The Watcher Cat

The Watcher Cat

Tuesday, August 25, 2015

Anglocat at Sea

Yes, we're doing something different this year for vacation--we are off on a cruise.

La Caterina and I will be on the bounding wave, each of us with books we have long meant to read, relaxing from what has been a very good year, but a tumultuous one. It's a little over a year since I changed jobs, and since Phineas at Bay came out. But since then, there's been so much: speaking at the Trollope Society annual dinner, and finding a good number of Trollopeans who genuinely enjoyed the book, but even bigger than that, a many years long process ended with my ordination to the vocational diaconate. I'm still getting used to it, and never enter St. Barts these days without thinking I've won the jackpot.

But a year of change, even when it's good change, requires some down time. So it's time to unwind; after all
'Tis not too late to seek a newer world.
Push off, and sitting well in order smite
The sounding furrows; for my purpose holds
To sail beyond the sunset,
--admittedly in considerably more comfort than did Ulysses.

I may post while away, but if not, thank you for coming on the prowl with me, and for reading along. See you in September!

Monday, August 24, 2015

Lester's Four Musketeers Revisited

I'm re-watching The Four Musketeers: Milady's Revenge (1974), the darker, if still comic, sequel to the 1973 film The Three Musketeers. It's easy to forget what a superb concoction this movie is--leading off with Frank Finlay's opening narration, in the best Flashy style, moving into the horrible end of the Athos-Milady marriage, with the ever-darkening tone leading inevitably to tragedy. The comic moments are less dominant than in part 1, but still present throughout. As above, where the mix of Raquel Welch's spunky feather-headedness, Richard Chamberlain's mugging, and Oliver Reed brutally kicking the hell out of the yelping Cardinal's guard tasked with guarding Constance, all to a delicate piece of music served up by Lalo Shiffrin, had me snuffing with laughter as though I hadn't seen the movies at least 8 times previously.

Surely so good natured a movie could not follow to Dumas's bitter end?

Update, August 25

I knocked off part-way through the joie last night, and am watching the end now. I love how the comic tone almost completely disappears after the Bastion St. Gervais breakfast scene. The music grows increasingly somber, the comic bits of Planchet hurrying to England are mere pauses to indicate time passing, while Felton (a superb Michael Gothard falls under the spell of Milady, Faye Dunaway, at her hypnotic, passionate best. Dunaway's performance finally kills the comedy. We've previously seen her in roustabout comic dueling with Raquel Welch, slow-burning at Kitty, her semi-competent maid. But here, at last, Milady takes center stage. Back to the wall, threatened with transportation to America (Dunaway's disgusted repetition of the word "America" is quite funny), Milady is no longer doing a job and amusing herself. We've seen flashes of this--her cold anger when Athos takes her authorization from Richelieu from her--but she's genuinely dangerous from here on in a way she hasn't been. And notably, the Musketeers are on the back foot for the rest of the movie--d'Artagnan's effort to save Buckingham fails, the Musketeers effort to get to Constance first fails, and their efforts to save her fail. Milady is entirely victorious in her revenge, so they take theirs. She brings our heroes (already flawed by their elitism and irresponsibility) to her level, at least momentarily. And, as readers of Twenty Years After know, she haunts Athos for years thereafter.

Saturday, August 22, 2015

In Defense of Alice More

This isn't an in-depth analysis, or anything, just a subjective reaction to chapter XIV ("A Jolly Master-Woman") in Peter Ackroyd's Life of Thomas More, which reminded me of an aspect of More's character that has always set my teeth on edge: He was consistently quite nasty about his second wife, Alice Middelton, making sure that all his circle of friends perceived her as a shrew; as Ackroyd puts it "Certainly [More] himself seems to have encouraged the impression that he had married a woman whose temperament lay somewhere between the Wife of Bath and Noah's Wife in the guild pageants."

Now, that's not just in Ackroyd; pretty much every account of More's life, from "Son Roper's" account to Robert Bolt's hagiographic play, A Man for All Seasons, agree on this unpleasant aspect of More. (In fairness, I should note that one revisionist effort, by Ruth Norrington exists, but it's pretty much an outlier.) Richard Marius quotes a contemporary (Nicholas Harpsfield) who describes More chiding Alice for vanity: "Forsooth, Madame, give you not hell,if God he shall do you great wrong, for it must needs be your very own of right, for you buy it very dear, and you take great pain therefore." (The fact that Alice was eight years older than her husband and mocked by his friends for her age is noted by Ackroyd, and may explain her efforts to be attractive; Marius takes Alice at More's measure.)

Alice came of a higher social status than did More--she was distantly related to the King--and brought him her fortune from her first marriage, aiding him both socially and financially. She was loyal to him to the death. Her return was to be reduced to a comic caricature by the man she stuck to with courage and pertinacity.

Frankly, I think she was worth ten of him.

Friday, August 21, 2015

As From the Grave...

In the first volume of 1the 1924 edition of "Mark Twain's Autobiography" (to use the title employed by his editor, Albert Bigelow Paine used for his edition), a little preface begins the work:

In this Autobiography I shall keep in mind the fact that I am speaking from the grave. I am literally speaking from the grave, because I shall be dead when the book issues from the press.

I speak from the grave rather than with my living tongue, for a good reason: I can speak thence freely. When a man is writing a book dealing with the privacies of his life--a book which is to be read while he is still alive--he shrinks from speaking his whole frank mind; all his attempts to do it fail, he recognizes that he is trying to do a thing which is wholly impossible to a human being. The frankest and freest and privatest product of the human mind and heart is a love letter; the writer gets his limitless freedom of statement and expression from his sense that no stranger is going to see what he is writing. Sometimes there is a breach-of-promise case by and by; and when he sees his letter in print it makes him cruelly uncomfortable and he perceives that he never would have unbosomed himself to that large and honest degree if he had known that he was writing for the public. He cannot find anything in the letter that was not true, honest, and respect-worthy; but no matter, he would have been very much more reserved if he had known he was writing for print.

It has seemed to me that I could be as frank and free and unembarrassed as a love letter if I knew that what I was writing would be exposed to no eye until I was dead, and unaware, and indifferent.

Despite this, preface, the Autobiography is not as confessional as all that. Oh, a bit here and there--more so in the (at last!) unexpurgated edition University of California Press has been publishing--than in Paine's edition, and as to the sanitized, anecdotal, de-fanged botch released by Charles Neider--well, the less said the better. But there is a mystery at the end of his life--his relationship with Isabel Lyon--and Twain's long-suppressed account will be included in the forthcoming volume 3:
The surprising final chapter of a great American life.

When the first volume of Mark Twain’s uncensored Autobiography was published in 2010, it was hailed as an essential addition to the shelf of his works and a crucial document for our understanding of the great humorist’s life and times. This third and final volume crowns and completes his life’s work. Like its companion volumes, it chronicles Twain's inner and outer life through a series of daily dictations that go wherever his fancy leads.

Created from March 1907 to December 1909, these dictations present Mark Twain at the end of his life: receiving an honorary degree from Oxford University; railing against Theodore Roosevelt; founding numerous clubs; incredulous at an exhibition of the Holy Grail; credulous about the authorship of Shakespeare’s plays; relaxing in Bermuda; observing (and investing in) new technologies. The Autobiography’s “Closing Words” movingly commemorate his daughter Jean, who died on Christmas Eve 1909. Also included in this volume is the previously unpublished “Ashcroft-Lyon Manuscript,” Mark Twain’s caustic indictment of his “putrescent pair” of secretaries and the havoc that erupted in his house during their residency.

Fitfully published in fragments at intervals throughout the twentieth century, Autobiography of Mark Twain has now been critically reconstructed and made available as it was intended to be read. Fully annotated by the editors of the Mark Twain Project, the complete Autobiography emerges as a landmark publication in American literature.
The closing words--published as The Death of Jean by Paine, wisely added to end the Autobiography by Neider, in his one improvement to the text, is heart-rending. Seriously, almost everybody who thinks they know Mark Twain--or Samuel L. Clemens, for that matter--is about to learn something.

I've pre-ordered my copy. This is the big one.

Thursday, August 20, 2015

Be Not Another. . .

Well, here's a new one:
I was the envy of my 30-something friends in Palo Alto, Calif. I had my own law office right on California Avenue. People charged with crimes handed me cash, in advance, over a big oak desk. Occasionally, I’d make a couple of grand in an afternoon.

But soon, my body started giving out one part at a time. First a shoulder, then my lower back, knee cartilage, neck vertebrae. Two groin hernia surgeries later, at 33 years old, I could not lift a bag of groceries, or sit without an orthopedic pillow. After 10 years as a law student and lawyer, working in a profession I didn’t like was taking its toll.

I sold my practice and fled to San Miguel de Allende in the Mexican state of Guanajuato.
And, ultimately, found his bliss in the right profession:
Studying want ads one evening, the one that got my blood moving promised to train me as a party clown, and send me out at $25 per show. Years earlier, I’d dreamed of becoming so weightless that I bounced off the ceiling. I could see myself in a billowy clown suit. After a free training session, I purchased the starter kit for $59 and waited for them to call.

Within a week, the company dispatched me to a party for a 7-year-old at a Ground Round restaurant in Yonkers. I applied colorful makeup, donned oversize shoes, orange wig, bag of tricks. It took a minute to decide on “Bobo” as my name. I silly-walked up to a table of children in the party room. By the end of the performance, the birthday boy said to me, “Bobo, I love you.” In the car later, I rested my head on the steering wheel. An unexpected feeling surfaced: happiness.
Right, you're all expecting me to have a little fun with this guy, right? A sarcastic jibe, perhaps, a little sly humor?


Well done, Robert Markowitz. Really, I mean it. There are far too many miserable lawyers out there. Many are trapped in jobs that aren't right for them, but could be happier in a better fitting position (I myself was miserable as a big firm attorney but have loved my public interest work--and even then, other things have called to me to supplement that career--the diaconate, writing, to name the two most important), but a lot shouldn't be lawyers at all.

Seriously, I mean that. If you don't love legal practice, it'll kill ya. It requires a lot of steady hard slog, wading through materials that are very dry, and gratification is delayed for years. If you aren't a natural born lawyer, if the stuff hasn't got a hold of your heart for whatever reason (la Caterina is one, too, but somewhat differently than me)--get out and save yourself, like Robert Markowitz did. Because life's too short.

In his excellent novel The Rebel Angels, Robertson Davies quotes Paracelsus: "Be not another if thou canst be thyself."

Good advice, very good advice.

So bravo to Robert Markowitz, and best wishes for another 20 years of success to Bobo the Clown.

As long as nobody expects me to don the red nose, that is.

Wednesday, August 19, 2015

"Everybody Knows it's Me or You..."

The story on Amazon's work environment has drawn a great deal of attention, and some pushback. It's a sobering account of workplace trends that asks just who we are as a culture, and what kind of lives we intend to lead. Because the story isn't just about the lower level employees, but its high-flyers. And is an ever-intensifying, cutthroat-competitive pressure cooker with data as the fuel really where we need to go as a society? Because some of the employees sound downright embracing of just that. And so I say the article raises questions of our aspirations, for ourselves, not just of market pressures.

It strikes a bit close to home, in that I published Phineas at Bay through an Amazon company, CreateSpace, and I was very pleased with the care and creativity they invested in supporting my book. The physical book is attractive, the Kindle edition as well, and the result was most gratifying. But even more than that, the fact that the team was available for questions, hand-holding, and concerns (rational or not), was a comfort. They made the production of the edited manuscript into a book easy. I'm uneasy at the thought that I may be complicit in so all-consuming an atmosphere.

Some will speak in defense of the company, and point out ameliorating factors--policies not followed, anecdotes of supportive managers and co-workers. Others may defend the stark nature of the workplace depicted in the article, whether true or not, and valorize its efficiency. I have no easy answers, here. But I am reminded of the ending to the book Cheaper By the Dozen, the story of the family life of the early efficiency experts Frank Gilbreth and Lillian Moller Gilbreth:
"Someone once asked Dad: But what do you want to save time for? What are you going to do with it? "
For work, if you love that best, said Dad. For education, for beauty, for art, for pleasure. He looked over the top of his pince-nez. For mumblety-peg, if that's where your heart lies."
We must not become so efficient and single-minded that we lose all the time we are saving.

Tuesday, August 18, 2015

Serial Crimes

The Oxford Comma, also known as the "Serial Comma," has been on my mind today. That's because I have had, in my day job, to go over our style and usage manual--who said there's no adventure in law?--and determine what we would change and what we would keep.

Ah, the Oxford Comma. Embraced by the APA, The Chicago Manual of Style, The MLA Style Guide, Strunk and White's Elements of Style (at p. 3!), and the U.S. Government printing Office Style Manual (Rule 8.42, at p. 201).

In England, though, Oxford University stands alone in its defense.

Now, I admit it, I like the Oxford Comma. First, because--well, sorry; Anglophile here, and still have a sentimental attachment to Oxford University Press, the first institution that sent me mail from England--the Barset novels and Palliser novels of Anthony Trollope, when they were out of print in the US, and my heart would thrill a bit at getting mail from England, Actual English books, not American editions. "Colour" not "color." And the Oxford Comma.

But that's no real reason. No, the real reason is that if you leave it out, you can write absurd sentences that make you look gormless.

A few examples:
"She took a photograph of her parents, the president, and the vice president."
This example from the Chicago Manual of Style shows how the comma is necessary for clarity. Without it, she is taking a picture of two people, her mother and father, who are the president and vice president. With it, she is taking a picture of four people.

"This book is dedicated to my parents, Ayn Rand and God"
A probably apocryphal book dedication, this example has been a favorite of pro-Oxford comma language blogs for a while. Without the comma before "and," you get a rather intriguing set of parents.

"By train, plane and sedan chair, Peter Ustinov retraces a journey made by Mark Twain a century ago. The highlights of his global tour include encounters with Nelson Mandela, an 800-year-old demigod and a dildo collector."
Languagehat dug this gem out of a comment thread on the serial comma. It's from a TV listing in The Times. It supports the use of the Oxford comma, but only because it keeps Mandela from being a dildo collector. However, even the Oxford comma can't keep him from being an 800-year-old demigod. There's only so much a comma can do.
The Oxford Comma: More necessary than an umbrella.

Monday, August 17, 2015

Rejoining My Tribe

Three decades ago, I attended a sic-fic convention with my good friend Vinnie Bartilucci. It was my first and only--life got away from me fast. But, as I'm slowly stalking fifty, it appears I am not putting away childish things.

I have an admirable excuse, of course. As a doting uncle, I am taking my nephew and niece to theirs, LI Who in mid-November. The guest list skews slightly old-Who, with Paul McGann, Carole Ann Ford, Frazier Hines, Wendy Padbury,Katy Manning and Janet Fielding representing classic Who actors (Derrick Sherwin was much more of a presence as a writer-producer than for his cameo appearance.) NuWho is well represented by Noel Clarke, Camille Coduri, Dan Starkey, Annette Badland and Nina Toussaint-White (Mels).

I'm sure the kids will have a lot of fun.

But not, perhaps, as much a their uncle.

Friday, August 14, 2015

The Quality of Mercy

Here's President Obama defending his commutation of the sentences of 46 prisoners--non-violent drug offenders:

The President sounds a defensive note in justifying this act, but he should be applauded fir it. Yes, it's risky. Yes, one or more could reoffend, and make the President look bad.

But this is leadership. Exercising the prerogative of mercy.

And the story of Rudolph Norris--who worked to better himself, was represented by a highly motivated young law student--who says my tribe never gets it right?--is worth your attention.

The President seems to have chosen wisely here. But the choosing is critical, whatever the result.

Hope and prayers for Mr. Norris as he discovers the modern age, and finds a place in it.

Wednesday, August 12, 2015

The Summer of Lost Literature

For all of his admitted flaws, Karl Marx was smart enough to almost say that history repeated itself, "the first time as tragedy, the second time as farce."[1]

This summer poses an admirable example of the phenomenon in the literary world. It began with the release of Harper Lee's Go Set a Watchman, in which we had the tragedy of Atticus Finch's declining years, and were forced to question simple assumptions about the virtues of the finest Southern gentleman in literature. Now, as summer nears--well, let's not rush things, and call it the end yet, but, as Labor Day begins to hove menacingly into view, we are confronted with the return of Ayn Rand:
The movie-star heroine of Ayn Rand’s “Ideal” is a legendary, enigmatic beauty named Kay Gonda, paid a fortune by Hollywood for her work and worshiped by the faceless multitudes. Her press agent writes: “Kay Gonda does not cook her own meals or knit her own underwear. She does not play golf, adopt babies, or endow hospitals for homeless horses. She is not kind to her dear old mother — she has no dear old mother. She is not just like you and me. She never was like you and me. She’s like nothing you rotters ever dreamt of.”

In short, Kay Gonda is one of Rand’s Nietzschean protagonists — an über-frau who has fans, not friends, and who thinks that she towers above all the losers and “second-handers” who populate the world. She is also, it turns out, a close relative of Dominique Francon in the early portions of “The Fountainhead” (a character Rand once described as “myself in a bad mood”)— a pessimist radically alienated from a world she regards with disdain.

he premise of “Ideal” is that Gonda is on the run, suspected of murder and seeking refuge with a succession of fans who have written her mash notes; most turn out to be hypocrites and weaklings who pledge undying loyalty and love but betray her in her supposed hour of need.

The story is an ugly, diagrammatic illustration of Rand’s embrace of selfishness and elitism and her contempt for ordinary people — the unfortunate, the undistinguished, those too nice or too modest to stomp and roar like the hard man Howard Roark in “The Fountainhead.” It underscores the reasons that her work — with its celebration of defiance and narcissism, its promotion of selfishness as a philosophical stance — so often appeals to adolescents and radical free marketers. And it is also a reminder of just how much her didactic, ideological work actually has in common with the message-minded socialist realism produced in the Soviet Union, which she left in the mid-1920s and vociferously denounced.
Ah, sounds bracing, doesn't it? I remember once in college taking a course on Soviet Foreign Policy (I did this in 1987, showing that I was not prescient.) Anyway, among the works we read was a Communist Party approved treatise, which had been translated into English. It had the same stilted, purportedly welcoming tone, as it rumbled over clunky usages and improbable syntax that no human mouth ever spoke, as does Rand's dialogue. The review gives several risible examples, but my favorite occurs when Gonda is tasked with having been complicit in a young man's suicide; "she coolly says it was 'the kindest thing I have ever done.'”

That's our Ayn. A self-proclaimed philosopher who took all the paradox and irony, the wit and sarcasm, out of Nietzsche, and solemnly explicated the practical implications of his stark parables, as though they were an instruction manual.[2] Leopold and Loeb did him more credit as disciples.


[1] Actually, the quote is "Hegel remarks somewhere that all great world-historic facts and personages appear, so to speak, twice. He forgot to add: the first time as tragedy, the second time as farce. Caussidière for Danton, Louis Blanc for Robespierre, the Montagne of 1848 to 1851 for the Montagne of 1793 to 1795, the nephew for the uncle."

[2] One cannot miss the opportunity to quote the great John Rogers:
There are two novels that can change a bookish fourteen-year old's life: The Lord of the Rings and Atlas Shrugged. One is a childish fantasy that often engenders a lifelong obsession with its unbelievable heroes, leading to an emotionally stunted, socially crippled adulthood, unable to deal with the real world. The other, of course, involves orcs.

Wednesday, August 5, 2015

For Want of a Rubber Band. . .

Just so you don't think I've become anything less of a worrier about my cats, submitted for your approval:

Ninja Kitteh, pictured above, was frisking about on my desk while I was working on a piece of writing the other day (yes, it was the Fish fisking). On the desk was a thick rubber band that I'd used to hold together a book the chipped spine of which I had repaired while the glue dried. Out of my peripheral vision, I saw her knock the rubber band off the desk, and pursue.

Then the penny dropped; she might eat the bloody thing, which can be very bad for cats--possibly even fatal. I started up, just in time to see Ninja on her hind legs, flicking her head, and the rubber band?


I didn't see her eat it, I comforted myself, as I searched fruitlessly for the missing rubber band.

So, the big question--was Ninja perfectly fine, or had she gulped the thing down, and even now it was getting ready to block her digestive tract?

48 hours later, I had my answer. First time I ever smiled while scooping out a litter box.

Monday, August 3, 2015

Fishing for Sense

Courtesy of Rod Dreher, I have become aware of this recent piece by Stanley Fish:
Two recent items in the news reflect the continuing fallout from Obergefell v. Hodges, the case barring states from restricting marriage to the union of a man and a woman. Senator Ted Cruz is holding hearings in response to what he takes to be the "lawlessness" of the decision. And in the New York Times, law professor William Baude asks a question many have been asking in the wake of Obergefell: "Is Polygamy Next?" (Are we sliding down a slippery slope?)

So the questions are: (1) Is the majority decision, as Justice Scalia charges in his dissent, "lacking even a thin veneer of law" and full instead of "the mystical aphorisms of the fortune cookie"? (2) Or is Scalia's dissent, as his critics charge, "unhinged," "bitchy," "juvenile" and "hysterical" (all words that have been applied to it)? And (3), is it inevitable that the majority's arguments will lead to the legalization of plural marriage? I would answer "yes" to (1) and (3)," no" to (2).
Right, let's stop a little bit here. I should, I suppose, be patient with Fish, if only out of gratitude for his providing the model for David Lodge's wonderful character, Morris Zapp. But, really, this article is written in the most irritating kind of ignorance--pompous, self-assured ignorance. Let me explain.

Fish’s endorsement of Scalia’s dissent contending that the Obergefell majority lacks “even a thin veneer of law” requires ignoring a lot of well established cases.

First off, the Court has held that marriage is a fundamental right since Meyer v. Nebraska, 262 US 390 (1923):
While this Court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.
Even a cursory search reveals that the cases go bak to the late 19th century, in Maynard v. Hill, 125 US 190 (1888).

Likewise, Loving v. Virginia, 388 US 1 (1967), found unconstitutional a bar on interracial marriage, rejecting an argument, like one made in Obergefell, that such restrictions were neutral, as applying equally to white and black citizens:
Because we reject the notion that the mere "equal application" of a statute containing racial classifications is enough to remove the classifications from the Fourteenth Amendment's proscription of all invidious racial discriminations, we do not accept the State's contention that these statutes should be upheld if there is any possible basis for concluding that they serve a rational purpose. The mere fact of equal application does not mean that our analysis of these statutes should follow the approach we have taken in cases involving no racial discrimination where the Equal Protection Clause has been arrayed against a statute discriminating between the kinds of advertising which may be displayed on trucks in New York City, Railway Express Agency, Inc. v. New York, 336 U.S. 106 (1949), or an exemption in Ohio's ad valorem tax for merchandise owned by a nonresident in a storage warehouse, Allied Stores of Ohio, [p9] Inc. v. Bowers, 358 U.S. 522 (1959). In these cases, involving distinctions not drawn according to race, the Court has merely asked whether there is any rational foundation for the discriminations, and has deferred to the wisdom of the state legislatures. In the case at bar, however, we deal with statutes containing racial classifications, and the fact of equal application does not immunize the statute from the very heavy burden of justification which the Fourteenth Amendment has traditionally required of state statutes drawn according to race.
Equal protection requires special care be applied to legal restrictions targeting “discrete insular minorities” who have been historically the subject of prejudice and political disadvantage. United States v. Carolene Products, Co., 304 US 144, n. 4 (1938). That homosexuality falls within this class is pretty clear–leaving aside questions of bias and prejudice, for which there’s a lot of evidence in terms of violence and the workplace, look at anti-gay legislation introduced in 2015 alone. A good example of such legal action was nullified in Romer v. Evans, 517 US 620 (1996), in which Colorado passed a referendum amending the state constitution so that laws protecting GLBT rights could not be passed by the State, limiting the rights of GLBT Coloradans to use the democratic process in a way no others were limited.

So requiring some quotient of a rational basis beyond tradition and moral disapproval slots neatly with classic equal protection law, contrary to the claim of “lawlessness.” It’s consistent with equal protection models dating back to pre WW II, and with a fundamental right status for marriage that’s nearly a century old. In sum, Fish is empirically wrong here.

He then compounds his error:
The court now finds itself in the same place with respect to "intimate domestic arrangements" as it has been in for a long time with respect to the issue of conscientious objectors. Before United States v. Seeger (1965) and Welsh v. United States (1970), conscientious objector status was granted to those who had undergone "religious training" and expressed a belief in a "Supreme Being" commanding "duties superior to those arising from any human relation" (Seeger) -- in short, an adherent of a traditional religion. But before it was done the court concluded that a constitutionally protected objection to war "need not be confined in either source or content to traditional or parochial concepts of religion." Instead, what is required is that the person seeking an exemption from military service profess a set of beliefs that "occupy in the life of that individual a 'place parallel to that filled by... God' in traditionally religious persons" (Welsh).

And what might that set of beliefs be? Why, almost anything. The requirement is not doctrinal or ceremonial; it is emotional. The beliefs must be "deeply held," whatever their content, and if they are, that is sufficient to earn the exemption. And given that no device for measuring the depth of one's beliefs -- no sincerity meter -- has ever been invented, there would seem to be no principled basis for denying anyone's claim. (Of course, there is now no draft, but there may be one again, in which case the issue of conscientious objection would return.)

Whatever the problems with the traditional definitions of either conscientious objection or marriage -- and there are many -- they at least provided a formula for adjudicating individual cases: If you're a man and a woman, you can get married; if you believe in God and belong to an established church, you can get an exemption. By departing from tradition and becoming more inclusive and less doctrinaire, the court has deprived itself of any brakes that might stop the train it has set in motion. Many will think this is a good thing. The question Scalia and the other dissenters raise is whether it is a legal good thing.
Now, all this talk about the right to religious accommodation from generally applicable, nondiscriminatory laws, why, that's probative of--not sure what, frankly but it hardly matters, because, as before, Professor Fish is not up on the law. He hasn't read Employment Division v. Smith, 494 U.S. 872 (1990):
We have never held that an individual's religious beliefs [p879] excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition. As described succinctly by Justice Frankfurter in Minersville School Dist. Bd. of Educ. v. Gobitis, 310 U.S. 586, 594-595 (1940):

Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities.

(Footnote omitted.) We first had occasion to assert that principle in Reynolds v. United States, 98 U.S. 145 (1879), where we rejected the claim that criminal laws against polygamy could not be constitutionally applied to those whose religion commanded the practice. "Laws," we said,

are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. . . . Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.

Id. at 166-167.

Subsequent decisions have consistently held that the right of free exercise does not relieve an individual of the obligation to comply with a

valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).

United States v. Lee, 455 U.S. 252, 263, n. 3 (1982) (STEVENS, J., concurring in judgment); see Minersville School Dist. Bd. of Educ. v. Gobitis, supra, 310 U.S. at 595 (collecting cases). In Prince v. Massachusetts, 321 U.S. 158 (1944), we held that a mother could be prosecuted under the child labor laws [p880] for using her children to dispense literature in the streets, her religious motivation notwithstanding. We found no constitutional infirmity in "excluding [these children] from doing there what no other children may do." Id. at 171. In Braunfeld v. Brown, 366 U.S. 599 (1961) (plurality opinion), we upheld Sunday closing laws against the claim that they burdened the religious practices of persons whose religions compelled them to refrain from work on other days. In Gillette v. United States, 401 U.S. 437, 461 (1971), we sustained the military selective service system against the claim that it violated free exercise by conscripting persons who opposed a particular war on religious grounds.
Note the Court approvingly cites Reynolds, which Fish is so sure is a dead letter.

Oh, and the author of this decision that rejected the line of cases cited by Fish to vindicate Antonin Scalia in Obergefell?

Antonin Scalia, of course.

Sunday, August 2, 2015

The Dalmatic Dramatic

I remember when I was first admitted to the Bar, the late Theodore Roosevelt Kupferman swore me (along with about 90 of my closest friends) in. His inspirational address has stayed with me.

"Gentlemen and ladies," he growled, "life at the Bar offers unparalleled opportunities for humiliation.. . " And he was off and running. "Richard Nixon was a member of the Bar of this Court," he said pensively. "He knew humiliation." Pause. "Roy Cohn was a member of the Bar of this Court. Humiliated."

And so on.

The speech has been one of my after-dinner set pieces since my swearing in 1991, and has, I admit, worked its way into the new novel I'm writing, albeit in a very different form.

But it's also true of ecclesiastical life.

An example:

At both the 9:00 am and the 11:00 am services, I was the Gospeller--one of my favorite jobs as deacon. And I had a great passage to read--the lead in to and beginning of Bread of Life Discourse. All went well at the 9:00 service. At the 11, I was seat among the clergy, and then, when we stood to sing the sequence hymn, I reached under the dalmatic (heavy embroidered robe worn by the deacon; the subdeacon wears a matching tunicle, the presider a matching chasuble, the homilist a cope. All clear? No? Welcome to liturgy. Look, for purposes of the story, all you need to know is that all three robes are worn over albs--plain white robes--are very heavy. And that, at a large church like St. Barts, we generally where microphones that have a separate little controller that you depress when you need to be heard, and then push again, and it springs back up, turning off the mic when you're done. Savvy?)

So, where was I? Oh, yes, We stood to sing the hymn. I reached under the dalmatic to my left hip, where the little controlling device for the mic was carefully clipped to my belt.

Except it wasn't.

Somehow the little device had gotten unhooked, and disappeared into the folds of the alb.

And I was about to embark on a complicate theological reading of the most subtle of the Gospels.


The key thing I learned as a trial lawyer is, act as if you know what you are doing, and people assume that you do. So I rose, purposeful--but not hurriedly, though incipient panic was knocking at the door--past where I pick up the Gospel book, and past the verger, into an empty little corridor. Where I promptly rummaged around, found the little device, and (after three tries, because my hands were shaking) hooked it back into place. And then, most importantly, I turned it on.

And went out and proclaimed the Good News, so relieved that I sailed through the reading of the Gospel like a veteran.

Who says the law wasn't good preparation for the diaconate?

Saturday, August 1, 2015

Building Better Lives

Here's some good news:
Education Secretary Arne Duncan and Attorney General Loretta Lynch announced the administration's new Second Chance Pell Pilot program during a visit Friday to the Maryland Correctional Institution in Jessup, Maryland.

"America is a nation of second chances," Duncan said. "Giving people who have made mistakes in their lives a chance to get back on track and become contributing members of society is fundamental to who we are. It can also be a cost-saver for taxpayers."

The program will allow, on a temporary basis, federal grants to be used to cover college costs for prisoners for the first time since Congress excluded them from student aid in 1994. It will last three to five years and be open to prisoners who are eligible for release, particularly within the next five years. Inmates could be eligible for the money as early as the fall of 2016.

Pell grants are for low-income people and do not have to be repaid.
Now, this makes all kinds of sense. Indeed, my home state of New York introduced a similar program last year, based on a successful model:
The plan is based on the Bard Prison Initiative, a program created at Bard College in 1999. Since its inception, the Bard Prison Initiative has educated 500 inmates and awarded degrees to 250 people. Of those who have completed the program, only 4 percent have returned to the criminal justice system.

Upon release, prisoners often have trouble reentering society. A criminal record is a difficult stigma to shed. Many businesses are unwilling to hire them. Housing opportunities can be few and far between. If not addressed, these obstacles increase the likelihood that they will find themselves caught up in the system again within three years.

Education decreases these odds. For example, the Five Keys Charter School in San Francisco helps those in jail obtain their high school diploma or GED with great success. Five Keys graduates have a recidivism rate of 44 percent, compared to their fellow inmates’ rate of 68 percent. The dramatic drop in recidivism has saved San Francisco $1.5 million a year incarceration expenses.
Look, it's really quite simple, and the problem has been with us perennially. (Seriously, read Hugo's Les Miserables. Hell, even the musical makes the point.) What do you do with people when their incarceration ends? Let them drift with no credentials, nothing to alleviate their condition, and then feign virtuous surprise when they drift back into crime?

According to 2015 Congressional Research Report, "nearly three-quarters of offenders released in 2005 came back into contact with the criminal justice system, and more than half returned to prison either after being convicted for a new crime of for violating the conditions of their release." Lack of education is a major factor in predicting recidivism.

The report points out that 95% of the incarcerated population will be released one day. So, yeah, anything that may help them find a new place in society, rather than return to the old is worth trying.

The old game is played out. The retribution rationale for the criminal justice system has its place, but doesn't answer the pragmatic question of how to treat an offender who has served his or her time. That's why a rehabilitative component also has its place.

Yesterday the Obama Administration brought a new tool into that all-too-often disparaged component of the criminal justice system. Good for them, and for us.