Category Archives: Law

July 21, 1925 (a Tuesday)

Darrow addressing the jury and courtroom spectators.

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

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

References:

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

July 20, 1925 (a Monday)

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

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

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

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

July 19, 1925 (a Sunday)

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

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

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

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

July 17, 1925 (a Friday)

Judge Raulston delivers a ruling.

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

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

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

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

July 17, 2011 (a Sunday)

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

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

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

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

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

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

July 16, 1925 (a Thursday)

John Thomas Scopes, June, 1925.

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

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

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

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

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

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

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

July 15, 1925 (a Wednesday)

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

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

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

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

July 14, 1925 (a Tuesday)

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

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

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

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

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

July 13, 1925 (a Monday)

The judge (right) and jury.

On this date, the defense in the Scopes Monkey Trial argued that the indictment of John Scopes should be thrown out for violating either the United States or Tennessee constitutions. This was the heart of the defense strategy; the goal was not to obtain the acquittal of Scopes, but to have a higher court – preferably the U.S. Supreme Court – declare laws forbidding the teaching of evolution to be unconstitutional. As expected, Judge Raulston denied the defense motion.

Notably, it was today that Clarence Darrow made the following famous statement during the trial:

If today you can take a thing like evolution and make it a crime to teach it in the public school, tomorrow you can make it a crime to teach it in the private schools, and the next year you can make it a crime to teach it to the hustings or in the church. At the next session you may ban books and the newspapers. Soon you may set Catholic against Protestant and Protestant against Protestant, and try to foist your own religion upon the minds of men. If you can do one you can do the other. Ignorance and fanaticism is ever busy and needs feeding. Always it is feeding and gloating for more. Today it is the public school teachers, tomorrow the private. The next day the preachers and the lectures, the magazines, the books, the newspapers. After while, your honor, it is the setting of man against man and creed against creed until with flying banners and beating drums we are marching backward to the glorious ages of the sixteenth century when bigots lighted fagots to burn the men who dared to bring any intelligence and enlightenment and culture to the human mind.

July 11, 1977 (a Monday)

The Love That Dares To Speak Its Name

By James Kirkup

Christ blessing - Raphael, 1506.

‘Christ Blessing’ – Raphael, 1506.

As they took him from the cross
I, the centurion, took him in my arms–
the tough lean body
of a man no longer young,
beardless, breathless,
but well hung.

He was still warm.
While they prepared the tomb
I kept guard over him.
His mother and the Magdalen
had gone to fetch clean linen
to shroud his nakedness.

I was alone with him.
For the last time
I kissed his mouth. My tongue
found his, bitter with death.
I licked his wound-
the blood was harsh

For the last time
I laid my lips around the tip
of that great cock, the instrument
of our salvation, our eternal joy.
The shaft, still throbbed, anointed
with death’s final ejaculation.

 Christ at the Column - Giovanni Antonio Bazzi (Il Sodoma), 1514.

‘Christ at the Column’ – Giovanni Antonio Bazzi (Il Sodoma), 1514.

I knew he’d had it off with other men-
with Herod’s guards, with Pontius Pilate,
With John the Baptist, with Paul of Tarsus
with foxy Judas, a great kisser, with
the rest of the Twelve, together and apart.
He loved all men, body, soul and spirit – even me.

So now I took off my uniform, and, naked,
lay together with him in his desolation,
caressing every shadow of his cooling flesh,
hugging him and trying to warm him back to life.
Slowly the fire in his thighs went out,
while I grew hotter with unearthly love.

It was the only way I knew to speak our love’s proud name,
to tell him of my long devotion, my desire, my dread-
something we had never talked about. My spear, wet with blood,
his dear, broken body all open wounds,
and in each wound his side, his back,
his mouth – I came and came and came

as if each coming was my last.
And then the miracle possessed us.
I felt him enter into me, and fiercely spend
his spirit’s final seed within my hole, my soul,
pulse upon pulse, unto the ends of the earth-
he crucified me with him into kingdom come.

Christ at the Column - Donato Bramante,  c. 1490.

‘Christ at the Column’ – Donato Bramante, c. 1490.

-This is the passionate and blissful crucifixion
same-sex lovers suffer, patiently and gladly.
They inflict these loving injuries of joy and grace
one upon the other, till they die of lust and pain
within the horny paradise of one another’s limbs,
with one voice cry to heaven in a last divine release.

Then lie long together, peacefully entwined, with hope
of resurrection, as we did, on that green hill far away.
But before we rose again, they came and took him from me.
They knew what we had done, but felt
no shame or anger. Rather they were glad for us,
and blessed us, as would he, who loved all men.

And after three long, lonely days, like years,
in which I roamed the gardens of my grief
seeking for him, my one friend who had gone from me,
he rose from sleep, at dawn, and showed himself to me before
all others. And took me to him with
the love that now forever dares to speak its name.

Zen stones

'Gay News' issue #96, dated 3 June 1976.

‘Gay News’ issue #96, dated 3 June 1976.

The above poem alluding to Jesus Christ and same-sex attraction was published, along with a drawing by the illustrator Tony Reeves, on page 26 of issue 96 dated 3 June 1976 of the British periodical Gay News. It expresses the fictional love of a Roman Centurion for Jesus and describes him having sex with the Christ’s crucified body. It also suggests Jesus had sex with Pontius Pilate, the disciples, and John the Baptist.

In early November 1976, a certain Mary Whitehouse obtained a copy of the poem and construed it as blasphemous. She announced her intention to bring a private prosecution against the magazine under the Blasphemy Act of 1697. Under Section 8 of the Law of Libel Amendment Act of 1888, intended to protect newspapers from vexatious litigation, this required the leave of a judge in chambers. Leave to bring this prosecution was granted on 9 December 1976. The charges named Gay News Ltd and Denis Lemon as the publishers. A charge against Moore Harness Ltd for distributing was subsequently dropped.

The indictment described the offending publication as “a blasphemous libel concerning the Christian religion, namely an obscene poem and illustration vilifying Christ in his life and in his crucifixion”. The Gay News Fighting Fund was set up in December 1976. Judge Alan King-Hamilton QC heard the trial at the Old Bailey on 4 July 1977, with John Mortimer QC and Geoffrey Robertson representing the accused and John Smyth representing Mary Whitehouse.

'The Dead Christ' - Andrea Mantegna, 1480.

‘The Dead Christ’ – Andrea Mantegna, 1480.

Prosecuting Counsel John Smyth told the court: “It may be said that this is a love poem — it is not, it is a poem about buggery.” The defense argued that far from being “vile” and “perverted” the poem glorified Christ by illustrating that all of mankind could love him. During the six-day trial columnist and TV personality Bernard Levin and novelist Margaret Drabble testified that the Gay News was a responsible paper that did not encourage illegal sexual practices.

On Monday, 11 July 1977, the jury gave their 10-2 guilty verdict in the case of Whitehouse v. Lemon. Gay News Ltd was fined £1,000. Denis Lemon was fined £500 and sentenced to nine months imprisonment suspended. It had been “touch and go”, said the judge, whether he would actually send Denis Lemon to jail.

Mary Whitehouse’s costs of £7,763 were ordered to be paid four-fifths by Gay News Ltd and one-fifth by Lemon. Gay News Ltd and Denis Lemon appealed against conviction and sentence. On 17 March 1978, the Court of Appeal quashed Denis Lemon’s suspended prison sentence but upheld the convictions. Gay News readers voted by a majority of 20 to 1 in favor of appealing to the House of Lords. The Law Lords heard the appeal against conviction and delivered their judgment on 21 February 1979. At issue was whether or not the offense of blasphemous libel required specific intent of committing such a blasphemy. The Lords concluded that intention was not required. The appeal was lost.

Man of Sorrows - Maarten van Heemskerck, 1532.  The artist has depicted Christ with an erection, which according to some scholars' interpretation, is a symbol of his resurrection and lifelong power.

‘Man of Sorrows’ – Maarten van Heemskerck, 1532. The artist has depicted Christ with an erection, which according to some scholars’ interpretation is a symbol of his resurrection and lifelong power.

The European Commission of Human Rights declared the case inadmissible to be heard by the European Court of Human Rights on 7 May 1982. The £26,435 raised by the Gay News Fighting Fund through benefits and donations from the gay community and others, including a £500 donation from Monty Python, was sufficient to cover the costs of the trial and appeals.

On 11 July 2002, a deliberate and well-publicized public reading of the poem took place on the steps of St Martin-in-the-Fields church in Trafalgar Square in central London, but failed to lead to any prosecution. Police officers surrounded the campaigners as a collection of people opposed to the reading attempted to shout as loud as they could to prevent anyone from hearing. The protest passed off without any incidents, with campaigners arguing for blasphemy laws to be scrapped. “We have won an important victory for free speech and the right to protest”, declared human rights campaigner Peter Tatchell. The author, James Falconer Kirkup, at the time 84, criticized campaigners because he did not want the poem to be used for “political ends”.

For years, publishing this poem was illegal in the UK, although the poem was and is widely available on the Internet. Whitehouse v. Lemon was the last prosecution for blasphemy in the UK. Britain’s ancient laws of blasphemy and blasphemous libel, which made it illegal to insult Christianity, were finally abolished by the Criminal Justice and Immigration Act of 2008.

'Saint Sebastian' - Guido Reni, 1615, currently at Palazzo Russo in Genoa.

‘Saint Sebastian’ – Guido Reni, 1615, currently at Palazzo Russo in Genoa.

The scandal “The Love That Dares To Speak Its Name” provoked was out of all proportion to any offense it might have caused to believing Christians, just as the celebrity it achieved was out of all proportion to any merit it might have enjoyed as literature. The poem would probably have been read by only a few hundred people, and perhaps largely forgotten, if it were not for the publicity of the trial.

The poem’s lack of originality is apparent from its title, which is not merely an inverted cliché but one that is a reference to the famous poem by Lord Alfred Douglas (1870-1945), “Two Loves“, which was itself a reference to the Shakespeare sonnet #144, also named “Two Loves.” The imagery of Kirkup’s poem is relentlessly shocking, from the opening verse where we read that the dead Christ has “the tough, lean body of a man no longer young, beardless, breathless, but well hung” to the fifth verse, an enumeration of Christ’s sexual partners (although it clearly is not pornographic because it is not obscene simply for the sake of obscenity). The mention of Paul is particularly inane, since Paul never met Christ and many Christians suspect that his message might have been very different if he had. Moreover, Kirkup betrays his ignorance of the gospel story by leaving out the most likely candidate for “the disciple whom Jesus loved”: Saint John.

Central figures in Bernini's 'Ecstasy of Saint Teresa'.

Central figures in Bernini’s ‘Ecstasy of Saint Teresa’.

Yet, much classic religious art has always been intensely erotic, whether it be Guido Reni’s Saint Sebastian, which was a favorite painting of both Oscar Wilde and Yukio Mishima, or Bernini’s Ecstasy of Saint Teresa, a sculpture which depicts a truth evident to any open-minded reader of the story of Teresa of Avila: that her “raptures” are essentially orgasmic. The two central figures of the swooning nun and the angel with the spear derive from an episode described by the mystical cloistered Discalced Carmelite reformer and nun in her autobiography, The Life of Teresa of Jesus (1515–1582). In the passage, she describes being pierced by a seraphim’s spear: “In his hands I saw a long golden spear and at the end of the iron tip I seemed to see a point of fire. With this he seemed to pierce my heart several times so that it penetrated to my entrails. When he drew it out, I thought he was drawing them out with it and he left me completely afire with the love of God. The pain was so sharp that it made me utter several moans; and so excessive was the sweetness caused me by this intense pain that one can never wish to lose it.”

It was a pity that the furor overshadowed Kirkup’s other achievements as a poet and writer, which were considerable. His poem “No More Hiroshimas” [archived here] is particularly moving.

July 10, 1925 (a Friday)

Clarence Darrow and William Jennings Bryan during the trial.

On this date, the famous Scopes Monkey Trial began in Dayton, Tennessee with jury selection in the Rhea County Court House.

On 21 March 1925, Tennessee Governor Austin Peay had signed the Butler Act, making it illegal “to teach any theory that denies the story of divine creation as taught by the Bible and to teach instead that man was descended from a lower order of animals.” In May, the American Civil Liberties Union had announced that it was willing to offer its services to any teacher who challenged the constitutionality of the new Tennessee anti-evolution statute.

Local town leaders, realizing that a controversial trial would bring attention to Dayton and that the resulting publicity might thereby economically benefit the town, had recruited a local high school teacher, John Scopes, to stand trial under the Act. The 24-year-old Scopes was in his first job after graduating from the University of Kentucky in 1924. He taught algebra and physics, served as athletic coach, and occasionally substituted in biology classes at the Rhea County High School. The indictment identified the date of his teaching evolution as “the 24th day of April.”

Clarence Darrow, known as one of the best lawyers of his era, led the defense while William Jennings Bryan, three-time Democratic candidate for President and a populist, led the prosecution. The stage was set for one of the most famous trials in American history. For many Americans, this event marked the beginning of a re-examination of long-held religious beliefs and a growing acceptance of evolution and its implications for the place of humans on the planet.

More photos are available here.

June 28, 1971 (a Monday)

Church/State sign.

On this date, Lemon v. Kurtzman was decided by the U.S. Supreme Court.  Although unrelated to the teaching of evolution, the Court established a set of legal criteria for determining whether a law violates the Establishment Clause. In order to be constitutional under the “Lemon test,” a law must have a secular purpose, not advance or inhibit religion, and not excessively entangle the government with religion. The Lemon test will be applied to subsequent cases on the teaching of evolution.

June 26, 2003 (a Thursday)

Scales of Justice

On this date, the U.S. Supreme Court decided the case of Lawrence v Texas (539 US 558). This landmark ruling (6 to 3) struck down a Texas law that prohibited sodomy (that is, anal sex) between same sex couples. The Court had previously addressed the same issue in 1986 in Bowers v Hardwick (478 US 186), where it upheld a challenged Georgia statute, not finding a constitutional protection of sexual privacy.

The case arose when police received an anonymous tip of a disturbance in an apartment. The police went to and entered the apartment and discovered two men engaged in homosexual activity. The men were arrested and convicted under a Texas law that prohibits “deviate sexual intercourse.” They were fined $200. The Texas Court of Criminal Appeals affirmed their convictions and rejected challenges to the Texas law based on both privacy and equal protection.

Justice Anthony Kennedy, writing for the majority, held that the right to privacy protects a right for adults to engage in private, consensual homosexual activity. He said that this right is protected under the word “liberty” in the due process clause of the Fourteenth Amendment, and is not trivial. Kennedy wrote:

The Court began its substantive discussion in Bowers as follows: ‘The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time.’ That statement, we now conclude, discloses the Court’s own failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse…

When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.

Justice Kennedy expressly analogized to Supreme Court precedents protecting the right to purchase and use contraceptives and the right to abortion as aspects of privacy. The Court concluded that:

Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.

Justice O’Connor, who had voted with the majority in Bowers, concurred in the judgment in Lawrence but said that she would not overrule Bowers. Instead, she would invalidate the Texas law because it applied only to same-sex couples. For her, the Georgia law in Bowers was different because it applied both to opposite-sex and same-sex couples. In some ways, O’Connor’s opinion was broader than the majority’s, for as Antonin Scalia noted in dissent, it explicitly cast doubt on whether laws limiting marriage to heterosexual couples could pass rational-basis scrutiny. O’Connor explicitly noted in her opinion that a law limiting marriage to heterosexual couples would pass the rational-basis test as long as it was designed to preserve traditional marriage, and was not simply based on the state’s dislike of homosexual persons.

However, O’Connor does not explain how a law limiting marriage to heterosexual couples could be designed to “preserve” (whatever that means) traditional marriage WITHOUT being motivated by the state’s dislike of homosexual persons. Furthermore, if a state provides nearly all the benefits of marriage to same-sex couples but calls it “civil union” or “domestic partnership”, its duplicity and prejudice become even more obvious by refusing to allow them to marry.

Justice Scalia, joined by Chief Justice Rehnquist and Justice Thomas, dissented. He said, with his characteristic hyperbole and hysteria, that the Court was not justified in overruling the precedent of Bowers v. Hardwick. Scalia’s dissenting opinion argued that states should be able to make the moral judgment that homosexual conduct is wrong and embody that judgment in criminal statutes. He also averred that State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers‘ validation of laws based on moral choices.

However, Scalia’s assertion is NOT true — proscribing adult incest can be justified on medical grounds, since children produced by such activity are more likely to suffer genetic disorders, and proscribing bestiality can be justified on grounds of animal cruelty. Also, it logically follows from Scalia’s reasoning that states should be able to make the moral judgment that interracial marriage is wrong and embody that judgment in criminal statutes – except that the Supreme Court has previously ruled those laws unconstitutional as well.

With Lawrence, Scalia concluded, the Court “has largely signed on to the so-called homosexual agenda.” While Scalia said that he has “nothing against homosexuals, or any other group, promoting their agenda through normal democratic means,” Scalia argued that the Court has an obligation to decide cases neutrally. 

Of course, Scalia’s use of the term “agenda”, implying that the action against Texas is part of a wider, covert effort to legalize the activities he mentions above, debases homosexual persons, and his protestation that he has nothing against them only confirms his bias, or at least makes his self-professed neutrality suspect.

June 26, 1987 (a Friday)

From Article 5 of the U.N. Universal Declaration of Human Rights

On this date, the United Nation’s Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment came into effect. Since 1998, each anniversary has been observed as International Day in Support of Victims of Torture. On this day, we pay deep respect and tribute to all those around the world who have suffered and endured the worst torture.

The Convention obliges States to make torture a crime and to prosecute and punish those guilty of it. It notes explicitly that neither higher orders nor exceptional circumstances can justify torture.

As of June 1998, the Convention had been ratified by 105 States. These States parties are required to report to the UN Committee against Torture, a human rights treaty body set up in 1987 to monitor compliance with the Convention and to assist States parties in implementing its provisions. The Committee is composed of 10 independent experts who serve in their personal capacity and are elected by States parties.

These 105 States parties to the Convention against Torture are: Afghanistan, Albania, Algeria, Antigua and Barbuda, Argentina, Armenia, Australia, Austria, Azerbaijan, Bahrain, Belarus, Belize, Benin, Bosnia and Herzegovina, Brazil, Bulgaria, Burundi, Cambodia, Cameroon, Canada, Cape Verde, Chad, Chile, China, Colombia, Costa Rica, Cote d’Ivoire, Croatia, Cuba, Cyprus, Czech Republic, Democratic Republic of the Congo, Denmark, Ecuador, Egypt, El Salvador, Estonia, Ethiopia, Finland, France, Georgia, Germany, Greece, Guatemala, Guinea, Guyana, Honduras, Hungary, Iceland, Israel, Italy, Jordan, Kenya, Kuwait, Kyrgyzstan, Latvia, Libyan Arab Jamahiriya, Liechtenstein, Lithuania, Luxembourg, Malawi, Malta, Mauritius, Mexico, Monaco, Morocco, Namibia, Nepal, Netherlands, New Zealand, Norway, Panama, Paraguay, Peru, Philippines, Poland, Portugal, Republic of Korea, Republic of Moldova, Romania, Russian Federation, Saudi Arabia, Senegal, Seychelles, Slovakia, Slovenia, Somalia, Spain, Sri Lanka, Sweden, Switzerland, Tajikistan, The former Yugoslav Republic of Macedonia, Togo, Tunisia, Turkey, Uganda, Ukraine, United Kingdom of Great Britain and Northern Ireland, United States of America, Uruguay, Uzbekistan, Venezuela, Yemen, and Yugoslavia.

Notice that China is a signatory to the Convention against Torture. Sixty years have passed since China invaded Tibet in 1949. From then until 1979, a total of  1.2 million Tibetans were brutally killed and more than six thousand monasteries razed to rubble according to a report by the Central Tibetan Administration. The situation over the years hasn’t changed as the Chinese government continues to subject Tibetan people to various forms of physical and mental tortures depriving them of human dignity and freedom, which all people are entitled to, irrespective of caste, color, creed and religion, by virtue of being a part of the same global family, that is, humanity.

The 2008 peaceful protests in Tibet against the Chinese government’s cruel policy resulted in hundreds of deaths, thousands of imprisonments, involuntary disappearances, and severe injuries to hundreds of Tibetans. The year 2010 saw immense political suppression on influential Tibetans after the post-2008 peaceful protests across the Tibetan region.

Freedom House published a special report dated 1 June 2011 entitled Worst of the Worst: The Worlds Most Repressive Societies that provided data on the countries that received the lowest combined ratings for political rights and civil liberties from the highly respected human rights organization. Hundreds of thousands of human beings in these countries languish every day in prisons or labor camps — generally in subhuman conditions and subject to physical or mental abuse — purely for their political or religious beliefs. In particular, the report is designed to direct the attention of the UN Human Rights Council to states and territories that deserve investigation and condemnation for their widespread violations. The report identified the territory of Tibet as one of the ten “Worst of the Worst” political entities in terms of human rights abuses.

The brutal clamping down on influential Tibetans by the Chinese government is a futile attempt to diminish or end the public influence on Tibetan civic and intellectual leaders, writers, and artists. Despite the recent incidents of harsh crackdown on Tibetans in Amdo Ngaba and Kardze by Chinese authorities, Tibetan people continue to carry out peaceful protests to demand freedom. Tibetans’ spirit for freedom and justice has never been bogged by tortures, brutalities, intimidation, or coercion.

Question:  In light of its persistent and pervasive violation of human rights, why does the United States government continue to give the People’s Republic of China “most favored nation” (MFN) trade status?

June 23, 1934 (a Saturday)

Police photographs of William Bayly taken in January 1934

On this date, William Alfred Bayly was convicted of murder in New Zealand despite the fact that the body of one of his victims was never found. Most of the evidence against Bayly consisted of trace amounts of human hair, bone, and tissue, representing a marked advance in the field of forensics.

I mention this historic event in jurisprudence to counter a fallacy that is often argued in what might seem to be an unrelated field – namely, evolutionary biology. Religious fundamentalists and creationists often argue that evolution can’t be true because no human being was around to see, for example, fish evolve into amphibians. If an eyewitness is necessary to “prove” evolution, how can someone be convicted of murder if not only is there no eyewitness, but even no corpse?!

This is how:

Sam and Christobel Lakey disappeared from their farm in Ruawaro, New Zealand, in October 1933, along with their rifles. Christobel’s body turned up on 16 October 1933 in a pond on the farm with terrible bruising to her face and head, and investigators then discovered fresh bloodstains in both an old buggy and a barn, leading them to believe that Sam had been shot and transported somewhere else.

One of the first suspects was William Bayly, who owned a farm adjacent to the Lakey’s and who was known to have had frequent arguments over fences and access roads with the Lakeys. Years earlier, he had been suspected of killing his cousin, but was released due to insufficient evidence. Suggesting to police that Sam Lakey had probably fled after killing his wife, Bayly soon dropped out of sight himself.

Meanwhile, detectives found the missing rifles buried in a swamp on Lakey’s property. Following up on a report that there had been thick smoke coming from a shed on Bayly’s property on the day that the Lakeys disappeared, investigators found pieces of hair and bones, ash, and shotgun lead in a large oil drum inside the shed. It appeared that Bayly had cremated Sam Lakey’s body in this drum.

Tests of the hair and bone fragments from the drum in the shed proved that they were human in origin. Bayly was found guilty and hanged in Auckland prison at 8 am on 20 July 1934.

Even today, juries are reluctant to return murder convictions without the presence of a corpse. That a New Zealand jury was willing to take this unprecedented step so many years ago speaks volumes about the quality and quantity of forensic evidence made available by the prosecution.

References:

June 19, 1987 (a Friday)

Church/State sign.

On this date, Edwards v. Aguillard was decided. In a 7-2 decision, the Supreme Court invalidated Louisiana’s “Creationism Act” because it violated the Establishment Clause of the U.S. Constitution.

June 15, 1215 (Julian calendar/old style: a Monday)

A scan of The Magna Carta.

On this date, following a revolt by the English nobility against his rule, King John put his royal seal on the Magna Carta, or “Great Charter.” (Contrary to popular belief, the Magna Carta was not signed by King John; he was illiterate.) His uncontrollable barons had had enough of his high taxation and arbitrary decisions. The document, essentially a peace treaty between John and his barons, guaranteed that the King would respect feudal rights and privileges, uphold the freedom of the church, and maintain the nation’s laws. The Magna Carta contained no new rights or privileges, but only put in writing old laws. The barons needed John to make explicit what was already implicit.

The origin of the barons’ rebellion came about from the moment when John came to the throne in 1199. John had inherited the crown from his brother Richard I, or to be correct, seized it from the legitimate heir, his nephew, Prince Arthur. The French King Philip II supported Arthur’s claim, not only to the throne of England, but to French lands in Normandy and Anjou, which had been held by Richard. King Philip summoned John to appear before him and when John refused, confiscated his French lands and allocated some of them to Arthur and some to himself. John responded by sending an army to defend his lands in Normandy, thus bringing about a minor but costly war.

In order to defray the cost, John instituted a series of taxes, including Forest Law, a set of regulations regarding woodlands, which were difficult to obey in their entirety, easily broken, and raised a great deal of money in fines. John also started an Income Tax, which raised him enough to pay for his wars and more besides. Naturally, the barons were unhappy at this state of affairs and a group of them joined together in rebellion. They captured London, forcing John to leave the city, and then rounded on him at Runnymede, where, at the point of a sword, he sealed The Magna Carta.

As might be expected, the text of the Magna Carta bears many traces of haste, and is clearly the product of much bargaining and many hands. Most of its clauses deal with specific, and often long-standing, grievances rather than with general principles of law. Some of the grievances are self-explanatory: others can be understood only in the context of the feudal society in which they arose. The precise meaning of a few clauses is still a matter of debate.

Although more a reactionary than a progressive document in its day, the Magna Carta was seen as a cornerstone in the development of democratic England by later generations. Thus, it can also be considered the first British constitution, setting down the relationship between citizens and state. The document was remarkable in that it implied there were laws the king was bound to observe, thus precluding any future claim to absolutism by the English monarchy. Of greatest interest to later generations was clause 39, which stated that “no free man shall be arrested or imprisoned or disseised [dispossessed] or outlawed or exiled or in any way victimised…except by the lawful judgment of his peers or by the law of the land.” This clause has been celebrated as an early guarantee of trial by jury and of habeas corpus and inspired England’s Petition of Right (1628) and the Habeas Corpus Act (1679).

The complete text can be read here.

June 12, 1967 (a Monday)

Scales of Justice

On this date, the U.S. Supreme Court decided the landmark case of Loving v Commonwealth of Virginia (388 US 1), in which the Court, by a 9-0 vote, declared Virginia’s anti-miscegenation statute, the “Racial Integrity Act of 1924″, unconstitutional, thereby overturning Pace v State of Alabama (106 US 583 [1883]) and ending all race-based legal restrictions on marriage in the United States.

In Pace v. State of Alabama (1883), the Supreme Court had ruled that the conviction of an Alabama couple for interracial sex, affirmed on appeal by the Alabama Supreme Court, did not violate the Fourteenth Amendment because whites and non-whites were punished in equal measure for the offense of engaging in interracial sex. Interracial extramarital sex was deemed a felony, whereas extramarital sex (“adultery or fornication”) was only a misdemeanor.

Background: In June 1958, two residents of Virginia, Mildred Jeter, an African-American woman, and Richard Loving, a white man, were married in the District of Columbia pursuant to its laws. Shortly after their marriage, the Lovings returned to Virginia and established their marital abode in Caroline County. At the October Term, 1958, of the Circuit Court of Caroline County, a grand jury issued an indictment charging the Lovings with violating Virginia’s ban on interracial marriages. On January 6, 1959, the Lovings pleaded guilty to the charge and were sentenced to one year in jail; however, the trial judge suspended the sentence for a period of 25 years on the condition that the Lovings leave the State and not return to Virginia together for 25 years. He stated in an opinion that:

Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.

Mildred Loving and her husband, Richard (26 January 1965).

After their convictions, the Lovings took up residence in the District of Columbia. On November 6, 1963, they filed a motion in the state trial court to vacate the judgment and set aside the sentence on the ground that the statutes which they had violated were repugnant to the Fourteenth Amendment. On January 22, 1965, the state trial judge denied the motion to vacate the sentences, and the Lovings perfected an appeal to the Supreme Court of Appeals of Virginia. The Supreme Court of Appeals upheld the constitutionality of the anti-miscegenation statutes and, after modifying the sentence, affirmed the convictions (206 Va. 924, 147 S.E. 2d 78). The Lovings appealed this decision to the U.S. Supreme Court.

Decision: In Loving v. Commonwealth of Virginia, the Supreme Court ruled that Virginia’s anti-miscegenation statute violated both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. In its unanimous decision, written by Chief Justice Earl Warren, the Court stated:

Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival…. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

Furthermore, the Supreme Court concluded that anti-miscegenation laws were racist and had been enacted to perpetuate white supremacy:

There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy.

Then and now.

Despite Loving, such laws remained on the books, although unenforced, in several states until 2000, when Alabama became the last state to repeal its law against mixed-race marriage.

Loving v. Virginia established the legal basis for a cultural redefinition of marriage. Over time, marriages between whites and African Americans became both more numerous and more accepted. Same-sex marriages, meanwhile, became more disputed, with equal-rights activists citing Loving as a precedent in their favor. The courts have preferred reading the case strictly in terms of race, although in 2007 the group Gay and Lesbian Advocates and Defenders, or GLAD, released a statement that attributed to Mildred Loving support for same-sex marriage. After her death, the Loving family denied that she had held these views. Richard Loving died in 1975, and Mildred Loving died in 2008.

Suggested Reading:

June 10, 1692 (Julian calendar/old style: a Friday)

On this date, in Salem Village in the Massachusetts Bay Colony, Bridget Bishop, the first colonist to be tried in the Salem witch trials, was hanged after being found guilty of the practice of witchcraft two days earlier.

Examination of a Witch (1853) by T. H. Matteson, inspired by the Salem trials.

In June 1692, the special Court of Oyer and Terminer ["to hear and 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 accused of witchcraft by more individuals than any other defendant. Bishop, pushing 60 and known around town for her dubious moral character, frequented taverns, played shuffleboard, dressed flamboyantly (by Puritan standards), and was married three times. When the Salem goodwives were tasked with groping her for bodily disfigurements that might be a witches’ mark, they:

discovered a preternathurall Excresence of flesh between the pudendum and Anus much like to Tetts & not usuall in women

She professed her innocence:

I am innocent I know nothing of it I am no witch I know not what a witch is.

[Both of the above excerpts can be found in the proceedings against Bishop — and other witchcraft defendants — here.]

Nevertheless, Bishop was found guilty and executed by hanging on June 10. Thirteen more women and five 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 have been caused by the defendants on trial.

June 7, 1893 (a Wednesday)

Mohandas Gandhi (right) with his brother Laxmidas in 1886.

On this date, Mohandas K. Gandhi, a young Indian lawyer working in South Africa, refused to comply with racial segregation rules on a South African train and was forcibly ejected at Pietermaritzburg.

Gandhi was born in Porbandar in the present state of Gujarat on October 2, 1869, and educated in law at University College, London. In 1891, after having been admitted to the British bar, Gandhi returned to India and attempted to establish a law practice in Bombay, with little success. Two years later an Indian firm with interests in South Africa retained him as legal adviser under a one-year contract in its office in Durban, SA. Here he was subjected to racism and South African laws that restricted the rights of Indian laborers.

Gandhi later recalled one such incident as his moment of truth. While traveling by train to Pretoria, a white man objected to Gandhi’s presence in a first-class carriage. Despite having a first-class ticket, Gandhi was asked to move to the van compartment at the end of the train. He refused and was thrown off the train at Pietermaritzburg station. There he spent the night in the waiting room and it is there he decided he would stay in South Africa to fight against racial discrimination. It was Gandhi’s first act of civil disobedience. From thereon, he decided to fight injustice and defend his rights as an Indian and a man.

Known as Mahatma, or “the great soul,” during his lifetime, Gandhi’s persuasive methods of civil disobedience influenced leaders of civil rights movements around the world, especially Martin Luther King, Jr., in the United States.

[My favorite Gandhi quote - Ed.:]

A time is coming when those, who are in the mad rush today of multiplying their wants, vainly thinking that they add to the real substance, real knowledge of the world, will retrace their steps and say: ‘What have we done?’

Civilizations have come and gone, and in spite of all our vaunted progress, I am tempted to ask again and again, ‘To what purpose?’ Wallace, a contemporary of Darwin, has said the same thing. Fifty years of brilliant inventions and discoveries, he has said, have not added one inch to the moral height of mankind. So said a dreamer and visionary if you will–Tolstoy. So said Jesus, and the Buddha, and Mahomed, whose religion is being denied and falsified in my own country today.

[Source: Mahatma (D.G. Tendulkar) Vol. 2; 2nd edn.(1960), Publications Division; p. 29.]

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.

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:

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.”