does it mean that economic activity now takes place across the globe whereas it previously did not? Does it mean that economic activity occurs much more rapidly than it previously did? Does it mean that human society has changed to the point where the economies of different countries with different cultures are irrevocably linked together? The answer to each of these questions is no.

Global economic activity has been around for over 2,000 years. The speed at which economic activity takes place is certainly faster, but this increased speed is of little to no consequence to the small and medium-sized business—in other words the overwhelming majority of businesses in the world. In what way have our economies become linked together that the failure of a small percentage of the mortgages in the USA resulted in a world-wide economic crisis, the consequences of which are still affecting us after four years? Is this link something that is irrevocable? What does it really mean when economists talk about the “global economy,” and why is it brought up as some sort of argument against supporting the local economy?

I submit that the global economy is really nothing more than the fact that the banking industry and some very large companies have expanded to the point where they don’t really have any national loyalty. Any claim to a national identity is merely a facade; they hold no national allegiance and their only interest in any country is the ability to make a profit. The large international companies make claims of nationality, their headquarters have to be somewhere, but their operations, offices and factories span the globe. Their national claims often appear to nothing more than marketing in their countries of origin. They love free trade agreements because these allow them to lay off more expensive workers in their country of origin and replace them with less expensive workers in another. This increases their profits without regard to the impact in their home country or to their employees.

The only interest the international banks seem to have in any country is the ability to give it loans. It is true that some of them perform a specific function within a country that is integral to that country. The U.S. Federal Reserve controls the currency in the United States. Likewise with the Bank of England and the European Central Bank. However, all of these institutions participate in the funding of governments all around the world. When they do not do so directly, they act through an intermediate financial institution like the International Monetary Fund. They do not function for the benefit, even in a primary sense, of their supposed country.

Because so many countries have relinquished their sovereign right to control their own currencies to these international entities, and have become so indebted to them, they have become completely dependent on them. The claims that these banks have become “too big to fail” raises the question of why they are too big to fail. If they fail, the governments dependent on them fail with them. Without the seemingly endless lines of credit to fund them, governments would have to stop making promises to provide programs they cannot afford. That is a reality no politician wants exposed to the public. If a government had its loans called, it would be shown to be bankrupt. This is why the giant banks, rather than small businesses, had to be bailed out. In the case of global corporations, the ones “too big to fail” were those with extensive ties to the government through contracts and political influence (lobbying and economic power) that they could exert.

The “global economy” is nothing more than near complete dependence of governments on the global banks and international corporations. No State is prepared to operate without them. In other words, the “Global Economy” is not about providing for the economic needs of the community, the region, or even the state. It is not about the production of wealth for the people of a country. It is mainly about finance, which is only one part of economics, and maintaining the consolidated state of wealth on which governments depend so that they can redistribute that wealth through social programs. This may explain why the efforts to solve the economic crisis are ineffective and inadequate for the average family and business. Interest rates are not kept artificially low so that people can get out of debt, but so that they can remain in debt to the banks.

This situation, regardless of how emphatically the economic pundits would like us to believe otherwise, is not a necessary one, and it is certainly no argument against advocating for the local economy. After all, why should the cost of the groceries in your local market be influenced by something that happens in another country? The reason is that we have forgotten the value of the local economy, and, consequently, have lost the local economy itself. I am not discussing city planning and budgeting, that is not “the local economy.” The local economy is the ability of the local community to be self-sufficient and to support its own productive economic activity. It is the next logical expansion of the root meaning of economy in general—which is home management.

Take a look at the typical large city of today. From where do the products needed for daily life come? How would the families and businesses cope if a disaster in another region cut off their normal supply chain for food? For example, The city of Seattle is surrounded by smaller cities (urban areas) and suburban areas which do not produce anywhere near the amount of products used by its population. Seattlites sit in chairs and work at desks made in other cities and even other countries. They drink from cups, use pens and pencils, and wear clothes that are all made somewhere else. The surrounding rural areas do not produce anywhere near the amount of food needed to support the area. Seattlites are dependent upon remote suppliers, typically large industrialized farms which are the central providers for many large cities around the country and the world. When a production problem occurs on one of these giant farms, the ramifications are wide-spread. When another city experiences a disaster, the extra resources sent to assist them can create a shortage in other regions. The widespread dependence on centralized providers of basic necessities creates a situation where continued access to those necessities is more tenuous than most of us would like to believe.

Another example of widespread dependence on centralized production can be seen by a recent issue for the computer industry. Global free trade was supposed to make the market more diverse and ensure that we had a ready supply of needed items from anywhere in the world. What actually happened is that production of parts needed around the world became centralized, not just to single countries, but to single regions in those countries. The case to which I am referring is the manufacture of hard disks for computers. Flooding in one region of one country resulted in a worldwide shortage of hard disks, which impacted the ability of businesses around the world to maintain existing servers or install new ones.

In the past, a city viewed the surrounding rural community as an integral part of its life. The city provided goods and services for the rural community, and the rural community provided the basic necessities of food and other agricultural products needed by the city. In other words, each functioned as the primary market for the other and their combined economic activity established a complete, self-sufficient community in which families were able to provide for their needs and wants. Every producer and service provider in the community viewed the other members of the community as their primary customers. Rather than looking for cut-throat prices, they understood it was in their best interest to give their custom to local businesses. The best way to ensure their own economic success was to ensure the economic success of their customers. This works to make the local economy stable because most economic activity ends up being circular and self-supporting. I buy from you and you buy from me. By being each others’ customers, we keep each other in business, which allows both of us to remain each others’ customer.

Am I, by saying this, arguing against global trade, or trade in general? Not at all. The merchants in the city engaged in trade, which not only brought in desired goods from distant lands, but also opened up those distant markets to any excess production of the local community. Because most economic activity was local, it was also resilient. Not only would a problem in another community have little impact on the overall local economic situation, but the local community could more directly assist that other community. This could circumvent the need for state or federal assistance for all but the most wide-spread of disasters.

If economic activity across the country was primarily local, the overall economy of the country would be self-sufficient because the local economies would be self-sufficient. The overall economy of the country would be stable because the local economies would be stable. The overall economy of the country would be resilient because the local economies would be resilient. There would still be regional and global trade because the desire for other goods would still be present, but there would not be a dependence on those goods.

By David W. Cooney and originally published in The Distributist Review on August 18, 2012 and can be found here.

Religious baker who refused to make a wedding cake for gay couple deserves protection whether you agree with him or not

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

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Our nation is seeing a surge of “corporate conscience,” where companies make decisions apart from their bottom line. This is good for all Americans. The New York Times recently described the growing “moral voice of corporate America” after a wave of companies, including Google, Airbnb, Uber, and PayPal, severed ties with white supremacist groups in response to the riots in Charlottesville.

This phenomenon is not new, nor is it limited to opposing white supremacy. For years,Pfizer has refused to sell some of its drugs to state prisons because the company doesn’t want them used in capital punishment. Chipotle refused to cater a Boy Scouts’ Jamboree because of the scouts’ then-policy about gay scout leaders. A gay coffee shop ownerrecently refused to serve a group of pro-life activists, ejecting them from his store. These business owners made moral choices about what they’re going to support.

A similar moral choice is at the heart of the Masterpiece Cakeshop case currently before the Supreme Court. The store’s owner, Jack Phillips, is a baker who is willing to sell any items off-the-shelf in his store to anyone, no questions asked. All he is asking is not to be compelled to use his artistic talent to create a custom-designed cake celebrating an event contrary to his deeply held beliefs. This is a standard that Phillips applies across the board. He does not create custom work that celebrates Halloween, divorce, profanity, or racism.

Phillips is not the first baker in Colorado who objected to using his talents to support something he disagreed with, but he’s the first one to be punished for it. Another Colorado bakery refused to create a Bible-themed cake that condemned homosexuality. But here, Colorado upheld these bakers’ rights, explaining that they shouldn’t be forced to create a cake they disagreed with. The state even said bakers have the right to decline to bake a cake for the Aryan Nations Church, or a cake denigrating the Koran.

This double standard was a cause of concern for multiple Supreme Court justices during the recent oral argument in Phillips’ case. Justice Alito called it “disturbing” that a baker could “refuse to create a cake with a message that is opposed to same-sex marriage,” but “when the tables are turned,” Phillips was “compelled to create a cake that expresses approval of same-sex marriage.” Justice Kennedy suggested that Colorado officials demonstrated “a significant aspect of hostility to a religion” and ironically, that the state had “been neither tolerant nor respectful of Phillips’ religious beliefs.”

Critics argue that his actions should not be entitled to protection because his denial of service was offensive. But this was not a consideration when the baker turned away the customer requesting a Bible cake, or when Chipotle refused to cater the Boy Scouts, or when the gay coffee shop owner ejected the Christian group. The Supreme Court has always said that offensive expression is still entitled to First Amendment protection. Otherwise, those who need constitutional protection the most — those with unpopular views — would be protected the least.

Phillips’ opponents also exaggerate his claim and assert that a ruling for Phillips would quickly take our country back to a Jim Crow era where large swaths of businesses are allowed to deny basic services to an entire class of Americans. But the Supreme Court has already laid out factors to protect against that type of discrimination.

When First Amendment rights must be balanced against norms of equal service, the ultimate question is whether the would-be customer can freely access the market for desired services or products. That is not an issue here. Many bakers were eager for the couple’s business; they even received offers for a free cake.

This case really boils down to the following question: Do we want to have a country where the government is allowed to pick one correct view on hot topics like marriage, and to force objecting organizations to use their talents and resources to support that position? Our Constitution prohibits that result. That’s why elsewhere, we prioritize the ability of organizations to speak out with a range of viewpoints on important moral issues. The chairman of Starbucks, Howard Schultz, said it best: “Not every business decision is an economic one … [W]e are fighting for what we love and believe in, and that is the idealism and the aspiration of America.” Schultz is right: These expressive rights are an ideal worth fighting for. That’s why the Supreme Court should uphold this principle for Phillips, too.

By Stephanie Barclay who is legal counsel at Becket, a public interest law firm that defends religious liberty for all faiths

Originally published in The Philadelphia Inquirer on January 19, 2018 and can be found here.

Superior Court Navigates ‘Twists and Turns’ in Case Involving Paternity Tests

Pennsylvania Superior Court recently heard a rather complex and tangled case regarding how, when and what significance a paternity test may have in determining the paternity of a child. In the matter of H.Z. v. M.B., 2019 Pa.Super. 33, the Superior Court offered insights that may be instructive for other similar matters, especially in cases where attempted clever tactics and intrigue are elements.

In H.Z., the mother, seeking child support, filed for paternity testing in New York shortly before the child was born in March 2005. The results of the testing excluded M.B., the putative father. Consequently the parties entered into a stipulation providing that the mother would discontinue her paternity and support actions against M.B. with prejudice.

Two years later, the mother hired a private investigator to surreptitiously secure a sample of the father’s DNA. Specifically, the investigator followed M.B. to a Starbucks where he picked M.B.’s discarded coffee cup out of a trash can, and submitted it for genetic testing that resulted in a finding of a probability of over 99 percent percent that M.B. is the father of the child.

About a year later, the results of the investigator’s test motivated the mother to file a new paternity case against M.B., this time in New Jersey, where the mother had relocated. The case was transferred to Pennsylvania as New Jersey had no jurisdiction over M.B., who was a resident of Pennsylvania. A few months later, the parties again entered into a stipulation dismissing the mother’s case.

Undeterred, the mother almost immediately filed a third case, this time in Montgomery County, to which M.B. filed preliminary objections, a motion to dismiss and a motion to stay the testing, primarily on the basis of res judicata. While M.B. successfully had the Starbucks test excluded as evidence, per a motion in limine, the case, for some reason, was not scheduled for a hearing until about five years later. After that hearing the trial court ordered M.B. to submit to genetic testing once again. The father appealed, primarily on the basis of res judicata. In an unpublished opinion, the Superior Court ruled that the stipulation entered in the New York matter was in violation of New York law and, therefore, not controlling.

Finally, after another year’s time, M.B. submitted to a buccal swab genetic test requested by the mother’s petition requesting blood and hair testing, which again excluded M.B. as the father of the child. Upon receiving the result of this test, M.B. requested the dismissal of the case. The mother countered by requesting M.B. to submit to more rigorous testing on the basis that M.B.’s DNA samples had irregularities, and M.B.’s genetic profiles in the various tests all differed from one another which, she averred, means they did not come from the same person. The parties subsequently filed various motions seeking sanctions and striking filings. A trial court hearing on these issues was finally scheduled for December 2017.

At the hearing, the mother called two officials from the Montgomery County Domestic Relations Office who testified that, despite many years of experience and their knowledge of  hundreds of cases, neither have had a case where the DNA sample they collected was insufficient for testing. In opposition to these witnesses, M.B. called a DNA lab director who testified that there was no evidence of tampering, no issues with the chain-of-custody of the DNA sample, and no issues with testing protocols. While the lab director did note that the DNA that was recently tested did degrade, she could not come to a definite conclusion as to why.

After some of the witnesses testified at the hearing (as described above), the trial court scheduled at least two more days of testimony. Without explanation or apparent reason, the trial court suddenly entered an order concluding that M.B. is the father and directed that an appropriate support order be awarded. M.B. immediately appealed to the Pennsylvania Superior Court.

On appeal, M.B. argued that the mother’s case should be dismissed on the basis that the Montgomery County test excluded him as father. M.B. specifically argued that a paternity hearing could only be scheduled if the results of a genetic test did not indicate that the putative father was not excluded from being the father. Consequently, per M.B.’s argument, in the instant matter, as the Montgomery County test excluded him as the father, the aforesaid rule required the mother’s case to be dismissed. The Superior Court rejected this argument and decided that the rule does not limit the scheduling of a hearing only when a test does not indicate an exclusion. The court also pointed out that the rule does not provide that a genetic test—by itself—is sufficient to establish paternity but, instead, indicates that a hearing on the reliability of genetic testing is permissible. The Superior Court also found that Rule 1910.15(d)(4) sets forth “a clear course of conduct addressing every possible result of the genetic testing” and M.B.’s request for dismissal was not relief afforded to him by the rule.

M.B. further argued that the Uniform Act on Blood Tests to Determine Paternity (23 Pa.C.S.A. Section 5104) eliminates any discretion on the part of the trial court to rule in this matter. Superior Court ruled that the aforesaid statute does not apply as no blood test ever took place in this matter, rejecting M.B.’s argument that it applies to all manner of genetic testing, not just blood testing.

M.B. then argued that 23 Pa.C.S.A. Section 4343 also requires the dismissal of an action for paternity when a man is excluded from paternity after genetic testing. The court rejected this argument as well, pointing out that the statute cited by M.B. actually directly opposes his argument. The Superior Court noted that the statute “does not provide that genetic tests are conclusive of the issue of paternity,” but such a determination may only be made by “a court in a civil action.” Additionally, the statute also allows for additional testing if a party contests the initial test.

M.B. proffered a cursory argument that additional testing would violate his Fourth Amendment rights under the U.S. Constitution. However, as he did not raise this argument in a timely manner, the Superior Court did not consider it. Instead, it indicated that additional testing may be permitted if the first test can be demonstrated to be unreliable by the preponderance of the evidence.

M.B. finally argued that the trial court abused its discretion by basing its ruling on excluded evidence (the Starbucks cup) and the Montgomery County test (which he argued had no facts to suggest it was unreliable). The Superior Court was sympathetic to this particular argument, however it directed its focus to the fact that the trial court never completed the record due to inexplicably entering an order before finishing the hearing. As a result, the court could not sufficiently review the facts and evidence in the case as it was left incomplete. Indeed, the Superior Court ruled that 23 Pa.C.S.A. Section 4343 affords the mother the right to an additional genetic test at her own expense as a matter of right.

After all of the twists and turns in this case, the Superior Court ruled that the trial court committed an abuse of discretion when it ruled that M.B. is the father as the hearing was not complete. The Superior Court ultimately ruled that an additional test is to be administered if no stipulation between the parties is reached. If the new test indicates M.B. is the father, then a hearing may be scheduled to determine the reliability of the test. If M.B. is excluded as the father, then the parties may proceed to a hearing on the issue of paternity. If any additional testing is requested, then evidence of any prior tests’ unreliability must be presented, and Fourth Amendment implications can be considered. As a result, the trial court’s order was vacated and the matter was remanded for further proceedings and testing.

May this case be a warning to those who think that genetic testing to determine paternity speaks conclusively as to who a child’s father is or is not. While modern technology has made significant contributions in this area, there still remains sufficient doubt to warrant other forms of evidence and inquiry before a court.

This article was originally published in The Legal Intelligencer on March 19, 2019 and can be found here.

Who is fighting the war on science?

Every now and again I come across something that warrants posting here.  I have seen a recent proliferation of articles in respected publications pointing out, bemoaning, and/or highlighting increasing problems with the trustworthiness of the alleged findings of the contemporary scientific community.  I find these articles to be particularly interesting given how our society looks to science as a (the?) source of ultimate truths (often as a mutually exclusive alternative to spirituality).  This sort of scientism may be misplaced, and these articles delve into the pitfalls that come with such an approach.

Here are the links the other articles I posted on this subject:

Be edified.

__________________________

 

Ministerial Exception Defense Rejected In Suit To Apply Labor Code To Preschool Teachers

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

In Su v. Stephen S. Wise Temple, (CA App., March 8, 2019), a California state appellate court held that teachers in a Reform Jewish Temple’s preschool are not covered by the ministerial exception rule.  In the case, California’s Labor Commissioner sued on behalf of 40 teachers alleging that the school violated the state’s Labor Code by failing to provide rest breaks, uninterrupted meal breaks, and overtime pay.In rejecting the Temple’s ministerial exception defense, the majority said in part:

Although the Temple’s preschool curriculum has both secular and religious content, its teachers are not required to have any formal Jewish education, to be knowledgeable about Jewish belief and practice, or to adhere to the Temple’s theology.  Further, the Temple does not refer to its teachers as “ministers” or the equivalent, nor do the teachers refer to themselves as such. Accordingly, we conclude the teachers are not “ministers” for purposes of the ministerial exception.

Presiding Judge Edmon filed a concurring opinion contending that the court need not reach the question of whether the teachers held “ministerial” positions, saying in part:

I would conclude that the Temple has not demonstrated that the ministerial exception has any application to the present dispute, which does not touch on the Temple’s freedom to choose its ministers or to practice its beliefs….

[T]he constitutional imperative against encroaching on a church’s selection of its ministers does not, as a logical matter, suggest that churches must be exempted from all laws that would regulate the employment relationship between a religious institution and its ministers. Given the number and variety of federal and state employment laws, it stands to reason that some laws will impose a greater burden on religious interests than will others. Accordingly, courts can, without doctrinal inconsistency, exempt churches from the application of some employment laws without exempting churches from all such laws.

You can learn more about this issue here.

Beware those scientific studies — most are wrong, researcher warns

Every now and again I come across a fantastic article that warrants posting here.  I have seen a recent proliferation of articles in respected publications pointing out, bemoaning, and/or highlighting increasing problems with the trustworthiness of the alleged findings of the contemporary scientific community.  I find these articles to be particularly interesting given how our society looks to science as a (the?) source of ultimate truths (often as a mutually exclusive alternative to spirituality).  This sort of scientism may be misplaced, and these articles delve into the pitfalls that come with such an approach.

Here are the links the other articles I posted on this subject:

Be edified.

__________________________

Washington (AFP) – A few years ago, two researchers took the 50 most-used ingredients in a cook book and studied how many had been linked with a cancer risk or benefit, based on a variety of studies published in scientific journals.

The result? Forty out of 50, including salt, flour, parsley and sugar. “Is everything we eat associated with cancer?” the researchers wondered in a 2013 article based on their findings.

Their investigation touched on a known but persistent problem in the research world: too few studies have large enough samples to support generalized conclusions.

But pressure on researchers, competition between journals and the media’s insatiable appetite for new studies announcing revolutionary breakthroughs has meant such articles continue to be published.

“The majority of papers that get published, even in serious journals, are pretty sloppy,” said John Ioannidis, professor of medicine at Stanford University, who specializes in the study of scientific studies.

This sworn enemy of bad research published a widely cited article in 2005 entitled: “Why Most Published Research Findings Are False.”

Since then, he says, only limited progress has been made.

Some journals now insist that authors pre-register their research protocol and supply their raw data, which makes it harder for researchers to manipulate findings in order to reach a certain conclusion. It also allows other to verify or replicate their studies.

Because when studies are replicated, they rarely come up with the same results. Only a third of the 100 studies published in three top psychology journals could be successfully replicated in a large 2015 test.

Medicine, epidemiology, population science and nutritional studies fare no better, Ioannidis said, when attempts are made to replicate them.

“Across biomedical science and beyond, scientists do not get trained sufficiently on statistics and on methodology,” Ioannidis said.

Too many studies are based solely on a few individuals, making it difficult to draw wider conclusions because the samplings have so little hope of being representative.

– Coffee and Red Wine –

“Diet is one of the most horrible areas of biomedical investigation,” professor Ioannidis added — and not just due to conflicts of interest with various food industries.

“Measuring diet is extremely difficult,” he stressed. How can we precisely quantify what people eat?

In this field, researchers often go in wild search of correlations within huge databases, without so much as a starting hypothesis.

Even when the methodology is good, with the gold standard being a study where participants are chosen at random, the execution can fall short.

A famous 2013 study on the benefits of the Mediterranean diet against heart disease had to be retracted in June by the most prestigious of medical journals, the New England Journal of Medicine, because not all participants were randomly recruited; the results have been revised downwards.

So what should we take away from the flood of studies published every day?

Ioannidis recommends asking the following questions: is this something that has been seen just once, or in multiple studies? Is it a small or a large study? Is this a randomized experiment? Who funded it? Are the researchers transparent?

These precautions are fundamental in medicine, where bad studies have contributed to the adoption of treatments that are at best ineffective, and at worst harmful.

In their book “Ending Medical Reversal,” Vinayak Prasad and Adam Cifu offer terrifying examples of practices adopted on the basis of studies that went on to be invalidated, such as opening a brain artery with stents to reduce the risk of a new stroke.

It was only after 10 years that a robust, randomized study showed that the practice actually increased the risk of stroke.

The solution lies in the collective tightening of standards by all players in the research world, not just journals but also universities, public funding agencies. But these institutions all operate in competitive environments.

“The incentives for everyone in the system are pointed in the wrong direction,” Ivan Oransky, co-founder of Retraction Watch, which covers the withdrawal of scientific articles, tells AFP. “We try to encourage a culture, an atmosphere where you are rewarded for being transparent.”

The problem also comes from the media, which according to Oransky needs to better explain the uncertainties inherent in scientific research, and resist sensationalism.

“We’re talking mostly about the endless terrible studies on coffee, chocolate and red wine,” he said.

“Why are we still writing about those? We have to stop with that.”

Originally published on July 5, 2018 on Yahoo and can be found here.

 

City Settles Firefighter’s Religious Discrimination Suit

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

The city of Utica, New York has settled a religious accommodation lawsuit that was filed against it by a firefighter who refuses to cut his hair after taking a Nazirite vow.  Under the settlement announced Friday, firefighter John Brooks has been granted a religious accommodation from the fire department’s grooming policy. A press release from First Liberty announced the settlement. First Liberty’s website has more on the case.

You can learn more about this issue here.

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