I’m not sure whether an upvote or a downvote is due to the University of Louisville Hospital and University Medical Center for its new arrangement with the Catholic Health Initiatives. Financially it will be good. Whether reproductive health care will suffer for it is another issue entirely. There has been drama for about two years over the attempts by the university’s president to merge the public hospital and medical center with CHI. Kentucky’s governor ultimately rejected a year ago saying that “The risks to the public outweigh the potential benefits.” The merger also would have included a Jewish hospital in Louisville. The current arrangement, which is a joint operating agreement and not a merger, apparently preserves the women’s reproductive health care services that CHI would have restricted considerably. Other Catholic hospitals are moving to join operations with public hospitals, including one in Little Rock, Arkansas. It remains to be seen whether women’s reproductive health care will be affected.
Egypt is still busily prosecuting Alber Saber, the guy who was accused of spreading The Innocence of Muslims – that ridiculous movie that may have helped escalate the Benghazi attacks to the level of Major International Incident – and other irreligious stuff on his Facebook page. He faces up to five years in prison for his crime of blasphemy if he is found guilty. According to his defense team, a confession was tortured out of him, his laptop was seized without a warrant, and the police allowed him to be assaulted while in their custody after his arrest in September. The trial is over, and briefs have been submitted to the court. A decision is expected November 28.
In fairness, it’s hardly news that the Catholic bishops in the United States are resisting the contraception mandate in the Affordable Care Act (Obamacare). Or that they are dancing jigs over the defeat of Massachusetts’ Death with Dignity Act. After all, it’s not God’s plan that we control our own lives and bodies. In an interview with the National Catholic Register, Richard Doerflinger, who is the Secretariat of Pro-Life Activities for the U.S. Conference of Catholic Bishops, set out the Catholic strategy for imposing religion on people stuck with getting their health insurance through Catholic employers. Looks like we, in addition to people who don’t think employers should be allowed to impose their religion on employees, ought to take the same page from the Catholic playbook and do the same. Write your congressman, just like Doerflinger suggests.
Sikhs are so peaceful, it’s hard to think their brand of religion is bad, right? Well, not so much. At a Sikh shrine in California, violence erupted this week between two rival groups wanting control of the religious site. These Sikhs have been fighting in court as well as in the streets for control of the place of worship. Lovely.
Mike Huckabee thinks we’re idiots. His appearance on the Daily Show with Jon Stewart Monday night had me seeing red – as in red-state Republican, bloody damn preacher in politics scaring the shit out of those gullible people who think they will burn in hell for not voting the way the Bible tells them to. I ranted about this already,so I won’t repeat myself here. (Shameless plug.)
Federal Courts. Free speech for one group equates free speech for all, they said when the Islamophobic American Freedom Defense Initiative sued to get pro-Christian, pro-Israel, Anti-Islam ads put on buses in D.C. and New York. The ads are now running on Chicago buses, and the Southern Poverty Law Center has noted the ad campaign in its Hatewatch Headlines. AFDI is headed by Pam Geller, who fervently believes Barack Obama is beholden to his Islamic overlords and is the love child of Malcolm X. Yes, it’s best we know who the hate groups are, no matter who they hate, than to have them work in secret where we can’t see them.
And, no, it’s not law-related, but did you guys see the Washington post article about The Friendly Atheist Hemant Mehta and teenage atheist hero Jessica Ahlquist at Skepticon? The more coverage atheists and atheism get in the mainstream popular media for good stuff, the better!
I’m just going to use this graphic for them from now on. They’ve earned it.
If I could adorn it with sparkly glitter and blinky neon lights without risking an epileptic seizure or a migraine, I’d probably do it.
Yesterday, FFRF sued the Commissioner of the Internal Revenue Service. No shit. And yes, they sued because the IRS won’t friggin’ enforce the rule about churches electioneering. Basically, this is a claim of a sort of nonfeasance or dereliction of duty, something that isn’t very common. By not doing his job – by not enforcing the law – FFRF says that the Commissioner of the Internal Revenue Service has violated the Equal Protection Clauses of the Constitution.
FFRF wants a declaratory judgment against the Commissioner – in other words, a judgment that says that the Commissioner has done wrong. It has asked for an injunction against the Commissioner’s refusal to enforce the law, which is a convoluted way of saying that it wants the court to issue an order requiring the Commissioner to enforce the law. (I know – why couldn’t they just say that?) FFRF also wants the court to order the Commissioner of the IRS to designate someone as a high-level official who can take the complaints from IRS Form 13909 and investigate them.
The lawsuit asserts that under the administration of Commissioner Shulman, the Internal Revenue Service, under the direction of the IRS “has followed and continues to follow a policy of non-enforcement of the electioneering restrictions of §501(c)(3) against churches and other religious organizations.” You tell ’em, FFRF!
And the complaint continues: “As a result, in recent years, churches and religious organizations have been blatantly and deliberately flaunting the electioneering restrictions of §501(c)(3), including during the presidential election year of 2012.” Ya think? Just to be certain that the court is aware of the kinds of things that are going on, FFRF lists a few of them:
Illinois Bishop Daniel Jenky required that a partisan letter be read by every celebrating priest in the diocese to congregants the weekend before the recent Presidential election;
On October 7, 2012, more than 1500 clergy, in a deliberate and coordinated display of noncompliance with the electioneering restrictions of §501(c)(3), including prominent megachurches, flagrantly violated the law against churches electioneering;
The Billy Graham Evangelistic Association, one of the most prominent and respected religious ministries in the country, ran blatantly partisan full-page ads in October of 2012 in the Wisconsin State Journal;
Just prior to the November 6, 2012 election, the Billy Graham Evangelistic Association also ran blatantly partisan ads in the the New York Times, USA Today, the Wall Street Journal, and more than a dozen national and battle ground state newspapers
The Association also published expressly partisanship on its website just prior to the election;
Open and notorious violations of the electioneering restrictions of §501(c)(3) by churches and other religious organizations have been occurring since at least 2008, with churches recording their own partisan activities and sending the evidence to the IRS.
Did you catch that last bit? In case you hadn’t heard, the churches are violating the law and taunting the IRS by sending proof of their blatant disregard for the law to the IRS themselves! And the IRS sits there with its thumb up its ass and does nothing but admire the wallpaper.
Understandably, FFRF, which itself is a 501(c)(3) organization, is somewhat miffed by this, and in the lawsuit it said so. Why does FFRF have to obey the law but these religious organizations do not? This is religious discrimination. Selective non-enforcement of the law based on religious criteria violates the Establishment Clause and the Equal Protection Clause, and, to add insult to injury,
The preferential tax-exemption that churches and other religious organizations obtain, despite noncompliance with electioneering restrictions, amounts to more than $100,000,000,000 annually in tax-free contributions made to churches and religious organizations in the United States.
I don’t know how or where FFRF came up with that number, but if it’s true, that’s about thirty-five billion – with a B – dollars in lost tax revenue. Money that we owe China. Money that would sure help with deficit reduction.
FFRF wants a level playing field and an end to the preferential treatment. It demands that the law is enforced. By not enforcing the law with respect to religious institutions, the government is effectively giving religion a $35,000,000,000 tax subsidy. And that, ladies and gentlemen, is establishment of religion.
A private attorney, Richard Bolton, is representing FFRF on this one. Bolton is a respected civil rights lawyer in Madison, Wisconsin, where FFRF is located. I would imagine he’s going to be getting a lot of hate mail in the near future, so let’s give him some love, shall we? Thanksgiving is coming next week, and he’s someone we might just want to thank.
You can read FFRF’s own press release and the complaint against the IRS on the FFRF website. If you aren’t a member of FFRF already, it’s time to join. Even if you don’t join, please donate. FFRF isn’t electioneering, so contributions to it will remain tax-deductible. The Freedom From Religion Foundation works tirelessly to protect our rights. They deserve some love, too.
Right out of the gate, my first post ever on WWJTD, and the next thing I know I’m seeing my chosen topic everyfreakingwhere on the Interwebz, and my information was … not as good as I thought it was. Shit. I’m embarrassed. This had better not be a harbinger of things to come, I mutter darkly to anyone in earshot.
So, here’s the down-low. In 2007, the pastor of the Living Word Christian Center in Minnesota had announced – from the pulpit – his endorsement of Republican Michele Bachmann for her reelection to the US House of Representatives. This was a clear violation of 26 U.S.C. §501(c)(3), the Internal Revenue Code that allows exemptions from tax on certain non-profit corporations, trusts, and certain other entities.
Some gung-ho atheist activist (or maybe it was just somebody who detested Michele Bachmann on general principles; I hear such folks are common in certain circles) complained to the IRS. The Director of Exempt Organizations, Examination (DEOE) sent a notice to the church that it was initiating an investigation. According to the church, that office was not high-ranking enough to initiate the investigation, so when the inevitable administrative summons came, it refused to comply. Naturally, the IRS took the church to court to force compliance with the summons.
Special requirements must be met to investigate a church for tax noncompliance. The Church Audit Procedures Act, found at §7611 of the Internal Revenue Code, is intended to keep the government out of church affairs as much as possible. The Act allows a church inquiry when “an appropriate high-level Treasury official reasonably believes” that the church is no longer in compliance with the requirements of 501(c)(3). It defines “appropriate high-level Treasury official” as “the Secretary of the Treasury or any delegate of the Secretary of the Treasury whose rank is no lower than that of a principal Internal Revenue officer for an internal revenue region.” The regional commissioner, who this definition referred to, was one level removed from the Commissioner of the IRS.
The catch was this: in 1998 the IRS eliminated the position of the Regional Commissioner, which was the “principal Internal Revenue Officer for an internal revenue region.” In fact, the IRS did away with regions altogether, and restructured its chain of command by subject rather than by geographic area. Since the position of “principal Revenue Officer for an internal revenue region” no longer existed, and Congress did not amend the definition of “appropriate high-level treasury official” in the Church Audit Procedures Act, there was no one authorized by the statute besides the Secretary of the Treasury who could make the “reasonable belief” determination and launch an investigation of a church for not adhering to 501(c)(3) requirements. The DEOE, which had made the “reasonable belief” finding and launched the investigation into the Living Word Christian Center, was four levels below the IRS Commissioner, and therefore not ranked equivalent to the former position of Regional Commissioner.
With this opinion in one single federal District Court in one single state, IRS investigations of churches came to an inglorious screeching halt. The purpose of the Church Audit Procedures Act was more than fulfilled: government basically could no longer touch churches, even when they were blatantly violating the tax code. Churches are free to meddle in government, without repercussion, at least until the definition of “appropriate high-level Treasury official” is amended, or until the position of Regional Commissioner is reinstated.
I checked the Code of Federal Regulations. Nope, the masses blogging and reporting about this matter over the last week are right: the regulation intended to help the IRS enjoin flagrant political activity by 501(c)(3) organizations has not been updated since December 1995. Although some religious news sources advise caution, other religious news outlets celebrate, since that means church can invade the state, but the state cannot invade the church. An attempt to update it was made in 2009, after a decision by the U.S. District Court in Washington, D.C. noted the problem, too, but despite a public hearing having been held on the matter, nothing has yet been done. That may be because Congress will have to act, and by the time of the public hearing on the matter in January 2010, the Republicans had retaken the U.S. House of Representatives, the Tea Party held sway over all political decisions, and progressive government essentially ground to a halt.
But the ruling in the Minnesota case only applies to proceedings to enforce a summons issued by the IRS, not to actual enforcement of the law, so presumably there’s some other way to address the issue. Presumably. Maybe. If there is, I can’t find it. Shit.
What gets me is the IRS guy I spoke with while writing my piece last week told me that the IRS is still taking complaints about political over-reaching by churches. He directed me to the appropriate form, and he said that it definitely should be filed. When I started stumbling across article after blog post after news item about this, I had to wonder about the disconnect. Now, after actually researching the history of the problem, it seems ludicrous to me that Tim Geithner or any Treasury official ranked one level below him is going to bother themselves with hundreds of complaints about churches. In fact, it seems ludicrous that any Treasury official ranked that high would. Maybe that’s why only one church has ever had its tax-exempt status yanked, ever. Ever.
Now I’m mad.
Their own hero said it.
How the hell is it that we’re supposed to have a separation of church and state, but that separation can only go one way? Government has to keep out of church business – and I agree that it should, unless the church is violating the law. But when the church gets all up the the government’s business, and I find out that the government has essentially hamstrung itself so that it can’t take remedial action, my blood boils.
I live in one of the most Christian-dominated states in the U.S. If we are to trust the numbers collected by the Huffington Post, though, probably only half of Americans are strong Christians. That leaves the other half of us, who aren’t riding the Jesus Train and think we ought not to have a theocracy, wondering why churches are allowed to have such strong voices, and why they are allowed to drown out the other half of us.
Then I consider when this happened. The decision by the Minnesota District Courtwas issued January 30, 2008, just 15 days after Barack Obama was sworn in as President. And something started to be done by the summer of 2008, but federal rule-making takes a long time. And by the time it came down to it, Congress was cram-packed full of tea-partying wackjobs and I guess the Treasury Department was a bit sidetracked, what with the biggest economic crisis in a century enjoying prominent headlines and the Treasury Department embroiled in a little problem having to do with things like debt ceilings and such.
Capital punishment will show the little buggers how to act. And remember, boys and girls: we don’t hit.
Why do we have laws that aren’t enforced? Before you think this is a rhetorical question, consider the likes of Charlie Fuqua, an incumbent Republican candidate for the state legislature from my own home state, who thinks we ought to pass a law permitting parents to kill their disobedient children. After all, the Bible says it’s fine. And we won’t really enforce it, just hang it over the little darlings’ heads until they stop behaving like mini-monsters.
Then there’s the notorious Billy Graham ad. Fortunately, FFRF is all over that one. OF course, the letter Annie Laurie Gaylor sent to the IRS demanding an investigation was sent to the DEOE – yes, the same official the Minnesota District Court said wasn’t high-ranking enough – so it may not go anywhere unless it gets kicked up the chain of command.
But the media is reporting on it, supplying the quotes from church leaders, photos of church marquees, and reports or violations that the IRS will need if it ever gets its administrative ass in gear and decides to institute Regional Commissioners or persuade Congress to correct the structural issues based on the Treasury Department’s structural reorganization.
As for those of us who feel strongly that churches do not speak for us and should stay out of politics, we can still form brigades waving stacks of Form 13909, filling them out and submitting them to the IRS in hopes that the government will actually get around to enforcing the law.
Sure, the First Amendment stands for free speech, but it also stands for separation of church and state.
Frankly, it wouldn’t be such a bad thing if all churches paid taxes. Render unto Caesar and all that, you know.
Reader questions are edited to eliminate references to specific people and places, unless there’s a need to call out the cavalry. If you see something here that almost resembles your question, but your main concern isn’t addressed, go ahead and ask again in the comments. I’ll do my best to respond.
Reader Question:
I teach at a large, publicly-funded community college. Here’s an item I thought you might have an opinion on:
Since we’re state-supported, is this sort of thing even legal?
Professor Plum
Answer:
Students are allowed to form their own groups on campus, and do. It’s how they find like-minded people, and attract like-minded new friends. Fraternities, Chess Clubs, Latin clubs, political clubs, Secular Student Alliances, student religious clubs.
This group is a little different in that it apparently is an alliance that stretches across several campuses in the area. But just like the Secular Student Alliance, there is nothing that prevents a group of interested students from forming a chapter on every campus within reach.
At the high school level, the Equal Access Act allows student-led groups to form for political, religious, philosophical, or other reasons. This act was spearheaded by religious organizations that wanted to insert prayer in school, and the happy result is that secular students, gay students, and other social minorities benefit from it. The Equal Access Act says:
It shall be unlawful for any public secondary school which receives Federal financial assistance and which has a limited open forum to deny equal access or a fair opportunity to, or discriminate against, any students who wish to conduct a meeting within that limited open forum on the basis of the religious, political, philosophical, or other content of the speech at such meetings.
Of course, the act says a whole lot more, but you get the gist.
The Equal Access Act does not apply to colleges. Unlike tax-supported high schools, there are no free colleges, and college attendance is not compulsory. Most, if not all, colleges collect an “activities fee” from every enrolled student that helps to support student-run organizations like the college-level Secular Student Alliance, Gay-Straight Alliance, Jewish Student Union, Japanese Club, Chess Club, Baptist Student Union, etc. Normally, these resources – including funds, meeting rooms, and photocopying costs – are made available to student organizations based on very general criteria.
There’s a U.S. Supreme Court case that says it’s okay for religious students to organize on campus and use campus resources. It came about when a religious student club at the University of Virginia (UVA) wanted to print its magazine with university resources. UVA said that it couldn’t permit the religious publication because government money, as well as student activities fees, would pay for the printing, and to print the religious publication would violate the Establishment Clause. Other, non-religious groups used those resources regularly. The religious student organization sued. The Supreme Court said that to deny the religious student group access to funds available to other student publications violated the First Amendment’s guarantee of free speech. The university could not select which organization could or could not use the resources based on the content of the publication.
So, Professor Plum, as long as the college where you work allows all student-organized groups to use the same resources, there’s not a problem.
The website for the group in the photo indicates that this group is a student-run organization that reaches across several local campuses. There is nothing to prevent similar student groups on multiple campuses from joining together. Fraternities have always done this – that’s how there’s a Sigma Chi or a Tri-Delt at so many different colleges. They can even have a national organization that sets out guidelines and provides some funding – just like the Secular Student Alliance does.
What they cannot do is harass people, preach to captive audiences, or offer free cheese dip without decent chips. This group apparently wants people to pour cheese dip on its Bible Study handouts since it fails to offer tortilla chips in its ad. If the cheese dip is any good, this may be the highest and best use of said handouts.
So, I’ve got my first legal question to answer for WWJTD.
Question:
Our children, Chris and Meg, are participating in a choir at school. All the songs in their upcoming recital are religious songs. I want to complain and raise a huge stink, get the media involved, and sue, but my wife, Lois, urges caution; she does not want undue negative attention focused on the kids. The kids don’t really want me to say anything, either, but they complain daily about how stupid the songs are. The bottom line, though, is that all of us really, really object to the kids being required to sing religious songs in choir. What should we do?
Peter
Answer:
Yep, this could be bad.
The Freedom From Religion Foundation says this is the single most frequent complaint they hear. It seems that school choir directors often come from church choirs, and forget that they need to separate the two. The problem is especially troublesome around Christmas and Easter.
It’s time for Peter and Lois to have a talk with the choir teacher. There are some facts they need to find out before complaining. They shouldn’t mention an objection to religious music right off the bat, but find out why religious music has been chosen.
Religious vs. educational value: If this choir is introducing the children to the giants of classical composition like Brahms and Handel, then remember that most of that music is religious, but has educational value as well. Unless the songs are being sung over and over for a recital, and only religious songs have been chosen, it is not unreasonable to expose music students to them. We want our children, especially those who are serious about music, to know music history. By necessity, that includes grand chorales with religious themes. It also includes music that is entirely secular. There should be a balance of the two.
Is the concert or recital intended for a religious holiday? The name of the recital or performance may be a dead giveaway here. Christmas carols, especially, have religious content, but there are other holiday songs that are entirely secular. There is no reason why some of those songs can’t also be included – and should be included, if for no other reason than to underscore that the reason for the season isn’t just Jesus. If the purpose of the concert is to highlight songs of different religious traditions, then consider that indoctrination might not be happening. Five choruses of “Jingle Bells” is much less worrisome than five choruses of “O Holy Night.” Now, if the “Dreidel Song” and the Kwanzaa Song” are included, as is “Up on the Rooftop,” there’s probably a good mix of traditions that takes the concert out of being just religious in nature. If not, it’s necessary to demand that the school do better about teaching all traditions.
How old are the children singing? The ability of a second-grader to fight indoctrination and the ability of a high school senior to do so are completely different. Younger children tend not to complain on their own about the nature of music chosen, but older children who have been taught to stand up for their rights will get in the teacher’s face about things. Then again, shy older children who are terrified of drawing attention to themselves will stay silent. It’s more likely that an older child in choir will be singing music composed by the great classical masters, and therefore singing more religious-themed music for non-religious reasons.
What is the music teacher’s agenda? Is he or she proselytizing? Making inappropriate comments about being “saved” or “accepting Jesus as your personal lord and savior”? Or is the teacher trying to be all things to all people, including some religious things because of the season but mostly focused on secular songs?
Now, once it is clearly established that the choir teacher is motivated by religion and not by education, or doesn’t care that children in his or her class come from backgrounds other than the teacher’s own religion, or is actively trying to indoctrinate and save little souls, it’s time to object.
My preferred approach is to object gently, at least at first. It may be that the teacher simply never imagined that there was any other worldview, that there might be local families who object to her religion. If the response is embarrassment and apology, Lois and Peter have gotten their message across without making huge waves. Meg and Chris don’t have to worry about embarrassment because the teacher, dismayed at her own lack of forethought, will scramble to change the song selections.
Save stronger objections for teachers who respond dismissively, or who tell Peter and Lois that the teacher, not the students, are in charge of music selection. Peter and Lois can let the teacher know that if she is not responsive to their concerns, the next step will be to involve the administration. If the teacher resentfully complies at this point, mission accomplished. Lois and Peter should be vigilant for complaints by Chris and Meg that the teacher has singled them out and is retaliating against them, though.
If Peter and Lois make this stronger objection and the teacher is adamantly (or passive-aggressively) unresponsive, or is completely dismissive of their concerns, Lois and Peter need meet with the principal. The principal may be unresponsive, too, and if that is the case, go to the superintendent. If none of this gets the mission accomplished, it’s time to write the school board, and attend a meeting.
Here’s where the “counselor at law” part of my attorney’s license kicks in.
Meg and Chris will be at the center of this controversy. Their friends will know about it. The cool kids who are not their friends will know about it. The uncool kids who think their stand is awesome will know about it and want to be friends with them. Other teachers will know about it. The parents of their friends and not-friends will know about it. Chris and Meg need to know that Lois and Peter will give them all the counseling and support they can muster.
Peter and Lois’s kids may hate them, but it is their responsibility as secularists and parents to make sure that Meg and Chris get the best possible education, and if that means taking on the Harper Valley PTA, so be it.
Meg will be fine – she’s got a good head on her shoulders and is confident. however, Lois is worried that Chris, who is already shy and uncertain of himself, might become even more introverted and isolated if they make a big stink. Taking on the entire school over this might cause a problem for him.
If that means finding a therapist for the kids to complain to, then Lois and Peter need to find such a therapist. In selecting a therapist, Peter and Lois should be certain that the therapist is atheist-friendly. If they don’t already know someone, hopefully they will be able to find a secular-friendly therapist at Recovering from Religion’s new Secular Therapist Project. If Lois and Peter live in my area, they’re in luck, because I just emailed four secular-friendly therapists I know, as well as one secular-friendly psychiatrist, and asked them to sign up. It’s a new organization and resource.
There are legal resources, too.
Atheist-friendly lawyers like me won’t have any trouble at all writing a letter to the school telling them that their music selection violates the establishment clause of the US Constitution and violates the separation of church and state. A letter may be all it takes. If it takes more, Lois and Peter may be concerned about how to pay for a lawsuit. If they win, as they should, their legal fees will be reimbursed by the school. That’s great if they can afford to pay the lawyer along the way, but what if they can’t?
The Freedom From Religion Foundation is awesome in their legal badassery. They take in these complaints and they contact violators and they get things done. If you aren’t already a member, join. It’s free. And then donatewhat you can to the legal fund. Lawyers aren’t free; we like to eat, have homes, and send our kids to college, even if we work for cool organizations like FFRF.
After you’ve gotten the “join” and the “donate” parts out of the way, it’s time to lodge a complaint. FFRF has an online form at http://ffrf.org/legal/report. Fill it out. Be prepared to answer follow-up questions.
Based on what I’ve seen, and I don’t work for them so don’t hold me to this, FFRF first sends a letter asking that the situation be remedied. It’s my understanding that FFRF can do this without identifying the child whose family is complaining. That’s what any lawyer would do, and essentially, getting FFRF involved is the same as getting a lawyer involved. If the parents report that nothing has changed, then suit is filed.
Lawyers can protect the identity of children who file lawsuits. Using names like “John Doe” or using initials are the customary ways. If the case proceeds to trial, though, the cat will be out of the bag. As parents, Lois and Peter need to be prepared for this. Chris and Meg should also be prepared for it, and willing to proceed.
I can’t stress enough how important a secular community is. A religious kid sticking up for her freedom of religion will have her church or mosque or temple behind her. If a situation has reached the point of litigation, there is no other way to resolve it, and everyone involved is emotional and determined.
A major weakness of the secular community is that we aren’t cohesive. It’s hard to have meetings of people based around what they don’t do. If Lois and Peter are the organizing types, now would be an excellent time to join or start a secularist club. Maybe they’re too caught up in the lawsuit, though. Their friend Cleveland can start the group, rally the secular troops, and let the community know that they won’t be intimidated. There are resources for this, too, like Meetup.com and even Facebook.
So, Lois and Peter, talk to that teacher. Take it all the way to court if necessary. You and your children have a right to be free from religion, and it’s up to you to make sure of that.
Last week I went to the Market Street Cinema to see the free screening of West of Memphis, the newest offering among the documentaries about the West Memphis Three. (It’s offered again later this month for anyone interested, and will be back again later in the fall.)
In the event that anyone reading this has lived under a rock for the last couple of decades and isn’t aware of the case, the West Memphis Three are Damien Echols, Jason Baldwin, and Jessie Misskelley. They were teenagers when they were convicted of the capital murder of three eight-year-old boys in West Memphis, Arkansas.
In 1993 and 1994, there was a media circus surrounding the arrests and the trials. The West Memphis police, ignorant and superstitious, claimed that Echols, who was a weird kid who dressed funny, liked magic, and listened to heavy metal music, was the leader of a Satanic cult that ritualistically killed the little boys. After a nine hour interrogation, the West Memphis Police coached a confession out of Misskelley, a mentally handicapped high school dropout. All three were convicted. Echols was sentenced to death; Misskelley and Baldwin were sentenced to life without parole.
After nearly two decades of legal wrangling, the WM3 were freed from prison about a year ago, when, rather than go through a new trial, they entered pleas pursuant to North Carolina v. Alford,pleading guilty but simultaneously declaring their innocence. It was a long road getting there – 18 years long. That’s half again as long as the Millennium Falcon’s Kessel Run. They took the whole 18 parsecs to get there.
In the film, Prosecutor Scott Ellington repeated his assertion that, despite not having reviewed the evidence in the case, he believes the West Memphis Three are guilty. He was not the original prosecutor. That dubious honor went to John Fogelman and Brent Davis, a pair to whom I have no problem assigning contempt.
Likewise, the judge was not the one who had presided over the case for 18 years. Judge David Burnett repeatedly ruled against the defense at the pretrial, trial, and post-trial proceedings. Had he still been on the bench when this offer was extended, we cannot be assured of the same outcome.
A week before the murders happened, I hung out my shingle and opened my solo law practice. Even though I had been out of law school for five years, I felt like a neophyte when it came to actually practicing law. Oh, there are stories, some of which I’ve told and some of which I will never tell, about how I groped my way to a successful practice. But in 1993 I was uncertain and confused about the practice of law. And like most of the rest of the state, I was riveted by the unfolding case. By the time of the trials eight months later, I was appalled at the travesty of justice I saw. I felt completely impotent. I had no idea that I might have helped, and boy, I wanted to help. I had gotten into the business of law to help the underdogs of the world, and the West Memphis Three defendants were underdogs from the day they were conceived.
When the first appeals were being pursued, Arkansas’s Death Penalty Resource Center, a state agency that provided litigation support and appellate representation in death penalty cases, was defunded and disbanded. One of its attorneys, Al Schay, sublet office space from me. The day he trundled in the boxes that held the transcripts of the Echols-Baldwin trial, he said I could read them. I had read countless transcripts as a law clerk for an appellate judge, and was undaunted by the thousands of pages of testimony and exhibits. I sat on the floor of Al’s office after hours and I read. And read. And became enraged at the prosecutors and the judge who presided over the cases. The fact that those three young men were convicted of capital murder on such flimsy evidence was appalling. What’s worse, I don’t remember a single motion that went in the defense’s favor – except one. That one favorable ruling was ultimately undermined by juror misconduct. The ruling should have prevented Jessie Miskelley’s coached confession from coming into evidence against his co-defendants. However, the jury foreman in the Baldwin-Echols trial made a special effort to ensure that the jurors were aware of it.
Courtroom Rotunda at the Arkansas Justice Building (source)
The day the Arkansas Supreme Court upheld the convictions, I realized that the court was nothing more than a calculating political beast. The majority reached its conclusion because that was the conclusion they felt they politically had to make. Three devil-worshipping teenagers had ritually murdered three little cub scouts. It was sensationalism that sold papers. It was sensationalism that provided job security even in the august halls of the Supreme Court, where I had been so proud to work not long before. It sickened me.
Jason Baldwin and Damien Echols should never have been convicted. They did not receive a fair trial. Did Jessie Miskelley? I don’t know. I’ve never read the transcript of his trial. My guess is that with the same people in positions of power, and the same facts, he did not. I know that Dan Stidham, Misskelley’s lawyer, believes he did not.
I met Dan Stidham at a seminar recently. For fifteen years, Dan Stidham was an active hero in the West Memphis Three case. He was appointed to serve as Jessie Misskelley’s attorney at trial, and was the only attorney who stuck with his client after the trials, even to the point of preparing Jason Baldwin’s appellate paperwork when Jason had no lawyer. Stidham is now a circuit judge, but he was Jessie Misskelley’s lawyer throughout the trial and appellate process until 2008, when he assumed the bench. I told him that I wished I had reached out back in those days. I didn’t because I thought I had nothing to contribute. I realize now that I could have offered my time. I told him that when the trials were ongoing, I had wanted to do something – anything – because I saw what a miscarriage of justice was happening. He gave me a look that said, “Why didn’t you?” and I felt more impotent than ever. I regret not doing something back then, even though I didn’t think I was competent to do anything.
(source)
In the years between their convictions and their release, I was peripherally aware of the movement to free the West Memphis Three. I had seen the billboard in West Memphis with its tipline phone number. I read each court’s decision denying any relief at all to the convicted men. I never forgot them, but I believed their case was hopeless. A results-oriented judicial process was at work, one I knew intimately from the inside. It didn’t matter how the judges reached their decision, only that they reached the one most politically appropriate. They had constituents to answer to each election cycle. A case as notorious as the West Memphis Three had to be controlled with an iron fist.
I never saw Paradise Lost: The Child Murders at Robin Hood Hills or Paradise Lost 2: Revelations, the HBO documentaries about the West Memphis Three. I never read Devil’s Knot, investigative reporter Mara Leveritt’s book about the case. I had read news articles about the case, though, and read each judicial opinion at every level, both state and federal, as the fruitless appellate process lumbered on over the years.
Then, in the spring of 2011 I heard from Ken Swindle, an attorney in the northwest part of the state, whose contributions to a listserv for trial lawyers I had admired for several years. Would I sign a petition asking for a new trial for the West Memphis Three? I didn’t have to think about it. Hell, yes, I would! The West Memphis Three case exemplifies for me what is wrong with the criminal justice system on so many levels: cronyism among law enforcement officials and the State Crime Lab, results-oriented judicial decision-making, religious bigotry, a lack of critical thinking skills among the population at large (which make up our juries), prejudice, bad science, superstitious ignorance, the lack of resources available to all but the wealthiest criminal defendants, and the complete failure of standards of reasonable doubt and the assumption of innocence.
There’s no way I could ever practice criminal law. I would stroke out in very short order from the stress caused by the rampant injustice. The assembly-line attitudes I have encountered in family court and in juvenile court are bad enough without compounding it with the inequities of the adult criminal justice system.
But finally, the Arkansas Supreme Court did the right thing. Finally, it agreed that DNA evidence had to be considered in light of all the rest of the evidence – including evidence that at least four trial witnesses had recanted in the intervening years, and possibly including evidence that the Echols-Baldwin jury was tainted by the published confession they were never supposed to consider – and which the jury foreman made sure they did. And when the Arkansas Supreme Court sent the case back to the trial court this time, there was a new judge in town.
Judge David Laser acknowledged in open court that the release of the West Memphis Three pursuant to the Alford pleas wasn’t justice for anyone – not for the defendants, and not for the victims – because innocent men remained convicted, and were robbed by the State of nearly two decades of their lives. The terms of the plea agreement allowed three victims of a miscarriage of justice to finally go free, albeit under the burden and stigma of probation. Judge Laser said,
I don’t think it will make the pain go away to the victim families. I don’t think it will make the pain go away to the defendant families. I don’t think it will take away a minute of the eighteen years that these three young men served in the Arkansas Department of Corrections.
WM3 at the Press Conference After Their Release Hearing (source)
Since their release, I have seen the first two Paradise Lost documentaries as well as the third one, Paradise Lost 3: Purgatory, which was being made just as the WM3 were freed. I have read Devil’s Knot. The thing is, it didn’t take any of these efforts to convince me that justice was not served. While they told me more than I knew before, I knew when I read the transcripts and looked at the evidence on the first appeal that the West Memphis Three were innocent. Not just “not guilty,” which can mean that they probably did it but the state didn’t prove the case, but innocent.
And that leads us to the real question: who killed Chris Byers, Stevie Branch, and Michael Moore?
West of Memphis left me with more questions than ever before. In December 2011, three new witnesses came forward with hearsay evidence that Terry Hobbs, Stevie Branch’s stepfather, has admitted guilt to members of his family. It’s my understanding that, despite his strong assertion that he would look into anything the defense brought him, Ellington has not done a single thing in the last nine months to look into those allegations. Hearsay is plenty good enough for investigators to launch investigations in much less serious crimes. If it is true that the “Hobbs Family Secret” is that Terry killed those boys, Arkansas is denying justice not only to the WM3, but to the victims and their families.
That having been said, West of Memphis did not show conclusive evidence of Terry Hobbs’s guilt. I don’t think it intended to. It raised serious, valid questions that need investigation, though. Someone killed those kids, and that someone has never done a single day’s worth of prison time for their murders.
Also disconcerting to me were David Jacoby’s on-camera statements and his willingness to allow recordings of his telephone conversations with Terry Hobbs about the night the boys disappeared. Jacoby is a friend of Terry Hobbs, and was with Hobbs for part of the evening and night when the families and police searched for the missing children. He stopped short of saying outright that he wasn’t with Hobbs during the time Hobbs claims. Since he is Hobbs’ alibi, I wish Jacoby had been asked that tough question directly, and I wish he had given a straight answer. The implied answer is there, but the lawyer in me wants it airtight.
I don’t know if Terry Hobbs did it. I don’t know if there was someone else in those woods who killed the children. But “beyond a reasonable doubt” and “innocent until proven guilty” have to mean something. They just HAVE to. And despite two juries, and despite the affirmed decisions of the appellate courts, the West Memphis Three were not proven guilty.
As a postscript, my hat goes off to Ken Swindle, who didn’t stop working on the case when the West Memphis Three walked out of that courtroom last August. Ken has filed requests for disclosure of evidence under the Freedom of Information Act on behalf of two of the victims’ parents. The West Memphis Police Department maintains that the case is closed, so the information is fair game under FOIA. The problem is, they won’t deliver. The plaintiff parents, Pam Hobbs, ex-wife of Terry Hobbs and mother of Stevie Branch, and Mark Byers, adoptive father of Chris Byers, are both very outspoken supporters of the West Memphis Three. Today, Ken requested a hearing on the FOIA request, which has been resisted by both the West Memphis PD and Scott Ellington, the current prosecuting attorney.
According to Article 19, Section 1 of the Arkansas Constitution of 1874 – which my third-great-grandfather helped write – I am ineligible to hold any office in the civil departments of the state government, nor may I testify as a witness in any court.
Why? Because I don’t believe in a divine being.
It will take over 70,000 signatures of registered voters (from Arkansas’s total population of about 3 million) to get the repeal of the constitutional provision on the ballot. Since we are in the buckle of the Bible Belt, the effort to find that many signatures would be Herculean. I seriously doubt many churches would do anything to support the initiative, and most would actively work against it.
That being said, put me down as a scofflaw. I’m a Notary Public and worked for years as a state employee. I’ve testified multiple times and served as a Special Circuit Judge.
Federal law prohibits enforcement of this provision, but its presence still rankles.
Over the weekend, I hosted a movie night for a group I belong to. Usually our movie nights are casual, frivolous affairs. We watch a comedy or something. Monty Python and Kevin Smith are perennial favorites. Not this time, though. On occasion, our movie nights are used to educate ourselves. Our group is composed of politically-minded, intellectual, highly intelligent people, most of whom have humanist tendencies, and all of whom have strong opinions.
Last year at the Sundance Film Festival,Hot Coffee, a documentary about tort reform and its effects on ordinary people premiered to very positive reviews. I decided to show it to my politically-minded friends. The rhetoric spewing from the tort reformers, whose voices seem to be the only ones I ever hear, doesn’t even begin to treat the problem with any sense of even-handedness.
Because of the way it’s being pushed on an unsuspecting public, tort reform makes my heart pound. Its wrongness takes my breath away. The idea of capping the amount someone can recover for wrongs done to them simply cannot be set at an arbitrary amount. An amount of damages that is fair in one case is not fair in another. Putting an arbitrary amount on how much someone should be compensated for serious injuries flies in the face of the very purpose of our civil justice system. The way the current reform movement wants to change how people are compensated makes no sense at all.
Each state’s tort reform law is different, but the idea behind them tend to be the same. Most famously, these reform laws want to limit punitive damages. They also want to put limits on who can file suit, and when.
I should make a disclosure here. I am a lawyer. I’ve had a civil practice for 24 years. I am not now, nor have I ever been, a tort lawyer. Oh, sure, I’ve handled a minor car accident here and there over the years, but never when much money was involved and never when I thought the case would not settle.
What about all those frivolous lawsuits?
No one likes the notion that there are people out there working “the system” and being rewarded financially for filing frivolous lawsuits. The truth is, though, that frivolous lawsuits rarely get off the ground. There are several reasons why.
One reason is that tort lawyers tend to finance tort claims. Unless there is a very good chance of a pay day at the end of the line, no lawyer is going to invest his own money into someone else’s case. That’s just simply a bad business decision. The discovery process, through which the lawyer prepares for trial, costs thousands of dollars. Expert witnesses cost thousands of dollars. Court reporters cost hundreds, if not thousands, depending on how many depositions are taken. Unless the case has a good chance of being won, no lawyer is going to accept it. Furthermore, the case has to be worth enough money that the settlement or judgment will cover the plaintiff’s actual damages, the costs of litigation, and an attorney’s fee. If it won’t compensate the lawyer for his time and expenses, the lawyer won’t take the case.
Another reason is that sanctions against an attorney who files frivolous suits are harsh. Fines, disciplinary actions, public censure by the courts, and damage to the lawyer’s reputation deter frivolous filings. I have heard the objections to this line of reasoning. Within the last month a young lawyer reported to me that he was told that the way to earn good money was to file frivolous suits and settle for “nuisance money,” or any amount of money that the insurance company will pay just to make the case go away. While I was appalled at the thought that there are people in my profession who operate this way as a matter of course, I won’t say that suits are never resolved this way. At times, they are. But if they are completely frivolous, I’ve never known an insurance company yet that would pay a single dime to a litigant. Defense attorneys do not hesitate to file motions for sanctions when they believe sanctions are warranted.
What is a tort, anyway?
Many Americans do not even know what a tort is.
My torts professor in law school told us that a tort is a civil wrong. Very simply put, people commit torts when they injure someone else. Automobile accidents and medical malpractice are the torts that most quickly come to mind. We suffer torts when the neighbor’s dog bites us or when the guy at the bar takes a drunken swing at us. The defamatory conduct that makes up libel and slander is tortious. Poorly designed products that hurt us are the subject of tort actions, including drugs, toys, tires, and automobiles. Interfering with someone’s business is a tort.
Many crimes are also torts. While the state has an interest in prosecuting someone who physically injures another person, the injured person gets nothing from the criminal prosecution. To redress the wrong done to him, the injured person sues the perpetrator in a court of law. There, the court can award damages to compensate the injured person for his injuries.
What is the point of a jury?
The very same people who say they are behind tort reform make up the juries that award damages to injured people. They are the same people who, when they have been grievously injured, demand the right to sue so that the person responsible pays for the harm. And then they are shocked when they can’t be compensated fully, because, after all, theirs was not one of the “frivolous” lawsuits that caps on damages was supposed to guard against.
Why are there large awards? Because in a court of law, with both sides being represented by able counsel, the jury decides that proof demands such an award. That is the amount it takes to make someone whole after a grievous harm.
When we allow our legislatures to put arbitrary caps on damages, we are giving up a constitutionally-guaranteed right to be made whole. Furthermore, we are tying the hands of the jury system.
But what about those multimillion dollar awards?
Most people object to large awards of punitive damages. Punitive damages are meant to punish especially egregious conduct. They are not awarded in every tort case; they are the exceptions that make the headlines. Punitive damages don’t beggar the perpetrators of torts. They are, however, intended to be felt. Remember the “excessive” punitive damages award in the McDonald’s coffee case? McDonald’s offered the victim, who had undergone months of skin grafts because of the extent of her burns, $800 – not even a drop in the bucket toward her medical bills. The punitive damages award represented two days of McDonald’s coffee sales. Just two days of profits. Just on coffee.
So, what should we do?
It is shocking that we should be talking about depriving people of just compensation. If we don’t like that punitive damages “enrich” victims of torts, then the conversation should be about what else to do with the money – because especially egregious conduct deserves to be punished.
One suggestion: How about a fund to improve access to justice for people who can’t afford lawyers? Currently in Arkansas, our legal services agencies are spread so thin that poor people can only get divorce lawyers if they are also physically abused.
Mount Holly Cemetery, Little Rock, Arkansas Photo by David Habben, www.findagrave.com
My mom wanted me on the board of an historical cemetery. I thought it would be awesome – it’s a great old place with lots of ghost stories and locally famous – and infamous – people buried there. Including a truckload of my ancestors.
“I need your resume,” she told me.
“Mom, I hardly think that my work history has anything to do with why I might be qualified to serve on that board.”
“So dress it up. Emphasize your genealogy research and your history research. Talk about your volunteer work.”
In other words, she wanted me to re-craft my resume entirely. Therefore, I did exactly what I always do when given an irritating assignment: I procrastinated.
A week later: “I really need your resume.”
Two weeks later: “If you don’t get me that resume I can’t nominate you.”
Three weeks later: “I need it today.”
Crap. And I was having so much fun putting it off.
“Just write something. I’ll rewrite it to suit our nomination style.”
Had she said this in the first place, I could have whipped off a few relevant paragraphs and been done with this a month ago. But she said she wanted a freaking resume. So after lunch, I sat down and wrote:
Anne has a keen interest in genealogy and history, and has done research on both in this particular cemetery, once regrettably denting the side of her car as she took a turn too sharply around a certain walled plot in the northeast corner of the place. Her interest in these disciplines began in high school, when in 1976 she won the esteemed and coveted Annual Ninth Grade History Award at All Saints Episcopal School in Vicksburg, Mississippi, mostly to prove to a certain boy that she was smarter than he was. It must have worked, because that intimidated lad has refused to this day (over 30 years later!) to come to class reunions. Her interest was fed her freshman year at Colgate University in Hamilton, New York, when given the task of charting the genealogy of Zeus’s progeny she instead charted the genealogy of the entire Greek pantheon. While mostly accurate, her work earned her a C for failing to follow directions. Her professor was not interested in reading that much. Anne didn’t really care, since being right was all that mattered. When she graduated from Colgate in 1984, her major was English, not Greek.
With no immediate better use to put an English major, Anne returned to her Arkansas roots the following year to go to law school. Anne clerked for Justice David Newbern at the Arkansas Supreme Court, then worked for a state agency or two until her secretary, one Gennifer Flowers, decided to hit the front page of the papers and not return to work. Anne opened her own law practice in 1993 and has remained in private practice ever since. Today, after 16 years in the trenches of litigation, Anne is a managing member of the law firm Almand, Orsi & Campbell, PLLC, which handles civil litigation. Both she and her cousin and law partner, Donald K. Campbell, III, have generations of ancestors buried at this cemetery, stories about whom they occasionally pull out, dust off, and tell to their children and other passers-by, whether or not such innocents are especially interested.
Anne has maintained a moderately noticeable profile among local bar and statewide bar associations. She joined a whole slew of them in 1988 immediately after getting her J.D. from UALR Law School and passing the bar. In 1993 she was made Parliamentarian of the Arkansas Association of Woman Lawyers, then served as Vice President in 1994-1995, and as President in 1995-1996. She remains a member of the group today. She has been a member of the Pulaski County Bar Association since 1988, and served as co-chair of the Hospitality Committee in 1995-1996. Likewise she retains her membership in the Arkansas Trial Lawyers Association, for which she chaired the Domestic Relations Division in 1997-1998. She was a member of the American Bar Association from 1988-1996, when membership became prohibitively expensive. Most of her bar activities have been through the Arkansas Bar Association, for which she has served on numerous committees, including the Real Estate Committee, Probate Law Committee, Juvenile Justice and Child Welfare Committee, Women and Minorities in the Law Committee, Mock Trial Committee, Online Legal Research Committee, Civil Litigation Committee, and Access to Justice Committee.
Very conscious of the fact that not everyone has access to the legal system in a meaningful way, Anne donates her time and expertise through two of Arkansas’ legal services organizations. The Center for Arkansas Legal Services helps clients in the central Arkansas area, and Anne is one of the attorneys who accepts legal representation of clients in need who meet low income guidelines. Anne volunteers in rural areas of the state for Arkansas Volunteer Lawyers for the Elderly, another legal aid program that ensures that senior citizens with limited assets and income can access the legal system.
She has served on the boards of other historical societies, including Scott Connections in Scott, Arkansas (Director, 2007-2008), and the National Society of Colonial Dames of America in Arkansas (Director, 2006-09; and Board of Managers 2009-present). This spring Anne was selected to be the state’s Regent of Gunston Hall, the Northern Virginia home of founding father George Mason, a position she will hold for the next four years.
Anne is active in several of her family’s businesses. She is on the board of directors of ARNO, Inc. and Pioneer Farms, and has served as Chairman of the Board of Three Rivers Title Services, Inc. since 1999.
For pleasure, Anne loves to grow herbs, read, and write short stories. She maintains two blogs: one is purely for pleasure and the other is purely for work. She is also working on three novels, none of which she ever expects to finish unless the Fountain of Youth is found and she drinks copiously from its non-Stygian depths.
“Very amusing, my dear. I will extract the pertinent information to send out to the rest of the Board, omitting the humor, sad though that makes me.”
She will extract the pertinent information? That means most of what I wrote will end up in the trash.
And I worked so hard to get it to her!
Sadly edited in 2012 to remove links to the defunct law firm of Almand, Orsi & Campbell, PLLC.
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