May 20, 1806 (a Tuesday)

John Stuart Mill

On this date, John Stuart Mill was born in England. Mill, who met Jeremy Bentham as a young man, became a champion of individual liberty. With Bentham, Mill advanced utilitarianism, a philosophy advocating that the role of government is to create the greatest amount of good with the least evil. Mill, known for his clear writing style and compelling logic, advanced and popularized such ideals as social and sexual equality, the public ownership of national resources, and political liberty. Mill was tutored at a tender age by his father, James Mill, who was an agnostic. Mill could not remember a time when he could not read Greek, writing in his autobiography that he started Greek study by age three. Mill wrote in his Autobiography (1873) that his father “impressed upon me from the first, that the manner in which the world came into existence was a subject on which nothing was known: that the question, ‘Who made me?’ cannot be answered, because we have no experience or authentic information from which to answer it; and that any answer only throws the difficulty a step further back, since the question immediately presents itself, Who made God?”

Even as a teenager, Mill wrote a defense of skeptic Richard Carlile, jailed for six years for “blasphemous libel.” After a clerkship in India House, Mill became part of the “philosophic Radicals,” and wrote for number of journals. A System of Logic, in two volumes, came out in 1843, followed by Principles of Political Economy (1848), On Liberty (1859), Utilitarianism (1863), and The Subjection of Women (1869). The latter book was influenced by his wife Harriet Hardy Taylor, a longtime friend whom Mill married in 1851. “Every established fact which is too bad to admit of any other defense is always presented to us as an injunction of religion,” he noted in this work. In On Liberty, a work dedicated to his wife, who died in 1858, Mill rejected a standard of ethics predicated on obedience, or the crushing of individuality, whether by “enforcing the will of God or the injunctions of men.” Mill termed Christianity “essentially a doctrine of passive obedience; it inculcates submission to all authorities found established.”

Mill was a member of Parliament from 1865 to 1868, rising to the defense of Charles Bradlaugh, the atheist politician who had to fight for years to be seated in Parliament. Although Mill’s views were unpopular, Gladstone once referred to Mill as “the saint of Rationalism.” Mill’s Reform Bill of 1867, the first attempt to grant the vote to British women, while unsuccessful, ignited the British suffrage movement. Three essays on religion were published posthumously. In them, Mill hints that he had adopted a Deistic belief in what he termed a “limited liability god,” surprising his freethinking friends. But his strong repudiation of miracles and dogma, while outraging the public, was a seminal defense of rationalism. Mill wrote in Utility of Religion, published in 1874, that belief “in the supernatural . . . cannot be considered to be any longer required. . .” Another famous passage by Mills states:

Religiously wrong [is] a motive of legislation which can never be too earnestly protested against. Deorum injuriae Diis curae. Injustices to the gods are the concern of the gods. It remains to be proved that society or any of its officers holds a commission from on high to avenge any supposed offense to Omnipotence which is not also a wrong to our fellow creatures. The notion that it is one man’s duty that another should be religious was the foundation of all the religious persecutions ever perpetrated, and, if admitted, would fully justify them … A determination not to tolerate others in doing what is permitted by their religion, because it is not permitted by the persecutor’s religion. It is a belief that God not only abominates the act of the misbeliever, but will not hold us guiltless if we leave him unmolested.

The issues Mill dealt with–and did so admirably consistently– are still relevant today. This becomes evident when we feel sure that we can tell where he would have stood on the issues of our day. To borrow the judgement of another great mind and thinker, Isaiah Berlin, Mill’s On Liberty “is still the clearest, most candid, persuasive, and moving exposition of the point of view of those who desire an open and tolerant society.” (Berlin, Four Essays on Liberty, p.201).

May 20, 1996 (a Monday)

Scales of Justice

On this date, the US Supreme Court issued its opinion in the landmark case of Romer v. Evans (517 US 620), declaring unconstitutional an amendment to the Colorado state constitution that prohibited state and local governments from enacting any law, regulation, or policy that would, in effect, protect the civil rights of gays, lesbians, and bisexuals. In its ruling, the Court made clear that moral disapproval does not justify governmental discrimination and shattered the “special rights” rhetoric of those who oppose equal treatment for lesbian, gay, and bisexual people.

Romer marked the first time in its history that the Court recognized lesbians and gay men as worthy and deserving of equal rights. The decision helped stem the tide of antigay initiatives that were spreading across the West in the late 1980s and early 1990s. The case was also important because it laid the groundwork for other important gay rights decisions. Most notably, when the Supreme Court reversed Bowers v. Hardwick and struck down all sodomy laws in Lawrence v. Texas (2003), it said that the “foundations of Bowers have sustained serious erosion from our recent decisions in Casey [a right to privacy case on abortion] and Romer.”

The amendment at issue in Romer v. Evans, known as Amendment 2, was placed on the November, 1992 ballot following a petition drive. The Amendment provided that:

Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination.

The Amendment was promoted by a conservative Christian group called Colorado for Family Values that had formed to repeal all municipal and state laws and regulations prohibiting discrimination based on sexual orientation. There were two conflicting interpretations circulating in Colorado about these ordinances, state laws, and executive orders:

• Colorado for Family Values and other religious conservatives described the regulations as granting “minority status protections to homosexuals, not granted to any other citizens.” That is, the regulations gave special privileges to gays and lesbians that were denied the heterosexual majority and the bisexual minority.
• Gays, lesbians, and others held an opposing view: that these ordinances and laws protected everyone from any discrimination that they might suffer because of their sexual orientation. Specifically, they protect: (1) heterosexuals — the majority of adults who are sexually attracted to members of the opposite gender, (2) homosexuals — a minority of adults who are attracted to persons of the same gender, and (3) bisexuals — a smaller minority who are attracted to persons of both genders. Thus, according to this view, heterosexuals, homosexuals and bisexuals are all protected by antidiscrimination ordinances and laws to the same degree.

Since terms such as “homosexual”, “lesbian”, “gay”, and “bisexual” did not appear anywhere in the ordinances and laws, it seems that the interpretation by gays and others was correct: homosexuals and bisexuals were not given any special privileges by these ordinances and laws. The conservative Christians were factually incorrect. However, they conducted a masterful advertising campaign and Amendment 2 passed by a narrow margin (53.4% to 46.6%). According to the conservative Christian National Legal Foundation, this prevented their state legislature and all local “governments from granting protected status to a group of individuals based not on an inalienable physical characteristic, but on a chosen lifestyle.” This comment demonstrates two very common beliefs among religious conservatives:

• That homosexuality is a chosen and changeable behavior; it is what homosexuals do. Religious liberals, gays, lesbians, bisexuals, mental health therapists, human sexuality researchers and others generally believe that homosexuality is actually an immutable, unchosen and unchangeable sexual orientation; it is what homosexuals are.
• That groups should only be protected against discrimination based on immutable factors, such as sex, race, and skin color. They reject the concept that people should be protected from discrimination based on chosen factors. Since they regard homosexuality as a “chosen lifestyle,” they feel that homosexuals should not be a protected class. They overlook the fact that people choose the religion that they wish to follow. Nevertheless, religious conservatives demand freedom from religious discrimination.

The Amendment was immediately challenged in the state District Court for the City and County of Denver by a coalition of gays, lesbians, the American Civil Liberties Union, the National Association for the Advancement of Colored People, and representatives from the Colorado municipalities of Denver, Boulder, and Aspen, which had gay rights ordinances in effect. They sued Governor Roy Romer (ironically, who had been on record as opposing the Amendment), state Attorney General Gale Norton, and the State of Colorado. The plaintiffs argued that Amendment 2 violated their federal First Amendment right to free expression and their federal Fourteenth Amendment right to Equal Protection of the laws.

Plaintiffs sought and received a preliminary injunction from the trial court, thus preventing Amendment 2 from ever being implemented. The injunction was upheld by the Colorado Supreme Court. The trial court and the Colorado Supreme Court agreed that Amendment 2 infringed the fundamental right of gays and lesbians to participate in the political process. They found that Amendment 2 had violated the Equal Protection Clause of the Fourteenth Amendment to the US Constitution. The US Supreme Court agreed (6 to 3).

Justice Kennedy, writing for the majority, rejected the assertion that Amendment 2 simply deprived homosexuals of “special rights” which were not shared by the rest of the population. This was the argument used by Colorado for Family Values during their advertising campaign which lead up to the plebiscite. The Court ruled that, under Amendment 2:

Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint. They can obtain specific protection against discrimination only by enlisting the citizenry of Colorado to amend the state constitution or perhaps, on the State’s view, by trying to pass helpful laws of general applicability. This is so no matter how local or discrete the harm, no matter how public and widespread the injury. We find nothing special in the protections Amendment 2 withholds. These are protections taken for granted by most people either because they already have them or do not need them; these are protections against exclusion from an almost limitless number of transactions and endeavors that constitute ordinary civic life in a free society.

The court also found:

. . . that Amendment 2 did discriminate against an identifiable class of people and violated their rights to due process and equal protection under the law. The court held that Amendment 2 was based in “animus,” or hatred, against a specific group of people.

In unusually frank language, the Court found that:

. . . the amendment has the peculiar property of imposing a broad and undifferentiated disability on a single named group, an exceptional and, as we shall explain, invalid form of legislation. Second, its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests. . . . Amendment 2 confounds this normal process of judicial review. It is at once too narrow and too broad. It identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence.

In conclusion, Justice Kennedy commented:

The primary rationale the State offers for Amendment 2 is respect for other citizens’ freedom of association, and in particular the liberties of landlords or employers who have personal or religious objections to homosexuality. Colorado also cites its interest in conserving resources to fight discrimination against other groups. The breadth of the Amendment is so far removed from these particular justifications that we find it impossible to credit them. We cannot say that Amendment 2 is directed to any identifiable legitimate purpose or discrete objective. It is a status based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests; it is a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit. . . . We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to its laws. Amendment 2 violates the Equal Protection Clause, and the judgment of the Supreme Court of Colorado is affirmed.

In other words, the majority concluded that the creation of so‐called special rights for gays, which prevented discrimination against them, was really just another manifestation of equal rights, to which all persons were entitled. Amendment 2 was dead.

The Flag of Gay Pride

The dissenters, however, were blistering in denouncing the majority’s actions. Joined by Chief Justice William Rehnquist and Justice Clarence Thomas, Justice Antonin Scalia accused the Court, in his typical hyperbole and hysteria, of “tak[ing] sides in the culture wars”. He characterized Amendment 2 as “rather a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws.” He criticized the Court’s majority for “imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected.” [Scalia dropped his membership in the American Bar Association back in the 1980s when it took a position against gay discrimination.] Pointing to the “centuries-old” condemnation of homosexuality, he concluded that Colorado was “entitled to be hostile toward homosexual conduct” (his emphasis). Scalia even compared homosexuality to murder and cruelty to animals:

The Court’s opinion contains grim, disapproving hints that Coloradans have been guilty of “animus” or “animosity” toward homosexuality, as though that has been established as Unamerican. Of course it is our moral heritage that one should not hate any human being or class of human beings. But I had thought that one could consider certain conduct reprehensible — murder, for example, or polygamy, or cruelty to animals — and could exhibit even “animus” toward such conduct.

In reaching his conclusion, Scalia adopted a number of classic stereotypes about the lesbian and gay community. He said “those who engage in homosexual conduct tend to reside in disproportionate numbers in certain communities, have high disposable income, and…possess political power much greater than their numbers, both locally and statewide.” Scalia proffered that the goal of the lesbian and gay civil rights movement is to “devote this political power to achieving not merely a grudging social toleration, but full social acceptance, of homosexuality.”

Interestingly, Chief Justice Rehnquist’s animosity toward gays and lesbians had never been a secret. For example, in Ratchford v. Gay Lib (1978), an opinion from Justice Rehnquist seemed to compare the right of homosexuals to assemble and advocate for legal reform to that of “those suffering from measles [who seek] a constitutional right, in violation of quarantine regulations, to associate together and with others who do not presently have measles”.

May 9, 1950 (a Tuesday)

Scientology in Hollywood.

On this date, Lafayette Ronald Hubbard (1911-1986) published Dianetics: The Modern Science of Mental Health. With this book, Hubbard introduced a branch of self-help psychology called “Dianetics”, which quickly caught fire and, over time, morphed into a belief system boasting millions of subscribers: Scientology.

Hubbard was already a prolific and frequently published writer by the time he penned the book that would change his life. Under several pseudonyms in the 1930s, he had published a great amount of pulp fiction, particularly in the science fiction and fantasy genres. In late 1949, having returned from serving in the Navy in World War II, Hubbard began publishing articles in the pages of Astounding Science Fiction, a magazine that published works by the likes of Isaac Asimov and Jack Williamson. Out of these grew the elephantine text known as Dianetics: The Modern Science of Mental Health.

Though discredited by the medical and scientific establishment, over 100,000 copies of Dianetics were sold in the first two years of publication, and Hubbard soon found himself lecturing across the country. He went on to write six more books in 1951, developing a significant fan base and establishing the Hubbard Dianetics Research Foundation in Elizabeth, New Jersey.

In 1953, L. Ron Hubbard introduced “Scientology”. Scientology expanded on Dianetics by bringing Hubbard’s popular version of psychotherapy into the realm of philosophy, and ultimately, religion. In only a few years, Hubbard found himself at the helm of a movement that captured the popular imagination. As Scientology grew in the 1960s, several national governments became suspicious of Hubbard, accusing him of quackery and brainwashing his followers.

Los Angeles Superior Court Judge Paul Breckenridge defined Scientology well in June 1984: “In addition to violating and abusing its own members’ civil rights, the organization over the years with its ‘fair game’ doctrine has harassed and abused those persons not in the church whom it perceives as enemies.” In a 1967 policy titled Penalties for Lower Conditions, Hubbard had written that opponents who are “fair game” may be “deprived of property or injured by any means by any Scientologist without any discipline of the Scientologist. May be tricked, sued or lied to or destroyed.”

However, on 1 October 1993, the Internal Revenue Service, after an extraordinary campaign of lawsuits and harassment against the IRS and its officials by Scientology, issued letters reclassifying Scientology and every one of its organizations as a religion instead of a business. The American tax man made Scientology fully tax-exempt. By granting Scientology tax exemption, the U.S. government is cooperating with an organization that appears to put citizens from around the world at significant mental health and perhaps medical risk.

Not everything that calls itself a religion is a religion. It could be a multibillion-dollar business, an organization with a mafia-like hold over its followers, or a brainwashing cult. Some ex-members say the so-called Church of Scientology is all three.

In Britain, as far as the Charity Commissioners are concerned, for the purposes of English charity law: “Scientology is not a religion.“

The underlying logic of the British test is that a religion must be open to all and open about itself. Go into a Christian church and they will tell you about Jesus. You will see images of him, everywhere, dating back almost 2,000 years. Go into a Hindu temple and you will see images of Ganesh, the multi-armed elephant God, everywhere, images that go back millennia. Go into a Church of Scientology and you will see no image of Xenu. No member of the Church of Scientology will admit to Xenu’s existence, but ex-Scientologists say he is at the heart of its cosmology. Scientology fails the British test of what is or is not a religion because it is not open about what it believes in. A belief system that tells lies about its core belief does not have the automatic right to be treated as a religion.

Since 1995, the Church of Scientology has not enjoyed the legal protections accorded to religions in Germany, after a judge ruled that it was not a religion but a group “masquerading as a religion in order to make a profit.”

Suggested reading:

• Jon Atack. A Piece of Blue Sky: Scientology, Dianetics and L. Ron Hubbard Exposed (New York: Carol Publishing Group, 1990).
• Richard Behar. The Thriving Cult of Greed and Power, Time Magazine, 6 May 1991, p. 50. Accessed on 9 May 2013 at http://www.rickross.com/reference/scientology/scien413.html.
• Lindsay Beyerstein. Holy Mess, Columbia Journalism Review, (Mar/April 2013) vol. 51, no. 6, p. 58. Accessed on 9 May 2013 at http://www.cjr.org/critical_eye/holy_mess.php?page=all.
• Jenna Miscavige Hill. Beyond Belief: My Secret Life Inside Scientology and My Harrowing Escape (William Morrow, 2013).
• John Sweeney. The Church of Fear: Inside the Weird World of Scientology (Silvertail Books, 2013).
• Lawrence Wright. Going Clear: Scientology, Hollywood, and the Prison of Belief (Knopf, 2013).
• ———————-, The Apostate: Paul Haggis vs. the Church of Scientology, The New Yorker, 14 February 2011, p. 84. Accessed on 9 May 2013 at http://www.newyorker.com/reporting/2011/02/14/110214fa_fact_wright?currentPage=all.

May 7, 1925 (a Thursday)

Church/State sign.

On this date, the highly orchestrated arrest (but not detention) of John T. Scopes took place. The Tennessee legislature had earlier passed the Butler Act, which declared:

… that it shall be unlawful for any teacher in any of the Universities, Normals and all other public schools of the State which are supported in whole or in part by the public school funds of the State, to teach any theory that denies the story of the Divine Creation of man as taught in the Bible, and to teach instead that man has descended from a lower order of animals.

As a reaction to this, the American Civil Liberties Union had offered to defend anyone who so dared to teach evolution in Tennessee. Some local business owners in Dayton thought that their town might be able to get some easy publicity if they were able to come up with someone who they could say violated the Butler Act. Scopes had volunteered, and ultimately he was charged with teaching evolution to a high school class.

May 4, 1925 (a Monday)

George Rappleyea in June 1925

On this date, George Rappalyea, a 31-year-old transplanted New Yorker and local coal company manager, arrived at Fred Robinson’s drugstore in Dayton, Tennessee with a copy of a paper containing an American Civil Liberties Union announcement that it was willing to offer its services to anyone challenging the new Tennessee anti-evolution statute. Rappalyea, a modernist Methodist with contempt for the new law, argued to other town leaders that a trial would be a way of putting Dayton on the map. Listening to Rappalyea, the others – including School Superintendent Walter White – became convinced that publicity generated by a controversial trial might help their town, whose population had fallen from 3,000 in the 1890′s to 1,800 in 1925. Thus, the “Robinson’s drugstore conspiracy” to put Dayton, Tennessee on the map was put into motion.

The conspirators summoned John Scopes, a twenty-four-year old general science teacher and part-time football coach, to the drugstore. As Scopes later described the meeting, Rappalyea said, “John, we’ve been arguing and I said nobody could teach biology without teaching evolution.” Scopes agreed. “That’s right,” he said, pulling a copy of Hunter’s Civic Biology – the state-approved textbook – from one of the shelves of the drugstore (the store also sold school textbooks). “You’ve been teaching ‘em this book?” Rappalyea asked. Scopes replied that while filling in for the regular biology teacher during an illness, he had assigned readings on evolution from the book for review purposes. “Then you’ve been violating the law,” Rappalyea concluded. “Would you be willing to stand for a test case?” he asked. Scopes agreed. He later explained his decision: “The best time to scotch the snake is when it starts to wiggle.”

April 27, 1819 (a Tuesday)

Scales of Justice

On this date, one Jesse Boorn of Manchester, Vermont was arrested and brought before the Justice of the Peace for examination. The examination lasted from Tuesday until Saturday. Thus began America’s first known wrongful murder conviction case.

When Russel Colvin had disappeared in 1812, suspicion of foul play had fallen on his brothers-in-law, Jesse and Stephen Boorn, who held Colvin in disdain. Seven years later, an uncle of the suspects, Amos Boorn, had a dream in which Colvin appeared to him and said that he had been slain. Colvin did not identify his killers in the dream but said that his remains had been put in a cellar hole on the Boorn farm. Uncle Amos said the dream was repeated three times. The cellar hole was excavated but no remains were found. Shortly afterward, a dog unearthed some large bones from beneath a nearby stump. Three local physicians examined the bones and summarily declared them human.  The patience of the community snapped and action was demanded.

Artist's depiction of the alleged murder of Russel Colvin.

This is when officials took Jesse Boorn into custody. They would have arrested Stephen Boorn as well, but he had moved to New York. While in custody, Jesse’s cellmate, forger Silas Merill, told authorities that Jesse had confessed to him. In return for agreeing to testify against Jesse, Merrill was released from jail. Faced with mounting evidence against him, Jesse admitted to the murder, but placed principal blame on Stephen, who legally was beyond the reach of the local authorities. However, a Vermont constable met up with Stephen, and Stephen agreed to return to Vermont with him to clear his name. After his return to Vermont, Stephen confessed as well, although he claimed to have acted in self-defense.

The local physicians then changed their minds that the found bones were human, and declared them animal. Nevertheless, the prosecution pressed ahead with its case and both of the Boorn brothers were convicted and sentenced to death. The Vermont legislature commuted Jesse’s sentence to life in prison, but denied relief to Stephen. Shortly before Stephen was to be hanged on January 28, 1820, Colvin was found living in New Jersey. On Colvin’s return to Vermont, both brothers were released.

References:

• Edwin M. Borchard, Convicting the Innocent: Errors of Criminal Justice (New Haven, CT: Yale University Press, 1932), chapter 3.

April 24, 1863 (a Friday)

Abraham Lincoln

On this date, the Union Army of the United States issued General Order No. 100, signed and authorized by President Abraham Lincoln, which provided a code of conduct for federal soldiers and officers when dealing with Confederate prisoners and civilians during the American Civil War.  There was no document like it in the world at the time, and other countries soon adopted the code. In fact, its influence can be seen on the Geneva Convention.

The German-American jurist and political philosopher Francis Lieber was the principle civilian proponent and principle author of the order, and so it has come to be known as the Lieber Code of 1863.  It is also known as Instructions for the Government of Armies of the United States in the Field, or Lieber Instructions.  Its main sections were concerned with, among other things, how prisoners of war should be treated.  More specifically, it forbade the use of torture to extract confessions and described the rights and duties of prisoners of war and of capturing forces, to wit, Article 16:

Military necessity does not admit of cruelty–that is, the infliction of suffering for the sake of suffering or for revenge, nor of maiming or wounding except in fight, nor of torture to extort confessions.

Lieber consistently opposed the abuse of prisoners, and he quickly dispensed with the notion that captured Southern soldiers should be treated as criminals, traitors, or bandits. Instead, they were to be housed humanely and fed “plain and wholesome food.” Torture and public humiliation were forbidden, and chivalry was very much alive: To reward exemplary bravery and honor, captors could even return sidearms to enemy officers.

The irony of a Republican predecessor opposing torture of enemy combatants nearly 150 years before Bush the Second condoned the practice has not been lost on critics of Bush II. Of course, apologists for the more recent Republican president are fond of pointing out that in other areas, such as habeas corpus, Lincoln was hardly a paragon protector of rights and legal ethics. I fail to see how that exonerates Bush II for his deplorable behavior.

As David Bosco, an assistant professor at the American University School of International Service and a contributing writer to Foreign Policy magazine, has written in an article in The American Scholar entitled “Moral Principle vs. Military Necessity“:

Lieber and Lincoln proudly published their code, flawed and ambiguous though it was. The nation’s current leadership has preferred secret memoranda and strained interpretations. Too often now, the noble effort to expand and codify the international law that Lieber gloried in no longer appeals to the world’s most powerful state. For the good of international law and of the United States, that must change.

March 25, 1955 (a Friday)

Allen Ginsberg

On this date, the U.S. Customs Bureau confiscated 520 copies of Allen Ginsberg’s book Howl, which had been printed in England. Ginsberg was openly gay, and this poem has a lot of references to homosexuality. The gay men in this poem generally do not seem to be involved in monogamous relationships with one other person.

Officials alleged that the book was obscene, particularly objecting to:

Line 36

who let themselves be fucked in the ass by saintly motorcyclists, and screamed with joy,

But the next two lines, among many others, seem equally provocative:

Line 37

who blew and were blown by those human seraphim, the sailors, caresses of Atlantic and Caribbean love,

Line 38

who balled in the morning in the evenings in rose gardens and the grass of public parks and cemeteries scattering their semen freely to whomever come who may,

(You can listen to Ginsberg read Howl on Poets.org.)

City Lights, a publishing company and bookstore in San Francisco owned by poet Lawrence Ferlinghetti, proceeded to publish the book in the fall of 1956. The publication led to Ferlinghetti’s arrest on obscenity charges. Ferlinghetti was bailed out by the American Civil Liberties Union, which led the legal defense. Clayton Horn (a Sunday school teacher) was the judge for the case and had achieved notoriety earlier that year for sentencing five shoplifters to a screening of The Ten Commandments. The defense brought literary expert after literary expert (9 in total) to the stand to testify to the poem’s literary and social importance and on October 3 Judge Horn ruled the poem was of “redeeming social importance” and Ferlinghetti was cleared.

March 21, 1925 (a Saturday)

On this date, Tennessee Governor Peay signed into law the Butler Act, “prohibiting the teaching of the Evolution Theory” in all public schools and universities and making it unlawful in public schools “to teach any theory that denies the story of the Divine Creation of man as taught in the Bible, and to teach instead that man has descended from a lower order of animals.” This set the stage for the Scopes’ “Monkey Trial” in Dayton, Tennessee during the subsequent summer.

The author of the law, a Tennessee farmer named John Washington Butler, had introduced the bill into the state House of Representatives on January 25, 1925. Ironically, he later was reported to have said, “No, I didn’t know anything about evolution when I introduced it. I’d read in the papers that boys and girls were coming home from school and telling their fathers and mothers that the Bible was all nonsense.” After reading copies of William Jennings Bryan’s lecture “Is the Bible True?” as well as Charles Darwin’s The Origin of Species and The Descent of Man, Butler decided evolution was dangerous. During the trial, Butler told reporters, “I never had any idea my bill would make a fuss. I just thought it would become a law, and that everybody would abide by it and that we wouldn’t hear any more of evolution in Tennessee.”

March 8, 1841 (a Monday)

Oliver Wendell Holmes, Jr.

On this date, jurist Oliver Wendell Holmes, Jr., was born in Boston, Massachusetts. He was the namesake and son of a famed physician. Holmes graduated from Harvard in 1861 and immediately enlisted in the Army, where he was seriously wounded three times.

After the Civil War, Holmes entered Harvard Law School, where his best friend was William James. The New York Times obituary on Holmes reported that the two young men went to Europe together: “while James went on, continuing in Germany his search for the meanings of the universe, Holmes decided that ‘maybe the universe is too great a swell to have a meaning,’ that his task was to ‘make his own universe livable,’ and he dove deep into the study of the law.”

Holmes was admitted to the bar in 1866. He became coeditor of the American Law Review in 1870. Holmes wrote his legal treatise, The Common Law, in 1881, a 15-year labor predicated on his belief that “The life of the law has not been logic; it has been experience.” His recodification of the law from religious foundations to modern jurisprudence was pivotal to the evolution of legal scholarship. Holmes urged “judicial restraint,” or the divorcing of private views from legal opinions.

Scales of Justice

A professor at Harvard Law School, he was appointed at age 41 as an associate justice on the Massachusetts Supreme Court, eventually becoming chief justice. President Teddy Roosevelt appointed him to the U.S. Supreme Court in 1902. He retired in 1932, as the oldest judge to serve. Holmes earned the sobriquet, “The Great Dissenter,” for his many famous dissents, which have long since been adopted as mainstream by courts. Among his well-known legal adages: “The mind of the bigot is like the pupil of the eye: the more light you shine on it, the more it will contract.” “Taxes are the price we pay for a civilized society.” “Three generations of imbeciles are enough.” “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater. . .” “The right to swing my fist ends where the other man’s nose begins.” Holmes, like his father, was a Unitarian, who believed in a god, but was creedless. In his obituary in 1935, the New York Times quoted Holmes:

When men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes can be carried out. That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment.

March 1, 1692 (Julian calendar/old style: a Tuesday)

Woodcut scene from the Salem Witch Trials.

On this date in Salem Village in the Massachusetts Bay Colony, Sarah Goode, Sarah Osborne, and Tituba, an Indian slave from Barbados, were charged with the illegal practice of witchcraft. Later that day, Tituba, possibly under coercion, confessed to the crime, encouraging the authorities to seek out more Salem witches.

In June 1692, the special Court of Oyer, “to hear,” and Terminer, “to decide,” convened in Salem under Chief Justice William Stoughton to judge the accused. The first to be tried was Bridget Bishop of Salem, who was found guilty and executed by hanging on June 10. Thirteen more women and four men from all stations of life followed her to the gallows, and one man, Giles Corey, was executed by crushing. Most of those tried were condemned on the basis of the witnesses’ behavior during the actual proceedings, characterized by fits and hallucinations that were argued to be caused by the defendants on trial.

In October 1692, Governor William Phipps of Massachusetts ordered the Court of Oyer and Terminer dissolved and replaced with the Superior Court of Judicature, which forbade the type of sensational testimony allowed in the earlier trials. Executions ceased, and the Superior Court eventually released all those awaiting trial and pardoned those sentenced to death. The Salem witch trials, which resulted in the executions of 19 innocent women and men, had effectively ended.

February 24, 1803 (a Thursday)

The Constitution of the United States was not made to fit us like a strait jacket. In its elasticity lies its chief greatness.

— Woodrow Wilson

Scales of Justice

On this day in 1803, the Supreme Court, led by Chief Justice John Marshall, decided the landmark case of William Marbury v James Madison, Secretary of State of the United States and confirmed the legal principle of judicial review —the right of the courts to determine the constitutionality of the actions of the other two branches of government — in the new nation.  This principle was an important addition to the system of “checks and balances” created to prevent any one branch of the Federal Government from becoming too powerful.

Show-cause order served on James Madison, Secretary of State, 1802; Records of the Supreme Court of the United States; Record Group 267; National Archives.

Nothing in the Constitution gave the Court this specific power. Chief Justice John Marshall, however, believed that the Supreme Court should have a role equal to those of the other two branches of government.

When James Madison, Alexander Hamilton, and John Jay wrote a defense of the Constitution in The Federalist, they explained their judgment that a strong national government must have built-in restraints: “You must first enable government to control the governed; and in the next place oblige it to control itself.” The writers of the Constitution had given the executive and legislative branches powers that would limit each other as well as the judiciary branch. The Constitution gave Congress the power to impeach and remove officials, including judges or the President himself. The President was given the veto power to restrain Congress and the authority to appoint members of the Supreme Court with the advice and consent of the Senate. In this intricate system, the role of the Supreme Court had not been defined. It therefore fell to a strong Chief Justice like Marshall to complete the triangular structure of checks and balances by establishing the principle of judicial review. Although no other law was declared unconstitutional until the Dred Scott decision of 1857, the role of the Supreme Court to invalidate Federal and state laws that are contrary to the Constitution has never been seriously challenged.

February 19, 1942 (a Thursday)

Order posting.

On this date, President Franklin Roosevelt signed Executive Order 9066, authorizing the War Department to define military areas in the western states and to exclude from them anyone who might threaten the war effort.  Key U.S. leaders claimed that all people of Japanese ancestry on the West Coast of the U.S. posed a risk to national security. This led to the internment of tens of thousands of Japanese-Americans in what Roosevelt called “concentration camps,” often located in Native American reservations.

When war had seemed imminent with Japan in the Fall of 1941, Roosevelt had assigned a Chicago businessman, Curtis B. Munson, to be a special representative of the State Department and to go to the West Coast and Hawaii to determine the degree of loyalty to be found among the residents of Japanese descent.  Munson toured Hawaii and the Pacific Coast and interviewed Army and Navy intelligence officers, military commanders, city officials, and the Federal Bureau of Investigation. The overall result of his twenty-five page report was that:

…there is no Japanese “problem” on the Coast. There will be no armed uprising of Japanese. There will undoubtedly be some sabotage financed by Japan and executed largely by imported agents.

…for the most part, the local Japanese are loyal to the U.S. or, at worst, hope that by remaining quiet they can avoid concentration camps or irresponsible mobs. We do not believe that they would be at least any more disloyal than any other racial group in the United States with whom we went to war.

Munson’s report was submitted to the White House on November 7, 1941. It was then circulated to several Cabinet officials, including Secretary of War Henry L. Stimson, Secretary of the Navy Frank Knox, Attorney General Francis Biddle, and Secretary of State Cordell Hull. On February 5, 1942, Stimson sent a copy of the so-called Munson Report to President Roosevelt, along with a memo stating that War Department officials had carefully studied the document.

The Munson Report should have conclusively put to rest the existence of Japanese sabotage in the United States. The report also should have resolved any fears about the security of the West Coast as well. The lack of any evidence showing the Japanese-Americans being involved in espionage rings should have prevented the need for internment camps, but after the attack on Pearl Harbor the United States government chose to impound innocent people behind barbed wire. The results of Munson’s fact-finding mission were inexplicably suppressed until 1946.

Race prejudice and wartime hysteria.

Although two-thirds of the Japanese-American internees were U.S. citizens, they were targeted because of their ancestry and the way they looked. One internee, when told that the Japanese were put in those camps for their own protection, countered “If we were put there for our protection, why were the guns at the guard towers pointed inward, instead of outward?”

The living conditions in the concentration camps were often unsanitary, with families living in hastily constructed barracks near open sewers. Toilets were shared by everyone in the camp and had little or no privacy. Meals provided to the Japanese were meager and caused a great deal of malnourishment. Despite these poor conditions, programs were eventually put into place that improved the condition of the camps and allowed the prisoners to work for small wages.

On some occasions, riots broke out in the internment camps, resulting in death and injury. In January 1944, a military draft was produced by the government, forcing Japanese Americans in the camps to join the military and fight in World War II. Many of the draftees refused to join the military until they were given civil rights and the government, refusing, placed the resisters in federal prison.

Many prominent Japanese Americans formed lawsuits against the United States government during the internment. Among these were Hirabayashi vs. United States, Yasui vs. United States, and Korematsu vs. United States. These lawsuits placed a lot of pressure on the United States government and made many people question the constitutionality of the internment. On December 17, 1944, the United States declared an end to the internment and the Supreme Court ruled that it was unconstitutional on December 18, 1944.

After these events, Japanese Americans were allowed to leave the camps and return to their homes and live normally. By March 20, 1946, all of the internment camps had been closed, although most of the Japanese had become greatly disillusioned with the United States and continued to endure discrimination.

In 1983, a U.S. congressional commission “uncovered” the evidence from the 1940s proving that there had been no military necessity for the unequal, unjust treatment of Japanese Americans during WW II. The commission reported that the causes of the incarceration were rooted in ” … race prejudice, war hysteria, and a failure of political leadership.”

During the Reagan-Bush years Congress moved toward the passage of Public Law 100-383 in 1988 which acknowledged the injustice of the internment, apologized for it, and provided a $20,000 cash payment to each person who was interned.

February 8, 1910 (a Tuesday)

On this date, the Boy Scouts of America (BSA) was incorporated by Chicago publisher William Boyce.

Mormon Scouts from Provo, Utah learning outdoor cooking (1916).

The BSA stands alone among Boy Scout organizations around the world, and among other youth-serving organizations including the Girl Scouts, the Big Brothers/Big Sisters Association, and the Boys and Girls Clubs of America, in barring homosexuals. More than any other factor, the close relationship between the BSA and religious organizations like the Church of Jesus Christ of Latter-day Saints (LDS) — the Mormons — explains why the BSA pursued its antigay policy all the way to the Supreme Court.

Imported from England just after the turn of the twentieth century, the fledgling Boy Scout movement found quick friends in the YMCA, largely because William Boyce, a BSA founder, and Edgar M. Robinson, the YMCA’s first international secretary for boys’ work, were acquaintances, according to David Peavy, a former member of the National Catholic Church Committee on Scouting. Some YMCA clubs hosted Scout troops, and Peavy describes Robinson as essentially the Scouts’ first chief executive.

The BSA eventually broke out on its own after receiving a Congressional charter in 1910. Modeled on the Scouting movement launched in England by war hero Lord Robert Baden-Powell, the American version differed in one key area: its more formal connection to religious practice. Baden-Powell had built British Scouting on religious principles, but the BSA added an 11th element to the Scout Law: “A Scout is reverent toward God. He is faithful to his religious duties.” In case anyone missed that “go to church” message, the BSA constitution said, “No boy can grow into the best kind of citizenship without recognizing his obligation to God.” And the BSA borrowed from the three-tiered focus on “mind, body, and spirit” in the YMCA’s mission statement, Peavy says, when it developed its Oath:

On my honor I will do my best
To do my duty to God and my country
and to obey the Scout Law;
To help others at all times;
To keep myself physically strong,
mentally awake and morally straight.

Consequently, Catholic and Protestant churches and the Mormon Church found Scouting to be a perfect fit: the boys loved it, it had Christian underpinnings, and the BSA encouraged churches to mold their local Scouting programs according to their own religious-education standards. The Mormon Church, in an amicus curiae brief filed with a Boy Scouts case before the US Supreme Court in 2000 (Boy Scouts of America et al v Dale) put it best:

Because of Scouting’s devotion to the spiritual element of character education and its willingness to submerge itself in the religious traditions of its sponsors, America’s churches and synagogues enthusiastically embraced Scouting. . . .

For many religious organizations . . . the Scouting program is a means of youth ministry. At the same time, sponsorship by religious organizations has enabled the Scouting movement to expand and increase its influence on the nation’s boys.

By 1915, 4,000 of the nation’s 7,373 Scout units were chartered to Protestant churches, according to an analysis by the American Family Association Center for Law and Policy. By then the BSA also had a “Commissioner for Scout Work in the Catholic Churches,” whose job was to promote Catholic units. In 1918, Peavy says, a letter from the Vatican bestowed the blessing of Pope Benedict XV on Catholic Scouting.

Mormon BSA patch.

But no group embraced Scouting more enthusiastically than the Mormon Church. On 21 May 1913, the Church became the first institution to be officially affiliated with the BSA program. Over the years, Scouting became the official youth-ministry program for Mormon boys. It serves not only for inculcating the beliefs of the Church, but as an outreach tool. Elder Robert Backman was recognized by the BSA in 1986 for his efforts in incorporating Scouting into the Mormon Church’s Young Men organization. He is quoted in the Aaronic Priesthood Boy Scout Guide:

As you know, we are vitally concerned about our youth and feel that with the proper attention we can save many more than we are doing at the present time. I am convinced that Scouting is a mighty activity arm to hold these boys close while they learn to appreciate the honor of holding the priesthood of God.

(. . .)

If we do all else and lose the young man, we have failed in our sacred stewardship. We must not allow a separation of priesthood, Scouting, or athletics.

(. . .)

Every phase of the Scouting program should help young men and their leaders understand that Scouting activities are carried out to accomplish priesthood purposes.

Apostle Thomas S. Monson said in a 1990 Mormon newsletter that the Church and its troops “serve together; they work together.” He added, “Every program I’ve seen from Scouting complements the objectives we are attempting to achieve in the lives of our young men, helping them strive for exaltation.” [Exaltation is the official expression in Mormon theology for a Saint becoming a god in the afterlife.]

The statement that the BSA does “not believe that homosexuality and leadership in Scouting are appropriate” first appeared in a letter in 1978 signed by the BSA’s President and Chief Scout Executive. However, it was an internal memorandum, never circulated beyond the few members of BSA’s Executive Committee, and remained, in effect, a secret Boy Scouts policy. Nevertheless, the organization later asserted that it was not a new policy to oppose and disfavor homosexuality — and, in support of that, to deny leadership roles to and occasionally expel “avowed” homosexuals. Rather, the BSA argued it was just enforcing long-held policy which had never been published or publicly challenged.

James Dale was awarded the rank of Eagle Scout — an honor given to only 3 percent of all scouts — after eleven years of Scouting. When he was a student at Rutgers University, Dale became copresident of the Lesbian/Gay Student Alliance. Then, in July 1990, he attended a seminar on the health needs of lesbian and gay teenagers. During the seminar, he was interviewed, and the work was subsequently published. James, who was an assistant Scoutmaster and looked forward to a lifetime in Scouting, was expelled after BSA officials read the interview in a local newspaper and Dale was quoted as stating he was gay. Never before hearing of any such rule against gays, Dale sued for reinstatement, charging BSA with violating New Jersey state civil rights laws which prohibited discrimination on the basis of sexual orientation. Interestingly, the BSA subsequently issued a Position Statement on Homosexuality in June, 1991 that states:

We believe that homosexual conduct is inconsistent with the requirements in the Scout Oath that a Scout be morally straight and in the Scout Law that a Scout be clean in word and deed, and that homosexuals do not provide a desirable role model for Scouts. Because of these beliefs, the Boy Scouts of America does not accept homosexuals as members or as leaders, whether in volunteer or professional capacities.

Dale’s case was first tried before Superior Court Judge Patrick J. McGann, who ruled against Dale, stating:

To suggest that the BSA had no policy against active homosexuality is nonsense. It was an organization which from its inception had a God-acknowledged, moral foundation. It required its members, youth and adult, to take the Scout Oath that they would be “morally straight.” It is unthinkable that in a society where there was universal governmental condemnation of the act of sodomy as a crime, that the BSA could or would tolerate active homosexuality if discovered in any of its members. . . . Men who do those criminal and immoral acts cannot be held out as role models. [Dale v. Boy Scouts of America, No. Mon-C-330-92]

Although McGann’s account of the BSA attitude toward homosexuals may be true, his interpretation of the “morally straight” clause in the Scout Oath as meaning heterosexual is certainly not. As mentioned earlier, the last clause of the BSA Scout Oath had its origin in the YMCA. [Ironically, the YMCA does not ban gays.] As historian Carolyn Wagner states:

The YMCA men in the Scouts gave the organization a distinctly Protestant orientation. In the rewrite of the Scout promise, they successfully lobbied for the inclusion of a line requiring the boy to be “physically strong, mentally awake, and morally straight.” This line spoke to the significance of the Y’s emblem, a triangle representing spirit, mind, and body which, in turn, referred to the organization’s goal of furthering “all round development.” The Y men thought it particularly important that the BSA incorporate this line in the promise because they regarded Christ as the perfectly developed man and, therefore the ideal role model for youth, ALL youth.

Including even an indirect reference to Christ, when the BSA is supposed to be a “non-sectarian” youth organization, is problematical. “Non-sectarian organizations” as a rule do not involve themselves in theology. BSA claims that theology and religious instruction is to be left up to the parents and religious leaders of the boy — be his religious faith Christian, Jewish, Muslim, Hindu, Buddhist, Native American, etc. — not BSA.

A Scout demonstration, 1916, in the Deseret Gymnasium, Salt Lake City.

Furthermore, the historian George Chauncey notes that it was only in the 1910′s and 1920′s that the application of the term straight to a man who was considered — using the relatively new term — heterosexual, was first beginning to be used. However, Chauncey notes that the use of the term straight was a slang term and only used within the gay subculture. It’s first appearance in mainstream publications was in the glossary of a 1941 book on “sex deviants.” According to historian Jonathan Katz, this book identified the term straight as “being employed by homosexuals ‘as meaning not homosexual. To go straight is to cease homosexual practices and to indulge — usually to re-indulge — in heterosexuality.’” The definition of the term straight, meaning heterosexual, in society at large, did not occur until much later.

Eventually, Boy Scouts of America et al v Dale (530 US 640) was argued before the US Supreme Court. On 28 June 2000, a divided Court ruled that the First Amendment protects the BSA, as an “expressive organization” promoting the view that homosexuality is an unacceptable lifestyle, from excluding Scouts on that basis. Therefore, the organization has the authority to expel a gay assistant Scoutmaster. However, views with respect to homosexuality must be central to the BSA’s expressive purposes. Four Justices dissented, questioning whether admitting homosexual members, in the words of the BSA, “would be at odds with its own shared goals and values”:

BSA describes itself [in its own mission statement] as having a “representative membership,” which it defines as “boy membership [that] reflects proportionately the characteristics of the boy population of its service area.” . . . In particular, the group emphasizes that “[n]either the charter nor the bylaws of the Boy Scouts of America permits the exclusion of any boy. . . . To meet these responsibilities we have made a commitment that our membership shall be representative of all the population in every community, district, and council.” . . . (emphasis in original).

(. . .)

It is plain as the light of day that neither one of these principles — “morally straight” and “clean” — says the slightest thing about homosexuality. Indeed, neither term in the Boy Scouts’ Law and Oath expresses any position whatsoever on sexual matters.

(. . .)

BSA’s published guidance on that topic underscores this point. Scouts, for example, are directed to receive their sex education at home or in school, but not from the organization: “Your parents or guardian or a sex education teacher should give you the facts about sex that you must know.”

(. . .)

More specifically, BSA has set forth a number of rules for Scoutmasters when these types of issues come up:

(. . .)

“Rule number 1: You do not undertake to instruct Scouts, in any formalized manner, in the subject of sex and family life. The reasons are that it is not construed to be Scouting’s proper area, and that you are probably not well qualified to do this.” [emphasis in original]

(. . .)

Insofar as religious matters are concerned, BSA’s bylaws state that it is “absolutely nonsectarian in its attitude toward . . . religious training.” [and] “The BSA does not define what constitutes duty to God or the practice of religion. This is the responsibility of parents and religious leaders.” . . . BSA surely is aware that some religions do not teach that homosexuality is wrong.

After thoroughly examining the 1978, 1991, 1992, and 1993 written BSA policy statements regarding homosexuality, the dissenting Justices continued:

It speaks volumes about the credibility of BSA’s claim to a shared goal that homosexuality is incompatible with Scouting that since at least 1984 it had been aware of this issue — indeed, concerned enough to twice file amicus briefs before this Court—yet it did nothing in the intervening six years (or even in the years after Dale’s expulsion) to explain clearly and openly why the presence of homosexuals would affect its expressive activities, or to make the view of “morally straight” and “clean” taken in its 1991 and 1992 policies a part of the values actually instilled in Scouts through the Handbook, lessons, or otherwise.

(. . .)

In fact, until today, we have never once found a claimed right to associate in the selection of members to prevail in the face of a State’s antidiscrimination law. To the contrary, we have squarely held that a State’s antidiscrimination law does not violate a group’s right to associate simply because the law conflicts with that group’s exclusionary membership policy.

(. . .)

The evidence before this Court makes it exceptionally clear that BSA has, at most, simply adopted an exclusionary membership policy and has no shared goal of disapproving of homosexuality.

(. . .)

As noted earlier, nothing in our [previous] cases suggests that a group can prevail on a right to expressive association if it, effectively, speaks out of both sides of its mouth.

Emboldened by this Supreme Court decision, the National Executive Board of the BSA passed a formal resolution on 6 February 2002 that expressly excluded atheists and homosexuals from membership. Furthermore, the Executive Board resolved that all Councils and sponsoring organizations must sign a statement to the effect that they will enforce all policies of the BSA including the exclusion of homosexuals and atheists as members. All those applying for membership must also agree to abide by these policies.

The reason for the condemnation of homosexuality by the BSA, unusual among similar organizations in the United States, is clearly the close association between the BSA and certain religious constituencies, especially the Mormons and Catholics, as indicated in an amicus curiae filed by them in the Dale case. It begins:

Among all of Scouting’s supporters, there are none more important to Boy Scouts of America (“BSA”) than amici. The organizations joining in this brief are by far the largest religious sponsors of Scouting in America. Religious institutions charter over 60% of all Scouting units in the United States. Of these, a full two-thirds are chartered by amici. Nationally, amici sponsor over 50,000 Scouting units and almost 1.2 million scouts, with over 20,000 scouts in New Jersey alone.

For many decades amici have employed Scouting as a tool of religious ministry, making Scouting an integral part of their youth programs. The right of BSA and its sponsoring organizations to determine eligibility requirements for scout leaders is therefore of paramount importance, directly impacting the ability of these amici to organize and control their Scouting programs.

(. . .)

The Church of Jesus Christ of Latter-day Saints sponsors over 400,000 scouts and over 30,000 Scouting units nationwide, making it the largest single sponsor of Scouting units in the United States. In New Jersey, the Church of Jesus Christ of Latter-day Saints sponsors over 700 scouts and about 60 units.

After the above chest-thumping, under a section of the brief entitled “Coercing Boy Scouts of America to Install Openly Homosexual Scout Leaders Violates the First Amendment”, the Mormons state:

[Ruling against the BSA] threatens to fracture the Scouting Movement, destroying or at least severely diminishing BSA’s ability to advocate and inculcate its values. If the appointment of scout leaders cannot be limited to those who live and affirm the sexual standards of BSA and its religious sponsors, the Scouting Movement as now constituted will cease to exist. Amicus The Church of Jesus Christ of Latter-day Saints — the largest single sponsor of Scouting units in the United States — would withdraw from Scouting if it were compelled to accept openly homosexual scout leaders. The other amici would be forced to reevaluate their sponsorship of Scouting, with the serious possibility of reaching the same conclusion.

(. . .)

Given the extent of their support, losing any of these amici as sponsors, whether in New Jersey or nationwide, would seriously disrupt BSA’s ability to express and inculcate its message. The destruction or dismemberment of an expressive organization is perhaps the ultimate abridgment of the right of expressive association.

The Mormon threat in their brief is obviously coercive and also hypocritical — who, in fact, is coercing the BSA, the government or the Mormons? Also, the brief is deceptive because the chartering organization is (as it always has been) the one responsible to recruit and select their adult leaders — not BSA. Traditionally, if a Scouting unit in New Jersey decided to accept gay scouts, that would not compel a Mormon unit to do likewise. This tradition allows religiously-sponsored units to apply standards for membership and leadership appropriate to their own sect. What the Mormons want to do (and the BSA leadership is cooperating) is force Mormon standards for scouts and leaders on ALL other units nationwide.

After the Dale decision, public opinion in some communities turned against the BSA; corporations, charities, and even some local governments criticized the policy, threatening to either cut off financial support or block the Boy Scouts from using public buildings for their meetings. Going even further, the Secular Coalition for America has urged Congress to revoke the federal charter of the BSA, stating: “Our government must not entangle itself in religious organizations; nor should it establish, with government imprimatur, a private religious club.” Of course, while some segments of the public criticized the organization, other groups became more enthusiastic in their support of the Scouts.

Cub Scouts

Ironically, the BSA national leadership in the not-too-distant future will have to confront the fact that they are engaging in child abuse by following a policy of rejecting youth who identify as gay. The existence of BSA’s overt discrimination against gays sends the message to both youth and adults that it is okay to judge, ridicule, and hate another person — simply because they’re different. In the August 2001 issue of the American Journal of Public Health, researchers found boys with same-sex orientation were linked to a 68 percent greater likelihood of having suicidal thoughts than their opposite-sex oriented classmates. This study confirmed a Department of Health and Human Services Study (1989) which concluded that gay youth are often more likely to attempt suicide than others of their same age group. (See also Remafedi et al, 1998; Silenzio et al, 2007; Ryan et al, 2009.) Such suicidal tendencies do not reflect a pathology due to sexual orientation — rather, they result from societal stigmatization and oppression of those who are, or are perceived to be, homosexual.

Since its earliest days, the BSA has sought to maintain strong ties to church and state. However, in the United States legal system, these entities are largely kept separate, and for good historical reasons. Unfortunately, the BSA may not be able to cater to both much longer without inevitably running afoul of one or the other.

Suggested Reading:

• Stephen T. Russell and Kara Joyner, “Adolescent sexual orientation and suicide risk: Evidence from a national study.” Am J Public Health (August 2001) 91: 1276-1281. DOI: 10.2105/AJPH.91.8.1276.
• G. Remafedi, S. French, M. Story, M. D. Resnick, and R. Blum,
  “The relationship between suicide risk and sexual orientation: Results of a population-based study.” Am J Public Health (January 1998) 88: 57-60. DOI: 10.2105/AJPH.88.1.57.
• C. Ryan, D. Huebner, R. M. Diaz, and J. Sanchez, “Family rejection as a predictor of negative health outcomes in white and Latino lesbian, gay, and bisexual young adults.” Pediatrics (January 1, 2009) 123(1): 346 – 352. DOI: 10.1542/peds.2007-3524.
• Vincent M.B. Silenzio, Juan B. Pena, Paul R. Duberstein, Julie Cerel, and Kerry L. Knox. “Sexual orientation and risk factors for suicidal ideation and suicide attempts among adolescents and young adults.” Am J Public Health (November 2007) 97: 2017–2019. DOI: 10.2105/AJPH.2006.095943.

January 20, 1692 (Julian calendar/old style: a Wednesday)

On this date [the year to Salemites was 1691, since the new year began on March 25 in those days] in Salem Village in the Massachusetts Bay Colony (present-day Danvers, Massachusetts), Abigail Williams, age 11, and Elizabeth Parris, age 9, began having “fits” involving behavior such as blasphemous screaming, convulsive seizures, trance-like states, and mysterious spells. Soon Ann Putnam, Jr., age 11, Mercy Lewis, age 17, Mary Walcott, also age 17, and other Salem girls began acting similarly.

So began one of the most famous travesties of justice in history – the Salem Witchcraft Trials. The proceedings were notable for their lack of empirical reason, skepticism, and humanitarianism; they were instead based on superstition, ignorance, fear, and intolerance.

The Witch House, the home of Magistrate Jonathan Corwin in 1692.

In mid-February, unable to determine any physical cause for the symptoms and dreadful behavior, the physician William Griggs concluded that the girls were under the influence of an “Evil Hand” – Satan. Under pressure from the Reverend Samuel Parris and magistrates Jonathan Corwin and John Hathorne to identify the source of their affliction, the girls named three women as witches: Tituba, the Parris’ Caribbean slave; Sarah Good, a homeless beggar; and Sarah Osborne, an elderly impoverished woman. On February 29, warrants were issued for their arrests.

Over the following weeks, other townspeople came forward and testified that they, too, had been harmed by or had seen strange apparitions of some of the community members. By the end of the witch hunt, more than 200 people had been accused of practicing witchcraft – the “Devil’s magic.”

To try the witchcraft cases, Governor William Phips on May 27, 1692 ordered the establishment of a Special Court of Oyer (to hear) and Terminer (to decide) for Suffolk, Essex, and Middlesex counties. The seven magistrates of this court based their judgments and evaluations on various kinds of intangible evidence, including direct confessions (some the result of torture), supernatural attributes (such as “witchmarks”), and especially the reactions of the “afflicted” girls. The latter involved spectral evidence, the appearance of the accused’s apparition or “specter” to an “afflicted” girl, and the test of touch, the sudden cessation of her fit after being touched by the accused witch. Spectral evidence was based on the assumption that a witch could send out his/her specter, an incorporeal being indistinguishable to those who could see them from the witch himself/herself. The specter had human powers of sight, hearing, speech, and touch and superhuman ones of locomotion, so it could torment and afflict the “saints” to lead them astray. The touch test was based on the assumption that the girl was made well by physical contact with the witch because it allowed the witch’s evil to flow back from the “afflicted” girl.

English courts, while recognizing the credibility of “spectral evidence,” refused to prosecute alleged capital offenses on the basis of “spectral evidence” alone. That was not the case in New England. During the witch trials the “afflicted” girls claimed that various people of Salem Town and Salem Village had appeared to them to lead them into witchcraft and to cast spells upon them. Furthermore, the girls claimed to see “specters” even in the courtroom. The magistrates accepted such evidence as credible and admissible for judgment and sentencing. Thomas Brattle described the court procedure in a letter he wrote (see below) to the General Court of Massachusetts in October:

First, as to the method which the Salem Justices do take in their examinations, it is truly this: A warrant being issued out to apprehend the persons that are charged and complained of by the afflicted children, (as they are called); said persons are brought before the Justices, (the afflicted being present.) The Justices ask the apprehended why they afflict those poor children; to which the apprehended answer, they do not afflict them. The Justices order the apprehended to look upon the said children, which accordingly they do; and at the time of that look, (I dare not say by that look, as the Salem Gentlemen do) the afflicted are cast into a fitt. The apprehended are then blinded, and ordered to touch the afflicted; and at that touch, tho’ not by the touch, (as above) the afflicted ordinarily do come out of their fitts. The afflicted persons then declare and affirm, that the apprehended have afflicted them; upon which the apprehended persons, tho’ of never so good repute, are forthwith committed to prison, on suspicion for witchcraft….

Gallows Hill

The first case brought to the special court was Bridget Bishop, an older woman known for her gossipy habits and promiscuity. She was tried on June 2 and, on June 10, became the first person hanged on what eventually became known as Gallows Hill. Troubled by this event, Governor Phips consulted the ministers of Boston, including Increase Mather and his son, Cotton. They wrote the Return of the Ministers Consulted, in which they advised caution in the witchcraft proceedings but concluded:

Nevertheless, we cannot but humbly recommend unto the Government the speedy and vigorous prosecution of such as have rendered themselves obnoxious, according to the direction given in the laws of God, and the wholesome statutes of the English nation, for the detection of witchcrafts.

Five people were sentenced and hanged in July, five more in August and eight in September. One accused witch (or wizard, as male witches were often called) was pressed to death on September 19 because he refused to enter a plea to the charges of witchcraft against him. On October 3, after 20 people had been executed in the Salem witch hunt, the Reverend Increase Mather, who was the father of Cotton Mather and then president of Harvard College, delivered a sermon entitled Cases of Conscience concerning Evil Spirits Personating Men, in which he denounced the use of spectral evidence – the girls’ visions – and said:

It were better that ten suspected witches should escape than one innocent person be condemned.

On October 8, 1692, Thomas Brattle, a merchant, mathematician, astronomer, and Fellow of the Royal Society, wrote an eloquent letter (quoted above) criticizing the witchcraft trials and convictions to the members of the General Court. This letter and Increase Mather’s Cases of Conscience apparently had great impact on Governor Phips, who on October 12 prohibited further imprisonments for witchcraft. On October 26, the General Court dismissed the Court of Oyer and Terminer, and on October 29, the Governor formally dissolved it. On November 25, 1692, the General Court created the Superior Court of Judicature to try the remaining witchcraft cases, but spectral evidence was now disallowed. This time, only 3 of 56 defendants were condemned, and Phipps pardoned them along with five others awaiting execution. In May 1693 Phips pardoned all those who were still in prison on witchcraft charges. They were free – provided they could pay their jail bills.

On August 25, 1706, Ann Putnam, Jr. publicly apologized in Salem Village Church for causing the deaths of innocent people and said it was due to a “great delusion of Satan.” Eventually, the colony admitted the trials were a mistake and compensated the families of those convicted. However, Massachusetts did not formally apologize for the events of 1692 until 1957 – more than 250 years later.

The tragic events in Salem Village in 1692 clearly illustrate why alleged supernatural entities or forces are no longer admissible in legal proceedings as evidence of the guilt or innocence of the accused. The Enlightenment, beginning in the late 1680s, contributed to the end of witchhunts throughout Europe and America by pointing out that there was no empirical evidence that alleged witches caused real harm and by emphasizing that the use of torture to force confessions was inhumane. The Enlightenment also resulted in replacing superstition with science, which does not use supernatural entities or forces to explain natural phenomena – such as the bizarre behavoir of Abigail Williams and Elizabeth Parris.

References:

• Frances Hill, A Delusion of Satan: The Full Story of the Salem Witch Trials (Cambridge, MA: Da Capo Press, 1995).
• Marilynne K. Roach, The Salem Witch Trials: A Day-by-day Chronicle Of A Community under Siege (New York, NY: Cooper Square Press, 2004).
• Carl Sagan, Demon Haunted World: Science as a Candle in the Dark (New York, NY: Random House, 1995) 401-420.

January 15, 1929 (a Tuesday)

Martin Luther King, Jr.

On this date, Martin Luther King, Jr., was born in Atlanta, Georgia. The civil rights leader, Baptist minister and founder of the Southern Christian Leadership Conference believed in a strict separation of church and state. Although his many speeches are peppered with references to Jesus and God and often depend for the force of their authority upon “the natural law of God,” the Rev. King knew that the religious status quo tended to support segregation. In his famous “Letter from Birmingham Jail,” dated April 16, 1963, King revealed his pique at continued criticism of the civil rights movement by clergy, pointing out that Sunday morning is the most segregated hour in the country:

In the midst of blatant injustices inflicted upon the Negro, I have watched white churches stand on the sideline and merely mouth pious irrelevancies and sanctimonious trivialities. . . . [H]ere we are moving toward the exit of the twentieth century with a religious community largely adjusted to the status quo, standing as a tail light behind other community agencies rather than a headlight leading men to higher levels of justice. . . . The contemporary Church is so often a weak, ineffectual voice with an uncertain sound. It is so often the arch-supporter of the status quo. . . Is organized religion too inextricably bound to the status quo to save our nation and the world?

References:

• Martin Luther King, Jr., “Letter from Birmingham Jail,” 1963

January 13, 1958 (a Monday)

Scales of Justice

On this date, ONE Incorporated v. K. Olesen (355 U.S. 371) was decided by the United States Supreme Court. It was a historic decision for the civil rights of LGBT people in the United States, as it was the first time the Supreme Court had explicitly ruled on homosexuality.

Background: The idea for a publication dedicated to homosexuals emerged from a Mattachine Society discussion meeting held on October 15, 1952. ONE Inc.’s Articles of Incorporation were signed on Nov. 15, 1952 by “Tony Sanchez” (a pseudonym), Martin Block, and Dale Jennings. Other founders were Merton Bird, W. Dorr Legg, Don Slater, and Chuck Rowland. Jennings and Rowland were also Mattachine Society founders. Merton Bird and Dorr Legg were also founders of The Knights of the Clock, a support group for interracial gay couples that had begun in Los Angeles in 1950.  According to ONE Inc.’s Articles of Incorporation:

…the specific and primary purposes … are to publish and disseminate a magazine dealing primarily with homosexuality from the scientific, historical and critical point of view, and to aid in the social integration and rehabilitation of the sexual variant.

One magazine cover Jan 1953

The name of ONE Inc. and their magazine of the same name originated from a quote from Thomas Carlyle and appears on the title page:  “A mystic bond of brotherhood makes all men one .” Despite the quote, ONE readily admitted women, and Joan Corbin (as Eve Elloree), Irma Wolf (as Ann Carrl Reid), Stella Rush (as Sten Russell), Helen Sandoz (as Helen Sanders), and Betty Perdue (as Geraldine Jackson) were vital to its early success. The magazine continued publication until 1969.

One magazine cover Oct 1954

In January 1953, ONE: The Homosexual Magazine, the first U.S. pro-gay publication, had its inaugural issue, which was sold openly on the streets of Los Angeles.  It sported a very sophisticated look, with bold graphics and professional typset and design. ONE’s slick offering quickly caught the attention of gays and lesbians across the country, and circulation jumped to nearly 2,000 within a few months — with most subscribers paying extra to have their magazine delivered in an unmarked wrapper. Tame by modern standards, ONE hardly matched the girlie magazines of the time and only delicately talked about sex. The content initially consisted mainly of essays on topics of interest to the gay community but also included stories, poems, and book reviews. (In one short story, a lesbian couple touched each other four times before living happily ever after — which was apparently the story’s real crime in the eyes of the government.) After a campaign of harassment from the United States Postal Service and FBI, the Postmaster of Los Angeles declared the October 1954 issue obscene and therefore unmailable under the Comstock laws.  The magazine decided to sue. Interestingly, even the ACLU wouldn’t represent it, having defended the constitutionality of laws that made homosexual behavior criminal, but nevertheless ONE‘s editors did manage to find a lawyer.

ONE magazine cover April-May 1956

Decision: The first court decision (March 1956) sided with the Post Office, in which U.S. District Judge Thurmond Clark stated that “the suggestion that homosexuals should be recognized as a segment of the populace is rejected.” The magazine also lost before the 9th Circuit Court of Appeals (February 1957), which described the October 1954 issue of ONE as “morally, depraving and debasing.” However, to the surprise of all concerned, an appeal to the Supreme Court was not only accepted but, citing its recent landmark decision in Roth v. United States 354 U.S. 476 (1957), the Court, without even waiting for oral arguments, reversed the 9th Circuit in a terse per curiam decision (meaning that they held the issue to be so obvious that no lengthy written opinion was needed).

Remarkably, the news media gave the Supreme Court decision scant attention. The coverage of it in the New York Times read in full:

Reversed unanimously and apparently on the same ground [as in a previously mentioned case involving nudist magazines] a Post Office order excluding from the mails a magazine dealing with homosexuality.

Nevertheless, the case was a landmark, establishing the right to send gay and lesbian material through the mail. It gave life to the country’s incipient gay civil rights movement, more than a decade before the Stonewall Riots. Yet even today, many gay rights activists likely haven’t heard of One Inc. v. K. Olesen. That’s probably because it was followed by four decades of hostile rulings from the nation’s top court, relegating gays and lesbians to second-class citizenship.

References:

• Joyce Murdoch and Deb Price, Courting Justice: Gay Men and Lesbians v. the Supreme Court (New York, NY: Basic Books, 2001).

January 6, 1879 (a Monday)

Scales of Justice

On this date, the U.S. Supreme Court ruled in Reynolds v. U.S. (98 U.S. 145) that the First Amendment did not protect polygamy, and based its decision on historic American cultural values:

Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people. At common law, the second marriage was always void, and from the earliest history of England polygamy has been treated as an offence against society.… In the face of all this evidence, it is impossible to believe that the constitutional guaranty of religious freedom was intended to prohibit legislation in respect to this most important feature of social life. Marriage, while from its very nature a sacred obligation, is nevertheless, in most civilized nations, a civil contract, and usually regulated by law.

Turn of the century photograph of Joseph F. Smith, his wives, and his children.

The Supreme Court’s decision rocked the Mormons, who initially vowed to defy the Court but later seemed to accept the inevitable. In 1890, Mormon leader Wilford Woodruff issued a document called the Manifesto, which terminated “any marriages forbidden by the law of the land.” After 1890, most Mormons abandoned polygamy.

The Reynolds case is still the leading Supreme Court decision that the First Amendment does not protect polygamy. In 1984, a U.S. District Court considered the case of Utah policeman Royston Potter, who was fired for bigamy. District Court Judge Sherman Christensen rejected Potter’s First Amendment defense, and the U.S. 10th Circuit Court of Appeals upheld Christensen’s ruling. In October of 1985 the Supreme Court refused to hear Potter’s appeal. By refusing to consider cases like Potter’s, the Supreme Court has effectively decided to keep Reynolds as the law of the land.

Reynolds is also notable as being one of only two cases (the other was Everson v. Board of Education in 1947) in which the Supreme Court cited Thomas Jefferson’s so-called Danbury letter as “an authoritative declaration of the scope of the [First] Amendment” and agreed that the intention of the First Amendment was “to erect ‘a wall of separation between church and state.’” The Court ruled that the First Amendment absolutely protected religious belief but not necessarily religious conduct. If this were not the case, the court reasoned, human sacrifice for example would have to be allowed where religion required it. Thus, the precedent was clearly established that government could control some types of religious conduct.

However, many legal scholars have criticized the Supreme Court for not modifying or overturning Reynolds. It has been over 100 years since 1879, and in many subsequent cases the Supreme Court has greatly expanded the First Amendment’s legal protection for free exercise of religion. Further, in the 1960s and early 1970s the Supreme Court increased the Constitution’s protection for the civil rights of women, minorities, and other persons whose equality under the law had never been a part of the old common law cited in Reynolds. Logically, therefore, one could expect the Supreme Court to reconsider its position on the constitutionality of polygamy. To date, however, the Supreme Court has not reversed its decision.

January 5, 1982 (a Tuesday)

Scales of Justice

On this date, McLean v. Arkansas Board of Education was decided. An ACLU lawyer for the plaintiff dubbed it “Scopes II”, although the nickname didn’t quite fit this particular case. For one thing, Arkansas had already had its version of the Scopes trial in 1968, when the U.S. Supreme Court struck down the state’s ban on teaching evolution (Epperson v. Arkansas). In the 1980s, instead of banning the teaching of evolution, anti-evolutionists were using a different tactic. They were trying to force the schools to teach creationism alongside evolution. Creationism, or creation-science as it was referred to in Arkansas’ “balanced treatment” law, is the belief that each species was independently created de novo a few thousand years ago in its modern form, and consequently living things do not evolve.

The Biblical creation had allegedly taken seven days, but its trial, which began on December 7, 1981, took nine.

Federal Judge William R. Overton found that Arkansas’ law (Act 590) mandating equal treatment of creation science with evolution violated the Establishment Clause of the First Amendment of the Constitution of the United States. In a decision that gave a detailed definition of the term “science”, the court declared that “creation science” is not in fact a science. Interestingly, to support his conclusion, Overton noted that the Arkansas law was a “model” bill drafted and promoted nationwide by Paul Ellwanger, a respiratory therapist from South Carolina. In explaining his model bill in a letter to Pastor Robert E. Hays, Ellwanger made it clear that he did not believe that creationism was a science:

While neither evolution nor creation can qualify as a scientific theory, and since it is virtually impossible at this point to educate the whole world that evolution is not a true scientific theory, we have freely used these terms – the evolution theory and the theory of scientific creationism – in the bill’s text.

Overton said that Ellwanger’s other correspondence on the subject showed “an awareness that Act 590 is a religious crusade, coupled with a desire to conceal this fact.” For example, in a letter to Senator Joseph Carlucci of Florida, Ellwanger wrote:

It would be very wise, if not actually essential, that all of us who are engaged in this legislative effort be careful not to present our position and our work in a religious framework. For example, in written communications that might somehow be shared with those other persons whom we may be trying to convince, it would be well to exclude our own personal testimony or witness for Christ….

Overton showed that creationism was not science by first listing the essential characteristics of science: (1) it is guided by natural law; (2) it has to be explanatory by reference to natural law; (3) it is testable against the empirical world; (4) its conclusions are tentative, that is, are not necessarily the final word; and (5) it is falsifiable. He then argued that creation science failed to meet these characteristics because it required a supernatural intervention which is not guided by natural law and which “is not explanatory by reference to natural law, is not testable, and is not falsifiable.” In support of this he pointed out that creationist methods “do not take data, weigh it against the opposing scientific data,” and then reach conclusions. Instead, creationists “take the literal wording of the Book of Genesis and attempt to find scientific support for it.” This argument made it clear that “since creation science is not science, the conclusion is inescapable that the only real effect of Act 590 is the advancement of religion.”

The court also found that the statute did not have a secular purpose, noting that the statute used language peculiar to creationist literature in emphasizing origins of life as an aspect of the theory of evolution. While the subject of life’s origins is within the province of biology, the scientific community does not consider the subject as part of evolutionary theory, which assumes the existence of life and is directed to an explanation of how life evolved after it originated. The theory of evolution does not presuppose either the absence or the presence of a creator.

Judge Overton’s most devastating critique of creation science was probably the following observation:

The proof in support of creation science consisted almost entirely of efforts to discredit the theory of evolution through a rehash of data and theories which have been before the scientific community for decades. The arguments asserted by creationists are not based upon new scientific evidence or laboratory data which has been ignored by the scientific community.

January 1, 1802 (a Friday)

Church/State sign.

On this date, President Thomas Jefferson wrote a letter destined to rank with the Declaration of Independence (which he also wrote), the U.S. Constitution, the Bill of Rights, and even the Magna Carta. It has influenced U.S. Supreme Court rulings, informed national debate, and shaped public opinion for over two hundred years.

This letter introduced Jefferson’s “wall of separation” metaphor, upon which the Supreme court in 1879 relied in its first religious liberty ruling, Reynolds v. United States. Citing Jefferson’s “wall” in this precedent-setting First Amendment case, the Court held that:

coming as this does from an acknowledged leader of the advocates of the measure, it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured.

The Supreme Court also depended heavily on Jefferson’s metaphor in its landmark case, Everson v. Board of Education, in which it unanimously supported church-state separation. Justice Hugo Black’s eloquent words are as inspiring and relevant today as they were in 1947:

The “establishment of religion” clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institution, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect “a wall of separation between church and state”…That wall must be kept high and impregnable.

The importance of Jefferson’s wall to religious freedom in the United States cannot be underestimated. If it were allowed to crumble:

• Sectarian religion could invade public education.
• Women could be chained to medieval sectarian medical codes.
• Government could force taxpayers to support sectarian schools and other institutions that routinely practice forms of discrimination and indoctrination the vast majority of Americans would find intolerable.

Jefferson’s letter was a response to one from the Danbury Baptist Association written on 7 October 1801 that praised him and voiced a complaint against Connecticut’s establishment of the Congregational Church.  The Danbury Baptists were a religious minority in Connecticut, and they complained that in their state, the religious liberties they enjoyed were not seen as immutable rights, but as privileges granted by the legislature — as “favors granted, and not as inalienable rights.” Specifically, Connecticut taxed Baptists for the maintenance of Congregationalist churches unless they submitted to the “degrading” practice of obtaining exemption certificates which routed their tax money to their own congregations.

Jefferson received the letter from the Danbury Baptists on December 30 and consulted with the U.S. Attorney General, Levi Lincoln, before replying two days later. Jefferson wrote Lincoln:

The Baptist address, now enclosed, admits of a condemnation of the alliance between Church and State, under the authority of the Constitution. …I know [my response] will give great offense to the New England clergy; but the advocate of religious freedom is to expect neither peace nor forgiveness from them.

Will you be so good as to examine the answer and suggest any alterations which might prevent an ill effect, or promote a good one, among the people?

Those who are ignorant of the complete history of Jefferson’s position, or who deliberately distort his position (for example, David Barton), sometimes contend that the First Amendment’s establishment of religion clause was intended to prevent preferential treatment of one religion over another while allowing non-preferential aid to all religions. However, this argument is completely contrary to the facts. James Madison and Jefferson defeated the non-preferential position in the Virginia legislature the year before the Constitutional Convention was held in Philadelphia. It was later considered by the First Congress and again rejected.

Clearly, the intent of the First Amendment was not simply to block the establishment of a single religion, as some claim, but to erect an enduring wall that keeps government out of religion and religion out of government — a wall that strengthens both religion and government. But no matter how firm a wall’s foundation, constant vigilance is required to keep it from toppling.

References:

• Edd Doerr, “Jefferson’s Wall,” The Humanist vol. 62, no. 1 (Jan/Feb 2002).

December 30, 1818 (a Wednesday)

Scales of Justice

On this date,  Samuel Latham Mitchill appeared in the packed chambers of the Mayor’s Court in New York City Hall as the star witness in the case of James Maurice v. Samuel Judd, a dispute arising under a New York State statute that obliged purveyors of “fish oils” to ensure that their casks had been inspected.

The facts of the case today seem boring. On March 31, 1818, the New York State Legislature passed a law to ensure the quality of fish oils, which were widely used in the tanning and preservation of leather at the time. The law called for a corps of inspectors to “seek out any parcels of fish oil” and to certify the amount of water, sediment, and pure oil each cask contained. It also stipulated that a fine of twenty-five dollars per cask be levied on any buyer of uninspected fish oil. Three months later, a certain Mr. Samuel Judd, owner of the New-York Spermaceti Oil & Candle Factory at 52 Broadway, bought three casks of “fish oil” that had not been “gauged, inspected, and branded, according to law.” Judd claimed he didn’t have to pay the required fine because he had purchased spermaceti, or whale oil, so James Maurice, a city inspector of fish oil, began proceedings to collect the fine.

Judd’s view reflected an intellectual quandary of his time: If a whale is a fish, then why is its tail horizontal rather than vertical? Why do whales not have scales? Why are whales warm-blooded, not cold-blooded like fish? Why do whales breathe air (that whales could drown was a proven fact by then), and give birth (and nurse their young with milk) rather than lay eggs? Why were whales so much smarter than lesser fish? (Apart from the challenge of their size was the challenge of their brains — whaling is hunting, not mere fishing.) And, perhaps most importantly, why did the insides of whales — which were known in the most minute detail as a simple commercial matter — resemble not the lesser fishes but rather cows and pigs?

A New York whaleman’s drawing of a sperm whale, ca. 1810.

However, to many zoologists of the time (but not all), the inside of a whale would have been totally irrelevant.  [Interestingly, Linnaeus himself had said whales were fish in the 9th edition of the Systema Naturae, but formally separated them in the 10th edition, published only two years later in 1758.]  In terms of what today is known as taxonomy, shape and environment were the categorical bases for grouping animals, not internal anatomy. Whales looked like fish (tails and blowholes notwithstanding) and lived where fish lived. The 1817 edition of a leading English dictionary defined fish simply as “an animal that lived exclusively in water”. Even Genesis clearly delineated creation by environment: “fish of the sea” (so, as a matter of elementary Judeo-Christian theology, oysters and crabs are “fish”), “fowl of the air” (bats?), and “every creeping thing that creepeth upon the earth.” Again, whales don’t creepeth upon the earth, so the notion that they are “animals” was fundamentally un-Christian and even bordered on blasphemy. Therefore, whales are fish.

Image of a whale being flensed, from a book called Medieval Life and People. It has a fish face. It has a fish backbone and tail (bending from side to side rather than flexing up and down). But it has breasts.

Nevertheless, by 1818 zoologists had generally conceded that their field was far from complete and that debate and dissent about proper taxonomic classification was not only permissible but inevitable — especially as new species of just about everything kept being discovered. Moreover, the leading naturalists — particularly Samuel Latham Mitchill, a retired politician who also happened to be the preeminent authority on the fishes of New York and the founder of what would become the New York Academy of Sciences — aimed to convert taxonomy to a science of dissection: that species should be grouped together by how they looked on the inside rather than on the outside. Mitchill presented the Linnaean argument from anatomy: whales breathe air and have lungs, not gills; they have four-chambered hearts, like horses but unlike fish; their fins contain bones that are exact analogs of the hands and arms of apes and people; they even have eyelids that move. He famously remarked that “a whale is no more a fish than a man.”

Yet William Sampson, the lead prosecutor, challenged Mitchill at every turn, using arguments that have echoes in recent debates about Darwinian evolution. Was it not true, Sampson asked, that there was wide disagreement among scholars as to exactly how various animals should be classified? And what were common folk to make of the unlikely associations Linnaean taxonomy called upon them to make? Quoting Sampson:

Now, is not man strangely mated or matched when the whale and the porpoise are his second cousins, and the monkey and the bat his germans [close relations]? Other gentlemen may choose their company, [but] I am determined to cut the connection.

So what happened? After some wrangling about whether statutory interpretation should even be a question left to the lay jurors of a municipal trial court (a debate we sometimes have to this day), the judge charged the jury which, after only 15 minutes of deliberation, announced a verdict for the plaintiff.  [However, within a month, the New York State Legislature essentially overturned the verdict by exempting whale oil from inspection — in the eyes of the law, the whale would no longer count as a fish.]

More than a century before Scopes, science was put on trial, and was convicted.

References:

• D. Graham Burnett, Trying Leviathan: The Nineteenth Century New York Court Case that Put the Whale on Trial and Challenged the Order of Nature (Princeton University Press, 2007).
• Eric Jay Dolin, Leviathan: The History of Whaling in America (W.W. Norton, 2007) pp. 384-385.

December 20, 2005 (a Tuesday)

Church/State sign.

On this date, Kitzmiller et al. v. Dover Area School Districtwas decided.

First, some background information. In October 2004, the Dover [PA] Area School District Board of Directors had decided that “Students will be made aware of gaps/problems in Darwin’s theory and of other theories of evolution including, but not limited to, intelligent design.” In November 2004, they had announced that Dover High School’s ninth-grade biology teachers would read a statement informing students that “Darwin’s Theory . . . is not a fact” and that “intelligent design is an explanation of the origin of life that differs from Darwin’s view.” The statement referred students to the creationist textbook Of Pandas and People to learn “what intelligent design actually involves.” On December 14, 2004, eleven parents had filed suit in the Middle District of Pennsylvania against the District’s Board of Directors. [Interestingly, in January 2005, science teachers refused to read the ID statement; administrators read it themselves.] The trial had begun on September 26, 2005.

Judge John Jones

The presiding judge, John E. Jones III, was not fooled by the defendants’ denials that they are creationists: “[Intelligent Design] cannot uncouple itself from its creationist, and thus religious, antecedents.” He was especially displeased that board members Buckingham and Bonsell had lied under oath during their depositions:

[T]he inescapable truth is that both Bonsell and Buckingham lied at their January 3, 2005 depositions about their knowledge of the source of the donation for Pandas. . . . This mendacity was a clear and deliberate attempt to hide the source of the donations . . . to further ensure that Dover students received a creationist alternative to Darwin’s theory of evolution [emphasis added].

Presented with the truth about the board’s policy and the ID creationism it promoted, Jones ruled accordingly:

A declaratory judgment is hereby issued in favor of Plaintiffs . . . such that Defendants’ ID Policy violates the Establishment Clause of the First Amendment of the Constitution of the United States and . . . the Constitution of the Commonwealth of Pennsylvania.

The victory was not just legal; the pro-ID school board was replaced by the voters on November 8, 2005.

December 6, 1862 (a Saturday)

Ordered that of the Indians and Half-breeds sentenced to be hanged by the military commission, composed of Colonel Crooks, Lt. Colonel Marshall, Captain Grant, Captain Bailey, and Lieutenant Olin, and lately sitting in Minnesota, you cause to be executed on Friday the nineteenth day of December, instant, the following names, to wit [39 names listed by case number of record: cases 2, 4, 5, 6, 10, 11, 12, 14, 15, 19, 22, 24, 35, 67, 68, 69, 70, 96, 115, 121, 138, 155, 170, 175, 178, 210, 225, 254, 264, 279, 318, 327, 333, 342, 359, 373, 377, 382, 383].

The other condemned prisoners you will hold subject to further orders, taking care that they neither escape, nor are subjected to any unlawful violence.

Abraham Lincoln,
President of the United States

Mass hanging of 38 Dakota Sioux on 26 December 1862

The above quote is the full text of Lincoln’s Order to General Henry Sibley, St. Paul Minnesota on this date authorizing the execution of thirty-eight Dakota Sioux (the sentence of one of the individuals named in the Order was commuted to imprisonment on 23 December). The hanging, following trials which condemned to death over three hundred participants in the 1862 Dakota Conflict (or Dakota War or Sioux Uprising), stands as the largest mass execution in American history. There wasn’t enough rope to make all the nooses, so the hangings were actually delayed until the day after Christmas, occurring on Friday the 26th at about 10:00 AM.

Only the intervention of President Lincoln saved 265 other Dakota from the fate met by the less fortunate thirty-eight. The decision was wildly unpopular among Minnesota’s white settlers. The mass hanging was the concluding scene in the opening chapter of a story of American-Sioux conflict that would not end until the Seventh Cavalry completed its massacre at Wounded Knee, South Dakota, on December 29, 1890.

A decade before the Dakota Conflict, the Minnesota Territory, stretching from the upper Mississippi to the Missouri River, was still mostly Indian country. In 1851, the United States signed two treaties with the Dakota that resulted in the Indians’ ceding huge portions of the Minnesota Territory. In exchange, they were promised annuity payments totaling $1.4 million dollars over a fifty-year period, and directed to live on two twenty-mile wide by seventy-mile long reservations along the Minnesota River. The thoroughly corrupt Bureau of Indian Affairs was responsible for overseeing the terms of the treaties. Not surprisingly, many of the trade goods were substandard and overvalued by several hundred percent, and the promised annuity payments were often not forthcoming – stolen by Washington functionaries, or simply channeled directly to the crooked traders and Indian agents.

This situation continued for years. Finally, in 1858 – the year Minnesota entered the Union – a party of Dakota led by Chief Little Crow visited Washington to see about proper enforcement of the treaties. It did not go the way they’d hoped; instead of acknowledging the Dakota grievances, the government took back half their reservation, and opened it up to white settlement – and promised increased annuity payments. The land was cleared, and the hunting and fishing that had in large measure sustained the Dakota virtually ended.

Forced to Negotiate

The treaties of 1851 and 1858 set the stage for the Dakota Conflict by undermining the Dakota culture and the power of chieftains and leading to a corrupt system of Indian agents and traders. Annuity payments reduced the once proud Dakota to the status of dependents. They reduced the power of chiefs because annuity payments were made directly to individuals rather than through tribal structures. They created bitterness because licensed traders cheated the Indians. No effective means of legal recourse was available to wronged Dakota. The fact that the Dakota people were squeezed into a small fraction of their former lands made it easy, according to Minnesota historian William Folwell, “for malcontents to assemble frequently to growl and fret together over grievances.”

Hunger was widespread throughout Dakota lands in Minnesota Territory. Since crops had been poor in 1861, the Dakota had little food stored for the “starving winter” of 1861-62. Their reservation supported no game and increasing settlement off the reservation meant growing competition with white settlers hunting for meat. “These poor creatures subsisted on a tall grass which they find in the marshes, chewing the roots and eating the wild turnip,” wrote Sarah Wakefield, wife of the Upper Sioux Agency’s doctor. “Many died from starvation or disease caused by eating improper food. It made my heart ache. I remember distinctly of the agent giving them dry corn, and these poor creatures were so near starvation that they ate it raw like cattle.”

Reports about government agents’ corrupt treatment of the Dakota were ignored. Factionalism continued to grow amongst the Dakota, as those who maintained traditional ways saw that only those who had acculturated were reaping government support. Though Dakota farmers shared food with their relatives throughout the summer of 1862, it wasn’t enough.

To make matters worse, annuity payments for the Dakota were late in the summer of 1862. An August 4, 1862 confrontation between soldiers and braves at the Upper Agency at Yellow Medicine led to a decision to distribute provisions on credit to avoid violence.

At the Lower Agency at Redwood, however, things were handled differently. At an August 15, 1862 meeting attended by Dakota representatives, Indian Agent Thomas Galbraith, and representatives of the traders, the traders resisted pleas to distribute provisions held in agency warehouses to starving Dakota until the annuity payments finally arrived. Trader Andrew J. Myrick summarized his position in the bluntest possible manner:  “So far as I am concerned, if they are hungry, let them eat grass or their own dung.” Unbeknownst to those gathered at the Lower Agency, the long delayed 1862 annuity payments were already on their way to the Minnesota frontier. On August 16, a keg with $71,000 worth of gold coins reached St. Paul. The next day the keg was sent to Fort Ridgely for distribution to the Dakota. It arrived a few hours too late to prevent an unprecedented outbreak of violence.

“So far as I am concerned, if they are hungry, let them eat grass or their own dung.” -Andrew Myrick, 1862

On Sunday, August 17, four Dakota from a breakaway band of young malcontents were on a hunting trip when they came across some eggs in a hen’s nest along the fence line of a settler’s homestead. When one of the four took the eggs, another of the group warned him that the eggs belonged to a white man. The first young man became angry, dashed the eggs to the ground, and accused the other of being afraid of white men, even though half-starved. Apparently to disprove the accusation of cowardice, the other Dakota said that to show he was not afraid of white men he would go the house and shoot the owner. He challenged the others to join him. Minutes later three white men, a white woman, and a fifteen-year old white girl lay dead.

The issue of whether to wage war against white citizens was debated by a multi-band council on August 17, the night following the massacre of five white settlers (murders, beyond question) at Acton. As stated by Chief Big Eagle, “A council was held and war was declared… I was still of the belief that it was not best, but I thought I must go with my band and my nation, and I said to my men that I would lead them into the war, and we would all act like brave Dakotas and do the best we could.” It appears that the decision to wage war was made over the opposition of some tribal leaders.

On 18 August 1862, after the Battle of Lower Sioux Agency, post trader Andrew Myrick was found dead, with his mouth stuffed full of grass.

All told, the Conflict lasted about five weeks. It claimed the lives of some 500 white settlers and U.S. soldiers, caused a general evacuation of settlers from the whole of southwestern Minnesota, and witnessed the wholesale destruction of settlers’ houses, barns, and property. About sixty Dakota died in the fighting.

The Dakota had every right to believe that they would be treated as enemy soldiers–many were told, in fact, that in exchange for their surrender under a flag of truce, they’d be treated as prisoners of war. They were not. White Minnesotans were in no mood for conciliation or reconciliation; retribution–vengeance–stormed through the Minnesota River valley and throughout the state.

General John Pope, Sibley’s superior, wrote to him in a letter dated 28 September 1862:

The horrible massacres of women and children and the outrageous abuse of female prisoners, still alive, call for punishment beyond human power to inflict. There will be no peace in this region by virtue of treaties and Indian faith. It is my purpose utterly to exterminate the Sioux if I have the power to do so and even if it requires a campaign lasting the whole of next year. Destroy everything belonging to them and force them out to the plains, unless, as I suggest, you can capture them. They are to be treated as maniacs or wild beasts, and by no means as people with whom treaties or compromises can be made.  [emphasis added]

“It is my purpose utterly to exterminate the Sioux if I have the power to do so…” John Pope, 1862

On 28 September 1862, Sibley appointed a five-member military commission to “try summarily” Dakota and mixed-bloods for “murder and other outrages” committed against Americans, although he had no authority to do so. The commission believed that mere participation in a battle justified a death sentence, so in the many cases, perhaps two-thirds of the total, where the prisoner admitted to firing shots, it proceeded to a guilty verdict in a matter of a few minutes. Somewhat more deliberation was required for trials in which the charge was the murder or rape of settlers, because admissions were much rarer in these cases. After the defendant gave whatever response he cared to make to the charge, prosecution witnesses were called, whose damaging statements went unchallenged. Where prosecution witnesses contradicted the testimony of the defendant, the commission almost invariably found the prisoner to be guilty.

Not only was there a lack of substantial evidence against the defendants and a lack of due process at trial, but commission members harbored prejudice (not surprisingly) against the defendants. One of the Commission’s members, William Marshall, frankly admitted his own difficulty in viewing the evidence impartially:  “[my] mind was not in a condition to give the men a fair trial.” Reverend Riggs, an observer at many of the trials, wrote to a St. Paul paper of the attitudes he witnessed: “I have a very high regard for all the gentlemen who composed the military commission. I count them individually among my personal friends. But they were trying Indians; and my sense of right would lead me to give Indians as fair and full a trial as white men. This was the difference between us.”

Furthermore, the commission was wrong to treat the defendants as common criminals rather than as the legitimate belligerents of a sovereign power. The history of the United States reflects, according to Carol Chomsky, Associate Professor at the University of Minnesota Law School, “a de facto recognition that members of an Indian tribe should be treated as legitimate belligerents.” The Supreme Court in 1831 referred to Indian tribes as “domestic dependent nations”, and treaties between the United States and the Dakota recognized the sovereign status of the Dakota. The use of force by individuals in a declared war between sovereign nations is generally not subject to the same treatment as would similar acts of assault or murder committed by individuals under different circumstances. Captured enemy soldiers are treated as legitimate belligerents and held as prisoners of war until hostilities cease and they are released. (This special treatment does not, of course, cover all acts of violence committed by the enemy. Torture, rape, and the killing of unarmed civilians, for example, are considered violations of the laws of war and subject to punishment.)  If the defendants were not prisoners of war, the trials should have been conducted in state courts using normal rules of criminal procedure rather than by military commission.

As Chomsky summarizes:

The trials of the Dakota were conducted unfairly in a variety of ways. The evidence was sparse, the tribunal was biased, the defendants were unrepresented in unfamiliar proceedings conducted in a foreign language, and authority for convening the tribunal was lacking. More fundamentally, neither the Military Commission nor the reviewing authorities recognized that they were dealing with the aftermath of a war fought with a sovereign nation and that the men who surrendered were entitled to treatment in accordance with that status.

At President Lincoln’s cabinet meeting on 14 October 1862, the ongoing Dakota trials were discussed. Lincoln and several cabinet members were disturbed by General Pope’s report on the trials and planned executions, and moved to prevent precipitous action. On 17 October, General Pope informed Sibley that “the President directs that no executions be made without his sanction.”

On November 8, after completing the harried trials of Dakota prisoners, Sibley presented the list of 303 condemned Dakota men to the U.S. government. Two days later, President Lincoln wired General Pope: “Please forward, as soon as possible, the full and complete record of these convictions” and “a careful statement” indicating “the more guilty and influential of the culprits.” On 15 November, Pope forwarded records of the trials to President Lincoln, together with a letter urging Lincoln to authorize execution of all of the condemned and warning of mob violence if the executions did not go forward.

Henry Whipple, the Episcopal Bishop of Minnesota, was one of the very few Minnesota whites opposed to the executions. In late November, he met with Lincoln in Washington and discussed the causes of the Dakota Conflict. The President remarked not long after: “He [Whipple] came here the other day and talked with me about the rascality of this Indian business until I felt it down to my boots. If we get through this [civil] war, and I live, this Indian system shall be reformed!” In December, Whipple even published his views in the St. Paul newspapers. So far as is known, he was the only public man who had the courage to face the whirlwind of popular denunciation of all Indians and of the Dakota in particular.

Lincoln knew well that the lust for Dakota blood could not be ignored; to prevent any executions from going forward might well have condemned all 303 to death at mob hands. Alexander Ramsey, the governor of Minnesota – who had made a fortune cheating the Dakota — threatened that if the President didn’t hang all the condemned, the citizens of his state would. On 9 September 1862, Ramsey was furious over the killing of roughly 600 settlers and soldiers when he had addressed the State Legislature and said: “The Sioux Indians of Minnesota must be exterminated or driven forever beyond the borders of the state.“

“The Sioux Indians of Minnesota must be exterminated or driven forever beyond the borders of the state….” -Gov. Alexander Ramsey, 1862

Lincoln believed it important to try to sort out the more guilty from the less guilty. He asked two clerks to go through the commission’s trial records and identify those prisoners convicted of raping women or children. They found only two [cases 2 and 4]. Lincoln then asked his clerks to search the records a second time and add those convicted of participating in the massacres of settlers to the list. This time the clerks came up with the thirty-nine names included in Lincoln’s handwritten order of execution written on 6 December 1862. Because of the Commission’s haste and rather sketchy records, he was unable to determine degrees of guilt as well as he might have had the Commission allowed more time for trials and prepared more complete trial records.

Two Minnesota Republicans in Congress and friends of Lincoln’s – Sen. Morton Wilkinson of Mankato and Rep. William Windom of Winona – were upset about Lincoln commuting the 264 Dakota death sentences.  They were the first to push for removal of all Dakota from Minnesota.  Windom and Wilkinson sponsored bills to remove the two tribes from Minnesota. The measures passed Congress with little opposition in early 1863, with $50,000 attached to move 3,000 Dakota beyond any states, to unoccupied land “well adapted for agricultural purposes.”  The new law dissolved the reservations in Minnesota and canceled the treaties.

On 22 March 1866 President Andrew Johnson ordered the release of the 177 surviving prisoners. They were moved to the Santee Reservation near Niobrara, Nebraska.

DAKOTA 38 from Smooth Feather on Vimeo.

References:

• Chomsky, Carol. “The United States-Dakota War Trials: A Study in Military Injustice” Stanford Law Review, Vol. 43, No. 1 (Nov., 1990), pp. 13-98.
• Curt Brown. “In the Footsteps of Little Crow: 150 years After the U.S.-Dakota War“. Published in seven installments in the Minnesota Star-Tribune, 12-17 August 2012.

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.