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The Secret Defense to Debt Collection Matters

Unfortunately, many people find themselves in a situation where they get behind on paying their bills and, due to lack of funds, wind up not paying some of them.  Not paying one’s bills will more often than not result in that debt being sold to a collections agency and that agency suing the debtor for payment (and adding on all kinds of things, like interest, attorney’s fees, penalties and the like to boot).

Selling one’s debt to a collection agency is an important step in the process that directly affects the subsequent lawsuit against the debtor.  Typically, large lenders – especially lenders like credit cards companies – have a fair amount of debtors who stop paying (for whatever reason) on the debt owed to the lender which results in their debts being sent to collections.  When these lenders send debts to collections, they do so by selling the debts to a collection agency.  When they sell the debts to a collection agency, they will often sell the debts in bulk, often for pennies on the dollar.  The transaction benefits the creditor as it gets something for the debts owed without having to pursue costly and time consuming litigation.  The transaction benefits the collection agency because it can pursue collection (including law suit) against a debtor for the full amount despite having bought the debt for far less than its principal value, let alone its value inflated by interest and such.

More often than not, when debts are sold to collection agencies, the initial creditor (e.g.: a credit card company) simply provides an affidavit to the collection agency regarding the amount of the debts and the names of those who owe the debts.  Typically, no other document is supplied by the initial creditor to the collection agency, including any contracts with the debtor or anything bearing the signature on the debtor.  Once the collection agency assumes the debt, it has the right to bring suit against the debtor for the unpaid debt.

The lack of documentation of the contract with the debtor is absolutely key to any defense to the collection of the debt.  If the creditor brings suit against the debtor in the Court of Common Pleas and does not attach the contract between the debtor and the creditor which underlies the alleged debt, the debtor can file objections to the complaint (the document which initiates the law suit) asking for it to be dismissed due to the lack of a contract.  I can say, from personal experience, that such a tactic works as, very often, the collection agency pursing the debtor simply does not have the underlying contractual documentation to prove its case against the debtor.

If the case is brought in small claims court, the creditor does not have the obligation to include a copy of the contract to the complaint, so successfully defending against a collections law suit takes some shrewd strategy.  The lack of documentary evidence is still a huge problem for the creditor, but the small claims aspect of this matter makes the approach different and much trickier.  As the complaint does not require the contract to be appended to it, and the primary place for these matters to be resolved is at a hearing before a judge, the creditor has the procedural advantage.  At the hearing, the collection agency, armed with an affidavit from the initial creditor (as described above), secures almost all of the other evidence it needs to win against the debtor through the debtor’s testimony.

Here is how the hearing would play out: the creditor describes the claim to the judge, which is that the debtor had a contract with a credit card company (for example), he did not pay the debt owed, and is now in collections and all of this is supported by the affidavit.  Now, the affidavit, taken alone, is insufficient to win the case as there is no evidence that the debtor actually contracted with the creditor.  So, at the appropriate time during the trial, the creditor will ask the debtor some questions (i.e.: cross-examination).  These questions will be something like: “did you have a credit card from XYZ company on these dates”?  “Did you make charges on it?” “Did you make all the payments on it?”  “Do you owe $XYZ on the credit card?” And other questions like it.  At the end of the examination, the debtor himself provides all of the evidence against himself that the creditor needs to win the case against him.   As a result, the creditor will win the case against the debtor thanks to the debtor supplying all of the evidence, via his testimony, need by the creditor.

So, how does a debtor avoid the fate of the debtor in the above scenario?  That is where a good lawyer comes into play.

Limiting Legal Malpractice Claims: Applying the Glenbrook Analysis

The statue of limitations for a legal malpractice action in Pennsylvania is two years from the date of the malpractice; however that time period may be extended under certain circumstances.  In Glenbrook Leasing Co. v. Beausang, 839 A.2d 437 (Pa. Super. 2003), affirmed, 881 A.2d 1266 (Pa. 2005), the Pennsylvania Superior Court explored the viability of various ways to potentially extend that two year period.

Plaintiff in Glenbrook is a real estate partnership which purchased office space in a condominium development to be used as medical offices.  The agreement of sale for the office space included language granting Plaintiff use (and alleged ownership) of 35 parking spaces.  Nothing was placed in the deed regarding Plaintiff’s ownership of the aforesaid parking spaces.

About six years later, the condominium association took action to limit Plaintiff’s use of the aforesaid 35 parking spaces.  Unsurprisingly, a dispute arose between Plaintiff and the condominium association regarding the ownership and use of the parking spaces, which eventually evolved into litigation.  The litigation culminated in a ruling in favor of the condominium association.  The ruling was based on the merger doctrine, which generally states that any guarantee to be granted in a real estate transaction must be stated in the deed to the subject property.  As applied to the instant matter, Plaintiff was considered not to have any ownership rights over the parking spaces as they were not memorialized in the deed to the property.

When the initial real estate transaction took place, Plaintiff was represented by Defendant, a real estate law firm.  Plaintiff believed that its loss in the litigation against the condominium association, and the resulting loss of the 35 parking spaces, was a direct result of the legal malpractice of Defendant in failing to take into consideration the merger doctrine, and by failing to include language regarding the parking spaces in the deed to the property at issue.  About a year after the conclusion of the litigation against the condominium association, and about six years after the association first presented the issues regarding the deed, and its lack of language dealing with the parking spaces to Plaintiff, the company brought suit against Defendant law firm, claiming it committed legal malpractice.

Defendant ultimately filed a motion for summary judgement, claiming that Plaintiff brought suit far beyond the two year statute of limitations.  The trial court ruled in favor of Defendant.  On appeal, the Superior Court affirmed the trial court’s ruling, and the Supreme Court issued a per curiam order affirming the Superior Court’s ruling.  It is the Superior Court’s opinion that is the subject of this article.

While the statue of limitation in a legal malpractice claim is two years, that period can be extended via the equitable discovery rule which sates that the two years is initiated not at the occurrence of the malpractice, but when it was, or should have been, discovered.  The Court ruled that Plaintiff discovered, or should have discovered, that there may have been legal malpractice six years before it initiated suit against Defendant (or four years longer than the two year statute allows) when the dispute with the condominium association first arose.

Plaintiff then argued that the Court should apply the “continuous representation rule” which states that the limitations period would not begin to run until plaintiff terminated Defendant’s services.  The Court was unmoved by Plaintiff’s argument to extend the legal malpractice statute of limitations based on the continuous representation rule.  The Court noted that the rule was not the law of Pennsylvania (although it is in other jurisdictions) and it is not the place of the Superior Court to adopt new rules without authority to do so.

Plaintiff next argued that the limitations period should be extended through estoppel, asserting that the “special relationship” between a lawyer and his client lulled Plaintiff into a false sense of security, through fraud, or deception, or concealment, to trust Defendant beyond when it would have been prudent to do so.  This sort of argument has traction among physicians and patients and Plaintiff attempted here to apply it to attorneys and clients.  The Court rejected this argument as well, as it found Defendant was completely candid with Plaintiff regarding the claims made by the condominium association, including providing Plaintiff with the first allegation of their own malpractice nearly six years prior to Plaintiff’s bringing suit.

Finally, Plaintiff argued that the question of precisely when it discovered the malpractice is a question of fact that should have been decided by a jury, not via a motion for summary judgement.  The Court rejected this argument as well, ruling that the facts in this matter were abundantly clear as to when Plaintiff discovered the malpractice.

The statute of limitations is critical to be aware of when considering bringing suit.  Although the Court made a variety of rulings, as described above, it is significant and useful in that it lays out some guidelines as to how to apply the various means to extend the statute of limitations and notably refuses to adopt and apply the continuous representation rule.

Originally published in Upon Further Review on September 24, 2015 and can be seen here.

US Supreme Court Weighs in on Threats Over Social Media

The new reality of social interaction includes the popular, and seemingly always proliferating, social media websites like Facebook and Twitter.  Considering the increasing ubiquity of social media, it was only a matter of time before the United States Supreme Court would weigh in on its use, which it had opportunity to do in the matter of Anthony Douglas Elonis v. United States, 135 S.Ct. 2001 (2015).


In the Elonis matter, the petitioner Anthony Douglas Elonis’s wife left him in May 2010, taking their children with her.  Following their separation, Mr. Elonis began listening to “violent music” and posting so-called “rap lyrics” to his Facebook page.  Eventually he changed his name on his Facebook profile to “Tone Dougie,” a rap-style nom de plume, in order to create an “on-line persona.”  His rap lyrics contained rather violent and graphic language but did contain a disclaimer that his lyrics were fictions with no intentional resemblance to real persons.  He also said on Facebook that he writes these lyrics, and other such posts, as a form of therapy for himself to deal with the pain of the breakup of his family.


Unfortunately for Mr. Elonis, people who viewed his Facebook posts did not seem to appreciate his therapeutic efforts.  Evidently, after the Halloween following his separation, Mr. Elonis posted a photograph of himself from a Halloween event at his place of employ holding a toy knife to his co-worker’s throat, accompanied by a caption reading “I wish.”  Mr. Elonis was fired by his employer for this post due to its violent and threatening nature regarding his co-worker.


Mr. Elonis responded to his termination from employment at an amusement park with the following Facebook post: “Moles! Didn’t I tell y’all I had several? Y’all sayin’ I had access to keys for all the f***in’ gates. That I have sinister plans for all my friends and must have taken home a couple. Y’all think it’s too dark and foggy to secure your facility from a man as mad as me? You see, even without a paycheck, I’m still the main attraction. Whoever thought the Halloween Haunt could be so f***in’ scary?””  This post formed the basis for the first count of his criminal indictment for threatening park patrons and employees.


In addition to the above, Mr. Elonis also posted crude, demeaning, and violent material regarding his ex-wife, including a long post adapting a comedian’s sketch about how to avoid overtly saying one wishes to kill the president to a post of similar content about killing one’s wife.  In the post he included accurate details about his ex-wife’s home and rhetorically asked whether the reader is willing to “go to jail for [one’s] Constitutional rights.”


Upon seeing the above-mentioned post, his ex-wife began to fear for her life and secured a protection order against Mr. Elonis.  In response Mr. Elonis posted on Facebook what appeared to be lyrics or poetry contemplating whether a protection order could stop a bullet and suggested blowing up a police department with a bomb.  This post formed the basis of two more counts of his criminal indictment.  The fourth count of Mr. Elonis’s criminal indictment flowed from a subsequent Facebook post regarding potentially mass killing a local kindergarten class.  After the FBI investigated the aforesaid post, Mr. Elonis followed it up with what formed the basis of the fifth count of his criminal indictment, namely a post threatening the life of FBI agents (though none by name).


Mr. Elonis was eventually indicted for making threats to injure patrons and employees of the park, his estranged wife, police officers, a kindergarten class, and an FBI agent.  All of these threats were in violation of 18 U.S.C. Section 875(c) which states “[w]hoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.”


Mr. Elonis filed a motion to dismiss the indictment on the basis that none of the charges against him contained any allegation that he intended to threaten anyone.  The District Court (his matter originated in the Eastern District of Pennsylvania) denied the motion.  At the trial for the charges Mr. Elonis testified that his posts were emulating rap lyrics (especially those of Eminem who also penned lyrics about killing his wife) and, therefore, were made without any intent to threaten anyone.  The prosecution presented witnesses who testified that they felt threatened and in fear of injury.  At the conclusion of the trial, Mr. Elonis’ requested that the jury be instructed that in order for him to be convicted the prosecution must prove he had an intention to threaten.  His request was denied.  Ultimately, Mr. Elonis was sentenced to three years and eight months’ incarceration and three years’ suspended release.  Mr. Elonis then appealed his conviction to the Court of Appeals of the Third Circuit which upheld the conviction and ruled that the intent suggested by Mr. Elonis was not required by the law.  Mr. Elonis then appealed to the United States Supreme Court, and it is that Court’s decision that is the subject of this article.


Mr. Elonis argued to the Supreme Court that the term “threat” necessarily implies an intention to inflict harm.  Unpersuaded, the Court pointed out that the definition of “threat” proffered by Mr. Elonis speaks to the message conveyed by the threatening statement and not the mental state of the speaker.  The government noted that the other crimes in the statutes neighboring 18 U.S.C. Section 875(c) all explicitly include a mental state in their terms which suggests that the legislature intentionally left such a provision out of 18 U.S.C. Section 875(c) and, therefore, no mental state is required for conviction under this section.  The Court was unpersuaded by this argument as well indicating that all that could be concluded is that Congress laid out a broad class of crimes but simply did not include what mental state, if any, is required for conviction.  Based on the above, the Court observed that neither party sufficiently identified any indication of any particular mental state required by 18 U.S.C. Section 875(c).  Despite this, the Court recognized that any crime must carry with it some conscious action (e.g.: mens rea) and that the mere omission of a mental state from 18 U.S.C. Section 875(c) does not mean none exists.


After a review of the applicable case law, the Court concluded that when a criminal statute is silent on mental state, the only mens rea that can be read into it is only that which is enough to separate wrongful conduct from innocent conduct as applied to each element of the crime.  Furthermore, the Court ruled that the mental state requirement, relative to Mr. Elonis’ case, must apply to whether the communication itself contains an actual threat.  By contrast, Mr. Elonis’ conviction was based solely upon how his posts would be perceived by a reasonable person.  As a result, the Court rejected the government’s argument for a mental state closer to negligence (i.e.: “reasonable person”) as well as Mr. Elonis’ argument from ignorance asserting that he could not be convicted unless it was shown he knew the posts could be characterized as threatening.


Ultimately the Court reversed Mr. Elonis’ conviction.  The Court held that the jury instructions mentioned above were insufficient.  There must be something more than the prosecution merely proving that a reasonable person could regard Mr. Elonis’ posts as threats.  Instead, there must be an instruction indicating that a mental state for Mr. Elonis is necessary for conviction.  The Court was confident that the mental state requirement would be satisfied if it could be shown that Mr. Elonis knew that his posts could be understood to be a threat and/or were posted to be threatening.  Although the Court rejected a negligence standard, as noted above, the Court declined to rule whether a recklessness standard would be sufficient to convict for the crime at issue herein as that issue was not raised by the parties until oral argument and briefly at that.  The Court was reluctant to be the first tribunal to rule on the issue and, instead, opted to allow the lower courts to initially look at the issue.  Consequently, the Court also remanded Mr. Elonis’ case for further proceedings per the Court’s ruling.

Originally published on August 25, 2015 in The Legal Intelligencer and can be seen here.

Anderson-Ponty Band Concert Review, 10/27/15 Glenside, PA

This post is part of my series of posts on progressive rock, which you can see here, and Yes which you can see here.

On October 27, 2015 the supergroup Anderson-Ponty Band (APB), led by Jon Anderson, the vocalist/harpist/guitarist co-founder of the progressive rock band Yes‘ and virtuoso progressive rock (and classic fusion bands and Zappa alumnus) violinist Jean-Luc Ponty, played show at the at the Keswick Theater in Glenside, PA in support of their “Better Late Than Never Tour” in support of their new album of the same name (see here).

The band was:

  • Jon Anderson – lead vocals, mandolin, guitars, percussion
  • Jean-Luc Ponty – violin
  • Jamie Glaser – guitars
  • Wally Minko – keyboards
  • Baron Browne – bass
  • Rayford Griffin – drums & percussion

The set list for the evening:

  • Intro (a new piece which is sort of like an overture for the APB album)
  • One in the Rhythm of Hope  (a reworked Ponty piece (see here))
  • A for Aria (a new piece)
  • Owner of a Lonely Heart  (a reworked Yes song (see here))
  • Listening with Me (a reworked Ponty piece called “Stay With Me” (see here))
  • Time and a Word (a reworked Yes song (see here))
  • One Love/People Get Ready (a Bob Marley cover (see here))
  • Infinite Mirage (a reworked Ponty piece (see here))
  • Soul Eternal  (a reworked Anderson piece (see here))
  • Enigmatic Ocean Parts 1 and 2 (a reworked Ponty piece (see here))
  • Drum solo
  • I See you Messenger  (a new piece)
  • New New World (a reworked Anderson piece (see here))
  • New Country (a reworked Ponty piece (see here))
  • Never Ever (a reworked Anderson song (see here and here))
  • Wonderous Stories (a reworked Yes song (see here))
  • Long Distance Runaround (a reworked Yes song (see here))
  • Renaissance of the Sun (a reworked Ponty piece (see here))
  • State of Independence (a reworked Jon & Vangelis song (see here))
  • Jig (a reworked Ponty piece (see here))
  • And You and I (a reworked Yes song (see here))
  • Roundabout (a reworked Yes song (see here))
  • Re-Remembering the Molecules (a reworked Ponty piece (see here)) – which included bits of Yours Is No Disgrace (a reworked Yes song (see here))
  • Soon (a reworked Yes song (see here))


As I said when I reviewed the ABP album (see here), I am not going to comment on the songs themselves as nearly all of them are classic songs from legendary prog-rock albums and do not originate with this band.  I am only going to comment on their presentation at the show.

This was my first time seeing Jon Anderson live since the last leg of Yes’ Thirty-Fifth Anniversary Tour on September 3, 2004 (see here).  Much of what I said about Jon Anderson on the ABP album holds true here (see here).  This is post-asthma attack Anderson (see here).  His voice is not as strident or as powerful as it was in days past.  In saying that, he, as a consummate professional, does not struggle to try and duplicate his old singing style.  Instead, his voice is more soulful and breathier (is that a word?) and he conforms the music to his new singing style.  His onstage persona is much different than how he used to present himself with Yes.  Obviously his Yes stage presentation evolved with the band and their music, yet now, with ABP in 2015, Anderson comes across like a wizened and beloved person who has so many years under his belt that he is completely confident on stage playing and singing directly to the die hard fans that have followed him for fifty years now as opposed to something of a new age spiritual hippie guru.  There is very little “persona” now for him.  He does not play with long flowing robes or quasi-monk overtones.  No, instead he comes across as a man who knows he is older, knows he has been around a long time, and knows the people hearing him are the ones who have been fans for decades.  He was loose and appreciative.  He played guitars and percussion and, instead of a harp (as on the album), he plucked at a mandolin here and there (practically inaudibly for me).  Ponty was just a cool guy with no frills playing his violin.  It is amazing that both of these men are in their 70s!

The rest of the band were mainly guys recruited by Ponty.  The drummer, who reminded me of Niacin’s Dennis Chambers (see here), was a powerful and loud drummer who unabashedly plays in the style of fusion.  Although he was an excellent drummer, his playing was a bit too much a lot of the time for the more mellow rest of the band.  The guitarist was very hard for me to hear from my vantage point in terms of the mix.  I was there to see Anderson and Ponty and he played well enough to keep the music going but did not distract away from the main attractions.  As a side note, he reminded me a lot of Jim Belushi in his looks and mannerisms.  The bass player looked like he stepped right out of a reggae concert.  His playing was clean and in the style of traditional jazz.  Like the guitarist, he played the music but did not distract from Anderson and Ponty.  Finally, the keyboardist is the biggest mystery.  His playing, when allowed to expand, was very jazzy, but I felt that he was not particularly creative in his arrangements and approach.  His best playing was his jazzy piano playing.  His keyboard-synthesizer playing was the weakest part of his playing.  In my review of APB’s album (see here), one of my criticisms was that it was far too twee.  After seeing them live, I have come to realize that one of the biggest culprits causing the twee sound is the keyboardist because his keyboard sound is so light, airy, and, honestly, cheesy.   This description may not be helpful to all readers, but his keyboard/synthesizer sound is more eighties than Rick Wakeman‘s was in the 80’s.

In terms of the sound mix, thankfully the violin and Anderson’s vocals were louder than everything except maybe for the pounding drums.  The keyboard was loudest after that followed by the bass, the guitar, and whatever Anderson tried to strum at a given moment.  The bass player and guitarist offered background vocals but they may as well have had their microphones switched off as they were nearly completely inaudible.

The songs on the album that were played at the show (and all of them were) all sounded basically like the album, which stands to reason as the album was a live recording.  The only differences I can remember is that the solos were sometimes a little longer), the bass player played the acoustic guitar intro to “Roundabout” on the bass (this intro was omitted on the album), and the band added the instrumental section of “Eclipse” to the end of its version of “And You And I” (also omitted from the album).  “Eclipse” was appended to the end this band’s version of “And You And I” (and lacked the steel guitar) and, I thought, was one of the most powerful, dramatic, and emotional portions of the show and it is regrettable that it was omitted from the album.

When it comes down to it, this show was really a tale of two concerts, with the line of demarcation being the intermission.  The first half was, more-or-less, in the style and sound of the APB album and my comments and criticisms about that portion of the show are basically the same as those I had for the album (see here).  Enigmatic Oceans, which was played during the first half of the show and does not appear on the album, prefigured what was to come in the second half.

The second half of the show moved away from the twee and song based approach of the first half and went headlong into a new-age-jazz-fusion direction that was extremely well performed and musically and sonically very interesting.  The keyboardist, notably, focused more on his piano than the keyboard during the second half which contributed significantly to the overall change in sound, tone, and form.  Moreover, the guitarist played acoustic guitar for several of the pieces.  So, between acoustic guitar, piano, violin, and voice, you had the makings of a very interesting sound in the new-age-jazz-fusion style.  One of the highlights for me was “Long Distance Runaround,” which really revealed the impact that arrangement can have on a song.  The original Yes song is a classic song with multiple, and fast moving, contrapuntal lines.  By contrast APB presented it without any of its traditional instrumental trademarks (e.g.: the walking bass, the bouncy piano, or the punctuated guitar).  Instead, APB turned it into a contemplative jazz piece which, if it were not for the vocal melody, I would never have guessed that it was “Long Distance Runaround.”  As an aside, it is this sort of cover of a song that I really like; why simply play someone else’s song when you can make it your own?  “State of Independence” was very powerful and quite a surprise that Anderson would try and mine that part of his career with APB.  That song is a classic that is often overlooked when thinking about Anderson and/or Yes because too many assume it is a Donna Summers song (see here).  This song, too, was a brilliant reworking.  The original (and even Summers’ version) had a terribly 80’s sound with the drum machine and synthesizer (which has an almost midi type sound) and cheesy 80’s saxophone lines.  APB transformed the song into a fast paced and powerful jazz rock song.  Fantastic.  The Ponty pieces were presented more in line with how he recorded them, which makes sense as the members of the band played with him before and they were, more-or-less, presented in the same style in which they were written.  Anderson composed and sang lyrics over some of his music.  The pieces featured long and mesmerizing instrumental sections led by the violin and it was here that the drummer’s talent really came to the fore.  The instrumental sections really showed off the musicianship and prowess of the band and their ability to tastefully, yet intensely, show off their chops while remaining musical and interesting.

The audience was really into the show the entire night.  At this point in their career, and considering the size of the venue (~1000 seats), the audience seemed to have a direct relationship with Anderson and Ponty while they were on stage that perhaps would not have been there when in their prime (when they still had an image protect and project) and/or in bigger arenas where the audience and musicians are too geographically remote.  So the band, particularly Anderson, interacted personally with members of the audience the entire evening.  Anderson’s birthday was two days before the show, so there were a lot of cries of “Happy Birthday!” throughout the show (to one of them Anderson responded with “Merry Christmas!”).  Before introducing “Infinite Mirage,” Anderson starting speaking of “infinity” in a typical Andersonian-spiritual sort of way and someone shouted “You’re getting heavy Jon!” and Anderson responded with “not yet it’s too early!”  He really seemed to have fun and truly appreciate and feel the love the audience had for him.

Over all it was an excellent show and great way for Yes fans to see Anderson in a band setting singing the classics.  As indicated above, the first half of the show was somewhat uninteresting and lightweight, but during the second half the band, and, indeed, its prog-rock potential, came through with some really great new-age-jazz-fusion arrangements and some furious playing.



Anderson-Ponty Band, Better Late Than Never, a Review

In September 2014 progressive rock band Yes‘ co-founder and vocalist/harpist/guitarist Jon Anderson teamed up with virtuoso progressive rock (and classic fusion bands and Zappa alumnus) violinist Jean-Luc Ponty to form the supergroup Anderson-Ponty Band (APB) to play a live concert to be recorded for an album (CD/DVD) which was released in September 2015.  The set list they played consisted of mainly reworked Yes, Anderson, and Ponty pieces with a couple new tracks thrown in for good measure.  Apparently (see here) the actual set list was a little longer and included a few more pieces left off the album.  The live concert from September 2014, upon being recorded, was then modified and edited and overdubbed in the studio.

CD Track List:

1. “Intro”
2. “One in the Rhythm of Hope”  (a reworked Ponty piece)
3. “A for Aria”  (a new piece)
4. Owner of a Lonely Heart”  (a reworked Yes song)
5. “Listening with Me”  (a reworked Ponty piece called “Stay With Me”)
6. Time and a Word”  (a reworked Yes song)
7. “Infinite Mirage”  (a reworked Ponty piece)
8. “Soul Eternal”  (a reworked Anderson piece)
9. Wonderous Stories”  (a reworked Yes song)
10. And You and I”  (a reworked Yes song)
11. “Renaissance of the Sun”  (a reworked Ponty piece)
12. Roundabout”  (a reworked Yes song)
13. “I See you Messenger”  (a new piece)
14. “New New World”  (a reworked Anderson piece)

DVD Track List:

1. “One in the Rhythm of Hope”
2. “A for Aria”
3. “Owner of a Lonely Heart”
4. “Listening with Me”
5. “Time and a Word”
6. “Infinite Mirage”
7. “Soul Eternal”
9. “Renaissance of the Sun”
10. “Roundabout”


  • Jon Anderson – lead vocals, harp, guitars
  • Jean-Luc Ponty – violin
  • Jamie Glaser – guitars (Jamie Dunlap was part of the original line-up of APB and thus performed live on 20 September 2014 at the Wheeler Opera House, Aspen, Colorado, United States but by January 2015, he had left the band and had been replaced by Ponty’s guitarist Jamie Glaser who, as a result, overdubbed Dunlap’s parts on the present live album)
  • Wally Minko – keyboards
  • Baron Browne – bass
  • Rayford Griffin – drums & percussion


So, like most reviews, what one thinks of an album depends on what one expects from it.  If one expects a prog-rock tour de force, then one will be sorely disappointed.  Despite the pedigree of Anderson and Ponty and, indeed, the fusion background of the rest of the band, ABP does not live up to its potential.  Instead, the music is very light (even when it is heavy like during “Owner of a Lonely Heart), often twee, and and is more a fusion of new age and rock, with jazz sounding bass, than a fusion of jazz and Anderson.  Of course the underlying Yes, Anderson, and Ponty music is amazing and the stuff of prog rock legend, but I will try and keep this review just about the interpretation that APB has given them.

Anderson, I think, does most of the heavy lifting in the creation of this album as he wrote most of the music and pushed the kickstarter campaign (see below for more on that).  Excluding “Intro” (which is something of an overture written by Minko), 7 of the 13 remaining songs are from Anderson’s prior work and at least one of the new songs “I See You Messenger” is derived from Anderson’s stock of unreleased material.  Ponty’s solo compositions are instrumental and Anderson’s contribution to them are largely adding lyrics and melodies with which to sing those lyrics over Ponty’s music.  So, Anderson has a writing credit for every track on the album save “Intro.”  Aside from singing, he also strummed a guitar, plucked a harp, and a played very small stringed instrument which seems to be turned to a specific chord for him to strum (I do not know the name of this instrument).  Ponty is an excellent, virtuoso, and experimental violinist, and his playing throughout the album is technically top notch though not particularly inspired.  He more-or-less noodles over the Yes/Anderson material – though on occasion he plays something interesting – and, probably obviously, seems much more at home with his own material.

Of course, the music – especially the Yes material – is rearranged to fit a vaguely new-age-jazz sound which is often stripped down in its complexity compared to the originals, but and some of the interpretations are interesting.   In saying that, I really did not need yet another version of “Roundabout” and “Owner of a Lonely Heart.”  It is worth noting that “Time and a Word” is a reggae interpretation with some Beatles references thrown in here and there.  Although this version is fun, it is hardly original to APB as Anderson has been doing since at least 2008.  Various quotes from songs like “I’ve Seen All Good People” or “And You And I” or even “Don’t Kill the Whale” (in “I See You Messenger”) are sprinkled throughout.  As an aside, I really like the “Don’t Kill the Whale” quote and I think that song is catchy and the quote makes it doubly so.

As a huge Yes fan, I was most interested in Anderson.  It is very nostalgic for me to hear a new recording from this legendary singer who has made so much music that has such an impact on my life, especially since he nearly died not long ago (see here).  His range is still there.  His spirit is still there.  His emotion is still there.  Despite that, his strength is not nearly what it used to be.  The power of his voice is greatly diminished.  Though still ethereal, his voice is more “breathy” (for want of a better term) and less strident now.  I have to say that, despite this, Anderson, as always, seemed to be very aware that his voice is very unique and tries to use it uniquely if only for it’s sound and he does that here as well (e.g.: the vocal sounds on “One in the Rhythm of Hope”).  Lyrically, he is not really offering anything new.  There are various Yes song references (e.g.: lyrics like “Second Attention” or “That that is”) here and there and the remaining new lyrics fit Anderson’s long standing custom of writing about the sun, light, innocence, Earth, love, moon, and other sorts of “mystical” things.

As a brief editorial, considering Anderson’s diminished voice, stale lyrical ideas, and rather pedestrian musical ideas on this album, I do not think he would be an improvement over Jon Davison (Yes’ current singer) in Yes as Davison’s voice is stronger and his writing is much more creative and interesting right now.  Of course, none of that speaks to the nostalgia and love of/for having Anderson back in Yes and I, for one, would not oppose his return in the least, nor does it in any way diminish Anderson’s influence, creativity, and impact on Yes and prog rock in general.

This collaboration started its life as Kickstarter campaign (see here) and took over a year to prepare, perform, record, produce, and release.  The extended time it took to go from inauguration to release is the inspiration for the title “Better Late Than Never.”  I have to say, as far as expectations are concerned, for an album that took over a year to put together, I was truly hoping for more than just some fairly twee rearrangements of old songs and a couple of light weight new ones.  I was hoping some true creativity would work its way into the music.

All in all this album is really only for Anderson and Ponty fans who enjoy nostalgia and enjoy the idea of these two luminaries working together and enjoying the music of other.  So, as fans of both Anderson and Ponty, I really enjoyed the music and hearing the collaborate, but I was disappointed that they did not really do anything special or creative or really stretch themselves at all.



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‘Christian America’: Corporate invention or founding fathers’ vision?

This is from jonathanmerritt.religionnews.com which you can find here:

“Recent surveys have indicated that many, if not most, Americans believe the founding fathers wanted this nation to be officially Christian. But a new book by Princeton historian Kevin Kruse slices and dices this notion with razor-sharp facts and anecdotes. In “One Nation Under God: How Corporate America Invented Christian America,” he shows how corporations such as General Motors and Hilton Hotels partnered with clergymen and politicians to conflate patriotism and pietism. Here he tells how our nation’s Ten Commandments monuments were originally movie marketing props and how evangelist Billy Graham participated in America’s shifting mindset.”

You can learn more about this issue here.

What Jesus’ encounters with women teach us about God, life, and gender

This is from jonathanmerritt.religionnews.com which you can find here:

“Theologian Stanley Grenz once observed, “[Jesus] treated every woman he met as a person in her own right.” According to a new book, The Day I Met Jesus: The Revealing of Diaries of Five Women from the Gospels by Frank Viola and Mary Demuth, Jesus’ encounters with women tell us more than we might assume. Here I dialogue with co-author Mary Demuth, a prolific author and blogger, about what these tales teach us about God, life, and gender.”

You can learn more about this issue here.

Yesshow Review (with pictures): 8/9/15 Atlantic City

This post is the part of my Yes concert series of posts.  I started this series here and you can read the others here.

I saw the progressive rock band Yes play at the Borgata in Atlantic City, New Jersey on August 9, 2015 during their North American Summer Tour.  The opening band was Toto.  You can read more about this show here.

The line-up Yes fielded that show was:

The set Yes played was (the album from which the song comes in parenthesis):

I have taken a few days to think before I sat down to write this review because I have a lot of mixed feelings about this show.  I am not sure if I have resolved those feelings completely, but I think I have crystallized them enough to write something sensible here.

  • A Word on Yes 2015

By way of background, Yes co-founder Chris Squire, who has played on every album and every tour and every concert in Yes history (the only Yes man who can claim to have accomplished this feat, the technical and arguable issues of ABWH aside), passed away rather suddenly on June 27, 2015 (I wrote more about this here).  Now, as any Yes fan knows, Yes’ membership and lineups are notoriously unstable.  Except for bass (Chris Squire’s slot in Yes), every member and instrument has changed hands (and often changing back) many times over its forty-seven year history (and many more than once), and that even includes bass if one counts ABWH as Yes.  So, the loss of Squire, in theory, ought not be more significant than the loss of anyone else, especially co-founder and vocalist Jon Anderson, as Yes has shown itself to be more than the sum of its parts and an entity that exists regardless of and despite its membership as the Yes sound nearly always seems to continue regardless of who is in it; however, despite all that, the loss of Squire seems to be the biggest loss Yes has ever experienced and, in my mind, has plunged the band, or at least my view of the band, into an existential crisis.

It should be noted that, despite having the reputation for having a rotating lineup, Yes’ personnel is actually a lot more stable than people like to admit.  Yes formed in 1968, founded by the duo of Squire and Anderson.  Squire has been in Yes ever since (until now).  Starting in 1970 the core of Squire, Anderson, and guitarist Steve Howe formed.  In 1972 that core expanded to include drummer Alan White.  From 1972 to 2015 there has never been a Yes (again leaving the technical and arguable issues of ABWH aside) without at least three of these men in the lineup and all four have been in Yes from 1972 – 1979, 1991 – 1992, 1996 – 2008.  With Squire’s passing, Yes’s “core,” for the first time since 1970, has been reduced to just two and neither can claim membership in the original quintet, which consisted of Anderson, Squire, Bill Bruford (drums), Peter Banks (guitar), and Tony Kaye (keyboards). It is now possible, for the very first time in Yes history, to watch or listen to a Yes lineup (or indeed even ABWH) that contains no current Yes members.  This is perhaps why Squire’s loss has hit me so much harder than the loss of Anderson.  At least with the loss of Anderson the core still retained three of them (as it did without Anderson during the Drama era for example).  Now the core is reduced to two and, in a five man band, can two really be considered “a core,” especially since neither, either together or separate, can lay claim to every era of Yes?  For the very first time in Yes’ history, its lineup has lost all continuity with its origin.  Looking at the current lineup, they have no members from the original lineup, one member from the Bruford years, two members from the classic lineup, and one member from the 1980’s version.  As a result, I think, for the first time since its founding, a line up of Yes is now together which should be experiencing an existential crisis.

Is the current Yes really Yes or a very qualified and authentic tribute to Yes?  Well, I think the answer to that question really depends on how the current Yes moves forward.  Who are in Yes?  Well, Squire has been replaced by Billy Sherwood as bass player and backup vocalist.  As Yes fans will know, Sherwood is not just some bass player off the street that did well in an audition.  Sherwood has a long pedigree with Yes.  He became friends with Squire back in about 1988 and, from that time on, became something of Squire’s protege.  He started his formal association with Yes as a session player and song writer who wrote and performed a song that appeared on the Yes album Union in 1991. In the early 1990s, Sherwood joined Squire’s side band The Chris Squire Experiment.  In 1994 Sherwood toured with Yes as an on stage backup musician on their Talk Tour.  After that he helped engineer and mix Yes’ Keys to Ascension and Keys to Ascension 2 albums.  All of this culminated with Sherwood joining Yes as a full member, not as a bass player (because Squire was in the band) but as a second guitarist and second keyboardist, and making Yes’ Open Your Eyes and The Ladder albums and touring in support of them.  Sherwood departed Yes in 2000 but then, after that, joined forces with Squire in a band called Conspiracy.  Eventually, Sherwood again returned to Yes for more engineering and mixing work in 2014 for Yes’ Heaven & Earth album.  Sherwood has been a huge Squire fan since his childhood, which made him pick up bass playing and singing to start with, and his 25+ years as Squire’s protege makes Sherwood the natural successor to Squire if there ever was one, not to mention the fact that he is a world class bass player and singer in his own right who can more than play in Squire’s style.  Geoff Downes also has significant Yes pedigree, being the keyboard player during the Drama era, the Fly From Here era, and now the current era which includes Heaven & Earth (of course, he also has had a long history with Steve Howe in Asia).  Finally, Jon Davison, who joined for the Heaven & Earth era also has two Yes live albums under his belt (see here and here).  Davison is an amazing vocalist that is a worthy successor to Anderson as he can sing all of Yes material very well, is a multi-instrumentalist, and prolific song writer.

So, the current Yes has a strong line up and good connections with Yes past and has a lot of potential.  I think if the current Yes wants to have credibility as an authentic and vibrant iteration of Yes into the future, as opposed to merely a band doing great homage to great music, Yes needs to make new music with the new line up and focus their live shows on material which features Downes and/or Sherwood and/or Davison.  I think live sets heavily featuring other eras of Yes is just too disconnected from current Yes to sound truly authentic.  I think rather the current line up should sprinkle their sets with the old classics while focusing on material more relevant to its actual members, as opposed to material that too few – or indeed any – current member was involved in when it was written and recorded.

Unfortunately, promoters want Yes to keep playing full album tours (like here and here) which feature too few current members, but, on the bright side, Yes intend to include the entire Drama album in their set for their 2016 touring (which includes three current members) and Sherwood and Davison are very keen on making, and focusing upon, new music (especially Sherwood) and, word has it, Downes and Davison have an epic length piece prepared for recording (reportedly called “Pyramids”) and there are a lot of songs from the Heaven & Earth sessions that still remain to be recorded and released.  So, Yes is truly at a crossroads between falling back into becoming a nostalgia act and slowly closing out their career or retaining their vitality and continuing to make new music and establish their sound and identity for the future.  I hope Yes is able to thread the needle by playing a whole classic album live which is balanced out by new material.

I really like everyone in this iteration of the band and I really think they can come together to form a fantastic version of Yes, create their own (and credible) live versions of Yes classics, as well as make new music that will stand up proudly in the Yes catalog.  I think, with the addition of Sherwood, they have a great core of composers and between him, Davison, and Downes, can embark Yes on a new and modern era.  I just hope they take the opportunity to do it!

  • Thoughts on the Show

This show was in a casino and was effectively a “double bill” (with Toto), which is to say that Toto was not an “opener” but had equal stage time (a similar double bill with Yes and Styx can be read about here).  My complaints about seeing a Yes show at a casino have been expressed many times before and can be seen here.  As a result, Yes had to keep their set short and sweet and concise, which, unfortunately, does not bring the best out of Yes or do their music justice.  I brought a couple of friends to this show (their first Yes show) who have observed my Yes fandom for the better part of twenty years (one of which lived with me in college and heard it first hand every day for a couple of years) and, I have to say, was hoping for a set that explored Yes’ more complex, dynamic, longer, and diverse back catalog more than it did for their first time seeing them.   I hope they give Yes a chance to expand a little more at another concert.  At this show the set focused on shorter and simpler songs to accommodate the length of the show and the sort of show it was (a double bill “summer rock” type show) which, I do not think, really represents Yes’ music as well as it could.  The pieces were all played at a decent tempo similar to their tempos as originally recorded in the studio.  The live arrangements of the songs was pretty loyal to the studio as, I imagine, they are still trying to find their feet from the loss of Squire as opposed to experiment with live arrangements, so this show did not feature very much divergence from the studio recordings or flashy performances aside from the solos.  As one may expect, Squire’s dynamic and larger-than-life stage presence was sorely missed.  This is not to say that I did not think Sherwood did a good job, quite the contrary; I think it is possible to say both that Sherwood did a great job and that I miss Squire at the same time.  Indeed, I hope, as Sherwood continues to evolve into his role as Yes bass player, the void left by Squire can be filled a little better and I hope it is filled by Sherwood.

I thought Yes’ performance was precisely average for them.  Now, I will give them the benefit of the doubt.  They were playing only their third show of the tour and only the third in their history without Chis Squire and it was clear, to me, that his memory weighed heavily on them, especially Sherwood, as they were trying to find their feet in developing a new sound, style, and performance without him.  As a result, their sound was almost reticent at times (though that may over state the case a bit).  I trust that as this quintet continues to gel that they will break out and truly rock.  Indeed, Alan White has stated in interviews that he had to try and educate Sherwood of all the unspoken things he and Squire have done together in the rhythm section for the last forty-three years.  I thought their individual performances were very good.  I have to say that Howe’s playing was not quite as aggressive and flashy as it usually is, but I think that is because he spent so much time during the show conducting the band, which is a role he never really played before, or at least not to this degree.  On many occasions through the show, Howe could be seen facing the band and, often using his hand, counting off cues and drum breaks.  I imagine this can be chalked up to Yes still finding its feet without their founding bass man.  Sherwood’s performances did Squire proud, though I found his playing and stage presence to be somewhat reserved, likely due to the emotions he feels filling in for his friend.  On Facebook Sherwood has stated that he still feels the weight of Squire on his mind and with each passing show it gets a little lighter, so I expect his performances to become more dynamic as the tour continues.  Downes’ playing was solid as usual but, considering the set list, there were few true keyboard workouts for him to play.  Downes’ style is markedly different from Rick Wakeman‘s style, which is not to say Downes is not as good necessarily, just different.  Downes tends toward a “less-is-more” approach whereas Wakeman’s reputation (which is well deserved at that I would say) is to try and cram as many notes as fast as possible into each measure.  Now some (including me) think Wakeman’s approach is exciting and impressive and flashy, but I try not to allow that impression to be mistaken for “better.”  The problem for me is that Wakeman’s sound is so ingrained in Yes’ sound that Downes’ more reserved approach is very noticeable to my ears.  Davison continues to get stronger and stronger.  His stage presence has really improved and he truly owns his role as Yes’ lead singer by respecting the long shadow cast by Anderson but by also being himself on stage.  His musicianship, aside from singing, has really come to the fore in his excellent guitar playing and percussion playing.  Finally, Alan White’s performance has been the same for the last five or six years, which is to say a more modest approach to the drums which, I think, is a concession to his age (the pony tail and hat is a new and fun addition to his on stage look).

The mix was average at best, which is disappointing because I got seats directly in the middle of the theater to ensure I heard the best sound.  For about the first half of the show Sherwood (both bass and vocals) and Downes were mixed very low while Davison’s singing, Howe’s guitar, and White’s snare drum mixed really high (consistently with Toto’s sound).  Howe’s singing was almost impossible to hear throughout the show.  When Sherwood’s bass became more audible the show, for me, markedly improved.  Behind the band was a large stage-length screen which had images projected onto it throughout the show.

As an aside, some guy two seats down from me was recording the show as I saw his microphone between the sets.

  • The Songs

In terms of the songs, the show began with a memorial to Chris Squire.  The memorial featured Squire’s vintage Rickenbacker 4001D bass guitar under a spotlight in Squire’s spot on stage while slides depicting Squire through the years were presented on the screens behind the band and Squire’s song “Onward” was played (the band did not play the song, it was the album recording).  This memorial led into a truncated recording of Yes’ typical walk-on music (the Firebird) which led directly into “Don’t Kill the Whale,” a rarely played song which has never been played as an opener before.  I assume “Don’t Kill the Whale” was selected because it is a Squire song with a “fishy” theme as an homage to Squire’s nickname “Fish” (Sherwood goofed the introduction by coming in on the wrong beat).  Yes then launched into quality versions of “Tempus Fugit,” “America,” and “Going for the One,” all of which seem to fit the “summer rock” vibe.  Between “Don’t Kill the Whale” and “Tempus Fugit” Davison (on electric bongos) and White on cymbals played a brief percussion duet while Howe switched guitars.  Each track got a little more lively than the previous as the show progressed.  Davison led the audience in thanking Squire and remembering him before “America.”  Howe did the introduction for “Going for the One.”  This led into the big surprise of the night: “Time and a Word.”  Howe used hand gestures to keep time during the song.  The song was the big surprise because (1) no one in the band originally played it and (2) aside from when the song was first introduced in 1970, the three Keys to Ascension shows in 1996, and very brief excerpts in 1989 (here) and 1999 (here), Yes only played this song in 1978 – 1979.  The version of the song in 2015 had the sound of the original (minus the orchestra of course), was electric, like in 1978/79, but more-or-less had the arrangement from the Keys to Ascension era.  Naturally, as an electric song, the keyboard solo was played on a synthesizer (as opposed to Wakeman’s piano on Keys to Ascension) and in decidedly Downes’ style as opposed to Wakeman’s very busy style.  I have to say that these first five songs were very unexpected, and pleasant, surprises, as none are frequently played.  Aside from the rare “Time and a Word,” “Don’t Kill the Whale” is nearly as rare (played only in 1978/79, 2002, and only occasionally in 2004), and “America” is pretty rare as well (after 1972 it was not played until the three Keys to Ascension shows, 1997, 2002, and 2012).  Since 1977 “Going for the One” was not played until the three Keys to Ascension shows and then played in 2004 and 2013.  Of course, “Tempus Fugit” has been played a lot since 2008 but it was never played between 1981 and 2007.  So, the first half of the show felt new and different and interesting in the songs selected.

The remainder of the show was more “classics” oriented.  “Clap” was cool in that Howe appended the introduction to “Astral Traveller” to the beginning of “Clap”, which got the crowd excited.  On “Owner of a Lonely Heart,” Howe finally turned up the distortion and played with a strong muscular sound for once and that makes all the difference for that song.  He even added some good effects to the solo-break to sound more like Trevor Rabin’s solo (good on for Steve Howe for being a team player!).  “I’ve Seen All Good People” is the same as always, and I have to note that Sherwood retained Squire’s “oh oh oooh!” toward the end of “Your Move” which Squire added live and does not appear in the studio.  Also, they goofed on the intro to “Your Move.”  Howe introduced the song and then broke into singing its first verse, which is a cappella, entirely by himself (as opposed to in three part harmonies with Davison and Sherwood), which prompted him to say something like “I’ll be singing this song by myself apparently!”  It was a funny moment!  “Siberian Khatru” is one of my favorite Yes songs and I was happy to hear them play it live.  I love how smooth it is despite all of the twists and turns it takes.  Notably, aside from a couple of more-or-less isolated exceptions, this is the first time this song was not played as the concert opener.  “Roundabout” was not the encore but was played as the last song of the main set.  I suspect if this was a set of typical length it would been first encore with “Starship Trooper” as second encore.  Speaking of the encore, “Starship Trooper” concluded with its traditional “Wurm.”   Sherwood played a very modest bass solo recalling what Squire would have done, but kept it very simple.  Downes whipped out a keytar for a little flare at the end of his solo in “Wurm.”  My complaint for this song is that Downes’ seemed to strip down some of the Hammond sections in “Life Seeker” and simply did not play for a few measures.  At the end of the “Wurm” Davison added some vocalizations that recalled what Anderson did years before as captured on Yessongs.

  • A Brief Word on Toto

My fandom of Toto has always been a part of my fandom of Arena Rock in general.  I enjoy it and listen to it but will never be a fan of it like I am of prog rock.  So, I appreciate Toto in that vein and this concert reinforced my perspective on them.  Toto’s concert, and entire presentation, naturally bears a lot of similarity to Styx when they opened for Yes in 2011.  So, very loud, a lot of bombast, excitement, and stage presence revving of the crowd was the order of the day.  They played really well and I enjoyed them.  Toto suffered from the same bad mix as Yes for much of its set where only the singing, guitar, and snare drum could be heard most of the show.  The keyboards did not become more prominent until about half way through.  The bass guitarist could have not been on stage at all as he was so inaudible as to make him pointless, and the same goes for the percussionist as well but for the couple of times he was featured.  Before this show I did not realize just how big Toto’s stage membership is, which includes a guitarist, bass guitarist, percussionist, drummer, two keyboardists, a lead singer, and two backup singers.  Each keyboardist played with one hand a lot of the night, so I am not sure why two were necessary when one could have played both parts using both of his hands.  I got the feeling keyboardist Steve Porcaro is in the band, despite having very limited involvement in the music, mainly to ensure a Porcaro is in the band after the death of both of his brothers, both of whom were in Toto.  As a side note, Steve Porcaro’s stage moves are really awkward and resemble the dance moves of Elaine Benes.  Toto began the show with a variety of sound effects from the classic Wizard of Oz film, for obvious reasons, and played a good mix of their hits and new material from the latest album.  Although I enjoy their music I was happy that they played my favorite song of theirs: “Hydra.”  During the course of their show Toto made a few references to Yes, and Squire in particular due to his recent death, and described Yes as their musical heroes.  Indeed, Toto dedicated their new song “Great Expectations” to Squire.  The audience was really into Toto and, in fact, some guys near the stage tried to body surf and someone else ran up and down the aisle waving his hands.


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Which U.S. Presidents Were the Most Religious?

This is from jonathanmerritt.religionnews.com which you can find here:

“Consistency is something of an American tradition–at least as far as our presidents are concerned.

Forty-three individuals have served as Commander-in-Chief (Grover Cleveland held two non-consecutive terms). Based on birth and residence, they hail from only 18 of the 50 states. All have been male and, with the exception of Barack Obama, all have been white. And almost all claimed to be Protestant Christians. Only three were religiously unaffiliated–Abraham Lincoln, Thomas Jefferson, and Andrew Johnson–though these men were spiritual in their own right.”

You can learn more about this issue here.

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