Religion & American Law

I’d like to bring your attention to two articles regarding the same court case. First, the short article that describes Soloman Dwek being grilled on his adherence to the Ten Commandments. Second, the article that explains why the defense thinks this grilling is relevant.

In class last week, we discussed constitutional vs. common law. Oversimplified, constitutional law refers to that which protects common law (it is written out and agreed upon at a given time). Common law, on the other hand, is constantly developing by the people based primarily on customs.

I think that this these news articles demonstrate the way in which constitutional and common law may play out in the court room. Soloman Dwek became an FBI informant after being caught in the fraudulent bank deal referenced in the second article. He then led to the prosecution of several high-level New Jersey politicians. Now, the defendants want to show that Dwek is of low moral character. In doing so, the defense hopes to call into question the FBI’s choice in people they use to prosecute these politicians.

It seems that this move is a last resort for the defense in this case. They merely want to expose Dwek as “just as bad” (or worse) as the defendants in order to undermine the FBI and its efforts. For our discussion, the interesting part is that the defense chose to use the Ten Commandments as the measurement of Dwek’s moral character.

The use of the Ten Commandments assumes that the audience (most importantly the jury) is sympathetic to the moral code that the Ten Commandments assert. I think that the use of the Ten Commandments in this case represents the invocation of common law in the courts. If this is the case, the most relevant habits of Dwek would be his habit of lying. If Dwek was a habitual liar in the past, how can he be trusted in working for the FBI? The defense wants to call Dwek’s credibility into question further by proving that he even cheated and stole from his own family and Jewish community. I wonder how much weight this probing against Dwek will have when he has handed over filmed encounters with the defendants discussing their corrupt dealings? Will the jury value the defense’s questioning of Dwek’s character enough to oversee the evidence provided by Dwek? I don’t think this is very likely but I guess it is worth a shot for the defense.

It seems that the evidence provided by Dwek should be used to in the case against the defendants and then Dwek can be dealt with on his own. Sure, he probably only cooperated with the FBI for selfish reasons but that does not change the fact that the defendants are corrupt themselves.

Many of us are now probably familiar with the Roman Polanski rape case. In 1977 Polanski was convicted of having “unlawful sex with a minor.” Reading through the transcripts of the victim, 13 year-old Samantha Geimer, one learns that Polanski gave the girl a quaalude and champagne before engaging in sexual intercourse with her. According to her testimony, she repeatedly told him “no” and resisted his sexual advances. After a lengthy trial, which ended with much still up in the air, Polanski fled to Europe. He has been living there for over 30 years (For a nice summary see here)

So what makes this case interesting for those interested in Religion and American Law? In 1997, Geimer publicly “forgave” Polanski. For one interested in the intersection of religion and law, the case raises the important question: Does forgiveness, a nominally Christian concept and virtue, have a place in the American law system? Many people’s immediate reaction is probably to say no. And this most likely reflects a general understanding of how crime is dealt with in the U.S. legal system (This is specifically talked about here). Our law centers, in general, around a retributive form of justice, one in which criminals have to “pay” for their crime with their time, labor, or life. Forgiveness flies in the face of this form of justice. Even if forgiveness occurs, some might claim, it cannot stand in place of punishment

Public reaction to Polanski has been mixed to say the least. Many celebrities have stood up for him. During the 2003 Oscars, for example, he received a standing ovation from the audience when he won for Best Director for his film The Pianist. Some feminist thinkers have reacted strongly as well (Check out the reaction at feministing). Many of the proponents of his arrest claim that he has been able to evade facing his crimes because of his celebrity status. If we do not seek to punish him to the fullest extent of the law then we are, as a society, authorizing his crime. They argue that it begins to look like rape is permissible as long as you can make a good movie. How can we as a society allow this?

In a more sympathetic portrayal of Polanski’s life, the film Roman Polanski: Wanted and Desired describes Polanski’s struggle for survival after his mother as killed in the holocaust and the Manson family murdered his wife. This story might lead one to think that while Polanski committed a terrible crime, it is reasonable to feel sympathy for him.

To make matters more interesting, Samantha Geimer has fought to have the case dropped since Polanski’s recent rearrest in Switzerland. It appears she has moved on since forgiving Polanski back in 1994 and wants everyone else to as well. Perhaps her forgiveness is not “pure,” in the sense that she has extended a sympathetic embrace to him, but I think most would be hard pressed to find a pure form of forgiveness. In either case, Geimer's attempt to have the charges dropped might make us reconsider whether forgiveness should have a place in the law. If both the victim and the perpetrator are ready to move on, why should the law stand in their way?

The point of this short blog is not to advocate releasing Polanski’s case being dropped, nor to advocate punishing him to the fullest extent of the law. Instead, it is to point to the ambiguity that a victims forgiveness brings into the law, and to have shown how it might not always be clear whether punishment or forgiveness is the best route to take. Further, this case also raises the issue of whether forgiveness permissible in the legal arena. Is it a purely “religious” concept? And what role do nominally Christian or religious concepts play in society more generally?

As this article states, the United States Air Force Academy in El Paso County, Colorado, has recently dedicated space for a sacred pagan circle. The Academy already has dedicated sacred spaces for Catholics, Protestants, Jews, Muslims, and Buddhists. Tech. Sgt. Brandon Longcrier (pictured at right, consecrating an Earth-centered worship site with white sage--photo courtesy of U.S. Air Force, Staff Sgt. Don Branum) was the driving force behind this circle’s creation, but he thanks the chaplain’s office for its support and says that there was no intervention or interference against the dedication of a sacred space for his religion. A similar sacred circle was destroyed several times at the Army’s Fort Hood in Texas.

The article hails it as a triumph of religious freedom, and I agree. It quotes the Cadet Wing Chaplain, Lt. Col William Ziegler, who says, “We want this dedication service to be another example of celebrating the freedom we enjoy as well as the freedom we, as Airmen, have pledged to defend.” This is a fine example of the epitome of state-sponsored schools offering religious spaces for all of its students. However, the question then becomes, where is the line drawn?

Some people will attack the sacred circle on the grounds that there is no one God that the Earth-centric religions pray to, even if that argument is potentially irrelevant, especially as there is a Buddhist sacred space at the Academy already. They will make the argument, however, that a “true” religion has a specific deity at its head, instead of a number of deities or a focus on the natural world.

Others might argue that having separate spaces for all of these religions is implicit government support of these specific religions to the exclusion of the others not represented. Others may say that religious spaces have no place on the campus of a government-run and –funded institution, and that if the cadets at the Air Force Academy wish to attend religious services of any type they must seek it in the community. The idea of government-owned, consecrated land could be seen as an establishment of religion.

I agree that the precedent may be mildly worrying, but I also believe that it was the right thing to do. The chaplain’s office will just have to evaluate other cadets’ religious needs as they arise, and find the medium between respecting each religion and the very small populations of certain religious groups. There are religions common in the United States not mentioned as having sacred spaces of their own at the Academy, including Hinduism and the Native American Church. The article does not comment on whether there are any practitioners of either of these religions, but the reader is left to wonder if a Hindu or Native American Church sacred space will follow at the United States Air Force Academy. Again, I do not necessarily see a problem with that; however, it must be considered that at a certain point the areas of campus dedicated to different religions could outnumber the secular areas.

However, Sgt. Longcrier and his peers who follow Earth-centered religions now have a place to call their own, and this is only fair considering that his fellow cadets who happen to be Catholic, Protestant, Jewish, Muslim, or Buddhist are offered the same courtesy.

Lawyers in California are defending proposition 8. If you don’t know what proposition 8 is, it is the ban on gay marriage in California. Why would lawyers need to defend it? Because this new-age argument is under-fire once again.

With the rise in gay and lesbian political support, religious leaders fear marriage laws will be changed.

The notoriously liberal state of California is the expected spot for this fight's forefront. With polls being neck and neck, nearly 52 percent of voters voted in favor of limiting marriage to heterosexual couples. Surprisingly, the plaintiff will not have an easy time convincing the court. Gay and lesbian leaders feel that the rules against gay marriage have oppressed the political power of the gay community. They feel that a basic right to marriage being taken away from them is a crime. To them, marriage is no longer just a union of two people who are in love, it is also, and maybe more importantly, a sign of political clout. My question is, is marriage a basic right? If marriage is a religious ceremony then why does it have so much political clout? Also, being a religious tradition, would the limitations on marriage be held to the moral standards of the religious community?

In the trial, there was much evidence from the defense in which they suggest that gays and lesbians have a lot of political say so. From video tapes to expert witnesses, the defense showed that the gay community has a huge political backing. In proof of their backing, before the ballot, a campaign for the establishment of gay marriage raised $40 million for the cause. Of course, calling it a cause suggests that the prevention of gay marriage is an injustice.

In order to win the case the gay community must show “suspect class” status. In order to do this they must prove two things: 'that sexual orientation is an immutable trait, like race or ethnicity, and that gays and lesbians are unable to protect their interests via the political process.'"One videotape included a pastor suggesting that legalized gay marriage could lead to polygamy and bestiality." many suggest that comments like this show predjudice towards gay couples. The lawyers fighting for proposition 8 disagree saying that these are examples of prejudice separate from the decision by the state to enforce proposition 8. In fact, the lawyers argue that their intention for proposition 8 was never made to oppress a certain people saying, "the marriage ban was not motivated by animus but only about protecting traditional marriage." The defense upholds the position that the law was never religion based. Both sides have something to say, and both sides are not telling the whole truth. The motivation behind proposition 8 seems to be withheld from the public, and the plaintiff fails to deliver an opposition that is solely based on political agenda.

Since the founding of the United States on July 2, 1776, marriage has been the legal union between a man and a woman. However, with the ongoing challenges to Proposition 8, the above 224 year old definition of marriage is as close as it has ever been to seeing a legal change. In response to California's ban on same-sex marriage, the opposition is trying to overturn Proposition 8, which was passed by a majority of the state's voters.

On January 21, 2010, Maura Bolan of The Los Angeles Times reported on the current activities of this court case of which focus was on the involvement of religion. At this point the challengers are arguing that religious institutions, such as the Catholic and Mormon churches, engaged in the promotion of the discrimination of gays prior to the bill being voted upon. The argument is that the specifically named religious institutions have presented specific religious memos of religious officials as evidence for the discrimination. With evidence of internal religious communications being introduced, the defense argues that it is only the expression of religious bigotry.

With the First Amendment being that Congress cannot pass any laws for the establishment of religion nor interfere with the exercise of religion, I am personally perplexed with the continuance of this case from the grounds of which the defense is arguing. From the article we see that the opposition is crying for discrimination, from which these institutions influenced the outcome of the ban. With that said, I am having a very difficult time seeing the ban on gay marriage as being an establishment of religion nor do I see the religious rights of gays being taken away. If the Constitution's definition did not specify that marriage was in between one man and one woman, then I would say we have a problem of the freedom to exercise. If the particular case of California's ban on gay marriage hinged upon its legislation being heeded by the above-named religious institutions, perhaps there may be a case of establishment. However, the state of California does not endorse Catholicism or Mormonism. These institutions were not the vote for the legislation, the people were. No matter how influential an entity may be, within legal bounds, the vote comes down to the people and it was the voters of California that passed the ban, not religious institutions.

It seems to me that if same-sex marriage is to be Constitutional, then the definition of marriage itself must be changed. However, with the changing of the definition of marriage, this legislation would perhaps lead to a slippery slope. I could only imagine that many court cases such as those that deal with polygamy, incest or statutory rape would reopen. We could take away the use of marriage altogether, however not only would the above issues again be reexamined, but the challengers of the ban are not asking for such a measure. They want the same privileges under the same conditions that a man and woman currently have through marriage. In the end, I again do not see the case as infringing upon the First Amendment, but rather it is a case of social norms from which the likes of banning polygamy were also established.

On January 22, 2010 thousands of people marched down Constitutional Avenue, up Capital Hill, and to the Supreme Court building protesting the 37^th anniversary of the United States Supreme Court’s Roe v. Wade decision that legalized abortion. The annual March for Life event has mobilized to new levels as a result of the recent health care reform bills. Anti-abortion protesters are putting pressure on the government to create a health care bill that will prohibit the use of federal funding for abortions. Abortion was not the only issue that was being protested. Many people who attended the event were also rallying against the use of stem-cell research. Despite the overwhelming attendance of anti-abortionists, Obama gave a statement maintaining his original belief that a woman has the right to choose what she does with her body. He stated that he will “remain committed to working with people of goodwill to prevent unintended pregnancies, support pregnant women and families, and strengthen the adoption system.”

The controversy of abortion and other medical research is heavily influenced by religious beliefs. The debates are a series of questions about what marks the beginning of life and if terminating a pregnancy is considered to be murder. The act of one pregnant single woman by the name of Roe forced the Supreme Court to answer these questions when she challenged the constitutionality of the Texas criminal abortion laws. The highly controversial issue is still prevalent almost four decades later but the decision continues to remain intact. As the health care system is on the brink of reform, a new set of questions arise in relation to the issue. Will the new health care programs take into account abortion or similar matters such as stem-cell researching and cloning? Will the bill challenge a Supreme Court ruling or will it make it stronger? Does abortion break the Sixth Commandment that one “shall not murder”?

The health care reform proposal of 2010 written by President Obama has five specific goals. They include instituting temporary provisions to make health care coverage more affordable for Americans who have lost their jobs, increasing health care coverage for children, computerizing America’s health records in five years, developing and disseminating information on effective medical interventions, and investing in prevention and wellness. Under the category of “developing and disseminating information on effective medical interventions”, President Obama will dedicate $1.1 billion dollars through the Recovery Act of 2009 to medical research with no specific requirements given for what type of research this amount of money will go to. It is likely that this portion of the health care reform bill will go to stem-cell research because President Obama took a special interest in the subject when he issued his Executive Order 13505 on March 9, 2009 which removed the barriers prohibiting the use of human stem cells for scientific research.

The health care reform campaign does in fact contain provisions about the issue of abortion. It would expand abortion through mandates and federal subsidies. However, the House of Representatives removed these mandates and subsidies before they sent the bill back to the Senate. As the debate continues, it is apparent that the end results will in fact affect the 1973 court ruling that legalized abortion in the United States but whether it will strengthen it or weaken it is still unknown.

During the March for Life many religious groups joined in the protest against abortion. The first amendment guarantees a person’s freedom of religion but the government was also founded upon the notion of a separation between church and state. The debate over abortion within governmental proceedings is not a question of religious beliefs but a question of humanity. Is abortion humane?

As technology evolves and advances science, the struggle against legalized abortion becomes more difficult. With the large amount of involvement apparent at the March this past Friday shows that the people are not backing down. What will our lives look like in ten years? In fifteen years? With technology and science rapidly evolving every day, it is impossible to predict the future but matters of the past continue to be prevalent in modern societal issues.