Category Archives: Law

November 12, 1968 (a Tuesday)

Church/State sign.

On this date, Susan Epperson et al v. Arkansas was decided.  The U.S. Supreme Court found that Arkansas’ law prohibiting the teaching of evolution was unconstitutional because the motivation was based on a literal reading of Genesis, not science.

November 6, 1990 (a Tuesday)

Church/State sign.

On this date, Webster v. New Lenox was decided.  The Seventh Circuit Court of Appeals ruled that school boards have the right to prohibit teaching creationism because such lessons would constitute religious advocacy.

October 21, 2010 (a Thursday)

Human Rights Building in Strasbourg, France.

On this date, in the case of Nikolai Alexeev v. Russia, the European Court of Human Rights in Strasbourg, France ruled that Russia violated the European Convention on Human Rights with the banning of the 2006, 2007, and 2008 Moscow Gay Pride Marches. The beginning of the Court’s opinion recounted the facts of the historic case (numbers refer to specific paragraphs in the Court’s opinion):

6. In 2006 the applicant, together with other individuals, organized a march to draw public attention to discrimination against the gay and lesbian minority in Russia, to promote respect for human rights and freedoms and to call for tolerance on the part of the Russian authorities and the public at large towards this minority. The march was entitled “Pride March” that year, and “Gay Pride” in subsequent years, to replicate similar events held by homosexual communities in big cities worldwide. The date chosen for the march, 27 May 2006, was also meant to celebrate the anniversary of the abolition of criminal liability in Russia for homosexual acts.

7. On 16 February 2006 the Interfax news agency published a statement by Mr Tsoy, the press secretary of the mayor of Moscow, to the effect that “the government of Moscow [would] not even consider allowing the gay parade to be held”. Interfax further quoted Mr Tsoy as saying: “The mayor of Moscow, Mr Luzhkov, has firmly declared: the government of the capital city will not allow a gay parade to be held in any form, whether openly or disguised [as a human rights demonstration], and any attempt to hold any unauthorized action will be severely repressed”.

8. On 22 February 2006 Interfax quoted the mayor of Moscow as having said, on a different occasion, that if he received a request to hold a gay parade in Moscow he would impose a ban on it because he did not want “to stir up society, which is ill-disposed to such occurrences of life” and continuing that he himself considered homosexuality “unnatural”, though he “tried to treat everything that happens in human society with tolerance”.

(. . .)

11. On 15 May 2006 the organizers submitted a notice to the mayor of Moscow stating the date, time and route of the intended march. It was to take place between 3 p.m. and 5 p.m. on 27 May 2006, with an estimated number of about 2,000 participants, who would march from the Moscow Post Office along Myasnitskaya Street to Lubyanskaya Square. The organizers undertook to cooperate with the law-enforcement authorities in ensuring safety and respect for public order by the participants and to comply with regulations on restriction of noise levels when using loudspeakers and sound equipment.

12. On 18 May 2006 the Department for Liaison with Security Authorities of the Moscow Government informed the applicant of the mayor’s decision to refuse permission to hold the march on grounds of public order, for the prevention of riots and the protection of health, morals and the rights and freedoms of others. It stated, in particular, that numerous petitions had been brought against the march by representatives of legislative and executive State bodies, religious denominations, Cossack elders and other individuals; the march was therefore likely to cause a negative reaction and protests against the participants, which could turn into civil disorder and mass riots.

(. . .)

16. On 26 May 2006 Interfax quoted the mayor of Moscow as saying in an interview to the radio station Russian Radio that no gay parade would be allowed in Moscow under any circumstances, “as long as he was the city mayor”. He stated that all three “major” religious faiths – “the Church, the Mosque and the Synagogue” – were against it and that it was absolutely unacceptable in Moscow and in Russia, unlike “in some Western country more progressive in that sphere”. He went on to say: “That’s the way morals work. If somebody deviates from the normal principles [in accordance with which] sexual and gender life is organized, this should not be demonstrated in public and anyone potentially unstable should not be invited.” He stated that 99.9% of the population of Moscow supported the ban.

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Moscow police dispersed a gay pride rally on 16 May 2009 that was banned by city authorities, drawing attention to Russia’s record on gay rights as it prepared to host a major international pop music competition:

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And so on and so forth. The fact that the Moscow authorities were homophobic was firmly established in the Court’s ruling. In reaching its decision, the Court relied on extracts from Recommendation CM/Rec(2010)5 of the Committee of Ministers of the Council of Europe to member States on measures to combat discrimination on grounds of sexual orientation or gender identity, including:

Member states should take appropriate measures to ensure, in accordance with Article 10 of the Convention, that the right to freedom of expression can be effectively enjoyed, without discrimination on grounds of sexual orientation or gender identity, including with respect to the freedom to receive and impart information on subjects dealing with sexual orientation or gender identity.

In a stinging rebuke to former Moscow Mayor Yuri Luzhkov, the Court stated:

86. The mayor of Moscow, whose statements were essentially reiterated in the Government’s observations, considered it necessary to confine every mention of homosexuality to the private sphere and to force gay men and lesbians out of the public eye, implying that homosexuality was a result of a conscious, and antisocial, choice. However, they were unable to provide justification for such exclusion. There is no scientific evidence or sociological data at the Court’s disposal suggesting that the mere mention of homosexuality, or open public debate about sexual minorities’ social status, would adversely affect children or “vulnerable adults”. On the contrary, it is only through fair and public debate that society may address such complex issues as the one raised in the present case. Such debate, backed up by academic research, would benefit social cohesion by ensuring that representatives of all views are heard, including the individuals concerned. It would also clarify some common points of confusion, such as whether a person may be educated or enticed into or out of homosexuality, or opt into or out of it voluntarily. This was exactly the kind of debate that the applicant in the present case attempted to launch, and it could not be replaced by the officials spontaneously expressing uninformed views which they considered popular. In the circumstances of the present case the Court cannot but conclude that the authorities’ decisions to ban the events in question were not based on an acceptable assessment of the relevant facts.

87. The foregoing considerations are sufficient to enable the Court to conclude that the ban on the events organized by the applicant did not correspond to a pressing social need and was thus not necessary in a democratic society.

As a result, The European Court ruled that Russian authorities violated three specific articles of the European Convention, namely, Article 11 (freedom of assembly and association), Article 13 (right to an effective remedy), and Article 14 (prohibition of discrimination). In its conclusion, the Court stated:

108. The Court reiterates that sexual orientation is a concept covered by Article 14 (see, among other cases, Kozak v. Poland, no. 13102/02, 2 March 2010). Furthermore, when the distinction in question operates in this intimate and vulnerable sphere of an individual’s private life, particularly weighty reasons need to be advanced before the Court to justify the measure complained of. Where a difference of treatment is based on sex or sexual orientation the margin of appreciation afforded to the State is narrow, and in such situations the principle of proportionality does not merely require the measure chosen to be suitable in general for realizing the aim sought; it must also be shown that it was necessary in the circumstances. Indeed, if the reasons advanced for a difference in treatment were based solely on the applicant’s sexual orientation, this would amount to discrimination under the Convention (ibid, § 92).

109. It has been established above that the main reason for the ban imposed on the events organized by the applicant was the authorities’ disapproval of demonstrations which they considered to promote homosexuality (see paragraphs 77-78 and 82 above). In particular, the Court cannot disregard the strong personal opinions publicly expressed by the mayor of Moscow and the undeniable link between these statements and the ban. In the light of these findings the Court also considers it established that the applicant suffered discrimination on the grounds of his sexual orientation and that of other participants in the proposed events. It further considers that the Government did not provide any justification showing that the impugned distinction was compatible with the standards of the Convention.

Peter Tatchell (left) and Louis-Georges Tin both praised Nikolai Alekseev for his courage in fighting for gay rights in Russia. The two are pictured with 'defiant' placards, with Moscow City Hall in the background, during the first Moscow Pride in 2006. (photo: UK Gay News)

The court awarded 12,000 euros in damages to Moscow gay rights advocate and Pride organizer Nikolai Alexeev and a further 17,500 euros in costs. “This is the first ever decision of the European Court of Human Rights which concerns freedom of assembly in Russia. It guarantees everyone freedom of expression without special permission,” Alexeyev told The Moscow News directly after the verdict.

Speaking to UK Gay News on the Court’s ruling, Peter Tatchell, the campaigner for global LGBT human rights, said in London, “Nikolai and his small band of daring LGBT activists have taken on the might of the Russian state – and won. It is a triumph for LGBT Russians and for all Russians who love liberty.” Louis-Georges Tin, the founder and president of the International Day Against Homophobia organization, said that the decision of the European Court of Human Rights cannot be clearer. “Russia must respect the rights of all citizens for freedom of assembly on its territory without delay, and especially LGBT activists who faced a systematic breach of this basic right in the past years,” he said.

However, under Articles 43 and 44 of the Convention, this “Chamber judgment” is not final. During the three-month period following its delivery, any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of judges considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral request is refused, the Chamber judgment will become final on that day.

September 22, 1862 (a Monday)

Preliminary Emancipation Proclamation, page 1. Record Group 11, General Records of the U.S. Government, National Archives and Records Administration.

Preliminary Emancipation Proclamation, page 1. Record Group 11, General Records of the U.S. Government, National Archives and Records Administration.

On this date, motivated by his growing concern for the inhumanity of slavery as well as practical political concerns, President Abraham Lincoln changed the course of the war and American history by issuing the preliminary Emancipation Proclamation. Announced a week after the nominal Union victory at the Battle of Antietam, near Sharpsburg, Maryland, this measure did not technically free any slaves, but it expanded the Union’s war aim from reunification to include the abolition of slavery.

The proclamation announced that all slaves in territory that was still in rebellion as of January 1, 1863, would be free. Since it freed slaves only in Rebel areas that were beyond Union occupation, the Emancipation Proclamation really freed no one. But the measure was still one of the most important acts in American history, as it meant slavery would end when those areas were recaptured.

“President Lincoln, writing the Proclamation of Freedom,” by David Gilmour Blythe.

“President Lincoln, writing the Proclamation of Freedom,” by David Gilmour Blythe.

In addition, the proclamation effectively sabotaged Confederate attempts to secure recognition by foreign governments, especially Great Britain. When reunification was the goal of the North, foreigners could view the Confederates as freedom fighters being held against their will by the Union. But after the Emancipation Proclamation, the Southern cause was now viewed as the defense of slavery. The proclamation was a shrewd maneuver by Lincoln to brand the Confederate States as a slave nation and render foreign aid impossible.

The measure was met by a good deal of opposition, because many Northerners were unwilling to fight for the freedom of blacks. But it spelled the death knell for slavery, and it had the effect on British opinion that Lincoln had desired. Antislavery Britain could no longer recognize the Confederacy, and Union sentiment swelled in Britain. With this measure, Lincoln effectively isolated the Confederacy and killed the institution that was the root of sectional differences.

Preliminary Emancipation Proclamation

September 22, 1862

By the President of the United States of America.

A Proclamation.

I, Abraham Lincoln, President of the United States of America, and Commander-in-Chief of the Army and Navy thereof, do hereby proclaim and declare that hereafter, as heretofore, the war will be prosecuted for the object of practically restoring the constitutional relation between the United States, and each of the States, and the people thereof, in which States that relation is, or may be, suspended or disturbed.

That it is my purpose, upon the next meeting of Congress to again recommend the adoption of a practical measure tendering pecuniary aid to the free acceptance or rejection of all slave States, so called, the people whereof may not then be in rebellion against the United States and which States may then have voluntarily adopted, or thereafter may voluntarily adopt, immediate or gradual abolishment of slavery within their respective limits; and that the effort to colonize persons of African descent, with their consent, upon this continent, or elsewhere, with the previously obtained consent of the Governments existing there, will be continued.

That on the first day of January in the year of our Lord, one thousand eight hundred and sixty-three, all persons held as slaves within any State, or designated part of a State, the people whereof shall then be in rebellion against the United States shall be then, thenceforward, and forever free; and the executive government of the United States, including the military and naval authority thereof, will recognize and maintain the freedom of such persons, and will do no act or acts to repress such persons, or any of them, in any efforts they may make for their actual freedom.

That the executive will, on the first day of January aforesaid, by proclamation, designate the States, and part of States, if any, in which the people thereof respectively, shall then be in rebellion against the United States; and the fact that any State, or the people thereof shall, on that day be, in good faith represented in the Congress of the United States, by members chosen thereto, at elections wherein a majority of the qualified voters of such State shall have participated, shall, in the absence of strong countervailing testimony, be deemed conclusive evidence that such State and the people thereof, are not then in rebellion against the United States.

That attention is hereby called to an Act of Congress entitled “An Act to make an additional Article of War” approved March 13, 1862, and which act is in the words and figure following:

“Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That hereafter the following shall be promulgated as an additional article of war for the government of the army of the United States, and shall be obeyed and observed as such:

“Article-All officers or persons in the military or naval service of the United States are prohibited from employing any of the forces under their respective commands for the purpose of returning fugitives from service or labor, who may have escaped from any persons to whom such service or labor is claimed to be due, and any officer who shall be found guilty by a court martial of violating this article shall be dismissed from the service.

“Sec.2. And be it further enacted, That this act shall take effect from and after its passage.”

Also to the ninth and tenth sections of an act entitled “An Act to suppress Insurrection, to punish Treason and Rebellion, to seize and confiscate property of rebels, and for other purposes,” approved July 17, 1862, and which sections are in the words and figures following:

“Sec.9. And be it further enacted, That all slaves of persons who shall hereafter be engaged in rebellion against the government of the United States, or who shall in any way give aid or comfort thereto, escaping from such persons and taking refuge within the lines of the army; and all slaves captured from such persons or deserted by them and coming under the control of the government of the United States; and all slaves of such persons found on (or) being within any place occupied by rebel forces and afterwards occupied by the forces of the United States, shall be deemed captives of war, and shall be forever free of their servitude and not again held as slaves.

“Sec.10. And be it further enacted, That no slave escaping into any State, Territory, or the District of Columbia, from any other State, shall be delivered up, or in any way impeded or hindered of his liberty, except for crime, or some offence against the laws, unless the person claiming said fugitive shall first make oath that the person to whom the labor or service of such fugitive is alleged to be due is his lawful owner, and has not borne arms against the United States in the present rebellion, nor in any way given aid and comfort thereto; and no person engaged in the military or naval service of the United States shall, under any pretence whatever, assume to decide on the validity of the claim of any person to the service or labor of any other person, or surrender up any such person to the claimant, on pain of being dismissed from the service.”

And I do hereby enjoin upon and order all persons engaged in the military and naval service of the United States to observe, obey, and enforce, within their respective spheres of service, the act, and sections above recited.

And the executive will in due time recommend that all citizens of the United States who shall have remained loyal thereto throughout the rebellion, shall (upon the restoration of the constitutional relation between the United States, and their respective States, and people, if that relation shall have been suspended or disturbed) be compensated for all losses by acts of the United States, including the loss of slaves.

In witness whereof, I have hereunto set my hand, and caused the seal of the United States to be affixed.

Done at the City of Washington this twenty-second day of September, in the year of our Lord, one thousand, eight hundred and sixty-two, and of the Independence of the United States the eighty seventh.

[Signed:] Abraham Lincoln
By the President

[Signed:] William H. Seward
Secretary of State

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Criminal Lockup Quotas are Criminal

With crime rates dropping, for-profit prison operators CCA and GEO Group have found a new way to keep beds full and profits high. They call them “bed guarantees.”

Criminal-Lockup-Quota-Infographic

September 15, 1935 (a Sunday)

Massed crowds at the Nazi party rally in Nuremberg. Nuremberg, Germany, 1935.

On this date, the Nuremberg Race Laws, as they became known, stripped German Jews of their citizenship, reducing them to mere “subjects” of the Nazi state.

The laws also prohibited Jews from marrying or having sexual relations with persons of “German or related blood.” “Racial infamy,” as this became known, was made a criminal offense. Interestingly, the Nuremberg Laws did not define a “Jew” as someone with particular religious beliefs. Instead, anyone who had three or four Jewish grandparents was defined as a Jew, regardless of whether that individual identified himself or herself as a Jew or belonged to the Jewish religious community. Consequently, the Nazis classified as Jews thousands of people who had converted from Judaism to another religion, among them even Roman Catholic priests and nuns and Protestant ministers whose grandparents were Jewish.

What was the outside world’s reaction? Because unemployment had dropped precipitously under Hitler’s early commandeering of the economy, and the average German felt renewed hope and pride, the face of Germany seemed brighter, more at peace with itself. While some foreign visitors, even some political opponents within Germany itself, decried these racist laws and practices, most were beguiled into thinking it was merely a phase, and that Hitler, in the words of former British Prime Minister Lloyd George, was “a great man.”

This is David Lloyd George’s impression after a meeting with Hitler on 4 September 1936, from the Daily Express (London), published on 17 November 1936:

I have just returned from a visit to Germany. In so short time one can only form impressions or at least check impressions which years of distant observation through the telescope of the Press and constant inquiry from those who have seen things at a closer range had already made on one’s mind. I have now seen the famous German Leader and also something of the great change he has effected. Whatever one may think of his methods – and they are certainly not those of a parliamentary country – there can be no doubt that he has achieved a marvellous transformation in the spirit of the people, in their attitude towards each other, and in their social and economic outlook. He rightly claimed at Nuremberg that in four years his movement has made a new Germany. It is not the Germany of the first decade that followed the war – broken, dejected, and bowed down with a sense of apprehension and importance. It is now full of hope and confidence, and of a renewed sense of determination to lead its own life without interference from any influence outside its own frontiers. There is for the first time since the war a general sense of security. The people are more cheerful. There is a greater sense of general gaiety of spirit throughout the land. It is a happier Germany. I saw it everywhere and Englishmen I met during my trip and who knew Germany well were very impressed with the change. One man has accomplished this miracle. He is a born leader of men. A magnetic, dynamic personality with a single-minded purpose, a resolute will and a dauntless heart. He is not merely in name but in fact the national Leader. He has made them safe against potential enemies by whom they were surrounded. He is also securing them against that constant dread of starvation, which is one of the poignant memories of the last years of the War and the first years of the Peace. Over 700,000 died of sheer hunger in those dark years. You can still see the effect in the physique of those who were born into that bleak world. The fact that Hitler has rescued his country from the fear of a repetition of that period of despair, penury and humiliation has given him unchallenged authority in modern Germany. As to his popularity, especially among the youth of Germany, there can be no manner of doubt. The old trust him; the young idolise him. It is not the admiration accorded to a popular Leader. It is the worship of a national hero who has saved his country from utter despondency and degradation. It is true that public criticism of the Government is forbidden in every form. That does not mean that criticism is absent. I have heard the speeches of prominent Nazi orators freely condemned. But not a word of criticism or of disapproval have I heard of Hitler. He is as immune from criticism as a king in a monarchical country. He is something more. He is the George Washington of Germany – the man who won for his country independence from all her oppressors. To those who have not actually seen and sensed the way Hitler reigns over the heart and mind of Germany this description may appear extravagant. All the same, it is the bare truth. This great people will work better, sacrifice more, and, if necessary, fight with greater resolution because Hitler asks them to do so. Those who do not comprehend this central fact cannot judge the present possibilities of modern Germany. On the other hand, those who imagine that Germany has swung back to its old Imperialist temper cannot have any understanding of the character of the change. The idea of a Germany intimidating Europe with a threat that its irresistible army might march across frontiers forms no part of the new vision. What Hitler said at Nuremberg is true. The Germans will resist to the death every invader at their own country, but they have no longer the desire themselves to invade any other land. The leaders of modern Germany know too well that Europe is too formidable a proposition to be overrun and trampled down by any single nation, however powerful may be its armaments. They have learned that lesson in the war. Hitler fought in the ranks throughout the war, and knows from personal experience what war means. He also knows too well that the odds are even heavier today against an aggressor than they were at that time. What was then Austria would now be in the main hostile to the ideals of 1914. The Germans are under no illusions about Italy. They also are aware that the Russian Army is in every respect far more efficient than it was in 1914. The establishment of a German hegemony in Europe which was the aim and dream of the old pre-war militarism, is not even on the horizon of Nazism. …

Not much has changed in the more than three-quarters of a century since then. Just consider the way the world looks at China, whose economy is commandeered by the Chinese Communist Party.

References:

  • J. Remak (ed.), The Nazi Years – A Documentary History (Prentice-Hall, 1969), pp.80-82.

September 4, 1957 (a Wednesday)

A page from the Wolfeden Report.

A page from the Wolfeden Report.

On this date, the Report of the Departmental Committee on Homosexual Offences and Prostitution (better known as the Wolfenden Report, after Lord Wolfenden, the chairman of the committee) was published in Britain. It was significant for recommending that homosexual behavior in private between consenting adults, (i.e., over 21) should be decriminalized. The first printing of 5,000 copies of the 155-page document sold out in a matter of hours, and the report quickly went through numerous reprintings.

Male homosexuality had been illegal in England since the Buggery Act of 1533 (female homosexuality was never specified). The law became much more strict in 1885 with the Criminal Law Amendment Act, which made all homosexual acts illegal, even those carried out in private. Perhaps the most famous prosecution was that of the writer Oscar Wilde in 1895.

The number of convictions rose rapidly in the immediate period after World War II as the Home Office pursued prosecution more rigorously. In 1952, there had been 670 prosecutions in England for sodomy; 3,087 prosecutions for attempted sodomy or indecent assault; and 1,686 prosecutions for so-called gross indecency.

At that time, homosexuality was also the subject of sensationalist reporting in the popular press, and there were a number of high profile cases involving public figures. In 1951, the Russian spies Donald MacLean and Guy Burgess, both known to be homosexual, defected to the USSR. Alan Turing, the cryptographer who helped to break the German Enigma code, was victimized for his homosexuality. Charged in 1952 with “gross indecency”, he chose hormone treatment as punishment (the alternative was prison). He also lost his job. His death in June 1954 was treated as suicide. In 1953, newly-knighted Sir John Gielgud was arrested after trying to pick up a man in a public toilet who turned out to be an undercover policeman. He was found guilty of “persistently importuning for immoral purposes.” In 1954, the sensational trial of the Montagu/Pitt-Rivers/Wildeblood case was held, resulting in a peer (Lord Montagu of Beaulieu), his cousin (Michael Pitt-Rivers), and a journalist (Peter Wildeblood) being convicted of having had sexual relations with young working class men. They received sentences ranging from twelve to eighteen months imprisonment.

All of these events and controversies created pressure for a re-evaluation of the criminalization of homosexuality. Two MPs in December 1953 called upon the government to set up a Royal Commission to investigate the law relating to homosexual offenses, leading the Home Secretary, David Maxwell-Fyfe, to appoint the Departmental Committee in August 1954.

In addition to Wolfenden, the committee consisted of eleven men and three women, of whom thirteen served for the entire three years of the committee’s deliberations. The committee included, among others, two judges, a Foreign Office official, a Scottish Presbyterian minister, a Conservative MP, a consulting psychiatrist, the vice-president of the City of Glasgow Girl Guides, and a professor of moral theology. It was charged “to consider (a) the law and practice relating to homosexual offences and the treatment of persons convicted of such offences by the courts; and (b) the law and practice relating to offences against the criminal law in connection with prostitution and solicitation for immoral purposes, and to report what changes, if any, are desirable.”

The committee met for the first time on September 15, 1954. Over a period of three years, they interviewed religious leaders, policemen, judges, probation officers, psychiatrists, social workers, and homosexuals. When they issued their report in 1957, all but one of the thirteen members still sitting on the committee agreed that homosexual acts should be decriminalized if they took place in private, with consent, between persons at least 21 years of age and not members of the armed forces or the merchant navy.

The committee condemned homosexuality as immoral and destructive to individuals, but concluded that outlawing homosexuality impinged on civil liberties and that private morality or immorality should not be “the law’s business.” The function of the law, the committee wrote:

…is to preserve public order and decency, to protect the citizen from what is offensive or injurious, and to provide sufficient safeguards against exploitation and corruption of others, particularly those who are specially vulnerable…. It is not, in our view, the function of the law to intervene in the private life of citizens, or to seek to enforce any particular pattern of behaviour, further than is necessary to carry out the purposes we have outlined.

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Interview with Sir John Wolfenden in 1967.
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The basis on which the Wolfenden committee made its recommendations was essentially a restatement of the famous “harm principle” of John Stuart Mill, which he stated in his best-known work, On Liberty (1859). Here, Mill’s defense of liberty is as uncompromising as he can make it:

[T]he sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right. These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with any evil in case he do otherwise. To justify that, the conduct from which it is desired to deter him must be calculated to produce evil to someone else. The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute.

The sole dissenter from the majority’s recommendation, James Adair, disassociated himself from the Wolfenden Report, declaring that relaxing the law on homosexuality would be regarded by many homosexuals as “licensing licentiousness.”

Interestingly, despite the testimony of numerous psychiatrists and psychoanalysts, the committee refused to classify homosexuality as a mental illness requiring psychiatric intervention. It found that “homosexuality cannot legitimately be regarded as a disease, because in many cases it is the only symptom and is compatible with full mental health in other respects.” It did, however, urge continued research into the causes and potential cures of homosexuality, such as hormone treatments and psychiatric therapy.

The recommendation to decriminalize homosexuality was widely condemned by many religious and political leaders and by a host of newspapers. The committee’s refusal to declare homosexuality a disease provoked the condemnation of psychiatrists. On the other hand, the British Medical Association, the Howard League for Penal Reform, and the National Association of Probation Officers supported the committee’s recommendations. Somewhat surprisingly, the Archbishop of Canterbury, Dr. Fisher, made an eloquent plea on behalf of the recommendations, declaring that:

There is a sacred realm of privacy… into which the law, generally speaking, must not intrude. This is a principle of the utmost importance for the preservation of human freedom, self-respect, and responsibility.

The home secretary, Sir David Maxwell-Fyfe, was deeply disappointed in the Wolfenden Report. He no doubt expected the committee to recommend additional ways of controlling homosexual behavior, rather than decriminalizing it. In any case, he expressed doubt that the general population would support reform and declined to take action to implement the committee’s recommendation, calling instead for “additional study.” In fact, it took a good ten years for the recommendations in the Report to become law with the new Sexual Offences Act in 1967.

References:

September 3, 1838 (a Monday)

Frederick Douglass in 1845.

On this date, Frederick Douglass successfully escaped slavery by boarding a train to Havre de Grace, Maryland. He was dressed in a sailor’s uniform and carried identification papers provided by a free black seaman. He crossed the Susquehanna River by ferry at Havre de Grace, then continued by train to Wilmington, Delaware. From there he went by steamboat to “Quaker City” — Philadelphia, Pennsylvania — and eventually reached New York; the whole journey took less than 24 hours.

And so began the remarkable career of an American abolitionist, women’s suffragist, editor, orator, author, statesman, and reformer. Called “The Sage of Anacostia” and “The Lion of Anacostia”, Douglass is one of the most prominent figures in African-American and United States history. He was a firm believer in the equality of all people, whether black, female, Native American, or recent immigrant. Douglass was fond of saying, “I would unite with anybody to do right and with nobody to do wrong.”

One of my personal favorites is an excerpt from a speech Douglass delivered at Corinthian Hall in his adopted hometown, Rochester, New York, on July 5, 1852, entitled “What to the Slave is the Fourth of July?”:

But the church of this country is not only indifferent to the wrongs of the slave, it actually takes sides with the oppressors. It has made itself the bulwark of American slavery, and the shield of American slave-hunters. Many of its most eloquent Divines. who stand as the very lights of the church, have shamelessly given the sanction of religion and the Bible to the whole slave system. They have taught that man may, properly, be a slave; that the relation of master and slave is ordained of God; that to send back an escaped bondman to his master is clearly the duty of all the followers of the Lord Jesus Christ; and this horrible blasphemy is palmed off upon the world for Christianity.

For my part, I would say, welcome infidelity! welcome atheism! welcome anything! in preference to the gospel, as preached by those Divines! They convert the very name of religion into an engine of tyranny, and barbarous cruelty, and serve to confirm more infidels, in this age, than all the infidel writings of Thomas Paine, Voltaire, and Bolingbroke, put together, have done!

The historian David W. Blight has said of this speech, “If Uncle Tom’s Cabin is the fictional masterpiece of American abolitionism, a book Abraham Lincoln would later acknowledge as powerful enough to ’cause this big war,’ then Douglass’s Fourth of July address is abolition’s rhetorical masterpiece.”

The bust of Ludwig Feuerbach owned by Frederick Douglas that he displayed at his home in Washington, D.C. in later life.

One might wonder, based on the excerpt above: was Douglas an atheist?   Apparently not in 1852, but a letter dated May 15, 1871 by his friend Ottilie Assing, written to the German philosopher Ludwig Feuerbach, reveals that Douglas did in fact years later make the leap:

Personal sympathy and concordance in many central issues brought us together; but there was one obstacle to a loving and lasting friendship—namely, the personal Christian God. Early impressions, environments, and the beliefs still dominating this entire nation held sway over Douglass. The ray of light of German atheism had never reached him, while I, thanks to natural inclination, training, and the whole influence of German education and literature, had overcome the belief in God at an early age. I experienced this dualism as an unbearable dissonance, and since I not only saw in Douglass the ability to recognize intellectual shackles but also credited him with the courage and integrity to discard at once the old errors and, in this one respect, his entire past, his lifelong beliefs, I sought refuge with you. In the English translation by Mary Anne Evans we read the Essence of Christianity together, which I, too, encountered for the first time on that occasion. This book—for me one of the greatest manifestations of the human spirit—resulted in a total reversal of his attitudes. Douglass has become your enthusiastic admirer, and the result is a remarkable progress, an expansion of his horizon, of all his attitudes as expressed especially in his lectures and essays, which are intellectually much more rich, deep, and logical than before. While most of his former companions in the struggle against slavery have disappeared from the public stage since the abolition, and, in a way, have become anachronisms because they lack fertile ideas, Douglass now has reached the zenith of his development. For the satisfaction of seeing a superior man won over for atheism, and through that to have gained a faithful, valuable friend for myself, I feel obliged to you, and I cannot deny myself the pleasure of expressing my gratitude as well as my heartfelt veneration.

Frederick Douglas had first met Ottilie Assing when she traveled to Rochester in 1856 as a German journalist for the prestigious German newspaper Morgenblatt für gebildete Leserto to interview him. She then spent the next 22 summers with the Douglass family, working on articles, the translation project, and tutoring his children.

At the same time, Anna Douglass, Frederick’s wife, was somewhat older than Frederick, illiterate, and ill much of the time. She shared little of her husband’s intellect or interests, and seemed unable to cope with the large household.

Assing, on the other hand, was a passionate abolitionist, was politically astute, and contributed a great deal to Douglass’ work.  The affair was never confined to the domestic sphere, and it was never a secret. For most of their 26 year friendship, when apart, Frederick and Ottilie weekly wrote each other.  Assing was confident that, upon Anna’s death, Douglass would marry her.  However, when Anna died in 1882, Douglass wed another woman – white, bright and 20 years his junior.  Heartbroken and ill with breast cancer, Assing walked into a park, opened a tiny vial and swallowed the potassium cyanide within.  Still, Ottilie left Frederick Douglass as the sole beneficiary in her will.

References:

  • Diedrich, Maria. Love across Color Lines: Ottilie Assing and Frederick Douglass (New York: Hill and Wang, 1999), pp. 259-260. Original German letter published in Ausgewälte Briefe von und an Ludwig Feuerbach, ed. Hans-Martin Sass (Stuttgart: Friedrich Frommann, 1964), vols. 12/13, pp. 365-366.
  • Assing, Ottilie. Radical Passion: Ottilie Assing’s Reports from America and Letters to Frederick Douglass, edited, translated, and introduced by Christoph Lohmann. (New York: Peter Lang, 1999). (New Directions in German American Studies; v. 1)

September 2, 1998 (a Wednesday)

The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and punish.

– Article I of the 1948 UN Convention on the Prevention and Punishment of the Crime of Genocide

Zen stones

Bodies of murdered Tutsis from Rwanda, pulled from Lake Victoria by Ugandan fishermen. The bodies had traveled more than 200 miles by river from Rwanda.

On this date, the International Criminal Tribunal for Rwanda (a court established by United Nations Security Council Resolution 955 on 8 November 1994) found Jean-Paul Akayesu, the former mayor of the small Rwandan town of Taba, guilty of 9 counts of genocide and crimes against humanity (Prosecutor v. Jean-Paul Akayesu, ICTR-96-4), marking the first time that the 1948 law banning genocide was enforced. Because mass killings had occurred in several countries since the law went into effect, the UN received heavy criticism for waiting 50 years before finally enforcing it.

After the Rwandan genocide began on April 7, 1994, Akayesu initially kept his town out of the mass killing, refusing to let militia operate there and protecting the local Tutsi population. But following an April 18 meeting of mayors with interim government leaders (those who planned and orchestrated the genocide), a fundamental change took place in the town and apparently within Akayesu. He seems to have calculated that his political and social future depended on joining the forces carrying out the genocide. Akayesu exchanged his business suit for a military jacket, literally donning violence as his modus operandi: witnesses saw him incite townspeople to join in the killing and turn former safe havens into places of torture, rape, and murder.

Sentencing occurred on October 2, 1998, when Jean-Paul Akayesu was given life imprisonment for his role in the deaths of 2,000 Tutsis who had sought his protection, as well as 80 years in prison for other violations, including rape. Although Akayesu claimed that he was powerless to stop the killings, Judge Laity Kama ruled that the mayor was “individually and criminally responsible for the deaths.” The ruling not only marked the first time a guilty verdict was handed down on the basis of the 1948 Genocide Convention, but also the first time in international law that mass rape was considered an “act of genocide.” This judgement was upheld on appeal.

References:

August 19, 1920 and the Politics of the Mormon Church

Man is, or should be, woman’s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. . . . The paramount destiny and mission of women is to fulfill the noble and benign offices of wife and mother. This is the law of the Creator.

— Justice Joseph P. Bradley, Bradwell v. State of Illinois 83 US 130: 141 (1872)

Zen stones

Men and women are equal.

Following the passage of the Nineteenth Amendment, which extended suffrage to women on this date (19 August 1920), some believed that the U.S. Constitution should be amended to guarantee full rights for women in all aspects of life, from employment to education to divorce to property ownership. The Equal Rights Amendment (ERA) to the Constitution was originally written by Alice Paul in 1921 and first proposed in the United States Congress in December 1923. It was promoted by Paul and the National Women’s Party, but opposed by many of their colleagues who had worked to pass the Nineteenth Amendment. The ERA would have eliminated protective legislation which for years reformers had sought for female industrial workers. But Paul was determined that women should be treated as individuals under the law just as men were, not as a class subject to mass governmental regulation. The wording of the proposed ERA was simply:

Men and women shall have equal rights throughout the United States and every place subject to its jurisdiction.

Congress shall have power to enforce this article by appropriate legislation.

Needless to say, the ERA was not ratified.

Many believed equality was already guaranteed by the Fourteenth Amendment, a belief reinforced in 1963 by the President’s Commission on the Status of Women, which concluded that an equal rights amendment was redundant because of provisions of the Fourteenth and Fifteenth Amendments. National polls, however, indicated that feminists believed in the necessity of an ERA.

In 1971, the ERA was reintroduced into Congress with the same language as Paul’s original document:

Sec. 1: Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.

Sec. 2: The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

Sec. 3: This amendment shall take effect two years after the date of ratification.

It passed the U.S. Senate and then the House of Representatives, and on 22 March 1972, the proposed 27th Amendment to the Constitution was sent to the states for ratification, getting twenty-two of the necessary thirty-eight state ratifications in that first year. Most of these were states which had already resolved in favor of women’s rights by enacting equal protective labor legislation for men and women. But the pace slowed as opposition began to take its toll — only eight ratifications in 1973, three in 1974, one in 1975, and none in 1976. By 1976, 34 states had ratified the ERA; only four more were needed to make it part of the Constitution.

The attack against the ERA seemed, at times, alarmist and hysterical. Equation of the ERA with sexual permissiveness, abortion, child care, homosexuality, and unisexuality drew the debate away from the constitutional principal of equality to issues of “traditional family values.” But the attack did reflect the fears of many about the changing roles of women and men and about the changing form of the family. There seemed to be danger in equality for the ideological/cultural concept of the father as head and provider, mother as nurturer and manager, and children as replicas into the next generation. Many feared the equality would make women more vulnerable and exposed, that men would feel freer to abandon family responsibilities.

Then the Mormons got involved. The fears of anti-ERA opponents prompted the Mormon Church (male) leadership to join their financial resources, promotional skills, and broad network of members to the anti-ERA movement. In October 1976, the First Presidency of the Church of Jesus Christ of Latter-day Saints (LDS) issued a statement against the ERA, concerned it “could indeed bring [women] far more restraints and repressions. We fear it will even stifle many God-given feminine instincts.” This denunciation had a nearly immediate impact in Idaho, home to a relatively large Mormon electorate. The Idaho legislature had previously given the ERA the requisite two-thirds approval, but this was undone by a January 1977 referendum in which a popular majority opposed the amendment. In December 1976, the Church leadership urged all stake and mission presidencies to “to join others in efforts to defeat the ERA”, leading to LDS-coordinated efforts against the ERA in twenty-one states.

The LDS Temple in Salt Lake City, Utah.

Next, the Church mobilized Mormons to participate in the state-level International Women’s Year (IWY) conferences taking place around the country. Mormon women in numerous states worked to block pro-ERA resolutions at IWY conferences. The process was top-down, and controlled by the Church’s leadership. In Utah, for example, fourteen thousand Mormons attended the conference, voting down every proposal in the meeting including anti-pornography measures and calls for world peace. In Hawaii, Mormon women received these written instructions: “Report to Traditional Values Van, sign in, pick up dissent forms. Sit together. Stay together to vote. Ask Presidency for help if needed.” At other state conferences, male Mormon coordinators staked out various rooms and informed their compatriots when a particular vote was pending; the Mormon women in attendance then rushed in to participate. This kind of discipline and cohesion allowed Mormon women to dominate conferences in states where their total numbers were quite small. For example, Mormons represented about four percent of the total populations of Washington and Montana, but accounted for half or more of the women attending each state’s IWY gathering. And in both Washington and Montana, every proposed pro-ERA resolution was defeated.

In typical grassroots fashion, ward bishops solicited donations to support the anti-ERA effort, speeches against the amendment were deemed appropriate at all Church meetings, and Church buildings were used as anti-ERA literature distribution centers. Church-sponsored anti-ERA organizations operated in Florida, Nevada, North and South Carolina, Missouri, Illinois and Arizona.

As the official voice of the Church, the Ensign published articles clarifying the Church’s position, speeches about ratification given by Church leaders in different locations, and official policy statements that left no room for misinterpretation. Bishops, stake presidents, teachers, and women read them in classes, and official press packets were distributed widely to local newspapers, television personalities, and other individuals in the media. The First Presidency reaffirmed its opposition to the ERA in a statement dated 24 August 1978 in which it said, “Its deceptively simple language deals with practically every aspect of American life, without considering the possible train of unnatural consequences which could result because of its very vagueness — encouragement of those who seek a unisex society, an increase in the practice of homosexual and lesbian activities, and other concepts which could alter the natural, God-given relationship of men and women.” In March 1980, the Church went all out with the publication of The Church and the Proposed Equal Rights Amendment: A Moral Issue.

Lists of pro-ERA legislators were posted in the hallways of meetinghouses, and even sample letters of opposition one might send to their legislators were posted as well. At Relief Society or Sunday School, petitions were circulated and delivered to state legislators. One petition read in part: “We consider the Equal Rights Amendment a nonpartisan issue and will, in the 1979 elections, vote only for those candidates who oppose ratification of the Equal Rights Amendment.” Here, too, the Mormons’ limited numbers belied their ultimate effect: by one estimate, they generated 85 percent of the anti-ERA mail sent in Virginia, where they made up only one percent of the population.

An article by Jessica Longaker entitled, “Mormon Family Values and the Role of Women in LDS,” might help explain why the Mormon Church entered politics to defeat the ERA:

Polygamous marriage is basically essential to Mormon theology. Mormon Doctrine states that God was once a human man, and “He is now a glorified, resurrected Personage having a tangible body of flesh and bones”. As a matter of fact, “all gods first existed as spirits, came to an earth to receive bodies, and then, after having passed through a period of probation on the aforesaid earth, were advanced to the exalted position they now enjoy”. After death, a good Mormon man who has followed a few certain rules is catapulted to this same status and receives his own planet to populate and rule over. To receive this honor, a man must be “married for eternity” in the Mormon temple. This special marriage is binding after death as well as until it.

“Celestial” marriage, as this eternal marriage is often called, is essential for Mormon women. Without being celestially married to a holder of the priesthood, a woman cannot be “saved”. Mary Ettie Smith, a Mormon woman who left the church and Utah in 1856, said that “women do not amount to much in themselves,” and that women in those times were often celestially married to men they had no intention of ever living with, so that they could have a man who would be able to get them into heaven.

(. . .)

Girls and boys are also told that a good and proper Mormon home is a patriarchal one. A handbook written for fourteen year old boys states that, “The patriarchal order is of divine origin and will continue throughout time and eternity”. Husbands conduct family prayers, bless their wives and children, and generally control the household. They also are in charge of “family home evening”, one night per week set aside for family prayer and togetherness. The Mormon belief is that Eve’s roles in life, those of help-meet and child-bearer, set the pattern for all of her daughters. Girls are told that God wants them at home, and boys are never taught to clean up after themselves, since when their mothers stop doing it for them, their wives will take over the job. These ideas, at least, have not changed at all since the nineteenth century.

(. . .)

The Mormon church of today is still clinging to the beliefs of the nineteenth century; ideas which are becoming more outmoded every day. A few women in the Mormon church are trying to make a difference, but they are usually swiftly excommunicated. . . . Feminists are described as “the Pied Pipers of sin who have led women away from the divine role of womanhood down the pathway of error”. Obviously, the Mormon church is not going to alter its views on women in the immediate future. It is questionable whether it is even possible for Mormonism to equalize the roles of men and women, because the oppression of women is so integral to the religion. Men and women cannot truly become equal in the church, for the basic tenets of Mormonism are so fraught with sexism that equality would change the religion beyond recognition.

Some Mormons favored the ERA. Most notably, Sonia Johnson emerged as a pro-ERA Mormon leader, co-founding Mormons for ERA in 1977. She testified in 1978 in support of the ERA before the Senate Subcommittee on Constitutional Rights, upsetting Mormon Senator Orrin Hatch. Testifying again in August 1979 before the Subcommittee, she asked Hatch how the Church’s statement against the ERA could discuss the “exalted role of woman in our society” while leaving women in a secondary status “where equality does not even pertain. . . . One wonders if the leaders of the church would gladly exchange their sex and become so exalted.” In September 1979, she further raised concerns of Church leaders when she spoke to the American Psychological Association on “Patriarchal Panic: Sexual Politics in the Mormon Church“. The key paragraph of the speech centered on her cause:

But women are not fools. The very violence with which the [Mormon] brethren attacked an amendment which would give women human status in the Constitution abruptly opened the eyes of thousands of us to the true source of our danger and our anger. This open patriarchal panic against our human rights raised consciousness miraculously all over the church as nothing else could have done. And revealing their raw panic at the idea that women might step forward as goddesses-in-the-making with power in a real — not a “sub” or “through men” — sense was the leaders’ critical and mortal error, producing as it did a deafening dissonance between their rhetoric of love and their oppressive, unloving, destructive behavior.

Sonia Johnson

It was in this speech that Johnson crossed the line between equal civil rights and the patriarchal system of the Mormon Church, a border also blurred by the Church by identifying the ERA as a moral issue upon which the Church could take political action (in harmony with the 29 June 1979 statement of the First Presidency which explained that moral issues, so identified by the First Presidency and Council of Twelve, may be “worthy of full institutional involvement”). Later in the “Patriarchal Panic” speech, Johnson said:

The Mormons, a tiny minority, are dedicated to imposing the Prophet’s moral directives upon all Americans, and they may succeed if Americans do not become aware of their methods and goals. Because the organization of the church is marvelously tight, and the obedience of the members marvelously thoroughgoing, potentially thousands of people can be mobilized in a very short time to do–conscientiously–whatever they are told, without more explanation than “the Prophet has spoken.”

But Mormon anti-ERA activity, though organized and directed through the hierarchy of the church from Salt Lake down through regional and local male leaders, is covert activity not openly done in the name of the church. Members are cautioned not to reveal that they are Mormons or organized by the church when they lobby, write letters, donate money, and pass out anti-ERA brochures door to door through whole states. Instead, they are directed to say they are concerned citizens following the dictates of their individual consciences. Since they are, in fact, following the very dictates of the Prophet’s conscience and would revise their own overnight if he were to revise his, nothing could be further from the truth.

The Mormon church began disciplinary proceedings against Sonia Johnson after she delivered the above speech. She was excommunicated from the LDS Church, after a perfunctory Church trial, a little over three months later. It was not her pro-ERA beliefs that caused her conflict with the LDS Church but her opposition to its political activities in relation to the ERA.

While it might be going too far to say that the Mormon Church killed the ERA, it certainly put the amendment on life support. True, Mormons made common cause with conservative Catholics and Protestant fundamentalists in their battle against the ERA, a collaboration that paved the way for the political sector now broadly known as the religious right. But without the Mormon Church’s timely intervention and efficient opposition, the amendment probably would have passed. In any case, it is clear that the network of LDS wards and stakes coalesced into a tax-subsidized political machine, energetically fund-raising and mobilizing campaign volunteers to influence public policy.

Suggested Reading:

  • Sonia Johnson, From Housewife to Heretic: One Woman’s Struggle for Equal Rights and Her Excommunication from the Mormon Church (Garden City, New York: Anchor Press/Doubleday, 1983).
  • Richard S. Van Wagoner, Mormon Polygamy: A History (Salt Lake City, Utah: Signature Books, 1992).
  • Linda King Newell and Valeen Tippetts Avery, Mormon Enigma: Emma Hale Smith (Chicago: University of Illinois Press, 1994).
  • Martha Sonntag Bradley, Pedestals and Podiums: Utah Women, Religious Authority, and Equal Rights (Salt Lake City, Utah: Signature Books, 2005)

August 15, 2001 (a Wednesday)

Education

On this date, the United States Court of Appeals for the Sixth Circuit ruled in Hardy v. Jefferson Community College, 260 F.3d 671 (6th Cir. 2001). Kenneth E. Hardy, a white adjunct professor at Jefferson Community College in Kentucky, had sued Richard Green, who was the college president, and Mary Pamela Besser, a dean, in their individual capacities in 1999 for violating his first-amendment rights after the college told him it was not renewing his appointment because “there were no courses available for him to teach.”  Interestingly, the administrators were represented by John G. Roberts, Jr., who became Chief Justice of the U.S. Supreme Court in September, 2005.

Scales of Justice

Background. The professor had regularly taught two communication courses at the college, receiving outstanding student evaluations and strong supervisory reviews. During the professor’s fourth year, a black student complained to him about class discussions examining words used to demean minorities. The professor apologized to her for any discomfort the language may have caused her, but she complained to a local minister active in civil rights, who subsequently raised the matter with the college president. Although the administration had informed Hardy before this controversy that he was scheduled to teach three courses in the fall, the administration later did not renew his appointment, claiming no classes were available.

Decision. When the college tried to get Hardy’s suit dismissed, an appeals court ruled in the professor’s favor, recognizing the importance of academic freedom at community colleges by stating:

In balancing the competing interests involved, we must take into account the robust tradition of academic freedom in our nation’s post-secondary schools…The 1st Amendment tolerates neither laws nor other means of intimidation that cast a pall of orthodoxy over the free exchange of ideas in the classroom.

Perhaps most significant was the court’s unwritten holding that the First Amendment right of academic freedom applies to faculty members at public institutions, whether those faculty members are tenured or not.

In April of 2002, the U.S. Supreme Court let the ruling stand by refusing to hear the case. Roberts, the lawyer representing Mr. Green and Ms. Besser, trivialized the justices’ action, claiming it doesn’t mean that they think the lower court’s decision is wrong. “It just means that they don’t want to get involved,” he said.

Although Hardy died of lung cancer on June 8, 2002, Adrienne Regnier, his widow and a Jefferson College philosophy professor, continued with her husband’s case. “Ken was teaching about language and about how it can be used to abuse, to alienate, to oppress others,” said Regnier. “That was Ken’s lesson: that this is the worst word you can ever call anybody, that it’s worse than any other word you can think of.” Ironically, she believes her late husband and the Louisville civil-rights leader who spoke against him actually shared enormous common ground. Describing her late husband as a “rabid anti-racist” who routinely attended anti-Klan rallies, Regnier added, “Ken and (the civil rights leader) were on the very same side. But because of a knee-jerk reaction, at least some people are left with the mistaken impression that Ken was a racist.”

August 6, 1945 (a Monday)

THE ATOMIC BOMBING OF HIROSHIMA: WHY?…

The basic moral decision that the Americans had to make during [World War II] was whether or not they would violate international law by indiscriminately attacking and destroying civilians, and they resolved that dilemma within the context of conventional weapons. Neither fanfare nor hesitation accompanied their choice, and in fact the atomic bomb used against Hiroshima was less lethal than massive fire bombing.

– American historian Gabriel Kolko, The Politics of War (1990), pp. 539–40.

…in [July] 1945… Secretary of War Stimson, visiting my headquarters in Germany, informed me that our government was preparing to drop an atomic bomb on Japan. I was one of those who felt that there were a number of cogent reasons to question the wisdom of such an act… the Secretary, upon giving me the news of the successful bomb test in New Mexico, and of the plan for using it, asked for my reaction, apparently expecting a vigorous assent.

During his recitation of the relevant facts, I had been conscious of a feeling of depression and so I voiced to him my grave misgivings, first on the basis of my belief that Japan was already defeated and that dropping the bomb was completely unnecessary, and secondly because I thought that our country should avoid shocking world opinion by the use of a weapon whose employment was, I thought, no longer mandatory as a measure to save American lives. It was my belief that Japan was, at that very moment, seeking some way to surrender with a minimum loss of ‘face’. The Secretary was deeply perturbed by my attitude…

Dwight D. Eisenhower, Mandate For Change, p. 380

…the Japanese were ready to surrender and it wasn’t necessary to hit them with that awful thing.

Dwight D. Eisenhower, “Ike on Ike”, Newsweek, 11 November 1963.

It is my opinion that the use of this barbarous weapon at Hiroshima and Nagasaki was of no material assistance in our war against Japan. The Japanese were already defeated and ready to surrender because of the effective sea blockade and the successful bombing with conventional weapons.

The lethal possibilities of atomic warfare in the future are frightening. My own feeling was that in being the first to use it, we had adopted an ethical standard common to the barbarians of the Dark Ages. I was not taught to make war in that fashion, and wars cannot be won by destroying women and children.

– Admiral William D. Leahy, the Chief of Staff to Presidents Franklin Roosevelt and Harry S. Truman, I Was There, p. 441.

I think that the Japanese were ready for peace, and they already had approached the Russians and, I think, the Swiss. And that suggestion of [giving] a warning [of the atomic bomb] was a face-saving proposition for them, and one that they could have readily accepted.

(…)

In my opinion, the Japanese war was really won before we ever used the atom bomb. Thus, it wouldn’t have been necessary for us to disclose our nuclear position and stimulate the Russians to develop the same thing much more rapidly than they would have if we had not dropped the bomb.

– Under Secretary of the Navy Ralph Bird, “War Was Really Won Before We Used A-Bomb”, U.S. News and World Report, 15 August 1960, pp. 73-75.

The Japanese had, in fact, already sued for peace before the atomic age was announced to the world with the destruction of Hiroshima and before the Russian entry into war… The atomic bomb played no decisive part, from a purely military standpoint, in the defeat of Japan.

– Fleet Admiral Chester W. Nimitz, Commander in Chief of the U.S. Pacific Fleet, The New York Times, 6 October 1945.

Major General Curtis E. LeMay: The war would have been over in two weeks without the Russians entering and without the atomic bomb.
The Press: You mean that, sir? Without the Russians and the atomic bomb?
LeMay: The atomic bomb had nothing to do with the end of the war at all.

Press conference on 20 September 1945, reported in The New York Herald Tribune; quoted in Gar Alperovitz, The Decision To Use the Atomic Bomb, p. 336.

The first atomic bomb was an unnecessary experiment… It was a mistake to ever drop it… [the scientists] had this toy and they wanted to try it out, so they dropped it… It killed a lot of Japs, but the Japs had put out a lot of peace feelers through Russia long before.

– Admiral William F. Halsey, Jr., Commander U.S. Third Fleet, public statement in 1946; quoted in Gar Alperovitz, The Decision To Use the Atomic Bomb, p. 331.

The greatest obstacle to unconditional surrender by the Japanese is their belief that this would entail the destruction or permanent removal of the Emperor and the institution of the Throne. If some indication can now be given the Japanese that they themselves, when once thoroughly defeated and rendered impotent to wage war in future, will be permitted to determine their own future political structure, they will be afforded a method of saving face without which surrender will be highly unlikely.

(…)

Those who hold that the Emperor and the institution of the Throne in Japan are the roots of their aggressive militarism can hardly be familiar with the facts of history…

– Acting Secretary of State Joseph C. Grew in conversation with President Truman on 28 May 1945; quoted in United States Department of State / Foreign relations of the United States : diplomatic papers, 1945. The British Commonwealth, the Far East, pp. 545-46.

His Majesty the Emperor, mindful of the fact that present war daily brings greater evil and sacrifice upon peoples of all belligerent powers, desires from his heart that it may be quickly terminated. But so long as England and United States insist upon unconditional surrender in Great East Asian War, Empire has no alternative but to fight on with all its strength for honour and existence of Motherland. His Majesty is deeply reluctant to have any further blood lost among people on both sides and it is his desire, for welfare of humanity, to restore peace with all possible speed…

It is the Emperor’s private intention to send Prince Konoe to Moscow as a Special Envoy with a letter from him containing the statements given above. Please inform [Soviet Foreign Commissar] Molotov of this and get the Russians’ consent to having the party enter the country.

– Text of message from Japanese Foreign Minister Togo Shigenori to Japan’s Ambassador Sato in Moscow for delivery to the Russians before the Potsdam conference opened, intercepted on 12 July 1945 and decoded by the U.S. Navy; quoted in Tsuyoshi Hasegawa, Racing the Enemy, p. 124. The intercept was rushed to Potsdam on 13 July 1945 in a locked pouch. The significance of this latest intercept was not lost on the few Americans privileged to read it, among them Navy secretary James V. Forrestal; the pages of his diary relating to it were removed after his death and classified top secret for the next thirty years.

Influential press and radio commentators are increasingly calling for a statement to supplement — or to succeed — the “unconditional surrender” formula; and public opinion polls indicate considerable willingness to accept less than unconditional surrender, since nearly a third of the nation would “try to work out a peace” with Japan on the basis of Japanese renunciation of all conquests… These polls also suggest that a considerable portion of the public would not insist upon the conquest of the Japanese homeland before any effort is made to reach a peace settlement — provided Japanese power is ended in the Pacific islands and in Asia.

– A study by the State Department Office of Public Opinion Studies on “Current Public Attitudes Toward the Unconditional Surrender of Japan” dated 16 July 1945; quoted in Gar Alperovitz, The Decision To Use the Atomic Bomb.

Generalissimo Joseph Stalin: Last night the Russian delegation was given a copy of the Anglo-American declaration [the Potsdam Proclamation] to the Japanese people. We think it our duty to keep each other informed. I inform the Allies of the message that I received from the Japanese Emperor through the Japanese ambassador. I sent a copy of my answer to this peace plea which was in the negative. I received another communication informing me more precisely of the desire of the Emperor to send a peace mission headed by Prince Konoye who was stated to have great influence in the Palace. It was indicated that it was the personal desire of the Emperor to avoid further bloodshed [see above]… Our answer of course will be negative.
President Truman: I appreciate very much what the Marshal has said.

Conversation during the Potsdam Conference on 28 July 1945; quoted in United States Department of State / Foreign relations of the United States: diplomatic papers: the Conference of Berlin (the Potsdam Conference), 1945, p. 467. Truman, to whom all this was known from the codebreakers anyway, immediately changed the subject.

…the Potsdam declaration in July, demand[ed] that Japan surrender unconditionally or face “prompt and utter destruction.” MacArthur was appalled. He knew that the Japanese would never renounce their emperor, and that without him an orderly transition to peace would be impossible anyhow, because his people would never submit to Allied occupation unless he ordered it. Ironically, when the surrender did come, it was conditional, and the condition was a continuation of the imperial reign. Had the General’s advice been followed, the resort to atomic weapons at Hiroshima and Nagasaki might have been unnecessary.

William Manchester, American Caesar: Douglas MacArthur 1880-1964, p. 512.

MacArthur’s views about the decision to drop the atomic bomb on Hiroshima and Nagasaki were starkly different from what the general public supposed… When I asked General MacArthur about the decision to drop the bomb, I was surprised to learn he had not even been consulted. What, I asked, would his advice have been? He replied that he saw no military justification for the dropping of the bomb. The war might have ended weeks earlier, he said, if the United States had agreed, as it later did anyway, to the retention of the institution of the emperor.

Norman Cousins, a consultant to General MacArthur during the American occupation of Japan, The Pathology of Power, pp. 65, 70-71.

I have always felt that if, in our ultimatum to the Japanese government issued from Potsdam [in July 1945], we had referred to the retention of the emperor as a constitutional monarch and had made some reference to the reasonable accessibility of raw materials to the future Japanese government, it would have been accepted. Indeed, I believe that even in the form it was delivered, there was some disposition on the part of the Japanese to give it favorable consideration. When the war was over I arrived at this conclusion after talking with a number of Japanese officials who had been closely associated with the decision of the then Japanese government, to reject the ultimatum, as it was presented. I believe we missed the opportunity of effecting a Japanese surrender, completely satisfactory to us, without the necessity of dropping the bombs.

John McCloy, Assistant Secretary of War; quoted in James Reston, Deadline, p. 500.

[A clearer assurance that the Emperor would not be displaced] was omitted from the Potsdam declaration and as you are undoubtedly aware was the only reason why it was not immediately accepted by the Japanese who were beaten and knew it before the first atomic bomb was dropped.

– Rear Admiral L. Lewis Strauss, in a private letter to Navy historian Robert G. Albion; quoted in Gar Alperovitz, The Decision To Use the Atomic Bomb, p. 393.

If we consider international agreement on total prevention of nuclear warfare as the paramount objective, and believe that it can be achieved, this kind of introduction of atomic weapons [on Japan] to the world may easily destroy all our chances of success. Russia… will be deeply shocked. It will be very difficult to persuade the world that a nation which was capable of secretly preparing and suddenly releasing a weapon, as indiscriminate as the rocket bomb and a thousand times more destructive, is to be trusted in its proclaimed desire of having such weapons abolished by international agreement.

…looking forward to an international agreement on prevention of nuclear warfare – the military advantages and the saving of American lives, achieved by the sudden use of atomic bombs against Japan, may be outweighed by the ensuing loss of confidence and wave of horror and repulsion, sweeping over the rest of the world…

From this point of view a demonstration of the new weapon may best be made before the eyes of representatives of all United Nations, on the desert or a barren island. The best possible atmosphere for the achievement of an international agreement could be achieved if America would be able to say to the world, “You see what weapon we had but did not use. We are ready to renounce its use in the future and to join other nations in working out adequate supervision of the use of this nuclear weapon.”

(…)

We believe that these considerations make the use of nuclear bombs for an early, unannounced attack against Japan inadvisable. If the United States would be the first to release this new means of indiscriminate destruction upon mankind, she would sacrifice public support throughout the world, precipitate the race of armaments, and prejudice the possibility of reaching an international agreement on the future control of such weapons. [emphasis in original]

Memorandum on “Political and Social Problems” from Members of the “Metallurgical Laboratory” of the University of Chicago to Sec. of War Henry Stimson [“The Franck Report“], dated 12 June 1945, U.S. National Archives, Washington D.C.: Record Group 77, Manhattan Engineer District Records, Harrison-Bundy File, folder #76.

I don’t believe in speculating on the mental feeling and as far as the bomb is concerned I ordered its use for a military reason — for no other cause — and it saved the lives of a great many of our soldiers. That is all I had in mind.

– President Harry S. Truman; excerpt from Transcript of Interview by William Hillman and Morton Roysewith with former President Truman, Post-Presidential File, ca. 1955, Truman Papers, Harry S. Truman Library.

The atomic bomb… is far worse than gas and biological warfare because it affects the civilian population and murders them by the wholesale.

Harry S. Truman to Thomas Murray, 19 January 1953, President’s Secretary’s Files (PSF), Harry S. Truman Library.

Zen stones

Hiroshima Before and After Aerial Photos

Nakajima Honmachi District Before and After

 

On this date during World War II, at 8:15 AM local time an American B-29 bomber dropped the world’s first deployed atomic bomb, dubbed “Little Boy”, over the Japanese city of Hiroshima. The explosion wiped out 90 percent of the city and immediately killed 80,000 people; tens of thousands more would later die of radiation exposure.

On the same day, Truman released a press statement announcing the atomic bombing, in which he described Hiroshima as an “important Japanese Army base”, when in fact it was a city composed almost entirely of civilians. [As J. Samuel Walker has noted, if Hiroshima had been a more important military target, it likely would have suffered conventional bombing before August 6 — the fact that it was still intact was in part a reflection of its lack of military presence.] Moreover, his statement used terms which described the atomic bomb as similar to a high-explosive weapon, making no mention of the fact that it was also a radiation weapon. Its radiological effects made the atomic bomb worse than poison gas whose use was prohibited by international law.

A photo prepared by U.S. Air Intelligence for analytical work on destructiveness of atomic weapons. The total area devastated by the atomic strike on Hiroshima is shown in the darkened area (within the circle) of the photo. The numbered items are various targets with the percentages of total destruction. Notice that all four of the military targets were far from the aiming point for the atomic strike. (Photo from U.S. National Archives, RG 77-AEC).

A photo prepared by U.S. Air Intelligence for analytical work on destructiveness of atomic weapons. The total area devastated by the atomic strike on Hiroshima is shown in the darkened area (within the circle) of the photo. The numbered items are various targets with the percentages of total destruction. Notice that all four of the military targets were far from the aiming point for the atomic strike. (Photo from U.S. National Archives, RG 77-AEC).

In all fairness to Truman, the man most likely was uninformed about the true nature of the atomic bomb. There were certainly physicists who understood that the first atomic bombs would produce significant amounts of radiation and were likely to cause both radiation sickness and nuclear fallout effects. But J. Robert Oppenheimer, scientific director of the Manhattan Project, never seemed to be very interested in that and spoke almost exclusively of the bomb in terms of heat and blast effects. Due to the chain of command, because Oppenheimer didn’t know/care about radiation effects, General Leslie Groves didn’t really, either; if Groves didn’t know/care, then the Target Committee under Groves and the Interim Committee under Secretary of War Henry Stimson didn’t know at all; and if Stimson didn’t know, Truman didn’t know. In fact, after months of public denials that radiation sickness had occurred, Groves famously replied to a question from Senator Millikin at a meeting of the Special Senate Committee on Atomic Energy in late November 1945:

Millikin: General, is there any medical antidote to excessive radiation?
Groves: I am not a doctor, but I will answer it anyway. The radioactive casualty can be of several classes. He can have enough so that he will be killed instantly. He can have a smaller amount which will cause him to die rather soon, and as I understand it from the doctors, without undue suffering. In fact, they say it is a very pleasant way to die. Then, we get down below that to the man who is injured slightly, and he may take some time to be healed, but he can be healed. [emphasis added]

Hiroshima and Nagasaki: Causes and Consequences

Hiroshima and Nagasaki: Causes and Consequences

Interestingly, Yoshito Matsushige, a 32 year old cameraman for the Chugoku Shimbun, was at home a little over 1.6-miles (2.7 km) south of the hypocenter when the bomb detonated, but he was not seriously injured in the blast. Heading out to the center of the city, Matsushige took the only photographs taken of Hiroshima on that calamitous day. He had two rolls of film with twenty-four possible exposures in the 10 hours he spent wandering the devastated city. He lined up one gripping shot after another but he could push the shutter only seven times. When he was done he returned to his home and developed the pictures in the most primitive way, since every darkroom in the city, including his own, had been destroyed. Under a star-filled sky, with the landscape around him littered with collapsed homes and the center of Hiroshima still smoldering in the distance, he washed his film in a radiated creek and hung it out to dry on the burned branch of a tree. But only five of the seven came out right. There are victims in these images, many of whom no doubt died later, but not a single corpse. Only Matsushige knows what the seventeen photos he didn’t take would have looked like. He later testified:

Even though I too was a victim of the same bomb, I only had minor injuries from glass fragments, whereas these people were dying. It was such a cruel sight that I couldn’t bring myself to press the shutter. Perhaps I hesitated there for about 20 minutes, but I finally summoned up the courage to take one picture. Then, I moved 4 or 5 meters forward to take the second picture… I walked through the section of town which had been hit hardest. I walked for close to three hours. But I couldn’t take even one picture of that central area. There were other cameramen in the army shipping group and also at the newspaper as well. But the fact that not a single one of them was able to take pictures seems to indicate just how brutal the bombing actually was. I don’t pride myself on it, but it’s a small consolation that I was able to take at least five pictures.

A makeshift hospital in Hiroshima after the atomic strike. (Intl Cmte of the Red Cross / hist-02959-31)

A makeshift hospital in Hiroshima after the atomic strike. (Intl Cmte of the Red Cross / hist-02959-31)

A few weeks later, the American military confiscated all of the post-bomb prints, just as they seized the Japanese newsreel footage, “but they didn’t ask for the negatives,” Matsushige said. LIFE magazine published Matsushige’s photos on 29 September 1952, hailing them as the “First Pictures – Atom Blasts Through Eyes of Victims”, breaking the long media blackout on graphic images from Hiroshima and Nagasaki.

On 9 August 1945, a second B-29 dropped another A-bomb on Nagasaki, killing an estimated 40,000 people. On 10 August 1945, the Japanese government sent an official protest over the atomic bombing to the U.S. State Department through the Swiss Legation in Tokyo:

Protest against the Attack of a New-Type Bomb by American Airplane

On the 6th of this month, an airplane of the United States dropped a new-type bomb on the urban district of the city of Hiroshima, and it killed and wounded a large number of the citizens and destroyed the bulk of the city. The city of Hiroshima is an ordinary local city which is not provided with any military defensive preparations or establishments, and the whole city has not a character of a military objective. In the statement on the aerial bombardment in this case, the United States President “Truman” asserts that they will destroy docks, factories and transport facilities.

However, since the bomb in this case, dropped by a parachute, explodes in the air and extends the destructive effect to quite a wide sphere, it is clear to be quite impossible in technique to limit the effect of attack thereby to such specific objectives as mentioned above; and the above efficiency of the bomb in this case is already known to the United States. In the light of the actual state of damage, the damaged district covers a wide area, and those who were in the district were all killed indiscriminately by bomb-shell blast and radiant heat without distinction of combatant or non-combatant or of age or sex. The damaged sphere is general and immense, and judging from the individual state of injury, the bomb in this case should be said to be the most cruel one that ever existed.

It is a fundamental principle of international law in time of war that a belligerent has not an unlimited right in choosing the means of injuring the enemy, and should not use such weapons, projectiles, and other material as cause unnecessary pain; and these are each expressly stipulated in the annex of the Convention respecting the Laws and Customs of War on Land and articles 22 and 23(e) of the Regulations respecting the Laws and Customs of War on Land. Since the beginning of the present World War, the Government of the United States has declared repeatedly that the use of poison or other inhumane methods of warfare has been regarded as illegal by the public opinion in civilized countries, and that the United States would not use these methods of warfare unless the other countries used these first.

However, the bomb in this case, which the United States used this time, exceeds by far the indiscriminate and cruel character of efficiency, the poison and other weapons the use of which has been prohibited hitherto because of such an efficiency. Disregarding a fundamental principle of international law and humanity, the United States has already made indiscriminate aerial bombardments on cities of the Empire in very wide areas, and it has already killed and injured a large number of old people, children, and women and collapsed or burned down shrines, temples, schools, hospital and ordinary private houses.

Also, the United States has used the new bomb in this case which has indiscriminate and cruel character beyond comparison with all weapons and projectile of the past. This is a new offense against the civilization of mankind. The Imperial Government impeaches the Government of the United States in its own name and the name of all mankind and of civilization, and demands strongly that the Government of the United States give up the use of such an inhumane weapon instantly.

Japan’s Emperor Hirohito announced his country’s unconditional surrender in World War II in a radio address at noon on August 15, citing the devastating power of “a new and most cruel bomb.”

The Truman administration made extraordinary and largely successful efforts to manage American public perceptions of the atomic attack. During the American occupation of Japan, MacArthur went to great lengths to prevent journalists visiting ground zero and seeing the effects of the bomb, to prevent photographic images and film of the disaster reaching Americans and Europeans, and to suppress scientific assessments of the radiation damage and its long term effects.

Photos of the Prefectural Industrial Promotion Building before (inset) and after the bombing of Hiroshima. The remains were later preserved as the Hiroshima Peace Memorial, Atomic Bomb Dome or Genbaku Dome.

Photos of the Prefectural Industrial Promotion Building before (inset) and after the bombing of Hiroshima. The remains were later preserved as the Hiroshima Peace Memorial, Atomic Bomb Dome or Genbaku Dome.

After World War II, most of Hiroshima would be rebuilt, though one destroyed section was set aside by the City as a reminder to the world of the horrors of nuclear weapons and as a symbol for global peace. This area contains the remains of the Hiroshima Prefectural Industrial Promotion Hall. Since it was located only about 160 meters from the hypocenter, all those inside the building died, but parts of the structure survived the blast. To protect the building from the weather, regular reinforcement and repairs with steel beams and resin injection are performed. Also, frequent seismic assessments and soundness surveys for the dome are implemented.

2013 Hiroshima Peace Memorial Ceremony.

2013 Hiroshima Peace Memorial Ceremony.

The ruin was named Hiroshima Peace Memorial and was made a UNESCO World Heritage Site in 1996, although China and the United States objected — China because “it was the other Asian countries and peoples who suffered the greatest loss in life and property” and the U.S. because a focus on Japan lacked “historical perspective.” Each August 6, thousands of people gather at Hiroshima Peace Memorial Park to join in interfaith religious services commemorating the anniversary of the bombing. Speeches by the Japanese Prime Minister, the Mayor of Hiroshima City, and the representatives of local children are given; then, a one-minute silence for the victims is observed at 8:15 AM, the time of the explosion.

Original location of the Shinran statue that survived the a-bomb blast.

Original location of the Shinran statue that survived the a-bomb blast.

Even after the atomic bombs were dropped on Japan, no international treaty banning or condemning nuclear warfare has ever been ratified. According to F.W. de Klerk, former president of South Africa, “…despite all the lip service that is given to the ideal of nuclear disarmament, South Africa is the only country that has ever voluntarily dismantled an existing nuclear capability. We did so in 1993 and have learned that true security comes from our ability to solve complex problems peacefully rather than by imagining that we can achieve anything by threatening ultimate destruction.”

Statue of Shinran Shonin between 105th and 106th Streets on Riverside Drive, New York City.

Statue of Shinran Shonin between 105th and 106th Streets on Riverside Drive, New York City.

Unlike most of the buildings in Hiroshima, the bronze figure of Shinran Shonin (1173–1263) — the Japanese Buddhist monk who founded Jodo Shinshu (Shin) Buddhism — miraculously survived the devastation. The 15-foot statue had stood 2.5 kilometers northwest from the hypocenter of the detonation of the atomic bomb. It depicts Shinran Shonin in his missionary travel robe as he appeared most of his life propagating the doctrine he developed to reveal the one unobstructed way through which one can become awakened.

Closeup of the face of the Shinran statue.

Closeup of the face of the Shinran statue.

In 1955, the statue was removed from the Hiroshima park, packed into an enormous wooden crate, and shipped to New York City, where it was presented to the New York Buddhist Church on Riverside Drive near 106th Street in Manhattan as a testament to the devastation of the atomic bomb as well as a symbol for hope and world peace.

On 11 September 1955, just over ten years after the bombing of Hiroshima, D. T. Suzuki — one of the most influential figures in introducing Zen Buddhism to the West — gave an eloquent keynote address at the statue’s unveiling ceremony. In this address, I think Suzuki best answers the question, “Why?”, that I began with:

The present state of things as we are facing everywhere politically, economically, morally, intellectually, and spiritually is no doubt the result of our past thoughts and deeds we have committed as human beings through[out] the whole length of history, through aeons of existence, not only individually but collectively — let me repeat, collectively. As such, we are, every one of us, responsible for the present world situation filled with [its] awesome forebodings. The bombing of Hiroshima was not, after all, the doing of the American armies, but the doing of mankind as a whole, and as such, we, not only the Japanese and Americans but the whole world, are to be held responsible for the wholesale slaughter witnessed ten years ago….

As far as I can see, [we must find] the living Shonin who is surely among us answering to the call of his name; only we have not been able to hear his response, our ears have not yet been fully opened innerly as well as outwardly to [that] still small voice….

We must realize that modern civilization is thoroughly oriented towards dehumanizing humanity in every possible way; that is to say, we are fast turning into robots or statues with no human souls. Our task is to get humanized once more.

The statue stands a few blocks from Columbia University, where much of the atomic bomb program began.

References:

  • Gar Alperovitz. The Decision to Use the Atomic Bomb and the Architecture of an American Myth (Vintage, 1995).
  • Norman Cousins. The Pathology of Power (W. W. Norton, 1987).
  • Dwight D. Eisenhower. Mandate for Change, 1953-1956: The White House Years (Garden City, NY: Doubleday & Co, Inc, 1963).
  • Tsuyoshi Hasegawa. Racing the Enemy: Stalin, Truman, and the Surrender of Japan (The Belnap Press of Harvard University Press, 2005).
  • Rachel Hiles, “Humanized Once More“, Tricycle, Vol. 20 No. 4 (Summer 2011). Accessed on 12 August 2013.
  • Gabriel Kolko. The Politics of War: The World and United States Foreign Policy, 1943–1945 (New York, NY: Random House, 1968; 1990 ed. with new afterword).
  • William D. Leahy. I Was There: The Personal Story of the Chief of Staff to Presidents Roosevelt and Truman (Whittlesey House, 1950).
  • Doug Long. “Hiroshima: Was It Necessary?” Accessed online on 6 August 2013.
  • Sean L. Malloy, “‘A Very Pleasant Way to Die': Radiation Effects and the Decision to Use the Atomic Bomb against Japan”, Diplomatic History Vol. 36 No. 3 (June 2012): 515–545.
  • William Manchester. American Caesar: Douglas MacArthur, 1880-1964 (Boston/Toronto: Little, Brown & Company, 1978).
  • Robert Jay Lifton and Greg Mitchell. Hiroshima in America: Fifty Years of Denial (Putnam, 1995).
  • James Reston, Deadline: A Memoir (Random House, 1991).
  • Kyoko Selden and Mark Selden, eds. The Atomic Bomb: Voices from Hiroshima and Nagasaki (Armonk, NY: M. E. Sharpe, 1989).
  • Michael B. Stoff, ed. The Manhattan Project: A Documentary History (Philadelphia: Temple University Press, 1991), pp. 140-147.
  • J. Samuel Walker. Prompt and Utter Destruction: Truman and the Use of Atomic Bombs Against Japan (University of North Carolina Press, 2004), 61-62.

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August 5, 1985 (a Monday)

Jewish slave laborers in the Buchenwald concentration camp near Jena, Germany. Elie Wiesel is on the second row from the bottom, seventh from the left. Reportedly Mel Mermelstein is on the top bunk at the far right. (16 April 1945)

On this date, Long Beach, California businessman Melvin Mermelstein struck a powerful blow against bogus history and historical hoaxes. Mel was awarded a judgment in a California court, in a contract case.

In 1980, the Institute for Historical Review (IHR), a Torrance, California organization that claimed that the planned extermination of Jews by the Nazis was a myth, had offered a $50,000 reward for anyone who could prove that the Holocaust actually happened.

Mermelstein was 17 years old in May, 1944, when he was sent to Auschwitz, the largest of the World War II concentration camps. He was freed from the Buchenwald camp in April, 1945. His parents, two sisters and one brother did not survive the Nazi death camps. He offered his evidence to the IHR: Mermelstein sent the institute a lengthy affidavit recounting how he and his family were arrested in the spring of 1944 and sent to the Auschwitz-Birkenau camp. He described how he witnessed Nazi guards ushering his mother and two sisters and others towards (as he learned later) gas chamber number five.

The Holocaust deniers, of course, had no intention of paying up. They dismissed any evidence offered as inadequate, and continued to claim no one could prove that the Holocaust actually occurred.

Mermelstein, however, knew the law. He knew that the offer of the reward was a sweepstakes, a form of contract. He knew it was a contract enforceable in court. He sued the IHR, contending that the institute reneged on its offer after he submitted proof of the murders. The issue in court would be, was Mermelstein’s evidence sufficient?

Mermelstein’s lawyer, William John Cox, had a brilliant idea. He petitioned the court to take “judicial notice” of the fact of the Holocaust. The doctrine of judicial notice allows courts to recognize as fact something that is so well established that it doesn’t need to be evidenced when it is introduced in court — such as, 2 + 2 = 4, the freezing point of water is 32 degrees Fahrenheit and 0 degrees Celsius, the Earth orbits the Sun, etc.

In a pre-trial hearing on 9 October 1981, Los Angeles County Superior Court Judge Thomas T. Johnson resolved the most controversial part of the case; the court ruled that the Holocaust had occurred. The judge declared:

Under Evidence Code Section 452(h), this court does take judicial notice of the fact that Jews were gassed to death at the Auschwitz Concentration Camp in Poland during the summer of 1944.

(…)

It just simply is a fact that falls within the definition of Evidence Code Section 452(h). It is not reasonably subject to dispute. And it is capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. It is simply a fact.

That ruling meant that, by operation of law, Mermelstein had won the case, obviating the need for a court trial.

“It was the greatest ruling I could have hoped for,” Cox later said. “It would have been very easy for the judge to say the motions on summary judgment are denied. There was no real requirement that he do this…. It was a courageous decision.”

“His taking judicial notice was important, not in that it validated the Holocaust, but it avoided providing Holocaust deniers with a platform to grandstand and to present their historical distortion,” Emory University historian Deborah Lipstadt said.

On 5 August 1985, Judge Robert A. Wenke entered a judgment [archived here] based upon the Stipulation for Entry of Judgment agreed upon by the parties on July 22, 1985. The judgment required IHR and other defendants to pay $90,000 to Mermelstein and to issue a letter of apology to “Mr. Mel Mermelstein, a survivor of Auschwitz-Birkenau and Buchenwald, and all other survivors of Auschwitz” for “pain, anguish and suffering” caused to them.

Mermelstein was portrayed by Leonard Nimoy and Cox was played by Dabney Coleman in a 1991 TV movie about the 1981 lawsuit called Never Forget. Mel wrote of the court battle in his autobiography entitled By Bread Alone: The Story of A-4685 (1979).

[Thanks to Ed Darrell, author of the blog entitled Millard Fillmore’s Bathtub, for bringing Mel Mermelstein to my attention. — Ed.]

References:

August 4, 2010 (a Wednesday)

Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence.

— John Adams, “Argument in Defense of the Soldiers in the Boston Massacre Trials,” December 1770

Zen stones

Scales of Justice

On this date, U.S. District Judge Vaughn R. Walker ruled in Perry v. Schwarzenegger that Proposition 8, the amendment to the California Constitution that banned same-sex civil marriage, was in violation of the U.S. Constitution. The ruling put Walker, a Republican, at the forefront of the gay marriage debate and marked the latest in a long line of high-profile legal decisions for the longtime federal judge. He was appointed by Ronald Reagan in 1987, but his nomination was held up for two years in part because of opposition from gay rights activists. (As a lawyer, he had helped the U.S. Olympic Committee sue a gay ex-Olympian who had created the Gay Olympics, an athletic competition.)

Ironically, most major media organizations, from the New York Times and ABC News to the Washington Post and National Public Radio, have lately reported on Judge Walker as gay or had commentators saying it. In fact, he has never confirmed to anyone in the media what sexual orientation he may be. As Michelangelo Signorile recently pointed out in the Huffington Post:

[T]he outrageous hypocrisy here on the part of the corporate media — and one that shows how they are manipulated by the right — is the fact that, even with proof and evidence, news organizations refuse to report on the secretly gay sexual orientation of conservative, anti-gay politicians and public figures when the argument for their exposure is made from the left. [emphasis added]

Lawyer Brian Levine, an attorney who practices civil litigation in San Francisco, wrote an analysis of the Perry ruling in which he said:

Most of the decision (the first 109 pages) is the “factual findings.” This is crucial, and here’s why. On appeal, Judge Walker’s conclusions of law are basically irrelevant. Questions of law are decided fresh on appeal, and the trial court’s thoughts on the law are entitled to no deference. On the other hand, only a trial court can make factual findings. A Court of Appeal must give great deference to the factual findings of the trial court, especially when those findings are based on the credibility of witness testimony. Judge Walker knows this. He knows that his primary role in this case is to weigh the credibility of the evidence that was presented at trial and apply the facts that were proven to the law. But the law — unlike the facts — ultimately will be decided by nine Justices at a higher pay grade. Consequently, we should be grateful to Judge Walker for carefully and diligently going through the facts of the case, creating a detailed and compelling record for the Court of Appeal and the Supreme Court.

So, the trial court’s findings of fact and rulings on credibility are here to stay, no matter whether Scalia, Thomas, Roberts, or Alito approve of same-sex marriage or not. Lawyer Paul Hogarth, an attorney at the Tenderloin Housing Clinic in San Francisco, identified several important findings of fact, including:

[Fact #] 27. Marriage between a man and a woman was traditionally organized based on presumptions of a division of labor along gender lines. Men were seen as suited for certain types of work and women for others. Women were seen as suited to raise children and men were seen as suited to provide for the family.

(. . .)

[Fact #] 32. California has eliminated marital obligations based on the gender of the spouse. Regardless of their sex or gender, marital partners share the same obligations to one another and to their dependents. As a result of Proposition 8, California nevertheless requires that a marriage consist of one man and one woman.

Homosexual couples and heterosexual couples are equal.

These two factual findings together lead to the logical conclusion that restricting marriage to heterosexual couples is an archaic concept that relies on a presumption that men and women are different, and somehow both indispensable to form a marriage. The times are changing, and justices in the Supreme Court of the United States (SCOTUS) cannot simply “stick their heads in the sand.” Three more factual findings are also noteworthy:

[Fact #] 58. Proposition 8 places the force of law behind stigmas against gays and lesbians, including: gays and lesbians do not have intimate relationships similar to heterosexual couples; gays and lesbians are not as good as heterosexuals; and gay and lesbian relationships do not deserve the full recognition of society.

(. . .)

[Fact #] 67. Proposition 8 singles out gays and lesbians and legitimates their unequal treatment. Proposition 8 perpetuates the stereotype that gays and lesbians are incapable of forming long-term loving relationships and that gays and lesbians are not good parents.

(. . .)

[Fact #] 79. The Proposition 8 campaign relied on fears that children exposed to the concept of same-sex marriage may become gay or lesbian. The reason children need to be protected from same-sex marriage was never articulated in official campaign advertisements. Nevertheless, the advertisements insinuated that learning about same-sex marriage could make a child gay or lesbian and that parents should dread having a gay or lesbian child.

These three factual findings together strongly suggest that Prop 8 was motivated by an irrational fear (animus) toward gays and lesbians. In ruling on Perry, Walker stated:

The evidence at trial regarding the campaign to pass Proposition 8 uncloaks the most likely explanation for its passage: a desire to advance the belief that opposite-sex couples are morally superior to same-sex couples. The campaign relied heavily on negative stereotypes about gays and lesbians and focused on protecting children from inchoate threats vaguely associated with gays and lesbians. . . .

At trial, proponents’ counsel attempted through cross-examination to show that the campaign wanted to protect children from learning about same-sex marriage in school. . . . The evidence shows, however, that Proposition 8 played on a fear that exposure to homosexuality would turn children into homosexuals and that parents should dread having children who are not heterosexual. . . .

The testimony of George Chauncey places the Protect Marriage campaign advertisements in historical context as echoing messages from previous campaigns to enact legal measures to disadvantage gays and lesbians. The Protect Marriage campaign advertisements ensured California voters had these previous fear-inducing messages in mind. The evidence at trial shows those fears to be completely unfounded.

Judge Vaughn R. Walker

Walker correctly recognized that the rhetoric of “defending marriage”, which proponents have always been unable to explain satisfactorily in my view, actually amounts to simply saying that heterosexual couples are morally better than homosexual couples. Note that both Judge Walker in his ruling and David Fleischer in The Prop 8 Report identified the same campaign strategy used by Prop 8 proponents as responsible for the passage of the initiative. Fleischer observed:

Recycling a lie as old as Anita Bryant’s “Save Our Children” campaign in 1977, the anti-gay Yes on 8 campaign whipped up fears about kids to move voters to its side. . . . Yes on 8’s fear-mongering about children was particularly effective because No on 8 waited sixteen of the thirty days remaining until the election was over to directly respond.

Judge Walker’s ruling concluded:

Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians. The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples. . . . Because Proposition 8 disadvantages gays and lesbians without any rational justification, Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment.

Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.

Supporters of same-sex marriage march from San Francisco's Castro neighborhood to celebrate the ruling on Prop 8.

After the ruling was announced, a lawyer on the defense team, Jim Campbell, repeated their familiar but nevertheless misleading refrain:

In America, we should uphold and respect the right of [the] people to make policy changes through the democratic process, especially changes that do nothing more than uphold the definition of marriage that has existed since the founding of this country and beyond.

As a lawyer, Campbell should know better — that the will of the majority is not unlimited. A minority who must depend on the benevolence of those outside of its community is always subject to popular attacks. And as the framers envisioned, the role of the judiciary is to act as “counter-majority” in order to protect minorities from the tyranny of the majority. I remind Campbell and the rest of his defense team of what Thomas Jefferson, the third President of the United States, the author of the Declaration of Independence, and one of the most influential Founding Fathers, said in his first Inaugural Address (1801):

All, too, will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possess their equal rights, which equal law must protect, and to violate would be oppression.

Likewise, John Stuart Mill wrote in 1859 in his famous essay, On Liberty:

The “people” who exercise the power are not always the same people with those over whom it is exercised; and the “self-government” spoken of is not the government of each by himself, but of each by all the rest. The will of the people, moreover, practically means the will of the most numerous or the most active part of the people; the majority, or those who succeed in making themselves accepted as the majority; the people, consequently, may desire to oppress a part of their number; and precautions are as much needed against this as against any other abuse of power. [emphasis in original]

This idea was embedded in a 1943 SCOTUS decision, West Virginia State Board of Education v Barnette (319 US 624). Judge Walker quoted in Perry from the opinion written by Justice Robert Jackson 67 years ago:

One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to [a] vote; they depend on the outcome of no elections.

In the case of West Virginia, the SCOTUS did a rare reversal of itself, acknowledging a mistake it had made in a Jehovah’s Witness case three years earlier. What happened between 1940 and 1943 to Jehovah’s Witnesses gave Judge Walker in 2010 his most potent precedent to show that voter will does not trump the protection of minority rights. Lillian Gobitas was among thousands of Jehovah’s Witness children expelled from public school for not saluting the flag. This religious sect believes that the flag salute is an idolatrous act of worship of a man-made symbol, which is forbidden by their God. Her case, Minersville School District v Gobitis (310 US 586), went to the SCOTUS and a fundamental question was asked: Should a free society force its citizens to engage in patriotic ritual? In 1940, the court answered “Yes.” National unity was at stake. It also said the threat of being expelled from school was a good way to achieve compliance. If anyone felt put out, the court said, he could seek remedy at the ballot box by asking the majority to see it his way.

At the height of World War II, when the U.S. was fighting nationalism in Germany, where Jehovah’s Witnesses were being sent to concentration camps for refusing to do the Nazi salute, the SCOTUS revisited the case. When Justice Jackson got the chance, he tackled the ballot box notion head-on. He wrote that the “very purpose” of the Bill of Rights was to protect some issues from the volatility of politics and “place them beyond the reach of majorities.”

Of course, Walker’s ruling is not the end of Perry v Schwarzenegger; both sides are preparing for an appeal. The appeal would go first to the U.S. Court of Appeals for the Ninth Circuit, then to the SCOTUS if the high court justices agree to review it. And, Prop 8 proponents may ultimately prevail, especially in the SCOTUS as presently constituted. But regardless of the final outcome, even if Prop 8 is ultimately upheld, Judge Walker’s ruling has broken ground in American jurisprudence and I believe his reasoning will someday be affirmed by the nation’s highest court.

August 3, 2007 (a Friday)

Ban the Chinese Government

On this date, in one of history’s more absurd acts of dictatorship and totalitarianism, China’s State Administration for Religious Affairs issued a decree (State Religious Affairs Bureau Order No. 5) that all reincarnations of tülkus of Tibetan Buddhism must get government approval, otherwise they are “illegal or invalid”. The Chinese word for tülku is huófó (活佛), which literally means “living Buddha” and is sometimes used to mean tülku, although this is rare outside of Chinese sources. However, according to the Dalai Lama, “this is wrong. Tibetan Buddhism recognizes no such thing.” Also, in interviews that he has given, the Dalai Lama has frequently dismissed the notion of “living Buddha”, referring to it as “nonsense”. In the context of Tibetan Buddhism, tülku is used to refer to the corporeal existence of enlightened Buddhist masters in general. 

The Chinese decree stated, “It is an important move to institutionalize management on reincarnation of living Buddhas. The selection of reincarnates must preserve national unity and solidarity of all ethnic groups and the selection process cannot be influenced by any group or individual from outside the country.” It also requires that temples which apply for reincarnation of a living Buddha must be “legally-registered venues for Tibetan Buddhism activities and are capable of fostering and offering proper means of support for the living Buddha.”

In other words, China banned reincarnation without government permission. Tibetan Buddhists believe lamas and other religious figures can consciously influence how they are reborn, and often are reborn many times so they can continue their religious pursuits. So, the Chinese government decree, which took effect September 1, 2007, requires that each of these people who plan to be reborn must complete an application and submit it to several Chinese government agencies for approval.

This is what the Chinese Communist Party bosses like to call “religious freedom”. But beyond the irony was China’s true motive: to cut off the influence of the Dalai Lama, Tibet’s exiled spiritual and (at that time) political leader, and to quell the region’s Buddhist religious establishment more than 50 years after China invaded the small Himalayan country. By barring any Buddhist monk living outside China from seeking reincarnation, the law effectively gives Chinese authorities the power to choose the next Dalai Lama, who, by tradition, is reborn to continue the work of relieving suffering.

July 26, 1925 (a Sunday)

William Jennings Bryan in a Dayton pulpit.

On this date, after eating an enormous dinner, William Jennings Bryan, prosecutor in the Scopes Monkey Trial, laid down to take a nap and died in his sleep. Bryan’s personal physician, Dr. J. Thomas Kelly, concluded, “Bryan died of diabetes melitis, the immediate cause being the fatigue incident to the heat and his extraordinary exertions due to the Scopes trial.” Clarence Darrow was hiking in the Smoky Mountains when word of Bryan’s death reached him. When reporters suggested to him that Bryan died of a broken heart, Darrow said, “Broken heart nothing; he died of a busted belly.” In a louder voice he added, “His death is a great loss to the American people.”

Bryan’s death triggered an outpouring of grief from the “common” Americans who felt they had lost their greatest champion. A special train carried him to his burial place in Arlington National Cemetery. Thousands of people lined the tracks. Historian Paul Boyer says, “Bryan’s death represented the end of an era. This man who had loomed so large in the American political and cultural landscape for thirty years had now passed from the scene.”

July 24, 1984 (a Tuesday)

Scales of Justice

On this date, the body of nine-year-old Dawn Venice Hamilton was found in a wooded area of Rosedale, Maryland, near her home. The young girl had been raped and beaten to death with a rock.

After witnesses saw a suspicious man in the area of the murder scene, a police sketch was publicized on television and in newspapers. Two weeks later, an anonymous caller identified Kirk Bloodsworth, a 23-year-old ex-Marine, as the man in the sketch. Bloodsworth, who had been in Baltimore (which is close to Rosedale) at the time of Hamilton’s murder, later returned to his home in Cambridge and told friends that he had done something that would “harm his marriage”.

Prosecutors, with little evidence other than this, accused Bloodsworth of murder. During his trial, the defense presented several witnesses who said that they were with Bloodsworth at the time of the murder, but the state had presented five witnesses who testified that they had seen Bloodsworth with the victim. The jury convicted Bloodsworth in March of 1985 for the brutal killing and sexual assault of the nine year old girl and sent him to death row.

On appeal, Bloodsworth won a new trial, on the ground that the prosecution had withheld evidence indicating that another suspect might have been the killer. A few weeks before the second trial, evidence of yet another suspect was made available to Bloodsworth’s counsel, who chose not to pursue the lead. This time, he was convicted and sentenced to two life terms, to run consecutively.

For the next seven years, Bloodsworth maintained his innocence while in prison. In the meantime, forensic DNA testing had come of age. On Dawn Hamilton’s underwear, police had observed a spot of semen, smaller than a dime, and science had finally progressed to the point where this small amount of physical evidence could be tested. Bloodworth’s attorney, Bob Morin, with support from the Innocence Project, a nonprofit legal clinic formed to promote the use of DNA analysis to exonerate innocent prisoners, persuaded prosecutors in 1992 to compare Bloodsworth’s DNA with the DNA of dried sperm found on the victim. The DNA testing, performed by Forensic Science Associates, a private California laboratory, excluded Bloodsworth.

After the FBI’s crime lab confirmed this test, prosecutors in Baltimore County had no choice but to release Bloodsworth (but pointedly refused to apologize). On 28 June 1993, nine years after first going to jail, Kirk Bloodsworth was released. He was officially pardoned in December 1993. He had spent over eight years in prison, two of those years facing execution.

PCR DNA tests, Bloodsworth case, 1993 (Forensic Science Associates)

In 2003, after much prodding from Bloodsworth and Innocence Project lawyers, Maryland authorities finally searched their DNA database for a “cold hit” match of the evidence in the Dawn Hamilton case. The search turned up Kimberley Shay Ruffner, a convicted rapist who Bloodsworth had known in prison, who was then tried and found guilty of the 1984 murder.

Bloodsworth thus became the first person to be exonerated from death row through postconviction DNA testing. This led to the Justice for All Act of 2004, which included the Innocence Protection Act of 2004 as Title IV, legislation that, among other things, grants any federal inmate the right to petition a federal court for DNA testing to support a claim of innocence. Title IV also established the Kirk Bloodsworth Post-Conviction DNA Testing Grant Program to award grants to States to help defray the costs of post-conviction DNA testing. By August 2004, a total of 144 prisoners, some on death row, had been exonerated by DNA testing.

Most Americans know that there is at least a danger that innocent people will be executed. Yet according to a recent Angus Reid Public Opinion poll (4 Oct 2011), 81% of Americans still support the death penalty for convicted murderers. Many believe that we can ensure that the innocent are never executed if we take further measures — provide competent defense counsel, improve police methods, and so on. But as the Bloodsworth case underlines, this faith in the perfectibility of capital punishment is misplaced. The system can be improved, but it cannot be perfected.

Today, Bloodsworth is an activist for criminal justice reform and a public speaker. Over 30 state and regional innocence projects are at work.

July 21, 1925 (a Tuesday)

Darrow addressing the jury and courtroom spectators.

On this date, the eighth day of the Scopes Monkey Trial began. Before the jury was called to the courtroom, Darrow addressed Judge Raulston, “I think to save time, we will ask the court to bring in the jury and instruct the jury to find the defendant guilty.” This ensured that the defense could appeal the case to a higher court, which might rule the Butler Act unconstitutional. The defense also waived its right to a final address, which, under Tennessee law, deprived the prosecution of a closing statement. This greatly disappointed Bryan, who was unable to deliver a grandiloquent closing speech he had labored over for weeks [archived here].

John Scopes was found guilty of teaching evolution and sentenced to a fine of $100.  After the verdict was read, Scopes delivered his only statement of the trial, declaring his intent “to oppose this law in any way I can. Any other action would be in violation of my ideal of academic freedom — that is, to teach the truth as guaranteed in our constitution, of personal and religious freedom.”  The trial came to an anticlimactic end.

References:

  • John Thomas Scopes, William Jennings Bryan, and Rhea County Court. The world’s most famous court trial: Tennessee evolution case (Cincinnati: National Book Co., 1925).

July 20, 1925 (a Monday)

William Jennings Bryan (seated at left) being questioned by Clarence Darrow (standing at right).

On this date in the Scopes Monkey Trial, assistant defense attorney Arthur Hays rose to summon one more witness – William Jennings Bryan – as an expert on the Bible. Malone, another attorney on the defense team, whispered to John Scopes, “Hell is going to pop now.” Calling Bryan was a highly unusual move, but Bryan agreed with some enthusiasm, stipulating only that he should have a chance to interrogate the defense lawyers. During his examination, Bryan stated his reason for testifying: “These gentlemen…did not come here to try this case. They came here to try revealed religion. I am here to defend it and they can ask me any question they please.” Judge Raulston, concerned that the crowd massing to watch this clash of legal titans would prove injurious to the courthouse, ordered that the trial reconvene on the adjacent lawn.

Darrow examined Bryan for almost two hours, all but ignoring the specific case against Scopes while doing his best to undermine a literalist interpretation of the Bible. After initially contending that “everything in the Bible should be accepted as it is given there,” Bryan conceded that the words of the Bible should not always be taken literally. “[S]ome of the Bible is given illustratively,” he observed. “For instance: `Ye are the salt of the earth.’ I would not insist that man was actually salt, or that he had flesh of salt, but it is used in the sense of salt as saving God’s people.” Although Bryan believed the story of a big fish swallowing Jonah, Joshua making the sun stand still, and other miracles, he conceded that the six days of creation, as described in Genesis, were not literally twenty-four hour days but were probably periods of time lasting many years.

Fundamentalists in the audience listened with increasing discomfort as their champion questioned Biblical “truths,” and Bryan slowly came to realize that he had stepped into a trap. At one point, the frustrated Bryan said, “I do not think about things I don’t think about.” Darrow asked, “Do you think about the things you do think about?” Bryan responded, to the derisive laughter of spectators, “Well, sometimes.” It was an embarrassing and bleak moment in what had been Bryan’s brilliant career.

July 19, 1925 (a Sunday)

Rev. Byrd (left) and Rev. Potter (right), with Byrd's children John and Lillian, in front of the parsonage.

On this date, in the midst of the Scopes Monkey Trial, Rev. Howard Gale Byrd resigned as pastor of the Methodist Episcopal Church North in Dayton, Tennessee when members of his congregation objected because a visiting minister, Rev. Charles Francis Potter of the West Side Unitarian Church in New York City, proposed to preach on the topic of evolution. Potter was adviser on the Bible to Clarence Darrow in his defense of John Scopes. He also gave the opening prayer one morning of the trial.

Raised in a pious evangelical Baptist family, Potter was a precocious boy who by the age of three was able to recite entire Bible passages from memory. Potter accepted a Baptist pastorate in Dover, New Hampshire, in 1908 and another in Mattapan, Massachusetts, in 1910. During Potter’s years as a Baptist preacher he began to question many of the orthodox Christian tenets with which he had been raised. He was increasingly influenced by liberal theological ideas, especially the “higher criticism” of the Bible. In 1914 frustration with Baptist church leaders who questioned his theological views led to his resignation from the Baptist ministry and conversion to Unitarianism.

In 1919 Potter was called to be minister of the West Side Unitarian Church in New York City, where he served from 1920-25. Under Potter’s stimulating leadership the West Side Unitarian Church became a focal point of liberal thought, activity and interpretation of the scriptures. Potter came to national attention in 1923-24 when he participated in a series of radio debates with the formidable fundamentalist Baptist pastor, Rev. John Roach Straton of the Calvary Baptist Church in Manhattan. The debates at Carnegie Hall stirred public interest in the fundamentalist-modernist doctrinal questions that were circulating at the time. They were soon published in four volumes entitled The Battle Over the Bible, Evolution versus Creation, The Virgin Birth—Fact or Fiction?, and Was Christ Both Man and God?

July 17, 1925 (a Friday)

Judge Raulston delivers a ruling.

On this date, Judge John Raulston ruled in the Scopes Monkey Trial that the defense will not be allowed to present expert testimony on evolution or its consistency with Genesis:

This case is now before the court upon a motion by the [prosecution] to exclude from the consideration of the jury certain expert testimony offered by the defendant, the import of such testimony being an effort to explain the origin of man and life. The state insists that such evidence is wholly irrelevant, incompetent and impertinent to the issues pending, and that it should be excluded. Upon the other hand, the defendant insists that this evidence is highly competent and relevant to the issues involved, and should be admitted. . . . In the final analysis this court, after a most earnest and careful consideration, has reached the conclusions that under the provisions of the act involved in this case, it is made unlawful thereby to teach in the public schools of the state of Tennessee the theory that man descended from a lower order of animals. If the court is correct in this, then the evidence of experts would shed no light on the issues. Therefore, the court is content to sustain the motion of the [prosecution] to exclude the expert testimony.

Darrow was livid and accused Raulston of bias. “I do not understand,” said Darrow, “why every suggestion of the prosecution should meet with an endless waste of time, and a bare suggestion of anything that is perfectly competent on our part should be immediately overruled.” Raulston asked Darrow, “I hope you do not mean to reflect upon the court?” Darrow replied, “Well, your honor has the right to hope.” Raulston responded, “I have the right to do something else” and held Darrow in contempt of court. Darrow later apologized for his remark, prompting a big hand from spectators, and Raulston dropped the contempt citation. Darrow and Raulston shook hands.

After expressing concern that the courtroom floor might collapse from the weight of so many spectators, Raulston transferred the proceedings to the lawn outside the courthouse. There, the defense read into the record, for purpose of appellate review, excerpts from the prepared statements of eight scientists and four experts on religion who had been prepared to testify. The statements of the experts were widely reported by the press, helping Darrow succeed in his efforts to turn the trial into a national biology lesson.

July 17, 2011 (a Sunday)

The International Criminal Court in The Hague (ICC/CPI), Netherlands.

The International Criminal Court in The Hague (ICC/CPI), Netherlands.

On 17 July 2011, the world celebrated the first International Criminal Justice Day. This date is the anniversary of the day in July 1998 when the international community made a pledge in Rome to never again allow impunity to reign supreme in the contemporary world by creating the International Criminal Court (ICC). The observance was adopted by the Assembly of the States Parties during the Review Conference of the Rome Statute held in Kampala (Uganda) in June 2010.

The ICC is the first permanent international judicial body in history capable of trying individuals for genocide, crimes against humanity, and war crimes when national courts are unable or unwilling to do so. To date, 139 states have signed and 121 states have ratified the Rome Statute, the international treaty that gave birth to the Court.

Unfortunately, the United States has a recent history of opposition to the ICC. Since Nuremberg, the United States had historically supported international mechanisms to enhance accountability. United States’ President Bill Clinton signed the Rome Statute on 31 December 2000, the last day that it was open for signature. Shortly after the Bush Administration entered office and just before the 1 July 2002 entry into force of the Rome Statute, US President George W. Bush “nullified” the Clinton signature on 6 May 2002, alleging that the United States would no longer be involved in the ICC process and that it did not consider itself as having any legal obligations under the treaty. The legality of such a “nullification” is unclear and the subject of debate by international legal scholars. Since 2002, the Bush Administration undertook a policy of active opposition to the Court through a global campaign to obtain immunity from ICC jurisdiction through a multi-pronged approach.

Under the Obama administration, the United States has shifted its stance. As of November 2009, it has begun attending the Rome Statute’s Assembly of States Parties (ASP) meetings as an observer, signaling a new policy of engagement with the ICC. At the 2010 Review Conference of the ASP, the United States participated fully as an observer.

July 16, 1925 (a Thursday)

John Thomas Scopes, June, 1925.

On this date, lawyers for both sides in the Scopes Monkey Trial debated the issue of whether the defense should be allowed to present expert witnesses. Mr. Darrow said:

We expect to show that [the Bible] isn’t in conflict with the theory of evolution. We expect to show what evolution is, and the interpretation of the Bible that prevails with men of intelligence who have studied it. [Metcalf] is an evolutionist who has shown amply that he knows his subject and is competent to speak, and we insist that a jury cannot decide this important question which means the final battle ground between science and religion—according to our friend here—without knowing both what evolution is and the interpretation of the story of creation.

The prosecution argued that such testimony was irrelevant to Scopes’ guilt or innocence under the statue. Assistant prosecutor Hicks said:

[W]hy admit these experts? Why admit them? It is not necessary. Why admit them? They invade the province of the jury…If they want to make a school down here in Tennessee to educate our poor ignorant people, let them establish a school out here; let them bring down their experts. The people of Tennesee do not object to that, but we do object to them making a school house or a teachers’ institute out of this court. Such procedure in Tennessee is unknown.

Dudley Field Malone countered for the defense, arguing in a thundering voice that the prosecution’s position was borne of the same ignorance “which made it possible for theologians…to bring Old Galilee to trial.” He concluded by saying:

There is never a duel with the truth. The truth always wins and we are not afraid of it. The truth is no coward. The truth does not need the law. The truth does not need the force of government. The truth does not need Mr. Bryan. The truth is imperishable, eternal and immortal and needs no human agency to support it. We are ready to tell the truth as we understand it and we do not fear all the truth that they can present as facts. We are ready. We are ready. We feel we stand with progress. We feel we stand with science. We feel we stand with intelligence. We feel we stand with fundamental freedom in America. We are not afraid. Where is the fear? We meet it, where is the fear? We defy it, we ask your honor to admit the evidence as a matter of correct law, as a matter of sound procedure and as a matter of justice to the defense in this case.

It was a powerful speech. Anti-evolution lawmaker John Washington Butler (who authored the statute Scopes was charged with violating) called it “the finest speech of the century.” Members of the press gave Malone a standing ovation and most courtroom spectators joined in the sustained applause.

July 15, 1925 (a Wednesday)

Drugstore owner Fred Robinson and his family with chimp Joe Mendi (second from left) sipping a Coca-Cola.

On this date, the prosecution in the Scopes Monkey Trial presented its case against the defendant, calling to the stand Rhea County School Superintendent Walter White, two of John Scopes’ students (Howard Morgan and Harry Shelton), and Fred Robinson, who was a drug store owner and head of the school board. When the time came for cross-examination, Darrow went on the offensive. White conceded that the textbook Scopes was accused of using – Hunter’s Civic Biology- was the official biology textbook of the state of Tennessee. The students admitted that learning Darwin’s theory of evolution from their football coach had in no way damaged their faith or their character. Robinson testified that he himself sold copies of the offending textbook in his drugstore where John Scopes had been arrested.

Towards the end of the day, the defense called its first witness, zoology professor Maynard Metcalf, to explain evolution and to prove that even devout Christians accepted evolution; he was not only an evolutionary biologist from Johns Hopkins University but also a Sunday school teacher at his congregational church. The prosecution argued that Metcalf’s scientific testimony was irrelevant, but Judge Raulston had not yet made up his mind so he excused the jurors while Metcalf was initially questioned.

As court ended that day, Bryan handed Darrow a small wooden monkey, a tiny memento of the trial.

July 14, 1925 (a Tuesday)

A trained chimpanzee named Joe Mendi performs for a group of school children outside the home of Mrs. F. Robinson.

On this date, lawyers in the Scopes Monkey Trial argued over whether it is appropriate for Judge Raulston to begin each court session with a prayer. Darrow stated, “I understand from the court himself that he has sometimes opened the court with prayer and sometimes not, and we took no exceptions on the first day, but seeing this is persisted in every session, and the nature of this case being one where it is claimed by the state that there is a conflict between science and religion, above all other cases there should be no part taken outside of the evidence in this case and no attempt by means of prayer or in any other way to influence the deliberation and consideration of the jury of the facts in this case.” Nevertheless, the judge overruled the objection.

An angry Judge Raulston appointed a committee to investigate who leaked to reporters the story that he would not grant the defense’s motion to quash the indictment on constitutional grounds.

"A Venerable Orang-outang", a caricature of Charles Darwin as an ape published in *The Hornet*, a satirical magazine on 22 March 1871.

Outside the courtroom, two chimpanzees and a strange appearing man who was called “the missing link” were brought today to Dayton and attracted large crowds. One of the chimpanzees — named Joe Mendi — wore a plaid suit, a brown fedora, and white spats, and entertained Dayton’s citizens by monkeying around on the courthouse lawn. Apparently, the stunt was designed to “prove” that it was not man who evolved from the anthropoid, but the anthropoid which devolved from man. Mr. Bryan’s eyes sparkled as he gazed at the chimpanzee. “Wonderful!” he said. “Wonderful!” The so-called missing link was Jo Viens, formerly of Burlington, Vermont where, it was said, he was once mascot for the Burlington Fire Department. He was 51 years old, of short stature with a receding forehead and a protruding jaw like that of a simian, and had a peculiar shuffling walk which was said to be like that of an anthropoid. Mr. Nye asserted he was an example of how men “may go down now even as he [mankind] went down ages ago into the anthropoid.”