Category: Law and Policy

I’m a member of the Professional Staff Congress — City University of New York (PSC-CUNY) a local union of the American Federation of Teachers. This isn’t an ideological commitment for me; the union extracts dues from my pay regardless of whether I join. If anything, during my years as a corporate attorney I was leery of labor unions, though my limited knowledge of the history of union activity suggests that, like most human activities, unions have done some good and some bad over the years.

PSC-CUNY has been without a collective bargaining agreement for three years. They are now making strike noises. So here is a question for my theology-and-ethics inclined readers: what do I do if the union calls a strike? Under New York’s “Taylor Law,” as I understand it, it’s illegal for public workers (including CUNY faculty) to go on strike. Obviously the New York State government is a Romans 13 authority that I must respect.

But what about the union leadership and the faculty officers in my college? Are they in any sense “authorities” whose contrary instructions about a job action I also must respect? Is a job action the sort of “civil disobedience” that would permit me to disobey the Taylor Law? In this regard, what are the principles of civil disobedience when my individual situation is just fine — I’m satisfied with my own pay, work schedule and benefits — but my “union brothers and sisters” feel aggrieved? Does a law that unequivocally prohibits public workers from exercising the “right” to strike, coupled with hardball negotiating tactics from management, present the kind of systemic injustice that violates God’s higher law?

And, what about the pragmatic side of a strike? If my department supports a strike, and I cross the picket line, my prospects for tenure will be over. In that event, should I accept that consequence and start looking for another job? Or would I be justified in following the union leadership in the strike even if a principal motivation for me individually is to ride out the storm so that I can preserve my hopes of eventually gaining tenure?

Finally, if the union does call a strike, how would I look in a McDonald’s uniform, and would you like fries with that?

I just noticed this article in First Things discussing why the Schiavo case was not a case of judicial activism. It echoes some things I had posted (and here) in the heat of the Schiavo debate and is worth reading.

There’s an interesting essay by Joseph Bottum in this month’s First Things titled Christians and the Death Penalty, in which he reflects on the recent execution of Michael Ross. Bottom does an excellent job, I think, personalizing the loss felt by those whose loved were murdered by Ross, without giving in to the impulse for revenge.

In fact, the main point of Bottum’s piece is that our civil tort laws are designed to mitigate the human instinct for revenge. Civil justice replaces blood feuds with judicial procedures and damage claims. The criminal laws, in contrast, are designed to punish and deter crime, and to protect the public from criminals. One difficulty with the death penalty is that it’s often portrayed as a means of brining “closure” to the victims’ families. This was certainly the case with the Ross execution — one of the family members even taunted Ross as the lethal injection needle pierced his vein.

I don’t blame that family member at all. If my wife or children were murdered or hurt by someone like Ross, I’d want to stick the needle in myself, and worse. But this is where Bottom has it exactly right: the law should act to restrain that urge, no matter how justified it seems. And, whatever position we as Christians take on the death penalty generally, we must be careful not to portray it as a means of private justice.

Without the private justice rationale, Bottum questions whether there is any justification for the death penalty in a democratic society. When nations were governed by dictators who professed the divine right of Kings, those in power carried out capital punishment directly in the name of God. In a democratic society that purports to be governed by the people, the power to exact revenge, according to Bottum, is more tenuous. If a democratic state can protect itself without taking a life, for example by lifetime imprisionment, the rationale for capital punishment, absent mere revenge, dissipates.

Here, I think, Bottum’s argument falters a bit. Bottum acknowledges that Romans 13 is often cited by Christians who are death penalty proponents, including most on the Evangelical Religious Right. Bottum interprets Romans 13 to mean that the state can use force to defend itself, as when a police officer uses force to stop a crime in progress or a soldier uses force in a just war. However, Romans 13 refers to the rule as “an agent of wrath to bring punishment on the wrongdoer.” The agency given the state in Romans 13, then, is broader than only one of protection. It is an agency of punishment as well.

This doesn’t, in my view, suggest that the death penalty is a mandatory component of any civil state, or even that the death penalty is always a permissible component of the state’s punitive agency. The “sword” referred to in Romans 13 seems pretty clearly to be a broad term for force. Nevertheless, it seems to me that the distinction between civil and criminal justice, while helpful to the death penalty discussion, doesn’t settle it.

If Dante were alive today, I wonder what punishments he would imagine for blog spammers. Those of you who maintain blogs undoubtedly have had to delete hundreds of comments and trackbacks for things like Viagra and Texas Hold ’em poker. Lately I’ve been seeing much more diversity in the spam comments — things like motorcycles, computers, cell phones. The purpose of these comments, of course, is to boost the spammers’ Google rankings by increasing their inbound links. Maybe I should be pleased that my site has some value as a link farm. But I’m not.

So, if I were Dante, here’s what I propose: the blog spammers will inhabit one of the lower levels of the Abyss. All of their spam comments will be printed out each morning and they will literally be forced to “eat their words.” Then, they will spend the rest of each day playing Texas Hold ’em — losing every hand — while gorging on Viagra, Cialis, and weight reduction pills until they explode. Finally, they will be forced, at the point of a pitchfork, to read out loud every blog entry they’ve ever spammed. And then they’ll do it all over again. Forever.

Since I’m not Dante, but am rather a lawyer of modest training and abilities, I’ll instead resort to the courts. Let this, then, constitute an official notice under the Digital Millenium Copyright Act, the Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act, and any other arguably applicable state, federal or international laws, conventions, or treaties, that this site prohibits comment spam, trackback spam, and any other form of commercial solicitation, promotion or advertising, including, but not limited to, any use of this site as a “link farm” for the purpose of boosting search engine rankings. Further, the owner of this site considers himself a third-party beneficiary of any agreement between any blog spammer and any search engine, including, but not limited to, Google, which prohibits the use of “link farms” or other similar devices to affect search rankings. By spamming this site, you agree that the United States District Court for the District of New Jersey shall have personal jurisdiction over you in any dispute arising from your spamming of this site, and you further consent to venue in such District. In addition, you agree to pay the owner of this site’s attorneys’ fees, including a reasonable fee representing the value of the owner’s time if appearing pro se, incurred as a result of any dispute between the owner and you relating to your spamming of this site.

So there. If any of my lawyer friends read this any have any suggestions for causes of action against blog spammers, or if any of my blogger friends wishes to serve as the class representative in a class action suit, let me know.

I’m very pleased that my colleague Thomas Berg has blogrolled me on the excellent Mirror of Justice site. For those of you who haven’t yet found it, Mirror of Justice is a blog dedicated to the development of Catholic legal theory. There is some excellent discussion going on there.

One post that caught my eye is a review of a law review article that presents a nuanced evaluation of influence of Christian thought on early American law. The article’s author, law professor Michael Hernandez, acknowledges the influence of Christian thought on the founding of America, but also notes that the founders often departed from authentic Christianity, not least in the individualistic and racist attitudes that perpetuated African slavery and inequity towards Native Americans. Even as to one of our most revered documents, Prof. Hernandez notes,

The Declaration of Independence and the Founders’ views reveal that our nation was founded on the primacy of individual liberty. The extent to which the Founders elevated individual liberty contrasted with earlier Christian doctrine regarding the rights of individuals and the nature of law and government and also undermined the influence of normative Christianity on the development of the law.

This sort of careful analysis deserves a close reading among American Evangelicals. As Greg Sisk notes in his review of the article,

All Americans should be aware of the extent to which authentic Christianity influenced the founding of this nation, and Christians should proudly affirm that aspect of America’s heritage. However, unless and until Christian theorists constructively address the history described in this article, including proposing solutions to the continuing problems caused by our nation’s failings, Christianity’s influence on American law and culture will continue to wane. Christians are called not to whitewash the sins of our forebears, but “[t]o act justly and to love mercy and to walk humbly with [our] God.”

There’s an excellent editorial in the July Christianity Today entitled “Worship as Higher Politics.” The CT editors remind us American Evangelicals that true hope for societal renewal lies in genuine worship manifest in the life of the Church. They boldly call some prominent Evangelical leaders to task for distorting history and equating the founding of the America with some kind of golden spiritual moment: “[t]he not-so-subtle equation of America’s founding wtih biblical Christianity,” they observe “has been shown time and again to be historically inaccurate.” Most importantly, they note that “[i]n the heat of partisan politics (out of which many of these overstatements and misunderstandings arise), we are tempted to forget that the most potent political act — the one act that deeply manifests and really empowers a ‘kind and noble society’ — is the worship of Jesus Christ.” This is exactly right. I hope the publication of pieces like this in CT signals a change in American Evangelicalism away from our political idolatry and towards a more robust and honest emphasis on worship.

I’ve been having a good conversation with Jeff at The Dawn Treader about the filibuster issue. To pick up the thread, in response to a comment I had made about whether conservative politics is hindering the Church from its mission, Jeff made the good point that sin — particularly selfishness — is the prime hinderance to the American Evangelical church. So here’s where it continued…

Yes, I agree that sin is the root cause of the church not being the church, and that self-centeredness is one of the besetting sins of American Evangelicalism. I didn’t mean to suggest that this filibuster issue, or politics in general, is the primary thing hindering the Church today.

For me, this understanding that popular American Evangelicalism is often self-centered makes me even more wary of jumping on any trendy political bandwagon. Does rallying for a “conservative” judiciary move us towards compassionate servanthood, or does it move us towards becoming another militant interest group demanding its “rights”? Is the emphasis on incarnating the “already” of the Kingdom while waiting patiently for the “not yet,” or are we trying to establish the Kingdom here and now through political force? Is the focus on defending the poor and oppressed, or is it on making society the way we would like it for our benefit?

I’m rambling a bit now, but maybe this last question is what’s eating at me most. I don’t believe the hearts of many of those who are in the vanguard of the religious right are anywhere near in the right place. It seems to me that they want things their way, now. Even if their way is closer to the ideal than the way things currently are, this kind of approach, in my view, undermines the deeper mission of servant leadership.

Now, at the same time, I don’t want to be overly negative about the state of Evangelicalism in America. There are many problems, but many excellent things as well. Though I’m not comfortable with how my local church does or says some things, for example, we have ministries all over our community through which many humble servants are meeting real needs and introducing people to Christ every day. Through these kinds of ministries — alcoholism recovery groups, divorce support groups, community Bible studies, hospice visits to AIDS patients, meals for families stricken by tragedy and illness, and many other such things — we are being the Church and we’re not merely blending into the larger culture. On Sunday mornings, when I lead worship, I look out over a congregation that 15 years ago was primarily old white Dutch folks, and I see those folks along with African Americans, Asians, Latinos, Indians and others gladly praising the same savior. My local church can and should do lots more along these lines, but even imperfect as it is, almost nowhere else in the broader culture is this kind of unity manifest. This is the sort of thing I want people to think of when they hear the word “Evangelical,” rather than angry rhetoric about how Nazi judges are ruining America.

Today I was called for jury duty. It was an interesting exercise in applied civics — and may continue to be, as I haven’t yet been excused from service.

When you observe the judicial system from “the inside,” you realize what a human process it is. Politicians, pundits, and political preachers like to rail about “activist judges,” filibusters, and such, as though justice ordinarily is meted out on ideological grounds. It isn’t. Usually, facts in court are judged by ordinary folks like you and me, sitting on juries in the dusty, stuffy courtrooms of our towns and counties.

The “big” issues are important — qualified judges shouldn’t be kept off the bench because of political grandstanding, as is happening in Congress now — but they aren’t nearly as important as ensuring that everyday citizens have the educational and moral grounding needed to judge their peers fairly and correctly. Those of us who are concerned with broader concepts of justice should spend 99% of our efforts on these “individual” concerns and a far smaller percentage of our energy on flashy filibuster rallies and overblown fundraising rhetoric about a supposedly “out of control” judiciary. We are the judges, and the finger of blame about “doing justice, loving mercy, and walking humbly with [our] God” points squarely at us.

This is my entry in the Evangelical Outpost Blog Symposium. The theme of the Symposium is “Judeo-Christian Morality in a Pluralistic Society.” In light of the continuing debates over the Terri Schiavo case, I’ve decided to write on how Judeo-Christian morality plays out in a pluralstic society in which courts arbitrate factual and legal disputes.

In response to a comment on my earlier post on Terri Schiavo and the Law, I tried to amplify my thoughts on the broader ethical issues relating to medical treatment, artificial nutrition and hydration, and PVS. I thought this was worth a separate post.

The philosophical / theological underpinnings of my view are set forth in my two earlier posts (here and here) on this issue. Essentially, I don’t think a monistic view of personhood — that personhood is coequal with the physical body — is Biblical. I’m also not a dualist (personhood consists of two separate components of body and soul). I hold a conditional unity view of personhood. Personhood has different aspects, including body, mind, and soul, and these different aspects are part of a unified whole.

In conjunction with this condition unity view of personhood, I apply the Biblical concept of humans as created in the “image of God.” What is the image of God? Most Biblical scholars agree that it is not a physical image. Rather, it has something to do with our capacity to reason, relate, communicate and create.

Finally, I apply what I believe is a Biblical understanding of death. Death temporarily separates body from the other aspects of personhood, pending the Resurrection — hence the “conditional” aspect of the unity of personhood. The aspects of our person that reflect the image of God continue to exist and one day will be reunited with a body. The current physical aspects of our personhood — the body — is no longer connected to our “person.” We treat physical remains with respect, but we appropriately dispose of them through burial or cremation, knowing that the “person” is no longer present in the body.

If these views of personhood, the image of God, and death are Biblical, and I belive they are, then it is possible, given modern medical technology, that a body could continue to be maintained even though the person has gone on to the intermediate state pending the Resurrection.

As an extreme example, imagine a person whose brain was completely removed from her body, while the heart, lungs and other organs were maintained through artificial respiration, circulation, nutrition and hydration. I think most Christians probably would agree that the “person” in that circumstance has died, and that our technology was merely keeping some parts of the body from decay. If you wouldn’t agree to that, I’d ask how much of the body needs to be maintained before the “person” is gone. For example, if we take the heart from a person who has recently died and transplant it into another person, does the “person” who recently died still exist in this life?

The persistent vegitative state (PVS) is several steps back from my “brainectomy” hypothetical, but the principle is the same. At some point, when there is nothing left of most of the brain but liquid, and there is no remaining capacity or potential for the attributes of communication, relationship, and creativity that reflect the image of God, I believe the “person” has gone on to the intermediate state, and nothing is left but the mortal body.

The commenter to my eariler post asked why, if I hold this view, it would be unethical to terminate a PVS patient through lethal injection or immediate cremation. Here, I believe an ethical distinction remains between actively terminating bodily functions and removing artificial medical support for those functions. A lethal injection or cremation before cessation of all bodily functions would constitute an affirmative act that would betray a lack of respect for the bodily aspect of personhood. Therefore, I would not be comfortable with that kind of action.

However, the removal of artifical medical support is a different matter. In that case, we are allowing the body to take its natural course. I should note here that I don’t see any material distinction between turning off a respirator and removing artificial nutrition and hydration. In either instance, a fundamental requirement for bodily function — air, hydration, or nutrition — is being provided by technological means — a respirator, or tubes inserted by medical professionals into the gatric tract through which nutritional serum and water are metered by a machine. And, in either case, the removal of those technological life supports will result in the cessation of bodily functions. In my view, under these circumstances, turning off a respirator or an artificial nutrition and hydration system is a withdrawal of medical treatment that allows the body to take a natural course. This, in my view, is ethically different than assisted suicide or euthanasia.

As I’ve said before, none of this settles the question whether it was ethical to remove Terri Schiavo’s ANH. If there is a material doubt about whether the patient truly is in a PVS, ANH should not be withdrawn. But, that is exactly the kind of factual determination, I think, that trial courts are best equipped to make. Moreover, I don’t think any medical treatment, including ANH, should be withdrawn if the patient’s wishes were equivocal or to the contrary. But, again, determining what the patient’s wishes were, in the absence of a clear, written advance health care directive (a living will), is, in my judgment, an appropriate function of the trial courts.