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A Spectral Witness Materializes

The Salem witch trials turned on what was called “spectral evidence.” That was testimony from witnesses—either malicious or hysterical—who claimed the accused had assumed the form of a black cat or some other devilish creature and had come visiting in the night in order to torment the witness with bites and scratches, or to rearrange the bedroom furniture, or to send the baby into paroxysms.

The judge, William Stoughton, admitted this nonsense into evidence. Hysterical fantasies had real consequences: Sarah Good and four other defendants were hanged on July 19, 1692.

Three hundred twenty-six years later, an anonymous woman—a spectral and possibly nonexistent woman, for all that one knew when the story emerged—accused Brett Kavanaugh of sexually assaulting her 36 years ago, when he was a high-school student. It seemed as if the American constitutional process might be drawn back to the neighborhood of Salem, Mass. According to this phantom testimony, 17-year-old Brett held the girl down, pawed her and tried to force himself upon her, and held his hand over her mouth when she screamed, until a second prep-school devil piled on top, they all tumbled to the floor, and the girl managed to slip away. The boys were “stumbling drunk,” according to the account.

You were supposed to feel the sudden wind-shear of hypocrisy. The nominee was a seeming paragon—perfect father and husband and coach of his daughters’ basketball teams. He is a Roman Catholic with an Irish name, but now the script became as gleefully Calvinist as a Hawthorne tale. What imp of hell had possessed the Kavanaugh boy? The Protestant tale seemed to obtain subliminal verification against the background of Catholic sex-abuse scandals.

Thus the constitutional process takes on an aspect of the 21st-century medieval. The accuser’s story first emerged in a letter that came into the hands of California Sen. Dianne Feinstein. Ms. Feinstein brought it to light only after the Senate Judiciary Committee’s hearing, which featured somewhat Salem-like drama—costumed apparitions from “The Handmaid’s Tale” arranging themselves outside the committee room; inarticulate background screams of people being led away for disrupting the proceedings. It seemed as if Ms. Feinstein, not liking the odds of defeating Judge Kavanaugh’s confirmation, had found a devilishly clever way to head it off after all.

But then the accuser materialized, in the form of a 51-year-old California professor of clinical psychology, Christine Blasey Ford.

What to make of it now? The tale became a lot less spectral. Still, there had been no police report, and there were no witnesses. The second boy allegedly in the room said he had no memory of such an incident and called the accusation “absolutely nuts.” Judge Kavanaugh flatly denied it. Her therapist’s notes from 30 years later are not objective reporting, merely a transcription of what Ms. Ford herself said.

The thing happened—if it happened—an awfully long time ago, back in Ronald Reagan’s time, when the actors in the drama were minors and (the boys, anyway) under the blurring influence of alcohol and adolescent hormones. No clothes were removed, and no sexual penetration occurred. The sin, if there was one, was not one of those that Catholic theology calls peccata clamantia—sins that cry to heaven for vengeance.

The offense alleged is not nothing, by any means. It is ugly, and stupid more than evil, one might think, but trauma is subjective and hard to parse legally. Common sense is a little hard put to know what to make of the episode, if it happened. The dust of 36 years has settled over the memory. The passage of time sometimes causes people to forget; sometimes it causes them to invent or embellish. Invention takes on bright energies when its muse is politics, which is the Olympics of illusion. Inevitably, people will sort the matter out along mostly partisan lines. A lot will depend upon the testimony of Ms. Ford, who has volunteered to appear before the Senate Judiciary Committee. If the left expects a windfall from all this in November, it may find itself instead the victim of a terrific backlash.

These are part of the 21st century’s strange sectarian struggles. In another Senate hearing a year ago, Ms. Feinstein addressed Amy Coney Barrett, a Notre Dame law professor, about her nomination to the Seventh U.S. Circuit Court of Appeals. Ms. Feinstein began fretting earnestly about the nominee’s Catholicism. “The dogma lives loud within you,” the senator told the professor—an oddly mystical locution.

But 21st-century progressivism is also a religion—a militant faith, a true church in nearly all important respects. It is a community of belief and shared values, with dogmas, heresies, sacraments and fanatics; with saints it reveres and devils it abhors, starting with the great Satan Donald Trump. If religion were to disqualify a Catholic from public service, it would logically have to disqualify a practicing progressive, who is the creature of a belief system that is, on the whole, considerably more dogmatic than the one with headquarters in Rome.

By Lance Morrow , a senior fellow at the Ethics and Public Policy Center, is a former essayist for Ti

Published in the Wall Street Journal on September 17, 2018 (see here) and Wealth Creates Good on September 18, 2018 (see here).

EEOC Wins Settlement of Suit Brought On Behalf of Seventh Day Adventists

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

EEOC last week announced the settlement of a lawsuit it had filed against an  Ooltewah, Tennessee, senior and assisted living community.  Garden Plaza at Greenbriar Cove required two Seventh Day Adventist employees to work on Saturdays, and asked them to resign when they refused to do so.  In the settlement, Garden Plaza will pay $92,586.50 in damages, and enter a 2-year consent decree requiring it to train employees on Title VII matters.

You can learn more about this issue here.

3rd Circuit Upholds Cross On County Seal

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

In one of the first cases to rely on the U.S. Supreme Court’s decision in June rejecting an Establishment Clause challenge to the 94-year old Bladensburg Cross, the U.S. 3rd Circuit Court of Appeals yesterday rejected a challenge to a Latin cross on the 75-year old official seal of Lehigh County, Pennsylvania. In Freedom From Religion Foundation, Inc. v. County of Lehigh(3d Cir., Aug. 8, 2019), the 3rd Circuit said in part:

American Legion confirms that Lemon does not apply to “religious references or imagery in public monuments, symbols, mottos, displays, and ceremonies.”… Instead, informed by four considerations, the Court adopted “a strong presumption of constitutionality” for “established, religiously expressive monuments, symbols, and practices.”…

WFMZ News reports on the decision.

You can learn more about this issue here.

Family Law Tip: Settlements or Awards and Divorce

I post some tips regarding family to my Linkedin page (see here) from time to time, and I thought I should start sharing them here too. Below is one of my family law tips, and you can read my articles on family law here and other posts on family law here and all are cataloged here.

Court Refuses To Order Return of WWII Remains To Supposed Next-of-Kin

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

In Patterson v. Defense POW/ MIA Accounting Agency, (WD TX, July 29, 2019), a Texas federal district court refused to order return to plaintiffs of the remains of seven servicemen who were killed or perished as POW’s in the Philippines in World War II.  The court explains:

The parties dispute the extent to which the remains are identified. Plaintiffs argue that they have a property interest in these remains and that Defendants’ retention of these remains impinges on Plaintiffs’ religious practices and Plaintiffs’ interest in securing proper burial.

The court rejected plaintiffs’ due process, 4th Amendment, free exercise and RFRA claims to the remains at issue, saying in part:

They state “the facts alleged in the Amended Complaint show that the Government has placed a substantial burden on the Families’ exercise of religion.”…

The record reveals nothing further about Plaintiffs’ religious beliefs or how Defendants have burdened them. Plaintiffs do not indicate the nature, substance, or contours of their beliefs, or even whether all Plaintiffs share the same religious beliefs. In the complaint, Plaintiffs allege that a “proper burial is essential for many practicing Christians,” but they produce no declarations or other evidence outlining these beliefs. Defendants thus contest whether Plaintiffs’ beliefs are sincerely held.

The Court is inclined to grant summary judgment on the sincerity grounds … given Plaintiffs’ total lack of evidence. Courts have cautioned, however, that “[t]hough the sincerity inquiry is important, it must be handled with a light touch….

In keeping with this tradition … the Court assumes Plaintiffs show sincerely held beliefs and concludes alternatively that Plaintiffs do not show a substantial interference with these beliefs. As Defendants note, Plaintiffs allege only that their beliefs require a “proper burial,” but without any explanation of what makes a “proper burial in accordance with each respective family’s religious beliefs,” the Court cannot assess the alleged interference…. Thus, Plaintiffs do not meet their initial burden for either their RFRA or Free Exercise claims.

You can learn more about this issue here.

Science Is Giving the Pro-Life Movement a Boost

Advocates are tracking new developments in neonatal research and technology—and transforming one of America’s most contentious debates.

A 1980s March for Life protest in front of the White House COURTESY OF MARCH FOR LIFE
The first time Ashley McGuire had a baby, she and her husband had to wait 20 weeks to learn its sex. By her third, they found out at 10 weeks with a blood test. Technology has defined her pregnancies, she told me, from the apps that track weekly development to the ultrasounds that show the growing child. “My generation has grown up under an entirely different world of science and technology than the Roe generation,” she said. “We’re in a culture that is science-obsessed.”

Each weekday evening, get an overview of the day’s biggest news, along with fascinating ideas, images, and voices.

Activists like McGuire believe it makes perfect sense to be pro-science and pro-life. While she opposes abortion on moral grounds, she believes studies of fetal development, improved medical techniques, and other advances anchor the movement’s arguments in scientific fact. “The pro-life message has been, for the last 40-something years, that the fetus … is a life, and it is a human life worthy of all the rights the rest of us have,” she said. “That’s been more of an abstract concept until the last decade or so.” But, she added, “when you’re seeing a baby sucking its thumb at 18 weeks, smiling, clapping,” it becomes “harder to square the idea that that 20-week-old, that unborn baby or fetus, is discardable.”

Scientific progress is remaking the debate around abortion. When the U.S. Supreme Court decided Roe v. Wade, the case that led the way to legal abortion, it pegged most fetuses’ chance of viable life outside the womb at 28 weeks; after that point, it ruled, states could reasonably restrict women’s access to the procedure. Now, with new medical techniques, doctors are debating whether that threshold should be closer to 22 weeks. Like McGuire, today’s prospective moms and dads can learn more about their baby earlier into a pregnancy than their parents or grandparents. And like McGuire, when they see their fetus on an ultrasound, they may see humanizing qualities like smiles or claps, even if most scientists see random muscle movements.

These advances fundamentally shift the moral intuition around abortion. New technology makes it easier to apprehend the humanity of a growing child and imagine a fetus as a creature with moral status. Over the last several decades, pro-life leaders have increasingly recognized this and rallied the power of scientific evidence to promote their cause. They have built new institutions to produce, track, and distribute scientifically crafted information on abortion. They hungrily follow new research in embryology. They celebrate progress in neonatology as a means to save young lives. New science is “instilling a sense of awe that we never really had before at any point in human history,” McGuire said. “We didn’t know any of this.”

In many ways, this represents a dramatic reversal; pro-choice activists have long claimed science for their own side. The Guttmacher Institute, a research and advocacy organization that defends abortion and reproductive rights, has exercised a near-monopoly over the data of abortion, serving as a source for supporters and opponents alike. And the pro-choice movement’s rhetoric has matched its resources: Its proponents often describe themselves as the sole defenders of women’s welfare and scientific consensus. The idea that life begins at conception “goes against legal precedent, science, and public opinion,” said Ilyse Hogue, the president of the abortion-advocacy group NARAL Pro-Choice America, in a recent op-ed for CNBC. Members of the pro-life movement are “not really anti-abortion,” she wrote in another piece. “They are against [a] world where women can contribute equally and chart our own destiny in ways our grandmothers never thought possible.”

In their own way, both movements have made the same play: Pro-life and pro-choice activists have come to see scientific evidence as the ultimate tool in the battle over abortion rights. But in recent years, pro-life activists have been more successful in using that tool to shift the terms of the policy debate. Advocates have introduced research on the question of fetal pain and whether abortion harms women’s health to great effect in courtrooms and legislative chambers, even when they cite studies selectively and their findings are fiercely contested by other members of the academy.

Not everyone in the pro-life movement agrees with this strategic shift. Some believe new scientific findings might work against them. Others warn that overreliance on scientific evidence could erode the strong moral logic at the center of their cause. The biggest threat of all, however, is not the potential damage to a particular movement. When scientific research becomes subordinate to political ends, facts are weaponized. Neither side trusts the information produced by their ideological enemies; reality becomes relative.

Abortion has always stood apart from other topics of political debate in American culture. It has remained morally contested in a way that other social issues have not, at least in part because it asks Americans to answer unimaginably serious questions about the nature of human life. But perhaps this ambiguity, this scrambling of traditional left-right politics, was always unsustainable. Perhaps it was inevitable that abortion would go the way of the rest of American politics, with two sides that share nothing lobbing claims of fact across a no-man’s land of moral debate.

When Colleen Malloy, a neonatologist and faculty member at Northwestern University, discusses abortion with her colleagues, she says, “it’s kind of like the emperor is not wearing any clothes.” Medical teams spend enormous effort, time, and money to deliver babies safely and nurse premature infants back to health. Yet physicians often support abortion, even late into fetal development.

As medical techniques have become increasingly sophisticated, Malloy said, she has felt this tension acutely: A handful of medical centers in major cities can now perform surgeries on genetically abnormal fetuses while they’re still in the womb. Many are the same age as the small number of fetuses aborted in the second or third trimesters of a mother’s pregnancy. “The more I advanced in my field of neonatology, the more it just became the logical choice to recognize the developing fetus for what it is: a fetus, instead of some sort of sub-human form,” Malloy said. “It just became so obvious that these were just developing humans.”

Malloy is one of many doctors and scientists who have gotten involved in the political debate over abortion. She has testified before legislative bodies about fetal pain—the claim that fetuses can experience physical suffering, perhaps even prior to the point of viability outside the womb—and written letters to the U.S. Senate Judiciary Committee.

Her career also shows the tight twine between the science and politics of abortion. In addition to her work at Northwestern, Malloy has produced work for the Charlotte Lozier Institute, a relatively new D.C. think tank that seeks to bring “the power of science, medicine, and research to bear in life-related policymaking, media, and debates.” The organization, which employs a number of doctors and scholars on its staff, shares an office with Susan B. Anthony List, a prominent pro-life advocacy organization.

“I don’t think it compromises my objectivity, or any of our associate scholars,” said David Prentice, the institute’s vice president and research director. Prentice spent years of his career as a professor at Indiana State University and at the Family Research Council, a conservative Christian group founded by James Dobson. “Any time there’s an association with an advocacy group, people are going to make assumptions,” he said. “What we have to do is make our best effort to show that we’re trying to put the objective science out here.”

This desire to harness “objective science” is at the heart of the pro-science bent in the pro-life movement: Science is a source of authority that’s often treated as unimpeachable fact. “The cultural authority of science has become so totalitarian, so imperial, that everybody has to have science on their side in order to win a debate,” said Mark Largent, a historian of science at Michigan State University.

Some pro-life advocates worry about the potential consequences of overemphasizing the authority of science in abortion debates. “The question of whether the embryo or fetus is a person … is not answerable by science,” said Daniel Sulmasy, a professor of biomedical ethics at Georgetown University and former Franciscan friar. “Both sides tend to use scientific information when it is useful towards making a point that is based on … firmly and sincerely held philosophical and religious convictions.”

For all the ways that the pro-life movement might be seen as countering today’s en vogue sexual politics, its obsession with science is squarely of the moment. “We’ve become steeped in a culture in which only the data matter, and that makes us, in some ways, philosophically illiterate,” said Sulmasy, who is also a doctor. “We really don’t have the tools anymore for thinking and arguing outside of something that can be scientifically verified.”

Sometimes, scientific discoveries have worked against the pro-life movement’s goals. Jérôme Lejeune, a French scientist and devout Catholic, helped discover the cause of Down syndrome. He was horrified that prenatal diagnosis of the disease often led women to terminate their pregnancies, however, and spent much of his career advocating against abortion. Lejeune eventually became the founding president of the Vatican’s Pontifical Academy for Life, established in 1994 to navigate the moral and theological questions raised by scientific advances against a “‘culture of death’ that threatens to take control.”

When scientific evidence seems to undermine pro-life positions on issues such as birth control and in vitro fertilization, pro-lifers’ enthusiasm for research sometimes wanes. For example: Some people believe emergency contraception, also known as the morning-after pill or Plan B, is an abortifacient, meaning it may end pregnancies. Because the pill can prevent a fertilized egg from implanting in a woman’s uterus, advocates argue, it could end a human life.

Sulmasy, who openly identifies as pro-life, has argued against this view of the drug—and found it difficult to reach his peers in the movement. “It’s been very difficult to convince folks within the pro-life community that the science seems to be … suggesting that [Plan B] is not abortifacient,” he said. “They are too readily dismissing that work as being motivated by advocacy.”

And at a basic level, the argument for abortion is also framed in scientific terms: The procedures are “gynecological services, and they’re health-care services,” Cecile Richards, the president of Planned Parenthood, says. This alone is enough to make even gung ho pro-life advocates wary. “Science for science’s sake is not necessarily good,” said McGuire, who serves as a senior fellow at the Catholic Association. “If anything, that’s what gave us abortion. … When the moral and human ethics are removed from it, it’s considered a medical procedure.”

Even with all these internal debates and complications, many in the pro-life movement feel optimistic that scientific advances are ultimately on their side. “Science is a practice of using systematic methods to study our world, including what human organisms are in their early states,” said Farr Curlin, a physician who holds joint appointments at Duke University’s schools of medicine and divinity. “I don’t see any way it’s not an ally to the pro-life cause.”

Pro-lifers’ enthusiasm for science isn’t always reciprocated by scientists—sometimes, quite the opposite. Last summer, Vincent Reid, a professor of psychology at Lancaster University in the United Kingdom, published a paper showing that late-development fetuses prefer to look at face-like images while they’re in the womb, just like newborn infants. As Reid told The Atlantic’s Ed Yong, the study “tells us that the fetus isn’t a passive processor of environmental information. It’s an active responder.”

After his research was published, Reid suddenly found himself showered with praise from American pro-life advocates. “I had a few people contacting me, congratulating me on my great work, and then giving a kind of religious overtone to it,” he told me. “They’d finish off by saying, ‘Bless you,’ this sort of thing.” Pro-life advocates interpreted his findings as evidence that abortion is wrong, even though Reid was studying fetuses in their third trimester, which account for only a tiny fraction of abortions, he said. “It clearly resonated with them because they had a preconceived notion of what that science means.”

Reid found the experience perplexing. “I’m very proud of what I did … because it made genuine advances in our understanding of human development,” he said. “It’s frustrating that people take something which actually has no relevance to the position of anti-abortion or pro-abortion and try to use it … in a way that’s been pre-ordained.” He’s not going to stop doing his research on fetal development, he said. But he “will probably be a bit more heavy, perhaps, in my anticipation of how it’s going to be misused.”

This fate is nearly impossible to avoid in any field that remotely touches on abortion or origin-of-life issues. “There [are] no people who are just sitting in a lab, working on their projects,” said O. Carter Snead, a professor of law and political science at Notre Dame who served as general counsel to President George W. Bush’s Council of Bioethics. “Everybody is politicized.” This is true even of researchers like Reid, who was blindsided by the reaction to his findings. “You can’t do this and not get sucked into somebody’s orbit,” said Largent, the Michigan State professor. “Everyone’s going to take your work and use it for their ends. If you’re going to do this, you either decide who’s going to get to use your work, or it’s done to you.”

That can have a chilling effect on scientists who work in sensitive areas related to conception or death. Abortion is “the third-rail of research,” said Debra Mathews, an associate professor of pediatrics at Johns Hopkins who also has responsibility for science programs at the university’s bioethics institute.* “If you touch it, your research becomes associated with that debate.” Although the abortion debate is important, she said, it can be intimidating for researchers: “It tends to envelop whatever it touches.”

As often as not, scientists dive into the debate, taking funding from pro-life or pro-choice organizations or openly advancing an ideological position. This, too, has consequences: It casts doubt on the validity and integrity of any researcher in bioethics-related fields. “Anybody with money can get a scientist to say what they want them to say,” said Largent. “That’s not because scientists are whores. It’s because the world is a really complex place, and there are ways that you can craft a scientific investigation to lend credence to one side or another.”

This can have a fun-house-mirror effect on the scientific debate, with scholars on both sides constantly criticizing the methodological shortcomings of their opponents and coming to opposite conclusions. For example: Priscilla Coleman is a professor at Bowling Green State University who studies the mental-health effects of abortion. Coleman has testified before Congress, and pro-life advocates cite her as an important scholar working on this issue. At least some of her work, however, has been challenged repeatedly by others in her field: When she published a paper on the connection between abortion and anxiety, mood, and substance-abuse disorders in 2009, for instance, a number of scholars suggested her research design led her to draw false conclusions. She and her co-author claimed they had only made a weighting error and published a corrigendum, or corrected update. But ultimately, the author of the dataset Coleman used concluded that her “analysis does not support … assertions that abortions led to psychopathology.”

“If the results are questionable or not reproducible, then the study gets retracted. That’s what happens in science,” Coleman said in an interview. “The bottom line was that the pattern of the findings did not change.” She expressed frustration at media reports that questioned her work. “I’m so past trying to defend myself in these types of articles,” she said. “To me, there isn’t anything much worse than distorting science for an agenda, when the ultimate impact falls on these women who spend years and years suffering.”

At least in one respect, she is correct: Her opponents often do have affiliations with the pro-choice movement. In this case, one of the researchers questioning her work was associated with the Guttmacher Institute, a pro-abortion organization. In an email, Lawrence Finer, the co-author who serves as Guttmacher’s vice president for research, said that Coleman’s results were simply not reproducible. While Guttmacher advocates for abortion rights, the difference, Finer claimed, is that it places a priority on transparency and integrity—which, he implied, the other side does not. “It’s actually not difficult to distinguish neutral analysis from advocacy,” he wrote in an email. “The way that’s done is by making one’s analytical methods transparent and by submitting one’s analysis—‘neutral’ or not—to peer review. No researcher—no person, for that matter—is neutral; everyone has an opinion. What matters is whether the researcher’s methods are appropriate and reproducible.”

“There is a false equivalence between the science and what [Coleman] does,” added Julia Steinberg, an assistant professor at the University of Maryland’s School of Public Health and Finer’s co-author, in an email. “It’s not a debate, the way global warming is not a debate. There are people claiming global warming is not occurring, but scientists have compelling evidence that it is occurring. Similarly, there are people like Coleman, claiming abortion harms women’s mental health, but the scientists have compelling evidence that this is not occurring.”

Yet, even the academy that establishes and promotes transparent methodologies for science research has its own institutional biases. Since support for legal abortion rights is commonly seen as a neutral position in the academy, said Sulmasy, openly pro-life scholars may have a harder time getting their colleagues to take their work seriously. “If an article is written by somebody who … is affiliated with a pro-life group or has a known pro-life stand on it, that scientific evaluation is typically dismissed as advocacy,” he said. “Prevailing prejudices within academia and media” determine “what gets considered to be advocacy and what is considered to be scientifically valid.”

Pro-life optimists believe those biases might be changing—or, at least, they hope they’ve captured the territory of scientific authority. As the former NARAL president Kate Michelman told Newsweek in 2010, “The technology has clearly helped to define how people think about a fetus as a full, breathing human being … The other side has been able to use the technology to its own end.” In recent years, this has been the biggest change in the abortion debate, said Jeanne Mancini, the president of March for Life: Pro-choice advocates have largely given on up on the argument that fetuses are “lifeless blobs of tissue.”

“There had been, a long time ago, this mantra from our friends on the other side of this issue that, while a little one is developing in its mother’s womb, it’s not a baby,” she said. “It’s really hard to make that argument when you see and hear a heartbeat and watch little hands moving around.”

Ultimately, this is the pro-life movement’s reason for framing its cause in scientific terms: The best argument for protecting life in the womb is found in the common sense of fetal heartbeats and swelling stomachs. “The pro-life movement has always been a movement aimed at cultivating the moral imagination so people can understand why we should care about human beings in the womb,” said Snead, the Notre Dame professor. “Science has been used, for a long time, as a bridge to that moral imagination.”

Now, the pro-life movement has successfully brought their scientific rallying cry to Capitol Hill. In a recent promotional video for the Charlotte Lozier Institute, Republican legislators spoke warmly about how data helps make the case for limiting abortion. “When we have very difficult topics that we need to talk about, the Charlotte Lozier Institute gives credibility to the testimony and to the information that we’re giving others,” said Tennessee Representative Diane Black. Representative Claudia Tenney of New York agreed: “We’re winning on facts, and we’re winning hearts and minds on science.”

This, above all, represents the shift in America’s abortion debate: An issue that has long been argued in normative claims about the nature of human life and women’s autonomy has shifted toward a wobbly empirical debate. As Tenney suggested, it is a move made with an eye toward winning—on policy, on public opinion, and, ultimately, in courtrooms. The side effect of this strategy, however, is ever deeper politicization and entrenchment. A deliberative democracy where even basic facts aren’t shared isn’t much of a democracy at all. It’s more of an exhausting tug-of-war, where the side with the most money and the best credentials is declared the winner.

* This article has been updated to clarify that Mathews helps run science programs at the Johns Hopkins Berman Institute of Bioethics, rather than the institute itself.

By Emma Green and published in January 18, 2018 in The Atlantic and can be found here.

11th Circuit: Inmate’s Complaint About Halal-Compliant Food Can Move Ahead

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

In Robbins v. Robertson(11th Cir., July 23, 2019), the U.S. 11th Circuit Court of Appeals held that a Muslim inmate’s 1st Amendment claim regarding the adequacy of his religious diet should not be dismissed, saying in part:

Plaintiff also made some non-conclusory allegations that plausibly supported his claim that the Islamic-compliant vegan meals were so nutritionally deficient that he was forced to choose between abandoning his religious precepts (by eating religiously non-compliant food that was nutritionally adequate) or suffering serious health consequences (by eating nutritionally inadequate food that was religiously compliant).

You can learn more about this issue here.

America’s ‘broken’ Constitution is exactly what the founders intended

Next month, the Democrats may win a significant majority of the votes for the House of Representatives and an overwhelming majority of the votes for the Senate and still fail to take the majority in either. They might even lose seats in the Senate.

That sounds like prima facie evidence that American democracy is badly broken. But it’s exactly the result America’s system was designed to deliver.

The Senate, which guarantees each state equal representation, was devised from the beginning to be a check on the democratic centralist tendencies that the founders presumed would dominate the House of Representatives. Unlike the infamous three-fifths compromise, this was not a measure meant to placate (or mitigate) the interests of the slave states. The largest state in the 1790 census (and by far the largest when slaves are included) was Virginia. Other slave states like North and South Carolina were also under-represented relative to their total population in the nascent Senate, while Rhode Island, Maine, and Vermont were all over-represented.

Rather, the Senate was designed to prevent the interests of large states, slave or free, from completely dominating those of small states. While the large states would dominate in the House, as well as in the corridors of power generally, the Senate would give the small states an opportunity to extract concessions as part of the legislative process.

Is that an affront to democracy? It depends what your theory of democracy is. If democracy is about discerning and implementing the will of the majority of its citizens, then a system that frustrates that will is clearly unjust. But a political system’s legitimacy depends, ultimately, on all its various segments and factions accepting its decisions. If the states are seen as distinct and at least semi-sovereign bodies with interests of their own, it’s not obviously unjust to seek ways to alleviate the reasonable fears of the weakest among them, anymore than it is obviously unjust to give Scotland or Quebec special rights and powers so as to encourage them to remain in the United Kingdom and Canada respectively.

Of course, if the small states all voted as a bloc against the large states, that could be a serious problem. But today’s Senate is not as biased against Democrats as one might think. The 16 smallest states by population have between them 16 Democratic senators (including independents who caucus with the Democrats) and 16 Republicans — and the Democrats actually represent fewer aggregate voters than the Republicans do. Even if Sens. Heidi Heitkamp (D-N.D.) and Jon Tester (D-Mont.) both lose their seats, the partisan split would still be fairly close.

Rather, the bias against Democrats and toward Republicans comes higher up the population scale. From Mississippi to Missouri, the 17 states in the middle-rank of population have a total of 21 Republican senators and 13 Democrats. By contrast, the largest 17 states are represented by 14 Republicans and 20 Democrats. And 75 percent of the disparity between the population represented by the average Democratic senator and the average Republican senator can be explained by a single mega-state: California. The counter-majoritarian structure of the Senate sounds less obviously absurd when you describe it as a way of keeping California from pushing the rest of the country around.

The House of Representatives, of course, is another matter. It was designed to represent the people directly, and the fact that Democrats could lose the House even if they won a significant majority of votes should be troubling. But this, too, is a potential consequence of any territory-based system of voting. For instance, Westminster-style parliamentary systems can also produce minority governments (and have, in recent memory, in both the U.K. and Canada) when the ideological majority is divided between multiple parties, or when it is “inefficiently” distributed, with lopsided majorities for one side in some districts and thinner majorities for the other side in other districts. Gerrymandering makes this problem worse, and is completely unjustified by any democratic theory. But even neutrally-drawn districts would, in America today, probably result in a bias towards the Republicans because of the scale of Democratic majorities in uncompetitive urban districts.

Is that an affront to democracy? Again, it depends on what your theory of democracy is. A territorial system of representation is designed to assure that individual representatives are attentive to the particular interests of their districts. If a population’s true interests are no longer driven by geography, but by other factors, then that’s an argument for shifting to a system of proportional representation.

But it’s worth pointing out that such systems can also be stymied by determined minorities — and can prove distinctly oppressive to other minorities. Consider Israel. Parties representing ultra-Orthodox Jewish voters have nearly always been part of the governing coalition, whether of the right or of the left, and have repeatedly stymied broadly-popular efforts to rein in the power of the rabbinate. By contrast, the Arab-dominated parties have never been part of any coalition government and have far less influence over national policy than their population would suggest they should.

My point is not to minimize the drift in America against liberal democracy. Rather, it’s to illustrate that profound cultural cleavages can warp and distort any democratic system. And it’s those cleavages rather than our kludgy, frequently counter-majoritarian system that are to blame for the uphill climb the Democrats face in assembling a governing majority.

In our system, such a governing majority must be geographically broad, must overweight rural interests, and must overweight the interests of small states. One party has found success in deliberately deepening those cleavages, the better to build a governing majority out of a dispersed minority. The other party can only counter that strategy by adopting a politics that finds genuine common ground, not with the other party, but with the dispersed minority that increasingly votes for it.

Because if the counter-majoritarian kludges of our system are the problem, there are hard limits to what we can do about it. Even amending the Constitution won’t necessarily do the trick. Article V specifies that while the Constitution can be amended in nearly all ways, there are exceptions, specifically: “[N]o state, without its consent, shall be deprived of its equal suffrage in the Senate.”

However hard winning a majority might be, it’s got to be easier than unanimity.

By Noah Millman and published in The Week on October 25, 2018 and can be found here.

Court Expands Injunction On Prayer At High School Graduations

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

In American Humanist Association v. Greenville County School District, (D SC, July 18, 2019), a South Carolina federal district court expanded its May 2015 order relating to prayer at high school graduation ceremonies in a South Carolina school district. It issued a permanent injunction that includes the following provisions:

(1) The district shall not include a prayer … as part of the official program for a graduation ceremony. The district also shall not include an obviously religious piece of music as part of the official program for a graduation ceremony.

(2) The district and/or school officials shall not encourage, promote, advance, endorse, or participate in causing prayers during any graduation ceremony….

(4) The district and/or school officials shall not provide copies of student remarks from any prior year’s graduation ceremony to any students selected to make remarks during an upcoming graduation ceremony.

(5) … No program or flier may direct the audience or participants to stand for any student’s remarks at a graduation ceremony.

(6) If school officials review, revise, or edit a student’s remarks in any way prior to the graduation ceremony, then school officials shall ensure that the student’s remarks do not include prayer.

(7) If school officials do not review, revise, or edit a student’s remarks …, then a student’s remarks may include prayer, provided that no other persons may be asked to participate or join in the prayer, for example, by being asked to stand or bow one’s head. Moreover, in the event that a student’s remarks contain prayer, no school officials shall join in or otherwise participate in the prayer.

(8) Any program or flier for a graduation ceremony must include the following disclaimer if the ceremony includes a student’s remarks: “The views or opinions expressed by students during this program are their own and do not reflect the policy or position of the school district.”

Greenville News reports on the decision.

You can learn more about this issue here.

5th Circuit Upholds Direct Supervision Requirement For Muslim Inmate Worship Services

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

In Brown v. Scott, (5th Cir., July 5, 2019), the U.S. 5th Circuit Court of Appeals in a 2-1 decision (56 pages long) written by Judge Owen held that a 1977 consent decree allowing Muslim inmates to gather for worship without direct supervision should be vacated. While Muslim inmates had met with only indirect supervision from 1977 to 2012, that arrangement was terminated after a Jehovah’s Witness inmate successfully sued arguing that the more favorable treatment of Muslim inmates violates the Establishment Clause. The termination of the special treatment for Muslim inmates, however, violated the earlier consent decree. This led prison officials to ask that the earlier decree be vacated under provisions of the Prison Litigation Reform Act that allow lifting of the injunction if it is no longer needed to correct an ongoing violation of rights.

Muslim inmates argued that requiring direct supervision of their services would impose a substantial burden in violation of the Religious Land Use and Institutionalized Persons Act. The majority held, however, that it is not prison authorities that have imposed a substantial burden, but instead it is caused by a lack of Muslim volunteers from outside who will supervise services. The majority also rejected Free Exercise and Establishment Clause arguments.

The district court had concluded that Texas prison regulations favor Catholic, Jewish, Native American and Protestant inmates over Muslim inmates.  Judge Owen concluded that this does not create an Establishment Clause violation because in the prison context the more lenient Turner v. Safley test should be applied to Establishment Clause claims.

Judge King joined all of Judge Owen’s opinion except for the Establishment Clause section. She held there was an Establishment Clause violation, but that the 1977 consent decree should be vacated nevertheless because it is broader than necessary to remedy the violation.

Judge Dennis in a separate opinion dissented as to the RLUIPA issue, and would not have reached the Establishment Clause or Free Exercise claims

You can learn more about this issue here.

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