Friday, July 13, 2018

Jahi McMath's life gives cause to rethink "brain death"

Jahi McMath's funeral, July 6, 2018
“It is appointed for man to die once, and after that comes the judgement” (Heb. 9:27 ESV). Has the state of California found a way to defy God and engineer two deaths? Or are they still defending a malicious lie? That’s the fundamental question raised by the death of Jahi McMath on June 22, 2018.

Four and a half years earlier, on December 12, 2013, the state of California declared Jahi dead. Against the objections of her mother and father--and against a court order--California issued a legally binding death certificate. It forbade, under penalty of law, anybody in the state of California to treat Jahi as a living person. It was the ultimate discrimination.

With the stroke of a pen, she was an outlaw in the purest sense of the word. The death  certificate meant that she was outside the protection of any laws. Doctors who saw hope were forbidden from helping her. Law enforcement officers who saw her rights being violated were forbidden to protect and serve. Even her parents who are, by nature, her inalienable guardians were stripped of parental rights.
Benioff Children's Hospital

The story began on a Monday when Jahi entered Benioff Children’s Hospital to have her tonsils and adenoids removed. The surgery itself seemed successful. But in the recovery room she began to bleed profusely.

Bleeding after such a surgery is normal, but not this much. After two hours she had filled up two plastic bins with blood. Her mother, a professional nurse, kept asking for the doctor, but he wouldn’t come for another two and a half hours.

By then, Jahi’s massive loss of blood caused a cascade of injuries. Her blood pressure dropped until her heart stopped. Then, deprived of oxygen, her brain was severely damaged.

Why was she not given a transfusion or plasma? Why didn’t the doctor come?  These and many other questions will be addressed at trial. Oddly, in spite of the death certificate issued over four years ago, her parents could not file a wrongful death suit. That’s because she wasn’t actually dead.

If doctors were not interested in Jahi during the critical hours following the surgery, they were certainly interested after her brain was damaged. Here was a young girl with a body full of perfectly healthy organs. The possibilities for transplant were rich.

The problem is that if they wait for her heart to stop, many of these organs will be damaged and become unusable. It was to solve this “problem” that a new ethical idea was introduce 50 years ago. Why not simply change the definition of death?

In 1965 the American College of Gynecology (ACOG) changed the definition of the beginning of life from the moment of fertilization to the moment of implantation. This was not a scientific change, but an ethical/religious one. It helped to skirt the ethical problems posed by IUDs and other contraceptives that stopped the implantation of an embryo that had already been alive for several days.

If ACOG can do something as drastic as that, why not change the definition of death as well? Death had always been defined as the cessation of vital functions.  In 1968, a report titled, “A Definition of Irreversible Coma” floated the concept of “brain death.” It proposed the idea that one organ of the body (the brain) could actually die before the rest of the body.

States began altering their laws to suit this nebulous idea. Advocates convinced us that “brain death” is irreversible and inevitably leads to total death. One major difficulty, however, is that neuroscience is not exact enough that all can agree on when it occurs.

Before the notion of “brain death,” death could be determined objectively by anyone. But “brain death” laws, like the one in California, depend not on public facts but on expert opinions. Doctors become like high priests who emerge from secret consultations with an opinion from God.

The problem is that doctors can and do come to different opinions. So, California requires two doctors to agree to a “brain death” before it is legal. But, in a state with around 80,000 doctors, that’s a pretty low standard. Even a world-renowned doctor of neuroscience has no legal standing to reverse what any two doctors have decreed.

Jahi McMath

That’s what happened to Jahi. Two doctors at Benioff Hospital declared that she was “brain dead.” Her mother, a professional nurse, had access to all the same information as the two doctors and was convinced that they were wrong. But her medical training gave her no legal standing. Neither could multiple brain experts overturn the judgment.

Four and a half years later she was proved right. Jahi died not because her “dead brain” killed the rest of her, but due to complications from another surgery. Still, California is fighting to uphold their legal fiction. After Jahi lived, grew, developed, healed and communicated with others, California still refuses to acknowledge the death certificate issued by the state of New Jersey.

Here are some important facts about the case.

First, from the start “brain death” has been about organ harvesting. In this case, the California doctors might simply have taken Jahi off the respirator. If they had, she would likely have died in 2013. They kept the respirator going not for Jahi’s sake, but to preserve her organs for transplant. This is ethically troubling and contrary to the Hippocratic Oath.

Doctors swear to “do no harm.” If they truly believed it was harmful to Jahi to have her on the respirator, they should have removed it immediately. As it is, the hospital only sued to turn off the respirator after her parents refused permission to cannibalize her organs.

Second, the notion that a person can be artificially kept alive indefinitely is a lie. This has never happened--not even once. For starters, there is no machine known to man that can keep a person’s heart beating. A person’s heart either beats or doesn’t beat according to unknown factors in the person’s own psyche. Jahi’s heart kept beating despite traumatic brain injury. It stopped beating after her mother talked to her and told her that it was okay if she wanted to go to God.

Third, intubation (sometimes called artificial respiration) can only buy time for the body either to heal or to die by brain asphyxiation. Never in the history of medicine has artificial respiration prevented a person from dying who was, indeed, dying. In Jahi’s case, it gave her body time to heal and grow.

She healed from the original surgery. She matured through puberty from a girl into a young woman. Her brain healed enough that voluntary movement and communication became possible.

Fourth, the brain is the only organ in the body that continues to renew itself until the moment of death. If it had died on December 12, 2013, it could not have restored lost functions. But it did. On October 3, 2014, Dr. Alan Shewmon, a professor of neurology at UCLA and world-renowned expert on the brain, testified under oath of the overwhelming evidence that she had gained consciousness and the ability to respond to stimuli and verbal commands.

Modern medicine seems obsessed with the frightful idea that we have the power to prevent God from taking a person to Himself in death. Afraid of their own over-blown powers, they push an ethic designed to turn the tables. If we can’t keep someone alive indefinitely, these ethics actively seek to take life before God does.

Whether this is a crass move to save money for the survivors, or to save organs for transplant, it is an infringement on human rights and an affront to God. It’s high time that Wyoming join with all states in reconsidering the rash move to adopt a different standard of death.

Jahi’s death, her one and only death, has given us all a chance to think more clearly. May she rest in peace.

Tuesday, July 10, 2018

Twin Ridge Fire Brings Thankfulness and Community-Mindedness

The Ottley Home
“To have 74 acres burn in the middle of town without losing a single house is a pretty amazing feat.” That’s what Eric Quinney, Uinta County Fire Warden, told me when we talked about Evanston’s July 4 fire.

Keep in mind, Evanston’s fire department is almost entirely volunteer. EFD has five full-time firefighters and 45 volunteers. So, when fireworks started a small grass fire just east of Crane Ave., men were called away from their family celebrations all over the county. “They are the real heroes of yesterday’s fire,” said Quinney.
Eric Quinney

The fire department monitors conditions and works with the mayor’s office to decide if a fireworks ban is necessary. Their job is made more difficult because wind conditions can change minute-by-minute. In addition, intangible values like community-building, Wyoming culture and tourism must be considered.

This year, one incautious moment happened just at the windiest part of an unusually windy day. Wednesday’s fire gave Evanston residents a sobering look at how quickly an accident can explode into a raging fire.

Between the uphill slope of the terrain and the strong westerly winds the fire was out of control immediately. One eyewitness reported that within 10 minutes the fire had raced to the top of Twin Ridge. From there, the flames bore down on the Sioux townhouses.

The last large grass fire that we had in Evanston happened 32 years ago to the day. That one began at Yellow Creek estates and burned a swath over Twin Ridge all the way to Hayden Ave. It came close enough to houses to melt some vinyl siding, but none were lost.

Now, 32 years later, the first structure in the fire’s path was a tiny house just south of Sioux Drive. It looked to be a goner as the fire reached the road and came within a few dozen yards of the townhouses. But the quick-working EFD was already protecting the structure and fighting back.

Diana Ottley first saw the flames when the fire topped the ridge. At that time, the wind was driving it towards the corner of City View and Sioux, away from any danger to the Ottleys’ house. But without warning, the wind changed.

The fire turned on a dime and started racing up the draw in a southeasterly direction. By now heavy equipment was on hand to scrape off the dry sage brush to make fire-breaks. But the wind was so strong, they barely even slowed it down.

Diana’s husband, Tib, did what every other homeowner was instinctively doing. He got out the garden hose and started spraying. “I knew it wouldn’t make any difference, but I did it anyway,” he laughed. He was in good company. From Crestview to Troy Court, helpless homeowners were doing the same.
Diana and Tib Ottley

Only 45 minutes after Diana had first seen the flames, Captain Tim Overy, Incident Commander, told them it was time to leave. The fire had come within 4 feet of the house down the hill and was now surrounding Ottleys’ on three sides, also threatening others on Troy Court.

Diana had already taken their cats to safety. Now, all that was left to do was drive away and watch from afar as their house burned to the ground. What do you take at that moment? How would you feel? What do you think?

For everyone who evacuated, it was different. Some grabbed photo albums, others important documents. Some packed underwear and animals. Tib and Diana just drove away. When I spoke with them later, they reflected on all the things filled with meaning that they left behind.

On the west wall of the living room sits a desk with the family Bible in the drawer. Together they once survived a Kansas tornado that struck the home of Diana’s grandmother. There was a wall of family photos and a room of memories of their lost son, Tib. The flames forced them to leave all behind. “If I had to do it again,” said Tib, “I would have grabbed my son’s guitar.”

But while the flames were driving away homeowners, the volunteers were not done with the fight. By now there were nearly 50 men hauling hoses, digging fire-breaks, running to keep ahead of the flames. Young and old, retired and active—all showed up to lend a hand.

Our volunteer fire department has been excellently trained, and it showed. Working together they pushed the limits of their bodies and the limits of safety. They knew what a home means, and they lingered in unsafe areas fighting the flames until the very last minute.

Not only the volunteers, but people and businesses all over town pitched in to help. People came out to help drag heavy hoses. Walmart donated food and bottled water. Ellingford Brothers, Lindley Construction, Seale Oilfield and S Bar S Trucking all donated the use of heavy equipment to help.

Neighboring departments in Bear River and Bridger Valley joined in the fight. Even Rock Springs dispatched a crew. Uinta County Road and Bridge, Uinta County Sheriff’s Department, Evanston Police Department and the City of Evanston were all coordinated by three amazing ladies working furiously at 911 dispatch.

The point of this giant spear was now focused on the Ottley house. Thirty-foot flames were at the base of the house, licking the eaves on the second floor. Breaking safety protocol, volunteers were lying on their backs under the flame, directing water at the fire in a desperate attempt to save the house.

Tib and Diana watched from a couple hundred yards away. They could not recall any specific thought—only a deep sinking feeling, knowing that their home would soon be ashes.

But suddenly, the wind reversed. Within minutes, the firefighters were winning the battle. Despite all their training and efforts, it took an act of God to give them success. Jesus said, “The wind bloweth where it listeth, and thou hearest the sound thereof, but canst not tell whence it cometh, and whither it goeth” (John 3:8 KJV).

At a moment like this, we are reminded that the most important things in life are not in our control. Mayor Williams and the county commissioners can make decisions. Captain Overy can direct the crews. Dozens of volunteers can put themselves in harm’s way. But Jesus directs the wind.

Before long, the supporting crew, en route from Rock Springs, was turning for home. Gawkers who had driven to overlooks around town to watch the fight started their cars and headed back to their picnics.
Captain Overy

A few were disappointed that the evening fireworks were canceled. They didn’t understand that every available firefighter in Uinta County was scattered across Twin Ridge and exhausted from the fight. There was no one left to call in case another fire should break out. And their work was far from over.

While Evanston went back to their parties and cookouts, all the volunteers remained vigilant, watching for flare-ups and hot spots until well past midnight. Then, and only then, did these weary heroes roll up their hoses and drag themselves home to their families.

As the sun rose over Evanston the next morning, it glinted off Captain Overy’s red pickup perched on the charred ridge. Long before dawn, he was standing sentinel over the town. Many drove the streets, examining the battlefield. Tib and Diana were simply thankful that no one was hurt.

Morning after picture: by Tim Overy
Soon our conversation turned to family and faith, to community and friendships. The fire brought danger to the town, but its aftermath brought clarity to our thoughts and thankfulness to our hearts.

I, for one, will be translating my thankfulness into a donation for the Evanston Fire Department. I hope many others will do the same.

Tuesday, July 3, 2018

The Constitution Still Lives

We often hear the Constitution called a “living document.” Many think that it is like a tree constantly growing new shoots, while old branches die and fall away. Limbs once strong enough to support a man, might now break off and drop him on his head.

For more than seven decades, we have been subjected to a Supreme Court that is constantly finding new “constitutional rights.” These are based not on the explicit words of the Constitution, but on “penumbras” and “emanations” supposedly derived from other constitutional protections.

We have also seen, over the course of decades, that each new “right” always tends to trump the rights that are actually named in the Constitution.

The newest “right” found in the Constitution was discovered three years ago last week. Justice Anthony Kennedy authored Obergefell v. Hodges which created a constitutional right to marry.

This time, however, he included strong wording in his opinion, meant to prevent this new right from trumping the First Amendment. He promised, “…that religions, and those who adhere to religious doctrines, may continue to advocate with the utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned” (Obergefell, at 27).
Retired Justice Anthony Kennedy

In the years since, many have watched with alarm as this new right sought to devour the right of free speech, free exercise of religion, property rights, freedom of assembly and more. I, myself, have often wondered what Justice Kennedy thought of these developments. Is that what he intended all along? Or was his opinion being exploited contrary to his intentions?

In his final session at the Supreme Court, Kennedy got the chance to answer those questions. The Court agreed to hear no less than three separate cases involving First Amendment protections. Masterpiece Cakeshop v. Colorado Civil Rights Commission, NIFLA v. Becerra, and Janus v. AFSCME.
Owner, Jack Phillips

The first decision, Masterpiece, came down on June 4. The case involved a shopkeeper’s right to free speech and free exercise of his faith in declining to join in celebrating a wedding. Kennedy Himself wrote the opinion.

What puzzled many was that the Court declined to address the free speech at issue (although Justice Thomas wrote a concurrence that laid it out). The 7-2 majority narrowed its ruling to take on only the free exercise of religion. On this basis, Justice Kennedy’s opinion strongly defended the free exercise of region and took the state of Colorado to task for its obvious hostility to the baker’s religion.

Then, exactly three weeks later, the same court applied these findings to a florist in Washington. Barronelle Stutzman’s conviction under Washington State’s Anti-Discrimination Act was vacated and sent back to the Washington Supreme Court.

The very next day, June 26, SCOTUS handed down its second First Amendment decision. NIFLA v. Becerra, like Masterpiece, involved both the free exercise of religion and free speech. But this time, the Court ruled only on free speech and set aside the free exercise argument that California’s pro-life pregnancy centers have been discriminated against because the state did not favor their viewpoint.

The case centers on California’s “Reproductive FACT Act.” This law required licensed pro-life pregnancy centers to advertise free or low-cost abortions offered through the state. It also forces non-medical pregnancy centers to place large, wordy notices on all advertisements.

The National Institute of Family and Life Advocates (NIFLA) sued to halt its enforcement. They argued that the law unconstitutionally compels speech that is opposed to the very mission of these pregnancy centers.

Similar laws in Texas, New York, Maryland and Illinois have been struck down since they do not stand up to the “strict scrutiny” required for government to impinge on free speech. The “strict scrutiny” standard means that the government must prove that its speech restrictions (1) meet a compelling government interest and (2) that they do so in the least restrictive way possible.

However, the Ninth Circuit Court of Appeals applied a different standard. It admitted that the FACT Act coerced the speech of pro-life pregnancy centers and that it did not meet the strict scrutiny standard. But then, it attempted to carve out a new category of “professional speech” that can be impinged with only “intermediate scrutiny.”

The Supreme Court rejected this notion of “professional speech.” It remanded the case back to California’s Supreme Court with instructions to apply the standard of strict scrutiny. In so doing, it determined that NIFLA was “likely to succeed on the merits of their claim that the FACT Act violates the First Amendment” (NIFLA v. Becerra, at 20).

Just as Thomas wrote a concurring opinion in Masterpiece which highlighted the passed-over free speech argument, Kennedy wrote a concurring opinion in NIFLA that highlighted the passed-over free exercise argument.

Kennedy’s opinion is less than two pages long, but it’s worth quoting. He first underscores the Court’s commitment to keep the government from discriminating against religion. He wrote, “this law is a paradigmatic example of the serious threat presented when government seeks to impose its own message in the place of individual speech, thought, and expression” (NIFLA v. Becerra, Kennedy concurrence, at 1).

Next, he scolds the California Legislature for its obvious discrimination against pro-life people and viewpoints. “The California Legislature included in its official history the congratulatory statement that the Act was part of California’s legacy of ‘forward thinking,’” said Kennedy, “but it is not forward thinking to force individuals to be an instrument for fostering public adherence to an ideological point of view they find unacceptable.”

He then goes on to define true progress in four sentences.

First, “It is forward thinking to begin by reading the First Amendment as ratified in 1791.”

Second, it is forward thinking “to understand the history of authoritarian government as the Founders then knew it.”

Third, it is forward thinking “to confirm that history since then shows how relentless authoritarian regimes are in their attempts to stifle free speech.”

Fourth, it is forward thinking “to carry those lessons onward as we seek to preserve and teach the necessity of freedom of speech for the generations to come” (concurrance, at 2).

For Kennedy, if the Constitution is a “living document” it lives like a person, not like a tree. Even when it is old, it is the same that it was in 1791. It is not a corpse that can be mutilated at will. Its living words, written 227 years ago, still have power to rise up and assert their original meaning.

The following day, June 27, SCOTUS completed the trifecta of pro-First Amendment decisions. It handed down a ruling in Janus v. AFSCME that took the unusual step of overturning a 41-year-old precedent.
Mark Janus

When government labor unions were still in their infancy in 1977, the Supreme Court ruled that it was in the government’s interest to force its employees to pay the union even if they didn’t want to join it, nor agree with its positions (Abood v. Detroit Board of Ed.).

Justice Samuel Alito penned a majority opinion that overturned Abood and reaffirmed that the First Amendment right of free association includes also the right not to associate.

In fact, these three rulings taken together can be thought of as underscoring the right not to be compelled to worship at the government’s altar (Masterpiece), to speak the government’s message (NIFLA), or to join the government’s associations (Janus).

As Justice Robert Jackson put it in 1943, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, or religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” (West Virginia Board of Ed. V. Barnette, 1943).

A living Constitution is always moving toward that fixed star.

Tuesday, June 26, 2018

Dividing Families

It’s not every day that the Bible becomes the top trending topic on Twitter, but it did last Thursday (June 14) from 6-9 p.m. CDT. During that time, a popular Bible site,, experienced a spike in traffic.

What set off this frenzy of Bible reading? And what part of the Bible were people reading? It was a speech that Attorney General Jeff Sessions gave in the hometown of my alma mater, Fort Wayne, Indiana. He said, “I would cite you to the Apostle Paul and his clear and wise command in Romans 13, to obey the laws of the government because God has ordained the government for his purposes.”

Sessions’ interpretation of Paul is the plain, uncontested meaning of the following passage:
“Let every person be subject to the governing authorities. For there is no authority except from God, and those that exist have been instituted by God. Therefore whoever resists the authorities resists what God has appointed, and those who resist will incur judgment. For rulers are not a terror to good conduct, but to bad. Would you have no fear of the one who is in authority? Then do what is good, and you will receive his approval, for he is God's servant for your good. But if you do wrong, be afraid, for he does not bear the sword in vain. For he is the servant of God, an avenger who carries out God's wrath on the wrongdoer. Therefore one must be in subjection, not only to avoid God's wrath but also for the sake of conscience” (Rom. 13:1-5 ESV).

Johnnie Moore
Nevertheless, some religious figures attacked Sessions. The Washington Post reported that Johnnie Moore, spokesman of President Trump’s evangelical advisory board, said, “While Sessions may take the Bible seriously, in this situation he has demonstrated he is no theologian.” But neither Moore nor any other critic offered an alternate interpretation of the passage.

If Sessions is judged as a substandard theologian for merely summarizing the words of Holy Scripture, what standard outside of Scripture is being used? The reality is that Sessions’ real “sin” is in using the Scriptures at all.

It’s not that he misinterpreted or misapplied the passage from Romans 13. After all, he didn’t claim that the Scriptures dictate current U.S. policy at the border. Others are doing that, not Sessions. All he claimed from Scripture is that the authority of governments comes from God and therefore merits some respect and deference while we work together to make policy better.

Anarchy is evil. Government is from God. It’s a simple proposition that any decent theologian ought to recognize even while striving against unjust laws. Pro-life people recognize this every day while striving to reinstate protections for human beings that have been stripped by activist courts. 

The Twitter storm was not brought on by a poor interpretation of Scripture. It was, rather, a reaction against the use of Scripture at all. What happened to Sessions is no different from what happened to Russell Vought a year ago when Bernie Sanders took him to task for paraphrasing John 3:18 and believing it to be true.

Franklin Graham
The unfortunate thing, in this case, is that many religious people—both conservative and liberal—jumped on the dogpile. It is worth stepping back to see what unfolded and to learn from it.

In the days before Sessions’ remarks, the Rev. Franklin Graham, the Southern Baptist Convention in Texas and a gathering of Roman Catholic bishops in Florida, all expressed concerns about the separation of families in the process of enforcing immigration laws on our southern border. However, after Sessions’ speech, these same statements were woven into media reports as though they were direct attacks on Sessions’ remarks.

For instance, Bob Smietana wrote in Trends & Facts, “Few religious groups or leaders seemed to agree with Sessions’ use of Romans 13—or with separating children from their parents at the border. ‘It’s disgraceful,’ Franklin Graham, head of Samaritan’s Purse, told CBN. ‘It’s terrible to see families ripped apart and I don’t support that one bit.’”

But Graham had spoken these words on the Tuesday before Sessions spoke, and he had spoken them in rebuke of Congress, not the executive branch. Smietana’s wordsmithing is just one of numerous articles that left many with the confused impression that conservative Christian leaders were piling onto Sessions.

This fake news was mixed with more confusion still. Family separations that happened under previous administrations were re-reported as though they were brand new developments resulting from Sessions’ policy. We saw a photograph strategically cropped to tell a false story, and the cover of Time Magazine airbrushed a child’s mother out of the picture.

All this fake news created a Facebook firestorm that pitted religious people against religious people and friends against friends. Some wanted to be consistent in their compassion for families through an unmitigated denunciation of the Trump administration. Others, desiring to push back against the fake news, vilified previous administrations while giving Trump’s administration a pass. Both were unwise.

Now that the fog of war is clearing, let’s take a moment to reaffirm friendships and learn some lessons.

Lesson No. 1: While every discussion of public policy involves bedrock principles that relate to the very reality of God Himself, we must always be wise enough to see the difference between the unbendable principles themselves, and how other bedrock principles also come into play.

God Himself creates families through a mother and a father. These are the fundamental units of society and, “what … God has joined together, let not man separate” (Matt. 19:6). Neither the government from outside, nor the parents and children from inside, should do anything that breaks up the family. That’s the bedrock principle.

Our responsibility as individuals and as a society is to protect families. As individuals, we should do absolutely everything in our power to hold our own families together. As a society, we should never let government be an incentive for family breakup—whether through immigration policies, welfare policies, unjust divorce and surrogacy laws or abortion policies.

But when a family member threatens other family members with harm (like substance abuse, physical abuse, etc.) governments and neighborhoods must sometimes step in to protect individuals who are put at risk. This requires great wisdom, restraint and reverence. It is never an ideal situation. It should not be seen as the natural state of affairs, but as a terrible and temporary exception.

Lesson No. 2: “Be wise as serpents and gentle as doves” (Matt. 10:16). Wisdom means understanding your real enemy. Your enemy is Satan, not your fellow citizen. When there is a disagreement in understanding, it is never okay to attack others personally. We should treat our neighbors as family—whether it be a stranger commenting on your page, a president making policy or anyone in between.

By dove-like gentleness we can come to understand one another. By screaming harshness, we only break up the human family further. Understand that Satan’s purpose is to use falsehood and distortion of reality to breed hate and distrust. He cares less about public policy than he does about fomenting public strife. If we keep this firmly in mind, we will all be better for it.

Lesson No. 3: Government is indeed established by God. That doesn’t mean that it is always right, but it does mean that every government official must answer to a higher authority. The same is true of every citizen who speaks and votes. This requires humility, not hubris. To be one nation means to be “under God,” because good and evil—the bedrock principles that govern our lives—are divine realities, not human constructions.

As we reason together in the public square, let us all humble ourselves before the One who created all things and all people. In this way we will gain both the wisdom of serpents and the gentleness of doves.

Tuesday, June 12, 2018

Seven Takeaways from the Masterpiece Decision

The Supreme Court of the United States has vindicated Jack Phillips, proprietor of Masterpiece Cakeshop, nearly six years after the Colorado Civil Rights Commission subjected him to re-indoctrination and restrictions that cost him some 40 percent of his business.

His crime, according to the Colorado Court of Appeals, is that he declined to “design and create a cake to celebrate [a] same sex wedding.” This is a far cry from the false accusation that “he refused to serve gays.” As the Court’s ruling details, Phillips was one of four different Colorado bakers who declined to bake cakes conveying a message that was objectionable to the baker. Nevertheless, he was the only one who was punished for it. He was also the only Christian.

On Monday the Court ruled that “[t]he Commission’s hostility was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion."

Phillips contested both his right to free speech and his right to free exercise of religion, but the Court declined to address his free speech claim. It limited the ruling only to the free exercise of religion. Some were disappointed by the “narrowness” of this ruling.

I understand their point, but I also think this limitation is helpful. Deferring the free-speech question to another day allowed the Court’s wide and bipartisan majority (7-2) to nail down the free exercise of religion in seven important ways.

First, the Court declares plainly: “religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.” This principle is not contradictory to the “general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services.”

At last, the Court has put an end to the false narrative that advocacy for a complementary view of marriage is inherently discriminatory. There is discrimination against persons and there is the rejection of an idea. The two are not the same thing. The first is wrong and the second is not, and the Court has plainly recognized this in a watershed decision.

By settling this issue, the Court is able to focus on making sure that public accommodations law is “neutral and generally applicable” (9). With any luck, this will calm the debate. Only if we can express and hear disagreeable opinions without the threat of personal-claims court can we learn to reason and compromise like adults.

Second, Kennedy wrote on page 10, “When it comes to weddings, it can be assumed that a member of the clergy who objects to gay marriage on moral or religious grounds could not be compelled to perform the ceremony." Public accommodations laws and ordinances are not “neutral or generally applicable” if they threaten anybody for declining to perform a wedding on moral or religious grounds.

If Kennedy had written this decision two summers ago, the Wyoming Supreme Court could not have ruled that the state of Wyoming can compel a judge to perform a wedding ceremony. Of course, "clergy" could be restricted to its narrowest sense to exclude judges and magistrates, but that would also exclude L.D.S. bishops and other plainly religious marriage officiants, obviously contrary to the Court's intent.

Third, the court scolded the Colorado civil rights commissioners who argued that a person can believe "whatever he wants to believe," but cannot live by those beliefs “if he decides to do business in the state." They responded unambiguously, "the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain" is an unconstitutional "hostility” toward religion (12). Free exercise is not just for clergy and private citizens but for businesses as well.

Fourth, Kennedy singled out one commissioner’s statement as especially hostile, saying, "To describe a man's faith as 'one of the most despicable pieces of rhetoric that people can use' is to disparage his religion in at least two distinct ways." He added that "this sentiment is inappropriate for a [government] commission."

I hope that Wyoming’s Commission on Judicial Conduct and Ethics takes note and apologizes for its own statement about Judge Ruth Neely. It stated in the public record that Neely’s belief in the Scriptural definition of marriage is “repugnant,” and that “somebody with that attitude really should not be on the bench.”

This is exactly what the Court said, “is inappropriate for a [government] commission.” Neil Gorsuch spelled out the consequences of such governmental hostility: "No bureaucratic judgment condemning a sincerely held religious belief as 'irrational' or 'offensive' will ever survive strict scrutiny under the First Amendment" (Gorsuch, concurrence 7).

Fifth, Kennedy also explained that it is impermissible for the government to characterize a man’s “sincerely held religious beliefs” as “merely rhetorical—something insubstantial, and even insincere.” This is to “disparage his religion,” he wrote (14). As one who has been on the receiving end of such libelous language, I especially appreciate the Court’s respect for the personal integrity of those whose religion is consistent, historical, and deeply held.

Sixth, going back to the question of what is a “neutral and generally applicable public accommodations law,” the Court noted that the Civil Rights Commission applied differing standards to four different bakeries who declined to make specific cakes. In the case of the three that refused scriptural quotations about marriage, the Commission ruled that since the baker was personally offended by the message, he was free to decline without legal consequence. In Phillips’ case, however, they ruled that his personal offence was irrelevant.

On this point, the split was 5-4 with Ginsberg, Sotomayor, Breyer and Kagan arguing against the majority. But after weighing their arguments, the majority rejected them. It ruled that there must be a uniform standard of judgment. "The [state] cannot ... apply a more generous legal test to secular objections than religious ones" (Gorsuch 6).

Seventh, the Court reaffirmed long-standing case law that it is never the place of the government to decide matters of religion. Citing cases from 1943 and 2017 it said, “Just as ‘no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion,’ …it is not …the role of the State to prescribe what shall be offensive” (16).

Whatever else the state of Colorado did to Phillips, it “elevate[d] one view of what is offensive over another and sen[t] a signal of official disapproval of Phillips’ religious beliefs” (16). This is a clear violation of the free exercise of religion. It should never have gotten this far. Now that an overwhelming majority of the Court has struck it down, America are reassured that the government has no place in deciding matters of faith.

These seven takeaways put to rest many unconstitutional arguments that have been made in Wyoming over the past several years. For this alone we should be grateful. The Court’s ruling is guidance for all public servants from the school board to the president. It clarifies that the government simply cannot run roughshod over the full and free exercise of religion in laws, ordinances, or policies.

Tuesday, June 5, 2018

We Must Restore Confidence in Our Justice System

Last week in Only Human I referred to the slow-motion chase of O.J. Simpson’s white Bronco on June 17, 1994. I talked of that surrealistic coverage as a watershed event in the story of network news. But, for me, it has another significance as well.

The trial of O.J. Simpson for the murders of Nichole Brown Simpson and Ron Goldman marks the year when my confidence in America’s legal system was shaken to the core. All of America watched the overwhelming evidence unfold while high-dollar lawyers tied the legal system in knots. The trial became a circus with each American applauding his favorite performer.

It’s not that Simpson had no supporters. Millions of people were rooting for him to beat the rap. But the conversation was less about his actual guilt or innocence. It was, rather, about who would win the game. Could Johnnie Cochrane pull off a successful defense in such an open-and-shut case?

O.J.’s acquittal in October of 1995 was one of the most divisive rulings in modern memory. When, in February 1997, another jury unanimously found O.J. guilty in the wrongful death of Nichole Brown Simpson and Ron Goldman, these divisions were underscored. How could the same man, for the same crime, both be acquitted and be found guilty?

Gobs of money made the difference: money from huge N.F.L. contracts, money from endorsements and money from acting gigs. All this money, multiplied in the stock market, enabled Simpson to buy a dozen of the best lawyers that money could buy. They simply overwhelmed prosecutor Marcia Clark. America learned that the justice system can be manipulated if you can buy enough legal power.

At least that’s what I learned. It was a sad realization. I began to wonder whether it was possible any longer to be certain that justice is available to those who cannot lawyer up as well as their opponent at law. I had visions of other rich people getting away with murder while poor people were wrongly convicted.

That is still a concern. When money runs the legal system, the poor are run over. But that is only the start of the problem.

Differences in legal power between two citizens can be vast, but that can never compare to the differences in legal power between any single citizen and the U.S. government. The government has access to the money of 323 million people. If the legal system can be manipulated by money, government itself can manipulate it most of all.

I didn’t notice this in the O.J. Simpson case. There, it was a beleaguered public prosecutor who was overwhelmed by private money. But since the O.J. trial, we have seen the tables turned.

There are hundreds, perhaps thousands, of cases I could point to as examples of private citizens steam-rolled by out-of-control public prosecutors. I will pick only one.

Dinesh D’Souza is an immigrant from India who came to America on a Rotary scholarship as an exchange student. He graduated Phi Beta Kappa from Dartmouth college and quickly rose to prominence publishing a half-dozen influential books. He loves America for her principles and for her freedoms and is an articulate defender of these principles in the public square.

D'Souza in the Reagan White House

This speaking and writing led him to produce two political documentary films that criticized the White House directly—an honored American tradition. But this is where his troubles began. After being personally attacked on the president’s web site, he was charged by the president’s Department of Justice with campaign finance violations.

When a college friend, Wendy Long, ran for New York’s senate seat in 2012, he had legally donated $5,000 to her unsuccessful campaign. He also donated $5,000 to her campaign in his wife’s name, and asked two other friends to donate the same, giving them $5,000 each.

These last three donations violated campaign finance laws. At a speaking engagement in Michigan D’Souza said, “I broke the law. I didn’t mean to. I didn’t realize I was breaking the law. But I did.”

Still, he believed that a jury of his peers would see it as an honest mistake. After all, when Hillary Clinton broke federal law by sharing classified documents she was declared immune from prosecution because James Comey didn’t think he could prove intent.

However, even though no one had ever been sent to prison for doing what D’Souza did, he was told that if he lost the trial, he could go to jail for two years. Then the DOJ added a second charge: “knowingly causing false information to be submitted to the federal government.”

This violation was not D’Souza’s doing. It happened without his knowing it. Nevertheless, the new charge carried the additional threat of five years in prison. Consider his situation.

He could take his chances at trial proving that he had knowingly done no such thing. He might even have 75% chance of acquittal. But on the off chance that the jury decided against him, he now faced five years in prison. That would effectively wipe out a successful career, destroy his family life, and put him out of business permanently.

Or, he could plead guilty to the first charge--which required him to say that he knew he was breaking the law (the very fact that he would have contested in a jury trial). What would you do?

With the stakes so high, and the government’s limitless legal resources, no reasonable person would chance a trial. So, on May 19, 2014 he pled guilty to violating campaign finance laws.

But the story doesn’t end there. Even though no one had ever spent time in prison for his crime, the Department of Justice asked for a sentence of 10 to 16 months in federal prison. The DOJ legal team cobbled together a sentencing memorandum that cited numerous federal cases where jail time was given, but they withheld crucial facts about every one of these cases, which would have revealed their dishonesty in applying them.

In the end, D’Souza was spared jail—sort-of. He was sentenced to 8 months away from his home, in a “community confinement center.” He was placed on five years of probation and fined $30,000. Compare this to the $84 million in campaign finance violations that have been documented in the 2016 Clinton campaign. Then, ask yourself if this is equal justice or politically motivated prosecution.
Trump pardons boxing great Jack Johnson

On Thursday May 31, 2018, President Trump gave Dinesh D’Souza a full presidential pardon. I think you can see why. The disparity in treatment between D’Souza and every other violator of campaign finance law is blindingly obvious. We must regain parity and the assurance of non-partisan application of the law.

We must restore confidence in America’s legal system that crimes are prosecuted justly and reasonably. We must work together to see that all people are treated equitably and fairly. We must not let access to unlimited legal resources be the only determining factor of who gets convicted and who gets acquitted.

Our health as a nation depends on it.

Tuesday, May 29, 2018

Casper Star Tribune Sinks to New Journalistic Low

Fair and Balanced reporting of the news helps people learn the necessary facts and make day to day decisions in an informed manner.

Unfair and unbalanced reporting harms people by leading them to make decisions without access either to accurate information, or to a fair representation of all points of view.

In Evanston, Casper and most Wyoming towns, citizens are subjected to a news monopoly. If their newspaper does not fairly and accurately inform its readership of the news they need, those citizens are harmed substantially, and the community is worse off as a result.

For these reasons, the fourth estate, must maintain high ethical standards. Without them, they abuse their public trust.
Walter Cronkite

Back in the day when we had only three television networks (for you youngsters, they were ABC, NBC, and CBS) there was a heightened sense of ethical integrity among the news producers. We can argue about how well they lived up to their own ethical standards, but it is inarguable that they wanted us to believe they did.

As cable TV came on the scene, two things changed. First, the advent of 24/7 news required the creation of more and more news content. Stories that were merely local news, and that would never have made the national news on the three major networks, suddenly became huge news stories.
O.J. Simpson

Who can forget watching O.J. Simpson’s white Ford Bronco driving down an L.A. Freeway followed by a posse of police cars? Interesting? Sure. Newsworthy? Only as a carnival attraction.

This glut of irrelevant content led to a second change. How does a cable show gain a following when everybody is watching all the same irrelevant content? Rupert Murdock answered by tailoring the news for a particular audience.

Between CNN and Fox, let’s not get into the argument of who became partisan first. The point is that partisan news is now a reality – and has been for quite some time. Other players have since entered the fray and created ever more partisan news.

The gloves have come off. The strict ethical line between reporting the facts and advocating for a world-view has been erased. Advocacy journalism has replaced objective reporting. While the networks each still claim to be the paragon of journalism, nobody really believes it. Rather, cable news has become just as partisan as the parties themselves.

Before the advent of cable news, we could all watch the same three networks without serious argument. The only rule of thumb was that it was impolite to talk politics in public. Now, cable news has become so politicized that we have a new rule of thumb. It is impolite to watch your favorite cable news channel in public.

We have become tribalized, and cable news has been a huge contributing factor. That is a bad thing.

But what is worse is when the degradation of journalistic standards on cable news bleeds over into local news. At least there is an economic explanation for why cable news has gone tribal. They are each trying to make a profit and so seeking out a niche of news consumers.

But in markets that have only one newspaper, there is no profit in partisan attacks on the subscriber-base, especially when that party is 70%-90% of the voting public. Such newspapers should be seeking the broadest possible respect. Editors and publicists alike have an economic interest in scrupulously cultivating the public’s trust.

This means journalistic ethics. Ethics are not laws. They are not enforceable in a court of law, nor should they be. The freedom of speech is too valuable of an asset to run the risk of shutting it down by judges and politicians.

Journalistic ethics have been developed by journalists themselves for their own protection. They are guidelines on how to earn and keep the public’s trust. They have been learned in the school of hard knocks by journalists who violated them and lost the respect of their readership.

Journalists once learned to apply strict rules to themselves so that their own party politics would be subordinated to the journalistic task. But, alas, those days are over. Today it’s “monkey see, monkey do.”

Journalistic ethics in cable news has fallen so far that cable news can no longer be consumed in mixed company. In just the same way, we are witnessing our own local newspapers devolve into the same partisan screeds.
Arno Rosenfeld, Star-Tribune

Take, for example, a pair of articles recently printed in the Casper Star Tribune. The first one was written by Arno Rosenfeld. The title begins, “Wyoming GOP county chair shares article...” “Shares article,” it says, referring to Facebook. The entire article is an expose̒ of the Facebook feed of a Campbell County woman who was recently appointed to fill a vacancy in the county Republican Party.

The article takes her to task for the crime of hitting the “share” button after reading an article from the National Review written by Lloyd Marcus, a nationally syndicated columnist. As is obvious from the title, the Casper Star is intent on using the opportunity to tar and feather the Wyoming GOP.

That is, of course, their prerogative. If the editors of the Casper Star want to use their print-monopoly to advance partisan politics at the expense of a housewife whom they deem to be a “public figure,” that’s their business. But it’s bad for business. They have squandered any remaining legitimacy they might claim as a non-partisan news-source for the citizens of Wyoming.

They have abused their public trust. If you doubt me on that point, try this thought experiment. Imagine if the Casper Star had published a front-page article critiquing the Facebook page of Sheila McGuire, the Uinta county Democrat chair, or Karl Allred, the Republican chair. That would be the local equivalent, and it would be outrageous.

On a Facebook forum, I asked what would happen if every county chair in Wyoming had a letter to the editor written about their own Facebook feed. Fellow Christians rebuked me for suggesting something unethical. They were right.

Such exposes would be unethical as letters to the editor, much less as front-page stories. The editors of the Casper Star Tribune ought to be ashamed of themselves. They have sunk to a new low in journalistic ethics.

The Monday after their partisan screed filled the front page, Arno Rosenfeld, the author, announced that he was no longer employed by the Star Tribune. This gave me the stirrings of hope that they had seen their ethical lapse and were taking corrective action.
Vicki KIssack, Facebook photo

But alas, no announcement confirmed this thought. Rather, the following Sunday, the Star Tribune editorial board doubled down on their bullying tactics. Mrs. Kissack was again castigated as a “public figure” who said, “something inaccurate.” (Public figures must be mindful of their words, May 20, 2018).

In the inaccuracy-laced editorial that followed, her particular inaccuracy was never cited, only (mis)characterized. Nevertheless, they ended by advising her: “keep your opinions to yourself.” They apparently missed the irony of opining that certain opinions shouldn’t be allowed.

Let’s be clear. The only people who can apply journalistic ethics are the journalists themselves. The rest of us can sense when they are broken, but we can do nothing about it when journalists break trust with us. Most people vote with their feet.

Newspapers, which once thrived, are dying. I don’t think this is a result of cable news. I think it is a result of newspapers imitating cable news. If local journalists are smart, they will relearn the ethical lessons that made them thrive. In so doing, they could also become a unifying force in our communities, rather than creating further division.