The Watcher Cat

The Watcher Cat

Monday, June 29, 2015

"…Crazy Bird Just Tried to Kill Us…"

So, I had a business trip today, that took me with two colleagues from Albany to Buffalo and back again today, and as my colleagues and I were driving,a magnificent red-tailed hawk swooped down, almost colliding with the windshield of the car.

A beautiful bird, and pretty damned agile too--it did a kind of victory roll, and pulled out. It was so close that I could count the feathers.

Which of course made me think, even as I was afraid that the bird would shatter the glass in front of me, of Richard Rush's 1980 classic The Stunt Man.

I of course refer to the opening of the movies, where at 1:50, a chain of events is set in motion that includes a buzzard caroming into the windscreen of a helicopter flying director Eli Cross (Peter O'Toole). The pilot complains about the "crazy bird just tried to kill is." Cross replies insouciantly "That's your point of view. Did you stop to ask the bird for his?"

Yeah, it passed through my mind right then and there. Which clearly indicates that there is something wrong with me.

But that's just my point of view. I didn't stop and ask the bird what his was.

Saturday, June 27, 2015

Obergefell II: The Alt-Histories of Clarence Thomas

Right, not quite finished with Obergefell v Hodges just yet. I've made what points I think are worth making about Chief Justice Roberts's dissent, with one exception. His conclusion is unusually petty and mean-spirited for Roberts, who, while I often deplore his results and reasoning, generally tries to keep a tone that while more casual than most lawyers, is respectful. So his conclusion is a surprise:
"If you are among the many Americans – of whatever sexual orientation – who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it."
Honestly, that's a bit beneath him, in my opinion.

Justice Thomas's dissent, however, does not surprise, either in its rhetorical excess or in, what I called in an online discussion, its laughable history. I was quite properly asked to specify the latter, and, in writing that up, thought I might share a slightly revised and extended version of my remarks here.

Quickly, though, the rhetorical excess. Thomas attacks Justice Kennedy's majority opinion for its reliance on the notion of equal dignity under the law. He writes:
Human dignity has long been understood in this country to be innate. When the Framers proclaimed in the Declaration of Independence that “all men are created equal” and “endowed by their Creator with certain unalienable Rights,” they referred to a vision of mankind in which all humans are created in the image of God and therefore of inherent worth. That vision is the foundation upon which this Nation was built.

The corollary of that principle is that human dignity cannot be taken away by the government. Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved. Those held in internment camps did not lose their dignity because the government confined them. And those denied governmental benefits certainly do not lose their dignity because the government denies them those benefits. The government cannot bestow dignity, and it cannot take it away.
This is, quite simply, insane. Slaves were, as a matter of law, deprived of their dignity. Read Dred Scott v. Sandford, 60 US 393 (1857):
They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect, and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic whenever a profit could be made by it. This opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics which no one thought of disputing or supposed to be open to dispute, and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concern, without doubting for a moment the correctness of this opinion.
Legally, they were denied the status of people, the dignitas afforded whites. Thomas is, quite simply, wrong. Moreover, human dignity has increasingly featured in constitutional analysis from Alexander Hamilton through to the present, gathering momentum especially in the 1940s, when we confronted a foreign system based on denying dignity. Justice Frank Murphy's prescient dissent in Korematsu v. United States (1944) indicted the internment on the very ground that to adopt the Government's rationale "is to adopt one of the cruelest of the rationales used by our enemies to destroy the dignity of the individual and to encourage and open the door to discriminatory actions against other minority groups in the passions of tomorrow."

Brown v. Bd of Education (1954), generally considered one of the great achievements of the Supreme Court, expressly turned on dignitary concerns; as to "children in grade and high schools, the unanimous Court ruled, "[t]o separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone." (For more, see Richard Kluger's Simple Justice (1979)).

Clarence Thomas, in short, is not a reliable exponent of history.

This applies even more to his analysis of the Fourteenth Amendment's history. Again, a quotation:
In enacting the Fifth Amendment’s Due Process Clause, the Framers similarly chose to employ the “life, liberty, or property” formulation, though they otherwise deviated substantially from the States’ use of Magna Carta’s language in the Clause. See Shattuck, The True Meaning of the Term “Liberty” in Those Clauses in the Federal and State Constitutions Which Protect “Life, Liberty, and Property,” 4 Harv. L. Rev. 365, 382 (1890). When read in light of the history of that formulation, it is hard to see how the “liberty” protected by the Clause could be interpreted to include anything broader than freedom from physical restraint. That was the consistent usage of the time when “liberty” was paired with “life” and “property.” See id., at 375. And that usage avoids rendering superfluous those protections for “life” and “property.”

If the Fifth Amendment uses “liberty” in this narrow sense, then the Fourteenth Amendment likely does as well. See Hurtado v. California, 110 U. S. 516, 534–535 (1884). Indeed, this Court has previously commented, “The conclusion is . . . irresistible, that when the same phrase was employed in the Fourteenth Amendment [as was used in the Fifth Amendment], it was used in the same sense and with no greater extent.” Ibid. (p. 6)
. . . .
Even assuming that the “liberty” in those Clauses encompasses something more than freedom from physical restraint, it would not include the types of rights claimed by the majority. In the American legal tradition, liberty has long been understood as individual freedom from governmental action, not as a right to a particular governmental entitlement. (p. 7)

A very short explanation as to why Thomas's history is laughable goes something like this: Thomas equates "liberty" in the Fifth Amendment with that as described in Blackstone's Commentaries. He then equates the usage of liberty in the 14th Amendment with that as described by Blackstone, on the theory that parallelism should be assumed. He does this by relying on dissenting sources on the meaning of the 14th Amendment, while ignoring, quite literally, the entire jurisprudence of the 14th Amendment from its passage to date. From Chicago, Burlington & Quincy Railroad v. Chicago (1897) through Gitlow v. New York (1920), and New York Times v. Sullivan (1964), the liberty protected in the Amendment was never understood that way. Cases in which parental control of their children's education (such as Pierce v. Society of Sisters (1925) or Meyer v. Nebraska, in no way involve Thomas's crabbed definition of liberty. Even in the great debate over whether and to what extent the 14th Amendment incorporates the Bill of Rights against the States, waged in Palko v. Connecticut (1937) or in Adamson v. California (1947), neither side argued for the Thomas formulation or anything remotely like it. In sum, the Amendment has simply never been understood the way Thomas asserts it should be. (See generally Michael Kent Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights; my old professor Charles L. Black's A New Birth of Freedom: Human Rights, Named and Unnamed is, while less heavy on history, quite helpful, and my own First Amendment, First Principles: Verbal Acts and Freedom of Speech (2d Ed. 2004) addresses the incorporation controversy and the history of the Fourteenth Amendment in brief. Justices Black and Douglas--who participated in many of the relevant cases on dignity as well as incorporation each wrote about the subject, Black in A Constitutional Faith, Douglas in The Right of the People. Some of the earlier important cases are collected in The Mind and Faith of Mr. Justice Holmes and some philosophical underpinnings in his Collected Legal Papers).

He's long been against the use of "due process" to derive substantive rights. Fair enough; I think he's right there, though that ship sailed in 1873. That said, the Privileges and Immunities Clause creates a different source for an undefined set of rights, which Thomas would give no effect. (So here he's striking out constitutional text, while in "liberty" he constricts the text to a meaning that it has never had in the 14th Amendment's jurisprudence.)

That's why it's laughable history--it's like a Harry Turtledove novel,an alternative history of the 14th Amendment that never was.

Friday, June 26, 2015

Equal Justice Under Law

Today's decision in Obergefell v. Hodges is really quite a simple one.

It all stems from this: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Shorn of all rhetoric and legal technicality, it comes down to these two interlocking syllogisms:

Syllogism No. 1.

1. The Constitution protects fundamental rights

2. The right to marry is a fundamental right.

3. The Constitution protects the right to marry.

Syllogism No. 2.

1. A strong, constitutionally permissible reason must be articulated to deny people a fundamental right.

2. The only reasons articulated by anti-same sex marriage advocates--"it's against my religion" and "tradition"--are not constitutionally permissible grounds, the first violating the Establishment Clause and the second inconsistent with our system of case by case adjudication.

3. The bans against SSM cannot stand.

Now, since the dissents harp on tradition, let me address that prong at a little greater length. As a wiser judge than any of the dissenters in Obergefell wrote many years ago:
History must be a part of the study, because without it we cannot know the precise scope of rules which it is our business to know. It is a part of the rational study, because it is the first step toward an enlightened scepticism, that is, towards a deliberate reconsideration of the worth of those rules. When you get the dragon out of his cave on to the plain and in the daylight, you can count his teeth and claws, and see just what is his strength. But to get him out is only the first step. The next is either to kill him, or to tame him and make him a useful animal. For the rational study of the law the blackletter man may be the man of the present, but the man of the future is the man of statistics and the master of economics. It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.
This is the case here. Because when Chief Justice Roberts--in the least offensive of the dissents, one that at least tries to do actual legal reasoning--adverts to the tradition of marriage, he writes:
The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational.
It's important to note that, in this brief "historical" allusion, he's not following Justice Holmes's advice and bringing the dragon out of his cave at all; he's assuming that all marriage was, in every culture, the same, ignoring the fundamental changes that have been brought to marriage. More bluntly, Roberts is retrojecting his nice, loving marriage, in which each spouse has a right to seek fulfillment in a career into past decades, centuries, and millenia.

In the Framer's generation, Sir William Blackstone, in his Commentaries wrote that "By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband . . . For this reason, a man cannot grant anything to his wife, or enter into covenant with her: for the grant would be to suppose her separate existence; and to covenant with her, would be only to covenant with himself," making contracts between husband and wife unenforceable. Blackstone's Commentaries were highly influential in early American law; thus in the 1848 Seneca Falls Declaration, a cause of complaint of women was that man has "made her, if married, in the eye of the law, civilly dead." (More and sources here).

Throughout the 19th Century, a series of state laws chipped away at the inability of married women to own property, fundamentally changing the nature of marriage.

Throughout the Twentieth Century, states began to jettison the 17th Century rule that husbands could not be guilty of raping their wives, "for by their mutual matrimonial consent and contract, the wife [has] given up herself in this kind unto her husband, which she cannot retract." The last one fell in 1993.

I could go on--catalogue the societies in which polygamy has been acceptable, concubinage permitted, and dilate upon the difference between arranged and companionate marriage. All true, all blandly swept into the corner by Roberts.

The fact is, marriage has not remained static. It has grown and evolved and changed fundamentally already. This is just sharing the modern marriage the Robertses enjoy with a class of people who have been excluded until recently, based on theological readings of the Bible that are rooted in a weak and selective example of traditionalist thinking that offshores the cost of obedience on a disfavored minority class--just when Supreme Court review is most called for.

In sum, this was the Court at its best, doing its job.

[Edited to Note Sir Matthew Hale was a 17th Century jurist, not an 18th century one.

Thursday, June 25, 2015

Nino Agonistes, and the Limits of Cynicism

Today the Supreme Court issued a decision in King v. Burwell--the challenge to the Affordable Care Acts creation of federal exchanges subsidized by tax credits in states that decline to create their own exchanges--that was surprising. Authored by Chief Justice John Roberts, the opinion is in his trademark vernacular, almost chatty style--at one point he writes "So without the tax credits, the coverage requirement would apply to fewer individuals. And it would be a lot fewer.” (emphasis in original). (How many fewer? About 87 % fewer, Roberts estimates.)

What's surprising about this opinion is that the majority opinion is done in a way we're not used to seeing from Roberts: It is, as far as I can see, apolitical. His own dislike of the statute leaks through in places, as does his disdain for Congress. (So, for example, Roberts refers at one point to the "complicated budget procedure known as reconciliation" through which the ACA was passed, noting that it thus "bypassed the Senate's normal 60-vote filibuster requirement," assuming the Obama-era dysfunction in which every bill was filibustered represents a new but permanent normal.) Still, I agree with Garrett Epps: this is, at least as far as can be seen, John Roberts calling balls and strikes, as he promised to do in his confirmation hearings, not wildly distorting precedents or overruling decades of settled law, as I have previously pointed out. He didn't defer to the IRS, for example, which could have left the door open to a new interpretation under a new administration. No, this was straight up Statutory Construction 101: Read the statute--the whole statute, in context. If there's an ambiguity as to what exchanges were meant, look to the stated purposes of the statute, and be guided by that in selecting the two alternatives.

Now, the dissenting troika of Scalia, Thomas and Alito, would have the reader believe that the one phrase that has been bandied about so much, referring to an "exchange established by a State" was itself dispositive, and that no subsidies were available to those who received their benefits from a federally established exchange.

Well, clearly so. The ACA did not create a fallback for federal intervention of a state declined to create an exchange. Who could think such a thing? Oh, how about Scalia, Thomas, Kennedy (who was in the majority this time) and Alito, in their Scalia-penned dissent in NFIB v. Sebelius (2012):
If Congress had thought that States might actually refuse to go along with the expansion of Medicaid, Congress would surely have devised a backup scheme so that the most vulnerable groups in our society, those previously eligible for Medicaid, would not be left out in the cold. But nowhere in the over 900-page Act is such a scheme to be found. By contrast, because Congress thought that some States might decline federal funding for the operation of a “health benefit exchange,” Congress provided a backup scheme; if a State declines to participate in the operation of an exchange, the Federal Government will step in and operate an exchange in that State. See 42 U. S. C. §18041(c)(1).
Sebelius (Dissent of Scalia, J.) at sec. IV (E)(2) (emphasis added).

So what changed in three years?

Well, I admit I was unduly suspicious about the outcome, but I predicted that Scalia, Thomas, and Alito would not follow their previous reading of the exact same language in NFIB v. Sebelius. Only Kennedy did follow his own prior interpretation of the statute, and thus joined the majority. Scalia and his fellow dissenters not only reversed their own prior interpretation of the text (rejecting arguments to the contrary summarily as "applesauce"), they excoriated anyone who could read it as they did back then, accusing the majority of "chang[ing] the usual rules of statutory interpretation for the sake of the Affordable Care Act. That, alas, is not a novelty." Scalia then goes on to state that
Having transformed two major parts of the law, the Court today has turned its attention to a third. The Act that Congress passed makes tax credits available only on an “Exchange established by the State.” This Court, however, concludes that this limitation would prevent the rest of the Act from working as well as hoped. So it rewrites the law to make tax credits available everywhere. We should start calling this law SCOTUScare.
An argument that would have been much more credible had Scalia himself not described the language at issue consistently with the majority opinion's reading of it today, a bare three years ago. His bitter quip about "SCOTUScare" suggest his own agenda: ScaliaCare means that statutory provisions mean whatever it takes for Obama to lose any case before the Supreme Court.

Wednesday, June 24, 2015

Strangers and Brothers (1983-1984): The Verdict

Last night, I finished an epic rematch, for the first time in over 30 years of Strangers and Brothers, the BBC adaptation of C.P. Snow's 11 volume novel sequence. That series has long been a favorite of mine, and I was introduced to it by the adaptation, which aired on Masterpiece Theater in 1984.

The part I remembered best was the episodes adapting The Light and the Dark and The Masters, interlocking novels. Those three of the 13 total episodes were every bit as good as I recalled them being, with Nigel Havers soaring as the charming, tragic Roy Calvert. He's surrounded by some fine actors--Elizabeth Spriggs and Tony Britton strike sparks with Havers, and Joan Greenwood shines as Lady Boscastle, who manages to defeat Roy at his own tricks, surprising a hearty laugh from him at his own expense.

Cheri Lunghi, whom I remember best as Guenevere in Excalibur is admirable as Lewis Eliot's second wife Margaret. (As it happens, Havers and Lunghi, who attended drama school together, are currently appearing in The Importance of Being Earnest).

The other standout is Edward Hardwicke, most famous as Dr. Watson in the later episodes of the admirable Granada TV Sherlock Holmes series. Here he plays Sir hector Rose, Eliot's boss in the Civil Service, a sarcastic, overly polite, but quite ruthless practitioner of the arts of Whitehall. Hardwicke captures the cynical professionalism of Rose--the "passionate indifference" which Eliot learns from him, wondering if it will endanger his soul--and then, in later episodes, slowly lends his support to Eliot's most idealistic and risky venture. Their barbed conversations slowly become shared private language between colleagues, then comrades, and ultimately friends.

I haven't mentioned Anthony Hopkins yet. He's great as Roger Quaife--angry, self-righteous, a little afraid, but a live wire in every scene in which he appears. But Quaife only appears in two episodes, so I don't want to overstress him.

The weakest bits are the important tempestuous relationship between Lewis and his unstable first wife Sheila. Shaughan Seymour and Sheila Ruskin do their best--and are, intermittently, quite good together. But Sheila's acting out moments are poorly written, and Ruskin is struggling with a character whose tics don't quite add up. An extra three episodes, hewing closely to the book, and I think she'd have nailed it--in a scene straight from the book, in which Sheila brings the much poorer Lewis to his first fancy cocktail party, only to meet him there late and with another man, is spot on--Sheila's sadism is smoothly portrayed, all normal civility on the surface, gleeful cruelty bubbling underneath. And Seymour rises to her level, just as he does to Havers' and Lunghi's.

One technical note: in a series spanning four decades--the 1920s through the 1960s, Seymour's Lewis does not seemingly age until the last episodes; similarly Lunghi as Margaret. It's a little rough frankly.

Also, characters fade out, denied reappearances they have in the books--Charles March is dropped, and his scenes given to Lunghi, while a priest who is of only marginal importance to Eliot turns up.

Still, the portions that work, work quite well. And thanks to this adaptation, I read the excellent novels that have been a mainstay of mine since I was 18.

Monday, June 22, 2015

Lowering the Flag: Conservatives Doing the Right Thing

So, today, South Carolina Governor Nikki Haley took a large symbolic step:
Flanked by a bipartisan group that included both of her state’s United States senators, Gov. Nikki Haley of South Carolina on Monday called for removal of a Confederate battle flag from the State Capitol grounds, taking sides on a symbol embraced by the white man accused of killing nine black people last week.

Some in the state will continue to fly the flag on private property, as they have every right to do, “but the State House is different, and the events of this past week call upon us to look at this in a different way,” Ms. Haley said at the State Capitol. “We are not going to allow this symbol to divide us any longer. The fact that people are choosing to use it as a sign of hate is something we cannot stand.”


“Today, we are here in a moment of unity in our state, without ill will, to say it’s time to move the flag from the Capitol grounds,” she said, to a long, loud burst of applause and cheers.

The governor and both senators had declined to take a stand on the flag in the days after the massacre Wednesday at the Emanuel African Methodist Episcopal Church in Charleston, a crime that rocked this state and prompted renewed calls to remove a flag that has often been flown by white supremacists and segregationists. But Ms. Haley said it would be debated again, and Mr. Graham said that “in light of what has happened, that has to be revisited” because the suspect in the shooting is closely “associated with the flag.”
Meanwhile, on the blogs, two days ago, social conservative Rod Dreher, with some pain, anticipated her:
Yesterday, all that came to mind again, and I concluded that the Confederate flag has become impossible for most people to see as symbolizing anything other than white supremacy. Therefore, it cannot be redeemed. Therefore it should be retired from public display, except in clearly historical settings (e.g., museums, Civil War cemeteries, historical re-enactments), and then only in a limited way.

In South Carolina, by act of the state legislature, the Confederate battle flag flies over a Confederate War Memorial on the state Capitol grounds. I can see how some white Southerners genuinely regard the flag and its display as nothing more than honoring the Confederate dead, something that is noble even as the cause for which those soldiers died is not. I think about the one ancestor I know of who fought for the Confederacy. He was a poor country farmer, and almost certainly didn’t carry in his head the idea that he was fighting to preserve slavery (though he ultimately was); chances are he only thought that he was fighting for the people of his state, defending his land against invaders. He really did fight bravely, records show. I cannot and will not be ashamed of that man’s battlefield courage, though I wish he had not devoted his courage to the Confederate cause — which was not solely about maintaining slavery, but which undeniably included that evil end.

The widespread use of the Confederate battle flag during the Civil Rights era, to defend white supremacy, removed the benefit of the doubt that might have been extended to those displaying the flag in memory of the war dead. In other words, modern white supremacists robbed the flag, as a symbol, of a plausible claim of innocence. True, Dylann Roof did not display the Confederate battle flag in his rampage inside the church, but it can’t be denied that the Dylann Roofs of the Civil Rights era, and their fellow travelers, did openly associate that flag with their cause. In light of what just happened in Charleston, and considering things from the point of view of black Southerners, I believe that the Confederate battle flag is simply too tainted as a symbol to be displayed in good conscience anymore.
Look, I'm generally pretty unsympathetic to those who constructed an identity steeped in the "Lost Cause"; I believe it to have been the worst cause, except perhaps for that of the Third Reich, in all recorded history. But, hold on a second.

Read the comments to Dreher's post; he's taking a pounding from many fellow conservatives, in part for giving one to "the other side", in part for abandoning the comforting myth that Dreher's own people fought, as one commenter put it, "for republican principles." (Some of the comments are appalling, and Dreher deserves credit for letting them stand to show the terrible reasons put forward in defense of leaving the flag flying.)

Nikki Haley is quite the conservative. I agree with her on very little. She's likely gonna catch hell for this from her natural base.

She deserves credit. She's doing something right, that may cost her.

This is how we move forward. One side makes a concession that is painful and even risky. They open their heart, and empathize with the other.

The other side--well, I won't presume to speak for African Americans.

But it's also we liberals, who've been complaining and condemning this flag for decades. I myself was jarred at the fact that, while Old Glory and the South Carolina state flag were at half mast, the Confederate flag was at full staff--by statute, it could not be lowered absent a supermajority vote. It looked almost as if it were triumphant in the wake of the devastation at the Emanuel AME Church.

So what is our part in this?

Make it easy for Governor Haley to do the right thing. Don't crow.

Yes, it's a symbolic surrender for them--and Haley's words show that it doesn't come easy--but symbols have meaning. Symbols express truths.

Let this one go, fellow liberals. Progress is rare; let's not add disincentives for it.

Sunday, June 21, 2015

"Hate Won't Win"

The above video shows the families of the victims of Dylann Roof, one after the other, forgiving the murderer of their loved ones.

By chance, I met today a friend of one of the victims, appropriately enough at the end of a service at St Bartholomew's Church. We spoke a little; I listened, really. What could I say, but to offer to pray for her and her late friend, Ethel Lance? Seemingly Quixotic, as God already has her soul in His keeping, but that's on the plane of logic. That's not where prayer works. Every little flame of prayer, flickering candles though they be, staves off the darkness. We pray not because Ethel Lance needs my intercession, but because by her friend's touching my heart, she herself has become more real to me than a story in a newspaper. And so, even in this temporal plane, her life echoes a little more, in a different direction.

And my prayers, added to all the prayers of other strangers become brothers by having been touched by Ethel Lance's life, well--as one note in that symphony, will effect all of us who pray, and those our lives touch.

What becomes of all that prayerful energy and intent, I'll leave to God.

But one more thing: Today, I was present when my friend the Rev. Matthew Moretz preached eloquently on two intertwining themes: the harm that results when we fear to name evil, and the importance of confronting it, so as to be prepared to counter it, with love and forgiveness. The whole sermon is worth your time, but here's a piece that especially resonated with me:
On the radio, I heard the President call the forgiveness of the victim’s families “unimaginable.” This may be an idiom, but it just isn’t that helpful. What they did is part of a web of life that is not only imaginable, but has been lived out successfully for untold centuries, since at least the patriarch Joseph. You can see in the stone of this church the moment when he forgave his brothers who had nearly killed him. Placing the “Unimaginable” label on something so real and historical ends up blinding us to the Way of True Life that is accessible to anyone.

And like calling the murders “unspeakable,” it places these very real things, things that could help us, in a world of shadows. We have to learn how to speak about evil, yes, but it doesn’t end there in despair. Our honesty is a doorway, not a corner. Like the saints before us, we are charged with not only imagining but living out the very real and well worn path of mercy and forgiveness that will lead us out of the dark.

Can we get to the point where our surprise is not so pronounced? The people of Emanuel weren’t caught off guard. They were deeply wounded, yes. But they were ready. After generations of enduring the legacy of slavery and racism, and somehow continuing to pray and live and love, they were ready. They had been scouring the Scriptures and their hearts for the life of God under an ever-present post-slavery terror and the often deadly indignities that come with that legacy. Our fellow Christians know that these violent storms of hate from their neighbor must be endured with mercy and forgiveness, not amplified by more revenge and violence. Rather than using some curse to find a way forward, even further into the dark, they resolutely chose to bless their way into the future. And so they forgave the perpetrator.

Heaven forbid something of this magnitude would ever happen to us. But if so, I hope that we might be prepared. Prepared to continue the new life that some have called “unimaginable.” Prepared to soak our anguish in mercy; to mend our broken hearts with grace; and be encouraged, like the panicked disciples in that wave-tossed boat with Jesus, to trust God to guide us through these storms of violence and hate, to the calm on the other side of it. So that we are not ultimately panicked or scattered or terrorized by what hits us.
Listening to Matthew, I remembered my classmate Theresa Gorski, murdered two and a half years ago. And the difficulty of the restorative justice ministry I am beginning to research and envision. It's a big one, and daunting. But those nine families in Charleston just showed me how it's done, and Ethel Lance, Theresa Gorski, and untold myriads of others deserve to be the impetus for something worthwhile.

As Alana Simmons said to the killer of her grandfather, "Hate won't win."


Thursday, June 18, 2015

Silenced by a Madwoman

Tonight's excellent and full-length essay on the social and theological implications of recent events in the news has been suppressed by la Caterina, who rules with a rod of irony.

[However, she did accede to this post going up, so her sense of humor is unimpaired.]

In Memoriam

Enough about the gunman. Let's spare a thought for the lives that were cut short.

From NPR:
The Rev. Clementa Pinckney, 41: A state senator and the senior pastor of Emanuel, he was married to Jennifer Benjamin and the father of two children, Eliana and Malana. He was a 1995 graduate of Allen University and got his master's degree at the University of South Carolina in 1999. He served in the state Legislature starting in 2000; The Post and Courier says black fabric was draped over Pinckney's Senate chamber seat on Thursday.

Cynthia Hurd, 54: According to the Charleston County Public Library, she was a 31-year employee who managed the John L. Dart Library for 21 years before heading the St. Andrews Regional Library. A statement said Hurd "dedicated her life to serving and improving the lives of others." The system closed its 16 branches Thursday to honor Hurd and the others who died in the shooting. County officials also say the St. Andrews library will be named for Hurd.

The Rev. Sharonda Coleman-Singleton, 45: A pastor at Emanuel, she was also a speech therapist and high school girls track and field coach, both positions at Goose Creek High School, according to her LinkedIn page. Jimmy Huskey, the school's principal, called her "a true professional ... [who] cared about her students and was an advocate for them." Her son, Chris Singleton, is a baseball player and student at Charleston Southern University. Coleman-Singleton also had two younger children, writes the Post and Courier.

Tywanza Sanders, 26: He was a 2014 graduate in business administration from Allen University in Columbia. Lady June Cole, the interim president of Allen University, described him as "a quiet, well-known student who was committed to his education." Known as Ty, he had worked in sales at department stores such as Belk and Macy's.

Ethel Lance, 70: She had attended Emanuel for most of her life and worked there as a custodian, as well. From 1968 to 2002, she worked as a custodian at Charleston's Gaillard Municipal Auditorium. The Post and Courier quotes a former colleague as saying, "She was funny and a pleasure to be around. And she was a wonderful mother and grandmother."

Susie Jackson, 87: Lance's cousin, she was a longtime church member.

Depayne Middleton Doctor, 49: The mother of four sang in Emanuel's choir. She had previously directed a community development program in Charleston County. In December, she started a new job as an admissions coordinator at the Charleston campus of her alma mater, Southern Wesleyan University. SWU President Todd Voss said: "Always a warm and enthusiastic leader, DePayne truly believed in the mission of SWU to help students achieve their potential by connecting faith with learning. Our prayers go out to family and friends. This is a great loss for our students and the Charleston region."

The Rev. Daniel Simmons, 74: Simmons survived the initial attack but then died in a hospital operating room. He had previously been a pastor at another church in the Charleston area.

Myra Thompson, 59: She was the wife of the Rev. Anthony Thompson, the vicar of Holy Trinity Reformed Episcopal Church in Charleston.
We are all the poorer for their loss.

Eternal rest grant unto them, O Lord, and let light perpetual shine upon them.

Tuesday, June 16, 2015

Book Gloat Redux

I mentioned, did I not, that I had obtained a copy of Butler's Lives of the Saints?

Well, here it is:

Meanwhile, in other book news, I stumbled onto a little treasure trove, including a nice copy of Letters of Hensley Henson, the letters of the controversial bishop of Durham (model for Susan Howatch's fictional Adam Alexander Jardine). Henson's letters, which I have only dipped into are quite good reading, and quite scathing on occasion. Of his onetime friend and one of my favorites, Charles Gore:
He was an aristocrat to the finger-tips, with an aristocrat's contempt for law and tendency to play the despot. He felt intensely for classes, hardly at all for individuals; the wrongs of the one stirred him to prophetic denunciation, the oppression of the other did not greatly perturb him. Religiously, he was utterly a Catholick [Henson's spelling], to whom the utterance of the rightful ecclesiastical authority was fial, but he was too learned and candid to be a Papist. I judge him to have been the most considerable English Churchman of his time, not the most learned, nor the most eloquent, but so learned, so eloquent, so versatile, and so energetic that he touched the life of his generation at more points, and more effectively, than any of his contemporaries. He was, like a Jesuit diplomatist, the best company in the world, with no sourness of ascetic oddity to mar the frankness of his good fellowship. His humor and his enjoyment of humor, were delightful. Yet with all this, there was in him an element of steel-like hardness, which, whenever it emerged, you knew it was quite useless to reason with. he seemed to me at the end rather a pathetic figure, for his disciples had gone to the right, and to the left, and he was alone. He was always listened to with respect, and then--ignored. Probably this is the fate which overtakes every leader who has outlived his generation, but n his case, it seemed to be emphasized by his tireless industry
After disclaiming the utility such for a biography, he adds: "I used to say that he was S. Carlo Barromeo redivivus."

My. Henson's reputation for bluntness was honestly earned, hmm?

Monday, June 15, 2015

Strangers & Brothers (1983-1984)

Well, some 32 years--gulp!--after I first saw this series, and it introduced me to the great roman-fleuve by C.P. Snow, whose writing has been a mainstay of mine ever since, I found a copy of the miniseries. I've started watching it. The first episode is a little clunky in parts--Lewis Eliot's (Shaughan Seymour) masochistic yearning for Sheila Knight (Sheila Ruskin) (yes, that's Kassia, fellow Whovians) is often told us, not shown, in Eliot's fervent declamations that are overwritten. Their quiet moments work better, though, and the drama of the young Eliot fighting to make a name at the Bar with a tricky, exploitative pupil master (Neil Stacy is quite funny in the role, deftly evading any responsibility for his pupil's well being) is done quite nicely.

The part of the drama that ensnared me in 1983 is yet to come--the adaptation of Snow's single best novel, The Light and the Dark (1947), which led me to that book. Funny, tender, tragic by turns, I remember Nigel Havers's bravura performance, and the gallery of the Cambridge dons around him so vividly, especially Alan MacNaughton's sardonic Winslow.

I look forward to revisiting those spirited performances again.

Thursday, June 11, 2015

"To Become Children of God": A Meditation on John 1:1-5. 9-13

[Below is the text of a homily I gave at the graduation from the EfM group from which I graduated, and of which I was the mentor for three years. I served as deacon at the Eucharist and was delighted to see my friends graduate.]

The opening of the Fourth Gospel is sometimes called the “Logos Hymn.” It’s widely believed to actually have been a hymn, and it’s beautiful, if not the clearest part of the Bible. No, really; W.R. Inge called these verses “the charter of Christian Mysticism,” but Archbishop William Temple absolutely denied that they had anything whatsoever to do with mysticism. So work that one out.

The Gospel Reading for tonight is the core of that hymn. At my request, we cut out the introduction of John the Baptist, which is thought not to be part of the original hymn. And we stopped a little earlier than is usual.

That’s because the portions I had the privilege of reading just now are, to me, especially rich, especially on a night like tonight, when we commemorate the graduation of the EfM Class of 2015. Because these verses have something to say about why they have spent four years studying The Hebrew Bible, The Christian Scriptures, Church History, and—right, whatever year 4 is. It’s rich, but it’s a little loosely wrapped.

Which is not a bad way to describe the Episcopalian approach to belief. Rich, but not too tightly wrapped.
John’s Gospel opens with this hymn, and its promise: “But to all who received him, who believed in his name, he gave power to become children of God.”

That’s what we’re doing here, right? Taking some steps as pilgrims walking what the original Christians called the Way. Believing in His Name, and, we trust, becoming children of God.

But what does that mean?

In this room—trust me, I know—there’s a wide variety of styles of belief from the sort of traditionalist (that’s me, actually), to those who lovingly embrace the Spirit while holding creeds and belief structure very loosely. We’re kind of like the Chicago 7, the radicals tried for conspiring to disrupt the 1968 Democratic Convention. One of the Seven, Abbie Hoffman, when he heard the indictment read, laughed. “Conspire, hell,” he said, “we couldn’t even agree on lunch.”

But that’s Anglicanism for you. When John A.T. Robinson wrote the once controversial Honest to God in 1963, newspapers hoping for a good God-fight asked that champion of traditionalist orthodoxy, C.S Lewis, what he thought about it. His answer surprised them:
The bishop …will disturb most of us Christian laymen less than he anticipates. We have long ago abandoned belief in a God who sits on a throne in a localized heaven. . . .We have always thought of God as being not only "in" and "above" but also "below" us....His view of Jesus as a window seems wholly orthodox . . . .Thus, though sometimes puzzled, I am not shocked by his article. His heart . . . is in the right place.
So, no fight between Lewis and Bishop Robinson. And likewise here in EFM. We’re all pilgrims in this room. We each know that it isn’t important exactly what words we use to interpret our common experience of being drawn to the love of God as expressed in the life and sayings of Jesus of Nazareth. It’s the experience itself that matters. Of course we can’t all frame it the same way. We don’t experience it the same way.

That’s what I think Inge was getting at when he called this passage the “charter of Christian mysticism.” For Inge, mysticism was about direct, personal experience, the “raw material of all religion, . . . that dim consciousness of the beyond, which is part of our nature as human beings.”

That consciousness of the beyond is a consciousness that the beyond is a realm of love.

And that helps us to understand the power to become children of God. It’s a slow, gradual thing, the reforming of ourselves in our common travels, as we each help our companions on the Way, and are helped by them in growing into our truest best selves.
So here’s something I learned from many gathered in this room. That power really is given to us by God, but not in some magic, Hollywood superhero way. It’s manifested slowly, over time, in experience and relationship. The experience of those moments when we feel the presence of that loving Other that we call God. The acceptance that we are called back, time and again, to be in relationship with that Other, and with our sisters and brothers, our fellow wayfarers, as we all grow into our inheritance as children of God.

In the name of God, Father, Son, and Holy Spirit.

Sunday, June 7, 2015

Threads Intertwining

When I was a boy, I read everything I could get my hands on. I explored my parents' home looking for more to read, and dipped into everything from trashy novels to my father's engineering books. But a handful of things I spend real time with. One of them was my mother's old copy (given to her by my grandparents when she was a girl) of The Lives of the Saints (The "Concise Edition"), by Alban Butler. I remember spending hours over it as a child. When it popped up in my recommendations on Amazon, I became curious about it.

Oh, not Mom's copy--abridgments have been anathema to me since I discovered my childhood copy of The Three Musketeers was missing over 300 pages. (I was a child, and had no words for the occasion. Years of working in and around the criminal courts cured that deficiency.) But, I asked, what was it a "Concise Edition" of?

The Google (or is it Teh Google?) answered:
Butler's great work, The Lives of the Fathers, Martyrs and Other Principal Saints ("Butler's Lives"), the result of thirty years study, was first published in four volumes in London, 1756–1759. It is a popular and compendious reproduction of the Acta Sanctorum, exhibiting great industry and research, and is in all respects the best compendium of Acta in English. Butler's magnum opus has passed many editions and translations.

The first edition (1756–1759)
This edition was printed initially in 4 octavo volumes, with no stated publisher or author's name. However they were so thick that they were usually bound in more volumes. There were actually 6 title pages since Vol. 3 and Vol. 4 both have a "part II" issued thus: vol. I, vol. II, vol. III, vol. III part II, vol. IV, and vol. IV part II. Each "volume" contained three months of the liturgical calendar's Saints' lives. Vol. I also had a copperplate engraving with figures of the Roman devices of torture used, and a 2-page explanation of their use.

Charles Butler's assertion that "all the notes" were left out of the first edition at the suggestion of Bishop Challoner is exaggerated. There are many useful, and even extended notes in the first edition, but not to the extent that they appear in the second, and succeeding editions. According to Charles Knight, the edition published in twelve volumes in 1847 is considered the best and most complete
The Acta Sanctorum rang a bell--a distinct one, in fact--from that old Mage of Canada, Roberston Davies, one of my favorite Twentieth Century authors. In what is perhaps his best novel, Fifth Business (1970), Davies's protagonist, Dunstan Ramsey, becomes a hagiographer of some renown, who has "arrived" when an article of his is selected for publication in the Analecta Bollandiana, published by the Société des Bollandistes. The Analecta are described by the Bollandists themselves: "Since the very beginning, the journal was conceived as a continuous updating of the prestigious Acta Sanctorum series, as well as an entirely new instrument devoted to hagiographical research. Every issue contains both critical editions of hagiographical texts (Greek, Latin, Oriental...), and fundamental studies about hagiography. . . . Such contents make the Analecta Bollandiana indispensable in any department of medieval, Byzantine, Slavonic or Christian oriental studies, as well as of Church history, comparative religions, ethnology and folklore." The fictional Ramsey acquires over time a complete set, of course.

So this book I used to browse was the short version of the magisterial work that so inspired one of my favorite authors. Curious now, I looked it up on abebooks (Why shop anywhere else online?), and there was the complete text, in a gorgeous 1926 edition--four larger volumes not 12.

So I bought myself a slightly late ordination present.

When so many streams combine into one, don't turn away.

Tuesday, June 2, 2015

Amphibious Life: A Deacon's First Weeks

(Photo by Fred Bivetto; used by permission)

There I am, the day after ordination, proclaiming the Gospel for the first time, at my home parish of St Bartholomew's Church in New York.

I remember one day at my field placement, St. John's in the Village, when a very experienced acolyte asked me if, in the absence of our deacon (she was on vacation that day), I, as a soon-to-be deacon would read the Gospel that day. I demurred, pretty sure that was not the case, but was hesitant. I asked the Rector who would read the Gospel. He answered, "The only person present who is qualified to." He paused, and then, seeing our lack of understanding, added: "Me." And so he did.

So when I was invited to proclaim the Gospel at St Barts, that next day, it was brought home to me that my life had changed forever. I was clergy, a deacon. I was now qualified to proclaim the Gospel.

And so I have, for three Sundays and counting.


(Photo by Fred Bivetto; used by permission)

There's the baptism I wrote about earlier, my first. The family sought me out after to be photographed with them. I had become an integral part of their celebration of their daughter's new life. I had functioned as a sacramental minister in a whole new way.

Life has changed in some very real ways.


But here's the thing: I'm still living the life of a lawyer, too. At Church, I wear a clerical collar; at work, a tie. I'm in the world, and in the Church, and travel from one to the other by turnsn. But still, the collar--it changes you a bit at a time. I find myself trying to live at work and at home more in accordance with what I profess in my diaconal role. And that's a good thing. I'm listening more. Progress not perfection, of course.

A deacon's an amphibious creature, you know. We swim in the sea of the world, and then return to the solid ground of the Church. We need to be in both, and be a bridge between them.

Funny, that's been a major aspect of my life since graduating law school.

I've always written and taught--on the side. I'm a novelist--on the side. My death penalty work, my First Amendment advocacy--almost all of it on the side, not as part of my day job.

In some ways, my secular life feels like a long preparation for Holy Orders.

My beliefs are what they have been since the mid '90s when I was received into the Episcopal Church. It's just that they matter more, and have led me to a different expression of the valuesI have always held. Neither work nor the diaconate is "on the side." They are side-by-side.